author: DOERNER, Commissioner.

text:
    REPUBLIC ENGINEERING & MANUFACTURING COMPANY, a Corporation, Plaintiff-Respondent, v. Milton A. MOSKOVITZ, Micro Precision Engineering Company, a Corporation, and Apex Metal Products Co., a Corporation, Defendants-Appellants, and Harry Frankel, Defendant, Cross Claimant-Respondent.
    No. 31424.
    St. Louis Court of Appeals. Missouri.
    March 17, 1964.
    Motions for Rehearing or Modification or Clarification and to Transfer to Supreme Court Denied April 13, 1964.

      Edmund C. Rogers, John T. Rogers, Clayton, Ben V. Zillman, Hilmar L. Lax, St. Louis, for defendants-appellants.. ¡,

    Ralph W. Kalish, St. Louis, for defendant-respondent.
    Malcolm I. Frank, Bernard Mellitz, Frederick M. Woodruff, St. Louis, for plaintiff-respondent.
   DOERNER, Commissioner.

This is an action in equity involving two written contracts. Plaintiff Republic Engineering & Manufacturing Co., the licensee under a patent license agreement, filed its petition praying that defendants Mosko-vitz, Micro Precision Engineering Co., and Apex Metal Products Co. be enjoined from continuing their breach of the license agreement. Named as -only a nominal party in plaintiff’s petition, defendant Frankel filed a cross-claim against defendant Moskovitz in which he asked that, in accordance with a contract between them, Moskovitz be compelled to assign to him an interest in certain patent applications. This appeal is brought by defendants Moskovitz, Micro Precision, and Apex Metals from a final judgment and decree granting certain relief to plaintiff .Republic Engineering and cross-claimant Frankel. In the interest of clarity we will consider first the appeals as they relate to plaintiff’s complaint.

The facts essential to a decision of'the plaintiff’s claim are these: defendant Mos-kovitz is an experienced inventor of automotive parts, including ball joints for front wheel suspension assemblies, in which field he' considers himself an expert. In 1950 Moskovitz and cross-claimant Frankel organized a corporation named Republic Engineering & Manufacturing Co. This company was not the plaintiff corporation, and to distinguish between them it will ,be referred to as Old Republic. Frankel contributed the money to launch Old Republic, and- for his part Moskovitz permitted it to manufacture and sell, under an unwritten license, certain automotive replacement parts which • Moskovitz had invented. In 1953 Old Republic was operating at a loss. Moog- Industries, -Inc., a manufacturer qf automobile parts for the ^replacement market, as distinguished from the original equipment market, was not then making ball j oint suspension devices but desired to enter that field. To that end it entered into negotiations with Old Republic and its owners, Moskovitz and Frankel. As a result, Old Republic changed its name to Neo-Tech Engineering & Manufacturing Co., Moog formed a wholly owned subsidiary, the plaintiff, Republic Engineering, and two contracts were executed, both on June 17, 1953. The first was an agreement between Neo-Tech as Seller, plaintiff Republic Engineering as Buyer, and Moskovitz and Frankel as Guarantors, whereby Neo-Tech sold its physical assets and good will to plaintiff for $166,884.37. The only portion of this sales contract which is pertinent to the present litigation is paragraph 7 thereof, which reads :

“7. Seller and Guarantors and each of them, jointly and severally, agree that for the period of five (5) years from and after the date of this Agreement neither Seller nor Guarantors nor any of them will become interested or participate, directly or indirectly, as owner, employee, stockholder, partner, sales agent, or in any other manner, in any business operating in the United States of America or any part thereof which business in any way competes in the replacement market with the lines of motor vehicle merchandise described as follows: tie rod ends, drag links, ball joint suspension parts, all front end parts, piston rings, leaf springs, coil springs, king bolts and shackles.”

Coincidently with the execution of the sales contract a second written instrument titled “License Agreement” was entered into by Moskovitz, Frankel and Neo-Tech, as licensors, and plaintiff Republic Engineering, as licensee. The pertinent terms of that agreement will be quoted later. It is presently sufficient to say that the agreement granted plaintiff Republic Engineering the exclusive right to make, use and sell certain automotive devices designed, or to be designed in the future, by Moskovitz, in consideration of the promise of Republic Engineering to pay specified royalties. In addition, the agreement provided that Mos-kovitz was to work for plaintiff Republic Engineering until December 31, 1953, at a salary of $100 per week.

Following the execution of the sales contract plaintiff took over the machinery, tools, equipment and inventory of Neo-Tech and engaged in the manufacture and sale of some, but not all, of the devices that had previously been produced by Neo-Tech. The employment of Moskovitz by plaintiff did not terminate on December 31, 1953, as contemplated by license agreement, but continued on until August, 1956, when Mosko-vitz severed the relationship following an altercation with one Cole, the works manager of Moog Industries.

Thereafter, apparently around the early part of 1960, Moskovitz undertook to design other ball joints. His efforts culminated in the development of two types of such devices for replacement purposes, one for General Motors cars and the other for Chrysler made automobiles. We will refer to them collectively as the Moskovitz ball joints. Sometime in February, 1960, Perfect Equipment Corporation of Kokomo, Indiana, which dealt in automotive replacement parts, learned of the development of the Moskovitz ball joints and entered into negotiations with Moskovitz. As a result, Moskovitz caused the defendant Micro Precision Engineering to be incorporated, the stock of which is wholly owned by him. On June 10, 1960 Micro Precision and Perfect Equipment entered into a written agreement in which it was recited that Micro Precision made or had made for it “certain devices” useful with existing automobiles. Micro Precision agreed to sell such devices exclusively to Perfect Equipment, and Perfect Equipment agreed to buy exclusively from Micro Precision in such quantities as it might need. Significantly, the phrase “ball joints for front end suspensions” or similar language was not used in the agreement, and nowhere therein is there any description of the so-called “devices.” During the course of the negotiations Mosko-vitz told the representatives of Perfect Equipment that he had formerly worked for Moog Industries (plaintiff’s parent company) and that he had designed Moog’s ball joints but had severed the relationship. He did not, however, inform them that he had entered into a license agreement with plaintiff Republic Engineering, nor did he discuss patents.

Although Perfect Equipment had only a sample ball joint, immediately after the execution of the contract with Micro Precision it endeavored to sell the Moskovitz ball joints, and took orders pending delivery. Some indication of Perfect Equipment’s success may be gathered from the fact that the initial order it placed with Micro Precision was for 10,000 units for one make of car, and its second order was for 42,000 units for four other makes. Both of these orders were placed with Micro Precision before or about the time defendant Apex Metal Products, which manufactured the ball joint assemblies for Micro, made its first shipment.

Plaintiff first learned of the development of the Moskovitz ball joints in February, 1961 when they were exhibited in Perfect Equipment’s booth, manned by Moskovitz, at the annual show of the Automotive Service Industry Association in Los Angeles. Shortly thereafter plaintiff obtained some of the Moskovitz ball joints which Perfect Equipment was selling, examined and tested them, and reached the conclusion that they came within the scope of the exclusive license agreement which Moskovitz had granted to it. By a letter dated March 28, 1961, plaintiff Republic advised Moskovitz that it understood that he had evolved substantial improvements in tie rod ends and ball joint designs coming within the scope of its exclusive license agreement, and that he was producing and selling them. Plaintiff demanded that Moskovitz supply it with all pertinent information regarding such improvements, which it claimed he was obligated to do under its license agreement, and that he cease and desist from producing and selling such devices in violation of that contract. Moskovitz did not answer plaintiff’s letter. Plaintiff thereupon caused applications for patents on the Moskovitz ball joints in the name of Moskovitz to be prepared, and requested Moskovitz to sign the applications. He refused to do so on the grounds that the Moskovitz ball joints were not new or novel, and that they therefore were not patentable. As authorized by the patent laws, 35 U.S.C.A. § 118, plaintiff Republic thereupon filed the unsigned applications with the Patent Office, supported by affidavits as to its interests. The evidence showed that the applications were pending at the time this cause was tried. Plaintiff also learned that Moskovitz or Micro Precision was having defendant Apex Metal Products manufacture the Moskovitz ball joints. By a letter dated April 24, 1961 plaintiff advised Apex that under plaintiff’s license agreement with Moskovitz it had the exclusive right to make and sell the ball joint devices which Apex was making, warned Apex that it was aiding and abetting Moskovitz to breach his contract, and called upon Apex to stop manufacturing such devices forthwith, on pain of being held responsible. Apex was advised by Moskovitz’ lawyer to pay no attention to the letter. It did not discontinue making the Moskovitz ball joints until around August 1, 1961, more than two months after plaintiff Republic had filed its petition herein on May 17, 1961.

On the same day plaintiff’s petition was filed an order to show cause was issued. After a hearing thereon, and on condition that plaintiff post a bond for $75,000, which was filed, the court on August 21, 1961 issued a temporary injunction restraining and enjoining the defendants from manufacturing and selling the Moskovitz ball joint devices. Trial on the merits began on October 9, 1961 and was completed on November 8, 1961. It was developed by the evidence that between the time the temporary injunction had been granted and the trial begun Moskovitz and Micro Precision had shipped to Perfect Equipment in Indiana all of the tools, dies and other equipment used in the manufacture of the Mos-kovitz ball joints.

On May 28, 1962 the chancellor entered an interlocutory decree, appointed a referee for the purpose of determining plaintiff’s damages, and specifically reserved jurisdiction for further proceedings. Subsequently the parties filed a stipulation wherein they agreed that the court should assess damages of $2,000 in favor of plaintiff and against defendants Moskovitz and Micro Precision as the result of the sale of the Moskovitz ball joints sold up to May 28, 1962. Reservations regarding the nonprejudicial effect of the stipulation were incorporated therein. The next day, July 10, 1961, the chancellor entered his final judgment, order and decree. The essence of his findings which are pertinent to defendants’ appeal (as to plaintiff’s claim) were that the license agreement is a valid, legal and enforceable contract, and is not in restraint of trade, as claimed by defendants; that the scope of the agreement included all ball joint devices designed by Moskovitz, whether patentable or unpat-entable (an issue which the trial court expressly declined to decide); that the Mos-kovitz ball joints were in fact improvements in such devices; and that by making and selling them through Micro Precision, which he controlled, Moskovitz, aided and abetted by Apex, was violating plaintiff’s exclusive license agreement. By the decree Moskovitz, Micro Precision, and Apex were restrained and enjoined from manufacturing and selling, directly or indirectly, the Moskovitz ball joints; Mosko-vitz and Micro were ordered and directed to return to the custody of Moskovitz in St. Louis, the tools, dies and other equipment previously used by Apex in the manufacture and assembly of the Moskovitz ball joints, and to retain the same; the counterclaim of Moskovitz and Micro Precision by which they sought to have plaintiff’s exclusive license agreement declared invalid was denied; and plaintiff was awarded a judgment for $2,000 against Moskovitz and Micro Precision.

While the defendants have raised eight points in their brief, some of which contain as many as four subpoints, the fundamental issues we are called upon to decide involved the proper construction of the agreement, its validity, and the propriety of the relief granted plaintiff. This is true because the very foundation of plaintiff’s claim for relief is its exclusive license agreement. Preliminarily it is appropriate to point out that while they are recognized by statute, 35 U.S.C.A. § 261, license agreements are purely contractual in nature. Contour Chair-Lounge Co. v. Laskowitz, Mo., 330 S.W.2d 817; Westinghouse Electric & Mfg. Co. v. Tri-City Radio Electric Supply Co., 8 Cir., 23 F.2d 628; Ellis, Patent Licenses, 3rd Ed., Sec. 1, p. 2. And that the usual principles of contract law govern the construction of such agreements. United States Industries, Inc. v. Camco, Incorporated, 5 Cir., 277 F.2d 292; 69 C.J.S. Patents § 249, p. 770; Ellis, supra, Sec. 1, p. 2.

The initial issue on which the parties divide involves the habendum and certain of the recital or whereas clauses of the license agreement. Paragraph 2, the haben-dum, reads:

“2. Licensors jointly and severally grant to Licensee the exclusive right and license to make or have made, use and sell throughout the United States, under the hereinbefore designated patent and patent applications, including any reissue, divisional, continuation applications filed or patents issuing thereon, and under any and all future improvements made or acquired by said Licensors or either of them, movable joint devices as described on pages 2 and 3 hereof for any of the purposes hereinbefore specifically or generally stated, such exclusive rights, however, to be limited to the ‘replacement’ market, as that term is understood in the trade and as distinguished from the 'original equipment’ market. * *

The “hereinbefore designated patent and patent applications” referred to in paragraph 2 are described in the first two recital clauses as letters patent No. 2,569,823 issued to Moskovitz and Frankel on October 2, 1951, entitled “Self-Lubricated Steering Knuckle Joint”; application for letters patent Serial No. 210,247 filed by Mosko-vitz on February 9, 1951, entitled “Joint”; and application for letters patent Serial No. 235,780 filed by Moskovitz on July 9, 1951, entitled “Lubricant Sealed Tie Rod Joint.” It will be noted that in addition to a license on the enumerated patent and patent applications, by paragraph 2 plaintiff as licensee was also granted an exclusive license on “* * * any and all future improvements made * * * by said Licensors * * * (on) movable joint devices as described on pages 2 and 3 hereof * * This is a reference to the sixth paragraph of the recitals which appear on pages 2 and 3 of the agreement, and provides:

“AND WHEREAS, the Licensee is desirous of obtaining the exclusive right to manufacture, use and sell movable joint devices covered by any or all of the above identified patent and patent applications and any and all improvements in movable joints made or acquired by said Licensors, or either of them, in and for the purpose known in the trade as the ‘replacement’ market as distinguished from the ‘original equipment’ market. As presently understood, movable joint devices to be made or contemplated to be made will be of the ball type or substantially equivalent universally or semi-universally movable types of joints suitable in and to be used for one or more of the following purposes:
“1. For automotive steering assemblies including steering arm joints, drag link ends, and tie rod ends;
“2. For automotive wheel mounting and suspension assemblies including ball joint mounting and suspension parts;
“3. Movable joint devices for other automotive parts, mountings, and assemblies; but this enumeration of purposes is illustrative only and does not limit the generality of this license to cover all of the aforesaid types of movable joint devices covered by any present or future patent or patent application owned or acquired by said Li-censors or either of them.”

Defendants contend that the agreement should be construed as granting a license on only those future improvements which are advancements or betterments of the patent and patent applications enumerated in the first two recital clauses. But neither paragraph 2, the granting paragraph, nor any other clause contains any words of limitation restricting the scope of the license to improvements on the specified patent and patent applications, as in Meissner v. Standard Ry. Flquipment Co., 211 Mo. 112, 109 S.W. 730, cited by defendants. On the contrary, the reference in paragraph 2 is to improvements in movable joint devices “as described on pages 2 and 3 hereof * * and what is described on those pages is what may be called a field or type of such devices, defined therein as “* * * of the ball type or substantially equivalent universally or semi-universally movable types of joints * Certain purposes for which such types of movable joint devices may be suitable for use in automobiles are mentioned, but the broad scope of the improvements included in the license is ensured and emphasized by the concluding admonition that “* * this enumeration of purposes is illustrative only and does not limit the generality of this license to cover all of the aforesaid types of movable joint devices * * When, as here, the language of a contract is clear and unambiguous there can be no construction of it because there is nothing to construe. Leggett v. Missouri State Life Ins. Co., Mo., 342 S.W.2d 833; Mickelberry’s Food Products Co. v. Haeussermann, Mo., 247 S.W.2d 731.

The second issue on which the parties differ also involves paragraph 2 and the sixth clause of the recitals, as well as other parts of the contract. Defendants argue that if the agreement is to be interpreted to encompass improvements in the field of movable joint devices it must be construed to include only those improvements which are patentable; that the burden of proof was on plaintiff to prove the patentability of the Moskovitz ball joints; that plaintiff failed to meet its burden; and that in fact the evidence showed that such ball joints would not meet the requirements of patentability laid down in 35 U.S.C.A. § 101 et seq. It would appear that in the court below plaintiff apparently accepted defendants’ challenge regarding the pat-entability of the Moskovitz ball joints, for considerable testimony was elicited from the expert witnesses of both parties regarding the nature of the improvements inherent in such ball joints, and their patentability. However, the chancellor expressly declined to rule on the patentability of the Moskovitz ball joints. He held that it was unnecessary to do so because the license agreement included all improvements made by Moskovitz in the field of movable joint devices, whether patentable or unpatenta-ble; and that the ball joints in question were in fact improvements in that field. Whatever may have been its position below, plaintiff here contends that under the agreement its exclusive license covers all improvements made by Moskovitz in the foregoing field, regardless of their patenta-bility. The parties seem to agree that the Moskovitz ball joints are improvements in the field of movable joint devices. Thus what we are called upon to decide is the scope of the agreement.

The cardinal rule few the construction of contracts is to ascertain the intention of the parties, from a consideration of the four corners of the instrument, if that is possible, and to give effect to that intention. St. Louis Union Trust Co. v. MacGovern & Co., 297 Mo. 527, 249 S.W. 68; Kalen v. Steele, Mo.App., 341 S.W.2d 343; 17A C.J.S. Contracts § 296(1), p. 69. With that primary rule in mind we turn to an examination of the agreement in question to determine therefrom, if we can, the intention of the parties as of the time they entered into their contract.

We find the first such indication of intention in paragraph 2. It will be recalled that by that paragraph, previously quoted, Moskovitz granted plaintiff an exclusive license on certain enumerated patent and patent applications, and on future improvements in the field of movable joint devices. Only the issuance of a patent gives an inventor the right to exclude others from appropriating his invention, and that for only a limited time. 35 U.S.C.A. § 154; Bloomer v. McQuewan, 14 How. 539, 14 L.Ed. 532. Because it is the patent which confers a monopoly upon the patentee. Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405, 28 S.Ct. 748, 52 L.Ed. 1122. Under the common law an inventor does not have any special right to his invention, except, perhaps, to keep it a secret. Walker on Patents, Dellers Ed., Vol. 3, Sec. 220, p. 1152; Hopkins on Patents, Vol. 1, Sec. 3, p. 7. He has, of course, the right to make, use and vend his own invention, but if he voluntarily discloses his invention, as by offering it for sale, the world is free to copy and use it with impunity. Restatement of the Law of Torts, Sec. 757; Reddi-Wip, Inc. v. Lemay Valve Co., Mo.App., 354 S.W.2d 913. The right of exclusion is so dependent on a patent that even though an inventor has applied for a patent he cannot maintain an action for infringement prior to the time it is issued. Gayler v. Wilder, 10 How. 477, 51 U.S. 477, 13 L.Ed. 504. While he and his assignee or licensee may have an inchoate right to its exclusive use, the potential right does not become a reality until the patent is actually issued. Gayler v. Wilder, supra. The evidence is undisputed that the license agreement was prepared by competent patent counsel. In view of the foregoing state of the law it would appear obvious that when Moskovitz attempted to grant, and plaintiff to obtain, an exclusive license on future improvements they had in mind only those improvements which would be patentable. For Moskovitz could not grant that which he did not have, or could ever acquire, and neither he nor plaintiff, his licensee, could ever have or acquire the right to exclude others unless and until a patent was actually granted on his improvement.

A second indication of the intention of the parties appears in the foregoing sixth recital clause. The license granted by paragraph 2 was not to “all future improvements” but to “ * * * all future improvements * * * as described on pages 2 and 3 hereof * * a reference to the sixth clause of the recitals. While the words “all future improvements” appear in the forepart of that clause, immediately following the illustrations used appears the following: “ * * * but this enumeration of purposes is illustrative only and does not limit the generality of this license to cover all of the aforesaid types of movable joint devices covered by any present or future patent or patent application owned or acquired by said Licensors or either of them." (Emphasis supplied.) The term “future patent” obviously means a patent actually issued to Moskovitz. The words “future * * * patent application * * * ” can only refer to an improvement honestly and conscientiously deemed to be patentable. For an application cannot legally be filed on an invention known by the inventor to be unpatentable. 35 U.S. CA. §§ 101-103. And one who makes an application for a patent known to him to be unpatentable makes a false and perjured oath. 35 U.S.C.A. §§ 111, 115. Therefore the language emphasized clearly indicates, we believe, that it was the intention of the parties to the agreement to limit its scope to only those future improvements which were patentable.

Further indications of that intention appear in other provisions of the contract which are made to depend on the matter of patentability. Thus by paragraphs 4, 5 and 6 plaintiff agreed to pay royalties on the net sales of only those future improvements “ * * * covered by * * * any patent applications filed or acquired by Licensors and patents obtained thereon or otherwise acquired by Licensors * * By paragraph 18 the licensors agreed to apply for and diligently attempt to obtain patents on “all improvements” — a covenant which, as we have pointed out, they could not legally fulfill if the improvement was not patentable. Even the duration of the license agreement is made to depend upon the issuance of a patent on a future improvement, for paragraph 20 provides that the contract shall extend for the life of the issued patent or “ * * * for jife 0£ jast t0 ex_ pire of any patent which may issue on any patent applications which may be filed hereafter on applicable improvements acquired or made by Licensors coming within the scope of this license agreement * * In short, the theme of patentability appears again and again throughout the length of the agreement.

Lastly, to construe the contract as contended for by plaintiff would lead to an absurd result, and would give the contract the effect of an unreasonable contract not to compete. As we have heretofore pointed out, unless the future improvement on which the license was granted is patentable, neither Moskovitz nor plaintiff have any right to exclude others from making or selling it. Were we to construe the scope of the agreement as including unpatentable improvements, as plaintiff requests, the result would be that any one could make and sell the improvement — except Moskovitz. In effect this would convert the license agreement as to future improvements into a compact on the part of Moskovitz not to compete with plaintiff. This despite the fact that that subject was expressly covered in the sales contract executed coineidently with the license agreement. Since the license will extend to at least 1972, and since the area included is not limited but extends to the entire United States, such a contract would be unreasonable and therefore unenforceable in a court of equity. Mallinckrodt Chemical Works v. Nemnich, 169 Mo. 388, 69 S.W. 355; Renwood Food Products v. Schaefer, 240 Mo.App. 939, 223 S.W.2d 144; Reddi-Wip, Inc. v. Lemay Valve Co., Mo.App., 354 S.W.2d 913.

A patentee may, of course, assign a patent or license another thereunder, and as part of his contract may legally agree that the assignment or license shall extend to and include future patentable improvements. Littlefield v. Perry, 21 Wall. 205, 22 L.Ed. 577; Transparent-Wrap Mach. Corp. v. Stokes & Smith Co., 329 U. S. 637, 67 S.Ct. 610, 91 L.Ed. 563; Ellis, Patent Licenses, 3rd Ed., Sec. 3, p. 4. The rationale by which the contract to assign or license future improvements is justified is that an improvement may jeopardize or destroy the value of the patent assigned or the license granted, and that the purpose of the agreement is to safeguard the future of the assignees or licensee’s business. Printing & Numerical Registering Co. v. Sampson, L.R., 19 Eq. 462; Chadeloid Chem. Co. v. H. B. Chalmers Co., 2 Cir., 243 F. 606; A. B. Dick Co. v. Fuller, 2 Cir., 198 F. 404; Reece Folding Mach. Co. v. Fenwick, 1st Cir., 140 F. 287, 2 L.R.A.,N.S., 1094; Aspinwall Mfg. Co. v. Gill, 3 Cir., 32 F. 697; Consolidated Ry. Elec. Lighting & Equipment Co. v. United States Light & Heating Co., 77 N.J.Eq. 285, 78 A. 684. Equity will therefore enforce such a contract when the improvement is patentable, Transparent-Wrap Mach. Corp. v. Stokes & Smith Co,, supra; Chadeloid Chem. Co. v. H. B. Chalmers Co., supra; A. B. Dick Co. v. Fuller, supra; Flakice Corp. v. Short, 2 Cir., 115 F.2d 567. But no case has been cited to us, nor has our research disclosed one, in which an agreement to assign or license a future unpatentable improvement was enforced. Since the assignor or licensor of the original patent would have no right or title to an unpatentable improvement which he could convey, a court of equity would not require a futile act by ordering him to convey that which he does not own. Kennedy v. Hazelton, 128 U.S. 667, 9 S.Ct. 202, 32 L.Ed. 576; Crook v. Bendix Aviation Corp., D.C., 68 F.Supp. 449.

In the light of the foregoing it is our opinion that when the intention of the parties as of the time they executed the license agreement is gathered from a consideration of the entire instrument, Industrial Bank & Trust Co. v. Hesselberg, Mo., 195 S.W.2d 470, the conclusion is inescapable that the scope of the contract was intended to be limited to those future improvements which were patentable.

However, our conclusion regarding the scope of the license agreement is not to be considered as a blanket approval of all of Moskovitz’ actions. On the contrary, it is obvious that in certain respects he breached the contract, as the chancellor found. We concur with the chancellor’s opinion that by the terms of the contract Moskovitz was under the duty to inform the plaintiff of all improvements he designed in the field of movable joint devices for automotive replacement purposes, and to furnish plaintiff with drawings disclosing the same, whether or not he considered the improvement to be patentable. He failed and refused to do so. We also share the chancellor’s view that by paragraph 13 of the license agreement plaintiff has the right to make the initial decision regarding the patentability of a movable joint device submitted to it by Moskovitz. The evidence is clear that plaintiff considered the Mosko-vitz ball joints to be patentable improvements in the art, and there is nothing in the record to indicate any unreasonableness or lack of good faith in its part in reaching that decision. By the same paragraph, when requested to do so, Moskovitz is obligated to apply for and diligently attempt to obtain a patent on a device designed by him which plaintiff in good faith decides is patentable. Plaintiff requested Moskovitz to apply for a patent on the subject ball joints, but he refused to do so on the grounds that they were not patentable. But it is apparent that when the parties entered into the agreement they recognized that there might be honest differences of opinion arise between them on the question of patentability, for it is further provided in paragraph 13 that if Moskovitz does not prosecute an application for a patent, plaintiff has the right to “ * * attempt to procure patents of the United States on such improvements as are thought to be patentable by Licensee * * *.” While plaintiff originally prayed that Moskovitz be required to cooperate with it in the prepartion of patent applications, and to sign them, this issue apparently became moot when thereafter plaintiff availed itself of its right to apply for a patent. The plaintiff’s evidence showed that its application had not been finally passed on and was still pending in the Patent Office at the time the case was tried and submitted. So far as we know from what is before us, it remains in that status.

The remaining equitable relief sought by plaintiff was an injunction restraining defendants Moskovitz, Micro Precision, and Apex Metals from violating the license agreement by making and selling the Mos-kovitz ball joints. The judgment and decree granting such relief is vigorously attacked by those defendants. Assuming that the continuing breach of the contract was such as a court of equity might enjoin, it is apparent that plaintiff was entitled to relief only if the Moskovitz ball joints were within the scope of the license agreement. Viewing the contract in the light of the construction we have given it, such ball joints are not within the scope of the agreement unless they are patentable. Thus the ultimate and decisive question in plaintiff’s claim for relief is whether Moskovitz ball joints are patentable. This issue the chancellor expressly declined to decide. We are of the opinion that because of the circumstances presently existing in this case we are without jurisdiction to resolve that issue.

By Art. I, Sec. 8 of the Constitution of the United States, Congress is given the power to promote the progress of science and the useful arts by granting to an inventor for a limited time the exclusive right to his discovery, and to make all laws necessary and proper for carrying that express power into execution. While other Federal officers were originally authorized to issue patents, Butterworth v. Hoe, 112 U.S. 50, 5 S.Ct. 25, 28 L.Ed. 656, in 1836 Congress created the Patent Office, the chief officer of which was called the Commissioner of Patents, Act of July 7, 1836, Ch. 357, 5 Stat. 117. A comprehensive procedure was provided therein for passing on applications for patents. By that Act it was made the duty of the Commissioner to issue a patent if he deemed the invention to be sufficiently useful and important, and since 1839 (Act 1839, Ch. 88, 5 Stat. 354) the decision of the Commissioner as to the patentability of an invention, so far as the Patent Office is concerned, is final and conclusive. Appeals were provided from his decision, however, by an unsuccessful inventor and in interference cases. See Butterworth v. Hoe, supra; United States ex rel. Bernardin v. Duell, 172 U.S. 576, 19 S.Ct. 286, 43 L.Ed. 559. In general, the procedure established and the authority of the Commissioner of Patents remains the same today. 35 U.S.C.A. §§ 101, 131. It has been said that * * * in deciding whether a patent shall issue or not, the commissioner acts on evidence, finds the facts, applies the law, and decides questions affecting not only public but private interests ; * * * and in all this he exercises judicial functions.” United States ex rel. Bernardin v. Duell, 172 U.S. 586, 19 S.Ct. 289, 43 L.Ed. 559. See also Butterworth v. Hoe, 112 U.S. 59, 5 S.Ct. 29, 28 L.Ed. 656, where it was said that the action of the Commissioner in passing upon the patent-ability of an invention is “ * * * essentially judicial in its character * *

According to plaintiff’s own evidence, it has applied for a patent on the Moskovitz ball joints, as it had a right to do tinder the license agreement when Mosko-vitz refused to apply. So far as the record before us shows, that application is still pending, and no final determination of patentability has been made by the Commissioner of Patents. Thus what we would be required to decide, were we to pass upon the patentability of the Moskovitz ball joints, is the very question presently pending before the Commissioner. This we •cannot do. Congress has given the sole authority to the Commissioner of Patents to initially make that decision. As was said in Hoeltge v. Hoeller, 12 Fed.Cas. 289, Fed.Cas. No. 6,574, 2 Bond, 386: “ * * * It is made, by law, the official duty of the commissioner of patents to pass upon all applications for patents, and a court can not anticipate his action by taking jurisdiction •of the question, whether a pending application for a patent will or will not be granted.” And in Standard Scale & Foundry Co. v. McDonald, Cir.Ct., W.D.Mo., 127 F. 709, it was held that an applicant for a patent, while his application is pending, could not sue in equity to enjoin the defendant from using the invention even though it was shown that the applicant was the original inventor and that the defendant had by fraud secured a patent to the invention. There it was said that, “ * * * it never was the mind of Congress that the inventor, without complying with the statutory scheme of submitting his claim to the Patent Office for its action thereon, could go into a United State court in the first instance to

have determined the question of his right to a patent, and the exclusive use of the claimed invention.” (127 F. 710). Since the authority to decide in the first instance whether an invention is patentable is vested by the Congress in the Commissioner of Patents, and since in arriving at this decision he exercises a quasi-judicial function, whatever decision we might reach regarding the patentability of the Moskovitz ball joints would not be binding on the Commissioner. Were we to try to anticipate his decision we might be placed in the awkward position described in Hoeltge v. Hoeller, supra, 12 Fed.Cas. 290: “ * * * If the injunction prayed for should be allowed, and the complainant should fail in his application for a patent, this court would be placed in the position of entertaining jurisdiction and granting relief in a case in which the complainant had not the shadow of either legal or equitable right.”

When the license agreement is considered as we have construed it, the contract is not invalid for any of the reasons alleged by defendants Moskovitz and Micro Precision and the court’s action in dismissing their counter-claim was correct.

We turn now to a consideration of defendant Frankel’s cross-complaint against Moskovitz. This requires a further statement of the facts. On June 15, 1953, two days before the execution of the license agreement and sales contract with plaintiff, Frankel, Moskovitz and Neo-Tech (Old Republic) entered into an agreement setting forth what their respective rights and obligations would be after the license and sale to plaintiff. Moskovitz agreed therein that in addition to the interest in patents theretofore assigned to Frankel he would assign to the corporation, or in the alternative to Frankel at the latter’s direction, a fifty percent interest in “ * * * all future patents issued and patent applications applied for and any improvements thereon * * * ” concerning certain enumerated automotive devices, including ball joint suspensions. It appears from the evidence that in 1958 certain litigation was then pending in the St. Louis County Circuit Court in which Frankel was the plaintiff and Mosko-vitz and one Leon Fine were the defendants. Fine is not identified, nor does the nature of the litigation appear in the record. All that appears is that in accordance with a stipulation, the court on or about July 2, 1958, entered a consent decree adjudging the contract of June 15, 1953 to be a valid agreement, supported by adequate consideration ; ordering Moskovitz to assign to Frankel a fifty percent interest in a long list of designated patents and pending patent applications, none of which include the presently involved Moskovitz ball joints; and directing Moskovitz to also assign to Frankel any patents issued on such specified applications, and any improvement thereon, “ * * * together with any patent applications now filed or to be made in the future by Moskovitz * * * ” (Emphasis supplied.) on (among other devices) ball joint suspensions. Admittedly Moskovitz has not been issued a patent on the Moskovitz ball joints, nor has he applied for one. Whether he should have applied for one or more patents on such devices cannot be determined until the patentability of the Mosko-vitz ball joints is determined. What we have said regarding our lack of jurisdiction to presently decide that issue is likewise applicable to Frankel’s cross-claim against Moskovitz.

The motion of plaintiff Republic Engineering and Manufacturing Company to either affirm the judgment or to dismiss the appeal for failure to comply with the rules, is denied.

For the reasons stated it follows that that part of the judgment and decree dismissing the counter-claim of defendants Moskovitz and Micro Precision Engineering Company should be affirmed, that the remainder of the judgment and decree should be reversed, and the cause should be remanded for further proceedings not inconsistent with this opinion. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of this court.

Accordingly, the motion of plaintiff Republic Engineering and Manufacturing Company to either affirm the judgment or to dismiss the appeal for failure to comply with the rules, is denied; that part of the judgment and decree dismissing the counter-claim of defendants Moskovitz and Micro Precision Engineering Company is affirmed, the remainder of the judgment and decree is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

RUDDY, P. J., and WOLFE and ANDERSON, JJ., concur.


source: Caselaw Access Project

author: PALMORE, Judge.

license: Public Domain

text:
    CITY OF COVINGTON, etc., et al., Appellant, v. E. B. MEYER, Appellee.
    Court of Appeals of Kentucky.
    March 13, 1964.
    E. H. Henry, Rodney S. Bryson, Coving-ton, for appellant.
    Stanley Chrisman, Covington, for appel-lee.
   PALMORE, Judge.

In this action the Kenton Circuit Court adjudged that the appellee, Meyer, an electrician in the fire department of the City of Covington, could not be required to work on the basis of eight hours per day five days a week, Monday through Friday, in view of KRS 95.500(3), which was amended in 1962 to read as follows:

“The fire department of each second class city shall be divided into three platoons. Each platoon shall be on duty for twenty-four consecutive hours, after which the platoon serving twenty-four hours shall be allowed to remain off duty for forty-eight consecutive hours, except in cases of dire emergency. The chief of the fire department shall arrange the schedule of working hours to comply with the provisions of this section. The pay, rank or benefits of the members and officers of the fire department, shall not be reduced as a result of this subsection.”

It is argued that under familiar rules of statutory construction designed to avoid an absurd or impracticable result the term “fire department” should be held to encompass only those whose primary duties are to fight fires, of so-called “line firemen.” It would be very difficult to do this in the face of KRS 95.010(2) (c) : “ ‘Fire department’ means and includes all officers, firemen, and clerical or maintenance employes of the fire department.”

The aforementioned rule of construction rests upon a presumption that the legislative body surely would not have intended an awkward result. Such a presumption is impossible when it is clear that the legislative body did in fact intend the result in question. The statutes applicable to this case are too plain to leave any room for doubt.

On the question of injunctive relief, we are of the opinion that the loss of his rights under KRS 95.500(3) constituted an irreparable injury for which Meyer had no adequate remedy at law.

The judgment is affirmed.


author: CULLEN, Commissioner.

text:
    Helen SMARSH, Appellant, v. Ralph SPADE et al., Appellees.
    Court of Appeals of Kentucky.
    March 13, 1964.
    Jay H. Taylor, Pineville, for appellant.
    Farmer Helton, Pineville, for appellees.
   CULLEN, Commissioner.

In a joint action Ralph Spade and Tony Stout recovered judgments against Pete Smarsh in the amounts of $275 and $300. A power shovel alleged to belong to Pete was attached in the action. Pete’s wife, Helen, intervened and claimed ownership of the shovel. Judgment was entered sustaining the attachment and ordering the shovel sold to satisfy the money judgments against Pete. Helen has attempted to appeal as a matter of right from the judgment on the attachment.

The value of the shovel (which is the amount in controversy) is not fixed by the judgment, either alone or when construed in connection with the pleadings. See KRS 21.070. The shovel is not shown to be such as by common knowledge would have a value of more than $2,500. (The evidence, which anyway is not entitled to be considered in determining the amount in controversy for appeal purposes, shows that the shovel was purchased for $3,000' some five years before the attachment. Presumably its present value is much less.)'

The amount in controversy not being shown to be as much as $2,500, and there being no motion for an appeal, the appeal must be dismissed. See Mullins v. Hall, Ky., 273 S.W.2d 831. The recitation in the statement of appeal that the amount in controversy exceeds $2,500 is of no weight. See Simpson v. Carroll, Ky., 313 S.W.2d 579.

The appeal is dismissed.


author: DAVIS, Commissioner.

text:
    Chester LAINHART, Appellant, v. RURAL DOXOL GAS COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    March 13, 1964.
    Ware, Bryson & Nolan, Covington, Robert F. Greene, Burlington, for appellant.
    Wise & Brose, Cincinnati, Ohio, for appellees.
   DAVIS, Commissioner.

Appellant asks reversal of a judgment of the Kenton Circuit Court which affirmed an award of the Workmen’s Compensation Board. The Board’s award allowed appellant temporary total disability from July 18, 1960, to July 30, 1960, plus permanent partial disability award for 398%ths weeks, at the rate of $7.75 per week, based upon a finding of 25% permanent partial disability.

Appellant asserts error on these points: (1) the evidence conclusively demonstrates total permanent disability, and (2) in any event, his total disability, even if temporary, was of greater duration than the period from July 18 to July 30, 1960.

Appellant, Lainhart, was employed by appellee Rural Natural Gas Company on and before July 18, 1960; on that date, while lifting two tanks of propane gas onto a truck, he sustained an injury to his back. He was confined to a hospital from July 18 to July 30, 1960. Although released from the hospital on July 30, 1960, appellant had not been employed at the time of the hearing before a referee of the Workmen’s Compensation Board on January 17, 1961.

Appellant had formerly worked as a cook for Tastee Foods; during that employment he sustained a .back injury approximately six years before the incident at bar. He was off work then two or, three days, consulted a chiropractor (now deceased) but did not receive compensation on account of that complaint. Appellant sustained a back injury while loading rock for appellee some “year and a half’ before July 18, 1960. He was off work two weeks then, but received no compensation.

The medical testimony reflects that appellant had suffered intermittent backache for three years prior to the accident. The expert evidence classified the condition as a congenital defect in the lumbar area, evidenced in part by a narrowing of the fifth lumbar intervertebral disc. The medical testimony clearly supports the findings of the Workmen’s Compensation Board. The parties concede, of course, that this court will not upset the Board’s finding if it is supported by competent evidence of probative value. Deby Coal Co. v. Roark, Ky., 360 S.W.2d 511.

Appellant earnestly contends that the medical testimony is unanimous in concluding that appellant is totally permanently disabled as the result of his back condition. If this were the case, of course the Board’s ruling was error. However, the record does not support the contention; hence, the ruling of the trial court was correct. See Lee v. International Harvester Co., Ky., 373 S.W.2d 418.

Appellant next complains that the allowance for temporary total disability should have exceeded the brief period from July 18 to July 30, 1960, when he was hospitalized. The medical evidence ascribes 25% of appellant’s disability to the injury of July 18. The remainder of the disability is attributable to the pre-existing congenital defect. Indeed, the physician who first treated appellant on July 18 testified that at that time appellant gave no account of any incident on that day, or about that time, to which he traced his complaints. The medical evidence fairly supports the finding of the Board that appellant’s disability in excess of 25% is the result of a noncompensable pre-existing condition. In light of this, there is abundant evidence to support the Board’s finding" as to the extent of the temporary total disability.

Finally, in brief for appellees, it is urged that the judgment be reversed for a reduced award. Appellant’s motion to strike that request was passed to the merits. Appellee did not avail itself of cross-appeal as provided by CR 74; thus, the judgment may not be modified on this appeal at the instance of the appellees.

The judgment is affirmed.


text:
    Gerald TANKERSLEY, Appellant, v. Dillie GILKEY, Appellee.
    Court of Appeals of Kentucky.
    March 13, 1964.

      Earle M. Nichols, Nichols & Nichols, Madisonville, for appellant.
    Franklin & Gordon, Madisonville, for appellee.
   CULLEN, Commissioner.

Dillie Gilkey sued Gerald Tankersley for damages arising out of an automobile collision. Tankersley moved to quash the summons. On October 1, 1962, an order was entered overruling that motion. On the same day the court entered an order adjudging Tankersley to be in default for failure to appear, adjudging that the allegations of the complaint be taken as confessed, except the allegations concerning damages, and ordering that a jury trial be held thereafter for the purpose of assessing damages. Also on the same day, Tankersley entered a motion to be permitted to file an answer to the complaint. That motion was overruled by an order of October 10, 1962.

Tankersley has undertaken to appeal from the three orders above mentioned. Obviously, the order overruling the motion to quash the summons is interlocutory and not appealable. Bastian Bros. Co. v. Field, 280 Ky. 727, 134 S.W.2d 648. The same is true as to the order overruling the motion for permission to file an answer. Vance v. King, Ky., 322 S.W.2d 485; Wilhelm v. Hendrick, 177 Ky. 296, 197 S.W. 836.

The order adjudging Tankersley to be in default did not finally dispose of the action because it left to be determined the amount of damages. The order was merely interlocutory and is not appealable. See 49 C.J.S. Judgments § 216, pp. 381, 382; cf. Kentucky Heating Co. v. City of Louisville, 178 Ky. 424, 198 S.W. 1150; Green River Fuel Co. v. Sutton, 260 Ky. 288, 84 S.W.2d 79; Hubbard v. Hubbard, 303 Ky. 411, 197 S.W.2d 923.

The appeal is dismissed.


text:
    Al SCHRICHTE, Appellant, v. John J. BORNHORN, As Chief of Police of the City of Covington, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 13, 1964.

      Daniel W. Davies, Newport, for appellant.
    E. H. Henry, Rodney S. Bryson, Coving-ton, for appellee.
    Charles J. Schear, Newport, amicus curiae.
   PALMORE, Judge.

The appellee, as Chief of Police of the City of Covington, promulgated an intra-departmental order assigning detectives A1 Schrichte and Emmett Ireland to a “regular line shift” with the rank of acting first lieutenant and assigning two of the lieutenants in the department to duty in the detective division. No changes in pay were involved. Schrichte brought this action against the chief for a declaration of rights and injunctive relief. He appeals from a judgment upholding the chief’s authority to make the transfers.

Control of the police department of a second or third class city, including the appointment and “grading” of personnel, is vested by KRS 95.430 in its legislative body. The title or denomination of “detective” is recognized (for whatever significance that may have) by the terminology of KRS 95.430(4) in providing that the number of “firemen, policemen, detectives and officers of the police and fire departments shall be such as the city legislative body may ordain.” (Emphasis added.)

By an ordinance enacted in 1942 the city commission prescribed a manual of rules and regulations for the administration of the police department. Pertinent excerpts from the manual are as follows:

“Section 4. Relative Rank. The members of the police department shall rank in the following order: Chief, Assistant Chief, Lieutenants, Sergeants, Detectives, Telephone Operators and Patrolmen, and Superintendent of the Bureau of Identification.”
“Section 5. Chief of Police. * * * 7. He shall have the power to assign or transfer any member of the Police Department where such transfer or assignment is for the benefit of the department and is in conformity with the law.”
' “Section 7. Detectives. 40. Members of the force assigned to the Detective Bureau shall be under the immediate control of the Chief of Police, or other superior Officers on Duty.”
“Section 16. Transfers and Details of Assignments. 210. The Chief of Police may make such assignments and transfers as he deems for the best interest of the department.”

Later on, in 1949, using the initiative procedure of KRS 89.610, the voters of the city forced the enactment of an ordinance setting forth the positions of employment in the various departments of its government and prescribing the salaries of each. The section applicable to the police department calls for five lieutenants at a salary of $287.40 per month and ten detectives at the same salary. This ordinance did’ not purport to define the duties incident to the enumerated positions. On the contrary, it provided that “said officers, agents and employees shall perform the various duties respectively as provided by law and the ordinances of the City of Covington.”

Appellant contends that the rank or “grade” of detective is recognized by KRS 95.430 and established for the City of Covington by the 1949 ordinance, and that having been appointed to that grade by the legislative body of the city he cannot be removed from it by action of the chief of police. A corollary argument is that there is no such grade as “acting lieutenant.”

KRS 95.450(1) provides that a member of the police or fire department of a city of the second or third class shall not be “reduced in grade or pay” except for cause and after a hearing on appropriate charges. In this connotation we are of the opinion that the term “grade” means rank, whereas it appears that appellant interprets it more broadly as job classification. Obviously, by use of the word “reduced” the statute envisages a vertical scale. If a man is transferred without a loss in pay rate from one job category to another with comparable authority, his classification is changed but his grade is not reduced. That is what has happened in this case. The men in question have been re-assigned without a change in grade.

We are unable to find anything in the applicable statutes and ordinances that prevents the chief of police from assigning a detective to duty in another division of the police department. The detectives have no authority and no duties except as they are set forth in the 1942 manual, and this is the same document that gives to the police chief the power of transfer and reassignment over them. Therefore, construing all of the provisions in the manual as consistent one with the other, their duties are bound to be subject to such right of transfer and re-assignment. If this analysis is correct, and we believe it is, there can be no doubt that any member of the police department, regardless of title, can be assigned to other duties with comparable authority if the chief deems it to the benefit of the department. Hence the case boils down to a simple question of what the man’s title is going to be when he is so re-assigned.

We cannot escape the conclusion that the provisions of the 1942 manual clearly delegate to the chief of police the power of transfer and reclassification. This being true, it would be absurd to say that he could not redesignate titles accordingly. But even if it were assumed that a person appointed as a detective by the legislative body could not be divested of his official title by the police chief, that circumstance would not be inconsistent with assignment of the detective to duties normally performed by a person with another title. As a matter of fact, the order of the chief in this instance did not purport to re-designate the title of any of the officers involved. It merely provided that the detectives have the rank of acting lieutenant — in other words, a rank equivalent to that of a lieutenant. This served two purposes: (1) It made clear that their grade was not reduced, and (2) since they were being assigned from staff to line duty it fixed their status in the chain of command. We do not find this to have been improper.

The judgment is affirmed.

      . Unless it be considered an upward change in view of the relative order of rank provided in Sec. 4 of the 1942 manual.

      . It was held in City of Middlesborough v. Grubbs, Ky., 363 S.W.2d 95, 97 (1962), that the statutes pertinent to this case do not guarantee mere titles.


author: STEWART, Judge.

text:
    Joe SCAMAHORNE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 13, 1964.
    See also Ky, 357 S.W.2d 30.
    John S. Kelley, Bardstown, Hobson L. James, Elizabethtown, for appellant.
    John B. Breckinridge, Atty. Gen., John B. Browning, Asst. Atty. Gen., Frankfort, for appellee.
   STEWART, Judge.

Appellant, Joe Scamahorne, appeals from a judgment of the Nelson Circuit Court sentencing him to two'years in the penitentiary for the crime of carrying concealed a deadly weapon. He asks reversal of this conviction on the ground that the trial court erred in overruling his motion to suppress the evidence obtained in respect to the concealed deadly weapon by a search incident to an arrest he claims was illegal. Other complaints are listed and these will be discussed as there will no doubt be another trial.

Appellant was arrested in Nelson County on April 22, 1961, by William C. Smith, a detective of the Kentucky State Police, who was accompanied by other state policemen, on a warrant that issued from Barren County on a charge of burglary. They saw appellant standing in front of a grocery store, approached him, and stated they had a warrant for his arrest, which warrant they either showed or read to him. Detective Smith, according to the testimony he' gave later, then asked: “Joe, do you have anything on you?” and appellant answered that he had a gun in his back pocket. This officer said he then took the gun from appellant. The officers testified the weapon was concealed and appellant testified the butt of it was sticking out of one of his pockets and was plainly visible.

Appellant first argues that the affidavit upon which the warrant of arrest on the charge of burglary was issued was insufficient to furnish probable cause with the result that the arrest and search that followed were illegal.

The affidavit, made by Detective Smith, the arresting officer, is subscribed near the bottom of the warrant and recites that “he believes and has reasonable grounds to believe that the allegations of fact contained in the above and foregoing warrant are true.” The warrant itself makes the statement that on April 19, 1961, in Barren County, Kentucky, Joseph Edward Scamahorne undertook by force to steal money or other things of value from the Hiseville Deposit Bank and attempted to open a safe in said bank. This same type of affidavit was held to be inadequate to uphold issuance of a warrant of arrest in Harvey v. Commonwealth, 226 Ky. 36, 10 S.W.2d 471. The Commonwealth admits the deficiency of the affidavit and further concedes that if it is construed to be an “ultimate fact” affidavit, it is still insufficient. In Henson v. Commonwealth, Ky., 347 S.W.2d 546, it was held that if the affidavit purports to state an ultimate fact, it must state how and when the alleged ultimate fact was observed. The later case of Smallwood v. Commonwealth, Ky., 349 S.W.2d 830, decided that the ultimate fact theory was abolished and ruled that the affiant, in order to secure a search warrant, must set forth the grounds of his belief.

However, the Commonwealth argues that the arrest was not illegal, despite the invalidity of the affidavit, as Section 36 (2) of the old Criminal Code of Practice (now KRS 431.005) authorizes a peace officer to make an arrest without a warrant upon reasonable grounds for believing that the person arrested had committed a felony. It is argued Detective Smith had such grounds. It has been held that if the facts are such that an ordinarily prudent man would have believed the accused guilty and would have acted upon that belief, a police officer’s act in making an arrest without a warrant is justified. Grau v. Forge, 183 Ky. 521, 209 S.W. 369, 3 A.L.R. 642. The arresting officer in felony cases must act upon facts within his own knowledge, or upon reliable information communicated to him by a third person. Mere belief or suspicion does not constitute reasonable grounds. Detective Smith’s own testimony precludes any belief other than that he took appellant into custody in obedience to the so-called warrant of arrest.

A final contention of the Commonwealth is that appellant waived the right to question the legality of his arrest and the search of his person at his second trial, as he could have raised but did not raise any question in this respect at his first trial. See Scamahorne v. Commonwealth, Ky., 357 S.W.2d 30. It has been said: “The doctrine of the law of the case applies only to rulings by an appellate court and does not apply to rulings by the trial court.” See 5B C.J.S. Appeal and Error § 1821 a, p. 190. See also Henderson v. Union Pac. R. Co., 189 Or. 145, 219 P.2d 170 and Lawrence v. Ballou, 37 Cal. 518. We believe this doctrine should apply in this case.

Other questions are raised which we deem it unnecessary to consider because we do not believe they will recur in the event of another trial.

Wherefore, the judgment is reversed and the case is remanded with directions that in the event of another trial such shall be held in conformity with this opinion.


text:
    Jess SHEFFIELD et al., Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, et al., Appellees.
    Court of Appeals of Kentucky.
    March 13, 1964.
    Woodward, Bartlett & McCarroll, Owensboro, for appellants.
    John B. Breckinridge, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Dandridge F. Walton, Madisonville, for appellees.
   DAVIS, Commissioner.

In this condemnation proceeding pursuant to KRS 177.081 et seq. the Hopkins Circuit Court dismissed the appeal from the Hopkins County Court undertaken by the present appellants, Jess Sheffield and Raymond Coy. The sole question is whether the circuit court acted properly in dismissing the appeal.

In the county court the Department of Highways (hereafter referred to as the Department) named Alva Coal Corporation and West Kentucky Coal Company as defendants in the condemnation proceedings, and named the present appellants as defendants also. The present appellants were referred to in the county court proceedings as “lessees.”

After the judgment was entered in county court Sheffield and Coy made timely filing of a statement of appeal in Hopkins Circuit Court pursuant to KRS 177.087. A statement of appeal was filed in which only Jess Sheffield and Raymond Coy were designated as appellants; the Department was designated as appellee. No reference was made to the two coal companies. None was necessary. Sheffield and Coy were authorized to appeal to the circuit court; it was not necessary for them to name the two coal companies as parties. See Riley v. Commonwealth of Kentucky, 1963, Ky., 375 S.W.2d 245. The Riley decision completely governs the instant appeal; the ruling of the circuit court was erroneous.

It is proper to observe that the circuit court’s ruling was rendered prior to the decision in Riley, supra. In the instant appeal the appellee has tacitly confessed error by its failure to file brief in this court. RCA 1.260.

The judgment is reversed for proceedings consistent with this opinion.


author: MONTGOMERY, Judge.

text:
    Earle V. POWELL, Commissioner, Department of Economic Security, etc., Appellant, v. Vencil PRUITT, Appellee.
    Court of Appeals of Kentucky.
    March 13, 1964.
    Paul E. Tierney, Forest Smith, Dept, of Economic Security, Frankfort, for appellant.
    William R. Redwine, Sandy Hook, for ap-pellee.
   MONTGOMERY, Judge.

Earle V. Powell, as Commissioner of the Department of Economic Security, has appealed from a judgment in favor of Vencil Pruitt holding that Pruitt “is permanently and totally disabled and qualified to receive aid to dependant (sic) children as contemplated by the Public Assistance Law.” The judgment reversed a ruling by the Appeal Board holding appellee ineligible to receive aid for his dependent children. See KRS 205.230.

Appellee has failed to file a brief. Pursuant to RCA 1.260(c) (2), the failure of appellee to file a brief is regarded as a confession of error, requiring a reversal. Appellant’s brief reasonably appears to sustain such action. On the record the judgment is erroneous. Powell v. Bingham, Ky., 350 S.W.2d 150.

Judgment reversed.


author: WILLIAMS, Judge.

text:
    Edward A. WAGNER, Jr., Petitioner. v. J. W. HODGES, Judge, Hardin Circuit Court, Elizabethtown, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    March 13, 1964.

      Edward A. Wagner, Jr., pro se.
    Robert Matthews, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for ap-pellee.
   WILLIAMS, Judge.

Edward A. Wagner, Jr., a prisoner confined in the Kentucky State Penitentiary at Eddyville, filed motion to vacate judgment against him in the Hardin Circuit Court under RCr 11.42. By this action he petitions this Court to order J. W. Hodges, Judge of the Hardin Circuit Court, to grant his motion or grant him a hearing thereon.

The response shows that Judge Hodges considered the grounds set forth in petitioner’s motion and entered an order overruling the motion. Consequently, this case is now moot.

The order of mandamus is denied.


text:
    LOUISVILLE TIMBER & WOODEN PRODUCTS COMPANY, Appellant, v. CITY OF BEECHWOOD VILLAGE, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    March 13, 1964.

      Oldham Clarke, McElwain, Dinning, Clarke & Winstead, Frank H. Thiemann, Jr., Louisville, for appellant.
    W. A. Armstrong, Louisville, for appel-lees.
   WILLIAMS, Judge.

This is an appeal from a judgment of the Jefferson Circuit Court holding that the action of the Board of Trustees of the City of Beechwood Village in refusing to rezone appellant’s property was not arbitrary, unreasonable or capricious.

In 1951, Beechwood Village adopted a zoning ordinance which provided that the property in controversy here, as well as other property in the city, was included in a single-family residence zone. In 1952, the City amended its zoning ordinance so that an area including this property was zoned for multi-family dwellings. The 1952 amendment was declared valid by this Court in Byrn v. Beechwood Village, Ky., 253 S.W.2d 395 (1952). It was pointed out therein that, under the statutes governing zoning in cities of the sixth class, there is no provision for an appeal from the action of the city legislative body in enacting or amending a zoning ordinance. The only remedy is such as may be available through resort to the extraordinary equitable jurisdiction of the courts. We said: “It is well settled that this remedy is available only upon a showing that the action complained of is arbitrary, capricious or illegal.” The question before us therefore is whether the refusal of the city to amend its zoning ordinance may be attacked, and whether it was arbitrary, capricious or illegal.

The appellant purchased the property in controversy in 1959. Soon thereafter it made application to the Zoning Commission for a change of zoning from multi-family to limited commercial. The Zoning Commission may hold public hearings and make recommendations to the city legislative body. KRS 100.550. The .Zoning Commission recommended to the Board of Trustees of the City that the change be granted, but the Board rejected the recommendation and refused to enact an ordinance carrying such recommendation into effect. An action in equity may be maintained to test the Board’s refusal to act.

The circuit court correctly held that an ordinance otherwise valid could be held invalid insofar as it affected particular property, and that an ordinance, valid when adopted, could become invalid at a later time if its operation under changed conditions proved “to be confiscatory. Vernon Park Realty Co. v. City of Mt. Vernon, 307 N.Y. 493, 121 N.E.2d 517. That court further correctly held that it could not be said that failure of the Board of Trustees to follow the recommendations of the Zoning Commission was an illegal action. The court limited itself to a determination of whether the 1952 ordinance affects this particular property in such manner as to be arbitrary or capricious and thus confiscatory, or to bear no relation to the welfare, safety and health of the community.

We said in Leutenmayer v. Mathis, Ky., 333 S.W.2d 774 (1960), that the sole question is whether the legislative body acted arbitrarily, capriciously or illegally. If the evidence is such that reasonable minds could differ as to whether the zoning ordinance had a substantial relation to the public health, morals, safety or general welfare, the ordinance must be upheld. The lower court found that the operation of the 1952 ordinance did not constitute a confiscation of plaintiff’s property, and it specifically adjudged that the action of the Board of Trustees was not arbitrary, unreasonable or capricious.

The evidence heard by the Zoning Commission shows that across the street and immediately east of the property in question there has been considerable commercial development. Although that property is outside the city limits of Beechwood Village, nevertheless testimony concerning it was proper. On the other hand, directly behind and to the west of the property there have been erected many single-family residences, apartment buildings, and one church building. There has been no commercial development in that area which is within the City of Beechwood Village. There was substantial testimony on behalf of appellant that the most suitable use for the property in question was a commercial one, and that it was not economically feasible to build apartments on it. We stated in Schloemer v. City of Louisville, 298 Ky. 286, 182 S.W.2d 782 (1944), that the fact that a commercial use may be more profitable than a residential one is not sufficient to justify a finding of unwarranted hardship. In Fried v. Louisville & Jefferson County Planning & Zoning Commission, Ky., 258 S.W.2d 466 (1953), we held that the justification for zoning restriction is the greater benefit which accrues to the public as a whole, and hardship to an individual is not sufficient to show that the action was arbitrary or discriminatory.

The zoning statute pertinent to a city of the class of Beechwood Village is KRS 100.520, which provides:

“Purposes of regulations. Regulations shall be made in accordance with a comprehensive plan and shall be designed to lessen congestion in the streets; to secure safety from fire, panic, and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements. The regulations shall be made with reasonable consideration of the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land.”

The appellant finds comfort in the last sentence of that statute which indicates that consideration should be given to the most appropriate use of the land. There can be no quarrel with that contention, but it is far from the only criterion by which a zoning regulation shall be judged. Quite possibly the best use to which the land in question could be dedicated would be a commercial use. However, there was sufficient evidence developed at the hearing indicating possible congestion, unsafe conditions, et cetera, which apparently outweighed the other considerations in the opinion of the Board. “The justification for zoning restriction is the greater benefit which accrues to the public as a whole, and hardship to an individual is not sufficient to show that the action was arbitrary or discriminatory.” Fried v. Louisville & Jefferson County Planning & Zoning Commission, supra.

There has been no adequate showing that the action of the Board of Trustees was arbitrary, capricious or illegal. And, in the ■absence of such showing, the action of the Board cannot be said to have been confiscatory.

The judgment is affirmed.


author: PALMORE, Judge. MONTGOMERY, Judge

text:
    BOARD OF EDUCATION OF ASHLAND SCHOOL DISTRICT et al., Appellants, v. Charles E. CHATTIN, Appellee.
    Court of Appeals of Kentucky.
    March 13, 1964.

      W. H. Dysard, Dysard, Johnson & Welch, Ashland, for appellants.
    H. David Hermansdorfer, Diederich & Hermansdorfer, Ashland, for appellee.
   PALMORE, Judge.

The appellee, Charles E. Chattin, was employed as Director of the Ashland Area Vocational School from July 1, 1954 to. July 14, 1961, during all of which time the school was under the control of the appellant school board and he was under the direction and supervision of its superintendent of public schools. In March of 1961 the superintendent notified Chattin by letter that he would not be recommended for reemployment as director of the vocational, school for the year beginning July 1, 1961. On July 3, 1961, Chattin brought suit irr the Boyd Circuit Court claiming entitlement to a continuing status under KRS 161.720 et seq. and asking to enjoin the-school board and its individual members, from discharging him without a hearing.

After commencement of the injunction suit the school board decided to proceed, under KRS 161.790 and, by letters directed to Chattin on July 14, 1961, and July 24,. 1961, listed the specific charges forming the-basis for its decision to terminate his employment. A hearing conducted by the-board on August 17, 1961, resulted in a-formal order dismissing Chattin, from which he appealed to the Boyd Circuit Court as authorized by KRS 161.790(5).. The circuit court found the charges andi proof insufficient to justify the dismissal.. The school board and its members have-appealed that decision to this court.

Although the injunction suit appears to-have been left withering on the vine, in his-statement of appeal from the action of the-school board Chattin incorporated by reference the allegations of his injunction complaint. We do not find any order consolidating the two actions, but the papers, of both are here as one record. The final judgment of the circuit court does not include injunctive relief, but it declares that Chattin has a continuing status and sets-forth the conditions under which the school: board and its members as individuals will be liable for the payment of his salary. All of this, say the appellants, is premature,, because, among other reasons, until it was-determined that the board had no right to> ■discharge him it had neither the duty nor the opportunity of offering him another ■position; thus the judgment says more •than was necessary or appropriate. Since, 'however, we have concluded that the judgment should be reversed on the essential •merits of the controversy it becomes unnecessary to pursue this aspect of the appeal.

All of the charges contained in the .•accusatory letters of July 14 and 24, 1961, can be fairly classified as either insubordination, inefficiency, or incompetence, these being among the legal causes for dismissal .authorized by KRS 161.790. We shall not ■discuss all of the charges, as any one .ground, if supported by substantial evidence, is sufficient. Hoskins v. Keen, Ky., 350 S.W.2d 467, 469 (1961).

Item 2 of the July 24 specifications was •that the board had experienced “continual ■.trouble getting you to make the financial ■reports required by the law and regulations. For example, on January 22, 1959, on instructions of the Board of Education, the Superintendent wrote you in regard to the ■monthly reports of the Ashland Vocational School. This was brought about by the fact that the December report had not been received early enough for the Board to study the report before acting upon it. It was important that these reports show receipts by the Vocational School for ‘Sales of Merchandise and Materials’ and ‘Contracts and Projects.’ You have never in- ■ eluded in your monthly ‘financial data sheet’ .any entry of these items.”

Though Chattin took the position that none of the charges were sufficient to satisfy the statutory requirement that they be specified “in detail,” this is one of three 'he “accepted” for purposes of the hearing. The trial court held that all of the charges were defective because they did not set forth exact times and places and specific acts or omissions. However, we do not construe KRS 161.790(2) as requiring greater exactitude than a civil complaint. It is enough that the charges give fair notice of their essential nature and bases. If they are not sufficiently specific to enable the accused to prepare his case there is no reason he may not obtain the particulars by a timely demand. Without passing judgment on the other charges, we think the second charge contained in the July 24 letter was quite adequate. To the extent it may be considered in conflict, Bowman v. Ray, 118 Ky. 110, 80 S.W. 516 (1904), is overruled. The other cases cited by Chattin are not materially inconsistent with what we have said here.

The substance of the evidence supporting the second charge in the July 24 letter was as follows:

After discussions with state officials concerning the property accounting and financial records of the vocational school the board in 1958 caused an audit to be made by a firm of certified public accountants. Chattin was disposed at first to balk at this imposition, and telephoned a state official at Frankfort to know if it was authorized. He was referred to his superior officer, Mr. Shattles, the local school superintendent. When the auditor desired to check certain material inventories, Chattin felt that he was trying to conduct an “investigation” instead of an audit and would not let him do so until Shattles was called. Shattles and the chairman of the school board went to the vocational school in order to settle the matter, whereupon the audit was completed without further incident.

The audit resulted in finding's that the records of the school were inadequate, and recommendations were made for their improvement. Accordingly, several changes were effected but it was not possible to carry out the recommendations fully because Chattin eventually said they required a great deal of work and he did not have the necessary clerical help. Therefore, Shattles endeavored to simplify the reporting procedures and had printed some forms which he asked Chattin to use. One of these forms styled “Financial Data Sheet” for the month of November, 1959, was filed with the testimony given at the hearing. It divided cash receipts into four categories, (1) Tuition, (2) Sales of merchandise and materials, (3) Contracts and projects, and (4) All other receipts. On this specimen of November, 1959, the cash receipts totalling $3,540.61 were itemized as “Tuition” $1,850 and “All other receipts” $1,690.61. Items 2 and 3, “Sales of merchandise and materials” and “Contracts and projects,” were left blank. Chattin testified that his practice was to lump them together under Item 4, “All other receipts,” because he did not consider the school as a “business.” He admitted that he and Shattles had discussed this particular report form when it was devised, and obviously he filled it out and submitted it every month. Yet on the witness stand he professed to believe it was merely a sheet for Shattles’ own personal records, and “No one ever explained to me what it was supposed to mean.” As we understand the testimony, he never did fill out items (2) and (3) of this monthly report.

Shattles testified that the subject of bookkeeping and inventory records had been a continuous problem between him and Chat-tin and that he had never been able to get Chattin to keep the cash records in the form he had devised for that purpose. Chattin’s own testimony in this connection reveals unmistakable obstinancy and lack of candor. He could not have failed to understand the simple report we are now discussing ; whether he agreed with its obj ects- and purposes was immaterial. His was not the job of running the railroad. That belonged to Shattles and the school board. His failure to comply with the reasonable requirements of his superior officer constituted inefficiency or incompetence at best., and insubordination at worst.

It is our opinion that on the charge of failure to carry out instructions concerning' the financial records of the vocational school the evidence was amply sufficient to-sustain Chattin’s discharge, and that the-trial court erred in finding otherwise.

During the hearing one of the board' members said, “We have never accused him of not being a good Vocational Director but we found that he will not do what we asked him to and we have decided that we are going to let him go.” Counsel fastens-on this remark as indicating that the Board’s reason for wishing to dismiss Chat-tin was not founded on “substantial cause.”' We do not agree. Talent or even genius to-the contrary, failure to comply with competent orders of a superior official is substantial cause for disciplinary action and, under the facts and circumstances of this case, for discharge.

In Guthrie v. Board of Education of Jefferson County, Ky., 298 S.W.2d 691 (1957), it was said that the findings of the trial court in a proceeding of this kind would not be set aside unless “clearly erroneous” within the meaning of CR 52.01. This conclusion was influenced by the conception that the review in circuit court is "quasi de novo,” as contemplated by the terminology of KRS 161.790(5). However, more recently we have had occasion to reappraise the fundamental question of whether it is constitutionally possible for the judicial branch of government to consider on a de novo basis the decision of an administrative agency of another branch of government, and have concluded that it is not. In short, a court cannot be made an organ of administrative policy or of administrative fact-finding in a matter not arising as a judicial question — that is, not originating within the courts. A de novo consideration necessarily substitutes the judgment of the court for that of the administrative agency, whereas the proper scope of judicial review in the area of factual and policy determinations is limited to the question of whether they are arbitrary, hence violative of Const. § 2. See American Beauty Homes Corporation v. Planning & Zoning Commission of Louisville & Jefferson County, Ky., - S.W.2d -.

In Hoskins v. Keen, Ky., 350 5.W.2d 467, 469 (1961), the substance of our decision was that if the action of a school board in discharging its superintendent for cause pursuant to KRS 160.350 is supported by substantial evidence it cannot be set aside by a court. This is but another way of saying that a decision so supported is not “arbitrary.” Cf. Thurman v. Meridian Mutual Insurance Company, Ky., 345 S.W.2d 635, 639 (1961). The apparent attempt of KRS 161.790(5) to invest the court with a broader authority oversteps the line dividing the constitutional powers of government and is invalid. Cf. Const. § 27. American Beauty Homes Corporation v. Planning and Zoning Commission of Louisville & Jefferson County, supra. We hold that on the factual issues the circuit court is confined to the record of proceedings had before the administrative body and is bound by the administrative decision if it is supported by substantial evidence.

The "clearly erroneous” rule of CR 52.01 pertains to the review of findings of fact. Whether the action of an administrative body is supported by substantial evidence is a question of law. In such a case the rule does not apply to the review of this court, because the circuit court is not the fact-finding agency. To this extent Guthrie v. Board of Education of Jefferson County, Ky., 298 S.W.2d 691 (1957), is modified.

Lurking in the wings of this controversy are procedural questions that call for clarification. There were several charges which, having assumed the position that they were not specific enough to afford him a fair opportunity to defend, Chattin declined to discuss at all, even when put on the witness stand by the school board. (At one point he refused to admit his telephone number.) With all due respect to his “rights,” we cannot approve this procedure. He had not been charged with a crime, nor was his refusal to give answers to various questions based on any suggestion or possibility of criminal involvement. His employer had the right to inquire into his official actions and to expect frank answers. Cf. KRS 160.300. On the assumption that orderly procedure is both essential to and a qualification of the fairness guaranteed by Const. § 2 (which fairness extends both ways, cf. Pritchett v. Marshall, Ky., 375 S.W.2d 253), it seems to us that they were entitled also to the benefit of discovery and amendment. Granted that it would have been better practice for the board to take his deposition or direct his appearance before it at some time prior to the hearing (which we think it certainly had a right to do), yet it was made clear to him that if developments should occur in the course of the hearing necessitating further evidence the hearing would be adjourned and an opportunity given him to produce it. The object of the hearing required by KRS 161.790(5) is to get the facts into the open. That it must be conducted by laymen forbids the esoteric formalities of a medieval jousting match.

Some doubt exists with regard to the fundamental fairness of a hearing before a tribunal that has already decided the outcome. As we see the problem, however, the object of this particular type of hearing is not so much to persuade the board one way or the other as it is to challenge the existence and force proof of reasonable grounds to sustain the decision, whether or not it has been reached already, and to create a record on which it may be tested for arbitrariness.

The cause is reversed with directions that a judgment be entered sustaining the action of the Board of Education.

MONTGOMERY, Judge

(dissenting).

In my judgment the majority opinion is wrong. It is wrong in principle in so far as it seeks to extend the decision in American Beauty Homes Corporation v. Louisville and Jefferson County Planning and Zoning Commission, Ky., - S.W.2d -. It is wrong again when it incorporates admitted dictum which is unsound.

The American Beauty Homes case stands for the proposition that the Legislature cannot by statute require the Court to hear de novo a matter previously determined by a planning and zoning commission in the exercise of a legislative function. Under the doctrine of separation of powers of government, the legislature cannot foist upon the judiciary the exercise of such legislative powers. This was the holding in the American Beauty Homes case. General statements therein which indicate the broad application of the rule to administrative matters and boards are dictum and should not be taken as a basis for the decision in the majority opinion.

Further, the majority opinion gratuitously indicates that generally the proceedings before a school board should be governed or conducted in conformity with the Kentucky Rules of Civil Procedure. Specific suggestions referred to a bill of particulars and a so-called clarification of procedural questions. Appellee’s refusal to answer certain questions was also condemned. None of these propositions is supported by any citation or authority, but all rest upon broad statements of dictum for their soundness.

Appellee’s conduct with reference to certain financial reports and his management of certain financial affairs were under examination by the School Board. Conceivably, criminal or civil liability may have attached to him. At least he loses his employment under this decision.

The majority opinion indicates that unless he had been charged with a crime he was not entitled to refuse to answer certain questions under a claim of privilege of immunity as a witness under Kentucky Constitution, Section 11. In Rutherford v. Commonwealth, 59 Ky. (2 Metcalfe) 387, it was held that inasmuch as the answers to certain interrogatories might have subjected the witness to a criminal or penal prosecution “he was not bound to answer them.” The rule extends to civil cases as-well as to criminal cases, and it is not necessary that the witness be examined in the' course of a penal or criminal prosecution. Akers v. Fuller, 312 Ky. 502, 228 S.W.2d 29. It is a shield and protection available to all persons summoned as witnesses. Young v.. Knight, Ky., 329 S.W.2d 195, 77 A.L.R.2d 994. In a fuller discussion of the principle-by Rees, J., in the Akers case, quoting from Kindt v. Murphy, Judge, 312 Ky. 395, 227 S.W.2d 895, it is stated that “the privilege extends to all manner of proceedings in which testimony is to be taken.” The majority opinion, taken on its face, would deprive the witness of this sacred constitutional right with one broad unfounded assertion.

The dictum concerns the bill of particulars and further indicates that the Board in its hearing, held pursuant to statute, was. “entitled also to the benefit of discovery and amendment.” In substance the majority opinion indicates that the Kentucky Rules of Civil Procedure should control the conduct of such a preliminary hearing.

The school board is a creation of legislative enactment. The regulations for the conduct of its affairs must be based on statutory authority. Its right to conduct hearings and the method of so doing should be done in accordance with statutory authority; hence, I consider it outside the function of the judiciary to suggest or tell this creation of the legislature that it should conduct a hearing in accord with the Kentucky Rules of Civil Procedure.

The inconsistency of this Court in doing so was never more apparent. In the American Beauty Homes case, earlier referred to, a statute which undertook to impose on the judiciary a legislative function was held unconstitutional as a violation of the doctrine of separation of governmental powers. The matter is thoroughly and adequately condemned therein. Again, in City of Covington v. Meyer, Ky., 376 S.W.2d 679, the Court by its original opinion approved another expression of the same doctrine in upholding a statute in these terms:

“Conceding the improvidence of such a law, we cannot for that reason ignore or evade it. We are constitutionally unable to substitute our judgment of what is wise for that of the legislature.”

I cannot agree with the dictum in the majority opinion by which the judiciary undertakes to foist upon a legislative creation, performing an executive function, the use of the Kentucky Civil Rules of Procedure in the face of two such strong opinions on the separation of governmental powers rendered on the same day.

      . The dismissal was made effective as of July 14, 1961. Meanwhile, Chattin had. accepted temporary employment elsewhere.

      . The letter written to Chattin in March of 1961 did not suggest the possibility of continued employment in another position. However, it was specifically mentioned in the letter of July 14, 1961.

      . Under applicable regulations then in force the director of the vocational school was responsible to the local school superintendent.

      . These events form the basis of another of the charges, but provide relevant background to the charge under discussion.

      . From both the testimony and the monthly “Shop Fund Report” prepared by Chat-tin it is clear that the school received money for both materials and labor. There is no apparent reason why they could not easily have been separated for accounting purposes.

      . Meaning the government established by the Constitution of Kentucky.

      .This assumes, of course, that tlie person discharged was given a fair opportunity to be heard.

       (Subsequently deleted from the original opinion).


author: WOODLEY, Presiding Judge.

text:
    William B. CHAMBLEE, Appellant, v. The STATE of Texas, Appellee.
    No. 36597.
    Court of Criminal Appeals of Texas.
    March 25, 1964.
    No attorney of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The conviction is for the felony offense of drunk driving; the punishment, a fine of $200.

Howard Alfred, Highway Patrolman of the Texas Department of Public Safety, testified that he saw the appellant driving a car “astraddle” the lane divider line on a public highway in Gregg County on or about June 17, 1962.

He turned and followed him and saw that he was driving from lane to lane. The appellant changed lanes seven times before he got him stopped.

When the appellant got out of the car “he walked rather unsteady on his feet; * * * he talked kind of thick tongued,” he could smell intoxicating beverage on appellant’s breath and the appellant was, in his opinion, intoxicated.

He also testified that as he started to the car a beer can came out of the right side of the car.

From the appearance, conduct and odor of alcohol on her breath, the lady passenger in the car the appellant was driving, in the opinion of the officer, was also intoxicated.

Certified copies of the complaint, information and judgment in Cause 9627 in the District Court, Cass County, one of the two previous misdemeanor convictions for drunk driving alleged in the indictment, were introduced, the judgment bearing date January 27, 1958.

A portion of the driving record of William Benjamen Chamblee certified by the Custodian of Driver Records, Driver and Vehicle Records of the Texas Department of Public Safety, was offered.

This record shows the issuance of Texas Operator’s License #0240411, describing the licensee and showing its renewal as a Texas Commercial Operator’s License to expire on November 3, 1963. It also shows notice of conviction for driving while intoxicated in Cause 9627, District Court, Cass County, January 27, 1958.

The license from which the arresting officer testified he took the name and description of the appellant bore the same number and description as the record introduced.

We overrule the contention that the appellant was not sufficiently identified as the defendant who was convicted in the prior conviction in Cass County alleged in the indictment. See Rice v. State, 163 Tex.Cr.R. 367, 292 S.W.2d 114; Goolsby v. State, 166 Tex.Cr.R. 180, 312 S.W.2d 654; Gregg v. State, 170 Tex.Cr.R. 202, 339 S.W.2d 539.

The jury resolved the fact issue against the appellant and the evidence is sufficient to sustain the verdict.

Finding no reversible error, the judgment is affirmed.