author: WADDILL, Commissioner.

text:
    INLAND STEEL COMPANY, Appellant, v. Leon MOSBY et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 16, 1962.
    Rebearing Denied April 20, 1962.
    Howard & Francis, Prestonsburg, for appellant.
    C. W. Napier, Jr., Hazard, Cordell H. Martin, Hindman, for appellees.
   WADDILL, Commissioner.

The Inland Steel Company has appealed from a judgment reversing an order of the Workmen’s Compensation Board which dismissed appellee’s claim for compensation benefits based upon disability from silicosis. The only question presented is whether notice was timely under KRS 342.316(2).

Appellee, Leon Mosley, who had worked in the mines of the appellant, Inland Steel Company, for approximately thirty years, was discharged on June 27, 1957, when appellant reduced its working force at its mine. During February, 1958, he obtained temporary employment in a restaurant but was released when a required physical examination disclosed that he had contracted silicosis. Within sixty days thereafter he notified appellant of this diagnosis and of his intention to seek compensation for disability resulting from the disease.

When the parties failed in their attempt to negotiate a settlement of appellee’s claim, he filed an application with the Compensation Board on June 12, 1958, seeking compensation benefits against appellant. Upon a hearing appellant introduced testimony tending to show that appellee had been advised in November, 1956, that he had silicosis. Appellant urges that appellee’s failure to give it notice at that time supports the Board’s dismissal of appellee’s claim for failure to give timely notice under KRS 342.316(2). However, there was testimony that appellee was physically able to perform his duties satisfactorily while employed by appellant and did so perform them. Therefore, it is contended by ap-pellee that he was not required to give notice until he was disabled. úSuch was the conclusion of the circuit court.

The notice requirement of KRS 342.316 (2) is notice of disability from an occupational disease rather than notice of the contraction of such a disease. Inland Steel Co. v. Wallen, Ky., 353 S.W.2d 370; Mary Helen Coal Corp. v. Chitwood, Ky., 351 S.W.2d 167. Therefore, the circuit court correctly concluded that appellee had given timely notice to the appellant of his disability from silicosis and properly remanded the case to the Board for a determination of the merits of the claim.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Harold CLAYPOOLE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 26, 1962.
    Rehearing Denied April 20, 1962.

      D. Bernard Coughlin, Maysville, for appellant.
    John B. Breckinridge, Atty. Gen., Troy D. Savage, Asst. Atty. Gen., for appellee.
   WADDILL, Commissioner.

This is the second appeal of this case. On the former appeal the judgment was reversed because the court erred in permitting the jury to consider incompetent and prejudicial medical testimony concerning the prognosis of the wounded man and the probability of his being able to perform manual labor. Claypoole v. Commonwealth, Ky., 337 S.W.2d 30. Upon retrial appellant was again convicted of maliciously shooting and wounding Leland Edging-ton with the intent to kill, and was sentenced to prison for seven years. KRS 435.170(1).

In seeking a reversal of the conviction it is urged that the court erred: (1) In overruling the motion for a change of venue; (2) in the method of selecting petit jurors; (3) in allowing the Commonwealth to introduce incompetent and prejudicial testimony; (4) in instructing the jury; (5) in allowing prejudicial argument by the Commonwealth’s Attorney; and (6) in excluding the testimony of a certain witness concerning a knife found near the scene of the alleged crime.

In support of the motion for a change of venue there was testimony that the case had received much newspaper and radio publicity, some of which had caused unfavorable comment against appellant, with the result that the prevailing public opinion was so hostile to appellant that he could not obtain a fair trial in Mason County. However, the witnesses who testified in opposition to the motion were also familiar with the state of public opinion in the county and they were of the opinion that appellant could obtain a fair trial in Mason County. Where there is evidence in support and in resistance of the motion the trial judge is vested with a sound discretion in determining the issue and, unless it appears with reasonable certainty there has been abuse of discretion, his decision will not be disturbed. Carnes v. Commonwealth, 306 Ky. 55, 206 S.W.2d 44; Benge v. Commonwealth, 296 Ky. 82, 176 S.W.2d 131.

The publicity given the case was of facts and circumstances which are ordinarily reported by the press and radio in cases of this character. The news articles, which appear as exhibits, do not contain any denunciations of the appellant nor any expressions of an inflammatory nature. These articles merely contained an account of the shooting and a report of the court proceedings in the matter. There are no facts related in these articles which were shown to be erroneous or untrue. During the voir dire examination of the prospective jurors no prejudice against the appellant was developed that was traceable to any unfair publicity given the case. We further observe a jury was promptly selected and accepted by the parties, and that the sentence imposed upon appellant was considerably less than the maximum term the jury was authorized to fix as his punishment. We find no abuse of discretion in overruling the motion for a change of venue and consequently no error was committed by the trial court in this respect. Parsley v. Commonwealth, Ky., 321 S.W.2d 259; Tarrance v. Commonwealth, Ky., 265 S.W.2d 40.

It is contended that certain petit jurors were selected and summoned contrary to law. In considering the procedure employed to obtain petit jurors for the January, 1961 — term of the Mason Circuit Court at which appellant was convicted, it is sufficient to say the record reflects that the trial judge complied with the applicable provisions of KRS, Chapter 29.

It is urged that it was error to permit the jury to hear the testimony of a physician that the victim’s injury could have caused death and to permit the victim to testify that he was hospitalized for 48½ days as a result of the wound. This testimony was competent as it tended to show the seriousness of the injury, which is a factor for the jury to consider in determining the question of whether the injury was inflicted with intent to kill. Claypoole v. Commonwealth (supra). The trial judge’s admonition to the jury as to the purpose of this testimony was sufficient to obviate any possible prejudice to the appellant.

It is contended that appellant was entitled to a directed verdict of acquittal because the evidence was insufficient to support a finding of malice and intent to kill. The fact that the appellant and the victim had quarreled violently shortly before appellant fired two shots at Edgington, one of which caused a serious wound in his hip, is sufficient evidence from which the jury could infer that the shooting was done not only maliciously but also with intent to kill. Taylor v. Commonwealth, Ky., 302 S.W.2d 378; Powell v. Commonwealth, 313 Ky. 532, 233 S.W.2d 113. Moreover malice may ordinarily be inferred from the circumstances, and the use of deadly weapons warrants an inference of malice. Childers v. Commonwealth, 279 Ky. 737, 132 S.W.2d 81. Appellant’s contention that he was entitled to an instruction on assault and battery is unavailing for the reasons given in Claypoole v. Commonwealth, (supra).

Appellant’s counsel objected to the following remarks of the prosecuting attorney during his summation to the jury:

“ * * * I tell you that Harold Claypoole left the Fourth Street Tavern that night with the intention in his mind of hunting down Leland Edging-ton and shooting him like you would a dog. That is what it amounts to and as he lay in the dirt of January Street, with his life blood flowing out of him, he looked up to Harold Clay-poole and asked him not to shoot again.”

The contention that such remarks were made to inflame the jury and were prejudicial is not convincing since there was testimony which justified the simile. Nor do we consider the statement to be inflammatory under the circumstances disclosed by the record. Young v. Commonwealth, Ky., 335 S.W.2d 949; Vincent v. Commonwealth, Ky., 295 S.W.2d 806.

The evidence introduced in behalf of the Commonwealth established that appellant had shot and wounded Leland Edg-ington at approximately 9:30 p. m. on a public street in Maysville. Appellant testified that he shot because Edgington had previously threatened to kill him and was advancing upon him in a hostile manner with something shiny in his hand which he “guessed” to be a knife. In support thereof appellant’s counsel attempted to show by Mrs. Rilla Gilbert that she had found a knife near the place of the shooting about 9:30 the next morning. The trial judge sustained the objections of the Commonwealth’s Attorney and refused to permit her to testify about finding the knife on the grounds that “there was no showing of any knife in the hands of Edgington at the time of the shooting and the fact that the knife was found many hours later on a widely traveled street made the finding of the knife so remote as to remove it from the res gestae rule, and to .render its admission improper.” The judge further observed that the question of whether Mrs. Gilbert’s testimony was competent had been raised on the former appeal of this case and had not merited comment in the written opinion delivered by the Court of Appeals.

In our prior opinion in this case, as it relates to the trial judge’s refusal to permit Mrs. Gilbert to testify, we stated “There are other alleged errors in this record which should not recur in the course of another trial.” The alleged errors included the refusal of the trial judge to permit Mrs. Gilbert to testify because she had violated the order of the trial judge by remaining in the courtroom during the trial. We assumed that this would not happen upon a retrial of the case and, consequently, we did not reach the question of whether Mrs. Gilbert’s testimony about finding the knife was competent.

Although there was testimony to the effect that Edgington was armed with a knife there was no evidence presented as to the ownership of the knife found by Mrs. Gilbert, nor was it established that this knife was the same weapon which appellant claims Edgington possessed during their affray. Nevertheless, we believe appellant’s testimony (although denied by Edgington) entitled him to introduce the testimony of Mrs. Gilbert concerning the knife she found. We recognize that upon somewhat analogous facts Branham v. Commonwealth, 300 Ky. 459, 189 S.W.2d 675, enunciated a contrary rule. However, this rule was relaxed to some extent in Tarrance v. Commonwealth, Ky., 265 S.W.2d 40, and it is now the consensus of the court that the rule expressed in the Branham case is unsound and will no longer be followed although the trial judge cannot be criticized for having adhered to it.

While there is also a serious question as to whether the finding of the knife twelve hours after the shooting was so remote as to render Mrs. Gilbert’s testimony about it incompetent, we have decided that the time element under the circumstances presented does not so impair its probative value as to make it inadmissible as a matter of law. In reaching this conclusion we have resolved the doubt as to its admissibility in appellant’s favor since it lends credence to his claim of self defense. Maxwell v. State, 94 Ga.App. 625, 95 S.W.2d 767. It follows that appellant was entitled to have the jury weigh the probative value of Mrs. Gilbert’s testimony. Although the question is not directly before us, we observe that the evidence in the record does not justify the introduction of the knife found by Mrs. Gilbert as an exhibit under the decision in Hall v. Commonwealth, Ky., 276 S.W.2d 441.

The judgment is reversed, with directions to set it aside and to grant appellant a new trial.

PALMORE and WILLIAMS, JJ., dissenting.


author: MONTGOMERY, Judge.

text:
    Helen HAWKS, Appellant, v. Donald A. WILBERT et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 15, 1961.
    Rehearing Denied March 23, 1962.

      James T. Robertson, Donald R. Pierce, Louisville, for appellant.
    Raymond O. Harmon, Boehl, Stopher, Graves & Deindoerfer, Curtis G. Witten, Louisville, for appellees.
   MONTGOMERY, Judge.

Appellant, Helen Hawks, by her notice of appeal says that she appeals “from the order overruling plaintiff’s motion for a new trial entered * * * on June 30, 1961.”

.'Appellees question the sufficiency of the notice to appeal from a judgment entered April 28, 1961. The motion for a new trial was filed May 1, 1961. The notice of appeal was filed July 13, 1961. Appellees have moved to dismiss the appeal because the order mentioned in the notice of appeal is not a final order and is not appeal-able.

Appellant’s counsel admit the error but insist that the notice given was sufficient to constitute actual notice and that appel-lees were not misled. Reliance is placed on Louisville Taxicab & Transfer Co. v. Tungent’s Adm’r, 313 Ky. 1, 229 S.W.2d 985; Cornett v. Wilder, Ky., 307 S.W.2d 752; and White v. Hardin County Board of Education, Ky., 307 S.W.2d 754. The first authority cited was decided prior to the effective date, July 1, 1953, of the new Rules of Civil Procedure, and is not determinative. In the other two cases, it was held that an order overruling or granting a new trial is not a final order and is not appealable. Actually, in Cornett v. Wilder, the appeal was dismissed for failure to abide by CR 54.02. Thus, none of the authorities cited sustain appellant’s position.

A similar notice was expressly condemned in the White v. Hardin County Board of Education case, decided December 5, 1957. See also Spears v. Burchett, Ky., 289 S.W.2d 731; Hardin v. Waddell, Ky., 316 S.W.2d 367. While holding that the notice of appeal was from an order not appealable, the Court permitted the appeal in the White case as being a substantial compliance. The assigned reason for so doing was the confusion and lack of knowledge on the part of the legal profession on this point. The reason for the decision in the White case has ceased to exist. What was said then in condemnation of such notice is equally applicable here.

In considering this and similar failures of counsel to follow the rules of appellate practice, the Court is confronted with many hard decisions. The choice presented is whether it is better to adhere strictly to the rules with some seemingly harsh decisions resulting, or to permit a substantial compliance when no prejudice is shown to have been occasioned by the dereliction. This problem has plagued the Court many times. However, rather than having to decide whether each dereliction is prejudicial, the Court has adopted the policy of strict compliance in the belief that the legal profession should by now be adequately informed on these rules. The necessity of strict compliance and the supporting reasons have been thoroughly discussed in the White case and in United Mine Workers of America, Dist. No. 23 v. Morris, Ky., 307 S.W.2d 763, also decided December 5, 1957. See also Electric Plant Board v. Stephens, Ky., 273 S.W.2d 817; Commonwealth v. Black, Ky., 329 S.W.2d 192. Hence, the Court feels there is no reason to discuss the matter further or to depart from its policy of strict compliance.

The motion to dismiss the appeal is sustained, and the appeal is dismissed.


author: PER CURIAM.

text:
    Arnold MARCUM, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 23, 1962.
    Joe E. Caylor, Somerset, for appellant.
    John B. Breckinridge, Atty. Gen., William F. Simpson, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This is a motion for an appeal from a judgment of conviction for having in unlawful possession intoxicating beverages for the purpose of sale in local option territory. Appellant was fined $100 and given 60 days in jail.

We have carefully considered the grounds urged for reversal of the judgment and conclude under the facts presented that they are without merit.

Wherefore, the motion is overruled and the judgment is affirmed.


author: PALMORE, Judge.

text:
    John C. WATTS, Appellant, v. Henry H. CARTER, Appellee.
    Court of Appeals of Kentucky.
    March 23, 1962.
    Louis Cox, John Hopkins, Frankfort, Bradford T. Garrison, Nicholasville, for appellant.

      John B. Breckinridge, Atty. Gen., H. N. McTyeire, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

This is a declaratory judgment action testing the validity of the 1962 Congressional redistricting act of the General Assembly, House Bill 443. The circuit court held it valid.

The population represented by the seven districts created by the act varies from 350,-839 in the First (including 20 counties) to 610,947 in the Third (consisting of Jefferson County alone). The configuration of one of the districts, the Fourth, is described in appellant’s brief as “a geographic monstrosity resembling a goose with its head in the urban counties of Grant [Boone ?], Campbell and Kenton and its long neck stretched along the [Ohio] river counties with its body comprised of the rural areas of South-Central Kentucky.” For these reasons it is submitted that the act is arbitrary and in violation of § 6 of the Constitution of this state, which reads: “All elections shall be free and equal.” That is the only question raised.

In enacting this legislation the General Assembly undoubtedly relied on the precedent established by Watts v. O’Connell, Ky.1952, 247 S.W.2d 531, in which case the same objections had been asserted against the 1952 redistricting act. The population spread in that instance ranged from 304,978 to 484,615, as compared with 350,839 to 610,947 in this, but the principles governing the two cases are the same, and we cannot reach a different conclusion today without overruling Watts v. O’Connell and plunging the choice of members for the House of Representatives into a state-wide scramble.

In Colegrove v. Green, 1946, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432, the United States Supreme Court, considering the federal questions posed by disparities in contour and population of Congressional districts, took the position that the problem was not a proper subject of judicial intervention and commented, in the majority opinion of Mr. Justice Frankfurter, that the “remedy for unfairness in districting is to secure State legislatures that will apportion properly, or to invoke the ample powers of Congress.” Whether that will continue to be the attitude of the Supreme Court is not free of doubt. In a forceful dissent Mr. Justice Black, joined by two other members of the court, argued that the failure of a state legislature “to bring about approximately equal representation of citizens in Congress” amounted to a denial of equal protection of the laws. We take cognizance that the Siamese twin of this problem, the question of fair and proper apportionment of state legislative representation, is now under consideration by the Supreme Court in the case of Baker v. Carr, D.C.M.D. Tenn., 1959, 179 F.Supp. 824, probable jurisdiction noted 364 U.S. 898, 81 S.Ct. 230, 5 L.Ed.2d 193.

In Watts v. O’Connell, supra, this court carefully refrained from suggesting that it would not declare an unfair and unequal Congressional apportionment to be unconstitutional. To the contrary, it is the duty of the legislature to recognize that a disproportionate representation, whether it results from population changes or from new legislation, can be so flagrant and unwarranted that the duty of the courts to uphold the constitutional rights of equality under the law will override their traditional reluctance to enter the political thicket.

In this case our most serious concern centers on the situation of the Third District, with a population of 610,947 as against 463,275 in the next most populous district, the Seventh, and 350,839 in the least populous, the First. Considering, however, the special problems and disadvantages inherent in splitting up a single densely-populated county and grafting a slice of it onto another and dissimilar district, we are unable to say that the solution chosen by the legislature was clearly arbitrary and unreasonable.

With respect to the Fourth District, we find no constitutional violation in the combination of urban with rural counties. Since Boone, Campbell and Kenton Counties did not have an aggregate population sufficient to qualify as a district to themselves it was unavoidable that they be joined with a number of rural counties anyway, so it was simply a question of which ones, and that was a matter of legislative choice and prerogative. As to the shape of the new district, compactness was formerly, but is no longer, a statutory requirement imposed by Congress. See Watts v. O’Connell, supra, and authorities there cited. We cannot hold that the legislative discretion in this regard is limited by considerations purely esthetic.

Judgment affirmed.


author: WILLIAMS, Judge.

text:
    Wm. H. FARLER et al., Citizens and Taxpayers of Perry County, Kentucky et al., Appellants, v. PERRY COUNTY BOARD OF EDUCATION et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 8, 1961.
    Rehearing Denied April 20, 1962.

      Jesse K. Lewis, Lexington, for appellants.
    Harold Garland Wells, Maxwell P. Bar-ret, Willis W. Reeves, W. M. Melton, H. B. Noble, C. A. Noble, Sr., Don A. Ward, Hazard, G. C. Wilson, Hazard, James Mi-niard, Lexington, Richard D. Cooper, Hazard, Woodward, Hobson & Fulton, R. I. McIntosh, Ed P. Jackson, Louisville, A. E. Funk, Jr., Middlesboro, B. E. Mullins, Paintsville, Hazelrigg & Cox, Frankfort, Hiram Brock, Jr., Harlan, John L. Davis, Stoll, Keenon & Park, Elwood Rosenbaum, Lexington, for appellees.
   WILLIAMS, Judge.

The appellants, William H. Farler and Wiley Adams, brought this action as taxpayers for and on behalf of all affected taxpayers and the Perry County School Board. Named as defendants were the Perry County Board of Education, past and present members of the Board, past and present treasurers of the Board, and approximately 40 other individuals and firms. Complaint was that the Board had made unlawful expenditures of school funds, had created an indebtedness in excess of the total income without consent of the voters of the district, had exceeded the school budget, et cetera. Judgment was demanded against the officials who had performed the alleged unlawful acts and against the individuals and firms who had lent money or furnished supplies to the Board. A motion to dismiss was sustained by the circuit court; hence this appeal.

We are concerned with the order sustaining the motion to dismiss, wherein Special Judge W. L. Rose said:

“The Court’s primary motivation in sustaining the motion to dismiss is the fact that no demand has been made, nor do the pleadings allege that any demand has been made either upon the Board as it was constituted in 1958 during the alleged wrongful and unlawful and unauthorized acts, nor do the pleadings claim or raise the question that such demand or even notice was made to the Board as presently constituted. In fact, the pleadings disclose that there was a different School Superintendent in 1959 and two different Board members beginning in 1959 and the pleadings disclose no demand being made, either formally or informally, upon either Board, which in the Court’s opinion is fatal in a suit maintained as a class action by two or more taxpayers.
“ ‘Mere inaction on the part of those whose primary duty it is to bring a suit for county cannot relieve interested taxpayers from making a demand upon them before seeking to bring suit on behalf of the county.’ Upton v. Whitley County, [310] Ky. [174], 220 S.W.2d 375. Also, Cooley, et al. v. A. B. Meade [Sturgill], Ky., 293 S.W.2d 634.
“Although affidavits of various members of the Board of Education are cited in support of the motion, the Court does not feel called upon to comment thereon since this question is not raised in the issue due to plaintiffs having failed to allege that demand was made upon either Board.
“The Court, in sustaining the motion and overruling the objection to the motion and in dismissing this action for lack of capacity to maintain it, is well aware of the exception to the rule as cited in plaintiffs’ brief that where it would be ‘clearly futile’ or where the persons to be sued have committed acts that constituted a charge against them.
“However, since the Court must decide between the two questions and he feels that the necessity of making demand far outweighs any presumption that he could draw that these defendants on the School Board would not file the suit if demand were made upon them so to do.”

The complaint did not allege that demand to bring the action had been made upon the Board or that it would have been futile to make such demand. After the order dismissing the complaint had been entered a motion for leave to amend and plead futility of demand was overruled by the circuit court. The issue was considered as if futility of demand had been pleaded, and the complaint was dismissed for lack of capacity to sue. Under the circumstances an amended complaint would have served no purpose. Appellants maintain that lack of capacity to sue may not be raised under CR 12.02, but we note that under CR 9.01 the issue of capacity to sue may be raised by negative averment. The motion made here did raise the issue and was so construed by the circuit court. The presentation of that question may be made by preliminary motion prior to a responsive pleading on the merits. See Clay, CR 9.01, Comment 3.

The rule is that an individual has no standing to institute an action on behalf of those whose primary duty it is to bring it until demand is made and refused. The exception to the rule is that demand will not be required where it would be futile. Upton v. Whitley County, 310 Ky. 174, 220 S.W.2d 375. It was the primary duty of the Board to institute this action. In Reeves v. Jefferson County, Ky., 245 S.W.2d 606, 608, it was said:

“ * * * Likewise, our statutes, KRS 160.160, 160.290, place upon the boards of education, not the taxpayers, the initial responsibility of maintaining legal actions on behalf of the school districts. Furthermore, this court refuses to permit a taxpayer to bring suit in a matter concerning public funds until he has first requested the authorized school board, county or other public body to institute such action and the official body has refused to comply. Commonwealth, by and through Barton v. Mauney, 1935, 258 Ky. 429, 80 S.W.2d 568, and cases cited therein.”

Appellants argue that taxpayers have the right to institute an action such as was brought in this case. Many cases are cited which hold that taxpayers have the right to institute actions under many and varied circumstances. However, the question before us now is not whether these taxpayers have a right to maintain this action but whether these taxpayers have exhausted the necessary prerequisites which permit them to file this suit. That it was the primary duty of the Board to institute this action has been pointed out in Reeves v. Jefferson County, supra. No demand having been made on the Board to bring this suit, it must be clearly shown that such demand would have been futile. Appellants state that some of the members of the past Board are on the present Board, and, as a consequence, it would be tantamount to demanding that they sue themselves. The appellants have sued not only the present and past members of the Board, but also the present and past treasurers of the Board, the bonding companies, the banks from which money was borrowed, the corporation from which typewriters were purchased, the supply houses from which supplies were procured, and many others. If there is a cause of action against one or more of these appellees, exclusive of the members of the Board, then it cannot be said that the Board members would be suing themselves if action were taken against the others. But, beyond that, the Board must be given the opportunity to initiate action concerning public funds unless it is convincingly shown that such action would not have been taken. In Bennett v. Whitley County, Ky., 243 S.W.2d 54, a taxpayer brought suit to recover certain sums alleged to have been illegally paid out by the fiscal court. The petition also alleged that demand on the fiscal court would have been futile. At the time the action was brought the members of the fiscal court were the same members who had authorized the payments, and it was held that that was not a sufficient reason to excuse the failure to make demand on them. And in Upton v. Whitley County, supra, it was held that mere inaction on the part of those whose primary duty it is to bring suit cannot relieve the interested taxpayer from making a demand, for inaction is the very evil sought to be remedied by the requirement of demand.

If any of the appellees are guilty of fraudulently, unlawfully and unconstitutionally depriving the Perry County School District of its monies, they should be required to make restitution. However, there must be orderly procedure. Judge Thomas pointed out in Williams v. Stallard, 185 Ky. 10, 213 S.W. 197, 199:

“ * * * The opinions hold that, while a citizen and taxpayer is directly interested in such matters, he cannot start the machinery of the courts in motion upon his own initiative, unless some officer or agency of the county, whose primary duty it is to do so upon request, has declined; that while the efforts of the citizen and taxpayer to see that the public funds of the county are not misappropriated and squandered is to be encouraged and commended (Fox v. Lantrip, 169 Ky. 759, 185 S.W. 136), still it is better that, before the courts will recognize such efforts of the citizen and taxpayer, by upholding a suit or proceeding instituted by him, it should be made to appear that the one whose primary duty to do so upon request has declined. Any other rule would open the door of the courts to any overofficious citizen who might be dissatisfied with some lawful action of the fiscal court, or who might entertain a personal grievance or grudge against some member thereof, or against some officer or person affected, however groundless, to file unwarranted suits, resulting in an unnecessary loss of time to the officers of the county and also to the courts in disposing of the cases. It would also result in lending encouragement to one who is not vested with duties or discretion in such matters to' substitute his judgment and discretion for that of those to whom the law has confided them.”

The special circuit judge properly refused to presume that the Board would not have brought suit had demand been made.

Judgment affirmed.


author: CULLEN, Commissioner.

text:
    Mrs. Arthur BACH, Appellant, v. G. Frank VAUGHN, Jr., et al., Appellees.
    Court of Appeals of Kentucky.
    March 23, 1962.

      Lawrence C. Jenkins and William S. Black, Lexington, for appellant.
    Joseph L. Arnold, Lexington, for appel-lees.
   CULLEN, Commissioner.

During a nine-year period, from 1944 to 1953, the James H. Alexander farm and the Arthur Bach farm were supplied with water of the Lexington Water Company from .a line that crossed the farm of G. Frank Vaughn and extended through the Alexander and Bach farms. For the first seven years of that period W. S. Rogers also received water from an extension of the line into his farm. There were meters at the points of entrance of the line to each farm but except for one reading in 1946 the meters at the points of entrance to the Bach and Rogers farms were never read.

Pursuant to a somewhat loose understanding with his neighbors that they would reimburse him for the water used by them, Vaughn paid the water company for all the water used by all four farms during the nine-year period. After the meter readings were made in 1946 Bach and Rogers paid Vaughn the amounts they owed according to the meter readings, but Alexander refused to pay, claiming that the meters inaccurately showed a use of water by him far in excess of his actual use. Thereafter, until new water lines were installed in 1953, none of his three neighbors paid Vaughn anything, although from time to time each expressed a willingness to pay the amount properly determined to be owed by him.

Finally; in 1957, Vaughn brought this action against Alexander, Rogers, and Mrs. Bach (Mr. Bach had died in 1952). Pursuant to the report and recommendations of a trial commissioner who heard extensive proof, judgment was entered against Alexander for $916.83, against Rogers for $770.-21, and against Mrs. Bach for $4370.99. Alexander and Rogers paid the amounts adjudged against them, but Mrs. Bach was dissatisfied and has appealed.

Mrs. Bach’s first contention is thal the water debt was that of her husband, and since there was no allegation or proof that she had inherited any assets from him she could not be held liable for the debt. It appears that this contention is in the nature of an afterthought because the record clearly reflects that up until the time in the lawsuit when the commissioner’s report was filed all of the defendants were taking the position that the plaintiff had a just claim for the total amount he had paid the water company and the only question was the proper apportionment of the debt among the three defendants. None of the defendants pleaded the statute of limitations although it appears that the statute would have been a bar to the major portion of the plaintiff’s claim. The record indicates that the parties had proceeded on the basis that no technical defenses would be asserted.

Apart from the fact that the issues in the case seem to have been confined by tacit agreement to the single question of how to apportion the water bill, we think the evidence warrants the conclusion that the debt for water used on the Bach farm was just as much Mrs. Bach’s as it was her husband’s. The evidence indicates that Mrs. Bach was at least a part owner of the farm during the period in question, because her testimony was that “we” bought the farm, “we” ran a dairy, etc. Furthermore, she testified that she had always expected and intended to pay for whatever water the meter showed was used on the Bach farm. In our opinion the circuit court correctly adjudged a personal liability on the part of Mrs. Bach.

The second contention of Mrs. Bach is that the evidence was not sufficient to support a specific finding as to the amount of water used on the Bach farm. We have read all of the evidence and we think it is sufficient. Of course the circumstances were such that absolute accuracy in number of gallons could not be achieved. But the evidence furnished a reasonably satisfactory basis for estimating the amounts of water used on the Alexander and Rogers, farms, thus enabling an approximation to be made, by process of elimination, of the amount used on the Bach farm. There was substantial evidence as to the extent of the water-using operations and activities on the Bach farm. Also there was evidence that the Bach farm received some water through a pipe that bypassed the meter at the entrance to the farm, so that the meter reading taken in 1946 could not be considered an accurate basis either for measuring use prior to that time or for estimating subsequent use.

As hereinbefore stated, the Bachs paid, in 1946, the amount owed by them according to the 1946 meter reading. However, in the judgment in the instant action Mrs. Bach was charged with a portion of the amount that the meter reading indicated was chargeable to Alexander. This was on the basis that the meter reading was inaccurate because some of the water shown by the meters to have been used on the Alexander farm actually was used on the Bach farm, by reason of the fact that one pipe serving the Bach farm bypassed the meter. Mrs. Bach contends that the payment made by the Bachs in 1946 constituted a settlement of accounts as of that date. We think the answer to this is that the evidence does not establish that there was any agreement to settle on the basis of the meter readings alone. The Bachs and Rogers knew that Alexander was protesting the amounts shown by the meter readings, and they knew that Vaughn expected to be paid by someone for all of the water used on the three farms. It is not reasonably to be considered that the parties intended the meter readings to be treated as conclusive in the face of a showing that they were incorrect. The agreement between the parties was a gentlemen’s agreement between friendly neighbors, and it is clear that each intended to do what was right.

The judgment is affirmed.


author: STEWART, Chief Justice.

text:
    UNITED FUEL GAS COMPANY, Appellant, v. Jack JUDE, Appellee.
    Court of Appeals of Kentucky.
    Feb. 2, 1962.
    Rehearing Denied April 20, 1962.

      J. K. Wells, Paintsville, C. E. Goodwin, Charleston, W. Va., for appellant.
    Clyde Miller, Louisa, for appellee.
   STEWART, Chief Justice.

This appeal questions the judgment of the lower court in cancelling an oil and gas lease as to the interest therein of appellee, Jack Jude.

The parents of appellee owned a tract of land in Martin County, and by deeds dated September 20, 1942, the land was divided by them among their children. Appellee, a son, was given 30 acres, with the oil and gas rights reserved to his parents during their lifetime. On March 8, 1950, an oil and gas lease was executed to appellant, United Fuel Gas Company, by appel-lee’s mother (the father being then deceased) and by some of the children, but not by appellee.

Buddy Stepp, appellant’s local agent who was instructed to contact the various members of the family and secure their names to the lease, was uncertain whether the children were necessary parties to the lease and, when he went to appellee’s home for his signature and found he was out of the state, he had appellee’s son, Nathan, sign his father’s name to the document. Stepp then certified as a notary public that the lease was executed and acknowledged before him by appellee.

In the fall of 1951, appellant brought in a producing well on appellee’s 30-acre tract. During the boring of the well, appellee worked for the contractor employed by appellant to drill it and made no objection to the performance of this work. After gas was found he commenced taking it for use in his home. When some six months later, appellant attempted to turn gas from the well into its transmission line for marketing purposes, appellant intervened, claiming exclusive ownership of the well. Appellant thereupon filed suit and obtained a restraining order to prohibit his interference with its operation. Appel-lee answered, setting up his title to the oil and gas, subject to his mother’s life estate, and counterclaiming for damages of $1500 for gas already removed and for injury done to his farm in making the entry thereon and in drilling the well. No proof was introduced as to damages because appellee asserted he should have a jury trial to determine such a demand.

The judgment refused to grant injunc-tive relief and ordered the lease set aside as to appellee. The judgment recited it was final as to these two holdings, thereby conforming to the requirements of CR 54.02.

It has been appellant’s position throughout this litigation that appellee, although he knew he was not bound, affirmed the lease contract by accepting certain benefits derived from the digging of a producing well on his land; and, furthermore, that he, with full knowledge that he was free to repudiate the lease, stood by without asserting his right in this respect or without even voicing any objection while appellant, acting in good faith on such apparent acquiescence, incurred large expenditures of money which will be wholly or partially lost if his claim is upheld. This contention is based upon the principle of equitable estoppel.

The trial court’s ruling upheld appellee’s theory of the case, namely, that appellant was prevented from relying on estoppel for the reason that its agent’s knowledge of the latent infirmity in the lease was imputed to it. It was argued below and is maintained here that appellant, knowing full well the defect in the lease contract, should be made to suffer the consequences because it voluntarily undertook to perform and did consummate an unauthorized act.

The evidence discloses Stepp, whatever his reason for withholding such information may have been, did not reveal to appellant that appellee had failed to execute the lease, with the result that in point of fact appellant drilled on the tract under the assumption it had obtained full power to do so. However, a principal is affected with constructive notice of all the material facts of which his agent received or acquired knowledge while acting in the course of his employment and in reference to a matter over which his authority extended, even though the agent may fail to inform his principal thereof. See 2 Am.Jur., sec. 368, p. 286-288; Wilson Gas Utilities Corporation v. Baker, 276 Ky. 368, 124 S.W.2d 489. On the other hand a reading of appellee’s own testimony leaves no doubt in our minds but that he knew appellant had no right to drill on the property without first acquiring his interest in the tract; therefore, we are prompted to conclude the trial court’s finding was erroneous when it stated that appellee did not appear to be informed of appellant’s lack of authority to drill.

In Virginia Iron, Coal & Coke Co. v. Campbell, 105 S.W. 129, 32 Ky.Law Rep. 40, it was held that constructive notice does not necessarily prevent a party from relying on estoppel. In that case the father, John Campbell, sold one-half of 500 acres to his son, J. G. Campbell, and in the deed of conveyance, recorded on the same day, there was neither a reservation of the minerals nor any reference made thereto. On the next day, one Horsley, an agent, purchased and paid for the mineral interest for a remote vendor of the Virginia Iron, Coal & Coke Co. John Campbell, the father, conveyed the minerals in the whole tract to Horsley’s principal for an agreed price. J. G. Campbell, the son, received the check for the sale, his father then being absent, and made no mention of his ownership of a part of the tract. After-wards he made claim to a one-half portion of the minerals against the Virginia Iron, Coal & Coke Co., testifying that, although he received the check as the consideration for the conveyance in question, he merely accepted it for his father. This Court ruled the Virginia Iron, Coal & Coke Co. could not be divested of the ownership of the minerals, setting forth this reason:

“It is true in law that the purchaser had constructive notice of the lodging’ of this deed for record; but appellee knew that Horsley, the agent, by his conduct in paying for the mineral interest, did not have actual knowledge of that fact, or he would not have paid for it, knowing that the interest belonged to a person other than John Campbell (the father). The conduct of appellee (J. G. Campbell) in the matter operated as an actual fraud upon appellant’s remote vendor.”

In Fischer v. James A. Diskin Co. (James A. Diskin Co. v. City of Fort Thomas), 247 Ky. 694, 57 S.W.2d 538, (consolidated cases), the property owners stood by and made no protest, until long after the work had been completed, while the city’s contractor built a sewer line across their property. This litigation was instituted to subject this same property to the satisfaction of an apportionment warrant and the suit was resisted on the ground that the city did not have title to the land on which the public improvement was placed. The property owners were held to be estopped to claim the city and the contractor had no right to build the sewer across the land, although the latter had constructive notice a right of way had not been acquired. This Court said:

“It is a plain principle that if one having a right and seeing another about to invade it stands by in such a way as to induce the one doing the act to believe that he consents to the invasion •of that right, when otherwise such person might have refrained from doing so, he is estopped from complaining •of it.”

In Blackburn v. Piney Oil & Gas Co., 278 Ky. 191, 128 S.W.2d 192, where the •owner of land acquiesced in the drilling by the oil and gas company (the lessee of the grantee) of a gas well at considerable expense on that portion of the land which was excepted from a deed conveying the mineral rights, the landowner was held to be estopped to thereafter complain. In that case, this Court determined that, although the oil and gas company had constructive notice of the exception in the deed, when the landowner consented for the oil company to drill on this location it was justified in thinking he had waived the exception in the mineral deed.

The evidence shows that appellee’s only •objection to the lease was the amount of the delay rentals, which payments ceased when the well was brought in and which belonged to his mother as life tenant, in any event. His mother was satisfied with ■and executed the lease and as a practical matter appellee could not lease to anyone ■without her joining in. Even if the judgment had been adverse to him, he would still have had all that he could have reasonably hoped for at this time. Yet, if he 'had actually been dissatisfied with the contract, he should have made known his discontent when appellant first moved on the location; and if he had protested, appellant unquestionably would have given up the lease and moved its equipment. Thus ■appellee would have been restored to his ^original position, with his gas not leased, and appellant would have suffered only a minimal loss.

It appears to us it would be unconscionable to permit appellee to remain silent while appellant invested its money in the drilling venture, to watch and wait until a producing well was brought in and then to renounce the contract he was supposedly a party to and claim the fruits of appellant’s labor and capital. Where a party has the right to disavow, he can not delay the exercise of the right to determine whether avoidance or affirmance of an act would be more profitable to him. This is particularly true where the transaction is one of a speculative nature. See Restatement of Contracts, Vol. 2, secs. 483, 484; Twin Lick Oil Co. v. Marbury, 91 U.S. 587, 23 L.Ed. 328.

Wherefore, the judgment is reversed with directions that a new one be entered upholding appellant’s oil and gas rights under its lease to appellee’s 30-acre tract.


author: MONTGOMERY, Judge. BIRD, Judge PALMORE, Judge

text:
    W. L. GEARHART et al., Appellants, v. KENTUCKY STATE BOARD OF EDUCATION et al., Appellees.
    Court of Appeals of Kentucky.
    March 2, 1962.
    Rehearing Denied April 20, 1962.

      Ben B. Fowler, Dailey & Fowler, Frankfort, Ora F. Duval, Olive Hill, for appellants.
    John B. Breckinridge, Atty. Gen., Ray Corns, Asst. Atty. Gen., for appellees.
   MONTGOMERY, Judge.

The authority of the State Board of Education to oust the members of a county board of education is questioned on this appeal. The orders of removal and of appointment of new members were upheld by the circuit court.

On February 11, 1961, Wendell P. Butler, Superintendent of Public Instruction, preferred charges against the individual members of the Carter County Board of Education. Each member was charged with being guilty of immorality, misconduct in office, incompetency or willful neglect of duty, based on a report of the Auditor of Public Accounts as checked by the Superintendent’s staff in cooperation with the Attorney General.

The hearings on the charges continued for more than three months. During the course of the hearings, Henry Hall and Coy Kouns resigned as members of the county board. Later, Chester DeHart resigned. They were replaced by Estill Cau-dill, Joyce Edwin Gearhart, and Ruby Click, also referred to as Mrs. Curtis Click. Joyce Edwin Gearhart later was replaced by Nell James. All appointments were made by the county board. W. L. Gear-hart and J. H. McGlone remained as the only elected board members. Excepting Joyce Edwin Gearhart, the last five named members constitute the appellants.

On August 3, 1961, the Honorable James W. Stites, a former member of this Court, was appointed as special commissioner for the State Board and the Superintendent to investigate, to hear evidence, and to report his findings of fact and recommendations on the charges. The gist of the Stites report is that the members of the Carter County Board of Education had failed by inaction to correct the irregularities charged to such board and its county superintendent, Hernán H. McGuire. One course of action recommended in the Stites report was the removal of the entire county board pursuant to KRS 156.210(3).

On September 7, 1961, an order of the State Board was issued to each of the Carter County Board members by which each of them was directed to show cause within ten days why he or she should not be removed from office “in order to rectify and regulate the matters of mismanagement, misconduct, violation of law or wrongful or improper use of district or state school funds and neglect in the performance of duties imposed upon you and each of you by law.” A copy of the Stites report was attached. See KRS 156.110. They were directed to respond by September 18, 1961.

W. L. Gearhart,' J. H. McGlone, Estill Caudill, and Ruby Click responded on September 16, 1961. By their response, the authority to take the action suggested was questioned by the four named board members.

On September 20, 1961, the State Board ordered that W. L. Gearhart, Joyce Edwin Gearhart, J. H. McGlone, Mrs. Curtis (Ruby) Click, Estill Caudill, and Nell James “be and they are, and each of them individually and as a Board of Education, are removed as a Board and from their respective offices as Members of the Carter County Board of Education * * Five new board members were appointed in the same order.

Joyce Edwin Gearhart tendered his resignation on September 18, 1961. From the record it appears to be conceded that Nell James was appointed and took the oath of office to fill such vacancy on September 19, 1961. The rule is that the resignation of a public officer, in the absence of statute, does not become effective until accepted by the proper authority or by equivalent action, such as the appointment of a successor. Commonwealth ex rel. Wooton v. Berninger, 255 Ky. 451, 74 S.W.2d 932, 95 A.L.R. 213; Daniels v. Adams, 314 Ky. 258, 234 S.W.2d 742. Gearhart’s resignation became effective when Nell James qualified. KRS 160.180 (1) (f). See Frederick v. Combs, Ky., 354 S.W.2d 506, on subsequent consequences.

This action was filed by the ousted board members, excepting Joyce Edwin Gearhart, against the Kentucky State Board of Education and the five persons named in the order as new board members. The validity of the action taken by the State Board was questioned and injunctive relief was sought.

It is charged that the action of the State Board was designed to remove the entire county board and to seize the appointive power which appellants contend is specifically conferred on the local board. The determination of the controversy depends on the construction of the statutory powers of the Superintendent of Public Instruction, the State Board, and the county board. Four statutes are primarily involved: KRS 156.070, 156.110, 156.210, and 160.190.

These statutes are the backbone of the control exercised by the State Board over the common schools. KRS 156.070 provides that the State Board “shall have the management and control of the common schools.” KRS 156.110(1) provides that the State Board “shall remove any school board member * * * from office for immorality, misconduct in office, incompetency or willful neglect of duty.” By subsection (2) it is made the duty of the Superintendent to recommend such removal. Any vacancies caused thereby are to be filled in the manner provided by law. See KRS 160.190. This statute originally read, “For the purpose of enforcing the provisions of this act,” referring to Chapter 113 governing Common Schools. See Carroll’s Kentucky Statutes, Section 4377-13. By KRS 156.210, the Superintendent or his assistants are required to .report “any mismanagement, misconduct, violation of law or wrongful or improper use of any district or state school fund, or neglect in the performance of duty on the part of any official.” It then becomes the Superintendent’s duty under the statute to report such violation to the appropriate officials for prosecution,. The statute concludes with this grant of authority, to-wit: “If prosecution is not warrantable, the State Board of Education may rectify and regulate all such matters.”

These four statutes contain the grant of authority and means of control provided by the General Assembly for the control of the common schools by the State Board. This common purpose entwines them. These statutes are pari materia. They must be construed together and effect must be given to each part thereof when possible. Brooks v. Meyers, Ky., 279 S.W.2d 764; Boyd v. Alexander, Ky., 284 S.W.2d 85; and Economy Optical Company v. Kentucky Board of Optometric Examiners, Ky., 310 S.W.2d 783.

When so construed, it is clear that the General Assembly intended that the State Board should have control over the common schools, with the power of removal of such board members who might be found guilty of specified charges. This is a means of maintaining a uniform system of schools. KRS 158.010.

An examination of the steps taken prior to the removal indicates that the inquiry was initiated by recommendation of the Superintendent under KRS 156.110. The show cause order of September 7, 1961, with a copy of the Stites report containing the charges, fully complies with the requirements of KRS 156.110(1). Each ousted member was given the full period of notice required, and response was filed by each. The ouster was ordered after consideration of the evidence and the responses by the State Board. The responses filed and the argument on this appeal do not question the factual foundation on which the charges were preferred. Appellants have been content to question only the statutory authority to oust. It, therefore, is concluded that the Board proceeded properly according to the pertinent statutes in removing W. L. Gearhart, J. H. McGlone, Mrs. Curtis (Ruby) Click, and Estill Cau-dill from office as members of the Carter County Board of Education.

It is argued that the removal order was an improper and unauthorized exercise of the authority to “rectify” contained in KRS 156.210(3). Removal under this statute was recommended in the Stites report. Pprior to the giving of the show cause notice by the Board on September 7, 1961, the Superintendent had given the notice required by KRS 156.210(3) to the proper authorities in order that prosecution might be initiated. Two sessions of the Carter County grand jury took no action. Under the statute, it then became the duty of the State Board to rectify the situation.

The method of rectifying the matters at hand was limited to such authority as the State Board had under the statutes. The State Board chose the method of ouster under KRS 156.110 as it was authorized to do. KRS 156.210 is one of the statutory methods for the correction of irregularities committed or permitted by local boards, with final resort to ouster under KRS 156.110 authorized when other means prescribed in KRS 156.210 have proved unsuccessful. The removal order was not an improper or unauthorized exercise of authority under KRS 156.210.

Appellants contend that the local boards of education are given direct administrative control over the affairs of the district. KRS 160.290. It is argued that “home rule” should govern. This argument falls flat in the face of the expressions of control and means of enforcing control in certain instances of dereliction specifically mentioned. Further, the grant of administrative control to the local board in KRS 160.290 must be “consistent with the rules and regulations” of the State Board as expressly provided therein. It, therefore, is clear that the Legislature intended that the local board school administration must be subject to the controls vested in the State Board and the Superintendent of Public Instruction as set forth in the statutes previously mentioned.

It also is argued that the Legislature has not authorized the blanket removal of local boards of education. Such board is a body politic and corporate with perpetual succession. KRS 160.160. The board is an entity and only its members can be ousted.

The statutes authorizing removal contain no limitation as to the number of members that may be removed at any one time. The proceeding to oust by its very nature is one against an individual, but nowhere is there anything in the statutes to indicate that ouster proceedings may not be had simultaneously against more than one member or against all. Each removal must stand or fall on the irregularities or misconduct attributable to the particular member. If more than one or all of the members are charged with contributing jointly to the irregularities or misconduct, then such members as are charged, including all, may be properly proceeded against for removal. The show cause notice and the ouster order show that the action taken was directed against certain named individuals as members of the Carter County Board of Education. Consequently, any member who was found guilty was removable, even if it meant the removal of the entire board membership. Such a contingency is provided for by the statute authorizing the filling of vacancies. KRS 160.190.

Having concluded that the ouster of four board members is valid and that the ouster of a fifth is ineffective by reason of his prior resignation, attention is now directed to the ouster of the member named in his stead. Nell James was included in the ouster order. She became a member of the board by appointment on September 19, 1961, one day after the date on which the other four board members were ordered to respond to the show cause order. Since she was not a board member prior to September 19, 1961, no conduct of hers as such was questioned by the Superintendent, the State Board, or Judge Stites. No charges or proceedings were placed against her by anyone under any statute. In such case, there was no valid basis for the order removing her as board member one day after she took office. In this respect, the judgment is in error.

By this appeal, the right of the State Board to appoint five new board members is questioned. Had the ouster order been sustained in its entirety, no problem would have been presented. It is clear that if the local board has no members, the State Board may make the appointments. KRS 160.190.

The problem arises because of Nell James’ membership on the board. What authority does the State Board have to fill the vacancies on the local board which has one member? In Barton v. Brafford, 264 Ky. 480, 95 S.W.2d 6, it was held that a quorum of members of a board of education was not required and that one member could fill the vacancies on the board provided it was done within ninety days after such vacancies occurred. In so holding the Court obviously gave no effect to the language of the statute conferring this authority on “other members of the board.” The plural use of the word “member” was not discussed.

As authority for such construction of the statute, the Court cited Douglas v. Pittman, 239 Ky. 548, 39 S.W.2d 979, holding that the remaining members constituting less than a majority could fill the vacancies. The Court distinguished Glass v. City of Hopkinsville, 225 Ky. 428, 9 S.W.2d 117, on the ground that the statute there involved delegated the authority to the board ■rather than to the “other members.” In the Glass case, the Court said:

“ * * * When a power is delegated to a board or body consisting of several members, it presupposes the presence of a quorum, as a condition to valid action, and the power may not be exerted effectively by a less number. 43 C.J. page 503; Hopkins v. Dickens, 188 Ky. 368, 222 S.W. 101; Short v. Langston, 125 Ky. 816, 102 S.W. 236; Scott v. Pendley, 114 Ky. 606, 71 S.W. 647; Pierce v. Sullivan, 189 Ky. 193, 224 S.W. 872.”

In the Douglas case, the Court bottomed its decision on Booth v. Board of Education of City of Owensboro, 191 Ky. 147, 229 S.W. 84, which dealt with the right of the board members to hold over and act until their successors in office were elected and qualified. The reasoning of the Court in the Douglas case was that the Legislature intended that there should be “at all times a working board, unhampered by vacancies and with continual ever-present ability reposing in them to fill vacancies and perform duties imposed upon them as such officials.” However, the statute in the Booth case (Carroll’s Kentucky Statutes, Section 4399a-lc) contained no other provision for filling vacancies as does KRS 160.190, so the reasoning in the Douglas case is not sound when applied to the present situation and statute. It should be pointed out that the Booth and Douglas cases were decided prior to the change in the statute in 1934. See Carroll’s Kentucky Statutes, Section 4399-30, now KRS 160.190.

By the 1934 change an additional method for filling vacancies was provided by giving authority to the State Board; thus, there was no longer the need to provide the local board with a self-perpetuating power of appointment to fill vacancies. The language, “other members,” of KRS 160.190 indicates clearly a contrary view to vesting the power to fill vacancies in one member. KRS 160.270(1) provides that a majority of the board shall constitute a quorum for the transaction of business. This sound rule was expressed in the Glass case which the Court undertook to distinguish in the Douglas case.

The additional method of filling vacancies, the language of KRS 160.190, and the clear requirement of a majority under KRS 160.270(1) serve to indicate that the Legislature intended that there should be a quorum of the local board members in order to transact business, of which the filling of vacancies would appear to he the most important. To hold otherwise would obtain the absurd result that one board member would be authorized to appoint four other board members in order to have a quorum to transact the business of purchasing a typewriter, as an example. It is not to be presumed that the Legislature intended any such result. Swift v. Southeastern Greyhound Lines, 294 Ky. 137, 171 S.W.2d 49; Hamilton v. International Union of Operating Engineers, Ky., 262 S.W.2d 695. Consequently, it is concluded that the Legislature intended by the phrase “other members” to mean a majority of the board membership is necessary in order to transact business, including the filling of vacancies. Where, as here, there are so many vacancies that a majority cannot be obtained, then the State Board under authority of KRS 160.190 should fill the vacancies. Accordingly, four of the five appointments made by the State Board to the Carter County Board of Education are valid. The appointment to fill the supposed vacancy in the division served by Nell James is void because there was no vacancy in that office. See KRS 160.210. So much of Barton v. Brafford as may be inconsistent is overruled.

The judgment is affirmed as to the ousting of W. L. Gearhart, J. H. McGlone, Es-till Caudill, and Mrs. Curtis (Ruby) Click and as to the four appointments indicated, and is reversed as to Nell James.

BIRD and PALMORE, JJ., dissent in part.

BIRD, Judge

(dissenting).

My learned colleagues have joined in the majority opinion because they believe they are making a proper disposition of this case and I do not intend that this dissent portray any personal criticism of either the writer of the opinion or those who join with him. However, I am so thoroughly in disagreement with that part of the decision which sanctions appointment by the State Board of Education that I feel compelled, for the benefit of the record, to express that disagreement.

From the law cited in the majority opinion and other authorities it is made clear to me that the power of appointment rests solely in the one member of the Carter County Board of Education who has been exonerated by the majority opinion. That member, in my opinion, still has the right to appoint the remaining members of the Board of Education insomuch as she has, by order of court, been enjoined from acting up to this time. I shall leave it to the Bench and Bar to ponder the merit of my position. I am not at all pleased with my conclusion. Nevertheless, I have not taken the oath of office as a member of the General Assembly and I am unwilling to exercise legislative authority in amending the applicable statute, however great the need may be.

PALMORE, Judge

(dissenting in part).

I concur in the majority opinion as to W. L. Gearhart, J. H. McGlone, Mrs. Click and Estill Caudill but disagree as to Miss James, without reaching the question of whether KRS 160.190 authorizes the filling of vacancies by less than a quorum of the local board

At the time J. E. Gearhart resigned, not only were all five members of the .board of education under formal charges directed to their removal, but the special commissioner had made a finding of their guilt and recommended the removal of all. Although the formal affixation of their guilt awaited the confirming action of the State Board of Education, at this stage the presumption was great. To say that one of them could then resign so that the other four might appoint a new member, who in turn could appoint four more members upon their removal, would give legitimacy to a patent subterfuge. Courts are not obliged, and do not have the right, to.be blind to reality. The facts of this case speak for themselves. My opinion is that sound public policy prohibited the appointment of a new member by the four remaining members of the board at a time when the charges against them were -pending before the State Board, and that the appointment of Miss James was void. Therefore, I would sustain the ouster order as to her, simply on the ground that the State Board had the right to'recognize that her purported appointment under these circumstances was a nullity.


text:
    Lelia HAMMOND, Appellant, v. Dolly Wade McREADY et al., Appellees.
    Court of Appeals of Kentucky.
    March 23, 1962.
    L. M. Ackman, Williamstown, for appellant.
    R. C. Ford, Jr., James R. Ford, T. A. Perry, Owenton, for appellees.
   CULLEN, Commissioner.

Mrs. Lelia Hammond, widow of Owen Hammond, brought an action to contest the will of her husband’s mother, Katie B. Hammond, on the ground of lack of mental capacity. Judgment was entered dismissing the complaint for failure to state a claim upon which relief could be granted. Lelia has appealed from the judgment.

Katie Hammond died in 1952, leaving a will in which she devised to her son Owen a life estate in certain lands, with remainder to others. Her will was filed with the county court clerk but was not offered for probate. In 1958 Owen died, leaving a will in which he gave all of his estate to his widow, “excepting such real estate as I have acquired by will or inheritance from my mother.” After Owen’s death the re-maindermen under his mother’s will caused her will to he probated, and Lelia then brought the contest action.

Lelia maintains that she succeeded to Owen’s unexercised right to contest his mother’s will, on the theory that the right constituted intestate property of which his will did not deprive her, and in which she took an interest under the statutes of dower and descent. The conclusive answer to this contention is found in the established rule of law that, in the absence of a contrary intent affirmatively appearing in the will, a widow who accepts a devise or bequest under her husband’s will cannot claim the rights of a surviving spouse in any unde-vised property of the husband. See KRS 392.080; Huhlein v. Huhlein, 87 Ky. 247, 8 S.W. 260; Bayes v. Howes, 113 Ky. 465, 68 S.W. 449; Smith v. Perkins, 148 Ky. 387, 146 S.W. 758; Ray v. Ray, 298 Ky. 162, 182 S.W.2d 664; Hedden v. Hedden, Ky., 312 S.W.2d 891. Not having renounced her husband’s will, Lelia had no claim to his undevised property.

In an amended complaint in the contest suit, Lelia asserted a claim for some unspecified kind of relief on an allegation that in 1943 Katie Hammond had fraudulently induced Owen and Lelia to convey to Katie their interest in a farm, on the false representation that Katie would devise all of her property to Owen in fee simple. The amended complaint alleged that by reason of such false representations Lelia was deprived of her dower interest in the land conveyed to Katie. Again, the simple answer to this claim is that Lelia, not having renounced her husband’s will, could assert no right in any property he might have acquired from his mother. The alleged promise was only that Katie would leave her property to Owen. Lelia could not have benefited from the fulfillment of that promise unless either Owen left the property to Lelia in his will or she renounced his will. Neither of these things happened. Since Lelia is in a position where she could not have benefited from fulfillment of Katie’s alleged promise, there is no basis upon which she can claim any relief for breach of the promise or fraud in its making. It might be argued that if Katie had fulfilled her promise then Lelia would have renounced Owen’s will, but it seems to us that if a renouncement were required in order for Lelia to claim an interest in property that Katie did leave to Owen, there would be a similar requirement in order for Lelia to assert a claim based on Katie’s not leaving property to Owen.

The judgment is affirmed.


text:
    Naomi ROBERSON, Appellant, v. Arthur WELLS, Individually, and as Guardian for Jerry Wayne Roberson, an Infant, et al., Appellees.
    Court of Appeals of Kentucky.
    March 23, 1962.

      Jesse S. Hogg, Winchester, for appellant.
    J. Blaine Nickell, Nickell & Walter, West Liberty, for appellees.
   WADDILL, Commissioner.

On this appeal we are concerned with a judgment awarding the custody of Jerry Roberson, an infant, to the appellees, his paternal great aunt and uncle. The trial judge found that appellant, the child’s mother, is not a suitable person to have its custody because she has been guilty of immoral conduct, and that the best interest of the child will be served by placing him in the custody of appellees.

Arthur Roberson, father of the child, was reared by the appellees. He married appellant in 1956 but was killed in an accident some 18 months later. After his death appellant and her son lived alternately with her parents and the appellees until some six months prior to the bringing of this action. During this latter period appellant and her son returned to a house previously occupied by her late husband.

The evidence showed that after the death of her husband appellant gave birth to an illegitimate child. There was testimony of neighbors that after she returned to her own residence she often had male guests overnight and gave unseemly parties there. In addition, several persons testified that her general moral reputation in the community was bad.

Appellant contends that the natural right of a mother to have the custody of her child should prevail in this action. Ordinarily the mother is presumptively entitled to custody of her child. Jones v. Mow, Ky., 341 S.W.2d 260. However, we have held that when the mother is found to be morally unfit to have the custody, and that finding is supported by evidence of probative value, the trial judge may determine the custody question in light of what is in the best interest of the child. Mitts v. Mitts, 312 Ky. 854, 229 S.W.2d 958; McCormick v. Lewis, Ky., 328 S.W.2d 415.

Under the circumstances shown in the instant case we are unwilling to say that the trial judge abused his judicial discretion.

Judgment affirmed.


text:
    R. E. DUPIN et al., Appellants, v. James F. SULLIVAN et al., Appellees.
    Court of Appeals of Kentucky.
    March 23, 1962.

      C. Maxwell Brown, Louisville, for appellants.
    Martin J. Duffy Jr., Edward W. Bensinger, James Thornberry, Louisville, for ap-pellees.
   PALMORE, Judge.

This is a contest and recount proceeding relating to the November, 1961, election of 5 trustees for the 6th class city of Wellington, comprising a single precinct in Jefferson County. After a hearing on the pleadings and affidavits the circuit court overruled plaintiffs’ motion for a summary judgment and sustained defense motions to dismiss.

There is no conflict as to the facts essential to a decision of the case. The 5 appellants were the only persons officially nominated as town trustees in the manner authorized by KRS 118.080, and their names were the only ones listed on the voting machine for those offices. The 5 appellees certified as the winners were write-in candidates. They had attempted to- file a nomination petition but it was rejected by the county court clerk as defective. One of them thereupon caused to be printed a supply of handbills or instruction sheets listing their names and addresses, stating their desire to be elected by write-in votes, and explaining by word and diagram how to cast write-in votes for them on the voting machine. This same one of the five stood at the entrance to the polling place throughout the voting hours on election day and gave copies of the handbill to all who would accept them as they arrived to vote.

The names of the 5 unofficial candidates as shown on the handbill, together with the number of write-in votes thereafter counted for them, were: J. L. Branch, 142; H. L. Carpenter, 143; B. D. Leachman, 142; N. A. Rueff, 141; and J. F. Sullivan, 142.

The votes cast for appellants, the officially nominated candidates, were: R. E. Dupin, 111; Joseph L. Gale, 105; R. L. Saxton, 108; Alfred A. Thiele, Sr., 108; and Albert F. Torstrick, 110.

With respect to the counting of the write-in votes there is a serious question in that a number of the voters sufficient to make the difference between winning and losing failed to write out the names as they appeared on the handbill, but used either one initial or none at all. We shall pass up the instances where a single initial or a wrong initial was used, because the case stands or falls on the efficacy of those votes cast without any initials, by last name only. They were: Branch, 53; Carpenter, 55; Leachman, 60; Rueff, 55; and Sullivan, 61.

Appellants say there were other people with the same surnames living in Wellington, hence it cannot be said that these votes were cast for the particular 5 men in question. In the ordinary write-in situation this argument might have much force, but the circumstances of this case make it reasonably clear that the surnames written without initials were intended to designate the appellees. They were the only ones by those names who were active contestants for election, and their candidacies had . been well publicized, particularly through the distribution of handbills at the polling place. “The circumstances attending an election may be considered in ascertaining the voter’s intention, or to explain imperfections in the ballots.” Gulino v. Cerny, 1958, 13 Ill.2d 244, 148 N.E.2d 724, 726.

This case is strikingly similar to Keenan v. Briden, 1922, 45 R.I. 119, 119 A. 138, in which a candidate for mayor found it necessary to solicit write-in votes after he had neglected to file his nomination certificate in time to have his name printed on the ballot. In a contest proceeding it was held that ballots on which his surname alone was written should have been counted in his favor. To the same effect see Cray v. Davenport, 1928, 333 Ill. 375, 164 N.E. 825. Cf. 29 C.J.S. Elections § 180, p. 265; 18 Am. Jur. 311, Elections, § 195.

We find no authority for the contention that because the appellees had failed to secure nomination by petition under KRS 118.080 they were ineligible for election as write-in candidates. In neither Justice v. Justice, 1919, 184 Ky. 130, 211 S.W. 419, nor Hewlett v. Carter, 1922, 194 Ky. 454, 239 S.W. 789, cited by appellants, was the right to election as a write-in candidate questioned. The right of a candidate to have his name printed on the ballot in a regular election is not to be confused with his right to be elected by write-in votes. KRS 118.080, in providing that a candidate “may be nominated by a petition of electors qualified to vote for him,” so that his name may thereafter be shown on the ballot, implies no disqualification for election if he is not so nominated.

The cases of Whitney v. Skinner, 1922, 194 Ky. 804, 241 S.W. 350, and Maddox v. City of Middlesboro, 1923, 199 Ky. 425, 251 S.W. 201, are inapplicable to the inquiry here, because they were decided under a statute that specifically provided against the election of any person who had not been nominated in the manner therein mentioned. Cf. KRS 89.060. Moreover, those opinions are not free of constitutional doubt. Note, for example, the remark in Asher v. Arnett, 1939, 280 Ky. 347, 132 S.W.2d 772, 775, to the effect that the right to vote arid be voted for by write-in at a regular election is constitutional.

The . complaint alleged that during the election on'e of the judges distributed write-in election literature and manually assisted several voters in the act of voting. However, the appellants do not seek to invalidate the election, but only to eliminate certain votes, and where that is the object the names of those whose votes are questioned must be alleged unless an entire identifiable class of votes is affected by the irregularity. Napier v. Noblis, Ky.1958, 318 S.W.2d 875; Hodges v. Hodges, Ky. 1958, 314 S.W.2d 208. Certainly it would not be proper to invalidate all of the write-in votes because some of them may have been tainted. Appellants’ remedy was to identify the bad votes by naming those who cast them.

Lastly, it was alleged and is repeated in the brief- for appellants that the successful candidates did not file the expense statements required by the Corrupt Practices Act, KRS 123.070. Failure to comply with this statue disqualifies the candidate, KRS 123.090, and is includible as a ground of contest. KRS 122.010. However, except in primary elections (cf. KIRS 122.010) the loser does not win. The result is a void election and a vacancy in the office. McKinney v. Barker, 1918, 180 Ky. 526, 203 S.W. 303, L.R.A.1918E, 581. But that is not the remedy for which the appellants sued in this case. They sought only to have themselves declared elected. If that is all the relief sought in an action contesting a regular election, a violation of the Corrupt Practices Act by the contestees is immaterial because it will not sustain the judgment asked.

Judgment affirmed.


text:
    Daniel G. LAREAU, Appellant, v. Walter L. O’NAN et al., etc., Appellees.
    Court of Appeals of Kentucky.
    March 23, 1962.
    Charles B. West, Walker & West, Henderson, for appellant.

      Leonard T. Mitchell, Mitchell & Withers, Henderson, for appellees.
   CULLEN, Commissioner.

In August 1959 Dr. Daniel G. Lareau (a physician with several years’ experience who had been practicing in Ohio) was employed by the Henderson Clinic of Henderson, Kentucky, under a contract which provided that in the event of a termination of the contract (which could be effected by either party upon 30 days’ notice) Lareau would not for five years thereafter engage in the practice of medicine in Henderson County. In June 1960 the clinic terminated the contract and' within a few days thereafter Lareau opened an individual office in the city of Henderson and undertook to engage in private practice of medicine. In an action brought by the clinic judgment was entered enjoining Lareau from practicing medicine in Henderson County for a period of five years from the date of termination of the contract. Lareau has appealed.

Lareau’s major arguments, which include claims of lack of consideration and lack of “mutuality,” may be reduced to the single basic proposition that under all of the circumstances attending the making and termination of the contract it would be unfair to compel him to comply with the no-practice covenant. And in substance his contention of unfairness is simply that any damage the clinic might suffer from breach of the covenant, or any benefit it might obtain from enforcement of the covenant, would be negligible and wholly disproportionate to the injury Lareau would sustain by being compelled to observe the covenant.

It is true that there is no evidence that the clinic will suffer materially in a financial way from a breach of the covenant, but by the same token there is no evidence that Lareau will sustain serious financial detriment from being required to abide by the covenant. Just as the benefits the clinic might receive from enforcement of the covenant are intangible, so are most of the injuries that Lareau claims he will suffer. Lareau lists as the major elements of damage to him the loss of the practice he “worked so hard to build” and the loss of the value of the good name he had acquired in the community. But the building up of his practice and the development of his good name were directly attributable in major part to his association with the clinic, and to achieve these things quickly was the inducement for him to associate with the clinic.

The main cases upon which Lareau relies are ones involving unskilled or semiskilled employe's, such as Calhoun v. Everman, Ky., 242 S.W.2d 100, and Crowell v. Woodruff, Ky., 245 S.W.2d 447. In those cases the employes had a very limited capacity to compete in the labor market, and it was considered unconscionable to deprive them of their livelihood merely to protect the comparatively insignificant interest of the employers who had required restrictive covenants of the employes. Here, however, the services Lareau is qualified to render are of a character for which there is an extremely favorable seller’s market. It is a matter of common knowledge that there is a general nationwide demand for doctors, and in almost any community a doctor can earn a handsome income. The wide gates of opportunity for Lareau are open throughout the nation, and the mere fact that the door of Henderson County is closed to him can cause no such injury to him as to arouse the compassion of a court of equity.

Lareau argues lack of consideration and lack of mutuality, but it is clear that he means not such a lack as would prevent the contract from being valid in law, but only such that the contract should not be enforced in equity. It also is clear that he is contending that in order for the no-practice covenant to be enforceable in equity there must have been a reciprocal covenant or separate consideration on the part of the clinic. There is no such requirement. Stiles v. Reda, 312 Ky. 562, 228 S.W.2d 455; Bradford v. Billington, Ky., 299 S.W.2d 601; David Roth’s Sons Inc. v. Wright and Taylor Inc., Ky., 343 S.W.2d 389.

Lareau maintains that the public will be injured by enforcement of the covenant. Again he relies on the unskilled employe cases, where the particular employe had worked in the particular community all of his life. Here, although the Henderson community may need more doctors, it will not be deprived, by enforcement of the covenant, of any service it had before the contract was made. In our opinion the community will not suffer such injury as to justify a refusal by a court of equity to enforce the covenant.

It must be remembered that Lareau, wholly free of any financial coercion, made a solemn covenant with the clinic. There is no basic public policy against such covenants, particularly when they involve professional services. In fact, the policy of this state is to enforce them unless very serious inequities would result. See Bradford v. Billington, Ky., 299 S.W.2d 601. In our opinion there are no strong equities in Lareau’s favor. It is also our opinion that the damages the clinic might suffer from breach of the covenant, though intangible, are sufficient to justify invoking the injunctive powers of the courts, and that, since the damages are not susceptible of monetary valuation, there is no adequate remedy at law.

Lareau contends that the contract contemplated he would render services only in his specialty, internal medicine, and that the clinic violated the contract by requiring him to perform general practice services. The words of the contract are that Lareau “will join the Clinic staff as a physician and will during the term of this agreement devote his full time to the practice of medicine.” We find no ambiguity in these words such as would permit a showing by parol evidence that Lareau was to render only specialized services.

Lareau’s final contention is that the clinic breached the contract by not paying him the amount to which he was entitled for the period the contract was in force, and therefore the no-practice covenant should not have been enforced, or in any event he should have been awarded recovery on his counterclaim for the amount claimed to be due. The only evidence submitted in support of this contention was the testimony of an accountant who had examined nothing but the expense records of the clinic and who testified that certain items charged as expenses were not properly so chargeable under customary accounting practices. The contract provided that Lareau would be compensated at a rate equal to 13 percent of the net earnings of the clinic, “as computed in accordance with the Clinic’s existing accounting practices.” There was no evidence that the expense, items in question were charged as such in violation of the clinic’s existing accounting practices. It appears that these items were treated as expenses in determining the compensation of the partner members of the clinic. It may well have been that the clinic’s existing accounting practices with respect to income were more favorable to Lareau than customary accounting practices would have been, and since there was no evidence concerning income accounting we agree with the trial court that there was insufficient evidence to establish a breach of the contract concerning the amount of compensation payable to Lareau.

The judgment is affirmed.

PALMORE, J., not sitting.


author: MOREMEN, Judge.

text:
    Charles BARBER, Appellant, v. Luther THOMAS, Warden, Kentucky State Penitentiary, Appellee.
    Court of Appeals of Kentucky.
    March 23, 1962.
    Charles Barber, pro se.
    John B. Breckinridge, Atty. Gen., Martin A. Glazer, Asst. Atty. Gen., for appellee.
   MOREMEN, Judge.

Charles Barber, a prisoner in Kentucky State Penitentiary, filed a petition for a writ of habeas corpus. After a hearing relief was denied by judgment of the Lyon Circuit Court.

We have a very meager record before us.

The petition for the writ alleges that Barber is being illegally “detained of his liberty” in violation of his rights under the 14th Amendment to the Constitution of the United States; that he is being held by the warden of the state penitentiary and that he was conveyed to the penitentiary by order of the Pulaski Circuit Court under a charge of breaking into and entering a public building, with a previous conviction under KRS 431.190. He prays that a writ of habeas corpus be issued and the respondent, Luther Thomas, warden, be directed to release him from further restraint.

We have nothing in the record either by way of testimony or copies of records in the proceeding alleged to have been had in the Pulaski Circuit Court under which appellant says he is being detained.

We have many times held that a writ of habeas corpus will not lie for release from imprisonment under a judgment unless the judgment is void. Department of Public Welfare v. Polsgrove, 250 Ky. 517, 63 S.W.2d 603; Brown v. Commonwealth of Kentucky, Ky., 243 S.W.2d 885.

We will, however, discuss what appears to be the basic contention set forth in appellant’s brief. It is insisted that KRS 431.190 is unconstitutional. It reads:

“Any person convicted a second time of felony shall be confined in the penitentiary not less than double the time of the sentence under the first conviction; if convicted a third time of felony, he shall be confined in the penitentiary during his life. Judgment in such cases shall not be given for the increased penalty unless the jury finds, from the record and other competent evidence, the fact of former convictions for felony committed by the prisoner, in or out of this state.”

We have several times held this section to be constitutional. Holt v. Commonwealth, Ky., 310 S.W.2d 40, certiorari denied, 357 U.S. 909, 78 S.Ct. 1154, 2 L.Ed.2d 1158, wherein we said:

“The voluminous attack upon the constitutionality of the habitual criminal statute is without merit. This court has always held and must again hold the statute to be constitutional. See Coleman v. Commonwealth, 276 Ky. 802, 125 S.W.2d 728; Hampton v. Whaley, 313 Ky. 611, 233 S.W.2d 273.”

See also Oyler v. Boles, Warden, U.S., 82 S.Ct. 501, where it is recognized that the constitutionality of the practice of inflicting severer criminal penalties upon habitual offenders is no longer open to serious challenge.

We find the judgment of the circuit court correct and it is therefore affirmed.


text:
    James V. MAHON et al., Appellants, v. BUECHEL SEWER CONSTRUCTION DISTRICT #1 et al., Appellees.
    Court of Appeals of Kentucky.
    March 23, 1962.

      Heber E. Johnson, Lee S. Jones, Louisville, for appellants.
    John A. McCrea, Louisville, for appellees.
   PALMORE, Judge.

KRS 76.300 to 76.315 establish a procedure by which the Jefferson County Court may create a sewer construction district as a body corporate and appoint the members of its governing commission. Any party may appeal to the circuit court and from there to this court. KRS 76.305(3). In this case the county court entered an order on June 1, 1959, establishing such a district and appointing its commissioners. On September 29, 1959, two of the original petitioners and several others who theretofore had not been “parties” to the proceeding (cf. Ray v. Luckett, Ky.1960, 332 S.W.2d 848; Woodrow v. Louisville & Jefferson County Planning and Zoning Commission, Ky.1961, 346 S.W.2d 538) moved the county court to set aside its order of June 1, 1959, and a subsequent classification order (KRS 76.345) entered on June 29, 1959, on the ground that they were void. CR 60.02. This motion was overruled on November 2, 1959, and on November 19, 1959, the county court overruled a further motion (made that day) tendering an answer. From these two orders of November 2 and 19 the objectors appealed to the circuit court.

The appeal in circuit court was dismissed for the reason that the various actions taken or attempted by the appellants in asserting their objections in the county court were not timely.

Any order that is appealable has the status of a judgment under CR 54.01, and CR 59.05 limits to 10 days the period in which it can be reached by motion unless the grounds therefor bring the motion within CR 60.02. The county court orders attacked by the motions of September 29 and November 19, 1959, were appealable by the express terms of KRS 76.305(3) and KRS 76.350, and had been entered in June of 1959, more than 10 days prior to each motion. Hence the action of the circuit court was correct unless, as the appellants contend, the orders in question were void.

The grounds on which it is claimed the orders were void are:

(1) The petitioners who instituted the proceeding under KRS 76.300 numbered less than 25% of the resident freeholders in the proposed district, and the county court therefore had no jurisdiction to proceed.

(2) The description of the proposed district was fatally defective.

(3) The notices required by KRS 76.-305, 76.335, and 76.345 were not posted in three public places within the district.

(4) The commissioners appointed by the order of June 1, 1959, were not residents of the district as required by KRS 76.315.

The first of these points arises from the circumstance that the actual dwelling houses of some of the petitioners were outside the boundaries of the district, though located on lots that were partially within the district. Whether those persons qualified as “resident freeholders” within the meaning of this particular statute is a question we need not decide, however, because in any event the county court had jurisdiction of the subject matter and of the parties and its judgment could not have been void. See Vanover v. Dunlap, 1916, 172 Ky. 679, 189 S.W. 915, and Saylor v. Town of Wallins, 1927, 220 Ky. 651, 295 S.W. 993.

The description of the proposed district as set forth in the petition and subsequent notices was as follows:

“Beginning at a point in the center of Bardstown Road where the sewer line of the Metropolitan Sewer District ends at Hikes Graded School and extending 100 feet on either side of Bardstown Road; thence in a South-eastwardly direction between lines parallel to said Bardstown Road to its junction with Crawford Avenue and Bardstown Road.”

The first argument on the description is that the word “either” means one or the other but not both, hence the reference to a boundary extending 100 feet “on either side” of the road is ambiguous. But however correct this position may be from a grammatically puristic standpoint, we doubt that the average reader of the description was any more fastidious a grammarian than the draftsman himself. One would scarcely take it that the word “either” was really intended in the sense of an alternative. Obviously it meant “each,” and we do not believe that anyone could have been misled by construing it otherwise, especially after reading the description through to the end.

The second criticism of the description is that by use of the center of the road as a beginning point it could easily be taken to mean that the intended area of coverage extends only 100 feet in each direction from the center line rather than 100 feet beyond the right-of-way lines of the highway. Since the right-of-way is 90 feet wide, the inference would be that the proposed district embraced the property abutting the highway to a depth of only 55 feet instead of 100 feet. But a literal reading of this call in the description excludes any such interpretation. It does not say the line extends 100 feet on either side of the place of beginning; on the contrary, it says specifically and categorically, “on either side of Bardstown Road.” (Emphasis added.) There should be no mistake on that score. A description that literally admits of but one construction cannot be held ambiguous.

We conclude that the description was sufficient to put all affected property owners on notice.

KRS 76.305, 76.335 and 76.345 require that, in addition to newspaper advertisement, notice be posted “in three public places within the proposed district.” In this case copies of the notice were posted at a U. S. Post Office and on two telephone poles. Appellants contend that because telephone poles are private property, subject to removal by the owner at any time, they cannot be “public places” within the meaning of these statutes. But why not? If a notice is posted in a place where the attention of the public is likely to be attracted to it, the purpose of the law is satisfied regardless of who may own the property on which it is displayed. “A public place, within a requirement as to the posting of notices, is usually defined as some place to which the public resorts, so that a notice in such a place may be expected to be seen by persons who are interested therein or affected thereby.” Annotation, “What is ‘public place’ within requirement as to posting of notices,” 2 A.L.R. 1008. If a tree, pole or any other structure is so situated that a notice posted on it is likely to be seen and read by the public, it is in a “public place.” Town of Wilson v. City of Sheboygan, 1939, 230 Wis. 483, 283 N.W. 312. There is no allegation in this case that the poles were not so located.

The last point is that the commissioners appointed by the county court were not residents of the district. KRS 76.315. Assuming this to be true, parties adversely affected by the judgment could have had the error reviewed by timely motion and appeal, but the judgment is not void. A proceeding by the Commonwealth is the exclusive method by which the eligibility of these commissioners may now be questioned, the sewer district being a public' corporation. KRS 415.030; Kirwan v. Speckman, 1950, 313 Ky. 578, 232 S.W.2d 841; Morgan v. Adams, 1933, 250 Ky. 441, 63 S.W.2d 479; Hermann v. Morlidge, 1944, 298 Ky. 632, 183 S.W.2d 807; Wells v. Lewis, 1945, 300 Ky. 675, 190 S.W.2d 28.

Judgment affirmed.