text:
    Dorothy Gladys WHALEY et vir, Appellants, v. Vilosa May PEAT, Appellee.
    No. 14319.
    Court of Civil Appeals of Texas. Houston.
    April 9, 1964.
    Rehearing Denied April 30, 1964.

      Stevens & Ludtke, O’Brien Stevens, Philip M. Shafer, Houston, for appellants.
    Dent, King, Robinson & Wickliff, Robert D. Ford, Thomas H. Dent, Houston, for appellee.
   COLEMAN, Justice.

Appellant, Dorothy Gladys Whaley, brought this action to establish her interest in certain real estate as the daughter of Ambres Peat, deceased. Appellee, Vilosa May Peat, contended that she was the surviving wife of Ambres Peat, and his only heir at law.

In response to special issues the jury found that Ambres Peat and Gladys Hock-less entered into an agreement to become man and wife; that they cohabited together as man and wife; that they held themselves out to the public as man and wife; and that their general reputation in the community in which they lived was that they were husband and wife to each other. The jury also found that Gladys Hockless, the mother of appellant was married to Whitney Willis on February 20, 1917, and that this marriage had not been dissolved prior to February 22, 1922. The undisputed evidence was that the marriage of Gladys Hockless to Whitney Willis predated her purported marriage to Ambres Peat, and that she died on December 12, 1922. The trial court sustained appellee’s motion to disregard the answers made by the jury to all of the issues except those establishing the marriage of Gladys Hockless to Whitney Willis and the fact that this marriage was not dissolved prior to her death.

Where the trial court has disregarded certain of the answers made by the jury to special issues, it is the duty of the reviewing court to determine from the record if there was evidence of probative value to support the jury’s answers which were set aside, and in so doing the reviewing court must consider the evidence in the light most favorable to appellant, disregarding conflicts in evidence and indulging reasonable intendments deducible from the evidence in favor of appellant. Zachry v. McKown, Tex.Civ.App., 326 S.W.2d 227, ref., n. r. e. The jury found all of the elements necessary to establish a valid common law marriage between Gladys Hockless and Ambres Peat, and these answers were supported by competent evidence. Ex Parte Threet, 160 Tex. 482, 333 S.W.2d 361.

Since the jury found that the marriage between Gladys Hockless and Whitney Willis predated her marriage to Am-bres Peat and was not dissolved prior to her death and appellant has presented no points challenging these findings, she is bound thereby. The presumption of a valid marriage applied in such cases as Texas Employers’ Insurance Association v. Gomez, Tex.Civ.App., 313 S.W.2d 956, therefore, is not applicable in this case.

The narrow question determinative of this case is whether section 42 of the Probate Code, Vol. 17-A, Vernon’s Annotated Texas Statutes, is applicable under the facts of this case. This section provides, in part that: “The issue also of marriages deemed null in law shall nevertheless be legitimate.”

The evidence establishes that Am-bres Peat was competent to enter into a marriage with Gladys Hockless. The jury has found that he did enter into a common law marriage with her. His good faith in so contracting is presumed. Smith v. Smith, 1 Tex. 621; Texas Employers’ Insurance Association v. Elder, 155 Tex. 27, 282 S.W.2d 371.

There can be no question but that a common law marriage produces the same legal consequences as a ceremonial marriage. A putative marriage is one contracted in good faith and in ignorance (on one or both sides) that impediments exist which render it unlawful. United States Fidelity and Guaranty Co. v. Henderson, Tex.Civ.App., 53 S.W.2d 811. There is authority that one cannot claim good faith necessary for a putative marriage in the absence of a ceremonial marriage. Papoutsis et al. v. Trevino, Tex.Civ.App., 167 S.W.2d 777, writ dism.; In re Greathouse’s Estate, Tex.Civ.App., 184 S.W.2d 317. The rule announced in these cases was criticized in Hupp v. Hupp, Tex.Civ.App., 235 S.W.2d 753, ref., n. r. e., where the court said:

“While a different rule might well prevail under the Spanish law, which does not recognize what we know as common law marriages, every reason that exists for allowing relief to a party who has entered into a putative marriage relationship applies with equal force to the situation where the putative marriage was entered into as a common law marriage as where it was entered into pursuant to a marriage ceremony.”

See also Texas Employers’ Insurance Association v. Elder, supra.

In Humphreys v. Humphreys, 359 S.W.2d 103, the Court of Civil Appeals at Waco, in a case having a similar fact situation as this, held Section 42 of the Probate Code applicable. This case was reversed by the Supreme Court, Humphreys v. Humphreys, 364 S.W.2d 177, on the ground that the finding of the trial court, that there was no agreement to marry between the parties, was supported by some evidence and could not be disregarded by the Court of Civil Appeals. The Court said:

“If his parents entered into a common law marriage as he claims, plaintiff is entitled to an undivided one-sixth interest in the land.”

The Court then held:

“As the case comes to us, one of the essential elements of a common law marriage has not been proved and there is no contention that Oscar and Hazel were ceremonially married. We do not, therefore, reach the question decided in Texas Employers’ Ins. Ass’n v. Elder, 155 Tex. 27, 282 S.W.2d 371, and the concluding sentence of Section 42 of the Probate Code has no application. Hodge v. Hicks, supra.”

In Hodge v. Hicks, 149 Tex. 390, 233 S.W.2d 557, the Supreme Court held that where no marriage at common law was proven and it was not contended that there was a ceremonial marriage, no marriage was proven, and the statute obviously was not intended to apply to a situation of that kind.

The Court of Criminal Appeals of Texas has held that a putative marriage may arise out of either a ceremonial or a common law marriage and that children born of a putative marriage are legitimate. In Curtin v. State, 155 Tex.Cr.R. 625, 238 S.W.2d 187, that Court said:

“We are also of the opinion that a marriage is a marriage in Texas, either at common law or when ceremonially observed, provided the parties are free to contract. If one party is not free to contract but such inhibition is not known to the other party and he enters into a contract fairly, such becomes a putative marriage. The woman is a putative wife and her children born therefrom are legitimate children.”

We are in agreement with this statement of the law and hold that the trial court erred in disregarding the answers made to Special Issues 1 through 4, and in entering judgment for appellee. We, therefore, find it unnecessary to consider the assignments relating to the issues submitted to the jury on the question of equitable adoption.

The judgment of the trial court is reversed and judgment is here rendered that appellant, Dorothy Gladys Whaley is the legitimate daughter of Ambres Peat, and entitled to participate in his estate jointly with his surviving wife, Vilosa May Peat, as provided by law. We are unable to determine as a matter of law that the real property involved is susceptible of partition in kind, nor can we adjust the equities between the parties. The cause, therefore, is remanded to the trial court for further proceedings necessary for partition of the estate.


source: Caselaw Access Project

author: CHADICK, Chief Justice. DAVIS, Justice.

license: Public Domain

text:
    CITY OF HOUSTON, Appellant, v. Farrie DANCER, Appellee.
    No. 7527.
    Court of Civil Appeals of Texas. Texarkana.
    March 10, 1964.
    Rehearing Denied April 14, 1904.
    R. H. Burks, City Atty., G. Gordon Whitman, Senior Asst. City Atty., Houston, for appellant.
    Bill Cannon, Paul D. Filer, Jr., Tynes & Turk, Houston, for appellee.
   CHADICK, Chief Justice.

The injured plaintiff had been convicted in a city court of violating a City of Houston penal ordinance and fined twenty dollars, and upon failure to pay was taken into custody by appropriate authority and held as a prisoner at the City penal farm. He, as a member of a detail of some fifty prisoners, was assigned to clearing storm scattered debris from City parks in Houston. Under guard this work gang was transported from park to park. Immediately before injury the bus carrying the prisoners arrived at Mason Park and the prisoners were ordered out of the bus. As the plaintiff, in compliance with the order, was moving toward the door he cut his right foot when it struck the blade of an axe lying on the bus floor. The axe was used by the work detail, and had been loaded on the bus, along with other tools, by the prisoners as they left the previous job.

In the trial court this case was tried and decided on the theory that the City of Houston employed the injured prisoner in the execution of one of the City’s proprietary functions, that is, maintaining a public park; and that the case was a tort action governed by the law applicable in common law negligence cases. The trial judge found the City negligent in failing to inspect the bus aisle-way, and in failing to provide a safe storage space for tools, finding also that each such act of negligence was the proximate cause of the plaintiff’s injuries.

No Texas case factually similar is cited, nor has one been discovered by independent research. There are Texas cases that hold a municipal corporation is not liable for injury to a prisoner held in a municipal penal institution, though injury was proximately caused by the negligence of officers or employees in charge of the operation or maintenance of the facility. Stinnett v. City of Sherman, Tex.Civ.App., 43 S. W. 847, N.W.H.; Valdez v. Amaya, Tex.Civ.App., 327 S.W.2d 708, N.W.H. See also 46 T.J.2d 292, Sec. 17. Such is the general rule in most jurisdictions. 46 A.L.R. 94; 50 A.L.R. 268; 61 A.L.R. 569; and 19 Ruling Case Law 404.

Assuming, as the parties do, that the City of Houston, as distinguished from its agents, servants- and employees, has undertaken to do so and may legally require labor of a person adjudged guilty of violating its penal ordinances upon failure of the guilty person to pay the fine assessed, where the required work is performed either on the City’s penal farm or in the City’s parks is incidental to the exercise of the power. That is to say, the exercise of sovereign power to require the plaintiff to work out his fine is the primary and dominant purpose of the City’s involvement and is the factor that precludes liability; his transportation to a place where work is to be performed is an incident of the exercise of power. Unquestionably the City would have incurred no liability had the injury occurred during movement of the work gang about the City penal farm. Stinnett v. City of Sherman, supra; Valdez v. Amaya, supra. This record supplies no reason for holding a different principle of liability applicable when a prisoner is injured while being transported from one park to another to perform work required in the discharge of the fine assessed against him.

The judgment of the trial court is reversed and judgment rendered that the defendant in the trial court, and appellee here take nothing by his suit.

FANNING, J., concurs.

DAVIS, J., dissents.

DAVIS, Justice.

I dissent. The transcript and statement of facts in this case were filed in the Court of Civil Appeals at Houston on March 11, 1963. According to Rule 414, Vernon’s Annotated Rules of Civil Procedure, appellant had 30 days in which to file its brief. No brief was filed. Under Rule 415, V.A.T. R.C.P., it could file a motion and show “good cause” for its delay and request permission to file the brief. This was not done. The case was transferred to this court by the Supreme Court of Texas on June 21, 1963. On July 31, 1963, the case was set for submission and oral argument on September 30, 1963. No brief having been filed or a motion filed, showing “good cause” for the late filing of the brief, or that the appellee would not he materially injured thereby, the case was dismissed for the want of prosecution in an unpublished opinion on August 6, 1963. Appellant filed a motion for rehearing in which it set out that it desired to file a brief and did not desire to abandon the appeal. It pointed out that it had not filed its brief for the reason that it was following the “customs and practice developed and administered by the Houston Court of Civil Appeals”. (Apparently, it forgot about Rules 414 and 415). It set out that the Houston Court of Civil Appeals had regularly and customarily given the briefing rules a most liberal construction and it had not enforced the respective 30 and 25 day period of time for the appellants and appellees to file their briefs. It set out that “good cause” existed for the reinstatement of this appeal, but it did not say what that “good cause” was. There was no statement that the appellee would not suffer any material injury thereby. It then said: “Appellant would further represent and show unto the court that it can and will tender its brief for filing at such time as the court may direct.”

Appellee did not file a reply to the motion for rehearing, or in any way contest the filing of the brief.

I wrote the Judges of the Court of Civil Appeals in Houston, inquiring about their practice as requiring briefs to be filed. I received the following reply:

“Honorable Matt Davis

Associate Justice

Court of Civil Appeals

Texarkana, Texas

“Dear Judge:

“We do not enforce the requirements of Rule 414. We have instructed our Clerk to file any appellant’s brief that is presented as much as 40 days before the date of submission, and any appellee’s brief that is presented as much as 15 days before submission. If the briefs are presented on dates nearer submission, we require a motion. In acting on the motion, we are quite liberal and allow filing if we feel the opposite party is not prejudiced and there will be no delay in submission.

“We feel the matter is not jurisdictional and allowance of late filing is addressed to the discretion of the Court.

“If, however, no brief is filed, which happens very infrequently, we do dismiss for want of prosecution.

“Very truly yours,

/s/ Spurgeon Bell”

The other Judges on this Court granted the motion to reinstate the case. I dissented. The case was postponed from September 20, 1963, until November 4, 1963. Appellant was given until October 3, 1963, to file its brief. It filed its brief on October 3, 1963.

I have much love and admiration for Chief Justice Spurgeon Bell and the other Judges on the Houston Court. At the same time, I am of the opinion that if the Texas Supreme Court makes a rule of civil practice it should be reasonably enforced. No “good cause” has been shown for the late filing of the brief in this case. Neither has it been shown that the appel-lee will not suffer material injury thereby. The appellee has now suffered material injury by permitting the late filing of the brief.

What does Rule 414 mean? Why was it put in the Texas Rules of Civil Procedure? Does it have a purpose? Should the rule be followed, or be ignored? The rule reads as follows:

“Rule 414. Briefs: Time for Filing, Etc.
“Briefs of each party shall be subscribed by at least one of his attorneys, shall give the post-office address of each attorney whose name is signed thereto, and shall state that a copy of such brief has been delivered or mailed to each group of opposing parties or counsel thereof. Appellant shall file three copies of his brief in the Court of Civil Appeals within thirty days after the filing therein of the transcript and statement of facts, if any, having theretofore delivered or mailed an additional copy to opposing parties or their counsel. Appellee shall file three copies of his brief in said court within twenty-five days after the filing of appellant’s brief and at the same time deliver or mail an additional copy to each group of opposing parties or counsel thereof. Any Court of Civil Appeals may by rule permit the filing therein of a less number of briefs. Upon good cause shown, the Court of Civil Appeals may grant either or both parties further time for filing their respective briefs, and may extend the time for submission of the case. The court may also shorten the time for filing briefs and the submission of the cause in case of emergency, where in its opinion the needs of justice require it. As amended by order of March 31, 1941; order of June 16, 1943, effective Dec. 31, 1943.” (Emphasis added).

What does Rule 415 mean? Why was it put in the Texas Rules of Civil Procedure? Does it have a purpose ? Should the rule be followed, or be ignored? Rule 415 reads as follows:

“Rule 415. Briefs : Dismissal for Failure to File
“When the appellant has failed to file his brief in the time prescribed, the appellate court may dismiss the appeal for want of prosecution, unless good cause is shown for such failure and that ap-pellee has not suffered material injury thereby. The court, may, however, decline to dismiss the appeal, whereupon it shall give such direction to the cause as it may deem proper.” (Emphasis added).

What does “good cause” mean? I am of the opinion that “good cause” means a “good reason”. It has nothing to do with any practice developed by any court, and has nothing whatever to do with the whims and wishes of the attorneys. It certainly does not mean that “good cause” exists because of the fact that the attorneys are busy with other legal practice. Judge Chadick in Texaco, Inc. v. Joffrion, Tex.Civ.App., 363 S.W.2d 827, W.R., N.R.E., said: “Good cause for delay is not shown”. I approved the opinion in that case, but did not entirely agree with the results. A motion to dismiss the appeal had been filed therein. I can readily see that material injury would be suffered by the appellee in this case by a delay of a decision. As a result thereof, material injury has been suffered by the appellee by having the judgment reversed and rendered against him.

What does Rule 415 mean where it says, “Appellee [will not suffer] material injury thereby”? A person who has a judgment against another is entitled to have the judgment either affirmed or reversed as speedily as possible. We have often heard the statement, “The machinery of justice grinds slowly”. In most instances, it is the fault of the lawyers. I am of the opinion that a motion should have been filed for the late filing of a brief in this case, should have been verified, should have alleged the “good cause” that did exist, and set out the facts, and should further have alleged that ap-pellee will not suffer any material injuries by the delay.

Several cases have been recently transferred to this court by the Supreme Court of Texas from the Court of Civil Appeals in Beaumont. Many of the cases were set for oral argument. I will not attempt to put down how many motions have been filed for the late filing of briefs. Very few, if any, stated a good cause. Three of the cases that have been set have already been continued — over my dissent — and an extension of time has been granted in which to file the late briefs. None of them have alleged that no material injury will be suffered by the other side.

The Court of Civil Appeals in Corpus Christi has recently dismissed two cases because of the failure to comply with the rules of civil practice. Consolidated Casualty Ins. Co. v. Wade, Tex.Civ.App., 373 S.W.2d 841, was dismissed because of the failure to show “good cause” for the late filing of the statement of facts and transcript as required by Rule 386, V.A.T.R. C.P. Franke v. Franke, Tex.Civ.App., 373 S.W.2d 891, was dismissed because the appellant failed to file a motion for the extension of time within fifteen days after the sixty day period from rendition of final judgment under Rule 386, V.A.T.R.C.P.; and, because the appellant did not file a brief in more than 30 days after filing the transcript as required by Rule 414 of the Rules of Civil Procedure, nor file a motion showing “good cause” existed for her failure to do so. Rule 41S. Apparently, such is not the practice used by the Houston and Beaumont Courts of Civil Appeals.

The Supreme Court of Texas made the Rules of Civil Procedure. I doubt the wisdom of any Court of Civil Appeals trying to change them. I am of the opinion that Rules 414 and 415 mean exactly what they say. They were put in the Texas Rules of Civil Procedure for a guide to go by. They have a purpose to require appellants to file a brief within 30 days after the transcript and statement of facts have been filed, or to file a motion and show exactly what “good cause” exists for the late filing of a brief, and that no material injury will be suffered by the appellee. The rules should be followed, and should not be ignored.

The Supreme Court of Texas should grant a writ of error in this case. It should say whether or not Rules 414 and 415 should be given any effect. If it is NOT necessary to file a brief within 30 days, or file a motion showing that good cause does exist and the other side will not suffer material injury thereby, the rules should be repealed. Then things will get in a “HELL OF A SHAPE”. See decision under Rule 415, V.A.T.R.C.P., and dissenting opinion of Justice Frankfurter in Rogers v. Missouri P. R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493.

Appellee-plaintiff, Farrie Dancer, sued appellant-defendant, City of Houston, for damages for injuries he received because of the negligence of the agents, servants and employees of the City of Houston. On September 23, 1961, appellee was ordered imprisoned by a municipal corporation court judge as the result of a conviction of a traffic violation under a $20.00 fine. The appellee was placed by the appellant on its Municipal Prison Farm within the City and ordered to serve out his fine at the rate of $3.00 per day. Appellee called his lawyer and requested that he pay the fine. This, the lawyer did. The appellee was not released from prison and continued on the prison farm until September 26, 1961, when he received the injury. They were cleaning up the City parks as the result of Hurricane Carla. About fifty prisoners were placed upon a bus owned and operated by the appellant. They were taken to various public parks in the City by armed guards. Upon arrival at John T. Mason Park, appellee, along with other prisoners, was forced to hurriedly leave the bus. In response to the instructions of appellant’s guards, appellee was hurriedly making his exit from the bus and stepped upon an axe that was lying in the aisle. The axe was so turned that he severely cut his right foot. The appellant carried the appellee to the Jefferson Davis Hospital, where he received medical treatment. Twelve or more stitches were required to close the wound. Appellee was taken back to the prison farm by appellant, and was thereafter released without any legal arrangements being made in his behalf.

The case was tried before the court without a jury. The court found that the agents, servants and employees of appellant were guilty of negligence in their failure to keep the aisle-way of the bus clear and unobstructed; it failed to inspect the aisle-way of the bus; and it failed to provide a safe place in which to store the tools required to do the work on the City Park.

He concluded, as a matter of law, that appellant was engaged in a proprietary function as distinguished from a governmental function, and was liable. The appellant has perfected its appeal and brings forward eight points of error.

The only question involved in the case is whether or not the City was engaged in a “governmental function” or a “proprietary function”. Much has been written on the questions. Some of the courts of some of the states take the position that a city in preparing and maintaining a public park is engaged in a “governmental function”. Government is defined by Webster’s Dictionary as follows:

“Government, n. (Fr. gouvernment, from gouverner; L. Gubernare, to govern.
“1. Direction; regulation; control; restraint; the exercise of authority; the administration of public affairs, according to laws and usages, or by arbitrary edicts; as, parental government.
“2. The system of policy in a state; that form of fundamental rules and principles by which a nation or state is governed; as, a republican government.
“3. An empire, kingdom, or state; any territory over which the right of sovereignty is extended.
“4. The right of governing or administering the laws; as, the King of England vested the government of Ireland in the lord lieutenant.
“5. The persons or counsel which administer the laws of a kingdom or state; executive power.
“6. In grammar, the influence of a word in regard to construction, as when established usage requires that one word shall cause another to be in a particular case or mode.”

Governmental is defined as “pertaining to government; made by government”.

Actually, government is a form of fundamental rules and principles by which the City of Houston is governed. Anything that is done for the protection of society and protection of the property is a governmental function. In 18a, Words and Phrases, p. 293, under the heading “Maintenance and Operation of Public Parks and Playgrounds” courts throughout the Nation have held that such is a “governmental function”. As late as February 21, 1958, the Court of Civil Appeals in Kentucky, in Baker v. City of Lexington, 310 S.W.2d 555, ruled that the maintenance of a city park was a governmental function. Yet, in Taylor v. Kansas City, Mo.App., 353 S.W.2d 814, the Court held that the City was responsible for failure to exercise ordinary care to maintain parks in a reasonably safe condition as to children attracted there. There is a case cited by the Texas Court that holds such to be a “governmental function”. Schooler v. State, Tex.Civ.App., 175 S.W.2d 664, W.R., W.O.M. It also cites Wiggins v. City of Fort Worth, Tex.Civ.App., 299 S.W. 468, but holds that the City may purchase, improve and maintain land for parks, which is a governmental function. The Supreme Court granted a writ of error in the case, and it held that such was true, but also held that the maintenance of a bear cage in a public park with a hole in its outer face through which a bear could reach a child constituted a dangerous condition which was a “nuisance”. City of Fort Worth v. Wiggins, Tex., 5 S.W.2d 761. In City of Waco v. Branch et ux., (Comm.App.), 5 S.W.2d 498, op. adpt. by the Sup.Ct., held that the maintenance of a public park by a city is a “proprietary function”.

The facts in this case show that the City was engaged in cleaning up and maintaining the public parks as the result of Hurricane Carla. From the facts in this case, the City was engaged in a proprietary function or a ministerial function. “Proprietary” is defined by Webster’s Dictionary as :

“Proprietary, a. (From proprietaire, from LL. proprietarius; L. proprietas, property.) Belonging to a proprietor or owner, or to a proprietary; pertaining to ownership.
“Proprietary article: any article of commerce whose manufacture and sale are protected by letters patent.
“Proprietary colony: a colony settled on a private land grant, with governmental authority secured to a certain person or persons;
“Proprietary right: Any right or exclusive ownership secured and protected by patent or copyright.
“Proprietary, n.: pi. proprietaries, 1. A proprietor; an owner; one who has the exclusive legal right or title to anything.
“2. A book or list of proprietors, collectively; the whole body of proprietors; as, the proprietary of a county.
“3. In church history, a monk who had reserved goods and effects to himself, notwithstanding his renunciation of all as his profession.”

“Ministerial” is defined by Webster’s Dictionary as:

“Ministerial, a.l. Ministering; performing service.
“2. Pertaining to executive offices as distinct from judicial; administrative. “For the ministerial offices in court, there must be an eye to them. — Bacon. “3. Sacerdotal; pertaining to ministers of the gospel; as, ministerial garments; ministerial duties.
“The ministerial benches; the benches in the English House of Commons to the right of the speaker, occupied by members of the government and their supporters; by extension, the government or its supporters.”

It will be pointed out that ministerial is distinct from judicial or administrative. Actually, a public park is not necessary to a city government. Neither is one necessary to the county, state or nation. They are not built for the benefit of anyone. They are built and maintained for the amusement of the public generally. After reading many authorities, it appears that public parks, parkways, zoos and bathing pools or water-slides are for the amusement of the public generally, and do not constitute a “governmental function”. 40 T.J.2d 318, 631, and authorities cited thereunder.

There are many cases to the contrary. Hoggard v. City of Richmond, 172 Va. 145, 200 S.E. 610, 120 A.L.R. 1368; 18A, Words & Phrases 293, and pocket part. But when you look at the meaning of the words “governmental function”, “proprietary function”, and “ministerial function” it does not seem that the building and maintaining of the public park was necessary for the protection of the people who actually live in the City of Houston. They did not derive any benefit at all from it. Such acts were for the amusement of the public generally, from which nobody actually gained any benefit whatever. The operation of a city waterworks for a profit, or the operation of a swimming pool for the amusement of the public generally, the maintaining of parks for various purposes are not for the benefit of anyone; the keeping of zoos for the thrill and excitement of the people could not be a governmental function. It seems that the City of Houston was acting in a proprietary or a ministerial function at the time of the injuries, and the city is liable. Claitor v. The City of Comanche, Tex.Civ.App., 271 S.W.2d 465, N.W.H.; 38 Am. Juris. 246, Sec. 559; 38 Am.Juris. 328, Sec. 627 ; 38 Am.Juris. 330, Sec. 629 ; 38 Am. Jur. 334, Sec. 633; 38 Am.Juris, 340, Sec. 636; 38 Am.Juris. 342, Sec. 637. Williams v. Town of Morristown, et al, Tenn.App., 222 S.W.2d 607; 63 C.J.S. Municipal Corporations § 907, page 313; Scroggins v. City of Harlingen, 131 Tex. 237, 112 S.W.2d 1035; City of Lubbock v. Green (Fifth Circuit), 201 F.2d 146; Lundahl v. City of Idaho Falls, 303 P.2d 667; Ballard v. City of Tampa, 124 Fla. 457, 168 So. 654.

I would overrule the appellant’s points of error and affirm the judgment of the trial court.


author: MONTGOMERY, Judge

text:
    Keith AYERS, Appellant, v. David L. DAVIS, Warden, Appellee. Hugh McHenry WARNER, Appellant, v. David L. DAVIS, Warden, Appellee. Bobby J. JONES, Appellant, v. Luther THOMAS, Warden, Appellee. Paul J. PRYOR, Appellant, v. Luther THOMAS, Warden, Appellee. Scott BROWN, Appellant, v. Luther THOMAS, Warden, Appellee. Clyde W. COLES, Appellant, v. Luther THOMAS, Warden, Appellee. Beecher BURTON, Appellant, v. Luther THOMAS, Warden, Appellee.
    Court of Appeals of Kentucky.
    April 10, 1964.
    Certiorari Denied June 15, 1964.
    See 84 S.Ct. 1891.
   MONTGOMERY, Judge

(dissenting).

Each of the above appeals is from a denial of habeas corpus sought by an indigent prisoner. In each case the lower court judgment of denial has been affirmed. In each instance this Court, by a majority opinion, without consideration of the merits of the petition for habeas corpus, has held that a petitioner is not entitled to seek habeas corpus unless and until he has demonstrated that the remedy available under RCr 11.42 is inadequate. I respectfully dissent on the ground that such holding constitutes a wrongful suspension of the privilege of the writ of habeas corpus, in violation of the United States Constitution, Article I, Section IX, and of the Kentucky Constitution, Section 16. This is an additional ground of dissent in Ayers v. Davis.

It should be unnecessary to be remindful of the importance and sanctity of habeas corpus. Mr. Justice Clark, in Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961), said:

“ * * * it is ‘The highest remedy in law, for any man that is imprisoned.’ 3 Howell’s State Trials 95 (1628).”

As he pointed out, “We shall not quibble as to whether in this context it be called a civil or criminal action * * See distinctions made in Higbee v. Thomas, Ky., 376 S.W.2d 305.

The following comments by Mr. Justice Clark, in Smith v. Bennett, are pertinent:

“The availability of a procedure to regain liberty lost through criminal process cannot be made contingent upon a choice of labels. Ever since the Magna Charta, man’s greatest right — personal liberty- — has been guaranteed, and the procedures of the Habeas Corpus Act of 1679 gave to every Englishman a prompt and effective remedy for testing the legality of his imprisonment. Considered by the Founders as the highest safeguard of liberty, it was written into the Constitution of the United States that its ‘privilege * * * shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.’ Art. I, § 9. Its principle is imbedded in the fundamental law of 47 of our States. It has long been available in the federal courts to indigent prisoners of both the State and Federal Governments to test the validity of their detention. Over the centuries it has been the common law world’s ‘freedom writ’ by whose orderly processes the production of a prisoner in court may be required and the legality of the grounds for his incarceration inquired into, failing which the prisoner is set free. We repeat what has been so truly said of the federal writ: ‘there is no higher duty than to maintain it unimpaired,’ Bowen v. Johnston, 1939, 306 U.S. 19, 26, 59 S. Ct. 442, 446, 83 L.Ed. 455, and unsus-pended, save only in the cases specified in our Constitution.”

The specific problem in the seven cases before us is whether an indigent prisoner can be compelled to forego seeking relief by habeas corpus until he has shown that RCr 11.42 affords him no relief. The majority opinions hold specifically that the prisoner must first show that “the remedy by motion pursuant to RCr 11.42 is inadequate” before he is entitled to seek habeas corpus. In so far as the majority opinions prescribe such a limitation on the right to seek habeas corpus, this constitutes a suspension of the privilege which is unconstitutional and is outside the scope of RCr 11.-42.

The rule is admittedly intended to afford a remedy similar to the federal remedy under 28 U.S.C. § 2255. In the Ayers v. Davis opinion, it is pointed out that the federal statute expressly provides for a suspension of the right to habeas corpus under certain conditions, citing United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1951). However, that case affords little comfort. The Court expressly refused to pass on the constitutionality of Section 2255 involving the suspension of the writ of habeas corpus. In fact, research has disclosed no instance where such constitutionality has been passed on by the United States Supreme Court. All that was decided in Hayman was that the district court erred in determining factual issues without notice to the respondent and without his presence, and that the required hearing could be held under Section 2255. Thus, it does not sustain the proposition that the right to habeas corpus may be deferred. Hayman is distinguishable from our present cases on the further ground that the legislation providing for RCr 11.42 made no provision for suspension of the habeas corpus writ but re-enacted it, as will be discussed later.

The right of one illegally restrained to immediate relief is a characteristic of ha-beas corpus which has distinguished it through the centuries. For history of the writ, see McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1934). The reason therefor was well expressed by Denman, C. J., in Hayman v. United States, 9 CCA, 187 F.2d 456 (1951), as follows:

“One of the prime essentials of the imprisoned man to his right to seek the writ of habeas corpus is the prompt consideration of his application. Every day of wrongful imprisonment is that much taken from the free life of the prisoner.”

The provisions for habeas corpus in Kentucky have traditionally preserved the right to a prompt consideration of the petition. In the old Criminal Code of Practice penalties were provided for refusal to issue the writ and for refusing obedience to it. Criminal Code, Sections 401, 409. Provisions for a speedy consideration were made. Criminal Code, Sections 403, 408, 413, 429-1.

The same legislative Act which contained the new Rules of Criminal Procedure abolished the old Criminal Code. Acts of 1962, Chapter 234. It was recognized therein that the old Code contained certain “subjects not properly within the scope of judicial rule-making,” and in accordance therein the old Code provisions relating to habeas corpus were re-enacted substantially in Kentucky Revised Statutes, Chapter 419. This indicates that the General Assembly did not intend any infringement or encroachment on the constitutional right of habeas corpus.

The statutes so enacted indicate an intention on the part of the General Assembly which is directly contrary to the holdings in the majority opinions. The writ is made issuable “on any day at any time.” KRS 419.020. The writ is to be served “at any time on any day.” KRS 419.060(4). No stronger language can be used to indicate that the General Assembly intended that one seeking habeas corpus is to have immediate consideration. These statutes do not say that the writ and service may be deferred until after exhaustion of the remedy, RCr 11.42, which was enacted at the same time.

The statutes and the whole principle embodied in habeas corpus cry out for immediate action. The statutory language indicates that the person illegally restrained is entitled to seek action day or night, Sunday, weekday, or holiday. Indeed, this is as it should be, bearing in mind the admonition previously quoted that “Each day of wrongful imprisonment is that much taken from the free life of the prisoner.”

This Court has always heretofore properly treated habeas corpus as an urgent matter. KRS 419.130(1) in part provides:

“Upon the filing of the appeal the clerk shall immediately deliver the papers to the Chief Justice, and the court shall proceed immediately to hearing thereof and complete the same as soon as practicable. If the court is in vacation at the time the appeal is filed, the Chief Justice shall call together a majority of the judges of the court who shall hear and determine the appeal as in regular session.”

This is a re-enactment from Criminal Code, Section 429-1.

Habeas Corpus cases have always been treated as cases entitled to he advanced for early consideration. RCA 1.185. The majority holdings are not in accord with this rule or the statute.

The duty enjoined on each of us as judges under the law as it existed prior to the holdings in the majority opinions may well be expressed by this quotation from Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), as follows:

“A judge of the United States — to whom a petition for habeas corpus is addressed — should be alert to examine ‘the facts for himself when if true as alleged they make the trial absolutely void.’ ”

A judge of a Kentucky court, trial or appellate, should be no less alert.

Thus, in summary, one who is illegally restrained is entitled to have the writ of habeas corpus issued and served at any time and to have immediate consideration in the trial or appellate court by a judge who is alert to see if the person so restrained is being deprived of one day from his free life. Nowhere is there any authority for depriving such person of this sacred right by resort to some other means first. In Young v. Ragen, 337 U.S. 235, 69 S.Ct. 1073, 93 L.Ed. 1333 (1949), the failure of a state appellate court to hear a habeas corpus proceeding because of the availability of other remedies was cause for remand. The law on habeas corpus in Kentucky has followed a well-charted course. I feel that the Court should “track” the law.

The holdings in the majority opinions are, in effect, an unconstitutional suspension of the writ. To borrow a phrase, habe-as corpus delayed is habeas corpus suspended.

For these reasons I am compelled to disagree with the majority opinions.

      . Ayers v. Davis, Ky., 377 S.W.2d 154; Warner v. Davis, Ky., 377 S.W.2d 881; Jones v. Thomas, Ky., 377 S.W.2d 155; Pryor v. Thomas, Ky., 377 S.W.2d 156; Brown v. Thomas, Ky., 377 S.W.2d 156; Coles v. Thomas, Ky., 377 S.W.2d 157; Burton v. Thomas, Ky., 377 S.W.2d 155.


author: PALMORE, Judge.

text:
    Hugh McHenry WARNER, Appellant, v. David L. DAVIS, Warden, Kentucky State Reformatory, Appellee.
    Court of Appeals of Kentucky.
    March 20, 1964.
    Rehearing Denied May 15, 1964.
    For dissenting opinion see 377 S.W.2d 878.
    Hugh McHenry Warner, pro se.
    John B. Breckinridge, Atty. Gen., for appellee.
   PALMORE, Judge.

This is a habeas corpus proceeding in which the appellant, a prisoner in the Kentucky State Reformatory, seeks to set aside on constitutional grounds the judgment of conviction pursuant to which he is imprisoned. In the absence of a showing that the remedy by motion under RCr 11.42 is inadequate, his petition was properly dismissed. Ayers v. Davis, Ky., 377 S.W.2d 154.

The judgment is affirmed.


author: CLAY, Commissioner.

text:
    Lee MOORE et al., Appellants, v. Henry WARD, Commissioner of Highways of Kentucky, et al., Appellees.
    Court of Appeals of Kentucky.
    April 10, 1964.

      Marshall, Cochran, Heyburn & Wells, James W. Hendricks, Louisville, William A. Young, Hazelrigg & Cox, Frankfort, for appellants.
    Stanley B. Mayer, Louisville, for amicus curiae, Mayer, Cooper & Kiel, Louisville, of counsel.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., James J. Shannon, Jr., Asst. Director of Law, Dept, of Highways, Frankfort, Old-ham Clarke, Sp. Counsel, Dept, of Highways, Louisville, for appellees.
   CLAY, Commissioner.

This suit was brought to test the constitutionality of the "Billboard Act” (KRS 177.830 to 177.990, enacted in 1960). Appellants represent three classes of property owners who have an interest in the maintenance of advertising signs in areas near public highways. The statute was upheld by the Chancellor.

In substance the Act prohibits the erection of any “advertising device” on private property within 660 feet of the right of way line of any interstate highway, limited access highway, or turnpike. Excepted are advertising signs which identify businesses conducted on the premises, or which carry information authorized by law to be posted, and other types. The erection of new signs after March 1, 1960 is forbidden, but those existing on that date may be maintained until March 1, 1965. The offending devices are declared to be a public nuisance, may be summarily removed by public authorities, and criminal penalties are imposed for violations.

Appellants first raise what is in substance a procedural point. They contend they should have been permitted to introduce evidence to establish that advertising signs are not inimical to traffic safety. The purpose would be to show that the legislature was laboring under a misconception when it enacted the law as a safety measure. There are several reasons why a trial of this issue would be improper and unnecessary in this case.

As pointed out in appellants’ brief, the test of constitutionality is whether the Act in question is unreasonable or arbitrary. (Section 2 of the Constitution of Kentucky.) The issue is one of law. In passing upon the constitutionality of a statute the court takes judicial notice of matters of common knowledge. 11 Am. Jur., Constitutional Law, section 145 (page 825). Kohler v. Benckart, Ky., 252 S.W.2d 854. The court may not examine the validity of reasons which impelled the legislature to act, nor may it reappraise those reasons. Berman v. Parker, et al., 348 U. S. 26, 75 S.Ct. 98, 99 L.Ed. 27. The question is not what influenced the legislation, but whether the emergent law is reasonably within the scope of a legitimate public purpose. See 11 Am.Jur., Constitutional Law, sections 141, 142 (pages 818, 820).

In some cases evidence has been accepted to identify the subject matter of legislation or to determine its application to a particular fact situation, but appellants have not cited us to any case requiring a court to hear evidence on the validity of a particular premise which may have induced legislative action. There is authority to the effect that courts cannot consider evidence on a question of this nature. 11 Am.Jur., Constitutional Law, section 145 (page 825). Legislative motive, understanding or inducement are not on trial, and it is not the function of the courts to reappraise legislative reasons or to weigh evidence with respect thereto. Berman v. Parker, et al., 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27; Railway Express Agency v. People of the State of New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533.

Even assuming appellants could produce substantial evidence that billboard signs do not adversely affect traffic safety, this record indicates, and our common knowledge suggests, that the question involves so many intangible factors as to make debatable the issue of what the facts establish. Where this is so, it is not within the province of courts to hold a statute invalid by reaching a conclusion contrary to that of the legislature. Radice v. People of the State of New York, 264 U.S. 292, 44 S.Ct. 325, 68 L.Ed. 690.

It further may be observed that evidence such as appellants wish to introduce could not be a determining factor. Assuming (what it does not purport to do) that it would establish the statute was “manifestly unreasonable and oppressive,” or that the apparent relationship of the law to a 'traffic problem was “palpably false”, then such proof would be unnecessary. Anything so manifest or palpable could doubtless be discerned by the court without the necessity of evidence.

Finally, appellants’ position on this point is unavailing because the traffic safety problem was only one of many significant public welfare considerations which doubtless influenced the legislature to act. As recited in the Act itself, there are such matters as “convenience and enjoyment of public travel,” “the free flow of interstate commerce”, and “the protection of the public investment in the system of interstate and defense highways within the Commonwealth.” In addition, there are such matters as the elimination of “distracting influences,” and the “enhancement of natural scenic beauty”.

It is peculiarly within the province of the legislature to assimilate, consider, and weigh all the factors which inhere in the concept of public welfare. When the courts repeatedly assert that they have no authority to challenge the wisdom of a statute, it is a recognition that the legislature may within extremely broad limits determine its “own standard of public welfare”. Day-Brite Lighting, Inc. v. State of Missouri, 342 U.S. 421, 72 S.Ct. 405, 96 L.Ed. 469. It is therefore evident that appellants’ proof on this issue of fact, even if it chipped a stone, could not destroy the mosaic of public welfare. Such method of attack upon the statute must fail.

It is next contended that by the enactment of one section of this statute, and acting pursuant thereto, the Commonwealth has bartered away its sovereign police power. This rather circuitous argument is based on KRS 177.890, which authorizes the Commissioner of Highways to enter into an agreement with the United States Secretary of Commerce, and the actual agreement made pursuant thereto. Appellants’ brief asserts the Commonwealth has covenanted that it will regulate outdoor advertising in areas adjacent to interstate highways in accordance with national standards promulgated by the United States Secretary of Commerce, in return for which the Commonwealth will receive federal subsidies.

The contention is that by virtue of this agreement the Commonwealth has somehow relinquished to the federal government the exercise of the state police power. This obviously is not so. The federal standards and policies are not laws of this Commonwealth. The law under consideration is the Act enacted by the State Legislature. There is nothing evil or illegal in conforming state laws to national policy (or policies of other states). As a matter of fact, the existence of a national policy in this field is a persuasive consideration in determining whether the public welfare is involved.

The state law must stand on its own feet. If the federal standards with which the legislature conforms (or agrees to conform) do not bear a reasonable relationship to the public welfare, they would not validate an invalid act. Conversely the acceptance of those standards by the legislature, acting within the scope of its own power, could not possibly make a valid law invalid. The legislative process constantly involves the acceptance or rejection of policies followed in other jurisdictions. National policy may very well be sound state policy.

It is suggested that the acceptance of a subsidy by the state as consideration for the agreement establishes that the Commonwealth has bartered away its police power. The conclusion does not follow the premise. Assuming the subsidy was one of the incentives to the enactment of this law, this does not affect its validity. The courts are concerned with the product, not the motives which produced it. Louisville and Jefferson Co. M.S.D. v. Joseph E. Seagram & S., 307 Ky. 413, 211 S.W.2d 122, 4 A.L.R. 2d 588; Adams v. City of Richmond, Ky., 340 S.W.2d 204; People v. Stover, 12 N.Y.2d 462, 240 N.Y.S.2d 734, 191 N.E.2d 272.

The final answer to appellants’ argument on this point is that neither the provision in the statute before us nor the alleged agreement entered into relinquishes one iota of police power to the federal government. Had it subjected appellants to federal laws in this field, it would not necessarily have been invalid for that reason. Commonwealth v. Associated Industries of Kentucky, Ky., 370 S.W. 2d 584. But we are not confronted with such a debatable situation. There is nothing in the Act or the agreement which delegates power. Appellants are subjected only to the police power exercised by the Kentucky Legislature, not that of the federal government. We must test this statute by determining whether it now impairs appellants’ constitutional rights, not by what induced or conditioned its passage or what may result from future revision.

We now reach the basic objection that the Act is an excessive exercise of police power arbitrarily depriving appellants of vested property rights. The argument is that the public interest served is so grossly disproportionate to the injury suffered by appellants that there was no reasonable relationship between its purpose and its effect. The appellants have presented this contention somewhat in the form of “balancing the equities”, which, as a practical matter, seems a proper method of approach. Before pursuing it, we shall dispose of three incidental issues.

The argument that this law results in the taking of property “without due process of law” is of no independent significance. Almost inevitably the exercise of police power involves the destruction or limitation of property rights without a hearing. It is not a violation of that constitutional mandate if the police power is properly exercised. 16A C.J.S. Constitutional Law § 571, page 588; City of Louisville v. Thompson, Ky., 339 S.W.2d 869. To say that property is taken without due process, or without compensation, or in abridgement of the equal protection clause of the Federal Constitution, is simply another way of presenting the argument that the Act is arbitrary under section 2 of the Kentucky Constitution. See Pritchett v. Marshall, Ky., 375 S.W.2d 253; 11 Am.Jur., Constitutional Law, section 266 (page 1003).

Another ghost must be laid. It is contended this is an “ex post facto” law destroying vested property rights. The simple answer is that this Act does not impose a criminal penalty upon any person for any prior act, which is the essence of “ex post facto”. Eckles v. Wood, 143 Ky. 451, 136 S.W. 907, 34 L.R.A.,N.S., 832; Walker v. Commonwealth, 279 Ky. 198, 130 S.W.2d 27; City of Louisville v. Thompson, Ky., 339 S.W.2d 869. If appellants are complaining of retrospective or retroactive operation of the law, their position is likewise untenable. The Act does not affect or impair rights existing prior to the date of its enactment. To insist that private rights are immutable and once vested can never be changed is to ignore the precept that private right is always subordinate to public right asserted by the proper exercise of the police power. Levy v. Curlin, Ky., 241 S.W.2d 997; Bischoff v. Hennessy, Ky., 251 S.W.2d 582.

Another incidental issue is raised by the contention that a limited number of signs would not be objectionable and that there is no necessity for their wholesale prohibition. It is obvious that an attempt to limit the number or kind (which might be an acceptable form of regulation) is fraught with very serious difficulties. See Fuller v. Fiedler, 19 Wis.2d 422, 120 N.W.2d 700. This is another matter of policy which it was necessary for the legislature to decide in the light of the problems involved.

We now reach the question of whether this Act constitutes an arbitrary exercise of police power. This raises two issues: (1) is it within the scope of a public purpose for the state to impose regulations on property within the proximity of its major highways, and (2) if so, are the regulations imposed by this Act unreasonable ?

On the first point, it is admitted by appellants that a public purpose is served by some plan for the regulation of outdoor advertising. They concede that the erection of signs properly has been subject to zoning laws and ordinances. If it were not admitted, it seems obvious that as an incident to the construction and maintenance of highways there is a public interest in those things which facilitate the movement of traffic, improve the efficiency of highway operations, increase the enjoyment of public travel, and preserve the systems’ value as a public asset. The surroundings of highways are matters of public interest and public welfare. Jasper v. Commonwealth, Ky., 375 S.W.2d 709.

The second point raises the ultimate issue in this case, which is the reasonableness of this particular plan of regulation. It is reasonable if it goes no further than to fairly protect the public interest of which we have just spoken. •

In considering reasonableness we must take cognizance of the objective of the Act. It is to keep the state’s principal thoroughfares free of a certain class of billboard' signs. No one contends the distance prescribed, 660 feet, is not a fair clearance designation. The argument is that this, total prohibition is unreasonable because unnecessary. Unnecessary for what?

We have heretofore discussed appellants’' argument that it is unnecessary from a traffic safety standpoint. It is not our function to determine the degree of necessity. We certainly cannot find a legislative-determination that traffic safety would be promoted by this law is “palpably false”. See Railway Express Agency v. People of the State of New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533. In any event, this, is a legitimate factor the legislature may weigh in determining public necessity.

Even ignoring it, there are other factors which weigh heavily in the balance of legislative decision. Obviously a billboard sign is a distracting device. It diverts, and' is designed to divert, the motorist’s attention from the highway. In the public interest the legislature could weigh the right of the motorist to be free of such distracting signs. It could determine they impair the motorist’s enjoyment of the highway.

Closely allied to the enjoyment factor is the promotion of the scenic beauty surrounding the highways. Aesthetic considerations are of sufficient potency for the legislature to find a public necessity for this. type of legislation. We have recently considered that question and have accepted aesthetic considerations as justifying the exercise of police power. Jasper v. Commonwealth, Ky., 375 S.W.2d 709.

Another consideration is one of cooperating with the federal government to obtain financial assistance and promote the uniformity of high speed highways. The fact that the Federal Congress and federal authorities have deemed this type of regulation as beneficial to the public is also a factor in determining public necessity.

In view of the considerations above outlined, on what theory may we say this law is not reasonably necessary in the- public interest? We would be forced to adjudge the legislature had no rational basis for such a finding. We are not passing upon the wisdom of the law. We are not appraising it to determine if it is the best of its kind. We are not weighing the factors which could reasonably have been taken into consideration by the legislature, one against the other. We are simply recognizing that the determination of method is strictly a legislative matter with which we cannot interfere if it has a reasonable relationship to a legitimate public purpose.

One of the most important and far reaching developments in Kentucky within recent years has been the construction and improvement of its major highways. Many concepts of 20 years ago are obsolete. Concepts today may be obsolete 20 years from now. This is where the legislature plays its part in the social order. Automobile traffic and highways play a bigger role in public life every day. The extent and method of their regulation must be left to the legislature if the means bear a reasonable relationship to a legitimate end.

Appellants contend this Act takes so much from so many for such a nebulous public purpose. This is perhaps a proper consideration in determining the reasonableness of the regulatory method, but both of appellants’ assumptions are unsound.

The property interests impaired have value only in the exploitation of publicly constructed highways. General Outdoor Advertising v. Department of Public Works, 289 Mass. 149, 193 N.E. 799. Billboards make use of the highways and the property right imposes a servitude on them. Kelbro, Inc. v. Myrick, 113 Vt. 64, 30 A.2d 527.

We do not mean this characterization of appellants’ property rights gives the Commonwealth any special authority' to destroy them. We do say their nature is such the legislature may reasonably find that public rights of travel in the highways outweigh this private manner of use. We have examined the case of Ghaster Properties, Inc. v. Preston, Ohio Com.Pl., 184 N.E.2d 552; Ohio App., 194 N.E.2d 158, wherein it was stated that this consideration has no place in determining the constitutionality of statutes, but we disagree. The nature of rights impaired certainly has a bearing upon the reasonableness of the statutory scheme.

With respect to appellants’ other assumption that the public interest in this type of regulation is slight because intangible, we cannot accept it. That is the very problem the legislature, in its infinite wisdom as the policy determining body, must resolve. If we admit there is some public interest in the regulation of billboard signs (and appellants do admit it), then the substantiality of that interest as opposed to private rights is a matter of legislative discretion up to the limit of arbitrariness. In the light of what we have heretofore said, it is apparent the legislature had ample bases upon which to find that the public interest outweighed the private rights in the subject matter of this controversy. See Levy v. Curlin, Ky., 241 S.W.2d 997.

We have considered this problem as an original proposition in order to examine all of appellants’ arguments. The question has, however, been raised in other jurisdictions and this type of advertising billboard regulation has been upheld against constitutional attack. See New -York State Thruway Authority v. Ashley Motor Court, ■ Inc., 10' N.Y.2d 151, 218 N.Y.S.2d 640, 176 N.E.2d 566; In re Opinion of the Justices, 103 N.H. 268, 169 A.2d 762; Fuller v. Fiedler, Unreported Circuit Court Memoranda Opinion, on appeal on one phase, 19 Wis.2d 422, 120 N.W.2d 700. To the extent it is inconsistent with what we have said in this opinion, we decline to follow the decision in Ghaster Properties, Inc. v. Preston, Ohio Com.Pl., 184 N.E.2d 552; Ohio App., 194 N.E.2d 158.

The judgment is affirmed.

      . State Racing Commission v. Latonia Agricultural Ass’n., 136 Ky. 173, 123 S.W. 681, 25 L.R.A.,N.S., 905.

      . Railway Express Agency v. People of the State of New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533.

      . These two considerations are set forth in the preamble to the Act.

      . Cooper v. Kentuckian Citizen, Ky., 258 S.W.2d 695.

      . Bowling v. City of Somerset, Ky., 333 S.W.2d 769.

      . U. S. Constitution, section 1, 14th Amendment


author: DAVIS, Commissioner.

text:
    Mary Ellen HINTON, Appellant, v. Paul J. HINTON, Appellee.
    Court of Appeals of Kentucky.
    Jan. 31, 1964.
    Rehearing Denied May 15, 1964.

      Donan & Vick, Wm. P. Donan, Green-ville, for appellant.
    Woodwood, Bartlett & McCarroIl, Clarence Bartlett, Owensboro, for appellee.
   DAVIS, Commissioner.

In this divorce action the trial court refused the wife’s prayer for divorce; awarded divorce to the husband on his counterclaim; denied maintenance and alimony to the wife; and awarded the husband custody of the three daughters of the parties.

The wife attacks the judgment in four particulars: (1) it was error to refuse her prayer for divorce, (2) it was error to grant the husband a divorce, (3) the custody of the three children should have been awarded to her, and (4) she should have been allowed alimony.

The parties were married in 1951 and are the parents of three girls, respectively aged 10, 7 and 4 at the time suit was filed. Neither of them was possessed of property at the time of the marriage. Each has worked during the marriage; the husband has been steadily employed in various capacities by a mining company. His annual income from that employment has exceeded $8,000.00 slightly in the past two or three years. The wife also has been employed gainfully during the marriage. Her terms of employment were not continuous, of course, as she was required to take leave of her work incident to the births of the three children. They jointly own a residence and an undivided half of a farm.

No useful purpose would be served by detailed recitation of the evidence. It suffices to note that proof in behalf of the wife fails to sustain her charge of cruel and inhuman treatment of her by the husband. Proof adduced by the husband indicates no overt act of the wife in violation of marriage vows. At best, it may be said that the wife subjected herself to the ever fervid activities of rumormongers because of her daily travels to and from her employment at Paradise, Kentucky, with a male fellow employee. There was no evidence of any clandestine nocturnal meetings of the wife and this fellow traveler. The husband frankly testified that he did not consider the wife an immoral person.

After completion of the testimony in the case, the husband filed an amended answer and counterclaim for divorce wherein he charged the wife with lewd and lascivious conduct. See KRS 403.020(4) (c). The chancellor concluded that the charge was sustained by the evidence. We are unable to agree with that finding. We have held that an unfounded and unsus-tained charge of lewd and lascivious conduct against the wife amounts to cruel and inhuman treatment sufficient to support a divorce, and in such event the wife is entitled to alimony. Compare Clay v. Clay, Ky., 334 S.W.2d 909, and the cases discussed there. Such a charge is said to be unfounded if it is not supported by sufficient evidence to imply good faith. Clay v. Clay, supra. The nature of the charge is such that it must not be lightly made. In our view the finding of the chancellor was clearly erroneous within the meaning of CR 52.01. It follows that the wife should have been granted a divorce. Cf. Clay v. Clay, supra, and the cases therein cited.

By the terms of KRS 21.060(b) we are precluded from entertaining an appeal looking toward reversal of that portion of the judgment granting divorce to the hus.-band. Goetz v. Goetz, Ky., 341 S.W.2d 249. Nevertheless, we may adjudge the matters of custody, alimony and maintenance. Cf. Rayburn v. Rayburn, 300 Ky. 209, 187 S.W. 2d 804.

The parties concede the fundamental rule that the welfare of the children is the prime consideration in determining custody matters. 7A Ky.Digest, Divorce, It is equally well settled that without evidence of unfitness of the mother, she should have custody of minor children. See Donoho v. Donoho, Ky., 357 S.W.2d 665, and the authorities discussed there. The basis for awarding custody of minor children to the mother rests in the accepted premise that to do so best serves the welfare of the children. There is no reasonable basis for deviation from the usual practice in this case. No moral delinquency of the mother is demonstrated. She qualifies, even by the testimony heard from the husband’s witnesses, as a fit and proper person to have the custody of the children. She should have it; the chancellor’s contrary judgment is clearly erroneous and is reversed. Proper visitation right shall be permitted to the husband.

Granting custody to the wife presents the question of proper maintenance allowance for support. Based upon the record before us, we conclude that the chancellor shall allow to the wife the sum of $150.00 per month as maintenance if she is permitted to have possession of the jointly owned residence of the parties as a home for the children; if the use of the residence is not made available for that purpose, then the maintenance allowance shall be $200.00 per month. Such maintenance allowance, of course, shall be subject to appropriate review in light of conditions that may arise hereafter. ICRS 403.070.

From what we have said, it is apparent that the trial court was in error in denying alimony to the wife. We refrain from undertaking final adjudication of the alimony item, as we believe this question should be determined in light of whatever situation may presently exist as distinguished from the somewhat sketchy factual background now before us. The chancellor will afford opportunity to the parties to adduce evidence in detail in order to fully reveal the reasonable value of the husband’s estate. After such a determination, a permanent alimony award to the wife in a sum equal to one-third of the value of the estate of the husband should be made. Court costs, including reasonable fee for the wife’s attorney, should be allowed" to the wife. KRS 453.120.

The judgment is reversed to the extent that it awards custody of the children to appellee, and to the extent that it denies maintenance allowance, alimony and costs to the appellant; the trial court is directed to enter judgment consistent with this opinion.

MONTGOMERY, J., dissenting.


text:
    Charles KAYROUZ et al., Appellants, v. Lawrence W. JOINER et al., Appellees.
    Court of Appeals of Kentucky.
    March 13, 1964.
    Rehearing Denied May 15, 1964.

      Henry A. Triplett, Boone & Triplett, Louisville, for appellants.
    Sandy Paniello, Louisville, for appellees.
   DAVIS, Commissioner.

This appeal must be dismissed for appellants’ failure to comply with the requirements of RCA 1.180 for appeals falling within KRS 21.080.

The litigation before us arose from a real estate transaction in which appellants were the proposed sellers, appellees Joiner, the proposed buyers, and appellee Zettwoch-Fortner Corporation, the real estate broker.

The sellers had refused to carry out the contract, maintaining that it had terminated. The buyers filed suit for specific performance against the sellers. The complaint sought $1,500 in damages and specific performance, or, in the alternative, $14,000 in damages if specific performance was denied.

The sellers brought the broker in as third-party defendant, seeking indemnity for any sum which the buyers might recover. The broker asserted its claim against the sellers for $760 as commission due for the “sale” to the buyers.

The chancellor entered judgment denying any relief to the buyers, but he adjudged the broker entitled to the claimed brokerage commission of $760. The third-party claim of sellers against broker for indemnity was, of course, dismissed.

On its face, the judgment of the trial court is a money judgment in favor of broker against sellers for $760. However, the judgment recites that the amount in controversy is more than $2,500. So it would be had the buyers appealed, since they had sought damages in the sum of $14,000. Patently, the only sum involved on this appeal by the sellers is the $760 broker’s commission. RCA 1.180 requires that appeals involving sums as much as $200 and less than $2,500 be prosecuted by appropriate motion for appeal. The failure to so prosecute an appeal in which the sum at stake is within the monetary ranges mentioned in KRS 21.080 is fatal. See Pennyrile Rural Electric Cooperative Corporation v. Lyon County, Ky., 318 S.W.2d 430, and cases there cited.

It must be observed that KRS 21.070 provides that the trial court may fix a value in controversy which is conclusive if the judgment does not certainly fix the value when construed in connection with the pleadings. However, the trial court may not create an absolute right of appeal to this court by reciting a value that has no basis when the judgment is construed in connection with the pleadings. Cf. Roth v. Stauble, Ky., 313 S.W.2d 269. As pointed out, such was not the purpose of the trial judge in the case at bar. Manifestly, the value of the thing in controversy as it relates to this appellant is $760 and no more.

The appeal is dismissed.


author: PALMORE, Judge. WILLIAMS, Judge

text:
    KELLY CONTRACTING COMPANY, Appellant, v. Elizabeth P. ROBINSON, Administratrix of the Estate of George Fletcher Robinson and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Feb. 7, 1964.
    Rehearing Denied May 15, 1964.
    Victor W. Ewen, Jones, Ewen & Mackenzie, Louisville, for appellant.
    Herbert D. Liebman, Howard Black, Frankfort, for Robinson, appellee.
    John B. Breckinridge, Atty. Gen., for Workmen’s Compensation Bd., appellee.
   PALMORE, Judge.

George Fletcher Robinson, 40 years of age, fell dead while engaged in the course of his employment with the appellant company, a road contractor. On the theory that his death occurred by reason of a coronary occlusion resulting from his work the Workmen’s Compensation Board awarded maximum benefits on the personal representative’s claim. The company appeals from a judgment of the Shelby Circuit Court affirming the award.

The dispositive question is whether the evidence was sufficient to support a factual finding that the physical exertion of Robinson’s work was a causal factor in the fatal attack. To phrase it in terms of legal principle, was there substantial evidence to indicate a reasonable probability that the work caused or contributed to the injury?

Robinson’s usual activities were to operate a watering tank truck which wet down the sub-grade of the road under construction and, from time to time, to dismount and dig “bleeder drains” in the loose dirt piled against the edge of the newly deposited crushed rock so that the water would drain out of the rock and off to the side of the road. The latter job consisted of using a hand shovel to displace three or four shovels full of dirt and then walking 100 feet and repeating the operation. Ordinarily it was not a strenuous activity. A fellow workman said, “As far as labor work, I think it’s just a simple ordinary job.”

Though no witness observed Robinson actually engaged in the shovel work on the day of his death (which was variously estimated to have occurred around 9 or 10 o’clock in the morning), he had been seen walking along the road carrying a shovel a short while before the fatal attack. The day (July IS) was hot, and he was perspiring. Moments before the end he was on his water truck which was parked on a bridge over Bullskin Creek, the source from which water was pumped for use on the road. His foreman, working at the other end of the bridge, whistled and motioned for Robinson to come over to him. The foreman then directed his attention to the matters immediately at hand and did not again see Robinson until he, the foreman, looked around three or four minutes later and found him lying on the ground. Robinson had walked across the bridge, a distance of about 100 feet, and had just about reached the foreman when he fell. This is the substance of the evidence bearing upon Robinson’s physical activity immediately preceding his death.

There was but one medical witness, Dr. L. A. Wahle, who as county coroner examined Robinson after death and executed a death certificate assigning coronary occlusion as the cause. He had never seen the decedent before. He said that his verdict was based partially on a history of pre-existing coronary disease, which history was given him by members of the family and other associates of Robinson. He had no written record and could not recall the identities of the specific persons from whom he obtained this information. Robinson’s widow testified that he had never had heart trouble or manifested any sign of ill health.

Dr. Wahle recommended to the members of the family that if they had any further interest in the cause of death they have an autopsy. However, this was not done.

On the witness stand Dr. Wahle declined to say that the occlusion would have occurred regardless of the work Robinson was doing, but indicated that it could have. He likewise declined to say that the work was or probably was a causative factor, but said that it could have been. The following quotations fairly exemplify his testimony in this respect :

“I can say that he died while at work, and his cause of death was coronary occlusion, the extent to which his occupation caused his death is a questionable factor.”
Q 83: “Without the benefit of more information such as might be obtained in an autopsy, it would be purely mere speculation to try to guess.”
Answer: “It would be speculation,” etc.
Q 87: “You stated in response to one of Mr. Ewen’s questions that the physical exertion which Mr. Robinson experienced as a result of his employment and the heat of the day were factors in causing his death, is that correct?”
Answer: “I believe,. Mr. Liebman, that my remarks were that the conditions that existed the day of his death could have been a factor in his fatal occlusion.”

In Terry v. Associated Stone Co., Ky., 334 S.W.2d 926 (1960), the Board’s finding was supported by medical testimony to the effect that the coronary occlusion was “probably precipitated” by Terry’s exertion. In Grimes v. Goodlett and Adams, Ky., 345 S.W.2d 47 (1961), three doctors expressed opinions on the relationship of the work to the heart attack. One said the exertion “could have” contributed and the other two said it probably did. In the absence of any evidence to the contrary, we held that this testimony was conclusive.

Our decision in the Grimes case was premised on the expert testimony to the effect that the decedent’s exertion probably did contribute to his death. Such testimony constitutes substantial evidence sufficient to require an award in the absence of rebuttal or to sustain an award in the event the board chooses to believe it over rebutting testimony. But there is a significant difference between probability and possibility. A possibility is not enough to support a finding. Terry v. Associated Stone Co., Ky., 334 S.W.2d 926, 928 (1960). In our opinion the words “could” and “could have” speak in terms of possibility only, not probability. The excerpt from Dr. Wahle’s testimony quoted in the dissent to this opinion, to the effect that the disease aould have progressed in such a manner that the work would have been sufficient to induce a fatal conclusion, amounts to nothing more than a conjecture of what might have been.

In the absence of medical testimony that the physical stress of Robinson’s work did or probably did cause, contribute to or precipitate his coronary occlusion, a court cannot find it so without assuming an expert medical proficiency of its own. It may be that Robinson’s claim inherently was as valid as those in the Terry and Grimes •cases, but the difference is in the witnesses. Neither the board nor the courts can use the testimony from Terry and Grimes in this case, and the relationship between physical activity and coronary occlusion is not so clearly established that we could take judicial notice that if a man has an occlusion while he is engaged in manual labor, ■or immediately afterward, the exertion is probably a causative factor. That must come from the mouth of a qualified member of the medical profession before it can be found as a fact in a court of law.

Since the claim cannot be sustained at all, it is unnecessary to discuss the board’s action in rejecting Dr. Wahle’s thesis to the effect that exertion never is the sole cause of a coronary occlusion, while at the same time accepting his opinion that there was an occlusion, an error that resulted in a maximum award rather than an apportionment.

The judgment is reversed with directions that it be remanded to the Workmen’s Compensation Board for dismissal of the claim.

WILLIAMS, J., dissents.

WILLIAMS, Judge

(dissenting).

I most respectfully dissent from the majority opinion because I believe we reached the point of no return in Terry v. Associated Stone Company, Ky., 334 S.W.2d 926, and Grimes v. Goodlett and Adams, Ky., 345 S.W.2d 47. Without intending to emasculate the science of semantics I am of the opinion that, when a doctor states a condition could have caused a coronary occlusion, he has concluded the question almost as definitely as when he states the same condition probably caused the trouble.

In both the Terry and Grimes cases the doctors vacillated in their testimony concerning the cause of the traumatic injury. For example, in the Grimes case various doctors discussing the relationship between the work which was being done and the injury which occurred said: “Don’t know,” “could have,” “direct contribution,” “could reasonably be,” “I believe it was,” “probably precipitated,” “not necessarily a precipitating cause,” etc. In the Terry case one doctor said physical exercise was a factor, another said it could be a factor, a third said it probably was a factor. In other words, doctors seldom, if ever, say without reservation that physical exertion does precipitate a coronary occlusion, so I believe it is incumbent upon the courts and the Workmen’s Compensation Board to use common sense in the interpretation of a doctor’s testimony.

We have not held that testimony of a doctor must be absolute. In fact, in the Grimes case we said: “The facts or hypotheses on which the professional witness testifies need not be conclusive. They are sufficient if in his opinion they indicate the cause within reasonable probability. The claimant is not required to prove his case beyond a reasonable doubt.” Whether the conditions possibly or probably could have caused the injury is purely a question of degree. Each requires speculation. At any rate, I feel that we have gone so far in heart attack cases that we should not quibble over the testimony of a reluctant doctor.

The question before us is whether there was sufficient testimony to justify the finding made by the Workmen’s Compensation Board. The doctor who testified was as reluctant as any of his brothers to state that the conditions existing caused the coronary occlusion. However, despite his vacillation, he did make the following statement:

“A man who has engaged in a similar occupation over a period of a year or thereabouts could in that interval have progression of coronary arterial disease to the extent that the conditions that existed on the day of his death zvould have been sufficient to induce a fatal occlusion. Those conditions were the type of work he was doing, the heat of the day, which concentrated his circulating blood because of his perspiring.”

It was proved that the day was hot, that Robinson was perspiring, and that he had probably been digging ditches. Those are the conditions the doctor was discussing. He had already stated that Robinson had a pre-existing heart condition which doubtless had progressed during the year Robinson worked for the appellant. The doctor said that those conditions would have been sufficient to induce a fatal occlusion. Certainly this is sufficient to sustain the finding of the Board.

I agree the Board was in error in rejecting the doctor’s thesis concerning the preexisting condition which was aggravated by the injury. The finding of the Board should be sustained and the award apportioned according to the contribution of the injury to the disability.

      . “To establish causal connection between an accident and an injury the standard of proof is held to require medical testimony to the effect that the accident ‘caused’ the injury, not that it ‘could have’ or ‘probably did,’ though absolute medical certainty is not demanded.” Schneider, Workmen’s Compensation VoL 12, p. 308 (§ 2532). Thus it would appear that by equating “probably did” with “could have” some courts have been less liberal than we.


author: STEWART, Judge.

text:
    A & W EQUIPMENT COMPANY, Inc., Appellant, v. Charlie CARROLL et al., Appellees.
    Court of Appeals of Kentucky.
    March 13, 1964.
    Rehearing Denied May 15, 1964.

      Logan E. Patterson, Robert B. Berger, Pineville, for appellant.
    William S. Tribell, Thomas Z. Board, Middlesboro, John B. Breckinridge, Atty. Gen., William Lamkin, Jr., Asst. Atty. Gen., Frankfort, Phillip K. Wicker, Asst. Atty. Gen., Somerset, for appellees.
   STEWART, Judge.

This is an appeal from a judgment of the Bell Circuit Court decreeing invalid a contract entered into between A & W Equipment Company, Inc., appellant herein, and the Bell County Fiscal Court, for the purchase of two road graders.

The trial court found the following facts :

On July 15, 1961, the Bell County Fiscal Court (hereinafter referred to as “the Fiscal Court”) authorized advertisement for bids for the purchase of two motor graders under a rental-with-option-to-purchasc plan (hereinafter referred to as “the contract”). The advertisement was placed in the Mid-dlesboro Daily News, a daily newspaper of general circulation in Bell County.

On August 18, 1961, Brandéis Machinery and Supply Company submitted a bid of $30,530. On the same date, appellant tendered a bid of $38,286.50. No other bids were received. On September 16, 1961, appellant’s bid was accepted and approved by the Fiscal Court.

On September 27, 1961, appellant filed articles of incorporation with the Secretary of State and copies thereof were filed on September 28, 1961, with the Bell County Court Clerk. On November 8, 1961, the contract was signed by Edward M. Dooley on behalf of appellant; and on November 10, 1961, it was signed by the Bell county judge. A contract with the Department of Highways was subsequently executed, by the terms of which the equipment was leased by the county to the state under an arrangement which would service the debt incurred.

On November 14, 1961, after the two graders had been delivered but before any payment had been made, Charlie Carroll and Charlie Hoskins, appellees herein, filed this action as taxpayers to invalidate the contract. That day the trial court issued an order restraining the Fiscal Court from proceeding with the contract until further orders were issued by it. On November 24, 1961, appellant filed answer and cross-claim, seeking a declaration of rights and the enforcement of its contract with the Fiscal Court. On December IS, 1961, while the restraining order was in full force and effect, the Fiscal Court attempted to ratify the contract with appellant.

The trial court also found as a fact that appellant was not an existing corporation when its bid was submitted, accepted and approved. The court further found that Edward M. Dooley, at the time he signed the contract, was not an officer of the corporation.

The trial court concluded:

1. The fact that appellant was not incorporated, that is, not in legal existence, at the time its bid was submitted and at the time of the acceptance of the bid, rendered the proceeding illegal and void.

2. The later attempted ratification of the contract, being in violation of the restraining order, did not have the effect of ratifying it or making it binding.

3.The contract was not binding because it was not signed by an official of the A & W Equipment Company who had the power to obligate it.

It is appellant’s position that the mere fact it was not incorporated and thus not in being when the bid was made in its behalf and accepted By the Fiscal Court does not render the entire proceeding either illegal or void, as was decreed by the trial court. We believe this position is well taken.

There is no evidence to indicate whether the Fiscal Court knew appellant was nonexistent when the bid was made and accepted. If it is presumed the Fiscal Court did not have such knowledge, then the whole transaction was merely voidable at the instance of the misled party. Where one makes an agreement with another under a mistake as to the other’s identity, the contract is neither void nor voidable, unless identity was a material inducement in the making of the contract. See 12 Am.Jur., Contracts, Sec. 134, p. 626, Annotation, 147 A.L.R. 1171 et seq.

Here the actual contract was executed and fully carried out by appellant after appellant was incorporated. Such acts amount to a ratification of the transaction by appellant. In 2 Fletcher, Cyc.Corp. (Perm. Ed.) Sec. 752, pp. 1057-58, it is stated:

“If the officers or the agents of a corporation assume to act for the corporation without any authority at all, or if they exceed their authority or act irregularly, and the act is one which could have been authorized in the first instance by the stockholders, board of directors or subordinate officers, as the case may be, it may be expressly or impliedly ratified by them, thus be rendered just as binding except as to intervening rights of third persons, as if it had been authorized when done, or done regularly.”

See also Catlettsburg & Buchanan Tel. Co. v. Bond, 262 Ky. 106, 89 S.W.2d 859.

The trial court’s ruling that the contract was illegal, because it was not signed by an official of the corporation who had the authority to . obligate it, is subj ect to the same answer as the one given to the contention that a bid could not be accepted when submitted' from a nonentity; namely, the contract was duly ratified after the corporation became a reality. The performance of the contract by appellant by delivery of the equipment showed appellant ratified the contract and believed that it was bound by the terms thereof. In 13 Am. Jur., Corporations, Sec. 929, p. 929, it is said: “It is the view generally taken that a third person dealing with the officer or agent of a corporation, cannot, after the corporation has ratified the transaction, object on the ground that the officer or agent was unauthorized at the time of the transaction.”

The Fiscal Court effectively ratified the contract by accepting delivery of the equipment. Such acceptance was in fact accomplished before this action was filed and the restraining order was issued. However, the Fiscal Court did not try to avoid the contract but, on the contrary, repeatedly demonstrated its willingness to perform under it.

The Fiscal Court had the authority to buy the two road graders. See KRS 179.-170(1), KRS 179.180. According to such cases as Taylor v. Riney, 156 Ky. 393, 161 S.W. 203, and Commonwealth v. Fayette County, 239 Ky. 485, 39 S.W.2d 962, the Fiscal Court was invested with broad discretion in consummating deals of this type; and the courts will not interfere with this discretion unless there is a clear showing of abuse amounting to fraud or action indicating arbitrariness or capriciousness. See Ford v. County of Carlisle, Ky., 361 S.W.2d 757.

If, with knowledge of all the facts, the Fiscal Court was anxious and willing to honor and carry out its contract, and retain the benefit of full performance thereunder by appellant, it does not appear to be in the interest of the county for two interloping volunteers, under the guise of public-spirited piety, to substitute their judgment for that of the Fiscal Court.

In this case, the Fiscal Court received two bids and accepted the higher one. The trial court held that, because Brandéis Machinery Company made a bid that was low by $7756.50 and because there was no competent evidence to show that the Bran-déis equipment would not satisfactorily perform the services required of it, the Fiscal Court should have accepted the lower bid. This conclusion by the trial court is based upon an untenable premise, namely, that the naked fact of a lower bid cast upon the Fiscal Court the burden of justifying its acceptance of a higher bid. This is not the proper rule of law. In Taylor v. Riney, 156 Ky. 393, 161 S.W. 203, this Court made it clear that in situations like the present “the fiscal court is invested with a large measure of discretion, and under ordinary circumstances this discretion will not be controlled by the courts, as it is to be presumed that the fiscal court will act in the discharge of matters under its care in such a manner as to best conserve the interests of the county.” We believe the Fiscal Court is entitled to a presumption that the bid accepted by it was the “best” bid, though it may not have been the lowest, and that the burden of proving otherwise falls on the contesting party or parties.

As a parting shot the trial court suggested that the contract may have been illegal and void because a member of the county budget commission was also a stockholder and officer of appellant. Gaines Williamson, the appointive member of the county budget commission, also is president of appellant corporation and the owner of 18% of its stock. The trial court apparently felt that his act done while retaining the above position violated KRS 61.190, -which in part reads:

“Any public officer who shall receive, directly or indirectly, any interest, profits or perquisites arising from the use or loan of public funds in his hands, or to be raised through his agency, shall be punished by confinement in the penitentiary for not less than one nor more than five years. * * * ”

This statutory provision implements Section 173 of the Constitution of Kentucky. KRS 68.230 sets out the qualifications for the appointive member of the county budget commission, but there is no statutory provision for the payment of any compensation to its members.

The commission to which Williamson was appointed does not “raise” any money, nor does it disburse or participate in the spending of public funds. The commission formulates an estimate of funds needed by the various units of county government and an estimate of anticipated county receipts. The budget so prepared must be approved by the state Local Finance Officer before it can be adopted by the Fiscal Court. It is obvious that Williamson, in the performance of his duties, does not “receive * * * any profits * * * arising from the use * * * of public funds in his hands, or to be raised through his agency * *

We therefore, conclude the provisions of KRS 61.190 do not extend to an appointive member of the county budget commission.

For the reasons set forth, we hold that the contract in controversy is a valid and binding agreement, and the trial court is directed to order the Fiscal Court to perform it in accordance with its terms and conditions to the extent requested by appellant’s counterclaim.

Wherefore, the judgment is reversed.


author: DICE, Commissioner.

text:
    Robert Lee PENNINGER, Appellant, v. The STATE of Texas, Appellee.
    No. 36897.
    Court of Criminal Appeals of Texas.
    April 22, 1964.
    No attorney of record on appeal, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and J. R. Mussle-white, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for robbery by assault; the punishment, five years in the penitentiary.

No statement of facts of the evidence adduced upon the main trial accompanies the record.

One formal bill of exception to certain alleged improper jury argument is found in the transcript. The bill of exception was by the court refused, with the court’s reasons noted thereon, and returned to the clerk. Appellant, after notice by the clerk of the court’s refusal, filed no bystanders bills and took no further action in the matter.

Under the record, the bill of exception cannot be considered. English v. State, Tex.Cr.App., 338 S.W.2d 446; Thompson v. State, Tex.Cr.App., 339 S.W.2d 209; Holley v. State, Tex.Cr.App., 366 S.W.2d 570.

The judgment is affirmed.

Opinion approved by the court.


author: McDonald, judge.

text:
    Elroy SULLIVAN, Appellant, v. The STATE of Texas, Appellee.
    No. 36821.
    Court of Criminal Appeals of Texas.
    April 22, 1964.

      No attorney of record on appeal.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Milton B. McCollough, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is Carrying a Pistol; the punishment, a fine of $500.00.

There are no formal bills of exception, and no brief has been filed on appellant’s behalf.

The statement of facts accompanying the record is not certified or approved by the trial judge. It shows on its face that testimony had been started without the reporter after which request was made by appellant’s counsel and the reporter summoned for the balance of the testimony. The court reporter’s certificate shows that the statement of facts is a true, complete and correct transcript of all of the testimony adduced upon the trial with exception of the first state’s witness, C. G. Trevino. The agreement of counsel for appellant and for the state also recites that it is a true, complete transcript of all the testimony with the exception of the first state’s witness, C. G. Trevino.

It appears from the court reporter’s certificate and the quoted agreement that the statement of facts does not purport to contain all of the evidence adduced on the trial, hence the question of the sufficiency of the evidence is not before us.

For like reason, the informal bills of exception relating to the court’s ruling on the admission of evidence cannot be appraised without a complete statement of facts or other showing that the claimed errors were not waived or cured. Stockman v. State, 164 Tex.Cr.R. 469, 303 S.W.2d 410.

The judgment is affirmed.