author: CULLEN, Commissioner.

text:
    Cash BARGER, Petitioner, v. Don A. WARD, Judge, Respondent.
    Court of Appeals of Kentucky.
    Oct. 28, 1966.

      W. M. Melton, Hazard, for petitioner.
   CULLEN, Commissioner.

On July 23, 1966, a local option election was held in Barger Precinct No. 7 in Perry County, which precinct prior to the election was “wet”. The election commissioners certified the vote as being 76 for prohibition and 35 against — a “dry” victory. A contest suit was filed, during the course of which the trial court entered an order undertaking to postpone the effective date of prohibition until November 1, 1966. Final judgment in the contest suit was entered on October 12, and in that judgment the November 1 postponed effective date was reconfirmed. The contestant promptly moved the trial court that the judgment be modified so as to postpone the effective date of prohibition until the final determination of an appeal of the judgment to this court. The motion was overruled, whereupon the contestant instituted the instant proceeding in this Court in which he seeks an order of mandamus compelling the trial court to grant the requested postponement.

We would be justified in summarily dismissing the petition because the petitioner nowhere states that he has taken an appeal to this court or even is contemplating one, so as to present an actual controversy on the question of postponement pending appeal. However, the question is one of public concern and warrants attention, so we shall construe the petition as stating by necessary implication that an appeal has or will be taken.

The local option statute, in KRS 242.-190, provides that when a majority of the votes at a local option election are in favor of prohibition, it shall be in force and effect at the expiration of 60 days from the date of entry of the certificate of the county board of election commissioners in the order book of the county court. KRS 242.110 provides that the election commissioners, immediately after determining the results of the election, shall file their certificate with the county clerk, who shall present it to the county court at its next regular term, when the court shall enter it in the order book. It further provides that the entry of the certificate shall be prima facie evidence of the result of the election. (The petition in the instant proceeding does not say when the certificate was entered, or whether in fact it ever was entered, but we shall assume that it was entered at such a time as to cause the statutory 60-day period to expire prior to November 1, 1966.)

KRS 242.190 was enacted in its present form in 1936, after the repeal of national prohibition. The question of its application in the situation where a contest suit has been filed was first presented in Rodgers v. Webster, 266 Ky. 679, 99 S.W.2d 781. There the court, relying upon some pre-prohibition cases, held that the filing of a contest suit automatically suspended the taking effect of prohibition, so long as the suit was filed in good faith and prosecuted diligently. The court said that injunctive relief against enforcement was not necessary because until prohibition became effective there was nothing to enforce. A number of subsequent cases applied variations of the Rodgers ruling, culminating in Ligon v. Bailey, Ky., 256 S.W.2d 30, where this court, though in words approving the automatic suspension proposition, issued an order of mandamus compelling the trial court to enter a suspension order.

It appears to us that in the Rodgers case the court in placing reliance upon the pre-prohibition cases overlooked a significant change in the statutes. The pre-pro-“hibition statutes were similar to present KRS 242.190 in providing that prohibition should take effect 60 days after entry of the certificate of results in the county court order book. However, another section, Ky.Stat. 2S66, provided that when a contest was filed the certificate should ■not he entered. Obviously, the filing of a contest suspended the taking effect of prohibition because if the certificate was not entered the 60-day period did not begin to run. That this was the basis for the principle of automatic suspension stated in the pre-prohibition cases is made absolutely clear by the decision in Hall v. Smith-McKenney Co., 162 Ky. 159, 172 S.W. 125. Since there is nothing in the post-prohibition statutes comparable to Ky. Stat. 2566 it would seem that there was no basis at the time of the Rodgers decision, nor is there one now, for the automatic suspension principle. So we must consider what authority may exist for a court-ordered suspension.

It is considered to be a general rule that the courts have no inherent equity powers in election contest cases; 29 C.J.S. Elections § 248, p. 687; and that injunc-tive processes are not available to maintain the status quo pending a contest. 26 Am.Jur., Elections, sec. 317, p. 142. Kentucky has followed the rule as evidenced by the holding in Harrison v. Stroud, 129 Ky. 193, 110 S.W. 828, that the certified winner of a race for office cannot be enjoined from occupying the office pending a contest suit. The court there said, 110 S.W. @ 830:

“ * * * Courts of equity have not the inherent jurisdiction to try contests over elections to office. In the absence of statutory authority, they have no jurisdiction at all in the matter. The statute of this state has simply conferred upon the circuit court the jurisdiction to try certain election contests. But there is no intimation in the statute that they may go further, and, in addition to such trial, disturb the legal status of the claimants as fixed by the law pending the decision. As that power has not been given to the courts, it should not be exercised, but the incumbency of the office should be left where the law has placed it until * * * a final determination by judgment on the merits

And again, in Doss v. Howard, 180 Ky. 413, 202 S.W. 888, 889 @ 891, the court said:

“ * * * Where one has received a certificate of election to an office from the proper authorities, it constitutes prima facie evidence of his title to the office, and an injunction will not lie to restrain him from exercising the functions of the office pending a contest as to whether or not the holder of the certificate was really elected. Courts of equity are not invested with authority by the statutes providing for contested elections to proceed by writ of injunction for the determination of the right to the office, and they have no inherent authority to do so. * * * ”

Although the general rule frequently is stated as applying to “elections” it appears that its primary application is to elections for office as distinguished from elections on public questions, such as local option. It is to be noted that in the quotations above from the Harrison and Stroud cases the court speaks of “elections to office.” There is substantial authority for the proposition that courts do have inherent equity powers to protect property rights in connection with contests of elections on public questions. See 29 C.J.S. Elections § 248, pp. 687, 688. We think the proposition is sound and we hereby recognize and approve it.

It is essential that we make clear, however, that the equity powers of the courts have definite limits. Specifically, the courts have no power to postpone the effective date of prohibition. Their only power is, upon a proper foundation for an injunction having been laid by a particular litigant in an action against appropriate defendants, to stay temporarily the enforcement of the prohibition law against that litigant. The reasons why this is so are spelled out fully in Gering v. Brown Hotel Corporation, Ky., 396 S.W.2d 332. The legislature has said when prohibition shall take effect following a local option election, and the courts have no power to fix a different date. The courts can do no more than to hold off for a while the enforcement authorities—to delay the day of reckoning.

In the instant case the trial court undertook by order to postpone the effective date of prohibition until November 1. The petitioner here asks a mandatory order directing the trial court to postpone the effective date until after the ultimate disposition on appeal of the contest suit. From what we have said herein-before it will be plain that the courts have no power to postpone the effective date for any period. The only power the trial court had was, by appropriate procedure for injunctive relief and upon a showing of appropriate grounds, to issue an injunction staying enforcement. Had such relief been sought and had the court denied it, the rules of procedure relating to injunctions would have provided a means of review by this court. Mandamus would not be an available remedy in such a case and it certainly is not an available one in the situation presented in the instant case.

It might be argued that since the court is changing the rules in the middle of this game, procedural niceties should be disregarded and the instant proceeding should be treated as one for injunctive relief. There are at least two answers to this; one being that the persons appropriate to be enjoined from enforcing prohibition are not parties to the proceeding; and the other being that we are not at all sure that the petitioner here will want the limited kind of relief that is available to him under this opinion.

To the extent that they conflict with the views herein expressed we overrule Rodgers v. Webster, 266 Ky. 679, 99 S.W.2d 781; Goodwin v. Anderson, 269 Ky. 11, 106 S.W.2d 152; Garrison v. Kingins, 273 Ky. 304, 116 S.W.2d 635; Neff v. Moberly, 296 Ky. 319, 177 S.W.2d 7; Adams v. Wakefield, 301 Ky. 35, 190 S.W.2d 701; and Ligon v. Bailey, Ky., 256 S.W.2d 30.

The petition is denied.


source: Caselaw Access Project

author: STEWART, Judge.

license: Public Domain

text:
    Buster ROBERTS et al., Appellants, v. TENNESSEE-VIRGINIA CONSTRUCTION COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Oct. 28, 1966.

      Dan Jack Combs, Ronald W. May, Combs & May, Pikeville, for appellants.
    Jack T. Page, Stephens, Combs & Page, Pikeville, for appellee.
   STEWART, Judge.

This appeal questions the correctness of a judgment of the circuit court which set aside an order of the Workmen’s Compensation Board (herein referred to as “the board”). The board’s order overruled a motion, filed under KRS 342.125 by the employer, to reopen and review an “open end” agreement made by it with one of its employees.

The essential facts in this case are not in dispute. On June 6,1962, Buster Roberts, while working for appellee, Tennessee-Virginia Construction Company, fell approximately 30 feet, struck a protruding crosstie and sustained severe back and head injuries. Following the accident, the parties entered into an open end agreement under the terms of which Roberts was entitled to draw compensation benefits for total and permanent disability. This agreement was approved by the board on August 21, 1962, under the provisions of KRS 342.-265.

On September 13, 1963, appellee filed its motion, pursuant to KRS 342.125, to reopen and review the award. In support of this motion it tendered the medical reports of Dr. W. C. Hambley, of Pikeville, and Dr. W. C. Roland, of Ashland. These reports, which were taken by depositions, will be discussed in detail hereinafter. Roberts did not testify; in fact, he introduced no evidence to counter the testimony of the two doctors.

On August 3, 1964, the board entered an order overruling the motion asking for the reopening and review of the award. An appeal was taken to circuit court where the board’s order was set aside. It was held there, under the evidence appearing in the record, that Roberts had undergone a change since the open end agreement was consummated. The case was remanded to the board for a hearing.

Under its power to review orders of the Workmen’s Compensation Board, was the circuit court authorized under the facts presented to set aside the opinion of the board that Roberts was still totally and permanently disabled?

Dr. W. C. Hambley has been Roberts’ treating physician since his accident on June 6, 1962. In his fall Roberts received a severe laceration to his nose, causing a proliferation of nasal tissue which gave this organ a large and bulky appearance. This condition will be permanent. Roberts also suffered a compression fracture of the sixth dorsal vertebra. Local tenderness in the middorsal or interscapular area resulted. A back brace was prescribed to be worn. In December, 1963, Dr. Hambley believed Roberts had reached his maximum recovery and he authorized his return to work on December 30, 1963.

Considering the nature of Roberts’ employment at the time of his injury, Dr. Hambley was of the opinion that he had five percent disability due to the injury to his nose, and in addition had “not less than twenty percent disability” as a result of his compression fracture. However, this physician testified Roberts told him he was unable to perform labor of any kind because of persistent pain in his neck and back; and speaking of his pain factor, Dr. Ham-bley said: “Now, if his pain is bona fide, that being a subjective symptom, I can’t vouch for his pain. If his pain is bona fide, then he has more disability than that. The whole thing is being able to evaluate his pain.”

Dr. W. C. Roland, an orthopedic surgeon, examined Roberts at the request of Dr. Hambley. These examinations were made on September 24, 1962, on February 25, 1963, and on April 13, 1964. After his last visit to him, Dr. Roland made this disability evaluation of Roberts’ injuries:

“In the opinion of this examiner, Mr. Roberts is able to work, does not need a brace and is in no need of further medical supervision or treatment. In addition, I feel his permanent partial disability is as previously calculated; fifteen to twenty percent to the body as a whole on a permanent basis. However, I do not feel that this degree of disability will significantly impair his earning a living at his regular occupation.”

There is no evidence in the record before us — medical or lay — which challenges in any respect the opinions of Dr. Hambley and Dr. Roland. Indeed, the testimony of these two doctors conclusively establishes the fact that Roberts is no longer totally disabled. It should be borne in mind, also, that the board has no other testimony before it, for the reason that the award to Roberts was initially agreed to by the parties. It is true Roberts complained to Dr. Hambley of aching between his shoulder blades. Even so, Dr. Roland thought this trouble could be reduced, if not eliminated, by certain exercises and through the use of “minimal medication.” As a result of his last examination, he was of the opinion that Roberts was able to resume his usual occupation.

We find, as did the circuit court, that the order of the board under consideration “is clearly erroneous on the basis of the reliable, probative, and material evidence contained in the whole record.” See KRS 342.285(3) (d), as amended in 1964.

Wherefore, the judgment is affirmed.


author: WILLIAMS, Judge.

text:
    Robert DEWEESE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 21, 1966.

      Robert Deweese, pro se.
    Robert Matthews, Atty. Gen., Harold T. Hotopp, Asst. Atty. Gen., Frankfort, for appellee.
   WILLIAMS, Judge.

Appellant Robert Deweese filed a motion under RCr 11.42 to vacate a judgment of the Butler Circuit Court sentencing him to life imprisonment upon a plea of guilty to a charge of murder. A hearing was had at which appellant was present and counsel was appointed to represent him. The motion was overruled on September 10, 1965. No appeal was taken but a petition for mandamus against A. J. Bratcher, Judge of the Butler Circuit Court, was filed in this Court and dismissed by order on November 9, 1965.

This second motion under RCr 11.42 to vacate judgment was filed on June 14, 1966. A hearing was had on June 18, 1966, and the motion was overruled. This appeal is taken from the judgment overruling that motion.

The order of the Butler Circuit Court recites that the motion is repetitious and presents no issues or grounds not heard and adjudicated on the previous motion. We held in Tipton v. Commonwealth, Ky., 398 S.W.2d 493 (1966), that final disposition of a motion under RCr 11.42 shall conclude all issues that could reasonably have been presented in the same proceeding.

In a reply brief appellant now alleges he was precluded from appealing the judgment on the first motion because “the trial court refused to issue transcript of record to the Court of Appeals.” The record shows that appellant failed to perfect an appeal from the first judgment, and he cannot now avail himself of an argument that the record was not forwarded to this Court.

The judgment is affirmed.


author: HILL, Judge.

text:
    Edward Lee BENNETT, Appellant, v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY and Henderson-Union Rural Electric Cooperative Corporation, Appellees.
    Court of Appeals of Kentucky.
    Oct. 21, 1966.

      M. S. Mahurin, Henderson, for appellant.
    Guerry R. Thornton, Louisville, Thomas L. Withers, John L. Dorsey, Henderson, for appellees.
   HILL, Judge.

This is an action arising out of an accident that occurred on the farm of Cletus Lewis, Henderson, Kentucky. The Southern Bell Telephone and Telegraph Company and the Henderson-Union Rural Electric Cooperative Corporation maintain and operate lines crossing a field owned by Lewis.

Appellant Edward Lee Bennett contracted with Lewis to cut soybeans in said field. It appears that a wire belonging to Southern Bell, which was beneath the one belonging to Henderson-Union Rural Electric, had sagged crossing the field to such an extent that the elevator on Bennett’s combine came in contact with it a few inches below the top where it caught on a bolt causing the tractor and combine to stop. Bennett, apparently not knowing the trouble, had started to his truck parked outside the field to get some tools. Some distance from the combine, he looked back and noticed the wire in contact with his combine elevator. He returned to the machine and backed it a few feet but not far enough to relieve the wire. Then he climbed the elevator and with his hand removed the wire. In so doing, the wire acted as a bowstring jerking his arm thereby causing the injury about which he ha' made this claim.

This appeal is from a summary judgment for defendants. The only question involved before this court is the correctness of the summary judgment.

The only evidence in the record is the deposition of appellant Edward Lee Bennett taken by defendants, and the facts in the testimony are not disputed.

The appellant was self-employed, and there were no other persons present at the time of the accident.

Summary judgment procedure is designed to expedite the disposition of cases. It is the duty of the court to render a judgment forthwith if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law.

Proceeding under this rule may terminate the action; and if there exists a material factual issue which warrants a trial, the court is not authorized to render judgment. However, if the claims or defenses have no substance, or the controlling facts are not in dispute, or the only controversy relates to immaterial matters, the court may enter summary judgment. Clay, CR 56.03.

In the instant case, the plaintiff did a voluntary, premeditated act with certain knowledge of the situation and the danger involved therein. He proceeded to remove the wire in such a way that it suddenly jerked his hand after the fashion of a bowstring causing injuries to his shoulder. He created his own danger when he released the wire without adjusting his grip so that the wire would be released from his hand in event it sprung back suddenly. It was the plaintiff’s duty before releasing the wire to anticipate its action upon being released. It was his duty to analyze the situation to determine the effect of releasing the wire and to take such precautions as would avoid injury to himself.

One who voluntarily subjects himself to peril known to him or generally observable by persons of ordinary prudence in his situation cannot recover damages sustained thereby. Waddel’s Adm’r v. Brash-ear, 257 Ky. 390, 78 S.W.2d 31, 98 A.L.R. 553; Paducah Pole & Timber Co. v. Brockwell, 161 Ky. 424, 170 S.W. 970; Jackson County Rural Electric Cooperative Corp. v. Massey, Ky., 346 S.W.2d 484.

It is concluded that the plaintiff was guilty of contributory negligence as a matter of law and that the summary judgment was proper and is hereby affirmed.


author: PALMORE, Chief Justice.

text:
    Troy KIVETT, Petitioner, v. W. R. KNUCKLES, Judge, Bell Circuit Court, Pineville, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    July 1, 1966.
    Troy Kivett, pro se.
    No appearance for respondent.
   GRANTING MANDAMUS

PALMORE, Chief Justice.

Troy Kivett, a prisoner in the state penitentiary, alleges that he has in good faith filed in the Bell Circuit Court an RCr 11.42 motion to vacate the judgment pursuant to which he is held in custody, and that more than 30 days have elapsed without a response or ruling. His verified petition for a writ of mandamus states that he has served a copy on the respondent judge, as required by RCA 1.420. On May 11, 1966, the Clerk of this court mailed the respondent notice that the petition had been filed. More than 10 days (in fact, 44 days) have passed, and there is no response.

The petition is sustained, and the respondent is ordered and directed either to sustain or overrule Kivett’s RCr 11.42 motion or to grant him a hearing on it.


text:
    Jerry OSBORNE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 21, 1966.
    Jerry Osborne, pro se.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for ap-pellee.
   STEWART, Judge.

This is an appeal from an order of the Campbell Circuit Court entered on May 18, 1965, overruling without a hearing appellant’s motion under RCr 11.42 to vacate three judgments entered on April 20, 1964. The sole ground for the motion was that “the trial (court) illegally tried and sentenced movant while he was still a (mental) patient of Eastern State Hospital” and “therefore, the judgment of the trial court is null and void.”

The undisputed facts are that three successive indictments were returned by the grand jury of Campbell County on February 17, 1964, charging appellant respectively with: (1) Sodomy on a boy 11 years of age, (2) two counts of grand larceny, and (3) stealing from a public building. On February 21, 1964, counsel was appointed for appellant and pleas of not guilty were entered to all three charges. On March 6, 1964, a petition was filed requesting the commitment of appellant to a mental hospital. This was followed by an order directing his placement in Eastern State Hospital for a “period of medical examination, observation and treatment not to exceed 35 days” from the date of the order. The hospital was asked to certify within 30 days to the trial court its findings of appellant’s condition.

Appellant escaped almost immediately upon his commitment to the hospital. He was later reapprehended and returned to the custody of the Campbell Circuit Court. It is not shown that a formal discharge or medical report was ever issued by the hospital.

On April 20, 1965, appellant appeared in circuit court with his previously appointed counsel, withdrew his pleas of not guilty and entered pleas of guilty to the charges. He received concurrent sentences of three, three, and five years under the three respective indictments. A transcript of the proceedings on the guilty pleas was filed with us and it contains, among other things, this significant statement made by counsel for appellant:

“ * * * He understands the situation. I explained to him that he was not to plead guilty to any charge for the sake of cooperating with this court. He has no opportunity to go back to Eastern State, at least I know of no way he can do that. We went over and had several meetings with the Commonwealth’s Attorney, an^l I believe this man understands the nature of the charges against him, and he has indicated to me that he would like to enter a plea of guilty to the charges before the court.”

The Commonwealth’s Attorney advised the trial court he had no “objection to the changing of the pleas and recommended the concurrent sentences referred to above. On being questioned by the trial judge both appellant and his counsel said they knew of no reason why appellant should not be sentenced.

There is nothing in the record of this case which tends to show that appellant was lacking in mental capacity at the time of his guilty pleas and his sentencing under them. The statement of his counsel on that occasion negates any such belief. The sole contention set forth as the reason for sustaining his motion is that the circuit court, having committed him to Eastern State Hospital for a 35-day period of examination, observation and treatment, deprived itself of jurisdiction to pronounce judgment of sentence upon his guilty pleas when he appeared before it subsequent to his escape from the hospital.

The test of whether a person is mentally fit to defend himself in a criminal proceeding is “whether he has substantial capacity to comprehend the nature and consequences of the proceeding pending against him and to participate rationally in his defense.” See Commonwealth v. Strickland, Ky., 375 S.W.2d 701, 703. This court is willing to reverse a denial of a motion to vacate, when the issue is raised on appeal, if there are circumstances which indicate insanity at the time of trial. See Barnes v. Commonwealth, Ky., 397 S.W.2d 44.

Appellant presented no such issue at any time during his trial. We are unaware of any authority or basis for the proposition that the trial court lost jurisdiction over appellant upon his commitment to the hospital. He remained at all times subject to the orders of that court, and, on his return to it after his escape, he was legally in no different position than before the original order of commitment to the hospital was entered. The mere commitment is neither evidence of mental incapacity nor a sufficient reason for further investigation into the matter. See Hopper v. Commonwealth, Ky., 371 S.W.2d 646.

Wherefore, the judgment is affirmed.


author: WADDILL, Commissioner.

text:
    Robert SHARP, Jr., Petitioner, v. R. C. TARTAR, Judge, Pulaski Circuit Court, Somerset, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    Sept. 30, 1966.
    Robert Sharp, pro se.
    R. C. Tartar, Judge, Pulaski Circuit Court, Somerset, pro se.
   WADDILL, Commissioner.

Robert Sharp, Jr., a prisoner in the Kentucky State Penitentiary seeks an order from this Court compelling Honorable R. C. Tartar as Judge of the Pulaski Circuit Court to grant him a “speedy trial” on an indictment charging him with the crime of armed robbery now pending in the Pulaski Circuit Court. The response states that no bench warrant has been served on the petitioner nor has he entered his appearance. In the absence of a proper showing that the Pulaski Circuit Court has jurisdiction of the petitioner’s person we are refusing to issue the order on the ground that it is premature.

In the event that Sharp enters his appearance in the Pulaski Circuit Court, (as by a written request to the Circuit Judge) the Judge will then initiate proceedings for Sharp’s arraignment upon the pending indictment.

The request for the order of mandamus is denied.


author: PER CURIAM.

text:
    In re George H. WEAKS.
    Court of Appeals of Kentucky.
    Oct. 21, 1966.

      Waylon Rayburn, Rayburn & Hurt, Murray, for petitioners.
    Charles S. Cassis, Frankfort, for Board of Governors of the Kentucky State Bar Association.
   PER CURIAM.

Petitioner George H. Weaks, who was suspended from the practice of law in 1958, has applied for reinstatement as a qualified member of our Bar. Upon a majority vote of the Board of Governors of the Kentucky State Bar Association, it was recommended that he be reinstated. This recommendation has been submitted to us without briefs on either side.

The charges of unprofessional conduct which led to petitioner’s disbarment (see In re George H. Weaks, Ky., 318 S.W.2d 850) involved (1) the misappropriation of funds received by him while in public office, (2) conversion of other funds, and (3) conviction on certain misdemeanor charges. Evidence introduced on his behalf in this proceeding tended to prove that since his disbarment he had been a hard worker (in various jobs), had promptly paid certain debts, and was a person in whom trust could be placed. On the other hand, petitioner’s conduct since his disbarment has not been exemplary. He has defaulted on some of his financial obligations, has shown a lack of stability in holding certain positions, and admittedly has a problem in the use of alcohol. Within recent years he has been convicted of misdemeanors similar to those with which he was charged in the original disbarment proceedings, and also others.

The report of the trial committee, recommending petitioner’s reinstatement, is not convincing. While we appreciate the sympathetic approach taken by this committee, we believe the standards applied are inadequate. For example, the report stated that the committee’s concern was whether the petitioner “has shown the minimum stability, integrity and responsibility to pursue the legal profession as a source of livelihood”. (Emphasis added.) Surely the qualifications for reinstatement must be on a higher plane than this.

We seriously doubt that a person meeting only minimum standards would qualify for admission to the Bar in the first instance. Certainly a person seeking reinstatement, who has a heavy burden of overcoming a prior adjudication of disqualification, must come before the Bar Association and this Court on a much higher level. See In re Applewhite, Ky., 401 S.W.2d 757, and In re Keenan, 313 Mass. 186, 47 N.E. 2d 12, 32. As noted in the latter case, the judgment of disbarment continues to be evidence against him and he may overcome it only by most persuasive proof. See also In re Stump, 272 Ky. 593, 114 S.W.2d 1094.

It is the duty of this Court to protect the interests of the public and the profession, as well as those of the petitioner. While sympathetic considerations do play a part, we must take cognizance of the responsible position every lawyer occupies in his community. We must also take care that our certificate of approval in a particular case contributes in no way to the lowering of professional standards.

Our careful consideration of the record, including the trial committee’s report, has convinced us that the petitioner has fallen short of establishing that he is now worthy of restoration to the practice of law. We are not bound by the recommendation of the Bar Association and in this instance we decline to follow it. •

The petition of George H. Weaks for reinstatement to the practice of law in Kentucky is denied.


text:
    Charles Ronald WYATT, Petitioner, v. Hon. Frank A. ROPKE, Judge, Jefferson Circuit Court, Louisville, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    July 1, 1966.
    Manley N. Feinberg, Morris, Garlove, Waterman & Johnson, Louisville, for petitioner.
    Frank A. Ropke, pro se.
   GRANTING ORDER OF PROHIBITION

CULLEN, Commissioner.

Charles Ronald Wyatt, under indictment cor armed robbery and scheduled for trial in that division of the criminal branch of the Jefferson Circuit Court presided over by Judge Frank A. Ropke, filed a motion with supporting affidavit that Judge Ropke vacate the bench. The motion was overruled, whereupon Wyatt brought the instant proceeding in this court seeking an order prohibiting Judge Ropke from presiding in the case.

A novel question is presented, in that the charged prejudice and bias of Judge Ropke relate only to the matter of whether Wyatt’s sentence may be probated in the event he is convicted (or pleads guilty).

The petition herein alleges that after Wyatt had been arraigned and had pleaded not guilty a conference was held between his counsel and representatives of the Commonwealth’s Attorney’s office, at which was discussed the matter of whether Wyatt might plead guilty and, because of mitigating circumstances, receive a probated sentence. One of the assistant Commonwealth’s Attorneys said that Judge Ropke would in no circumstances probate an armed robbery sentence. Thereafter Wyatt’s counsel requested an appointment with Judge Ropke to discuss the matter but was told by the judge: “There is no point in discussing this matter. I am not going to suspend any armed robbery sentence.” The judge repeated several times, in open court, that under no circumstances would he suspend or probate the sentence of anyone convicted of armed robbery, regardless of the facts. Thereupon the motion to vacate the bench was filed.

Militating against the granting of the relief herein sought are these considerations :

1. It is questionable whether probation proceedings are a part of the “trial” within the meaning of the statute, KRS 23.230, which provides for vacation of the bench upon affidavit that the judge will not afford a fair and impartial “trial”. Cf. Thomas v. Hunter, 10 Cir., 153 F.2d 834; State v. Barrington, 198 Mo. 23, 95 S.W. 235; Reed v. State, 147 Ind. 41, 46 N.E. 135; State v. Levice, 59 Ariz. 472, 130 P.2d 53.
2. Probation is a matter peculiarly within the discretion of the trial court— so much so that, as this court said in Hurt v. Commonwealth, Ky., 333 S.W.2d 951 at 953, “it is difficult to conceive of any circumstances under which this court would be justified in substituting its judgment for that of the trial court upon the ground that such discretion had been arbitrarily exercised.”
3. Ordinarily, if it were considered that the judge erred in not vacating the bench, the remedy would be by appeal, not by prohibition. Jake’s Fork Coal Co. v. Wells, Ky., 362 S.W.2d 728.

However, all of these things pale into insignificance in the glaring light of the absolute unacceptability of a judge’s attitude that upon an important matter of discretion, involving personal liberty, he will not exercise his discretion but will make a purely arbitrary decision. Such an attitude is wholly repugnant to any concept of proper judicial action, or of justice. The judge who adopts that attitude denies the very fundamentals of his office. He rejects the obligation of his oath under KRS 23.170, to “administer justice.” The exercise of discretion is a mandatory judicial function, not a matter of choice of the judge.

The power and duty of this court under Section 110 of our Constitution to exercise a “general control of inferior jurisdictions” demand that the court forthwith disqualify a trial judge who has announced loudly and clearly that he will not exercise one of his judicial functions.

It is ordered that the respondent vacate the bench in the pending prosecution against the petitioner.

MONTGOMERY, J., dissents because he is of the opinion that the considerations listed in the majority opinion as militating against the granting of the requested relief are valid and should be controlling.


text:
    SKY TOP COAL COMPANY et al., Appellants, v. Oscar ROARK, Appellee.
    Court of Appeals of Kentucky.
    Oct. 21, 1966.

      Joe Nagle, Denham, Ralston & Nagle, Middlesboro, Robert Matthews, Atty. Gen., for appellants.
    Julian Golden, Pineville, for appellee.
   PALMORE, Chief Justice.

Appellee, Oscar Roark, sustained a com-pensable injury to his back in 1958. A settlement based on 30% permanent partial disability was approved by the Workmen’s Compensation Board in 1959. In October of 1964 he moved to re-open pursuant to KRS 342.125 upon a showing of changed condition. The motion was sustained for the purpose of admitting proof, following reception of which the Board found that Roark is now permanently and totally disabled but had failed to establish that the change of condition is the direct and proximate result of the injury. The motion was therefore overruled on the merits.

An appeal by Roark to the Bell Circuit Court resulted in a judgment finding that the changed condition is wholly attributable to the injury and awarding increased compensation. The employer appeals.

The 1959 settlement was based on the opinion of Dr. William K. Massie, an orthopedic surgeon, that Roark had a 25% to 30% permanent partial impairment, and the only medical testimony presented in support of the motion to re-open was given by Dr. Massie after further examination and treatment during the intervening five years. Upon re-evaluation in 1964 Dr. Massie found Roark to be totally and permanently disabled as a coal miner, his regular occupation.

Roark had the burden of proving “that the change of condition was a direct and proximate result of the injury.” Jude v. Cubbage, Ky., 251 S.W.2d 584, 585 (1952); W. E. Caldwell Co. v. Borders, 301 Ky. 843, 193 S.W.2d 453, 454 (1946). It is our conclusion that the testimony of Dr. Massie did not establish the necessary causation, certainly not so as a matter of law. To illustrate, against the following questions and answers given under cross-examination the board could not reasonably be compelled to find for the claimant:

Q — “Doctor Massie, would it be possible for you to separate in your own opinion the amount of this man’s disability which was caused by the condition which you have described here — that is, the degenerative condition of his spine — as related to the injury that this man complained of when he came to you previously in 1959? In other words, I believe you have stated that he became symptomatic at the time he described this particular fall or injury to you and I believe you have previously stated in some of your reports that there was an aggravation of this degenerative condition; can you tell to what extent this injury aggravated the condition and to what extent the degenerative condition itself caused his disability ?”

A — “Well, since this is more or less an educated guess, and since I probably should have the information to arrive at this division of responsibility, in most cases I have divided the degenerative changes and the acute superimposition of trauma on a fifty-fifty basis. Now I would say this is so of the first condition — that is, the original condition on which he had pain superimposed on a degenerative change; the changes which have occurred subsequently I feel are primarily a change of degeneration rather than [sic] he has had repetitive small trauma, but primarily the change which has occurred in the past five years is due to aging rather than to any specific injury, because as the patient readily relates, though he has had re-aggravations at times, and as I related in my report above, I have seen him on several occasions in which he has had this reoccurrence of symptoms. They are minor activities which bring on these changes and this is of course the reason I feel this man cannot continue to carry on satisfactorily a job which would allow him to re-aggravate his back.”

Q — “When you speak of aggravating the back, you speak of aggravating again this degenerative condition in which his back is now?”

A — “That is correct.”

Q — “And you think that in the last five years this condition has been due to aging rather than to any specific injury or injuries ?”

A — “Yes, I think the aging process has made this back so much more susceptible to re-aggravating injuries that even minor injuries now make these evident in symptoms.” (Emphasis added.)

It follows that there was no proper basis for the circuit court to overturn the findings of the Board.

The cause is reversed with directions that the opinion and final order of the Board be sustained.


text:
    James YAGER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    July 1, 1966.
    As Modified on Denial of Rehearing Oet. 21, 1966.

      Francis T. Goheen, Paducah, James Yager, pro se., for appellant.

      Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., Frankfort, for appellee.
   WADDILL, Commissioner.

James Yager appeals from a judgment of the McCracken Circuit Court entered upon a verdict finding him guilty of escape from custody (as denounced by KRS 432.390(1)) and sentencing him to five years’ confinement in the penitentiary. On May 6, 1964, while Yager was confined in the Eddyville State Penitentiary pursuant to felony convictions, he was taken to the City of Paducah in the custody of a guard to have an eye examination. Upon leaving the doctor’s waiting room he disappeared. Several days later he was located by law enforcement officers in Chicago and returned to the Eddyville State Penitentiary.

Yager contends the trial judge erred in overruling his motion to quash the indictment because “it was contrary to law.” We assume that Yager was objecting to the fact that the grand jury which indicted him was empaneled September 1, 1964, a Tuesday, whereas KRS 29.205 provides that in courts of continuous session (such as Mc-Cracken Circuit Court) a grand jury shall be empaneled “on the first Monday of each month that the court is in session.” However, this provision of the statute is qualified by the phrase “unless otherwise ordered by the judge.” Hence the trial judge was authorized by the statute itself to empanel a grand jury on the day in question.

The next contention is that Yager had ineffective assistance of counsel because his appointed counsel knew he would not be reimbursed for his services. Yager apparently assumes that in the absence of remuneration appointed counsel will not perform his duties diligently. This assumption is repugnant to the canons of legal ethics and we cannot accept it. Moreover, the record in the case indicates that, insofar as Yager would follow the advice of his attorney, he had able assistance of counsel during trial and on this appeal.

Yager urges that the trial judge erred in overruling his motion for a change of venue. The motion stated that Yager could not obtain a fair trial in McCracken County because of bias created by certain articles published in a local newspaper dealing with his escape. Although Yager failed to comply with the requirement of KRS 452.220 by filing two affidavits in support of his motion, the trial judge heard witnesses for both sides before he ruled on this motion. Even if Yager had been entitled to a hearing on this motion (which he was -not) we would not disturb the trial judge’s determination since the evidence was not preserved for appellate review and consequently an abuse of discretion has not been shown. Smith v. Commonwealth, Ky., 366 S.W.2d 902.

Several witnesses residing outside McCracken County who had been subpoenaed by Yager did not appear at his trial. Yager moved under KRS 455.100 to have the court appoint a special bailiff to compel their attendance. The appointment of a special bailiff pursuant to this statute is discretionary with the trial judge. Yager refused to indicate why these witnesses were needed. He neither filed an affidavit to show the nature of their evidence or how it would be material to his defense nor did he request a continuance on account of their absence. Under these circumstances the trial judge’s refusal to appoint the bailiff is not reviewable. Cf. Lay v. Commonwealth,. 186 Ky. 163, 216 S.W. 123.

Testifying in his own behalf Ya-ger related his past history in an apparent, attempt to convince the jury that he was an intelligent, considerate and well-adjusted individual whose explanation of his alleged escape was worthy of belief. On cross-examination the Commonwealth attempted to refute this testimony by showing that his primary concern had been to gain notoriety for himself and to embarrass public officials. Yager admitted having filed various civil actions which had resulted in fourteen separate investigations by state and federal officials. The Commonwealth then read to the jury, over Yager’s objection, a letter which he had written after having been returned to prison. He now contends it was error to permit the reading of this letter. In summary he had written that he was engaged in mapping out legal strategy which would make his trial a “blazing battle” causing serious embarrassment to numerous persons. In support of his contention it is argued that the letter was obtained in violation of the Fourth Amendment to the Constitution of the United States. Undoubtedly the prison authorities had the right to intercept appellant’s mail for security reasons. However, assuming arguendo that the reading of this letter to the jury constituted error as contended, such an error does not automatically require a reversal of the conviction. RCr 9.26 provides :

“A conviction shall be set aside on motion in the trial court, or the judgment reversed on appeal, for any error or defect when, upon consideration of the whole case, the court is satisfied that the substantial rights of the defendant have been prejudiced.”

Hence, the crucial question is whether the error is prejudicial. The contents of the letter were innocuous and merely tended to cast doubt on appellant’s credibility. Other testimony, including that of appellant’s, had, prior to the reading of the letter, seriously jeopardized the probative value of his testimony. We have concluded that the trial judge did not err in overruling the objection to this letter’s being read as we are satisfied that the substantial rights of appellant have not been prejudiced by the cumulative effect of this letter.

It is contended that the evidence is insufficient to support a conviction under KRS 432.390(1) which makes it a felony for any person convicted of a crime serving a sentence in the penitentiary to “flee from whatever bounds he may be assigned, whether under guard or as a trusty.” Yager testified that the prison guard authorized him to leave the doctor’s office after his eye examination was concluded. The guard admitted that he let Yager leave the doctor’s office to go to the Federal Building but when Yager failed to return he made an intensive search for him before reporting his escape to the state police. This testimony refutes Yager’s assertion that the guard released him from custody as does the fact that no person could reasonably believe that a prison guard had authority to liberate a prisoner.

Although evidence of Yager’s insanity was not such as to require the giving of an instruction on it, the trial judge, out of an abundance of caution, gave such an instruction. Yager now contends the instruction was erroneous because it did not include a reasonable doubt provision. The instructions required the jury to find him not guilty if it had a reasonable doubt as to his having been proven guilty or as to any material fact necessary to establish his guilt. This was sufficient.

Finally Yager complains that he was placed in double jeopardy contrary to the Federal and State Constitutions because upon his return from Chicago the Kentucky prison officials placed him in solitary confinement for twenty-one days and before he was tried on the instant indictment. One of the factors of legal jeopardy is being placed on trial before a court of competent jurisdiction on an indictment or information sufficient to sustain a conviction. Hunt v. Commonwealth, Ky., 338 S.W.2d 912; Hughes v. Commonwealth, 131 Ky. 502, 115 S.W. 744, 31 L.R.A., N.S., 693. The punishment meted to Yager by the prison officials was a disciplinary measure which does not constitute legal jeopardy. The reasonableness of the alleged disciplinary action is not before us.

The judgment is affirmed.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Herbert C. CLEVELAND et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 21, 1966.
    Robert Matthews, Atty. Gen., H. C. Smith, Dept, of Highways, Frankfort, Tildón H. McMasters, Elizabethtown, for appellant.
    John S. Kelley, Fulton, Hubbard & Kelley, Bardstown, for appellees.
   PALMORE, Chief Justice.

The appellees, H. C. Cleveland and wife, owned a 47-acre farm tract in Nelson County fronting 1243 feet on the east side of U. S. Highway 31E about 1½ miles south of Bardstown. In order to provide for a ramp leading off U. S. 31E onto the Central Kentucky or Bluegrass Turnpike, which runs in an east-west course a short distance (200 to 250 feet) north of the Cleveland property, the state highway department condemned an .82-acre strip of the farm fronting 583 feet on U. S. 31E. The strip taken is 145 feet deep at the northwest corner of the farm and narrows to 35 feet at its other extremity 583 feet to the south. The new boundary has been fenced by the highway department, but free access to U. S. 31E along the southerly 660 feet of frontage remains undisturbed. The property was being used and developed principally for the breeding of show horses. Its existing entrance was located on the 660 feet that is not affected by the taking.

A jury trial on the amount of damages resulted in a verdict and judgment for $6,-000 as follows:

Before value $46,000
After value 40,000
Difference $ 6,000

The highway department contends the testimony of each of the landowners’ valuation witnesses was devoid of probative value and should have been stricken, and that there was insufficient evidence of probative value to support the verdict.

The estimates given by the witnesses were as follows1:

For the owners:
Cleveland $56,000 $36,000 $20,000
Lewis 55,000 37,000 18,000
English 52,000 36,000 16,000
For the department:
Baesler O co Oo On 'Vj O O O O O oo CO
Schneider OO GO On 'ÑO Oo O O CO rC CO

It will be noted that the after-value of $40,000 found by the jury, though redounding to the benefit of the condemnor, had no basis in any of the evidence.

From his testimony there can be no mistake that Mr. Cleveland’s estimate of a $20,000 loss in value was based on little else but loss of access. For example, he testified on cross-examination as follows:

Q— “ * * * I will ask you to tell the court and jury what you took into account in arriving at that after value.”
A- “Well, I took into account the frontage that they are taking. We bought the property as an investment and if they take the frontage, there is nothing left. The frontage is the only value about the farm.”
Q- “Your after value was based primarily on loss of frontage?”
A- “Well, loss, what the farm was intended for, too. Took away from it the value of what we are doing now.”
* * * * * *
Q- “Did you base your $20,000 less market value on what specifically?”
A- “The frontage, primarily the frontage.”
Q- Primarily the loss of frontage?”
A- “Yes, primarily, yes.”
Q~ “That is what you based your figure of $20,000 on?”
A- “Yes, sir.”
* * * Jfc * *
Q- “Now, is the fact that the fence was built and that thereby causes you to lose frontage here, is that what you are complaining about, sir?”
A- “Well, you can’t go and come from the property because the frontage there is gone and you can’t get onto the road because of that fence.”
Q- "That’s right. Did you take that into consideration in arriving at your value?”
A- “Well, yes.”
Q- “Is that the main reason why you considered such a loss of market value ?”
A- “Not altogether, no, sir.”
Q- “That is one of the reasons?”
A~ “One of them, yes.”
Q- “Because you could not get over off your property onto 31E or to the ramp?”
A- “Yes, sir.”

The taking of additional right-of-way on the east side of existing U. S. 31E did not reduce the frontage of the Cleveland place. The frontage remained virtually the same. The difference is that there is no right of access along the new frontage. But so long as reasonable access remains, that is not a compensable loss. Commonwealth, Dept, of Highways v. Denny, Ky., 385 S.W. 2d 776, 777 (1964). Though Mr. Cleveland said this was not “altogether,” but only “one of the reasons” for his opinion, he was unable to suggest any other except for the remark, “You can’t have noise around horses.” We cannot escape the conclusion that his estimate of diminution in value was so dependent upon an irrelevant factor that it should have been stricken. Commonwealth, Dept, of Highways v. Tyree, Ky., 365 S.W. 2d 472, 476 (1963); West Kentucky Coal Company v. Commonwealth, Dept, of Highways, Ky., 368 S.W.2d 738, 744 (1966).

The trial court did admonish the jurors not to consider “so much of this witness’ testimony which raises as an element of damage his complaint that [sic] loss of frontage,” but that left them nothing of probative value to consider, and no attempt was made to fill the void in the manner suggested in Shaw, and, more recently, in Commonwealth, Dept. of Highways v. Claypool, Ky., 405 S.W.2d 674, 676 (1966).

The witness Lewis disclaimed having considered the loss of “frontage” as a factor in estimating the diminution at $18,-000. However, the only explanation he could give was that “the noise on the highway would scare a high bred horse and colts. * * * there is a lot of people don’t like to listen to big trucks going by at night.” He acknowledged that his opinion was “based primarily on the fact that it can no longer be used for horses and that the noise from the turnpike will reduce its market value.” This, it seems to us, was a highly speculative and, in fact, improbable conclusion. Moreover, as no part of or connection with the turnpike other than the ramp leading off U. S. 31E adjoins the Cleveland property, the prospect of traffic noises from the turnpike would have been the same if the ramp had not been provided and this condemnation proceeding had not taken place. Whatever such noises may amount to, they do not result from this condemnation. Premised wholly on such a flimsy foundation, Lewis’ testimony was practically worthless.

The witness English testified that in his opinion the value of the property had dropped from $52,000 to $36,000 because “I don’t think the farm lends itself to the operation of a show horse farm. That’s what it was prior to the turnpike.” The best explanation he was able to give is embodied in the following questions and answers :

Q- “The jury will want to know why you arrived at that figure?”
A- “I don’t feel that it, in my own words, say I think the prior — I would say a year ago that Mr. Cleveland had — six or eight months ago, Mr. Cleveland had a show horse farm; that he had a tremendous investment in it. It lent itself to people in the show horse business bringing their mares in to be bred, I think it was a quiet place. It just lent itself, was a beautiful place; that now I think that if somebody owned mares and bringing them in-there the place would not be the attraction, I don’t think it would — I think a lot of' trucks and noise — I don’t think — I think it would be a little more difficult in selling-a horse person the uses of that farm for-breeding and raising colts.”
Q- “That is what you based your loss, on?”
A- “Yes, sir ”
******
Q- “You have no information that would lead you to the opinion as an appraiser, I’m talking about, that property located at the end of ramps on interstates and turnpikes as commercial establishments in market would enhance the value?”
A- "If you are tearing that into particular tracts, there will be no more traffic on 31E than there is now. Very little more.”
Q- “This property is located at the end of the turnpike, I mean one of the ramps off the turnpike. Is that right.”
A- “Yes, sir.”
Q- “Mr. English, if there is no more traffic and wouldn’t be any more traffic in front of that Cleveland property, how is the taking here causing him to lose his horse business? I don’t quite follow that line. You said there would be no more traffic.”
A- “I’m talking about north bound traffic. There will be more south bound.”
Q- “That increase in traffic that you are using to diminish the market value of this property?”
A- “That is just a small factor, sir.”
Q- “Small factor. What is the biggest factor?”
A- “I think I have answered that.” [!]
Q- “His traffic in front of the property or traffic on the turnpike ?”
A- “Both, sir.”
Q- “Which is going to do the greater damage to the market value of this property?”
A- “Traffic in front, sir.”
Q- “That traffic in front will do the greater damage ?”
A- “1 feel that, sir.”
Q- “So it’s the traffic you are basing your loss of market value on in front of the property. Is that right, sir ?”
A- “Increased traffic in front of the property.”

There was no evidence that there will be any more or less traffic on U. S. 31E in front of the Cleveland property, and even if it were assumed that there will be, and that it will be caused by the establishment and construction of the interchange connecting U. S. 31E with the turnpike, we are not aware of any legal principle by which the state can be held responsible in damages to abutting property owners for the natural increase of traffic on its highways that occurs whenever it improves them, or constructs additional interconnections to facilitate the flow of traffic over the whole system.

Like that of Lewis, the testimony of English had no substantial probative worth.

We recognize the argument that the jury discounted these extravagant estimates in awarding only $6,000. The trouble is that the evidence provides no more support for $6,000 than it does, say, for Cleveland’s $20,000. When the invalid and illusory factors are eliminated, nothing but thin air is left.

We cannot say the testimony of Lewis and Miller should have been stricken, but we do agree that there was not enough probative evidence to support the verdict.

The judgment is reversed with directions for a new trial.

      . The situation is distinguishable from Commonwealth, Dept, of Highways v. Shaw, Ky., 390 S.W.2d 161, 163 (1965), ta which the improper factor was not the primary and substantial basis of the estimate.

      . The Cleveland property, however, abuts the northbound lane.

      . In Commonwealth v. Elizabethtown Amusements Inc., Ky., 367 S.W.2d 449, 452 (1963), it was held that increased proximity of the highway may be considered as an element of diminution, but increased use is a different matter. In this connection, see also Commonwealth, Dept. of Highways v. Curtis, Ky., 385 S.W.2d 48, 51 (1964), and Commonwealth, Dept. of Highways v. Carson, Ky., 398 S.W.2d 706, 707 (1966), in which traffic noise is recognized as a relevant factor. However, both cases involved the location of a new highway through the property affected by the condemnation.

      .Obviously that is where the jury must have reached in order to get its after-value figure of $40,000.


author: PALMORE, Judge. MONTGOMERY, Judge

text:
    CITY OF ASHLAND, Kentucky, et al., Appellants, v. HECK’S, INC., and James McCann, Manager, Appellees.
    Court of Appeals of Kentucky.
    April 29, 1966.
    A. W. Mann, Arthur T. Bryson, Jr., Ash-land, for appellant.
    H. David Hermansdorfer, Diederich & Hermansdorfer, Ashland, for appellee.
   PALMORE, Judge.

The core question in this case is whether the Sunday closing law, KRS 436.160, can be enforced against a department store, or so-called “discount house,” while other establishments variously denominated as “pharmacies” or “drug stores,” “groceries,” “supermarkets” and “car washes,” some of which sell many of the same types of merchandise as the discount house, are openly permitted to do business as usual on Sunday. Obedient to the precept of Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), the chancellor adjudged such enforcement to be unlawfully discriminatory under the equal protection clause of the 14th Amendment of the United States Constitution.

Shortly after it was decided in Arlan’s Dept. Store of Louisville v. Commonwealth, Ky., 369 S.W.2d 9 (1963), that a department store is not a “work of necessity” excepted by KRS 436.160(1), it became known to the merchants, Chamber of Commerce, and public officials of Ashland that the ap-pellee Heck’s, Inc., a West Virginia corporation, intended to open a store in Ashland and do business on Sundays. Various meetings were held and discussions were had in which the Mayor of Ashland advised the president of Heck’s that the Sunday law would be enforced. Heck’s agreed to remain closed on Sunday provided the law would be equally enforced. Other merchants who had customarily remained open on Sunday evidently were disturbed, and ■early in September of 1963 the Mayor issued a palliative statement in which he said, among other things, that although grocery stores are not specifically exempted by the statute, “they always have been considered as work of necessity. This has never been challenged in the courts.” In this statement it was made clear that the enforcement policy was to be directed at department stores, and particularly any firm that might, while complying with a similar law in West Virginia, expect to evade the law in Kentucky. Later on, after conferring with the Mayor and commissioners of the city, the executive secretary of the Chamber of Commerce issued an “Open Letter to Business Houses Which Have Been Open on Sundays in Ashland for Many Years” reiterating some of the comments made in the Mayor’s statement and containing the following remark:

“There has never been any desire to interfere with the operation of any business which, historically, has been in operation here on Sundays and which has not had its ‘operation of a necessity,’ or lack thereof, argued before the Appellate Court of the Commonwealth of Kentucky.”

Heck’s remained closed on the six Sundays between September 8, 1963, and October 13, 1963, inclusive, and although numerous other establishments of the kinds heretofore mentioned continued to do business on those days, no arrests were made or citations issued against any of those so engaged. Heck’s then opened on Sunday, October 20, 1963, and remained open on the following four Sundays. On each of these five Sundays citations were issued against various employes of Heck’s. Citations were issued also against the operators of several of the other and previously unmolested businesses. As the chief of police testified, on the first Sunday Heck’s opened, “that is the Sunday I enforced the law.” Some 50 or 60 cases, including six against Heck’s personnel, came on for trial in the city police court on November 20, 1963. The six cases involving employes of Heck’s were tried and the court pronounced a fine of $50 and costs in each. All the other cases were either dismissed (some for good cause, as in the instance of “filling stations,” which are specifically excepted from the operation of the statute) or continued indefinitely. One was continued even after the defendant, a grocery store clerk, had entered a guilty plea.

This proceeding was filed by Heck’s and its manager (one of the defendants tried on November 20) on November 29, 1963. The complaint demanded injunctive relief against the City of Ashland and its Mayor, Chief of Police, and Police Judge. The circuit court held two hearings, one on December 16, 1963, and the other on June 17, 1964. At the conclusion of the first hearing the chancellor dissolved a temporary injunction but declined to rule on the merits because he felt it was “too early for this court to make a finding as to whether the law will or will not be enforced against all open violators.” He therefore ordered that the proceeding be continued until a later date “at which time either or all parties may introduce further evidence on the merits.”

At the last hearing most of the cases still remained technically on the docket of the police court, but from the testimony of the police judge given on that occasion it is obvious that in the absence of some authoritative determination to the contrary he will regard the Sunday operation of car washes, drug stores, groceries and markets as “work of necessity.” Hence it is reasonably clear that if relief is denied in this action the employes of Heck’s will be forced to comply with the law and all of the others in question will be treated as exempt.

As in Yick Wo, there is no question with respect to the validity of the statute the city is attempting to enforce against Heck’s and its employes. So it was also in the case of City of Covington v. Gausepohl, 250 Ky. 323, 62 S.W.2d 1040 (1933), in which the city was enjoined from discriminating in favor of farmers and hucksters and against storekeepers in the enforcement of an ordinance prohibiting the placing of boxes, barrels, baskets and merchandise upon its sidewalks. If there is any distinction between this and the Gause-pohl case we are unable to find it, and from the studious omission of any reference to it in their brief we assume the appellants labor under the same difficulty.

It was held in the Gmsepohl case that instead of enjoining all enforcement of the ordinance involved the trial court “should only have enjoined the city from making discriminations in its enforcement.” Accordingly, the injunction decreed in this case was made subject to the express proviso that it “shall in no wise interfere with the arrest and prosecution of plaintiffs or any of their employees when such arrest and prosecution are part of the just and equal enforcement of KRS 435.160 against all known violators.”

Athwart the argument that injunctive relief cannot be had in this type of case lies the hard fact that in Gausepohl it was. See also Purnell v. Maysville Water Company, 193 Ky. 85, 234 S.W. 967, 23 A.L.R. 223 (1921), and City of Harrodsburg v. Southern Ry. Co. in Kentucky, 278 Ky. 10, 128 S.W.2d 233 (1939), in each of which criminal proceedings were restrained. Whether the proceeding is an attempt to enforce an invalid law or to enforce a valid law in an invalid manner makes no logical difference. “The rule that equity does not enjoin criminal proceedings is not an invariable one. Cases may and do arise which call for such relief. It may be justified by exceptional circumstances and by the necessity to afford adequate protection to constitutional rights.” 28 Am.Jur. 748 (Injunctions, § 238). How else is the guaranty of equal protection to be enforced? Rarely could it be done in the course of each individual prosecution, because, as it was remarked in Ex parte Commonwealth of Virginia, 100 U.S. 313, 319, 25 L.Ed. 667, 669 (1880), “the violation of the constitutional provisions, when made by the judicial tribunals of a State, may be, and generally will be, after the trial has commenced. It is then, during or after the trial, that denials of a defendant’s right by judicial tribunals occur. * * * Nor can the defendant know until then that the equal protection of the laws will not be extended to him. Certainly, until then he cannot affirm that it is denied, or that he cannot enforce it, in the judicial tribunals.”

With respect to the argument that as admitted violators of the law the plaintiffs do not have clean hands and thus are not entitled to equitable relief, we think the answer is that if a person singled out for prosecution under a law that is not being enforced against anyone else could be denied relief because he stands in violation of that law, in practical effect the equal protection clause of the 14th Amendment could never be invoked against any arbitrary and wilful discrimination in the enforcement of criminal laws. That simply cannot be.

In Cohen v. Webb, 175 Ky. 1, 192 S.W. 828, 830 (1917), it was said that criminal prosecutions cannot be enjoined unless property rights are involved and it is necessary in order to prevent a multiplicity of suits and consequent irreparable injury. In view of the later opinions heretofore cited it must be concluded that Cohen has been overruled.

In Strand Amusement Co. v. City of Owensboro, 242 Ky. 772, 47 S.W.2d 710 (1932), the plaintiffs attacked a city ordinance imposing penalties for the operation of commercialized amusement on Sunday. This court held they had no standing in equity because, regardless of whether the ordinance was valid, they were in violation of the state law on the subject. The case did not, however, as in Gausepohl and this, involve a tenable and valid claim of unconstitutional discrimination. The same distinction applies to Gastineau v. Bradley, Ky., 249 S.W.2d 529 (1952).

Appellants portray appellees’ theory of relief in terms of “two wrongs make a right,” that so long as any other violator goes unwhipped then appellees claim the right to go their merry way with impunity. No. It is the other way around. There are in fact two wrongs, one being the violation by appellees of the Sunday statute, and the other being appellants’ violation of the Constitutions of this state and of the United States. It is appellants who would use the appellees’ wrong to blot out their own. As we see it, the judicial problem presented by these circumstances resolves itself into a matter of weighing one policy against the other, and when that is done we find the constitutional right to be of greater importance than our reluctance to give succor to a passing law violator as an unavoidable incident to the preservation of that right.

Probably no law contrived by man for his own governance ever has been or will be enforced uniformly and without exception. But the Constitution does not demand perfection. It is only the obvious and flagrant case that warrants relief, and unquestionably this instance, in which ap-pellees are the only persons found guilty in Ashland in a quarter century, falls in that category. Certainly we do not construe the judgment, nor can it be construed, as appellants say, to mean that the successful prosecution of any charge under the Sunday law will require proof that every other known violator has been or is being prosecuted.

In fairness to the municipal officers who are engaged in this litigation, let it be understood that there is no suggestion of a dishonest or opprobrious motivation in their actions and policies. On the contrary, it is manifest that they are the innocent victims of a persisting legislative neglect, disinclination or inability (whichever it may be) to come to grips with the problem — indeed, the obligation — of bringing a poor law into conformity with the facts of life. Nevertheless, “the equal protection of the laws” vouchsafed by the 14th Amendment to every person is not qualified; it is absolute; it cannot be denied, either in bad faith or in good faith.

It is suggested that against the backdrop of contemporary mores perhaps we ought to say the other businesses that are being allowed to operate on Sunday in Ashland are works of necessity. However, we do not believe they actually are. Food and drugs are necessities of course, but it does not follow that there is any more of a necessity for them to be kept on open sale for the general public, particularly in conjunction with a variety of strictly nonessential items, all seven days of the week than it is for them to be kept on sale all night. Clearly this is a legislative matter.

The judgment is affirmed.

MONTGOMERY, J., dissenting.

STEWART, J., not sitting.

MONTGOMERY, Judge

(dissenting).

One of the appellants is the police judge in whose court prosecutions for violation of the Sunday closing law were entered against appellees and many others. There were a large number of these prosecutions with differing dispositions. The effect of the majority opinion is to hold that such judicial officer may be enjoined from proceeding in the trial of the prosecution under a constitutional statute in which it is his duty to exercise a discretion and to act.

The authorities cited in the opinion do not justify the holding therein against the police judge. The Yick Wo and Gausepohl cases, the claimed authority for the majority opinion, did not involve judicial officers. The Purnell and City of Harrods-burg cases are not authority for the majority holding on this point although police judges were enjoined. In those cases the judicial officer was enjoined from enforcing an invalid ordinance.

Appellees were prosecuted under KRS 436.160. The constitutionality of this statute had been upheld. Commonwealth v. Arlan’s Department Store of Louisville, Ky., 357 S.W.2d 708; Arlan’s Department Store of Louisville v. Commonwealth, Ky., 369 S.W.2d 9. Thus, the Purnell and City of Harrodsburg cases are unavailable despite the comment that there is no logical difference between those cases and this case. The difference is that in those cases prosecution was under an invalid law while here the prosecution was under a law which had been upheld as constitutional by this court. Appellees have not questioned the constitutionality of the statute, nor have they sought to appeal from the judgments entered against them in the police court.

The majority opinion would dismiss Cohen v. Webb, 175 Ky. 1, 192 S.W. 828, as being overruled, ostensibly by the Pur-nell, City of Harrodsburg, and Gausepohl cases. For the reasons pointed out, these cases are not justification for overruling Cohen v. Webb, which held that a criminal prosecution of a violation of a Sunday closing law could not be enjoined. Cohen v. Webb is squarely in point with the objection I seek to make to the majority opinion and is in accord with the rule as stated in Stephens v. McCreary County, 258 Ky. 516, 80 S.W.2d 592:

“It is a settled doctrine that a criminal prosecution cannot be enjoined unless property rights are involved and it is necessary for a court of equity to interfere in order to prevent a multiplicity of suits and consequent irreparable injury.”

The Stephens case was decided after Gausepohl. See also United Steelworkers of America (AFL-CIO) v. Fuqua, 6 Cir., 253 F.2d 594.

In the Steelworkers case it was held that a labor union and its members could not enjoin city officials from enforcing provisions of a city ordinance when the record did not establish that the union and its members had been threatened with any injury other than that incidental to every criminal proceeding brought lawfully and in good faith or that a federal court of equity, by withdrawing determination of guilt from state courts, could afford the union and its members any protection which they could not secure by prompt trial and appeal pursued to the Supreme Court. The police judge was not a party to the proceeding. The opinion was written by Justice Stewart, then sitting on the Circuit Court of Appeals. The Steelworkers holding is adverse to the majority opinion.

In Strand Amusement Company v. City of Owensboro, 242 Ky. 772, 47 S.W.2d 710, and Gastineau v. Bradley, Ky., 249 S.W.2d 529, sought to be distinguished in the majority opinion, it was held that an accused who has violated a valid statute has no standing in equity to come into court with unclean hands and obtain relief against prosecution. The Strand Amusement Company case involved a violation of a Sunday closing law and was cited with approval in the Gastineau case.

The majority opinion seems to say that as a matter of policy it is better to give relief to a violator with unclean hands than to uphold the hands of the appellants in law enforcement because all of the violators are not prosecuted. There is no question as to the guilt of the appellees. To state a parallel situation, the one rat caught in the trap, under the authority of the majority opinion here, could justifiably claim freedom because no others had been caught. Such reasoning cannot be justified.

This opinion is far-reaching. It is put within the power of every accused to say that he has been discriminated against when he is arrested. One possible effect is to outlaw on the basis of discrimination a conviction against an accused wherein an accomplice has testified. This decision places another stumbling block in the rocky road to law enforcement.

For these reasons I respectfully dissent.

        . We might add that a violation of that clause would also violate Section 2 of our own Constitution, which precludes the existence, hence the exercise, of arbitrary power.

      . To the contrary, see McAfee v. Commonwealth, 173 Ky. 83, 190 S.W. 671, I/.R.A. 1917C, 377 (1917), holding that the Sunday operation of a grocery store was not a work of necessity.

      .This was on October 29, 1963, following a number of citations which are hereinafter mentioned.

      . According to the chancellor’s findings of fact, “Fifty-five of the 58 cases, including one matter where the offender entered a plea of guilty, have been arbitrarily dismissed, filed away or no action has been taken as to them. The reasons assigned being that the works involved were ‘works of necessity’ in most cases but no reason at all was assigned in some cases.”

      . And indeed a cursory reading of it will demonstrate that it should be.


author: DAVIS, Commissioner.

text:
    CONTINENTAL CASUALTY COMPANY, Appellant, v. L. G. WASSON COAL MINING CORPORATION, Appellee.
    Court of Appeals of Kentucky.
    Oct. 21, 1966.

      John A. Fulton, Woodward, Hobson & Fulton, Louisville, for appellant.
    Marion Rider, Joseph J. Leary, Thomas F. Marshall, Frankfort, for appellee.
   DAVIS, Commissioner.

The appellant, Continental Casualty Company (hereinafter Continental) sued appellee, L. G. Wasson Coal Mining Corporation (hereinafter Wasson) seeking recovery of more than $500,000 alleged to be due to Continental from Wasson by reason of outlays made by Continental in behalf of Wasson incident to completion of a contract Wasson had with the Department of Highways. The trial court dismissed Continental’s complaint as once amended, as failing to state a claim upon which relief could be granted. CR 12.02(6). The trial court denied Continental’s motion for permission to file a second amended complaint. This appeal tests the correctness of the orders of the trial court in these respects.

Wasson, as a road contractor, entered into a contract with the Department of Highways of Kentucky on January 23, 1962, whereby it undertook to construct a portion of the West Kentucky Turnpike. Continental subscribed Wasson’s performance bond incident to the contract, in the penal sum of $1,977,328.83. The terms of the construction contract prescribed that work should begin on March 2, 1962, and be completed not later than May 26, 1963.

On April 26, 1963, the Department of Highways notified Wasson and Continental that it regarded Wasson as being in default in the matter of completing the contract on time. A meeting of representatives of Wasson, Continental and the Department was had on April 30, 1963, at which time the Department was assured that the work would be completed on schedule. But on May 24, 1963, the Department felt impelled to and did notify Wasson and Continental that the work was not proceeding with sufficient dispatch; incident to that notification, the completion date was extended from May 26 to June 30, 1963.

Despite these promptings by the Department the work lagged. On July 12, 1963, the Department notified Wasson and Continental of its demand for a meeting to be held July IS, 1963, at which time Continental would be called upon 'to demonstrate to the Department its willingness and ability to promptly complete the project. On July 15, 1963, immediately following the meeting of the parties litigant with representatives of the Department, an order of the Department was entered by the terms of which the contract was “ * * * taken out of the hands of the contractor and held in default so far as the contractor is concerned * * *.” The same order provided in further part: “ * * * and that Continental be hereby directed to comply with the terms of the above contract and the bond to the satisfaction of the Department within eight days hereafter.”

Two days later (well within the eight days mentioned in the Department’s order) Continental and Wasson entered into a written agreement respecting the completion of the work which Wasson had contracted to complete. This writing, dated July 17, 1963, recognized that the Department had “declared a default” as to Was-son, and further noted that the Department had called upon Continental “to comply with the terms of the contract and bond to the satisfaction of the Department.” The following pertinent language of the July 17th contract sheds light upon the posture and intentions of Wasson and Continental respecting their respective interests :

“Whereas, the parties, after independent consideration, believe that it would be to the best interests of each if an arrangement could be made for the contract to be completed by [Continental], with the continued use of the equipment on the job or in the possession of [Was-son] necessary to a proper completion of the project, without the payment of rental for the use of said equipment and with the continued employment of such workmen and personnel as is satisfactory to the Department of Highways and to [Continental] * * *.”

Based upon the recitation just quoted, the parties agreed that Continental would undertake to secure a satisfactory agreement with the Department looking toward the “completion of said contract.” Wasson agreed to make available to Continental all of its equipment on the job, as well as any other equipment it had, without rental charge. Among other things, this agreement provided that Continental would obtain a superintendent for the work, satisfactory to the Department, and that Continental should have full control over the employees upon the project.

Pursuant to the July 17th agreement, Continental was able to satisfy the Department and did proceed to complete the project, using Wasson’s equipment and personT nel. The present litigation, so far as is pertinent to this appeal, undertakes to recover from Wasson for Continental the sum of $536,090.57, subject to credits not required to be detailed here. It is alleged that the sum sought represents the aggregate sum which Continental has been required to expend “in the performance of said contract.”

Wasson filed its motion to dismiss Continental’s original (and first amended) complaints, asserting that no claim was stated upon which relief could be granted. As bases for its contention, Wasson averred that (1) the procedure prescribed in the contract and in KRS 176.110(1) was not followed incident to the cancellation of the contract; (2) Continental was not a “qualified contractor” within the purview of the procedure to be followed upon cancellation; (3) for Continental to undertake the performance of a road construction contract was ultra vires.

The trial court delivered a memorandum opinion on June 22,1965, reciting the court’s views that the complaint of Continental should be dismissed. In the memorandum opinion the trial court pointed out that the terms of Wasson’s contract as well as KRS 176.110 provide that upon a failure of Was-son to complete the work undertaken by the Department, the Department may cancel the contract and relet it to a qualified contractor at the original contract price, or the work shall he readvertised. It was the trial court’s view that Continental had made a “clandestine” arrangement with the Department “outside and beyond its corporate authorization, in derogation of the contractual and statutory rights of its principal, and in contravention of Section 192 of the Kentucky Constitution, the language of which is clear and unmistakable.”

Before entry of an order implementing the court’s memorandum opinion, Continental tendered a second amended complaint, and moved for leave to file it. By judgment entered ten days later, the trial court denied the motion to file the tendered second amendment and dismissed the complaint of Continental as once amended.

Continental contends (1) that the July 17th contract between Wasson and Continental, later approved by the Department, was entirely legal, and (2) that the trial court erred in denying its motion to file a second amended complaint.

The thrust of Wasson’s argument as it relates to the provisions of KRS 176.110(1) is that the construction contract was can-celled as to Wasson, hence the procedures prescribed in the statute (and substantially incorporated in the contract itself) should have been followed. For convenient reference we quote KRS 176.110(1):

“If any person having a contract with the department fails to carry out the contract, the department may cancel the contract and reaward it without advertisement if it can obtain a qualified contractor to perform the work at the original contract price or for less. Otherwise the work shall be advertised as required by law.”

It is our view that the contract was not cancelled within the meaning of the statute. It will be ooserved that the stat-. ute reposes a discretion in the Department as to whether it cancels the contract. Was-son concedes that the word “cancel” was never used by the Department with reference to the contract, but correctly contends that the use of the specific word is not a condition precedent to cancellation. We find nothing in the steps taken by the Department which could justify a conclusion that the Department cancelled the contract within the meaning of KRS 176.110 (1). It is true that the Department took the contract “out of the hands” of Wasson —and it would seem to follow that had Continental not “satisfied” the Department that it would complete the contract, the Department would have proceeded as prescribed by the statute.

It is plain, we think, that Wasson recognized the continued existence of the construction contract when it entered into the July 17th agreement with Continental. The Department also recognized the viability of the contract when it acquiesced in the arrangement for its completion as envisioned in that July 17th pact between Wasson and Continental. We are at a loss to understand why the trial court characterized as “clandestine” the arrangement which Continental obtained from the Department which was in direct compliance with Was-son’s July 17th agreement with Continental. Having this view of the situation (to the extent of facts as pleaded), there is no necessity for resolution of whether Continental was a “qualified contractor” within the meaning of KRS 176.110(1). We hold that the statute simply is not applicable.

Wasson contends that Continental’s activities in causing the completion of the construction contract were ultra vires, since the corporate charter of Continental does not include such functions among its corporate powers. Thus, it is reasoned, Kentucky Constitution Section 192, as well as KRS 271.145, taint the claim of Continental with such illegality as to make it unen-forcible in a court. Wasson recognizes in its brief that an act of a corporation which is “ * * * merely ultra vires will not, under all circumstances, render such action void.” But it insists that when a corporate act is an illegal act, expressly prohibited by the corporate charter or by statute, then such an act is void. Cited in support of that proposition is Fletcher, Cyclopedia of Corporations, Volume 7, Section 3400, pp. 566-567, wherein it is said, in part:

“In other words, an illegal act or contract, defined as one expressly prohibited by the charter or a general statute, or which is immoral or against public policy, is ultra vires and something more. It is illegal, not merely because it is ultra vires, or beyond the powers conferred upon the corporation, but, as in the case of an act of a natural person, because of its immorality, or of its being contrary to public policy, or its being in violation of an express legislative prohibition.”

We may agree, without specifically so holding, that the principle enunciated by the learned author is sound. But we find nothing in the situation at bar to bring this case within that principle. Indeed, the same authority points out that it is the policy of the law to look with disfavor upor the defense of ultra vires, where private rights only are involved. Fletcher, Cyclopedia of Corporations, Volume 7, Section 3407, p. 573. Cited in support of that statement is City of Whitesburg v. Whitesburg Water Co., 257 Ky. 444, 78 S.W.2d 330. We are unable to perceive any respect in which the July 17th contract between Was-son and Continental may be deemed to be immoral or against public policy; neither was the contract one prohibited by statute or by the corporate charter.

Kentucky Constitution Section 192 and KRS 271.145 provide in general terms that no corporation shall engage in business other than that expressly authorized by its articles of incorporation. This court has aligned itself with the majority view, however, that corporate powers include those which are expressed or implied by the corporate charter. Wilson v. Louisville Trust Co., 242 Ky. 432, 46 S.W.2d 767; Kentucky Joint Stock Land Bank of Lexington v. Farmers Exchange Bank, 274 Ky. 525, 119 S.W.2d 873, 878. We have no difficulty in holding that Continental as surety on the construction contract, had the clearly implied power to see to it that the construction contract was carried out. Cf. Standard Accident Insurance Co. of Detroit v. Rose, 314 Ky. 233, 234 S.W.2d 728; 17 Am.Jur.2d, Contractor’s Bonds, Section 1, p. 192. It is patent that the interests of the public have not been adversly affected, because the Department paid only the original bid price.

In its present posture, Wasson seeks to retain the benefits of the July 17th agreement, but would disclaim any responsibilities flowing from the contract. The benefits to Wasson include its being relieved of further liability for breach of contract to the Department (including the attendant penalty of $1,000 per day for late performance). Wasson had clear responsibility to save harmless Continental from loss by reason of Continental’s suretyship. This was made subject of more than one express agreement between the two companies — yet Wasson would seek absolution from that responsibility too. That this position is untenable is made clear by Marshall’s Adm’r v. Webster, 287 Ky. 692, 155 S.W.2d 13, 18. See also Fletcher, Cyclopedia of Corporations, Section 3473, pp. 631-633.

Upon remand of this case, Wasson will be afforded opportunity to question the reasonableness of Continental’s expendí-tures in seeing the construction contract completed, but that matter is not before us at this time, hence it lends no support to Wasson’s argument in brief in that vein.

The trial court denied the motion to file the second amended complaint primarily because it was deemed to have been tendered untimely. Since it was tendered before any pleading to the merits, and without any showing of prejudice to Wasson’s position, it is our view that the tendered pleading should have been received. CR 15.01. Upon remand, the second amended complaint as tendered will be filed.

The judgment is reversed for further proceedings consistent with this opinion.

      . In our view the Department had its option to cancel or proceed as it did. It would be anomalous if Wasson, as defaulter, could demand the Department to exercise the option.


text:
    James BOLIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 21, 1966.
    C. B. Upton, Williamsburg, for appellant.
    Robert Matthews, Atty. Gen., H. N. Mc-Tyeire, Asst. Atty. Gen., for appellee.
   PALMORE, Chief Justice.

James Bolin appeals from a judgment sentencing him to 20 years in prison pursuant to a verdict finding him guilty of attempting to rape his 8-year old niece. See KRS 435.080(2).

The grounds relied upon for reversal are that he was prejudiced (1) by improper cross-examination and (2) by the trial court’s refusal to permit impeachment of certain prosecution witnesses by evidence that they had made prior inconsistent statements.

The defendant was an unmarried man 37 years of age and had been twice convicted of felony. At the time the crime is alleged to have been committed he had no regular employment and was living with his mother. The cross-examination claimed to have been improper and prejudicial is contained in the following excerpt from the transcript :

Q- “Now, what do you do for a living?”
A- “Well, I work at a sawmill a little bit.”
Q- “When was the last job you had?”
A— “It’s been three months ago, I guess.”
Q- “What did you do for a living the last three months ? Just living there on Ma?”
A- “I stay with Ma.”
Q- “Ma feed you?”
A- “Yes.”
Q- “Ma clothe you?”
MR. CAYLOR: “Object to that line of testimony. He is merely harassing the witness.”
THE COURT: “Overruled. He may go ahead.”
Q- “How long did you work in the sawmills ?”
A- “I don’t know. I worked different times.”
Q- “How long has it been since you worked a month straight for anybody?”
A- “Well, I wouldn’t know.”
Q- “Never have, have you, James?”
A- “Why sure I have.”
Q- “Have you ever been married?”
At “No, I haven’t.”
Q- “Got any family?”
A- “No, I haven’t.” '
Q- “How much did you work during the 1965 for anybody?”
MR. CAYLOR: “Objection.”
THE COURT: “Yes, sustained.”
Q- “Were you ever regularly employed as much as two months during the year 1965?”
MR. CAYLOR: “Objection. Your Hon- or, you ruled on it.”
THE COURT: “He may answer.”
A- “That’s this year. No, sir, I haven’t — I swear I don’t know.”
Q- “You just sort of laid around down there on your mother, didn’t you ?”
MR. CAYLOR: “Objection.”
THE COURT: “Overruled.”
A- “(No answer).”

Each of the decisions cited in support of the argument on this point is distinguishable on the facts and in principle. In Owens v. Commonwealth, 207 Ky. 579, 269 S.W. 542 (1925), Hurst v. Commonwealth, 212 Ky. 39, 278 S.W. 166 (1925), Keith v. Commonwealth, Ky., 251 S.W.2d 850 (1952), Cook v. Commonwealth, Ky., 379 S.W.2d 228 (1964), and Warren v. Commonwealth, Ky., 256 S.W.2d 368 (1958), the information elicited was held prejudicial because (among other reasons) it disclosed or tended to show that the defendant was guilty of other crimes. In Shirley v. Commonwealth, Ky., 378 S.W.2d 816 (1964), the possibly prejudicial effect of an unresponsive answer by the prosecuting witness stating that he had seen the defendant at a public park “when he cut a soldier,” which at least suggested though it did not show the commission of another crime (and was irrelevant in any event), was held to have been cured by an appropriate admonition from the bench. In Alderson v. Commonwealth, 218 Ky. 591, 291 S.W. 1012 (1927), evidence that the defendant had been “run out of the park on other occasions by the park guard” was held inadmissible, but since the conviction was being reversed on other grounds the court did not say whether its admission alone would have been fatal. Even so, the evidence did suggest the possibility of illegal conduct by the defendant, which is not the case with regard to the matter now before us.

It is true that Bolin’s means of subsistence had no direct bearing on his guilt or innocence of the charge on which he was being tried. It is true also that the jury in any case is likely to be preju-dicially affected by knowledge of facts from which it may or will infer that the defendant is a shiftless bum. But prejudicial or no, a certain amount of background information is relevant, proper and admissible. For example, had it been the case that Bolin was a steady, hard-working man and the main support of a widowed mother he would have insisted on the right to prove it, his counsel would have wrung the subject dry, and we would have to say it was all right.

“The witness’ occupation has always been deemed, from time immemorial, a proper subject of inquiry, usually on his direct examination, sometimes on his cross-examination. Its bearing is multiple; it may bear upon his bias, his interest, or his moral character, or upon other traits; that it is always relevant, is indubitable * * * ” 3 Wigmore on Evidence § 949, at 504 (3d ed. 1940).

This very question was discussed at length in Warren v. Commonwealth, 99 Ky. 370, 35 S.W. 1028, 1029, 18 Ky.Law R. 141 (1896), and what was said there is disposi-tive here.

The appellant’s remaining contention, that he was denied the right to prove prior contradictory statements by the prosecuting witness and her mother, is not supported by the record. In each instance the prior statements were introduced anyway, despite the court’s having sustained an objection the first time the question was asked. The jury had the information.

The judgment is affirmed.

      . As pointed out elsewhere in the same treatise, a defendant’s character (in a criminal case) “is essentially relevant,” though in order to prevent undue prejudice or some other undesirable result, restrictions have been placed on the manner, occasion, and extent of its admissibility in evidence. Cf. 3 Wigmore on Evidence § 52, at 448, 449 (3d ed. 1940).