Wengler v. Druggists Mutual Insurance Co.

DONNELLY, Judge,

concurring in result.

In my view, the following should be noted of record:

(1) That the substance of what is now § 287.240, RSMo Supp.1976, was adopted by the people of Missouri at the November 2, 1926, election by vote of 561,898 for and 251,822 against.

(2) That on April 22, 1980, the United States Supreme Court again applied the doctrine of subjectivism and decided that the people of Missouri “acted unwisely * * Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93 (1963).

(3) That this case is merely the latest of a mass of evidence from which a rational trier of fact could find beyond a reasonable doubt that a majority of the Court is determined to abrogate the covenant of federalism. See Baker v. State, 584 S.W.2d 65, 69-72 (Mo. banc 1979).

(4) That there is an alternative to the Lochnerian compelling state interest test. The Carolene Products Footnote articulates a model which would pay at least some deference to the concept of representative democracy. U.S. v. Carolene Products Co., 304 U.S. 144, 152-153 n.4, 58 S.Ct. 778, 783-784 n.4 82 L.Ed. 1234 (1938). It would limit the Court’s penchant for legislating to “those situations where representative government cannot be trusted * * * John Hart Ely, Democracy and Distrust (Cambridge: Harvard University Press, 1980). See also Gunther, “Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a New Equal Protection,” 86 Harv.L.Rev. 1 (1972); Railway Express Agency, Inc. v. New York, 336 U.S. 106, 112, 113, 115, 69 S.Ct. 463, 466, 467, 468, 93 L.Ed. 533 (1949) (Jackson, J., concurring).

*10I suppose an attempt should be made to persuade that government by elites is not what the Framers had in mind. See White, “Reflections on the role of the Supreme Court,” 63 Judicature 162 (October, 1979). But, what useful purpose would it serve? To borrow from Senator Daniel Patrick Moynihan of New York: “What do you do when the Supreme Court is wrong?” The Public Interest, Fall 1979, p. 3.

As does Mr. Justice Powell, I “profoundly respect the Court as an institution.” Powell, “What Really Goes on at the Supreme Court,” 66 American Bar Association Journal 721, 723 (June, 1980). I merely question whether any court which persists in exercising a legislative function can survive for long as an institution in our system of government when the only meaningful device the people have to express their disapproval of court-enacted legislation is to “simply not abide by the decision.” White, supra, at 173.

I concur only in the result.