*1 jurors any a conclusion that were jury, mission of the case to the the state Emery way that a misled. had offered evidence was prior persistent and offender. Had Em- Conclusion issue, ery’s timely counsel raised the the Emery’s conviction is vacated. DWI state could have realized its error and second-degree His conviction for assault is Emery’s prior per- offered evidence of and vacated, and the case is remanded for re- which, sistent if proved, offender status remand, judge trial is sentencing. On subjected Emery would have to a maxi- impose second-degree to sentence for as- years mum sentence of 20 than rather sault, jury without recommendation and Emery seven. chose to sit on his statuto- from the sentence enhancement that free ry right. He cannot now be deemed enti- Emery proved if were would have resulted jury-recommended tled to a sentence. He a prior persistent to be and offender. right. has that waived Jury Improperly theWas Informed that All concur.

Emery aWas Prior Offender?

Emery argues that because he was

charged felony with and because DWI charged prior

the information him as a offender,

persistent jurors were misled believing prior

into he was a offender. misdirection, asserts, This he affected ex rel. STATE ST. JOHN’S MERCY However, their deliberations and findings. CARE, Unity HEALTH Health f/k/a Emery authority cites no in support of his System, al., Relators, et position. He also cites no facts to show jury was prior aware he had offenses. NEILL, Margaret The Honorable M. City Division Circuit Court of the correctly

The state asserts that this Louis, Respondent. of St. Court cannot speculate assume or that the jury prior knew of simply offenses because No. SC 84751. Emery charged felony was with a DWI. Missouri, Supreme Court of Further, jury there is no evidence that the En Banc. saw the information alleging Emery’s prior Prior penalty offenses. offenses are en- Jan. hancing by are to be determined 558.021.1(B). judge. Section Great keep prior care is taken to convictions

away jury. pres- from the the state When prior

ents evidence that a defendant is a offender, persistent hearing on pres-

that issue is held out of the jury’s Emery provides

ence. Section 558.021.2. process

no evidence that this was in some tainted,

way in- causing jury glean to

formation his prior about convictions. authority support

There no or factual *2 (4) ordered); third-party

been defen- (5) dants; intervenors.

Each of foregoing classes is limit- change any ed to one of venue and such change granted any one or more mem- *3 class, including changes grant- bers of a Bean, Callahan, Kenneth Joseph W. F. 51.02, 51.04, ed under Rules 51.03 or Louis, St. for Relators. right exhausts the of all of members the Zevan, Louis, David M. Respon- St. for venue, change class to a of with this dent. exception: in condemnation cases involv- defendants, ing multiple sep- as to which PER CURIAM. held, arate trials are to be each such Mercy St. John’s Health Care is a defen- separate damages trial to determine dant in a suit pending in the circuit court shall separate be treated as a case for city. of St. Louis parties The do not dis- purposes of change of venue. pute that Mercy St. John’s non-profit is a Respondent reads Rules 51.045 and corporation with its principal place of busi- 51.04(f) together to limit each class to a ness and registered agent in St. Louis single ruling on a motion for transfer. County. facts, Under these proper- venue Since of one the defendants failed timely to ly is in St. Louis County. State ex rel. for change file of venue under Rule SSM Health Care St. Louis v. 78 51.045, respondent argues all members of (Mo. 140, 2002). S.W.3d banc A perempto- the class precluded are now from seeking a ry prohibition writ of requiring issued change. transfer of this county case to a proper of jurisdiction. 176410, See section RSMo argument rule, This misreads the which clearly limits its “any restriction to such change granted” overruling to the of

Respondent —not seeks to avoid the result a motion or waiver of the issue. No required by SSM by Health Care claiming change granted has been in underlying the (1) that: any claim improper of venue was action, and Rule 51.04 is applicable. not waived because it was not timely raised as provided (2) by 51.045, Rule Respondent next asserts certain defects 355.176.4, 1994, RSMo properly was not in the enactment of section 355.176.4. by enacted legislature. Both claims Chapter 355 resulted from passage of rejected. are Bill by House No. 82 the 67th General Assembly. See 195S Mo. Laws 322. That Respondent initially contends act was known as the “General Not for change the motion to venue was not filed Profit Corporation Act.” at Id. 324. The timely. Essentially, respondent notes that revisor of chapter statutes has named one or more of the defendants the un the “No1>-for-ProfitCorporation Law.” derlying action did not file an application for transfer within required by the time Respondent contends that 51.04(f) Rule provides: 51.045. Rule enacting bill this section violated article

(f) Application III, for change of venue section 23 of the state constitution may by be made one or parties more in because the bill’s title not clear was (1) any of following plain- classes: subject. bill contained more than one (2) tiffs; (3) defendants; third-party procedural The use of these limitations to (where plaintiffs a separate trial has attack the constitutionality of statutes is 106 presumption

not favored. A statute has a therewith or are incidents or means to constitutionality. Brewery accomplish purpose. of Stroh Co. v. its The determina- (Mo. 1997). State, banc tion of S.W.2d whether a bill violates article III, single subject require- Procedural limitations are construed lib section 23 erally, constitutionality concerning and the of a statute ment is made the bill as it is n willbe upheld against finally such an attack un passed. look first to the title We clearly undoubtedly subject. less the act vio of the bill to determine its lates the constitutional limitation. Ham proper bring The venue which to an County, merschmidt v. Boone action a not-for-profit corporation 1994). 98, 102 The burden of fairly subject “general relates to the of establishing unconstitutionality a statute’s profit corporations” and has a natural *4 upon party questioning rests it. State the. least, connection therewith. At the the bill (Mo. 191, Hampton, v. 653 S.W.2d 194 “clearly undoubtedly” not violate does and 1983). banc the constitution. SSM, proper not St. Under venue is title, On the issue of the bill’s sec city. peremptory prohibi- Louis A writ of originally tion contained in 355.176.4 was of the tion is issued to the Circuit Court House Bill No. 1095 of the 87th General further action City of Louis to take no St. 854, Assembly. Mo. Laws 869. The underlying in the case other than transfer- virtually repeal title to the bill notes the of ring county proper to a of venue. case 355, chapter all sections of states that the 476.410,RSMo 2000. Section bill “general profit corpo relates to not for rations, corpo and reinstatement of other BENTON, LIMBAUGH, C.J., WOLFF, rations,” only one section not and contains PRICE, LAURA STITH and DENYIR reading in chapter contained 355.1 Those TEITELMAN, J., JJ., concur; dissents Bill recog the title to House 1095 would J., filed; WHITE, separate opinion purports substantially nize that to the bill TEITELMAN, J. opinion concurs in of 355, chapter revise which relates to not- for-profit corporations. Under these cir TEITELMAN, Judge, B. RICHARD cumstances, general the title indicates the dissenting. act, contents of the is not so obscure and In ex rel. I State respectfully dissent. amorphous up as to tend to cover Neill, 78 Louis St. SSM Health Care act, of the is contents valid. Fust v. (Mo. 2002), Court this banc S.W.3d 140 Mo., Attorney 947 General State of provides held that section 355.176.4 1997). (Mo. 424, S.W.2d 429 banc nonprofit against exclusive venues for suit defen corporations, even if an individual subjects, multiple the issue of

On Neill I overrule dant is involved. would State, 954 Brewery Stroh Co. v. S.W.2d 355.176.4,like section and hold that section (citations (Mo. 1997) 323, omit 327 banc 508.040, involves apply if the case does ted), sets out the relevant criteria: individual defendants. a The test to determine if bill contains 508.040, in a suit all venue subject more than one is whether Under section commenced fairly corporation to the a “shall be provisions against of the bill relate accrued cause of action subject, have a natural connection either where the same marketing raising ex- chapter not contained in the costs of fund 1. The section 407.469, 1986, is RSMo which 355 penses. requires organizations charitable to disclose

107 any county ... or in corpora- against where such a corporation involves an individual usually or kéep defendant, tions have an office or apply section 355.176.4does not agent for the transaction of their usual and if a a against nonprofit corporation suit customary business.” The word “shall” involves an individual defendant. Consis- mandates venue in suits cor- against tency no other To permits interpretation. porations possible is limited to two loca- Neill, otherwise, ignore hold as in to However, tions. Missouri courts have long plain language of the statutes make a held that section 508.040 provide does not policy beyond choice that is purview of the exclusive list of possible venues for this Court. against suits corporations. The statute I would overrule State ex rel. SSM applies only if all corpora- defendants are Health Care St. Louis v. 78 S.W.3d Goodman, tions. State ex rel. Baker v. 2002). (banc 1954); Mo. 274 S.W.2d 293 Bros., Inc., Futrell v. Luhr (Mo.App.1996). If 352[2] an individu- joined

al defendant is in a suit

corporation, venue is determined under the

general statute, venue section 508.010.

State ex rel. Dick Imports, Proctor Inc. v.

Gaertner,

1984). Similarly, section pro- 355.176.4 SIEGFRIED, Russell Loren Rus n/k/a vides that suit a nonprofit corpora- DeLotell, A.M.D.R., by sell L. her tion “shall be commenced in one of’ Friend, Siegfried, Next Russell Loren three locations. In this Court fo- DeLotell, Russell L. Plain n/k/a on “only” cused the word to hold that the tiffs/Respondents, expressly statute provides the exclusive list of venues for suits involving nonprof- REMAKLUS, M. Linda corporation.

it The Court’s focus on the Defendant/Appellant. “only” word was misplaced. Analytically, section 508.040 and section ED No. 78949. 355.176.4 are identical. Both statutes use Appeals, Missouri Court of the word “shall” to mandate that venue is District, Eastern specified limited to a set of locations. The Division One. sole difference is that section 508.040 lim- range its the of possible through venues an Nov. proposition, whereas section “either/or” 355.176.4 limits venue through use of the “only.” different,

word The word choice is

but the effect is the same: the word

“shall” expressly limits venue to specified

locations. Consequently, nothing there is

in plain language of section 355.176.4

or section 508.040 that requires, or even

permits, the statutes to be construed

fundamentally inconsistent manner

adopted by this Court Neill. Just as apply 508.040 does not if a suit