Statutory Construction in Missouri

by Craig A. Sullivan¹

This article is intended to provide a practical reference source to view the primary canons of statutory construction.

I. Introduction

This article seeks to gather in one place the primary canons of statutory construction as expressed by Missouri state courts.² The function of statutory construction is to ascertain the intent of the legislature in enacting a statute, i.e. the purpose and objectives of the legislation. The rules or canons of statutory construction are tools or aids for determining that intent or purpose. For the lawyer interpreting statutes to a court by brief or motion, they can be valuable tools.

The article first deals with the cardinal rules of statutory construction. It then describes the canons themselves, proceeding in order from those based on internal textual analysis to the broader, less textual ones. The article then lays out the rules for reconciling conflicting statutes. It ends with some suggestions concerning briefing statutory construction issues.

II. The Cardinal Rules of Statutory Construction: Textualist v. Purposive

Statutory interpretation is divided into two broadly defined approaches: the "textualist" and the "purposive." The textualist approach asserts that statutory construction must remain focused solely on the words in the text and cannot deviate from them unless the text is unclear. The purposive approach first looks to the purpose of the statute, then interprets the language at issue in light of that purpose.

A. Textualist Interpretation in Missouri: The "Plain Meaning" Rule

Under the "plain meaning" rule, if a statute is clear and unambiguous, the court should apply the statute in accordance with its plain and ordinary meaning and should not engage in statutory construction.³ A statute is plain and unambiguous if its terms are plain and clear to one of ordinary intelligence,⁴ the ordinary sense of a word being that derived from the dictionary.⁵

The plain meaning rule is misleadingly simplistic. The distinction between a plain and ambiguous statute can be elusive. Although an ambiguity is often evident on the face of the statute, frequently its recognition results from insightful reading by attorneys fashioning plausible interpretations favorable to their clients. Also, even if the statute, standing alone, has a plain and ordinary meaning, reading the statute in relation to other legislation covering the same subject (reading the statute in pari materia, discussed below) can reveal alternative plausible meanings. For example, in State v. Rousseau,⁶ Rousseau was indicted for giving false testimony to the Missouri Gaming Commission concerning casinos. The statute on its face certainly appeared to make such conduct unlawful. Looking at the horse racing and gaming statutes together (in pari materia), however, showed that it was lawful to give false testimony to the commission concerning casinos, but not about horse racing.

Broader than "ambiguity," the term "uncertainty of meaning" might better describe the threshold finding necessary to trigger statutory construction. Missouri courts have construed many statutes which, though not facially ambiguous, had uncertain meanings. At least one Missouri court has stated that the threshold determination is whether the statute is "ambiguous or uncertain."⁷

B. Purposive Interpretation in Missouri

In Lewis v. Gibbons,⁸ the Court applied what it called "the primary rule of statutory construction":

[T]o ascertain the intent of the legislature from the language used, to give effect to the intent if possible, and to consider the words in their plain and ordinary meaning. The construction of statutes is not to be hyper-technical, but instead is to be "reasonable and logical and [to] give meaning to the statutes."⁹

At issue in that case was the word "prior" in a statute requiring a candidate's residency in the county of the election for "at least one year prior to the date of his election." The challenger for a position in Miller County grew up there, but then resided elsewhere. The incumbent contended that the statute required residency in the county during the year immediately prior to the election. Because "prior" unambiguously means "before," the plain meaning only required a one-year residency at any time before the election. The Court found, however, that because the residency requirement's purpose is to ensure connection between governmental officials and their constituents, the word "prior" includes within it the concept of immediacy.

Judge Learned Hand once described statutory construction as a judge being "pulled by two opposite forces":

On the one hand he must not enforce whatever he thinks best; he must leave that to the common will expressed by the government. On the other, he must try as best he can to put into concrete form what that will is, not by slavishly following the words, but by trying honestly to say what was the underlying purpose expressed.¹⁰

Similarly, Karl Llewellyn has described the touchstone of statutory construction as: "If a statute is to make sense, it must be read in the light of some assumed purpose. A statute merely declaring a rule, with no purpose or objective, is nonsense."¹¹ Or, in the words of Lewis v. Gibbons, statutory construction must "give meaning to the statutes."

C. The "Cardinal Rule"

"[T]he 'cardinal rule' [states] that 'the intention of an act will prevail over the literal sense of its terms.'"¹² Although Missouri courts do not use the term "mischief rule," they do apply it. For example, in Leiser v. City of Wildwood,¹³ a statute referred to counties "of the first classification" with a charter form of government. Because counties of the first classification do not have charter forms of government, the court excised the words "of the first classification" from the statute as "improvidently inserted." In Dairyland Ins. Co. v. Hogan,¹⁴ the Court made "uninsured motor vehicle" mean "vehicle being operated by a person whose legal responsibility for damages negligently inflicted is not covered by any liability insurance provision" because, otherwise, an insurer could deny an uninsured motorist claim if the automobile was insured, but not the driver.

III. Canons of Statutory Construction

This section lists the primary canons of statutory construction. In most statutory construction cases the issue is less whether a canon is applicable, but which of several applicable canons to apply. Often two applicable canons will produce inconsistent interpretations, the choice depending on which produces the more rational and sensible result. Karl Llewllyn posited that the most important part of statutory construction is the judge's sensed purpose of the statute, with canons applied or rejected based on whether they reinforce or weaken the interpretation furthering that purpose.¹⁵

A. Intrinsic Textual Canons

EJUSDEM GENERIS: "of the same kind"

Where general words follow words listed in a statute, the courts construe the general words to include only objects similar in nature to the listed objects.¹⁶ This canon is useful in determining the scope and extent of general words. Thus:

• In Standard Operations, Inc. v. Montague, the Court succinctly stated the rule as: In the phrase "horses, cattle, sheep and other animals," the phrase "other animals" includes "goats, but not bears or tigers."¹⁷

• In Schuettenberg v. Board of Police Comm'rs of the City of St. Louis, ¹⁸ the plaintiff claimed a right to a pre-termination hearing because a statute required cause for the termination of "any policeman or officer of police, or other person under them." The court applied the ejusdem generis rule and found "persons under them" did not include civilians, that the plaintiff was an at-will employee, and therefore had no right to a hearing.

NOSCITUR A SOCIIS: It is known from its associates, or it is known by the company it keeps.

This rule limits a broad term to the characteristics it shares with the terms with which it is grouped. Thus:

• In Short v. Short,¹⁹ the wife wanted to include in the calculation of child support the cost of athletic equipment and lost time from work due to children's sickness. The court looked to the list of examples following the term "extraordinary expenses" in Child Support Form 14, applied the noscitur a sociis rule, and found that athletic equipment was includable because of its similarity to those listed, but rejected the lost work claim.

• In State v. Bratina,²⁰ the trial court dismissed an indictment for "abandonment of a corpse" as void for vagueness. The Supreme Court reversed, finding that, although a statute proscribing leaving a corpse might be void for vagueness, the statutory grouping of "leaves" with other terms – "abandons, disposes, deserts or leaves a corpse" – limited its application to situations similar to those described by the other terms.

This rule and the ejusdem generis rule are often applicable to the same language issues.

EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS: The express mention of one thing implies the exclusion of another.

This canon is of limited use in resolving statutory ambiguity, as shown by the following applications of the canon:

• A statute's express mention of residential leasing impliedly excludes commercial leasing.²¹

• If a statute imposes a tax on the sale of food in places generally open to the public, the tax does not apply to other locations of food sales.²²

• "[W]here special powers are expressly conferred or special methods are expressly prescribed for the exercise of power, other powers and procedures are excluded." ²³

• "[W]hen a statute enumerates the persons affected, it is to be construed as excluding from its effect all those not expressly mentioned."²⁴

Often when a court invokes this rule, its holding is actually based on the plain meaning of the statute. The reference to the canon is often rhetorical, merely another rationale for the holding. After all, if a statute enumerates the persons affected, those are the persons affected by the statute.

LAST ANTECEDENT RULE: Relative and qualifying words, phrases, or clauses refer to phrases or words immediately preceding them or closest in context, not to more remote terms. Thus:

• An issue in Brookside Estates v. State Tax Comm'n of Missouri²⁵ was whether, in the definition of "residential property" as all real property improved by a structure which is used or intended to be used for residential living by human occupants and which contains not more than four dwelling units," the "which" phrases modified the word "structure" or the words "real property." The Court found that the "which" clauses referred to structures because it was immediately preceding, not to the more remote term "real property."

• Citizens Bank & Trust Co. v. Director of Revenue²⁶ concerned whether the phrase "held for lease or rental to others" modified the term "tangible personal property" or "real estate" in the following: "other than taxes on real estate and tangible personal property owned by the taxpayer and held for lease or rental to others." (emphasis added by the Court). The Court found that the phrase referred to "tangible personal property," not to the more remote term "real estate."

B. Miscellaneous Other Textual Rules

A court's interpretation cannot: imply additional words into a statute; omit words from the statute; or render words meaningless, excessive, superfluous or redundant. The court must give each word a separate and individual meaning.

The courts frequently repeat these rules in statutory construction cases. Vocational Services, Inc. v. Developmental Disabilities Resource Bd.²⁷ provides an excellent example of their application. Vocational Services concerned the types of activities included in the phrase "related services" in a statute authorizing counties "to establish and/or operate a sheltered workshop . . . residence facilities, or related services, for the care or employment, or both, of handicapped persons." The Development Disabilities Board (DDRB) contended that "related services" referred to services related to the care and employment of the handicapped. Vocational Services (VSI) contended that "related services" only included services directly related to the operation of sheltered workshops and residential facilities.

The court rejected DDRB's inter-pretation because it rendered the word "related" meaningless; if the legislature had intended to allow funding of all services for the care and employment of the handicapped, the statute would read: "sheltered workshops, residence facilities, or services for the care or employment, or both, of the handicapped." The court rejected VSI's interpretation because it required the court to read into the statute the term "directly." The court applied the ejusdem generis canon that"where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words." Thus, "related services" includes services similar to or related to sheltered workshops and residential care facilities.

C. Miscellaneous Other Canons Of Statutory Construction

PRESUMPTION THAT LEGISLATURE KNOWS THE LAW AT TIME OF ENACTMENT OF STATUTE

In enacting, reenacting or amending a statute, the legislature is presumed to have acted with knowledge of the state of the law. "When the legislature enacts a statute referring to terms which have had other judicial or legislative meanings attached to them, we presume that the legislature acted with knowledge of that judicial or legislative action."²⁸ If a court has construed a statute and the legislature reenacts it, the legislature is presumed to have incorporated the judicial construction into the statute.

In Leiser v. City of Wildwood, the issue was whether four contiguous parcels of commonly owned land constituted a "tract of land," as the plaintiff contended, or four tracts, as the defendant contended. The court looked to prior legislative and judicial meanings given to "tract" and determined that the legislature intended for those definitions to apply. An argument that the legislature, in enacting a statute, intended to incorporate a prior definition into the statute can be significantly more persuasive than the mere assertion that the legislature or judiciary had previously defined the term.

If the legislature enacts a statute while another statute concerning the same subject matter is effective, the legislature is presumed to intend that both statutes be read together (read in pari material, a subject discussed below).²⁹

BORROWED STATUTE DOCTRINE

The Borrowed Statute Doctrine is similar to the presumption of legislative knowledge of the law, but applied to the authority of other jurisdictions. When the legislature adopts uniform or model codes or borrows a statute from another state, the courts assume the legislature intended to adopt judicial decisions of the courts of the other states construing the statute prior to adoption, the comments accompanying a uniform code when adopted, and other such indicia of intent.³⁰ Caveat: Even though the legislature has borrowed a statutory scheme, the language at issue must be substantially identical to that in the borrowed statute. Keeney v. Hereford Concrete Products, Inc.³¹ concerned the defendant's retaliation against the plaintiff because the plaintiff had filed a charge against the defendant with the Missouri Commission on Human Rights. The Missouri anti-retaliation statute protects all persons from such retaliation. Title VII only protects employees. The trial court found that, because the Missouri Human Rights Act was borrowed from Title VII, the Missouri legislature also borrowed Title VII's limitation of the protection to employees. The Supreme Court of Missouri reversed.

TITLES

The court can look to a title of a statute for legislative intent.^32. Because Missouri Constitution "Article III, section 23 provides [that] 'no bill shall contain more than one subject which shall be clearly expressed in its title,'" assumedly the titles would be persuasive of legislative intent. Few statutory construction cases even mention titles, however.

HEADINGS

Because they are mere arbitrary designations inserted for convenience of reference, courts do not consider "the headings of chapters, articles or sections" in construing statutes.³³

BROAD CONSTRUCTION OF REMEDIAL STATUTES

The courts construe remedial statutes liberally to effect their beneficial purpose.³⁴ A liberal construction ordinarily makes the statute apply to more things or in more situations than would a strict one. A liberal construction "meet[s] the cases which are clearly within the spirit or reason of the law, or within the evil which it was designed to remedy, provided such interpretation is not inconsistent with the language used . . . resolving all reasonable doubts in favor of applicability of the statute to the particular case."³⁵

NARROW CONSTRUCTION OF PENAL STATUTES

Penal statutes are narrowly construed.³⁶ If there is fair doubt as to whether the act charged and proved is embraced within the prohibition, that doubt will be resolved in favor of the accused.³⁷ The Doctrine of Lenity, a subcategory of this canon, provides that "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity."³⁸ It "gives a criminal defendant the benefit of a lesser penalty where there is an ambiguity in the statute allowing for more than one interpretation."³⁹

Penal statutes can be civil in nature, such as a statute requiring forfeiture of interest for violation of the second mortgage law.⁴⁰

RETROSPECTIVE APPLICABILITY

"Article I, § 13 of the Missouri Constitution specifically prohibits the enactment of any law retrospective in its operation" unless the law is procedural and does not affect any substantive rights.⁴¹ Even procedural statutes are only prospective unless the legislature indicates otherwise. Statutes imposing penalties and forfeitures are never given retrospective application, because such application would render the statute unconstitutional.⁴²

A statute cannot be construed to effect rights vested at the time of enactment of the statute.⁴³ State ex rel. St. Louis-San Francisco Ry. Co. v. Buder,⁴⁴ addressing the "underlying repugnance to the retrospective application of laws," states:

[A]n act or transaction, to which certain legal effects were ascribed at the time they transpired, should not, without cogent reasons, thereafter be subject to a different set of effects which alter the rights and liabilities of the parties thereto.

On a basic level, substantive law concerns rights and duties that create causes of action; procedural law describes the machinery with which an action is carried forward.⁴⁵

MANDATORY/ DIRECTORY

Whether to construe acts described by a statute as mandatory (it shall be done) or directory (it should be done) depends upon whether the actor is a private citizen or a public officer.

As to private citizens, when a statute describes consequences that will follow a failure to comply with its terms, it is presumptively mandatory and must be obeyed. If it merely requires that certain things be done, but does not prescribe consequences for a failure to act, the statute is presumptively directory.⁴⁶

As to public officers, unless the acts to be performed go the heart of the purpose of the legislation⁴⁷ or the language specifies otherwise, the conduct called for by the statute is presumptively directory, especially if it involves performance of an act within a specified time or if the conduct called for is merely procedural for uniformity and convenience.⁴⁸

A statute presumptively mandates a public officer's conduct if the nature of the act to be performed goes to the public welfare, if the failure to act might impair rights or cause injury to the public or private individuals, or if the phraseology of the statute indicates that the officer is limited in his powers by the acts called for by the statute.⁴⁹ For example, Garzee v. Sauro⁵⁰ concerned foreclosure proceedings in a tax sale. The issue was whether, as an element of its case, the taxing authority had to prove that it had filed an affidavit with the court attesting to notice of the proceeding to the property owner. The Court held that the filing of the affidavit was mandatory because of due process concerns. On the other hand, the Court stated that the provisions giving directions as to the manner in which taxing officers are supposed to give notice of assessments or delinquent tax lists are directory because property owners are held to the duty of ascertaining what taxes are due on their property. The distinction can be of great significance for litigants. The mandatory/directory distinction often determines the elements a plaintiff must prove to avoid dismissal. Thus, under this holding, absent proof of the filing of the affidavit, the taxing authority's case will be dismissed. In a suit to collect taxes, proof of notice of the delinquency is not an essential element of the taxing authority's case.

State v. Hoover⁵¹ applied these principles to the statutory procedures for release from confinement in a mental institution. Under the statute, if a confined person applied for release, the officer had to object in writing within 10 days or release the confinee. If the officer so objected, the court had to hold a hearing within 60 days. In that case the officer properly objected within the 10-day period, but no hearing was held within 60 days.

The court held that the written objection within 10 days was mandatory because the procedure went to the heart of the legislation and the statute provided consequences for the failure to act. The court found the 60-day hearing period directory because it served the purposes of uniformity and convenience and did not go to the heart of the legislation.

TAX STATUTES

The courts construe statutes imposing taxes in favor of the taxpayer,⁵² and those exempting taxpayers from taxation against the taxpayer.⁵³

IV. In Pari Materia and Rules For Resolving Conflicts Between Statutes

A. In Pari Materia: Upon the same subject matter or subject.

The in pari materia canon requires that statutory language be construed in the context of the whole act and that all statutes concerning the same subject matter be read together and, if possible, harmonized to avoid repeal by implication.⁵⁴ The term in pari materia signals a transition from a focus on the specific language at issue to an analysis of that language in the larger context of other statutes or language. The four usual types of in pari materia analyses are:

(1) That the plain meaning of the language at issue is strengthened by an overall reading of the statutory scheme;⁵⁵

(2) That the apparent plain meaning of the language at issue is inconsistent with an overall reading of the statute or statutory scheme, an example being State v. Rousseau ⁵⁶ discussed above;

(3) Most frequently, that the court is going to analyze the language at issue from a purposive approach; or

(4) That there are two statutes concerning the same subject that appear mutually repugnant. If two statutes appear repugnant, the court must determine whether one statute implies the repeal of the other. Because repeal by implication is not favored, the courts have fashioned various rules to reconcile statutes and avoid repeal by implication.⁵⁷ These rules are the subject of the next section.

B. Rules For Resolving Conflicts Between Statutes

1. Constitutional Provisions Supersede State Statutes

Although constitutional provisions supersede state statutes, statutes are presumptively constitutional. A court "will not invalidate a statute [as unconstitutional] 'unless it clearly and undoubtedly contravenes the constitution and plainly and palpably affronts fundamental law embodied in the constitution.'"⁵⁸

2. State Laws Supersede County And Local Laws

The analysis of whether a state law supersedes a county or local law is similar to the federal preemption analysis. The courts do not favor repeal of a special or local statute by implication through the enactment of a general statute.⁵⁹ The courts do find implied repeal if the legislature intended to preempt other laws with one law to govern in all cases.⁶⁰ Often the local law will be more specific than the state law and will be subject to the rule that specific laws control over general laws (discussed below).

3. Supreme Court Rule v. State Law

"Article V, § 5 of the Missouri Constitution authorizes [the] supreme court to establish rules of practice and procedure" for courts and judicial tribunals.⁶¹ Supreme Court "rule[s] may not alter substantive rights, but where a statute is inconsistent with a supreme court [procedural] rule and the rule has not been annulled or amended by a later [legislative] enactment . . . the rule supersedes the statute." If a legislative act specifically amends or repeals a Supreme Court rule, the legislative enactment controls even if it concerns procedure in the courts.⁶²

4. Specific v. General

If two statutes deal with the same subject —one in general terms, the other in a more detailed way — the general statute yields to the more specific statute. In International Business Machines v. State Tax Comm'n,⁶³ the issue was the choice of limitations period for tax refunds: the one-year claim period for sales tax refunds or the two years for refunds of taxes paid into general revenue. Because the tax paid by IBM arose out of sales, and because that statute specifically applied to the case, the court applied the one-year statute.

Where the special statute is later, it will be regarded as an exception to or qualification of the prior general one. Where the general act is later, the special statute will be construed as remaining an exception to its terms, unless it is repealed in express words or by necessary implication.⁶⁴ Again, this rule will not apply if the legislature intends to preempt all specific or local laws with one single authoritative rule to govern in all cases.⁶⁵

5. Last Statute

If two statutes are wholly repugnant and cannot be reconciled, the later act will be held to have repealed by implication the earlier one.⁶⁶

V. Suggestions For Briefing Statutory Construction Issues

1. Provide the court with an appendix containing the materials in support of your interpretation. Include in the appendix prior statutes that shed light on the meaning, judicial decisions interpreting the language, the statute before and as amended after such a decision, traditional legislative history (e.g. committee reports), etc. Effective January 1, 2003, Rule 84.04(h) of the Missouri Rules of Civil Procedure requires most parties to file an appendix with the brief. Rule 84.04(h)(2) specifies that all statutes, ordinances, rules of court and agency rules must be included in the appendix if a party claims them to be controlling.⁶⁷ If the appeal turns on statutory construction, an appendix provides an excellent opportunity to tie the proposed interpretation into the statute's legislative history.

2. In most appeals, the issues arose from the conduct of the parties as evidenced in the transcript. In many appeals involving statutory construction, the conduct of the parties merely exposed the ambiguity to be decided. In an appeal in which the sole or primary issue is statutory construction, consider including in the statement of facts all indicia of legislative intent, even though statutory or decisional. If a statute was enacted, reenacted or amended after judicial decisions had construed the language, those prior constructions, enactments, reenactments and amendments are facts. For example, in the Leiser decision described above, the definition of "tract of land" in an opinion issued prior to the enactment of the statute at issue is a fact. The rule that the legislature intended to incorporate that opinion into the statute can be a highly persuasive argument. As suggested above, include in the appendix the authority referred to and be sure to cite the court to the appropriate pages in the appendix.

3. Argue your interpretation under as many of the cardinal rules as are available. Do not assume that the meaning that is so obvious to you will also be obvious to the court. Even if the meaning is plain, show how your position advances the overall purpose of the statute and avoids absurd results.

4. If you have confidence in your interpretation, do not abandon it because a court has issued an unfavorable interpretation. Because of the textualist/purposive division in courts, the court you are arguing before might apply a different approach.

5. Do not be overconfident just because every decision to date has supported your interpretation. Times and economics change. So do the meanings of statutes.⁶⁸

Footnotes

¹ Craig Sullivan is a 1979 graduate of St. Louis University Law School and a 1974 graduate of Williams College, Williamstown, Massachusetts. A sole practitioner in St. Louis, he concentrates his practice exclusively on appellate work.

² Chapter 1, RSMo, contains sets of rules concerning statutory construction of specific language issues. For example, §1.010 describes the effect of the enactment of a statute on the common law. Section 1.040 describes how to compute time. Section 1.090, RSMo 2000, provides that "[w]ords and phrases shall be taken in their plain or ordinary and usual sense, but technical words and phrases having a peculiar and appropriate meaning in law shall be understood according to their technical import." This article will not discuss the provisions of Chapter 1. The lawyer construing statutes should consult that chapter to see if any of the statutes are applicable to the language at issue. If a statute in Chapter 1 concerns judicial procedure and conflicts with a Supreme Court Rule, Article V § 5 of the Missouri Constitution determines which controls.

³ State v. Rowe, 63 S.W.3d 647 (Mo. banc 2002); Kearney Special Road Dist. v. County of Clay, 863 S.W.2d 841, 842 (Mo. banc 1993).

⁴ Kearney, at 842.

⁵ Abrams v. Ohio Pacific Express, 819 S.W.2d 338, 340 (Mo. banc 1991).

⁶ 34 S.W.3d 254 (Mo. App. W.D. 2000).

⁷ Riordan v. Clark, 67 S.W.3d 610, 613 (Mo. App. W.D. 2001).

⁸ 80 S.W.3d 461 (Mo. banc 2002).

⁹ Id., at 465, quoting State ex rel. Rhodes v. Crouch, 621 S.W.2d 47, 49 (Mo. banc 1981).

¹⁰ Learned Hand, The Spirit of Liberty 109 (3d ed. 1960).

¹¹ Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes are to be Construed, 3 Vand. L. Rev. 395, 400 (1950).

¹² Dairyland Ins. Co. v. Hogan, 605 S.W.2d 798, 800 (Mo. banc 1980).

¹³ 59 S.W.3d 597 (Mo. App. E.D. 2001).

¹⁴ 605 S.W.2d 798 (Mo. banc 1980).

¹⁵ Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes are to be Construed, 3 Vand. L. Rev. 395, 400 (1950).

¹⁶ Vocational Services, Inc. v. Developmental Disabilities Resource Bd., 5 S.W.3d 625, 631 (Mo. App. W.D. 1999); Alumax Foils, Inc. v. City of St. Louis, 959 S.W.2d 836, 838 (Mo. App. E.D. 1997).

¹⁷ 758 S.W.2d 442, 444 (Mo. banc 1988).

¹⁸ 935 S.W.2d 712 (Mo. App. E.D. 1996).

¹⁹ 947 S.W.2d 67 (Mo. App. S.D. 1997).

²⁰ 73 S.W.3d 625 (Mo. banc 2002).

²¹ Schudy v. Cooper, 824 S.W.2d 899, 901 (Mo. banc 1992).

²² Greenbriar Hills Country Club v. Director of Revenue, 935 S.W.2d 36 (Mo. banc 1996).

²³ Yellow Freight Systems v. Mayor's Comm'n, 791 S.W.2d 382 (Mo. banc 1990).

²⁴ Rundquist v. Director of Revenue, 62 S.W.3d 643 (Mo. App. E.D. 2001).

²⁵ 849 S.W.2d 29 (Mo. banc 1993).

²⁶ 639 S.W.2d 833 (Mo. 1982).

²⁷ 5 S.W.3d 625 (Mo. App. W.D. 1999).

²⁸ Leiser v. City of Wildwood, 59 S.W.3d 597 (Mo. App. E.D. 2001).

²⁹ Citizens Elec. Corp. v. Dept. of Revenue, 766 S.W.2d 450, 452 (Mo. banc 1989).

³⁰ In re the Matter of Nocita, 914 S.W.2d 358, 359 (Mo. banc 1996); State v. Anderson, 515 S.W.2d 534 (Mo. banc 1974); Division of Labor Standards v. Walton Constr., 984 S.W.2d 152, 155 (Mo. App. W.D. 1998), which concerned the wholesale borrowing of a New York statutory scheme concerning "moneyed corporation[s]." The court looked to New York decisions to define the term.

³¹ 911 S.W.2d 622 (Mo. banc 1995).

³² C.C. Dillon Co. v. City of Eureka 12 S.W.3d 322 (Mo. banc 2000).

³³ Reed v. Brown, 706 S.W.2d 866 (Mo. banc 1986).

³⁴ Martinez v. State, 24 S.W.3d 10, 19 (Mo. App. E.D. 2000).

³⁵ State ex rel. LeFevre v. Stubbs, 642 S.W.2d 103, 107 (Mo. banc 1982), quoting State ex rel. Brown v. Board of Education, 242 S.W. 85, 87 (Mo. banc 1922).

³⁶ BCI Corp. v. Charlebois Constr. Co., 673 S.W.2d 774, 780 (Mo. banc 1984).

³⁷ State v. Treadway, 558 S.W.2d 646, 652-653 (Mo. banc 1977); Busic v. United States, 446 U.S. 398 (1980).

³⁸ Busic at 406.

³⁹ State v. Rowe, 63 S.W.3d 647 (Mo. banc 2002).

⁴⁰ U.S. Life Title Ins. Co. v. Brents, 676 S.W.2d 839 (Mo. App. W.D. 1984).

⁴¹ Ernie Patti Oldsmobile, Inc. v. Boykins, 803 S.W.2d 106 (Mo. App. E.D. 1990), Mo. Const., art. I, § 13 states: "That no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges or immunities, can be enacted."

⁴² U.S. Life Title Ins. Co. v. Brents, 676 S.W.2d 839 (Mo. App. W.D. 1984).

⁴³ Ernie Patti Oldsmobile, Inc. v. Boykins, 803 S.W.2d 106 (Mo. App. E.D. 1990).

⁴⁴ 515 S.W.2d 409, 411 (Mo. banc 1974).

⁴⁵ Roth v. Roth, 571 S.W.2d 659, 672 (Mo. App. E.D. 1978).

⁴⁶ Garzee v. Sauro, 639 S.W.2d 830 (Mo. 1982).

⁴⁷ St. Louis County v. State Tax Commission, 529 S.W.2d 384 (Mo. 1975); State v. Felker, 336 S.W.2d 419 (Mo. App. S.D. 1960).

⁴⁸ School Dist. of Mexico v. Maple Grove Sch., 359 S.W.2d 743 (Mo. 1962).

⁴⁹ Stine v. Kansas City, 458 S.W.2d 601 (Mo. App. W.D. 1970).

⁵⁰ 639 S.W.2d 830 (Mo. 1982).

⁵¹ 719 S.W.2d 812 (Mo. App. W.D. 1986).

⁵² United Air Lines, Inc. v. State Tax Commission, 377 S.W.2d 444, 448 (Mo. banc 1964).

⁵³ State ex rel. Transp. Mfg. & Equip. Co. v. Bates, 224 S.W.2d 996, 1000 (Mo. banc 1949). Caveat: Although the Bates opinion has been repeatedly cited for this proposition, the proposition is dicta at best.

⁵⁴ Martinez v. State, 24 S.W.3d 10, 19 (Mo. App. E.D. 2000).

⁵⁵ For example, see Jantz v. Brewer, 30 S.W.3d 915 (Mo. App. S.D. 2000).

⁵⁶ State v. Rousseau, 34 S.W.3d 254 (Mo. App. W.D. 2000).

⁵⁷ St. Charles County v. Director of Revenue, 961 S.W.2d 44 (Mo. banc 1998); Edwards v. St. Louis County, 429 S.W.2d 718 (Mo. banc 1968).

⁵⁸ Lewis v. Gibbons, 80 S.W.3d 461 (Mo. banc 2002); In re: Marriage of Kohring, 999 S.W.2d 228, 231 (Mo. banc 1999).

⁵⁹ International Bus. Machines Corp. v. State Tax Comm'n, 362 S.W.2d 635, 640 (Mo. 1962).

⁶⁰ Reed v. Brown, 706 S.W.2d 866 (Mo. banc 1986); Edwards v. St. Louis County, 429 S.W.2d 718 (Mo. banc 1968).

⁶¹ State ex rel. K. D. v. Saitz, 718 S.W.2d 237, 239 (Mo. App. E.D. 1986). Mo. Const., art V, § 5 states:

Section 5 . . . The supreme court may establish rules relating to practice, procedure and pleading for all courts and administrative tribunals, which shall have the force and effect of law. The rules shall not change substantive rights, or the law relating to evidence, the oral examination of witnesses, juries, the right of trial by jury, or the right of appeal. The court shall publish the rules and fix the day on which they take effect, but no rule shall take effect before six months after its publication. Any rule may be annulled or amended in whole or in part by a law limited to the purpose.

⁶² 718 S.W.2d at 239.

⁶³ 362 S.W.2d 635 (Mo. 1962).

⁶⁴ State ex rel. Eggers v. Enright, 609 S.W.2d 381 (Mo. banc 1980).

⁶⁵ Edwards v. St. Louis County, 429 S.W.2d 718 (Mo. banc 1968)

⁶⁶ Edwards, at 721; St. Charles County v. Director of Revenue, 961 S.W.2d 44 (Mo. banc 1998).

⁶⁷ For example, J.B. Vending Co., Inc. v. Director of Revenue, 54 S.W.3d 183 (Mo. banc 2001); Richard A. Posner, Economics, Politics, and the Reading of Statutes and the Constitution, 49 U. Chi. L. Rev. 263 (1982).

⁶⁸ Supreme Court Rule 84.04(h), amended effective January 1, 2003, states:

(h) Appendix. A party's brief shall contain or be accompanied by an appendix containing the following materials, unless the material has been included in a previously filed appendix:

(1) The judgment, order, or decision in question, including the relevant findings of fact and conclusions of law filed in a judge-tried case or by an administrative agency;

(2) The complete text of all statutes, ordinances, rules of court, or agency rules claimed to be controlling as to a point on appeal; and

(3) The complete text of any instruction to which a point relied on relates.

An appendix also may set forth matters pertinent to the issues discussed in the brief such as copies of exhibits, excerpts from the written record, and copies of new cases or other pertinent authorities.

The appendix shall have a separate table of contents. If the appendix contains fewer than 30 pages, it shall be bound into the back of the party's brief. If the appendix is 30 pages or more, it shall be separately bound.

The pages in the appendix shall be numbered consecutively beginning with page A1. The pages in the appendix shall not be counted as a part of the brief. An appendix shall not be subject to rule 84.05(g) relating to disks.

The inclusion of any matter in an appendix does not satisfy any requirement to set out such matter in a particular section of the brief, except that instructions set out in the appendix need not be included in the brief.

JOURNAL OF THE MISSOURI BAR
Volume 59 - No. 3 - May-June 2003