dissenting.
I respectfully dissent. The New York case of People v. Whitridge, 144 App.Div. 486, 129 N.Y.S. 295 (1911), was affirmed without opinion in 1912, 204 N.Y. 646, 97 N.E. 1112. The Missouri statute was adopted by the general assembly in March 1913. According to the briefs in this case the Missouri Public Service Commission has always utilized a system of “notational voting”. Notational voting is simply a method used to record the votes of the commission members after the matter has been fully heard, probably discussed between some or all of the commissioners, and a proposed opinion (report and order) has been prepared and circulated to all of the commissioners. The commissioner “notes” his vote while in his office rather than physically meeting with the other commissioners in order to vote or cast his vote in their presence. The principal opinion holds that the commissioners cannot utilize notational voting to adopt a decision. As I understand it, that is the limited scope of the court’s holding in this case.
Nevertheless, even though the opinion be narrow in scope, I dissent. Although I agree with the statement of the general rule of statutory construction set forth in the principal opinion and supported by Burnside v. Wand, 170 Mo. 531, 71 S.W. 337 (banc 1902), and State v. Anderson, 515 *704S.W.2d 534, 539 (Mo.banc 1974), I do not accept such a rule of construction as absolutely binding on this court. I have great difficulty believing that the members of the general assembly of Missouri in March 1913 were cognizant of the Whitridge case decided in New York in 1912. I say this partly because it appears to be accepted by all parties that the Missouri Public Service Commission used “notational voting” from the beginning. I think that sixty-odd years of such practice, without complaints, should be given more weight than the principal opinion affords. If this interpretation and practice were clearly contrary to the statute then, of course, it should be given no weight at all. But the statute does not clearly prohibit the adoption of decisions by this method and, therefore, I think the procedural practice of the commission should be given great weight in deciding this narrow issue.
In my opinion no prejudice whatever accrued to Philipp Transit Lines by reason of the commission members noting their votes rather than meeting together simply to cast their votes in each other’s presence. Each member was required to read the evidence if he did not attend the particular hearing, section 536.080, RSMo 1969, State ex rel. Jackson County v. Public Service Commission, 532 S.W.2d 20 (Mo.banc 1975), and there is no contention that any irregularity occurred in that regard. Although Philipp Transit argues that the commission’s procedure makes it possible to bypass two of the five commissioners by not circulating the draft order to them, the practicalities of the situation dictate that it could not be done without the bypassed commissioners knowing about it. This is so because the participation or nonparticipation and vote of each member is recorded and made public.
None of the cases cited by appellant Phi-lipp Transit deal with notational voting in a pure sense. They are premised on a fundamental defect common to each case which was that notice and opportunity to vote was actually and prejudicially denied to at least one member or commissioner in each case. Those cases are Alabama Public Service Commission v. Redwing Carriers, Inc., 281 Ala. 111, 199 So.2d 653 (1967), Webster v. Texas & Pacific Motor Transport Co., 140 Tex. 131, 166 S.W.2d 75 (1942), Carroll v. Alabama Public Service Commission, 281 Ala. 559, 206 So.2d 364 (1968), Houston & North Texas Motor Freight Lines, Inc. v. Johnson, 140 Tex. 166, 166 S.W.2d 78 (1942), Terre Haute Gas Corp. v. Johnson, 221 Ind. 499, 45 N.E.2d 484, 48 N.E.2d 455 (1942), and Paola & F. R. Ry. Co. v. Commissioners of Anderson County, 16 Kan. 302 (1876).
In the instant case each commissioner was notified of the proposed opinion and order and was afforded the opportunity of voting. Four voted and one was absent, but as to the one absent no one contends, nor was it shown, that it constituted any irregularity.
In Braniff Airways, Inc. v. C.A.B., 126 U.S.App.D.C. 399, 379 F.2d 453 (1967), the court upheld the “notation” procedures utilized by the Civil Aeronautics Board. The C.A.B. was working under similar statutory language as the Missouri Public Service Commission. The court in Braniff concluded that the required forum need not be physically present at any one time and that the board was allowed “to proceed with its members acting separately, in their various offices, rather than jointly in conference.” 379 F.2d at 460. The court reasoned that the workload involved made this procedure quite reasonable and even drew an analogy between that notational voting system and the procedure used by the court itself. T.S.C. Motor Freight Lines, Inc. v. United States, 186 F.Supp. 777 (S.D.Texas, 1960), aff’d per curiam sub nom. Herrin Transp. Co. v. United States, 366 U.S. 419, 81 S.Ct. 1356, 6 L.Ed.2d 387 (1961).
The Missouri Public Service Commission issued 7,545 orders during the fiscal year July 1, 1971, through June 30,1972, Annual Report of Missouri Public Service Commission 1971-72, p. 9; 7,027 orders in fiscal 1972-73, and 7,950 orders in fiscal 1973-74, Missouri Public Service Commission Annual Report 1973-74, p. 6.
*705In my opinion the procedure called "notational voting" is not prohibited by sec. 386.-130, RSMo 1969, and is fully justified by the workload of the commission. I would hold that sec. 386.130 does not require a formal meeting to cast votes and does not prohibit notational voting.
The other issue is whether a meeting is required by sees. 610.010-610.115 (Sunshine Law). The principal opinion did not need to reach that issue because of its determination that sec. 386.130 does not permit notational voting. In my opinion the Sunshine Law does not require a meeting for the purpose of voting to adopt a decision.
For the foregoing reasons I dissent.