text:
    STATE of Missouri ex rel. R-1 SCHOOL DISTRICT OF PUTNAM COUNTY, Missouri, Stewart Pratt, Melvin Sparks, Robert Rockwood, W. E. Ross, Gerald Brown, Adrien E. Lewis, the Official Board, Relators, v. Hon. J. Doerr EWING, as Transferred Judge of the Circuit Court of Putnam County, Missouri, Respondent.
    No. 24354.
    Kansas City Court of Appeals. Missouri.
    June 6, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 29, 1966.

      V. C. Rose, Rose & Brown, Trenton, for relators.
    William Y. Frick, Frick & Frick, Kirks-ville, for respondent.
   ORIGINAL PROCEEDING IN PROHIBITION

BLAIR, Judge.

This prohibition proceeding originated in this court. Relators are the official board of R-l School District of Putnam County and respondent, Honorable J. Doerr Ewing, Judge of the 4th Judicial Circuit, is Special Judge of the Circuit Court of Putnam County by transfer order of the Supreme Court for the trial of a mandamus proceeding in which the relators in that proceeding sought a peremptory writ to compel the former directors of Worthington District No. 69 of Putnam County, as respondents, to deliver to relators all property, books, papers, records and monies of Worthington School District No. 69. Justification for the mandamus proceeding was alleged to be an election held on July 28, 1964, approving a reorganization which absorbed Worthington School District No. 69 into R-l School District and the subsequent refusal of Worthington School District to deliver to R-l School District all of its property, books, papers, records and monies.

The respondent judge issued an alternative writ of mandamus and subsequent pleadings of the parties put the proceeding at issue. Simultaneously with their return to the alternative writ respondents filed a counterclaim in two counts against relators alleging in substance, in each count, that a number of students of former Worthing-ton School District had lawfully been assigned by the Putnam County Superintendent of Schools to a Schuyler County School District, Queen City No. 2, and that relators had refused to pay Queen City No. 2 the customary and legal charges for tuition and transportation of these pupils and praying for a declaratory judgment that the relators were legally required to pay these charges. We see no need for further particularization of the allegations of the counterclaim. We notice that originally respondents also included these same claims in their return to the alternative writ and that on motion they were stricken from the return by the court.

To the counterclaim relators filed a motion to strike which was overruled by respondent judge. Thereupon they filed a general denial of the allegations of the counterclaim, reserving the right later to urge error in the ruling of respondent judge on the motion to strike.

The mandamus proceeding was tried and adjudged first, with the counterclaim standing in abeyance. Upon motion for summary judgment filed by relators, the respondent judge found that they were entitled to a peremptory writ of mandamus requiring the directors of former Worthington School District immediately to turn over all property, books, papers, records and monies of such former district and thereupon he issued a peremptory writ in conformity with his finding. This judgment has long since become final. The briefs admit, or, at least, do not controvert, that relators have taken no step by any method, contempt or otherwise, to enforce compliance with the peremptory writ. There is no suggestion that the respondent judge has withheld or stayed execution of the writ.

Following entry of the judgment in the mandamus proceeding, the respondent judge announced he proposed to entertain and determine the issues raised by the counterclaim at a future date. The relators in the mandamus proceeding then filed an application in this court for a writ of prohibition commanding the respondent judge to refrain from proceeding to entertain or determine the issues raised by the counterclaim, contending that there is no authority in the Civil Rules or elsewhere in our law for entertaining and determining a counterclaim in a mandamus proceeding and that for respondent judge to do so would be an action in excess of his jurisdiction. We issued our preliminary rule to respondent judge, in accordance with the application for prohibition, commanding him to “refrain from hearing, trying or determining” the counterclaim and to show cause why the preliminary rule should not be made absolute. In due course, respondent judge made return asserting that he had jurisdiction to entertain and determine the issues raised by the counterclaim. Relators denied this assertion by reply and this prohibition proceeding stands at issue.

Squarely presented is the question whether the respondent judge has jurisdiction, by force of the Civil Rules, or by law elsewhere in our jurisprudence, to entertain and determine the counterclaim which was filed in the mandamus proceeding. By constitutional authority granted in 1945 the Supreme Court was authorized to establish rules of practice and procedure for all courts, superseding all existing court rules and statutes in conflict with such rules, with the right reserved to the General Assembly to annul or amend any rule established by that court “by a law limited to the purpose.” Sec. 5, Art. V, Const. of Mo. 1945, V.A.M.S. Pursuant to this authority the Supreme Court established “Rules of Civil Procedure”, numbered 41 to 102, in 1959. Civil Rule 41.02, V.A.M.R., provides: “Rules — When Applicable. Unless otherwise hereafter provided by statute the Rules of Civil Procedure shall govern the practice and the procedure in all suits and all proceedings of a civil nature, legal, equitable and special in the following courts: Supreme Court, Courts of Appeals, Circuit Courts, and Courts of Common Pleas.”

Since the Supreme Court in establishing the Civil Rules as the law governing practice and procedure in the courts exercised a power always committed to the General Assembly prior to 1945, we believe that certain canons of construction employed in ascertaining the meaning of enactments of that body should apply alike in ascertaining the meaning of the Civil Rules established by the Supreme Court. With this in mind, we will paraphrase and apply, in the course of this opinion, certain canons of construction we believe applicable in determining the meaning of Civil Rule 41.02 and relevant to the question we must decide.

The historical background of this rule, and the evolution in the law which preceded its establishment, are proper and relevant subjects of inquiry in arriving at its meaning. State ex rel. Smith v. Atterbury, 364 Mo. 963, 270 S.W.2d 399; Kansas City v. Travelers Ins. Co., Mo.App., 284 S.W.2d 874. Searching for the meaning of Civil Rule 41.02 we are authorized to examine the history of all prior civil codes enacted by the General Assembly and prior rules of the Supreme Court relating to the question before us as well as the decisions construing those codes and rules. Lemasters v. Willman, Mo.App., 281 S.W.2d 580; State v. Hanson, 234 Mo. 583, 137 S.W. 968; Memmel v. Thomas, 238 Mo.App. 403, 181 S.W.2d 168. We are entitled to presume that the Supreme Court in establishing the Civil Rules was acquainted with the history of those codes and rules and the decisions construing them. Mack Motor Truck Corp. v. Wolfe, Mo.App., 303 S.W.2d 697; Howlett v. Social Security Commission, 347 Mo. 784, 149 S.W.2d 806; Mo. Digest, Vol. 26, Statutes,

Prior to the establishment of the Civil Rules, mandamus had traditionally been characterized by our courts as an “action at law” and as a “legal remedy”. Horton v. Bourke, 344 Mo. 826, 129 S.W.2d 866; State ex rel. v. Bank of Conception, 174 Mo.App. 589, 163 S.W. 945; State ex rel. Kinneard v. Jackson County Court, Mo. App., 17 S.W.2d 572; Mo. Digest, Vol. 19, Mand.,

Mandamus had also been characterized by our courts as “a special proceeding” and it unquestionably is such a proceeding. State v. Cook, Mo.App., 201 S.W. 361; State ex rel. Downs v. Kimberlin, Mo., 260 S.W.2d 552.

In Missouri, the comprehensive Field Code of Civil Procedure, adopted in 1849, and thereafter amended from time to time, continued to govern procedure in civil cases until 1943. One provision of the 1849 Code of Civil Procedure was Sec. 6, Art. XXX, Laws of Missouri 1849: “Until the legislature shall otherwise provide, this act shall not affect proceedings upon mandamus * * *.” In 1854 the Supreme Court construed this provision as meaning exactly what it said: “The code of practice does not apply to proceedings upon mandamus.” Smith v. St. Francois County Court, 19 Mo. 433. In 1855 the above section of the 1849 Code of Civil Procedure had disappeared from the Code and a new provision had been substituted. Sec. 22, Art. IX, Chapter 128, R.S.Mo.1855 read as follows: “The provisions of this article shall extend * * * to all writs of mandamus * * * and to the proceedings thereon; * * * ”. Art. IX, of Chapter 128, R.S.Mo.1855 applied only to amendments of pleadings and to no other provisions of the 1849 Code. Thereafter sporadic efforts of varying types were made to utilize provisions of the Civil Code in mandamus proceedings other than the article permitting amendments but they uniformly met judicial rejection. “At the adoption of the practice act, in 1849, it was provided, by section 6 of article 30, that the act should not affect proceedings upon mandamus until otherwise provided. At the present time the article relating to amendments is in express terms made to apply to writs of mandamus; thus showing by clear implication that in other respects it does not apply. Hence we held in State [ex rel. Gordon] v. Burkhardt, 59 Mo. [75] 79, that the general provisions of the practice act allowing all persons having an interest in the suit to be made plaintiffs or defendant had no application to proceedings by mandamus.” State ex rel. Conran v. Williams, 96 Mo. 13, 8 S.W. 771, 772. See also: State ex rel. Baker v. Fraker, 166 Mo. 130, 65 S.W. 720; State ex rel. Hentschel v. Cook, Mo.App., 201 S.W. 361,363.

Thereafter Sec. 22, Art. IX, Chapter 128, R.S.Mo. 1855 was continued in the Revised Statutes in substantially the same form until 1943. Sec. 987, Art. VI, Chapter 6, R.S. Mo. 1939. No law had been enacted enlarging the application of the Civil Code to mandamus proceedings and no judicial ruling had undertaken to do so. In 1943 the General Assembly repealed all of Art. VI, Chapter 6, R.S.Mo. 1939, including, of course, Section 987, and enacted a new and comprehensive practice act called the Civil Code of Missouri. Sec. 2, p. 357, Civil Code of Missouri, Laws of Missouri, 1943, Sec. 5.06.010 V.A.M.S. provided: “This code shall be known as the Civil Code of Missouri and shall govern the procedure in the supreme court, courts of appeals, circuit courts and common pleas courts in all suits and proceedings of a civil nature whether cognizable as cases at law or in equity, unless otherwise provided by law.” (Emphasis supplied.)

The new Civil Code contained a provision empowering the Supreme Court to direct the form of writs and process and to promulgate general rules of procedure for all courts of the state so long as they were not, “contrary to or inconsistent with the laws in force for the time being.” Sec. 10, p. 359, Civil Code of Missouri, Laws of Missouri, 1943, Sec. 477.010, R.S.Mo. 1949, V.A.M.S. Thereafter on November 10, 1944, the Supreme Court adopted numerous rules supplementing and harmonizing the provisions of the 1943 Civil Code of Missouri. Among these rules was Sec. 3.02(a) “Procedure to be Followed: * * * If any special procedural statute refers to or adopts the provisions of the Code of Civil Procedure, and also refers to a particular method of procedure which has been changed by the Civil Code, then and in that event, the substitute procedure prescribed by the Revised Civil Code shall be employed.”

Following enactment of the Civil Code of Missouri and especially Sec. 2, p. 357, Laws of Mo., 1943, Sec. 506.010, R.S.Mo. 1949, V.A.M.S., supra, and the promulgation of the rules the Code authorized the Supreme Court to adopt, and especially Sec. 3.02(a), supra, of those rules, the appellate courts ruled that the code, although of general application to suits of a civil nature, did not apply to special proceedings where the proceedings prescribed were complete in themselves and not altered by the application of Sec. 3.02(a) or by law. “The civil code, although of general application to suits in the circuit court, does not apply to all civil actions. Section 1 of the Code, Laws 1943, pp. 353, 356, repeals specific sections of the general procedural statutes then in force and enacts a new code ‘in lieu of those sections. It does not repeal any statute providing a special remedy. Section 2 of the Code, § 506.010, makes the code applicable to all suits and proceedings of a civil nature ‘unless otherwise provided by law.’ Obviously, it does not change the law relating to will contests. S. Ct. Rule 3.02(a) provides that if any special procedural statute (the will contest statute is unquestionably a special procedural statute) refers to or adopts the provisions of the code, then the substitute procedure prescribed shall be employed. The statute authorizing will contests, § 468.580, does not refer to or adopt the provisions of the code. To the contrary, it prescribes, to the extent therein stated, its own procedure by fixing the conditions upon which a will contest may be maintained, the sole issue to be tried, the forum in which it must be tried and declaring it to be an action at law. Consequently, it cannot be persuasively argued that the provisions of the code relating to permissive joinder destroy or broaden the single issue defined in the statute authorizing such contests and the method therein prescribed for its determination.” State ex rel. Siegel v. Strother, 365 Mo. 861, 289 S.W.2d 73, 1. c. 80. See also: Choate v. State Department of Public Health & Welfare, Mo.App., 296 S.W.2d 189, 192; Green v. Green, Mo.App., 240 S. W.2d 741, 742; Herrman v. Dixon, Mo.App., 285 S.W.2d 716, 717; State ex rel. Schwartz v. Buder, Mo.App., 315 S.W.2d 867, 869; State ex rel. Fawkes v. Bland, 357 Mo. 634, 210 S.W.2d 31, 36.

All of the decisions to which we have just referred were rendered by our appellate courts prior to the establishment by the Supreme Court of the present Civil Rules in 1959. Still paraphrasing canons of construction applicable when construing enactments of the General Assembly, the Supreme Court must be presumed to have been aware of these decisions and of the state of its rules and the law when it promulgated Civil Rule 41.02 providing that “Unless otherwise hereafter provided by-statute, the Rules of Civil Procedure shall govern the practice and the procedure in all suits and all proceedings of a civil nature, legal, equitable and special * * (Emphasis supplied) for certainly when the Supreme Court itself or any other court oi last resort has construed a statute or a rule, the Supreme Court is presumed to be aware of that construction when it establishes a rule superseding the former rule or statute dealing with the same subject. Jacoby v. Missouri Valley Drainage Dist. of Holt County, 349 Mo. 818, 163 S.W.2d 930; Mack Motor Truck Corp. v. Wolfe, Mo.App., 303 S.W.2d 697, 701; 26 Mo. Digest, Statutes,

Courts of appeals are courts of last resort. State ex rel. Missouri Gas & Electric Service Co. v. Trimble, 307 Mo. 536, 271 S.W. 43; State ex rel. American Car & Foundry Co. v. Daues, 313 Mo. 681, 282 S.W. 389; State ex rel. Hoyt v. Shain, 338 Mo. 1208, 93 S.W.2d 992; 8 Mo. Digest, Courts,

Simultaneously with the establishment of Civil Rule 41.02 the Supreme Court established also Civil Rule 41.04: “Supreme Court Rules 1, 2 and 3, and existing court rules and statutes in conflict with these Rules of Civil Procedure are superseded by these Rules of Civil Procedure.” This rule effectively repealed the then existing rule, See. 3.02(a) and Sec. 2, p. 357, Civil Code of Missouri, Laws of Missouri, 1943, Sec. 506.010, RSMo 1949, V.A.M.S., and established in their stead Civil Rule 41.02. It is to be presumed that the Supreme Court by superseding this former rule and this statute and substituting Civil Rule 41.02 dealing with the same subject intended to effect some change in the proscriptions of the existing statute and rule excluding the application of the Civil Code of Missouri to special proceedings except in the circumstances they specified. Wright v. J. A. Tobin Const. Co., Mo.App., 365 S.W.2d 742; Darrah v. Foster, Mo., 355 S.W.2d 24.

There is no decision by our appellate courts which decides the question whether in a mandamus proceeding, a special proceeding, a counterclaim may be introduced. The rulings from other jurisdictions are either based on statutes or judicial reasoning that is irrelevant, in our opinion, to the question before us due to the historical background, evolution and express language of Civil Rule 41.02. The language of Civil Rule 41.02 is explicit in directing that the Rules of Civil Procedure shall govern practice and procedure in all suits and all proceedings of a civil nature, legal, equitable and special. We are convinced that the intention of the Supreme Court in establishing this rule was to bring into application in special proceedings those Civil Rules it was simultaneously establishing which were consistent with such proceedings and not repugnant to them.

We do not believe that the introduction of a counterclaim provided for by Civil Rule 55.46 is always repugnant to proceedings in mandamus. We are not holding that a counterclaim may be introduced in an original proceeding in mandamus in the Supreme Court or the Courts of Appeals. The jurisdiction of those courts is defined and limited by the Constitution. Their jurisdiction is wholly appellate, except they are empowered to issue and determine original remedial writs and they possess original jurisdiction to exercise their inherent powers. Secs. 3, 13, 4, Art. V, Const. of Mo., V.A.M.S., Vol. 2;. In re: Sizer, 306 Mo. 356, 267 S.W. 922; State ex rel. Selleck v. Reynolds, 252 Mo. 369, 158 S.W. 671; In re: Richards, 333 Mo. 907, 63 S.W.2d 672. They have no original jurisdiction to entertain and determine controversies over which inferior courts have been granted exclusive original jurisdiction by the Constitution. Sec. 14, Art. V, Const. of Mo., V.A.M.S., Vol. 2. In particular, they would have no original jurisdiction over a counterclaim for a declaratory judgment in a mandamus proceeding, for exclusive original jurisdiction of suits for a declaratory judgment is vested in the circuit courts. State ex rel. Wulfing et al. v. Mooney, et al., 362 Mo. 1128, 247 S.W.2d 722, 726; State ex rel. McNary et al. v. Mooney, et al., 362 Mo. 1139, 247 S.W.2d 726, 728. For other pertinent illustrations see: State ex rel. State Highway Comm. v. Dockery, Mo., 300 S.W.2d 444, 452; State ex rel. Roland v. Dreyer, 229 Mo. 201, 129 S.W. 904, 912; Lane et al. v. Charless, 5 Mo. 285; State ex rel. Waterworth v. Harty, 275 Mo. 59, 204 S.W. 500; Vail, contestar v. Denning, contestee, 44 Mo. 210; Foster v. State, 41 Mo. 61.

But relators argue that to permit a counterclaim in any court in any mandamus proceeding would cause mandamus to “degenerate into another law suit completely destroying the uses and purposes * * * long incident to mandamus, and would destroy one of the most important extraordinary remedies known to the law.” We cannot agree with this argument for reasons we shall presently state. They say that “a long line of decisions in this state sustains the proposition that mandamus is a legal and not an equitable remedy, being a stern, harsh writ and, when issued, is an unreasoning, inflexible peremptory command to do a particular thing therein specified without conditional limitations of any kind. Its office is to execute, not to adjudicate; nor can it adjust or ascertain mutual claims or rights between the parties.” Except for failing to characterize mandamus as a legal and a special proceeding, relators are correct in this last statement. State ex rel. v. Bank of Conception, 174 Mo.App. 589, 163 S.W. 945, 948; State ex rel. Standefer v. England, Mo.App., 328 S.W.2d 732, 737. However, the answer to it seems to us to be that the mandamus was not utilized by the respondent judge or the litigants to “adjust or ascertain mutual claims or rights between the parties.” The respondent judge tried and adjudged the mandamus proceeding according to the law governing mandamus proceedings. It is true that an attempt was made by respondents in that proceeding to violate the rule against employing it to “adjust or ascertain mutual claims or rights between the parties”. As already noticed, they included in their return to the alternative writ the allegations of the counterclaim and the court promptly struck them from the return as irrelevant to that proceeding. The peremptory writ was issued unconditionally and in strict accordance with the prayer of the petition and the alternative writ. There was no interference with the orderly adjudication of the mandamus proceeding in accordance with governing law and no subversion of the office of the writ. We see nothing repugnant to the mandamus proceeding in permitting the introduction of the counterclaim in such proceeding in a court possessed of exclusive original jurisdiction of the subject of the counterclaim. For we fail to discover any justification for relators’ apprehension that permitting a counterclaim in a mandamus proceeding will cause it to “degenerate into another law suit completely destroying * * * one of the most important extraordinary remedies known to the law.” The manner of the trial and the adjudication of the mandamus proceeding we are considering seems to us to be answer enough. We therefore hold that the counterclaim could be introduced in the mandamus proceeding, by authority of Civil Rule 41.02, and that it can be entertained and determined by the respondent judge without exceeding his jurisdiction.

Suggestion is made in the petition for prohibition in this court that the counterclaim is defective. This suggestion is not developed in relators’ brief. Indeed, relators tell us in their brief “reduced to essence this proceeding poses only one question for the determination of this court: Can a counterclaim be filed in a mandamus suit the object and purpose of which is to adjudicate, adjust, determine, ascertain and define mutual rights between the parties, and others, if necessary? Relators herein take the position that a counterclaim in a mandamus suit is not a permissible, lawful or proper pleading.” What we have already said disposes of this question. We are not authorized to grant prohibition to prevent a trial on a defective pleading unless it is so obviously and fatally defective that it is plain that the defect cannot be cured by amendment. No effort has been made to demonstrate that the counterclaim is defective to this extent. In the absence of a showing that it is so defective, we must presume that any defect that may exist may be cured by amendment in the trial court. State ex rel. v. Brady, Mo., 308 S.W.2d 652, 654; State ex rel. Reed v. Harris, 348 Mo. 426, 153 S.W.2d 834, 837; State ex rel. Leake v. Harris, 334 Mo. 713, 67 S.W.2d 981, 982.

Accordingly, it follows that our preliminary rule in prohibition must be discharged. It is so ordered.

All concur.

      . City of Leavenworth v. Leavenworth City & Ft. L. Water Co., 62 Kan. 643, 64 P. 66; State ex rel. Harvey v. Plankinton Arcade Co., et al., 182 Wis. 23, 195 N.W. 904; People ex rel. Wiebolt Stores, Inc. v. City of Chicago, et al., 289 Ill.App. 276, 7 N.E.2d 82, reversed on other grounds, 368 Ill. 421, 14 N.E.2d 473; Hannum v. State ex rel. Hannum Co., 135 Fla. 3, 184 So. 500; Harris et al. v. Garner, 160 Ga. 752, 128 S.E. 913; Cope v. Collins, Admr., 37 Ark. 649; State v. Alexander, 115 Tenn. 156, 90 S.W. 20; Aplin v. Board of Supervisors of Grand Traverse County, 73 Mich. 182, 41 N.W. 223, 16 Am.St.Rep. 576; Aplin v. Van Tassel, 73 Mich. 28, 40 N.W. 847; Fun Fair Park, Inc. v. Municipal Court of City of N. Y., Sup., 201 N.Y.S. 2d 706; Town of Columbus v. Barringer, CCANC, 85 F.2d 908; Hazelton Moffit Special School Dist. No. 6 v. Ward, N.D., 107 N.W.2d 636; State ex rel. Joyce v. Bivens, 145 W.Va. 545, 114 S.E.2d 901; 55 C.J.S. Mandamus § 281, p. 519.


source: Caselaw Access Project

author: MAUGHMER, Commissioner.

license: Public Domain

text:
    Cieadis SHEPARD, d/b/a Raytown Plumbing & Sewer Service, Respondent, v. Mrs. Marvin W. GLICK, (Bessie McGinty), Appellant.
    No. 24480.
    Kansas City Court of Appeals. Missouri.
    June 6, 1966.

      Elwyn L. Cady, Jr., Kansas City, for appellant.
    Richard T. Cole, Raytown, for respondent.
   MAUGHMER, Commissioner.

This is a suit based upon an alleged oral contract under which plaintiff, in the spring of 1961, supplied materials, performed services and installed a sewer line into a residence property located at 6209 Manning in Raytown, Missouri, which was owned by defendant and her husband, Marvin W. Glick. Mr. Glick died on October 16, 1962. This suit is against Mrs. Glick alone and seeks recovery of the compensation provided for by the contract. It was tried by the court without a jury. The court found that defendant had entered into the alleged oral agreement, and gave judgment for plaintiff in the sum of $990.34 (amount of services and materials furnished) plus interest from October 29, 1962, (the date upon which suit was filed) in the sum of $160, or a total judgment of $1150.34. It is conceded that the services and materials were furnished and no criticism is leveled as to the amount of the charges. Defendant, however, contends that the contract was made only with Mr. Glick, who was her husband at that time. She denies there was any contract with her or with her and her husband jointly.

The plaintiff, Cleadis Shepard, was the owner of and did business as the Raytown Plumbing & Sewer Service. He testified that about March 1, 1961, a main sewer line became available to the property at 6209 Manning, owned by defendant and her then husband, Marvin W. Glick. He said that he met one evening in the Glick home with Mr. and Mrs. Glick and a neighbor, Mr. Plost, who wanted an easement from the Glicks for use in his sewer connection. The easement was granted. Plaintiff said that the Glick property had a sublayer of rock which it was necessary to go through, that springs were there and water filtered through and the Glick basement was full of water most of the time. Plaintiff’s testimony was that he contracted to install and connect their residence to the sewer. He said that because the existence of springs and rock made it impossible to accurately estimate the amount of work which would be required, the contract was on a 10 percent cost plus basis. Mr. Shepard purchased a sewer permit and stated: “I brought in the material and brought in my machine and my men, and we hit rock, and I brought in a jackhammer, and I had two gasoline pumps running most of the time, a winch and a torque gear, because we was working in a ledge of rock which was fed by springs”. “We installed a tie-on to the sewer and I picked up the plumbing and I had to stay low enough to pick up their basement when I went in and removed their sump pump and put in a subsoil drain on the outside of their house”. Plaintiff’s charge for this work was $1,015.34, but Mrs. Marvin Glick paid $25 by check, leaving a balance of $990.34 still due.

Mr. Shepard said he submitted his bill to the Glicks and was told: “There was a loan set up for it and I would be paid just as soon as the loan was approved”. “I was told this by both parties”. He said he talked to both Mr. and Mrs. Glick about doing the work on a cost plus basis, that Mrs. Glick “was never out of our presence” while we talked and she said: “If it will stop us flooding out every time that there comes a little rain we want the sewer put in”. He testified that Mrs. Glick told tim: “We will pay you as soon as we get the money from the loan”.

The parties agree that the materials were furnished, the labor was performed and the charges are reasonable and proper. Mr. Charles A. Runsinger, Jr., Vice President and Cashier of the Laurel Bank in Raytown, testified that Mrs. Glick attempted to secure a loan from the bank and that he personally discussed it with her in the spring of 1961. He understood “this money, $1,000, was needed to pay for the sewer hookup”. The loan was never made.

The defendant, Mrs. Marvin W. Glick, (now Bessie McGinty by marriage) testified. She is an industrial nurse. She did not deny calling plaintiff to come to their home regarding the sewer. She said he was there several times; that the contract was with her husband, and that her husband was the one who tried to secure the bank loan. She said she knew that rock had to be removed before the sewer line could be installed, knew springs were in the yard and knew they had a basement water problem. She agreed that she wanted to connect with the sewer and wanted to get the basement drained. She denied that she ever promised to pay plaintiff and was unable to recall if she told him the bank loan “had fallen through”, but she would obtain another one and pay him. The record does not reveal if title to this residence property was in the names of both Mr. and Mrs. Glick.

The sole issue on appeal is whether or not Mrs. Glick was a party to the oral contract under which plaintiff agreed to and did connect the Glick premises to the sewer. On appeal defendant contends that she was not a party to the contract and the verdict and judgment should have been in her favor, that there is no evidence that she promised to pay, that her husband was the contracting party and that “proof of a joint contract does not support a definite and certain contract between plaintiff and defendant”.

Section 510.310, V.A.M.S. and Civil Rule 73.01(d) V.A.M.R. prescribe the scope of our review and tell us:

“The appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature. The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses”.

This court in Home Trust Co. v. Shapiro et al., 228 Mo.App. 266, 64 S.W.2d 717, 733, said it this way:

“ * * * it becomes the duty of this court to review the evidence, the findings, •and decree below, and to render such judgment as in its opinion conforms to the law and the evidence, deferring where it may to the conclusions reached by the chancellor; but, if, upon review of the entire record, it is unable to agree with his conclusions and judgment, it becomes its duty to follow its own conclusions and order judgment in conformity therewith”.

It is true as defendant contends on appeal that in order for a contract to arise under the laws of Missouri, there must be a definite meeting of the minds and the nature and extent of the obligations must be certain. However, as to these requirements generally we find this statement in 17 C.J.S. Contracts § 4, p. 557:

“Neither a written offer and acceptance nor oral counterparts are essential to establish a contractual relationship, for unambiguous conduct of one party toward another under such circumstances as clearly to manifest an intention that one party perform and that the other party compensate for such performance is sufficient”.

And on page 556:

“* * * ‘implied contract’ has been defined as a contract which arises by legal inference and upon principles of reason and justice from certain facts, or where there is circumstantial evidence showing that the parties intended to make a contract”.

In the footnote thereunder, we find these excerpts from foreign opinions:

“(1) ‘ “Implied contract” is one dictated by reason and justice, and which the law presumes from the relation of the parties.’ Pa. — In re Porter’s Estate, 167 A. 490, 492, 110 Pa.Super. 27.
“(2) An ‘implied contract’ is inferred from the conduct, situation, or mutual relations of parties, and enforced by the law on the ground of justice. Cal. — Bush v. Lane, 326 P.2d 640, 161 C.A.2d 278-Grant v. Long, 92 P.2d 940, 33 C.A.2d 725. Ga. — Young v. Lewis, 29 S.E.2d 267, 70 Ga.App. 627”.

In the case before us it is undisputed that a contract was entered into with Mr. Glick. Under it plaintiff was to connect the property to the sewer, to cut through the rock and provide drainage of the spring water from the basement. It is undisputed that his compensation was to be cost plus 10 percent, and there is no contention but that on this basis the judgment is for the correct amount. Therefore, there was a meeting of the minds and the agreement is definite as to the work to be done and the price to be paid. All parties concede that such an agreement with plaintiff was made by Mr. Glick. The disputed issue and the only disputed issue is whether or not Mrs. Glick was a contracting party. The trial court found that she with her husband, was a contracting party. What evidence is there from which such a conclusion should be drawn? We shall list the chief points as they appear to us: (1) Mrs. Glick owned at least a wife’s share in the property; (2) she wanted to “hook on” to the sewer. She knew it was necessary to go through rock and drain the springs in order to stop the basement floodings. She said she wanted these things done; (3) she called plaintiff to come to their home and discuss the Post easement; (4) she paid plaintiff $25 on this account with her personal check. Plaintiff had done work for the Glicks before. He discussed and entered into the oral contract in their home. These factual conclusions appear from defendant’s own testimony and, standing alone, are possibly sufficient to establish liability.

However, in addition we have the affirmative testimony of the plaintiff. He says Mrs. Glick was present on all occasions when the matter was discussed and that she took part as a principal in the contract negotiations and agreement; that she promised to pay the bill, tried to get a loan from the Laurel Bank to pay it and when that effort failed, told plaintiff she would get a loan elsewhere. The Laurel Bank’s Vice President and Cashier said Mrs. Glick personally consulted him and tried to secure a $1,000 loan from the bank and told him the proceeds were to be used to pay plaintiff for the sewer connection work and supplies. If the trial court believed this testimony and it quite evidently did believe it, then there was direct, substantial evidence that Mrs. Glick was and became a party to the contract. In addition, defendant’s denials as a witness do not read very impressively. She did not so much deny, as fail to remember.

We have examined the cases cited by appellant. Some of these opinions discuss the general rules of contracts about which there is no dispute. The case of Roper v. Clanton et al., Mo.App., 258 S.W.2d 283 presents a suit on an oral contract by an electrical contractor against a husband and wife, owners of the property by the entirety. The case was tried by the court. Mrs. Clanton was released at the close of the plaintiff’s evidence and the court found for Mr. Clanton at the close of all the evidence. The appellate court sustained as to Mrs. Clanton, who had no connection with the making of the contract except that she was a co-owner, but directed entry of judgment against Mr. Clanton. The opinion is not authority for a ruling for defendant in the case before us.

We believe there was substantial, credible evidence upon which the trial court could find that defendant was a party to the oral contract sued upon and is liable thereunder. In addition, the conduct, general situation, mutual relations and unambiguous acts all support such a result. We agree with that conclusion. No additional assignments of error are presented.

The judgment is affirmed.

SPERRY, C, concurs.

PER CURIAM:

The foregoing opinion of MAUGHMER, C., is adopted as the opinion of the Court.

HOWARD and BLAIR, JJ., concur.

CROSS, P. J., not participating.


author: DAVIS, Commissioner.

text:
    Carl DANIELS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 24, 1966.
    L. H. Nicholls, Greenup, for appellant.
    Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., Frankfort, Jack Kibbey, Vanceburg, for appellee.
   DAVIS, Commissioner.

Carl Daniels was convicted of maliciously shooting and wounding James Douglas, Jr., with intent to kill. KRS 435.170 (1). The jury’s verdict fixed his punishment at two years’ imprisonment. He asks reversal of the judgment of conviction and asserts that the verdict was flagrantly against the evidence, the trial court failed to properly admonish the jury at a recess of the court,' and the jury was not guarded during the court recess.

Daniels was riding in his own car, driven by Brown Amos, when they came upon the stalled car of the victim, Douglas. Incident to the passing of the Douglas car by appellant’s car some “gravels” were thrown against appellant’s car from the spinning wheels of the Douglas car. Appellant remonstrated with Douglas (and other persons who had gathered and were attempting to help Douglas push his car from the ditch). Appellant had his son’s .410-gauge shotgun in the car. After a few words were exchanged between appellant.and some of those helping Douglas appellant went back to his car, obtained the gun, loaded it and shot Douglas.

As appellant tells it, Douglas was walking toward appellant with his hand in his pocket. Appellant insists that his is a “perfect case of self defense.” The difficulty with that position is that the victim and others at the scene positively stated that Douglas made no menacing gesture toward appellant. According to their version of the affair the shooting was utterly unprovoked. In this state of case the court properly submitted to the jury the issue of appellant’s claimed self defense. It would have been entirely improper to direct a verdict of acquittal as appellant contends should have been done. It was incumbent on the appellant to convince the jury that his act of shooting was excusable. The contrariety in the evidence made the question one for the jury. Williams v. Commonwealth, 304 Ky. 359, 200 S.W.2d 926, 929; Barnett v. Commonwealth, Ky., 348 S.W.2d 834.

When the noon hour of adjournment was reached, the trial judge made the following admonition to the jury incident to its conduct during the recess:

“Judge Sammons: Ladies and gentlemen of the jury, I am going to adjourn for lunch. This is the type of case wherein I could have you guarded, but I have the utmost confidence in every member of this jury and I am not going to have you guarded during the period of recess, but during the period of recess do not discuss this case among yourselves or with anyone else. If anyone attempts to discuss it with you, tell them you are jurors involved in the trial of this case, and then if they persist in discussing it or talking to you about it, report that to me. Get their name and report it to me assoon as possible. Please be back at 1:00 o’clock.
Mr. Nicholls: Let the record show I object to not guarding the jury.”

It will be observed that the admonition omitted reference to the jury’s duty not to form or express any opinion of the case until its final submission to them. RCr 9.70. All of the other matters referred to in the cited rule were embraced in the court’s admonition to the jury. It is also significant that appellant’s counsel interposed only one specific objection to the admonition, and that related to the court’s “not guarding the jury.” No doubt the trial judge would have amended the admonition to include the direction that the jury should not form or express an opinion until submission if appellant had so requested. In any event, in the circumstances at hand, we are unconvinced that the technical omission of the specific words had any prejudicial effect. Indeed it is not suggested by appellant that any of the jurors did form or express any opinion of the case prior to submission. The court directed the jury not to talk about the case, so that was an injunction against “expressing” any opinion anyway. The “forming” of an opinion, unexpressed, is a subjective matter which eludes nice delineation. We are persuaded that in the absence of any suggestion or showing of prejudice, the technical omission was harmless error. RCr 9.24; Schweinefuss v. Commonwealth, Ky., 395 S.W.2d 370, 374, 375, and cases there cited.

Equally without merit is the contention that the jury should have been “guarded.” RCr 9.66 reposes in the trial judge the discretionary right to permit the jury to separate in felony trials not involving possible death or life sentences. Unless there is a showing that there has been an abuse of such discretion or that jury tampering has occurred there is no error in permitting the separation of the jury in a case of this type. Cf. Smith v. Commonwealth, Ky., 366 S.W.2d 902.

The judgment is affirmed.


text:
    Mary Jane TAYLOR, Appellant, v. Thomas J. NOHALTY et al., Appellees.
    Court of Appeals of Kentucky.
    June 24, 1966.
    Joseph R. Wilson, Louisville, for appellant.
    Hector E. Rose, Louisville, for appellees.
   DAVIS, Commissioner.

The appellant, Mary Jane Taylor, sued appellees Thomas J. Nohalty and his wife for alleged malicious prosecution. The trial court dismissed the complaint, as once amended and in face of a second tendered amendment, as not stating a claim upon which relief could be granted. CR 12.02. This appeal challenges the correctness of that ruling.

In her original complaint the appellant alleged that appellees had falsely and maliciously obtained a warrant against appellant in the Louisville Police Court, without probable cause therefor; that the warrant charged her with felonious conversion of a refrigerator valued at $180. The complaint recited that appellant had been convicted of the charge in the police court, but that upon her appeal to the Jefferson Circuit Court the charge was dismissed.

At that stage of the pleading the appel-lees moved the court to dismiss the complaint for its failure to state a claim. Cited in support of the motion was Duerr v. Kentucky & Indiana Bridge and Railroad Co., 132 Ky. 228, 116 S.W. 325. Based on the cited authority the trial judge sustained the appellees’ motion and dismissed the complaint on April 16, 1965.

On that same date the court granted appellant’s motion for leave to file an amended complaint. The amended complaint reaffirmed the allegations of the original complaint and added the averment that the conviction in the Louisville Police Court “ * * * was obtained and procured by the fraud and perjury of the Defendants, and each of them.”

Pursuant to CR 59.05 appellant filed her motion to vacate the order dismissing her complaint, and with the motion tendered a second amended complaint by which she enlarged somewhat On the allegation of perjury as set out in the first amended complaint. The allegation as to perjury stated that each of the appellees had sworn that appellant converted the refrigerator when, in fact, each of them knew that they had theretofore given it to the appellant.

The basis for the trial court’s ruling appears to have been his belief that the failure to allege fraud with particularity was fatal. CR 9.02 does require that allegations of fraud (and other affirmative defenses there mentioned) must be made with particularity. However the cited rule does not require that perjury be alleged with particularity, and even if it did, the allegation of the second amended complaint was sufficiently particular as to the perjury issue.

The parties recognize that a conviction in a lower court is conclusive evidence of probable cause, and a bar to a suit for malicious prosecution — but there are exceptions to the rule. One of the exceptions is that such a lower court conviction is not conclusive if it is shown that the conviction was obtained by fraud or perjury. In face of the unequivocal pleading of perjury, it is our view that the trial judge erred in dismissing the complaint as amended. The Duerr decision (132 Ky. 228, 116 S.W. 325) specifically notes that perjury in the original conviction will suffice to destroy the effect of that conviction as an irrefutable showing of probable cause in this type of action.

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


text:
    ASHLAND OIL & REFINING COMPANY, Inc., Appellant, v. C. W. PHILLIPS, Appellee.
    Court of Appeals of Kentucky.
    June 24, 1966.
    James G. Begley, Donald D. Harkins, Danville, for appellant.
    Robert M. Spragens, Lebanon, for ap-pellee.
   DAVIS, Commissioner.

Ashland Oil & Refining Company, appellant, sued appellee on an account for merchandise, alleging a balance due of $2,230.71. The trial judge dismissed the complaint on the ground that the pleadings, a deposition, answers to interrogatories and admissions reflected that the “account owed by the defendant to plaintiff has been fully paid.” We sustained a motion for appeal, KRS 21.080. Appellant concedes that the trial court’s ruling is correct on the face of the statements of the account as originally filed, but insists that the court erroneously refused to permit appellant to file tendered amended complaints which reflected that the appellee-defend-ant owed the amount claimed. The narrow issue before us is whether there was an abuse of discretion in denying appellant’s motions to file the amended complaints.

The exhibit of the account as filed with the original complaint showed itemized charges and credits between June 28, 1955, and December 13, 1956, and a balance due from appellee of $2,230.71.

In response to interrogatories, appellant later filed (September 20, 1961) a somewhat different statement of the claimed account, purporting to reflect charges and credits between June 16, 1955, and December 13,1956, and bearing a stated balance due of $2,230.71. However, the actual totals of the charges and credits as reflected on that exhibit indicated a balance due of only $832.25.

On July 31, 1961, appellant took the deposition of its former distributor who had sold and delivered the merchandise to appellee. The witness filed fifty exhibits with his deposition, disclosing sales to ap-pellee between May 10, 1954, and December 13,1954. The total of these sales was shown as $6,913.47.

On October 3, 1961, appellant tendered its first amended complaint accompanied by yet another statement of the purported account. The opening date of the tendered accounting was February 11, 1954. Again the balance due was shown as $2,230.71. The appellee filed no response to the motion to amend, but the trial judge denied the motion by an order assigning no reason for so doing.

In April, 1962, the appellant made a motion that the appellee be compelled to answer interrogatories which had been served upon him on August 29, 1959. The court ordered that the interrogatories be answered, and allowed appellee 25 days to answer — although CR 33 prescribes 15 days for answering such interrogatories. On May 1, 1962, appellee answered the interrogatories and filed photostatic copies of numerous checks showing payments by him to appellant of various sums, all of which he claimed as credits on the account:

On July 12, 1962, appellant moved for leave to file an amended complaint, again accompanying it by the same items of account which had been tendered with the first amended complaint. The motion was overruled August 28, 1962. The order overruling the motion ascribed no specific reason for so doing, but did recite that the cause had been submitted to the court for judgment by agreement of the parties on June 11, 1962. No order so submitting the case is in the record. Final judgment was entered dismissing the complaint August 28, 1962.

In the circumstances at bar we are of the view that it was an abuse of discretion to deny appellant’s motions to amend. CR 15.01 directs that leave to amend shall be “freely given when justice so requires.” We are mindful of the decisions, cited by appellee, which stand for the proposition that the trial court’s discretion in refusing amendments will not be disturbed unless it is clearly erroneous. See Bradford v. Billington, Ky., 299 S.W.2d 601; Graves v. Winer, Ky., 351 S.W.2d 193; Hedges v. Neace, Ky., 307 S.W.2d 564; Lawrence v. Marks, Ky., 355 S.W.2d 162. In each of the cited cases, however, there was a showing that “justice” did not “require” an amendment to be filed, but that such filing would work an injustice in the particular circumstance. Not so in the present case. There was no showing that ap-pellee’s position had been worsened by the delay in offering the amendments to the complaint; there was certainly a color of excuse for the delay in light of appellee’s long delay in responding to the interrogatories. No suggestion of “bad faith” on the part of appellant appears. We conclude that there was no sufficient reason for the trial court to refuse the tendered amendments.

By fortuitous circumstance, after the in- • ordinate delay in the disposition of this litigation in the trial court, an inexplicable clerical misprision brought about its being withheld from submission in this court in due course.

The judgment is reversed with directions to permit the tendered amended complaints to be filed and for further proceedings consistent with the opinion.


author: HILL, Judge.

text:
    Nimrod WEDDING, Jr., and John Y. Brown, Petitioners, v. Honorable John P. LAIR, Judge, Harrison Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    June 24, 1966.
    John Y. Brown, Lexington, pro se.
    John P. Lair, Cynthiana, pro se.
   HILL, Judge.

This original action was filed in this court on February 23, 1966, seeking to prohibit the respondent from enforcing an order entered in the Harrison Circuit Court February 4, 1966, appointing petitioner Honorable John Y. Brown attorney for Nimrod Wedding, Jr., in a criminal case charging Wedding with willful murder.

A brief history of the case leading to this petition may be appropriate. Nimrod Wedding, Jr., was tried and convicted in November 1961 in the Harrison Circuit Court, and his penalty was fixed at death. His appointed counsel on the trial consisted of practically all of the practicing lawyers of the Harrison County Bar but did not include the petitioner Honorable John Y. Brown. The latter was employed by relatives of Wedding to file a petition for rehearing in this court, after an opinion had been issued on appeal affirming the judgment of conviction, and it is contended by petitioner Brown that his employment encompassed only the representation of Wedding on the petition for rehearing.

The petition for rehearing was sustained, and a criminal indictment is now pending in the Harrison Circuit Court against Wedding. He being a pauper and without coun-. sel, the respondent on the date referred to above entered an order appointing petitioner Brown to represent Wedding on the next trial of the indictment. Petitioner Brown is a member of the Fayette County Bar Association and a resident of Lexington, Fay-ette County, Kentucky, with law offices there; although it is shown by respondent, and undenied, that the firm of Brown, Sledd and McCann, of which petitioner Brown is a senior partner, is a “frequent” practitioner in the Eighteenth Judicial District, which includes Harrison County.

The petition for writ of prohibition contains a two-pronged argument for relief. First, it is insisted respondent assisted in the prosecution of the Wedding case in its early stages; and, after his election as Judge of the Eighteenth Judicial District, he voluntarily disqualified himself and was succeeded by the appointment of Honorable Lloyd E. Rogers as special judge, who was approved by all of the attorneys in the case; and therefore respondent continues to be disqualified. Second, petitioner Brown contends : (a) That respondent has no power to appoint an attorney outside the Eighteenth Judicial District; (b) and that due to the limited extent of his employment, that he should not be forced to represent Wedding beyond that period. He specifically declined to accept employment beyond representation of Wedding on petition for rehearing.

This court takes the view the writ should issue on the first ground assigned, and we do not reach the second ground.

By the following order signed and entered by respondent prior to November 1961, he voluntarily disqualified himself as presiding judge in the Wedding case:

“This matter coming on to be heard, came the Attorney for the Commonwealth and Attorneys for the Defendant, Nimrod Wedding, Jr., and agreed upon Lloyd E. Rogers of this Bar to act as Special Judge in said case which is assigned for.trial November 8, 1961. Circuit Judge John P. Lair having upon his own motion disqualified himself therein for the reason that he had previously assisted in the prosecution of said case.
“It is now ordered and adjudged that Lloyd E. Rogers act as Special Judge in this action and he is to have full and complete authority of a Circuit Judge. (Emphasis ours.)
“John P. Lair, Judge Harrison Circuit Court.”

The selection of Lloyd E. Rogers by the attorneys present (the entire bar having been appointed to defend Wedding) was accomplished pursuant to KRS 23.230.

In Dupoyster v. Clarke, 121 Ky. 694, 90 S.W. 1 (1906), in a similar factual situation it was said by this court that:

“Under these statutory provisions, the special judge has no authority in any other case except that in which he is appointed, and his power is not limited to the term at which he is appointed, or to one term, but he is given all the powers of the regular judge. He may, if necessary, hold a special term to try the case, and it is his duty to try the case. The power to try the case carries with it the power to dispose of it finally. The regular circuit judge cannot sit in the case. The special judge sits in his stead, and has all the powers of the regular judge in that case.”

See also Warner v. Ford Lumber & Mfg. Co., 123 Ky. 103, 93 S.W. 650, 12 L.R.A., N.S., 667 (1906).

The respondent, having voluntarily vacated the bench in this particular case, lost jurisdiction forever in the absence of an agreement of the parties. He had no right to reassume jurisdiction, and his orders are a nullity.

Special Judge Lloyd E. Rogers, if able and available, still has power to finally dispose of the Wedding case. In fact, he heard Wedding’s motion to vacate the judgment under RCr 11.42.

It is therefore ordered by this court that respondent, Honorable John P. Lair, be prohibited from enforcing the order attempting to appoint petitioner Honorable John Y. Brown attorney for defendant in the case of Commonwealth of Kentucky v. Nimrod Wedding, Jr., on a charge of willful murder now pending in the Harrison Circuit Court. He is further prohibited from taking any further steps in said case.


text:
    Gary HERNDON, Appellant, v. John W. WINGO, Warden, etc., Appellee.
    Court of Appeals of Kentucky.
    June 24, 1966.
    W. E. Rogers, III, Hopkinsville, for appellant.
    Robert Matthews, Atty. Gen., Frankfort, for appellee.
   HILL, Judge.

Appellant, Gary Herndon, presently confined in the Kentucky State Reformatory under a five-year sentence for taking an automobile of another without the owner’s consent, filed this action against the warden of the reformatory asking that he be released from prison on the theory the order revoking his probation and imposing sentence was illegal because of waiver of jurisdiction. After a hearing, the circuit court entered judgment dismissing his petition. He appeals.

Appellant in the presence of his court-appointed counsel was arraigned, entered a plea of guilty, and applied for probation, which was granted, in Calloway Circuit Court February 11, 1963. About two hours after his probation, and while he was still in the custody of the jailor of Calloway County, officers from the State of Tennessee appeared with a warrant issued in that State. Appellant voluntarily waived extradition and was returned to Tennessee, convicted and served about two and one-half years in prison.

After he was released from prison in Tennessee, he was again arrested in Callo-way County in connection with another car theft in the State of Florida. He was served with notice to show cause why his probation of February 1963 should not be revoked. After a hearing, it was revoked and appellant was imprisoned, from which he now seeks an avenue of escape.

Appellant admits he voluntarily waived extradition, but he maintains on this appeal that the Calloway Circuit Court waived its jurisdiction by acquiescing to his removal by the Tennessee authorities from Kentucky to Tennessee. However, the trial judge of the Calloway Circuit Court at the time of his conviction and probation testified appellant was released, free to “walk away” if he desired, as soon as he was probated insofar as the circuit court was concerned. Apparently what actually did occur was that appellant was released on probation in circuit court but by previous arrangement with officials of Tennessee the county judge and jailor held appellant until the arrival of transporting officers from Tennessee some two hours later.

The bare act of probation cannot be construed as a waiver of jurisdiction. His probation contained all the usual conditions, and others, and was for a term of five years. He was then free so far as Calloway Circuit Court was concerned. He was thereafter required to do nothing in Kentucky but respect the conditions of his probation.

Our case law on this question is based upon some idea of “forfeiture” or waiver in the construction of KRS 440.330, a statute headed: “Extradition may be granted persons accused or convicted in this state; conditions.”

In a thorough discussion of the question of “forfeiture” or waiver of jurisdiction, it is written in Crady v. Cranfill, Ky., 371 S.W.2d 640, 643:

“On further reflection we have concluded that the question is not one-'of constitutional rights, but of state policy. If it were otherwise, for example, that portion of the Uniform Criminal Extradition Act providing that in no case shall the surrender of a prisoner be construed as a complete relinquishment of jurisdiction by the asylum state, but the prisoner shall be returned after trial in the demanding state ‘or the completion of sentence therein, as the case may be,’ (emphasis ours) probably would be unconstitutional.”

This court in Jones v. Rayborn, Ky., 346 S.W.2d 743, made the following comment on the question of “forfeiture” or waiver of jurisdiction:

“The big question seems to be: Can the state through any of its officers by its acts waive a right which belongs to it? All the cases assume that it can. A waiver, as we all know, is the ‘voluntary surrender of a known right.’ There must be ‘a clear, unequivocal and decisive act of the party showing an intention to relinquish the right.’

In the case before us, there was no act or conduct evincing the relinquishment of any right by any Kentucky official. This state retained the supervision of appellant during the period of his probation. He was not “handed over” to the authorities of the demanding state. He voluntarily waived extradition, and all was going well until it was thought he violated a condition of his probation.

It is concluded there was no “forfeiture” or waiver of jurisdiction and that the Calloway Circuit Court had jurisdiction to revoke appellant’s probation and commit him to prison.

The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    Herschel G. EARLE et al., Appellants, v. The HARRISON COUNTY BOARD OF EDUCATION et al., Appellees.
    Court of Appeals of Kentucky.
    June 24, 1966.
    John Lane Ackman, Williamstown, for appellants.
    Lloyd E. Rogers, Cynthiana, for appellees.
   MONTGOMERY, Judge.

The appellants, Herschel G. Earle et al., as citizens and taxpaying voters of Harrison County, appeal from a judgment in favor of the Harrison County Board of Education upholding the validity of the Board’s order closing the Berry Elementary School. In essence, the question presented on appeal is whether a county board of education is bound by the announced program for which a building fund tax levy election is held. The levy was voted.

The court’s findings of fact and conclusions of the law best state the case and are as follows:

“FINDINGS OF FACT

“1. In a joint meeting of the City of Cynthiana Board of Education and The Harrison County Board of Education held January 25, 1962, it was voted to merge the two school systems upon the following condition which effected (sic) the Berry Elementary School:

‘1. That the merger become effective January 26, 1962.
2. That immediate steps be taken by the two boards to have a referendum on the special voted building fund tax before June 30, 1962 in order that tax can be levied during the 1962-63 fiscal year, in accordance with provision of KRS 160.477.
3. That this tax to be voted for the purpose of constructing the following schools as soon as possible; East Side Elementary School, West Side Elementary School, Junior High School, and the enlargement of the present Harrison County High School and the modernization of Berry School, as outlined by the State Department of Education.’

“2. Subsequent to the meeting of January 25, 1962, as outlinéd above, the State Department of Education submitted to the Harrison County Board of Education a document entitled ‘Supplement to School Facilities Survey Harrison County May 9, 1962’, with the following being the first paragraph:

‘With the Facilities Survey of May 1961, serving as the basis, a merger of Harrison County and Cynthiana School districts was consummated. As a condition of merger it was agreed that Berry Elementary School, grades 1-6, continue as a center so long as an adequate number of children were in average daily attendance. The agreement on the Berry School was a deviation from the original survey.’

“3. On the primary election day May 29, 1962, the following appeared on the ballot in Harrison County:

‘SPECIAL SCHOOL TAX QUESTION
Are you for or against having an annual special school building tax rate of a maximum of fifty cents (500) on each One Hundred ($100) Dollars of property subject to local taxation located within the Harrison County School District levied for the purpose of providing for the purchase or lease of school sites and buildings, for the erection and complete equipping of new school buildings, for the major alteration, enlargement and complete equipping of existing buildings, for the purpose of retiring, directly or through rental payments, school revenue bonds issued for such school improvements and for the purpose of financing any program for the acquisition, improvement or building of schools and to accomplish any or all of said purposes?’

“4. At the beginning of the school year 1964-65 and at the time of this hearing there were six teachers employed at the Berry Elementary School.

“5. The number of pupils in average daily attendance in the Berry Elementary School for the month of September, 1964, was 93.35.

“6. Under KRS 157.360(2) it is necessary, even in an emergency, to have as many as 25 pupils in average daily attendance for each classroom unit in order to qualify for state aid under the Foundation Program of the Commonwealth of Kentucky.

“7. To operate grades one through six at the Berry Elementary School would require .an emergency enrollment of 25 pupils per teacher, or classroom unit.

“8. On September 18, 1964, the Harrison County Board of Education in a meeting properly called and by a vote of 4 to 2 closed the Berry Elementary School at Berry, Kentucky, with the idea of distributing the pupils therein among the newly constructed Elementary Schools in Harrison County.

“CONCLUSIONS OF LAW

“The Court concludes as a matter of law, the Berry Elementary School’s average daily attendance having dropped below the emergency requirement outlined in KRS 157.360(2), that the defendants acting as members of the Harrison County Board of Education and through its duly selected Superintendent of Schools who is a defendant herein, had the full and complete right and authority in the exercise of their discretion to close the Berry Elementary School in that they did not act in an arbitrary or capricious manner in so doing.”

The court’s conclusions of law and judgment are supported by KRS 160.-160 and 160.290, defining the corporate powers of the board and the board’s general powers and duties. The conduct of a public school system is committed to the discretion of the school board. International Bro. of Fire, and Oil. v. Board of Ed., Ky., 393 S.W.2d 793. The administrative control of the board exercised under KRS 160.290 must be consistent with the rules and regulations of the State Board of Education. Gearhart v. Kentucky State Board of Education, Ky., 355 S.W.2d 667. In the exercise of its discretion the local board must not act arbitrarily. Board of Education of Harrodsburg v. Bentley, Ky., 383 S.W.2d 677. See also Board of Education of Louisville v. Society of Alumni of L.M.H.S., Ky., 239 S.W.2d 931. In discontinuing a school the board must act in good faith upon a sound, just, and reasonable basis and must have due regard for public interest and the consequences of its action upon the children affected. Wells v. Board of Education of Mercer County, Ky., 289 S.W.2d 492. In a somewhat similar situation, in Ewing v. Peak, Ky., 266 S.W.2d 300, a result similar to the one reached here was upheld.

As was pointed out in the findings of fact, the correctness of which is not questioned, the student population of the Berry School fell below the minimum required under the Minimum Foundation Program. Such circumstance afforded a reasonable basis for the action of the ap-pellees. The loss of a school in a small community is great. Oftentimes it is the sustaining center of the community, but in considering the overall good of a county school system it may not be feasible to maintain such a school as Berry despite the loss to the community.

It is argued that votes were cast in favor of the building fund tax because of the publicized purposes, including renovation of the Berry School. The question submitted to the voters contained no reference to the Berry School.

Appellants urge that they have been betrayed and defrauded. This is an understandable reaction in view of the loss to their community. However, it is difficult to believe that the appellees intended the proposed renovation of the Berry School as a “campaign promise” and we are not prepared to assume the position of enforcing such “promises.” The circumstances indicate that the appellees acted in good faith and for good reason.

There is no merit in the argument that Kentucky Constitution Section 180 has been violated. No showing has been made that any money raised by the special tax levy has been diverted from the purposes stated in the question submitted to the voters for their approval.

Judgment affirmed.


author: CULLEN, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF REVENUE, Petitioner, v. Hon. Lyndon R. SCHMID, Judge, Jefferson Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    June 17, 1966.
    John R. Livingston, Ky. Dept, of Revenue, Robert Matthews, Atty. Gen., Frankfort, for petitioner.
   CULLEN, Commissioner.

The Commonwealth of Kentucky, Department of Revenue, seeks an order prohibiting the respondent circuit judge from entertaining a certain appeal from an order of the Kentucky -Board of Tax Appeals. The ground asserted for this is that the circuit court has no jurisdiction of the appeal because the Department of Revenue, an indispensable party, was not named as a party to the appeal.

The Department of Revenue made a sales and use tax assessment in the amount of $2,617.17 against Industrial Oxygen Company. The latter appealed to the Board of Tax Appeals, naming the department as ap-pellee. The board upheld the assessment. The company then appealed to the Jefferson Circuit Court, naming as appellees the Board of Tax Appeals and the Attorney General, but not the department. The department maintains in the proceeding here before us that by reason of the failure to name it as a party the circuit court is without jurisdiction.

In the light of the holdings in such cases as Monticello Electric Plant Board v. Board of Education of Wayne County, Ky., 310 S.W.2d 372, Boyd & Usher Transport v. Southern Tank Lines, Inc., Ky., 320 S.W.2d 120, and George v. Kentucky Alcoholic Beverage Control Board, Ky., 403 S.W.2d 24 (decided May 20, 1966), we think the department is an indispensable party to the appeal proceedings in the circuit court and should have been named as a party. However, for reasons presently to be stated, we are of the opinion that the failure to name the department as a party should not be considered fatal to the appeal in this particular case, and we do not reach the question of whether a failure of joinder of an indispensable party ordinarily would deprive the trial court of “jurisdiction” in the sense that prohibition would issue from this court without regard to reparability of damages and adequacy of remedy by appeal.

The statute establishing the Board of Tax Appeals, KIRS 131.310 to 131.370, is of recent origin (1964) and practice under it is new. It contains some ambiguities such as well might induce confusion to the practitioner. For example, KRS 131.370, dealing with appeals from the board to the circuit court, says nothing about who shall be named as parties. It states that summons on the petition shall issue directing “the adverse party” to file answer. In another place it provides that a copy of the petition shall be filed “with the board and all other parties against whom the appeal is prosecuted” (our emphasis). This indicates that the board itself is to be named as a party. Contributing to the confusion is the provision of KRS 131.340 that “Any party, including the Attorney General, on behalf of the Commonwealth,” may appeal to the board. This well might lead someone to conclude that the Attorney General stands for the agency whose ruling or order is on appeal. This apparently is what the appellant in the circuit court had in mind when it named the Attorney General as a party, for no other plausible reason is apparent for so naming him.

Taking a liberal view in light of the newness of the statute and its ambiguities, it may be considered that the appellant in the circuit court, by naming the Attorney General as a party, was in effect making the state government, including any of its involved agencies such as the Department of Revenue, a party to the appeal. Under this view the department would actually be included as a party although not individually named. We think that this is not really what the statute intended, and in the future it will be construed as requiring the; naming of the particular department or agency whose order or ruling is in issue. However, no violence is done by the relaxed construction in the instant case because the Department of Revenue has been fully aware of the proceedings in circuit court at all times and it has not suffered and will not suffer any detriment from not formally having been made a party.

The petition is denied.


author: WILLIAMS, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Alma FRAZIER et al., Appellees.
    Court of Appeals of Kentucky.
    June 24, 1966.
    Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Frankfort, L. D. May, May & May, Pikeville, Foster J. Col-lis, Jackson, for appellant.
    Cordell H. Martin, Hindman, Rudy Yess-in, Smith, Reed, Yessin & Davis, Frankfort, for appellees.
   WILLIAMS, Judge.

The Commonwealth of Kentucky, Department of Highways, found it necessary to condemn about five and one-half acres of appellees’ land for the construction of a portion of a public highway. A Magoffin Circuit Court jury awarded the appellees a verdict of $8,000. From a judgment entered on that verdict this appeal is prosecuted.

The appellees’ farm consisted of approximately 175 acres, eight of which were tillable bottom land and the remainder hill land. The farm was two and one-half miles from Salyersville and was serviced by a gravel road to the nearest surfaced road a mile and one-half away. There were oil and gas wells on the property which were not affected by the taking, nor were the timber or improvements affected in any way.

About four acres of bottom land and one and one-half acres of the hill land were taken. The remaining four acres of bottom land were divided into three tracts. Three access roads were provided to the new highway.

The appraisal witness for the Commonwealth testified that the difference in value of the property before and after the taking was $1,825. One appraisal witness for the landowners testified the before value was $28,000 and the after value $13,000, making a difference of $15,000. The other appraisal witness for the landowners testified the before value was $25,000 and the after value $12,000, making a difference of $13,000. The before value of the landowners’ witnesses was based on their personal knowledge of property values in the vicinity and on a sale of nearby property, which they alleged to be comparable. Although no adjustment was made in the sale price of the neighboring property because the sale was consummated shortly before the trial of this action and after it became known a new highway would soon service the property, the Commonwealth makes no complaint concerning the value ascribed to appellees’ property before the taking. We accept it consequently as being substantiated. However, the after value placed upon the property by both of appellees’ witnesses was based upon no reasonable assumption by the witnesses. For example, when questioned concerning the after value, one of the witnesses stated that he did not think the remaining bottom land had any value. Even if that were so, it would not justify a reduction of over 50 per cent of the value of the entire property.

Bear in mind that the overall appraisal included the timber and the oil and gas wells, as well as the improvements. None of those items was affected by the taking. It is significant that after construction of the new highway the property will be served by three access roads. It is also interesting to note that the appellees had their property assessed for $360. Magoffin County was assessed at a six to one ratio. Applying the ratio to the assessed value, the property was valued for tax purposes by the appellees at $2,160.

We are of the opinion that the after taking value of the property and the difference in value as testified to by the ap-pellees’ appraisal witnesses was not based on evidence of sufficient probative value. The jury consequently had no proof before it from which a verdict in the amount of $8,000 could be substantiated. Commonwealth, Department of Highways v. Tyree, Ky., 365 S.W.2d 472 (1963), and Commonwealth Department of Highways v. Gearhart, Ky., 383 S.W.2d 922 (1964).

The judgment is reversed.


text:
    Ray CARTER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 24, 1966.
    Ray Carter, pro se.
    Robert Matthews, Atty. Gen., Robert Preston, Asst. Atty. Gen., Frankfort, for ap-pellee.
   DAVIS, Commissioner.

Ray Carter, a prisoner at Eddyville Penitentiary, appeals from the order overruling his RCr 11.42 motion to vacate the judgment of conviction. The motion was overruled without an evidentiary hearing.

Carter was convicted of uttering a forgery, as denounced by KRS 434.130. Upon his plea of guilty he was sentenced to imprisonment for five years. The record of the convicting court reflects that Carter was represented by court-appointed counsel in the proceedings.

The RCr 11.42 motion asserts that the sentence was imposed on Carter “ * * * in violation of the sixth amendment to the Constitution of the United States of America and section eleven of the Constitution of the Commonwealth of Kentucky, in that the Court, on arraignment failed to inform the Defendant of the nature and cause of the accusations against him, to wit: the date on which the alleged utterance for which Defendant was convicted and sentenced, was never communicated by said Court to this Defendant.”

The bald assertion by Carter is flatly refuted by the record. The trial order contains in part the following pertinent wording:

“The Defendant, Ray Carter, having been arraigned and by agreement with the Commonwealth through his court-appointed attorney, Ted H. Lavit, the Defendant waived his rights to a trial by jury and entered a plea of guilty to the charge in the indictment.”

The indictment reflects the date of the alleged offense. Arraignment in Kentucky is accomplished in open court, and consists of reading the indictment to the defendant or stating to him the substance of the charge and calling upon him to plead thereto. The defendant shall be furnished a copy of the indictment or information before he is called upon to plead. RCr 8.02. As noted, the record recites that Carter was “arraigned.” Carter’s RCr 11.42 motion admits that the only error of which he complains occurred “on arraignment,” and was the asserted failure of the trial judge to apprise him of the date of the charged offense.

Even if the court failed to tell Carter the date charged in the indictment we think the failure would not ipso facto constitute a deprivation of a constitutional right or amount to a denial of due process.

In this state of case it was proper to overrule the RCr 11.42 motion without an evidentiary hearing. Maggard v. Commonwealth, Ky., 394 S.W.2d 893; Maye v. Commonwealth, Ky., 386 S.W.2d 731; Odewahn v. Ropke, Ky., 385 S.W.2d 163.

The judgment is affirmed.


author: MOREMEN, Chief Justice.

text:
    Alva BELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 24, 1966.
    Frank E. Haddad, Jr., Louisville, Hugh D. Moore, Owensboro, for appellant.
    Robert Matthews, Atty. Gen., Lloyd R. Cress, Asst. Atty. Gen., for appellee.
   MOREMEN, Chief Justice.

Appellant, Alva Bell, was found guilty of the offense of armed robbery and his punishment fixed at life imprisonment.

The facts of the case are unusual. Witnesses for the Commonwealth proved that William H. Booth was manager of a company which sold oil products to retail gasoline service stations. The company appears to have been owned by Booth and other members of his family. Appellant Bell operated a service station and purchased various products from Booth for resale. He became indebted to Booth on open account. Appellant became delinquent in the payment of the debt owed and Booth pressed hard for payment. During the period between July 1963 and July 1964, the debt increased to $800 and was secured by a note and mortgage on the equipment and inventory of the station. Later Bell returned to Booth’s company some of the stock of merchandise which he had purchased and was given credit on the note and mortgage, leaving a balance due of $479.06.

In July 1964, Bell told Booth that he had found a way to raise the money and asked Booth to meet him at the station around nine o’clock in the morning of July 3. They met at that time, discussed inventories and similar matters and then Bell asked Booth how much he would reduce the account if the balance of $479.06 were paid in cash. Booth agreed to accept $450. In the meantime, Leonard Hayes arrived at the station and joined the two men. (He was employed by appellant at the new station he was operating at the time of the trial and had worked for him on other occasions.)

Bell requested a receipt in full for the money, and after it had been executed by Booth he counted out $450 in the presence of Hayes. Appellant persuaded Hayes to initial the receipt to show that he had witnessed the payment. Appellant told Booth that he wanted to ask him something about the greasing equipment in another part of the station and they went to the adjoining room. Booth testified that this occurred:

“And as we walked back there, Bell asked me, he said, ‘What did you tell me what you would do with this greasing equipment?’ And, as I said before, the first ten (10) minutes in there I was * * * we were discussing his inventory, and I recommended to him to clean it up and paint it. And I told him the same thing. I said, ‘Well, Bell, I would paint that and get it cleaned up.’ They were quite old pieces of equipment, and I had no more than said that, and I was looking at that greasing equipment, he turned on me with a pistol in his hand. And he said, ‘You give me that money back or I’ll kill you.’ And as he said it, he pulled the hammer back on the pistol. And this Hayes boy was standing in the office. As far as I know he never came back or even looked around the corner. Naturally it startled me and it scared me, and I reached immediately for my billfold. I did say something, the exact words * * I said, ‘If it’s that important to you, here’s your money.’ And I reached for my billfold and pulled it out, and took the money out in my hands. And I started counting it in my hands, and then he asked me to get in the stockroom. I imagine he was scared someone could possibly drive up. There was an open bay window there even though he had his back to it. And I said, ‘No, I won’t go in the stockroom.’ I said, ‘Here, I’ll count it for you on the floor.’ And I knelt down and counted the money out in one hundred dollar lots there, so that he could readily see that he was getting back the FOUR HUNDRED AND FIFTY DOLLARS ($450.00) that he had given me. And upon doing so, after I counted it out there, I just got up and walked out of the station.”

Appellant Bell denied in detail the facts given in the above quotation. Hayes testified that after Booth had received the money he went to his truck and drove away.

The case was submitted to the jury under an instruction which has not been questioned and the jury believed the testimony of the prosecuting witnesses.

On this appeal it is urged that the trial court erred: (1) In admitting evidence of other crimes; (2) in permitting the jury to separate without appellant’s consent.

A witness, Carlos Graham, who was credit manager and collector for Booth’s company testified that on May 5, 1964 — about two months before the day of the settlement at the service station — he met Bell at the station, presumably for the purpose of collecting the indebtedness, and this occurred:

“When he got out of the car, why he walked over there where I was and he * * * he proceeded to grab me by the shirt collar and he said he was going to kill me if I didn’t get out of there, if I ever came back in the station again. And also to tell Bill Booth that he’d kill him if he ever came to the station.” ■

He stated that Bell did not flourish a weapon, but he said “he could kill me with his bare hands.”

As was said in Roberson’s Criminal Law, § 1794, “The rule that evidence of other crimes is not competent except in certain exceptional cases, is universal, and so manifestly correct that it needs no argument to sustain it.” That rule has been adhered to by this Court. There are, however, some exceptions to that general rule in that evidence of other crimes than those for which defendant is being tried has been accepted where it is necessary to establish identity, guilty knowledge, intent, or motive for the crime or when other offenses are so interwoven with the one under trial that they cannot be properly separated. Holt v. Commonwealth, 354 S.W.2d 30. Sometimes such evidence may be introduced to show a pattern or a system in the commission of crimes. Lee v. Commonwealth, Ky., 242 S.W.2d 984. The assault and battery above described coupled with the threat to kill is certainly a separate public offense that is distinct from the alleged armed robbery which occurred some two months later.

We find nothing in the testimony admitted that brings it under any exception to the general rule. An explosion of violence by a man who had suffered a series of misfortunes (illness, fire damage to the gas station, indebtedness, et cetera) when hard pressed to pay a debt, does not establish motive or intent to commit a crime that only may be committed in frigid, cold-blood, i. e., armed robbery. In fact, in cases involving such crimes, motive, intent and guilty knowledge are necessary conclusions to be drawn from the act done and the prosecution is not required to prove it specifically.

In this case there is no question as to identity, no contention that there was a general scheme or plan of criminal action. The two offenses were not interwoven and we find no exception under which the testimony given by the witness, Carlos Graham, falls. There is no claim that the act was done innocently or unintentionally. Appellant denied that the act was committed. We believe that substantial, prejudicial error was committed.

It is unnecessary to decide the second question raised by appellant because the event is not likely to recur on the next trial. However, all questions not specifically decided are reserved.

Judgment reversed.


text:
    COMMONWEALTH of Kentucky, Appellant, v. Buddy ALLEN, Appellee.
    Court of Appeals of Kentucky.
    July 1, 1966.

      Robert Matthews, Atty. Gen., Robert Preston, Asst. Atty. Gen., Frankfort, for appellant.
    S. Stanton Baker, Jr., Louisville, for appellee.
   CERTIFYING THE LAW

DAVIS, Commissioner.

The Commonwealth has appealed from the ruling of the trial court which dismissed Count One of an indictment against appellee as failing to state facts constituting a violation of KRS 436.360. Certification of the law is sought pursuant to KRS 21.140 (3).

The language of Count One of the indictment is:

“That during the year 1964, in Jefferson County, Kentucky, the above named defendant conducted, managed, or promoted the business of Gem Distributing Company, a lottery or gift enterprise.”

The appellee was named as the defendant in the caption of the indictment; KRS 436.360 was designated in the caption as the basis for Count One of the indictment.

Appellee made timely motion for a bill of particulars. RCr 6.22. The trial court sustained that motion and a bill of particulars was filed which stated, in pertinent part:

“Question 1. The aspects of the business of Gem Distributing Company which are alleged to constitute a lottery or gift enterprise.
Answer 1.
(a)The salesmen of the Gem Distributing Company solicit names from customers, which names are supposedly to provide future sales.
(b) The person giving this name is induced to believe that he will pay for the products by submitting these names.
(c) The product itself has an inflated price significantly higher than if he had bought it under some other plan than the ‘referral selling plan.’
(d) The customer is assured that he or she will receive some prize, either money or credit, or something of value as a result of submitting these names.
(e) There is no assurance that the salesmen or the company will ever contact the names supplied by the customer, or that if the people are contacted they will allow the salesman to demonstrate the product or that the persons contacted will in any way be interested in the product.
Question 2. The particular operation of said business which is alleged to constitute a selection of a prize winner by lot or chance.
Answer 2.
(a) The ‘prize’ is described in Answer 1. (d).
(b) The ‘chance’ is the part of the Gem Distributing Company business which allows a former customer to obtain his prize by the happening of a future event, for example, an interview, a demonstration, a sale.”

It was in face of the statements in the bill of particulars that the trial court ruled that no violation of KRS 436.360 was charged. The Commonwealth insists that the trial court’s ruling was erroneous and asks that the law be so certified.

Section 226 of the Kentucky Constitution provides:

“Lotteries and gift enterprises are forbidden, and no privileges shall be granted for such purposes, and none shall be exercised, and no schemes for similar purposes shall be allowed. The General Assembly shall enforce this section by proper penalties. All lottery privileges or charters heretofore granted are revoked.”

KRS 436.360 is a statutory enactment implementing Section 226 of our Constitution, and at the pertinent period in this case provided:

“Any person who sets up, conducts, manages, operates, draws or otherwise promotes or assists in setting up, conducting, managing, operating, drawing or in otherwise promoting any lottery or gift enterprise, whereby money or anything of value is or is pretended to be disposed of, or any person who writes, prints, sells, exchanges, disposes of, supplies or procures or causes to be supplied or procured, to or for any person, or has in his possession or under his control, with intent, for himself or another, to sell, exchange, dispose of or supply any ticket, share or part of a ticket, or any writing, print, paper, certificate, token or device purporting, designed or intended to give or entitle the holder or any other person to any prize, share or interest in any prize, or to any right, share or interest whatever in any lottery or gift enterprise in or out of this state or in or to any drawing of or in or to the result of any lottery or gift enterprise in or out of this state shall be fined not less than five hundred dollars nor more than five thousand dollars, and shall be confined in the penitentiary for not less than two nor more than five years.”

The plan or scheme charged against ap-pellee is one which is often referred to as a “referral selling plan.” The bill of particulars sufficiently identifies the charged conduct as being within the scope of the usual “referral selling plan.”

In Sherwood & Roberts-Yakima, Inc., v. Leach, Wash., 409 P.2d 160, the Washington Supreme Court held that a “referral selling plan” was a lottery and contravened a Washington statute. The applicable statute substantially incorporated the familiar elements of a lottery scheme as including (1) the distribution of money or property— a prize, (2) chance, and (3) a valuable consideration paid or to be paid for the chance. In that case, as here, there was no issue concerning the presence of the “prize” and the “consideration.” The chief bone of contention is whether the scheme includes “chance” as that term is understood incident to gaming law.

The argument was presented in Sherwood & Roberts-Yakima that “chance” did not appear in the plan, since the “skill” of the customer in selecting “live” prospects for “referral” removed the element of “chance.” In rejecting that contention the Supreme Court of Washington said, in part:

“Assuming that respondents in fact used skill or judgment in selecting the referrals, the trial court properly held that chance permeates the entire scheme. The court found that respondents took a chance that the referrals might not be interested ; that the salesman might not adequately make his presentation; that the referral might have already been referred by someone else; that the market might be saturated; and that the salesman might not even contact the referral. In addition, the trial court noted that respondents have no control over the general operation after they gave the names of referrals. In fact, respondents were told not to contact the referrals before the * * * salesman made his presentation, and respondents were told to emphasize the money-making program in case the referrals contacted them. Appellant argues that the want of control is not a legitimate factor to consider. This argument is tenuous.
“The lack of control feature in referral selling is much broader than that designated by the trial court. It is inherent in referral selling that purchasers such as respondents be without control. Sooner or later, the market, unknowingly to the purchasers, will become saturated.
This principle is the same as in the chain letter scheme.” Ibid. 409 P.2d 163.

In the same opinion, the Washington Supreme Court further stated:

“Respondents took a chance on whether they could get something for nothing. This chance permeates the entire scheme of referral selling. This court holds that the referral selling scheme is a lottery.” Ibid. 409 P.2d 164.

We are persuaded to the view as ably expressed in the cited Washington decision. We have considered fully the decision of Yoder v. So-Soft of Ohio, Inc., Ohio, 202 N.E.2d 329, in which the Court of Common Pleas of Ohio, Stark County, reached an opposite result. However, we deem the reasoning of the Washington Supreme Court to comport with our view of the “referral selling plan” as opposed to the position adopted by the Ohio tribunal.

We do not regard it as essential to determine whether a “referral selling plan” is a “lottery” or a “gift enterprise.” The cited constitutional provision as well as the pertinent statute refer to “lottery” and “gift enterprise” disjunctively, but neither undertakes a specific definition for “lottery” or “gift enterprise.” It is significant that the Indiana Supreme Court stated, as early as 1881, that a “gift enterprise” was “ * * * understood to be substantially a scheme for the division or distribution of certain articles of property, to be determined by chance, amongst those who have taken shares in the scheme, and the phrase has attained such a notoriety as to justify us in taking judicial notice of what is meant and understood by the use of it.” Lohman v. State, 81 Ind. 15, 17-18. The “notoriety” mentioned by the Indiana court in 1881 doubtless had “crossed the river” by the time our present Constitution was adopted.

In Worden v. City of Louisville, 279 Ky. 712, 131 S.W.2d 923, this court discussed a “suit plan” as if it considered it to be a “gift enterprise” — if not a “lottery.” It is true, as suggested by appellee, that the discussion in the Worden opinion was obiter dictum but the reasoning employed by the court there is apt here. In Worden the court pointed out that whether the scheme be considered a “lottery” or a “gift enterprise” it embodied all of the evil features of a lottery.

Neither are we impressed by the argument that the action of the 1966 General Assembly in amending KRS 436.360 demonstrates that the legislative branch of our government considered that “referral selling” was not within the inhibition of the existing statutory law. It is noted that by the 1966 amendment “referral selling” is specifically brought within the purview of KRS 436.360, but that action may as well indicate the desire of the legislature to remove all doubt of its intention as to indicate an expression of its belief that “referral selling” was exempted from the prohibition of the statute then in force.

It is our view that the trial court erred in dismissing Count One of the indictment, and the law is so certified.