State v. Shell

• Decision Date: 12 September 1978
• Docket Number: No. 39236,39236
• Citation: 571 S.W.2d 798
• Parties: STATE of Missouri, Plaintiff-Appellant, v. Harvey D. SHELL, Defendant-Respondent. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 798

571 S.W.2d 798

STATE of Missouri, Plaintiff-Appellant, v. Harvey D. SHELL, Defendant-Respondent.

No. 39236.

Missouri Court of Appeals, St. Louis District, Division Two.

Sept. 12, 1978.

Lawrence E. Mooney and James E. Busch, Clayton, for plaintiff-appellant.

Alan G. Kimbrell, St. Louis, for defendant-respondent.

STEWART, Presiding Judge.

Harvey Shell, defendant, was charged by information with appearing before an agency for which he was formerly employed in violation of RSMo. § 105.480, a conflict of interest statute. A jury in the magistrate court found defendant guilty and fixed a fine of $50. Defendant appealed to the circuit court from the judgment entered upon the verdict. The circuit court sustained Shell's motion to dismiss the information against him on the ground that it was duplicitous. We reverse and remand.

RSMo. § 105.480, subsection 1, the conflict of interest statute, provides:

"No person who has served as an officer or employee of an agency shall within a period of two years after the termination of the service or employment appear before the agency or receive compensation for any services rendered on behalf of any person, firm, corporation or association in relation to any case, proceeding or application with respect to which the person was directly concerned and in which he personally participated during the period of his service or employment."

The information filed in magistrate court alleged that defendant, a former employee of the Missouri Air Conservation Commission,

"did willfully and unlawfully, in the County of St. Louis, Missouri, on or about November 19, 1975, within a period of two years after the termination of his employment, appear before the agency on behalf of the City of Columbia, Missouri . . . in relation to a case or proceeding with respect to which he was directly concerned and in which he personally participated during the period of his employment . . . ."

The State contends that the information is not duplicitous by reason of the use of the words "case or proceeding" because the words are virtually synonymous.

Duplicity is generally defined as the fault of charging two or more offenses in one count of an information or indictment. State v. Thomas, 360 S.W.2d 694 (Mo.1962). It has been said that where a statute sets forth different acts or offenses in the disjunctive the formal charge should be in the conjunctive. However, where the words joined by the disjunctive are synonymous or where the words while not precisely synonymous have common elements, a disjunctive statement is not in itself fatal to the information or indictment. State v. Virdure, 371 S.W.2d 196, 199 (Mo.1963); State v. Reask, 409 S.W.2d 76 (Mo.1966).

The focus of our consideration is the phrase "case or proceeding." To place the words in proper perspective we digress to discuss defendant's contention that the information does not charge a violation of the statute because an agency hearing is not a "case or proceeding."

Defendant, adopting the definitions used by the State, points out that "case" is defined as "a suit or action in law or equity;" a "proceeding" is a "legal action." The authority cited is Webster's New Collegiate Dictionary (1975). He cites Miller v. Farmers' Exchange Bank, 228 Mo.App. 367, 67 S.W.2d 528, 532 (1934) for a definition of "action" as " 'the form of a suit in a court of justice.' " Defendant reasons that under the above definitions an appearance before a state agency is not a "suit in a court" or a "judicial proceeding" therefore the information is fatally defective because there is no such thing as a "case or proceeding" before an agency.

Such an interpretation would give no meaning whatever to the words "case" and "proceeding" as used by the legislature. We may not take such a simplistic approach to the interpretation of a statute. While we must construe criminal statutes liberally in favor of the defendant and strictly against the State, the cardinal rule of construction is that "the intention of the lawmaker will prevail over the literal sense of the terms." State v. Schwartzmann Service, Inc., 225 Mo.App. 577, 40 S.W.2d 479, 480 (1931). "The rule of strict construction is not violated by according the language used by the legislature its full meaning in support of the policy and aim of the enactment. The rule does not compel a narrow or forced construction, out of harmony with the manifest purpose and intent of the statute or one which would exclude cases from it that are obviously within its provisions." State v. Ballard, 294 S.W.2d 666, 669 (Mo.App.1956). We must view the crucial words in the context of the statute and assume that the legislature did not use meaningless words. State ex rel. May Department Stores Co. v. Weinstein,395 S.W.2d 525, 527 (Mo.App.1965).

The title of the Act is Regulation of Conflicts of Interests and Lobbying. The purpose of § 105.480, the statute under consideration, is to prevent former employees of state agencies from representing conflicting interests. "Agency" is defined by § 105.450(1) as:

"any department, office, board, commission, bureau, institution or any other agency, except the legislative and judicial branches of the state or any political subdivision thereof including counties, cities, towns, villages, school, road, drainage, sewer, levee and other special purpose districts."

The provisions of § 105.480 as it concerns this case prohibit a former employee of the agency from appearing "before the agency . . . in relation to any case, proceeding or application . . . ." "Case" and "proceeding" obviously refer to matters pending before the agency for consideration or decision and not to matters pending before a court with respect to the agency. It is the relationship of the former employee to the agency that gives rise to the conflict sought to be avoided by this statute.

It has been said that the word case "in common parlance 'has a more extended meaning than the word suit, or action . . ..' " S. D. Warren Co. v. Fritz, 138 Me. 279, 25 A.2d 645, 648 (1942). "Case" has also been defined as "a matter for consideration or decision." Webster's Third New International Dictionary (1967). In addition to the definition given above before for "proceedings" it has also been defined as "a series of steps adopted for doing or accomplishing something."...