text:
    Richard M. FINDER, Individually and d/b/a Texkan Oil Company, Appellant, v. Mary NYEGAARD, Appellee.
    No. 4094.
    Court of Civil Appeals of Texas. Waco.
    April 18, 1963.
    Rehearing Denied May 9, 1963.
    Roach & Robertson, James S. Robertson, Jr., Dallas, for appellant.
    Hill, Brown, Kronzer, Abraham, Watkins & Steely, W. James Kronzer, Houston, William N. Patman, Ganado, for appellee.
   WILSON, Justice.

The problem presented is whether the provisions of a typewritten addendum or rider attached to a printed form of oil and gas lease had the effect of nullifying the proportionate reduction clause in the printed form as to gas royalty. The trial court determined it did so. We think it did not.

The predecessor in title of appellee-lessor reserved a ⅝2nd mineral interest in land conveyed, of which appellant had notice. Appellee thereafter executed the lease in controversy, using a Martin “C-88R Producers’ 88 Special” printed form. It provided for a Ysth royalty on oil and casing-head gas. The printed form originally contained also a paragraph creating a royalty of ⅛⅛ of the market price at the well of gas sold or used from wells where gas only is found; and where such gas is not so sold or used, an annual cash payment of $50. This printed paragraph relating to royalty on gas was deleted by typed strike-over. Also deleted were the “Mother Hubbard” and delay rental clauses.

The printed provision for proportionate reduction of royalty if “lessor owns a less interest in the above described land than the entire and undivided fee simple estate” remained intact. There was a covenant of warranty.

Attached to the printed form signed and acknowledged by appellee as lessor was a second typewritten sheet separately signed by her. It is recognized by the parties as being an addendum or rider to the printed form, both being filed and recorded as constituting one contract document.

The rider provides:

“Notwithstanding anything to the contrary contained in the foregoing lease, it is understood and agreed that: (1) To pay to Lessor as royalty for gas from each well where gas only is found, while the same is being sold or used off of the premises, one-eighth of the market price at the wells of the amount so sold or used, and where such gas is not so sold or used lessee shall pay to lessor $779.70 per annum for two years only from the date of this lease, as royalty * * * ”

This language, after “(1)”, is identical to that deleted from the printed form except for change of the cash amount as to shut-in gas, and the insertion of the italicized words. There was added a pipeline connection requirement and a provision for lessor’s use of water wells.

The next four paragraphs of the typed rider comprise about 50 single-spaced typewritten lines containing surface and property damage clause, clean-up, restoration, fencing, drainage and other covenants and requirements for lessor’s protection, with provision for notice and damages in the event of their breach; a requirement that lessee re-enter a specified location withim 60 days and drill a second well; and an acreage retention and undeveloped acreage surrender provision. No extrinsic evidence was offered, and there is no direct proof as-to who drafted the contract.

The narrow question is whether the introductory words, “notwithstanding anything to the contrary in the foregoing lease”' preceding the ⅛⅛ gas royalty reservation' in the typewritten rider entitles appellee to-a full ⅛⅛ royalty undiminished by the %2iid' interest reserved by lessor’s predecessor in* title. Appellee says it does because the-proportionate reduction clause in the printed portion is “contrary” to the unqualified' ⅛⅛ royalty reservation in the rider. Appellant contends lessor’s royalty is reduced'to %2nds by the proportionate reduction clause. Appellee insists the latter clause is-applicable only to oil and casinghead gas by virtue of these quoted words.

Both parties tell us the present problem, is readily solved by McMahon v. Christmann, 157 Tex. 403, 303 S.W.2d 341, 304 S.W.2d 267. There the typed rider, following-a printed proportionate reduction clause, reserved a royalty “without reduction”. If such language had been inserted in the present rider, of course there would be no problem. Newport Oil Co. v. Lamb, Tex.Civ.App., 352 S.W.2d 861, no writ, and R. Lacy, Inc. v. Jarrett, Tex.Civ.App., 214 S.W.2d 692, cited by the parties are not decisive of the question. In Gibson v. Turner, 156 Tex. 289, 294 S.W.2d 781, the proportionate reduction clause was entirely deleted. Ap-pellee contends “notwithstanding anything to the contrary” in our addendum, has virtually the same effect of avoiding reduction-as did “without reduction” in the McMahon-case.

In seeking the intention of the parties here, we are led to ask: Why did they strike out the gas royalty clause in the printed-form and reproduce it on another page with-precise exactitude? Was it in order to-create a variance and ambiguity and bring into action the rule of construction in resolving conflicts that typewritten matter controls over printed? Was it to remove gas royalty from proportionate production, and free it from diminution ? Why did they not insert a provision in the proportionate reduction clause, where space was available, that it was limited to oil and casinghead gas? Did the parties decide to becloud or conceal their clear intent by transferring the location of a paragraph and prefacing it with the fuzzy “notwithstanding anything to the contrary” — rather than stating simply such royalty was without proportionate reduction? Both parties were cognizant of the outstanding ½2nd interest. Or, on the other hand, did they or their draftsman, conclude the minute space provided in the printed form made interlineation impossible in substituting the amount of shut-in gas payment, inserting the italicized words and adding six lines of typing amending the original printed paragraph? All added provisions in the entire page of the typewritten rider appear to be for lessor’s benefit. They contain no apparent lack of clarity or translucent draftsmanship where they ■directly qualify or alter the printed form. They constitute, in fact, typical modifications of a printed form lease proposed or successfully negotiated and made at the instance of a prudent lessor or his careful and ■experienced counsel. We believe the failure of the parties to clearly qualify or restrict the proportionate reduction clause evidences their intention not to do so, upon the face of the contract.

The force of appellee’s logic is not lost on us, but in our opinion the proportionate reduction clause is not “contrary” to the typed gas royalty provision. The latter provision ■exists and is fully effective, just as it originally existed before it was expunged, transposed and duplicated with additions. The proportionate reduction clause is no more inconsistent with it because of the prefatory “notwithstanding anything to the contrary” than it was before. This phrase is clearly applicable to other provisions of the rider which effectuated direct changes with direct words. The same gas royalty reserved is, we think, subject to the same reduction it was before the location and order in the contract document was changed. We thus leave the agreement as we found it, its provisions harmonized and unaltered by implication. The judgment is reversed and here rendered that appellee take nothing.


source: Caselaw Access Project

author: TIREY, Justice.

license: Public Domain

text:
    Carl TAUTENHAHN et al., Appellants, v. Charles DILLINGHAM et al., Appellees.
    No. 4132.
    Court of Civil Appeals of Texas. Waco.
    April 18, 1963.
    Rehearing Denied May 9, 1963.
    M. S. Morgan, Joe J. Newman, Leonard Z. Finger, Houston, for appellants.

      Irwin & Smith, W. B. Irwin, Jr., Galena-Park, Harold F. Thurow, Houston, Robert L. Whitmarsh, pro se, for appellees.
   TIREY, Justice.

Plaintiffs brought this action for the legal services they rendered in the defense of a suit seeking to remove defendants, Tauten-hahn, Whitmarsh and Ammons from their position as trustees of the Aldine Independent School District. (That case was appealed to the Houston Court of Civil Appeals and reached our Court on transfer. See Tautenhahn v. State of Texas, ex rel. Nichols, Tex.Civ.App., 334 S.W.2d 574, n. r. e.). This cause was tried to a jury and at the close of the evidence defendants, Moore, Allen and Stanley and the Aldine School District Taxpayers Association were granted an instructed verdict, and a dismissal was entered as to defendant, Am-mons. On a verdict favorable to plaintiffs, the Court entered judgment in their behalf against Tautenhahn, Whitmarsh and Keitzman, and they perfected their appeal to the Houston Court and the cause is here on transfer.

The judgment is assailed on what appellants designate as 27 points. These points assert substantially that the evidence is insufficient to support the submission of each of the issues submitted to the jury; that the preponderance of the evidence does not support the findings of any of the issues, and that there is no evidence to support the submission of any of the issues or of the answers of the jury thereto. In appellants’ brief they state: “Due to the type of assignment of error all will be treated together.” And they have done so.

We have carefully considered the evidence tendered and we are of the view that it is sufficient to sustain the jury’s verdict, and for that reason each of appellants’ 27 points are overruled.

Since this Court passed upon the removal suit question it is needless for us to say that we have a vivid recollection of the tremendous amount of work that was done by the attorneys for defendants in the removal suit, and the amount of work done in that suit was detailed to some extent by the Hon. Thomas J. Stovall, Jr., who sat as a trial judge in the removal suit, out of which this controversy grew. Our duty as a reviewing court in cases of this kind is accurately stated in Marshall v. Story, Tex.Civ.App., 312 S.W.2d 597, n. w. h., and in the case of Golob v. Stone, Tex.Civ.App., 322 S.W.2d 560, n. r. e.

Accordingly the judgment of the trial court is

Affirmed.


author: MURRAY, Chief Justice.

text:
    Julian RESENDIZ, Appellant, v. Patrick RESENDIZ, Appellee.
    No. 14090.
    Court of Civil Appeals of Texas. San Antonio.
    April 10, 1963.

      A. A. Garza, San Antonio, for appellant.
    Raul Villarreal, San Antonio, for appel-lee.
   MURRAY, Chief Justice.

This suit was instituted by Patrick Resen-diz against his father, Julian Resendiz, seeking to recover the sum of $8,000.00, alleged to have been loaned to’ the defendant upon his promise to repay the same. The trial was to the court without the intervention of a jury and resulted in judgment in favor of plaintiff against defendant in the sum of $3,950.00, together with interest, from which judgment Julian Resendiz has prosecuted this appeal.

During the trial appellee offered in evidence photostatic copies of two Cashier’s Checks, one in the sum of $2,000.00, and the other in the sum of $1,950.00. “Plaintiff’s Exhibit No. 1” was a Cashier’s Check on The District National Bank of Chicago,, dated Jan. 8, 1960, payable to the order of Patrick Resendiz, in the sum of $2,000.00. It was endorsed by Patrick Resendiz and deposited in the Frost National Bank of San Antonio by Julian Resendiz. “Plaintiff’s Exhibit No. 2,” was a Cashier’s Check on the same bank, dated Aug. 23, 1960, payable to the order of Julian Resendiz, in the sum of $1,950.00, endorsed by Julian Resen-diz, and left at the Frost National Bank “FOR DEPOSIT ONLY.”

Appellant objected to the introduction of the photostatic copies of these two checks, because the originals would be the best evidence. It was shown that the originals were sent to the Chicago Bank and were therefore beyond the jurisdiction of the District Court of Bexar County. When the checks were deposited by appellant in the Frost Bank they were microfilmed by the Bank before being sent to the Chicago Bank, and the photostatic copies were reproduced from these microfilms and were presented to the court at the trial by an assistant cashier, one N. W. Nance. The court’s action in admitting these exhibits is assigned here as error, as not being the best evidence.

We do not find it necessary to pass upon this question because appellant took the witness stand and admitted he had received these two Cashier’s Checks from ap-pellee and had deposited them in the Frost Bank in his own name. By doing so, appellant waived any possible error in admitting the Cashier’s Checks in the first place. Wright v. State, 165 Tex.Cr.R. 520, 309 S.W.2d 67; Davis Transport, Inc. v. Bolstad, Tex.Civ.App., 295 S.W.2d 941; Texas Indem. Ins. Co. v. Desherlia, Tex.Civ.App., 237 S.W.2d 715; Germann v. Kaufman’s Inc., Tex.Civ.App., 155 S.W.2d 969; Huff v. Reber, Tex.Civ.App., 13 S.W.2d 995; Airline Motor Coaches v. Howell, Tex.Civ.App., 195 S.W.2d 713; Clarkson v. Whitaker, 12 Tex.Civ.App. 483, 33 S.W. 1032; Dohoney v. Womack, 1 Tex.Civ.App. 354, 19 S.W. 883.

In the final analysis, the case turned upon whether appellant purchased these two Cashier Checks from appellee and paid cash therefor, or whether appellee loaned the proceeds of these two checks to appellant upon a promise of appellant to repay him. The trial court, by entering judgment in appellee’s favor, necessarily impliedly found that there was a loan made by appel-lee to appellant.

The judgment of the trial court is affirmed.


author: WILSON, Justice.

text:
    Albert T. SCHRADER, Appellant, v. Henry PEREA, Appellee.
    No. 4124.
    Court of Civil Appeals of Texas. Waco.
    April 18, 1963.
    Rehearing Denied May 9, 1963.
    Louis Scott Wilkerson, Austin, for appellant.
    Eastham, Williams & Meyer, Thomas W. Moore, Jr., Houston, for appellee.
   WILSON, Justice.

Defendant appeals from an order overruling plea of privilege in a damage action for alienation of affections. Appellee submits a certified copy of judgment on the merits, thereafter tried, which has become final without perfection of appeal.

The issue of venue has thereby become moot, and the appeal is dismissed. Allen v. Woodward, 111 Tex. 457, 239 S.W. 602, 22 A.L.R. 1253; Motor Securities Corp. v. Jones, Tex.Civ.App., 90 S.W.2d 858; Brown County Life Ins. Co. v. Hagins, Tex.Civ.App., 110 S.W.2d 1162, 1164; Pugh v. Childress & Marshall, Tev.Civ.App., 207 S.W.2d 182; Hanslik v. Dittfurth, Tex.Civ.App., 356 S.W.2d 495.


text:
    Marvin D. PADGETT, Appellant, v. Freddie R. GRIFFIN et al., Appellees.
    No. 4138.
    Court of Civil Appeals of Texas. Waco.
    April 4, 1963.

      W. M. Zachry, Waco, Minor L. Helm, Jr., Waco (on appeal only), for appellant.
    Beard, Kultgen & Beard, Waco, for ap-pellees.
   TIREY, Justice.

This is an appeal from an order of the District Court of McLennan County sustaining the action of the County Court in refusing to approve the application of Marvin D. Padgett, fo.r a retail off-premises beer license. Padgett’s application was filed in the County Court pursuant to the provisions of Article 667-5, Vernon’s Annotated Penal Code. This Article provides in part:

“ * * * The County Judge shall refuse to approve the application for such license if he has reasonable grounds to believe and finds any of the following to be true: * * *
“2. * * * (c) That the place or manner in which the applicant for a Retail Dealer’s License may conduct his business is of such nature which based on the general welfare, health, peace, morals, and safety of the people, and' on the public sense of decency, warrants a refusal of the license; * * *

Article 667-6, Sec. (d) provides in part t

* * * In the granting or withholding of any license to sell beer at retail, the county judge in forming his conclusions shall give due and proper consideration to any recommendations made by the district or county attorney or the sheriff of the county, and the mayor and chief of police of any incorporated city or town wherein the applicant proposes to conduct his business and to any recommendations made by representatives of the Board.”

After the Statement of Facts was signed! by the attorneys and the official court reporter there is a page attached in the back-which says:

“Statement of Mr. Frank Beard: Article 667-6 allows the District Attorney’s Office to make a recommendation and we are making the same recommendation that we made below. Based upon the evidence presented we would recommend that the license be withheld.”

The attorneys in oral argument before the-Court stipulated that the foregoing statement was made in tire trial of the cause.

Evidence was tendered to the effect that the Knights of Columbus, a fraternal organization, holds an on-premises license to sell beer in the immediate vicinity of the proposed Padgett location; that excluding the Knights of Columbus location, the nearest retail beer dealer is located two or three miles from such proposed Padgett location; that the Knights of Columbus do not sell beer to the public at large, but only to their members; that use of the Knights of Columbus Hall is confined to members of the organization, save and except when they have a social and invite other guests; that in the opinion of persons acquainted with property values in the area, granting a beer license at Padgett’s location would have an adverse effect on property values over a wide area in the vicinity; that people opposed to the sale of beer and children of parents opposed to the sale of beer have to pass Padgett’s location in going to and from school and church (although it is not solely exclusive) ; that the granting of the license would, in the opinion of the school superintendent, be detrimental to the Midway School; that the Woodway-Midway Area in which lies the Padgett location is a separate and distinct community, and that the Padgett proposed location is in the Midway-Woodway community; that the sale of beer at such Padgett location would be offensive to the public sense of morals and decency in the Midway-Woodway Community and surrounding communities.

The judgment is assailed on two points. They are substantially to the effect that the Court erred: (1) In affirming the County Judge’s denial of the beer permit, for the reason that said denial was discriminatory as to Padgett, in view of the existence of other beer permits in the vicinity; and (2) Because the order was not supported by substantial evidence rule as required under the applicable law. We overrule each of these points for reasons hereinafter briefly stated. First of all, our Supreme Court in Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198, carefully reviewed the Articles to the Penal Code controlling this particular matter, and in so doing wrote a very clear and comprehensive opinion which has not been changed by our Supreme Court, and this opinion is applicable and controlling here. The opinion of the Supreme Court held that the County Judge in passing upon an application for a license to sell beer acts in an administrative rather than a judicial capacity, and further held that the correctness of the order of the County Judge, and consequently of the judgments of the District Court, and Court of Civil Appeals, is to be tested by the application of the substantial evidence rule, and further held:

“Stating again the substantial evidence rule, it is that the finding of the administrative body or agency will be sustained by the court if it is reasonably supported by substantial evidence, meaning evidence introduced in court. It is for the court, whether trial or appellate, to determine as a matter of law the reasonableness of the support afforded by substantial evidence, and in making its decision of this question the court examines and takes into consideration all of the evidence.”

Under the .record here made, we are of the view that the district court properly affirmed the judgment of the county court and denied the application of Padgett.

Accordingly, the judgment of the District Court is

Affirmed.


author: RUARK, Presiding Judge.

text:
    PERSEVERANCE COMMON SCHOOL DISTRICT NO. 90, William Athey, Thelma Spear, George Mayfield, Al Pendergraft, Faye Pendergraft, Billy V. Hart, and Howard E. Hoover, Plaintiffs-Appellants, v. Gerald HONEY, Leonard Kneale, Lloyd Brock, Clarence Williams, Jr., Roy Smith, Lloyd Ralston, Individually and as Members of the Jasper County Board of Education, John F. Wilson, Superintendent of Schools of Jasper County, Missouri, and as Secretary of the Jasper County Board of Education, and Jasper County Board of Education, Defendants-Respondents.
    No. 8161.
    Springfield Court of Appeals. Missouri.
    April 25, 1963.

      Ralph Baird, Joplin, for plaintiffs-appellants.
    Myers & Birk, Webb City, for defendants-respondents.
   RUARK, Presiding Judge.

This is an appeal, as we shall hold, from an order setting aside a temporary injunction.

On June 21, 1962, plaintiffs, who are the Perseverance Common School District No. 90 of Jasper County, Missouri and a group of taxpayers resident in that district, sued the members of the Jasper County Board of Education individually and as members thereof, and one John F. Wilson, Superintendent of Schools of Jasper County and Secretary of the Jasper County Board of Education, the purpose being to attack the legality of and prevent an election which defendants had called for June 30, 1962, for the purpose of submitting to the voters of the school districts known as Webb City, Perseverance Common No. 90, Underwood Common No. 100, and Prosperity Common No. 99 a proposition to create an enlarged district referred to as the “Seventh Plan.”

The petition alleges that at 10:15 A.M. on February 23, 1962, there was delivered to County Superintendent Wilson a-petition signed by more than fifteen qualified voters in each of these school districts, viz., Carter-ville Consolidated No. 91, Underwood Common No. 100, and Perseverance Common No. 90, which petition called for consolidation under the provisions of Section 165.273, V.A.M.S.; that, instead of calling an election and posting notices, Wilson caused certain members of the Jasper County Board to come together individually, without notice or quorum or in official meeting, and construct the “Seventh Plan” of reorganization; that thereafter, and without authority of law, Wilson affixed his name to such “Seventh Plan” and forwarded the same to the State Board of Education as though to proceed under Section 165.673, V.A.M.S., in an effort to pre-empt jurisdiction; that the State Board of Education received such petition on February 26, 1962, disapproved it, and returned it to the County Board; that thereafter the County Board refused and failed to alter, change, or revise said “Seventh Plan” but instead resubmitted such original plan to the State Board; that the State Board was offered no opportunity to consider any revised plan; and that on June 5, 1962, the original “Seventh Plan” was returned to the County Board without approval; that on June 13, 1962, the members of the Jasper County Board met in a closed meeting, from which were excluded the plaintiffs, the public, and the press, and voted to call the election of which plaintiffs complain. The prayer of the petition is for a permanent injunction from continuing the call for election of the “Seventh Plan,” from giving notice, from •designating polling places, selecting judges and clerks, and otherwise preparing for such election or charging plaintiff district with any cost thereof, for a declaratory judgment, and also for a temporary order restraining the above acts pending hearing ■on such injunction.

Thereafter the court issued what is entitled “temporary restraining order,” reciting that a good and sufficient bond had been given and approved, and restraining the defendants from continuing the call or perfecting the election. “ * * * this temporary injunction and restraining order shall be in force and effect ⅜ * * until such time as the Court may have the opportunity to try and determine the Petition for Injunction.”

The transcript, which is approved by both counsel for plaintiffs and counsel for defendants, does not show whether this order was issued ex parte or whether advance notice was given. No contention of want of notice was raised in the motion to dissolve (43 C.J.S. Injunctions § 247, p. 986), or is made here. If any show-cause order was issued under Supreme Court Rule '92.19, V.A.M.R., such is not shown.

On June 13, 1962, defendants filed answer admitting the capacity and position of parties and the call and preparation for the proposed election. They further admit the presentation of the petition for consolidation at the time alleged but state that on February 21, 1962, the County Board adopted the “Seventh Plan”; that it was mailed to the State Board on February 23, which board found the plan inadequate and returned it; that the County Board thereafter reviewed the rejected plan, made such alteration as it deemed advisable, and returned it to the State Board, which again disapproved it. Further answering, they allege that before the County Superintendent had an opportunity to investigate the petition for consolidation, six of the signers of the petition from Underwood District petitioned to remove their names, and said petition was granted, so that fewer than fifteen signers were left from Underwood. They further allege that thereafter the plaintiffs signed a petition to annex Perseverance Common to Carterville School District; that on election such proposition was defeated and that such conduct constituted an abandonment and an estoppel. The answer denies any secret meetings and asserts plaintiffs were heard at various meetings; and it also denies that the petition states a cause of action.

Thereafter the defendants filed a motion to dissolve, the ruling upon which is the subject of this controversy. The motion incorporates the answer and further pleads that the injunction is premature in that until the election is held there can be no determination as to whether there will be any damage to the plaintiffs.

Although the transcript before us does not show a setting, we can gather from the colloquy before the court and the letter hereinafter referred to that a hearing of some sort, for some purpose, had been set, or was at least contemplated, for July 2. On June 25, 1962, the judge of the circuit court wrote plaintiffs’ attorney informing him that defendants had filed the motion to dissolve the temporary restraining order and that a hearing, originally scheduled for July 2, 1962, would be held on June 27, 1962, at 9:30 A.M. Apparently this letter was received by plaintiffs’ counsel on June 26. On the same day he filed application for continuance, the burden of which was that he had relied on the July 2 setting; that material portions (some of them set forth) of defendants’ answer were untrue and plaintiffs desired to prove such; that the change of setting was in violation of the Rules of the Circuit Court; that Rule 44.01(d) requires notice of five days on a motion to dissolve; that plaintiffs had had no notice in accordance with Rule VI of the circuit court; that plaintiffs had witnesses to prove that material parts of the motion to dissolve were untrue but would not be able to secure them by 9:30 A.M. on June 27.

On June 27, 1962, the court opened the proceedings by stating that the hearing was originally set for July 2; that in the meantime the court had reread and given further consideration to plaintiffs’ petition and “ * * * this is about the same situation as in the trial of a lawsuit, a civil case where at the close of the plaintiff’s testimony, the defendant offers a motion to dismiss. Well, the customary manner is to go ahead and hear the rest of the case and then if there is something wrong with it, why, it can be disposed of. Now, I feel that in this situation, the best thing to do would be to set aside the temporary restraining order so that the election can be held. If the election doesn’t carry, then the matter is solved. If the election does carry, the plaintiffs still have their remedy to determine whether or not the election is valid. Of course, the petition states that the election would be invalid, and if that is true, why, it would have no effect. Anyway, the matter is going to have to be tried out and if the election should fail to carry, why, then there is no problem about it. So, the Court, of its own motion, will set aside the temporary restraining order which has heretofore been granted.”

The plaintiffs’ counsel attempted to obtain a stipulation that he had not been served with a copy of the motion to dissolve. The court stated, “ * * * The Court feels that the Court ha-s the right of its own motion to set aside the temporary restraining order, and, as I have stated in the record, I felt that that was to the best interest of all concerned, both plaintiffs and defendants.” And again in the colloquy, “ — because I did go over the petition again, and I question whether or not injunctive relief is the proper remedy if, as you state in your petition, the election would be void. In other words, you don’t need a restraining order to prevent an election which would not accomplish anything.” Thereafter counsel for plaintiffs offered to make certain proofs concerning the calling of and preparation for the election, which offers were refused; and thereupon the court made entry that the restraining order theretofore granted be set aside.

Was this an appealable order? Respondents contend that an order dissolving a temporary injunction is not appealable. They rely upon Rose v. Township Board of Combs Tp., 163 Mo. 396, 63 S.W. 698. As we interpret Section 512.020, V.A.M.S., and its ancestors, an appeal may be taken “from any order * * * dissolving an injunction.” State ex rel. Manning v. Smith, 188 Mo. 167, 86 S.W. 867.

Was the order appealed from an injunction? Various texts and cases distinguish between a “temporary restraining order,” as this one is entitled, and a “temporary injunction.” The distinction, as we see it, is not in the essential character of the order (both are in restraint of threatened acts) but in the time and extent of the restraint. A temporary restraining order, or “stay order,” as it is sometimes called, is limited in time and is self-dissolving at the expiraton of the time fixed (usually for a hearing on an application for temporary injunction) unless continued or extended or converted into an injunction pendente lite, whereas a “temporary injunction” runs until dissolved by action of the court or the parties. But nomenclature cannot change the fundamental character of the order, no matter what it is called, and a “temporary restraining order” is an injunction. Waterman v. Waterman, Mo.App., 210 S.W.2d 723. Regardless of the foregoing, this order, however the court may have intended it, restrained the defendants from the threatened acts until such time as the court might try and determine the issues on the petition. This was an order which imposed restraint until "the case was heard or until it was dissolved by action of the court or parties—an indefinite period—and we believe it was a temporary injunction.

Supreme Court Rules 92, V.A.M.R., gather together the procedures and provide •a separate and distinct code in injunction cases. Rule 92.16 specifically provides for the introduction of testimony on a motion to dissolve and states that the motion shall be decided “upon the weight of the testimony.” Rule 92.17 provides for a continuance in order to allow opportunity for presentation of material evidence. Rule 92.18 provides how testimony may be presented. We think these provisions leave no doubt as to the right of the parties to a hearing and opportunity to present evidence on a motion to dissolve.

We agree that there would be no ■necessity for the presentation of proof if the court found (a) it had no jurisdiction to issue the original order in the first instance ; or (b) that the petition showed on its face there was no possible ground or basis for the equitable relief prayed for. But no such contention has been made in this court, and since it appears from the prayer that the relief sought might be a proper remedy, we think we should eschew any unsolicited further inquiry into any question which may go into the merits of the controversy.

In determining the question of whether the plaintiff was entitled to a hearing we have not overlooked the fact that the court on its own motion set aside the preliminary injunction. We do not deny that a court of equity has certain inherent powers in matters of this kind. 43 C.J.S. Injunctions § 229, p. 967; Danciger v. American Exp. Co., 192 Mo.App. 172, 179 S.W. 797. But these powers, although recognized, are also channeled and limited by Supreme Court Rules 92, and the plain provisions of such rules cannot be negatived by simply calling an order which obviously sustains a pending motion to dissolve one to “set aside” instead of to dissolve. In this instance we believe that plaintiffs were entitled to a fair hearing on the motion to dissolve. Inasmuch as the court announced at the outset that it had decided to set the injunction aside on its own motion, thereafter refused appellants’ attempted offers of proof, and thereupon entered an order setting aside the injunction on the court’s own motion, we believe that the appellants were denied a hearing and, to that extent, the court erred, even though we do not disagree with the practicalities suggested by the eminent judge.

After having accepted jurisdiction in this case, we learn, from statements made by counsel in argument and from pleadings filed in this and in a companion case, that all things restrained by the temporary injunction have, since the date of the order appealed from, been done. The call for the election was continued; preparation and arrangements for such were completed; and the election was held and the results received and certified. Therefore, in so far as the temporary injunction proceeding is concerned, any further hearing would be fruitless, because the events sought to be prevented have already occurred. Ordinarily the sole purpose of a temporary injunction is to preserve the status quo pending a determination of the merits, for rights already lost, or wrongs already perpetrated, cannot ordinarily be corrected by injunction. Eichelsbach v. Harding, Mo.App., 309 S.W.2d 681, 684, Id., Mo.App., 339 S.W.2d 289. And if a case becomes moot because some event occurs which makes it impossible for the reviewing court to grant effectual relief, the appeal will be dismissed. We note, however, that jurisdiction has been retained where costs are involved. Burns v. Harris, Mo.App., 358 S.W.2d 257, 259.

No court can turn back the clock and order not to be done that which has already occurred. Hence the question (as to the matters raised on this appeal) is moot and the appeal must be dismissed. A court of equity has the power to apportion costs in a case of this character. We believe that the appellants, who had a right to a hearing at the time the order was made and when the question was not then moot, should not be penalized for all the costs of this appeal. Accordingly, it is our order that the appeal be dismissed but that costs of this appeal be apportioned and charged against the parties one-half each.

STONE and HOGAN, JJ., concur.

      . See National Refining Co. v. Cox, 227 Mo.App. 778, 57 S.W.2d 778; Albers Commission Co. v. Spencer, 205 Mo. 105, 113, 103 S.W. 523, 524, 11 L.R.A.,N.S., 1003; Id., 236 Mo. 608, 139 S.W. 321; Brown v. Curtin, 330 Mo. 1156, 52 S.W.2d 387.

      . See 28 Am.Jur., Injunctions, § 11, p. 498, et seq.; 43 C.J.S. Injunctions § 8, p. 415; Swenson v. Seattle Central Labor Council, 25 Wash.2d 612, 171 P.2d 699; State ex rel. American Banker’s’ Assur. Co. v. McQuillin, 260 Mo. 164, 168 S.W. 924; Harbin v. Love, 119 Neb. 76, 227 N.W. 145.

      . Boatmen’s Nat. Bank of St. Louis v. Cantwell, Mo.App., 161 S.W.2d 431; Id., Mo.App., 183 S.W.2d 397; State ex rel. Beck v. Associates Discount Corp., 161 Neb. 410, 73 N.W.2d 673; Western Gas & Power of Idaho v. Nash, 75 Idaho 327, 272 P.2d 316; Ex parte Sharp, 87 Kan. 504, 124 P. 532, 534.

      . Scarborough v. Connell, Tex.Civ.App., 84 S.W.2d 734, 735; Haralson v. Seminole Bottling Co., 188 Ga. 600, 4 S.E.2d 452; State ex rel. Johnson Co. v. Raph, 184 Iowa 28, 168 N.W. 259.

      . Akin v. Rice, 137 Mo.App. 147, 117 S.W. 655; State ex rel. George v. Mitchell, Mo.App., 230 S.W.2d 116; State ex rel. Public Service Commission v. District Court, 103 Mont. 563, 63 P.2d 1032.

      . See Joplin Gas Co. v. Joplin, 182 Mo.App. 422, 167 S.W. 660, 663.

      . Schwartz v. Jacobs, Mo.App., 352 S.W.2d 389; State ex rel. Barnett School Dist. No. 66, Laclede County, v. Barton, Mo.App., 104 S.W.2d 284; Wegenka v. St. Joseph, Mo.App., 212 S.W. 71; State ex rel. Janus v. Ferriss, Mo.App., 344 S.W.2d 656.

      . Glascow School Dist. No. 60, Howard County, v. Marshall, Mo.App., 333 S.W. 2d 547; Baum v. City of St. Louis, 343 Mo. 738, 123 S.W.2d 48.

      . Cirese v. Spitcaufsky, Mo.App., 265 S.W.2d 753; State on inf. of McKittrick v. American Ins. Co., 351 Mo. 392, 173 S.W.2d 51; St. Louis 221 Club v. Melbourne Hotel Corp., Mo.App., 227 S.W.2d 764; Missouri-Kansas-Texas R. Co. v. Randolph (8th Cir.), 182 F.2d 996.

      . 5 C.J.S. Appeal and Error § 1362, pp. 444, 448; Hribernik v. Reorganized School Dist. R-3, Mo.App., 276 S.W.2d 596; Hurtgen v. Gasche, Mo.App., 227 S.W.2d 494; Euclid Terrace Corp. v. Golterman Enterprises, Inc., Mo.App., 327 S.W.2d 542; Humphrey v. Humphrey, Mo.App., 362 S.W.2d 92; State ex rel. Myers v. Shinnick, Mo., 19 S.W.2d 676.

      . Missouri Cafeteria v. McVey, 362 Mo. 583, 242 S.W.2d 549; Amitin v. Izard, Mo.App., 262 S.W.2d 353; Joplin Gas Co. v. Joplin, supra, 182 Mo.App. 422, 167 S.W. 660.


author: WADDILL, Commissioner.

text:
    Joe HOBSON, Appellant, v. Ray HOWARD, Chairman of Floyd County Board of Education et al., Appellees.
    Court of Appeals of Kentucky.
    April 26, 1963.
    Charles L. Hobson, Frankfort, J. B. Clarke, Prestonsburg, for appellant.
    W. W. Burchett, Clifford B. Latta, Prestonsburg, for appellees.
   WADDILL, Commissioner.

Appellant was employed by the Floyd County Board of Education to serve as its attorney for the school year of 1960-61 and was to receive a salary of $125.00 per month. At its January, 1961, meeting the Board created and filled certain administrative positions within the school system without obtaining the recommendation of the County School Superintendent. Appellant was of the opinion that the Board could not legally make these changes and upon the insistance of the superintendent he filed an action which resulted in the Board’s being prohibited from effectuating its intended changes. At its next meeting the Board voted to discharge appellant and to employ another attorney for the remainder of the school year.

Subsequently appellant brought the instant action seeking to have the order of the Board discharging him declared invalid on the ground that the Board could not arbitrarily terminate his employment because he was a “public school employee” within the meaning of KRS 160.380. Appel-lee filed a motion to dismiss the complaint alleging that it failed to state a claim upon which relief could be granted. The motion was sustained by the court.

The complaint raised the presumption, which was recognized in New Independent Tobacco Warehouse No. 3 v. Latham, Ky., 282 S.W.2d 846, that a professional man is an independent contractor. There is nothing in the record to effectively rebut this presumption. Moreover, the court could take judicial knowledge of the fact that the Board was only one of appellant’s numerous clients. In our opinion the trial court correctly concluded that the record disclosed that there existed between the Board and the appellant the traditional relationship of attorney and client and that since appellant was an independent contractor he could not be a “public school employee.”

Having decided that appellant’s employment status with the Board was that of an independent contractor, the fact that he filed a suit against the Board justified the Board in discharging him as its counsel.

In view of our conclusions herein the contention of appellant that his successor could not be employed by the Board without the recommendation of the superintendent has no merit.

Judgment affirmed.


author: STEWART, Chief Justice.

text:
    INLAND STEEL COMPANY, Appellant, v. Noble MULLINS et al., Appellees.
    Court of Appeals of Kentucky.
    April 26, 1963.

      Fred G. Francis, Howard, Francis & Howard, Prestonsburg, for appellant.
    Burnis Martin, Paul E. Hayes, Prestons-burg, for appellees.
   STEWART, Chief Justice.

Noble Mullins, appellee herein, was allowed total and permanent disability benefits by the Workmen’s Compensation Board (herein referred to as “the Board”) and the award was upheld on review by the Floyd Circuit Court.

In seeking a reversal of the judgment appellant first claims, relying upon K RS 342.316(2), that appellee failed to give ■notice as soon as practicable after he learned he was disabled from the disease of silicosis.

A summary of the facts relative to this point is that in September, 1958, appellee, a coal miner who operated coal cutting and loading machines for appellant, was experiencing “shortness of breath.” He consulted Dr. R. L. Hall, the company physician, and the latter diagnosed his complaint as pneumoconiosis. Dr. Hall notified ap-pellee of his infirmity and sent a report of his finding to appellant; he also instructed appellee to return in six months for another X-ray. In May, 1959, appellant went back to Dr. Hall,, and was examined and told his condition was worse.

Later, appellee discussed the state of his health with Arthur Bradbury, a company official whose duties embraced the handling of appellant’s compensation claims, and this person had him to go to Charleston, West Virginia, in August, 1959, to be examined by two doctors. Those doctors, William C. Stewart and George F. Grissinger, transmitted a report to appellant that appellee had silica infiltration in his lungs.

Appellee was then given a job outside the mine in November, 1959, at which he worked regularly until August 18, 1960. On the latter date he quit his employment, notifying his foreman he was no longer able to do the work. At that time he was again examined by Doctors Stewart and Grissinger who found him to have silicosis but no disability. He filed his application for compensation on September 9, 1960.

Do these facts show timeliness of notice? We believe they do.

Appellant’s physician, Dr. R. L. Hall, knew as soon as appellee that he had some form of pneumoconiosis, and promptly reported appellee’s condition to appellant. From that date until the termination of his employment on August 18, 1960, appellant had appellee under medical observation and caused him to be examined several times for the purpose of determining the progress of his affliction. We believe it cannot be maintained, under the proof shown, that appellant did not have due and timely notice of appellee’s silicotic condition.

Furthermore, this Court has held that notice pursuant to KRS 342.316(2) is not required to be given until the following conditions concur: “* * * (1) The employee has a disability from an occupational disease which impairs his capacity to perform his work, and (2) the employee knows or should know by the exercise of reasonable care and diligence that he is suffering from the disease.” See Mary Helen Coal Corporation v. Chitwood, Ky., 351 S.W.2d 167. See also Peabody Coal Company v. Guthrie, Ky., 351 S.W.2d 168, and Peabody Coal Company v. Harp, Ky., 351 S.W.2d 170. Although appellee may have had a vague notion his health was not too good, there was insufficient proof that he had sustained a disability from an occupational disease which impaired his capacity to perform his work prior to August 18, 1960. Hence the Board correctly determined the point under consideration.

It is next contended competent evidence of probative value was lacking that appellee was totally and permanently disabled from silicosis.

All of the physicians who testified agree that appellee has silicosis. On the question of disability, Doctors Grissinger and Stewart found no impairment due to the disease. Doctor Davidson, another physician who testified for appellant, stated only that ap-pellee could be totally disabled by the disease or that he could have no disability therefrom. Doctor Worden, another of the medical experts who appeared in behalf of appellant, found appellee had 10% impairment. Testifying in behalf of appellee, Doctor Boyce Jones found him permanently totally disabled to do coal mining or other heavy manual labor; and Doctor T. H. Biggs also found him totally permanently disabled to do coal mining or ordinary normal labor.

Such evidence is competent and sufficient to support the Board’s finding of total disability due to the disease of silicosis. It conforms to the test set forth in Altizer v. Casey, Ky., 330 S.W.2d 730, namely: “When findings of fact are in issue, the circuit court is limited to a summary determination upon the record before the Board of whether such findings of fact are based on competent evidence of probative value to support the order, decision, or award. KRS 342.285. Homer Brown Coal Company v. Mays, Ky., 307 S.W.2d 934, and Carrier v. Moberly, Ky., 315 S.W.2d 633. The rule as to finality of findings of fact by the Board applies when there is any evidence warranting inferences supporting them. Elkhorn Coal Company v. Adams, Ky., 313 S.W.2d 421.”

Appellant next argues that under the provisions of House Bill No. 380 enacted by the 1962 General Assembly, and specifically by the terms of KRS 342.316 (13) (a), the Board, upon appellant’s motion, should have made the Subsequent Claim Fund a party to this action and ordered the award to be paid 40% from the Fund and 60% by the employer, which it asserts the revised statute provides. The statute, as amended, became effective March 22, 1962, which was prior to the date, April 3, 1962, of the final award in this case.

Appellant takes the position that this was a procedural change in the law, that is, it was remedial in nature and therefore it would affect all proceedings in litigation or pending at the time it became effective. Appellant cites the case of Rye v. Conkwright, Ky., 311 S.W.2d 796, as authority for his contention. This was an appeal from a judgment affirming an order of the Board allowing a fee to the claimant’s attorney. This Court held the amendment to KRS 342.320 in 1956 by the Legislature so as to increase the maximum percentage of recovery allowable as an attorney’s fee was remedial or procedural; and that, where an award was made after the effective date of the amendment, the attorney’s fee should have been determined under the statute as ¿mended, although the application for compensation was filed before the effective date of the amendment.

In the Rye case the amount of compensation the employer was required to pay under the award was not at all affected by the increase in the attorney’s fee which is always taxed as a cost item; therefore, it could he said to be remedial. Here, however, the 1962 amendment under certain circumstances, unnecessary to mention and apparently not applicable in the case at bar, provides for payments partially out of the Fund and partially by the employer. Thus substantive rights are changed. See 99 C.J.S. Workmen’s Compensation § 21b, page 137, footnote (7).

It is pointed out that a portion of the medical testimony brought out in the case at bar tended to show that some men are more susceptible to silicotic infiltration than others when regularly exposed to coal dust during their working hours. Reasoning from this general statement, it is suggested —but not proved — appellee had such a predisposition to contract the disease of silicosis that he must be deemed to possess a pre-existing or congenital tendency to become silocotic. It is therefore asserted his disease should not have been charged wholly to the hazards of his occupation. Appellant contends apportionment should have been made as to the percentage of disability attributable to appellee’s impairment because of his so-called inherent weakness to withstand exposure to silica dust.

This argument must fall of its own weight because, as pointed out, no evidence exists in the record of this case upon which it may be based. Assuming, however, appellee’s state of health was to some extent below par, such a condition of debility or frailty would not exclude him from a full recovery of the compensation payments allowed him by law. We have said that industry takes a man as it finds him, Parrott v. S. A. Healy Co., Ky., 290 S.W.2d 798, and this Court has held that the Workmen’s Compensation Act is not limited in its application to employees in good health, Stasel v. American Radiator & Standard San. Corp., Ky., 278 S.W.2d 721. On the issue raised the rule is well stated in the case of Hendricks v. Kentucky & Virginia Leaf Tobacco Co., 312 Ky. 849, 229 S.W.2d 953, in this language:

“In the liberal interpretation and application of the Workmen’s Compensation Law, KRS 342.001 et seq., it has generally been regarded that a workman is entitled to his benefits even though his disability would not have resulted or would not have been as great if he had been whole and well or not already handicapped by some physical infirmity.”

Wherefore, the judgment is affirmed.


author: PALMORE, Judge.

text:
    Abraham W. JOHNSON et al., Appellants, v. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION et al., Appellees.
    Court of Appeals of Kentucky.
    April 19, 1963.

      Robert O. Lukowsky, Ware & Lukowsky, Covington, for appellants.
    Paul E. Tierney, Frankfort, Frank V. Benton, Jr., Benton, Benton, Luedeke & Rhoads, Newport, for appellees.
   PALMORE, Judge.

The appellants, members of the United Steelworkers of America, were employees of the Acme Newport Steel Company and went on strike at the time of the nationwide steel strike on July 15, 1959. The strike was precipitated by the inability of the union and steel industry to negotiate a new collective bargaining agreement on or before expiration date of the old one. On November 7, 1959, the strike was brought to a halt pursuant to a Taft-Hartley injunction granted by the U. S. District Court fur the Western District of Pennsylvania. United States v. United Steelworkers of America, D.C., 178 F.Supp. 297, 44 L.R.R.M. 3016, aff’d 271 F.2d 676 (3d Cir.), aff’d 361 U.S. 39, and 44, 80 S.Ct. 1 and 177, 4 L.Ed.2d 12 and 169. The appellants were called back to work at various times between November 15 and 22, 1959, and several months thereafter, while the injunction was still in effect, a new collective bargaining agreement was reached and the operation of Acme Newport’s plant continued without interruption. Meanwhile, the appellants had applied to the Kentucky Unemployment Insurance Commission either to serve the one-week waiting period or be paid unemployment compensation for the respective periods of their individual unemployment between November 8 and November 22, 1959. See KRS 341.350.

The Commission denied the claims, and its action was affirmed on a judicial review by the Franklin Circuit Court under KRS 341.460. This appeal followed.

Most of the states and territories adopted unemployment insurance statutes containing a disqualification for benefits if the unemployment “is due to a stoppage of work which exists because of a labor dispute.” Unemployment Compensation in Labor Disputes, by Herbert A. Fierst and Marjorie Spector, 49 Yale L.J. 461. Under these statutes “it is generally held that the claimant remains ineligible for benefits during the entire period of his unemployment even though a period of time is required after the settlement of the dispute for the employer to resume normal operations.” Annotation, Construction and application of provisions of unemployment compensation or social security acts regarding disqualification for benefits because of labor disputes or strikes, 28 A.L.R.2d 287, 322. Our statute, however, does not disqualify the claimant unless the “strike or other bona fide labor dispute which caused him to leave or lose his employment is in active progress.” KRS 341.360(1). Hence if the labor dispute that precipitated the strike on July 15, 1959, ceased to be “in active progress” upon the granting of the Taft-Hartley injunction of November 7, 1959, the appellants were eligible under KRS 341.350 even though their unemployment during the interim between cessation of the strike and resumption of normal operations was caused by the strike. See, for example, Davis v. Aluminum Company of America, 1958, 204 Tenn. 135, 316 S.W.2d 24, in which it was held, under statutory language comparable with ours, that employes whose recall following settlement of a strike was delayed pending completion of repairs to equipment damaged by the cessation of work were eligible for benefits, because the dispute, having been settled, was no longer “in active progress.”

It is clear from the opinions in Ward v. Barnes, Ky.1954, 266 S.W.2d 338, and Barnes v. Hall, 1940, 285 Ky. 160, 146 S.W.2d 929, 935, that this court has accepted the definition of “labor dispute” set forth in the Norris-La Guardia Act, 29 U.S.C.A. § 113(c), enacted in 1932, and in the Wagner Act (National Labor Relations Act), 29 U.S.C.A. § 152(9), enacted in 1935, with specific reference to KRS 341.360(1), the statutory section involved in this case. As the definition is quoted in both opinions we shall not again copy it here.

The breadth of the definition in the Norris-La Guardia and Wagner Acts was im-plementary of their fundamental purpose to protect the right of collective bargaining. It was meant as an umbrella. On the other hand, it is argued, the disqualification provision of our unemployment compensation law (KRS 341.360) has a different purpose and calls for a restrictive rather than a broad definition of the term, in keeping with the spirit of unemployment compensation-as distinguished from the objectives of the federal legislation relating to labor disputes. Appellants contend that the words “active progress” connote something more than a mere continuance of the disagreement following resumption of work. They say, in substance, that here were men ready, willing- and able to work but who were out of work, and that the purpose of our unemployment compensation law is to provide benefits under those circumstances. It is a persuasive argument.

Both the Commission and the Franklin Circuit Court found Ward v. Barnes, Ky.1954, 266 S.W.2d 338, to be dispositive of this case, and we do not see how the analogy can logically be avoided. In that case-a dispute arose over the employer’s practice of staggering the work of its tipple employes over 3 shifts. The union called the employes off the job, and a week later work resumed pursuant to a mutual understanding that the tipple would be operated in 2 consecutive shifts. This system resulted in a bottleneck, and the employer found it necessary to lay off some of its mine workers. Thereafter the union withdrew its objection to the 3-shift arrangement, whereupon the controversy was finally terminated. Upholding the Commission and the circuit court in denying unemployment compensation claims of the laid-off miners for the interim period, this court held that the understanding between the union and the employer under which work was resumed with a 2-shift tipple operation was a mere truce or armistice, and not a cessation of the labor dispute.

It seems to us that the basis for disqualification is stronger in this case than it was in Ward v. Barnes. If a dispute is considered to be still in active' progress during a voluntary truce, surely it must be so during an involuntary one.

From the manner in which the terminology of KRS 341.360(1) departs from the standard provision heretofore mentioned as having been generally adopted elsewhere it seems clear that our legislature did not intend the continuing consequences of a labor dispute to affect eligibility for unemployment compensation beyond the moment of its settlement. This was a more liberal provision than most of the other states saw fit to make. Whether the legislature envisaged the further possibility of a temporary suspension or settlement, or what its intention might have been in that respect, we are frank to say we do not know and cannot guess. If, however, "strike” and “labor dispute” were to be regarded as practically synonymous, why did the legislature choose to use both terms?

After its judgment granting the injunction had been affirmed by the United States Supreme Court, the U. S. District Court for the Western District of Pennsylvania entered an ancillary judgment, United States v. United Steelworkers, 39 CCH Labor Cases par. 66, 172, 45 L.R.R.M. 2515, construing the original judgment. Among other provisions, the ancillary judgment recited that (1) while the injunction did not settle the dispute as to the terms and conditions of employment which should apply after the period of the injunction, there was and could be no dispute “with respect to the employment status” of the union members for the period of the injunction, and (2) no union member “could have been unemployed after November 7, 1959, due to the continuation after that date of the dispute between that union” and the employers, “although some members * * * were unemployed after November 7, 1959 due to delays necessarily incident to the resumption of operations subsequent to the termination of the strike pursuant to this Court’s injunction.”

It may be conceded that these provisions of the ancillary judgment were aimed at the unemployment compensation status of the affected union members. The litigation did not, however, embrace any justiciable issue with respect to unemployment compensation, nor were the necessary parties to such an issue before the court. Whatever the court may have thought or desired its judgment to mean in other courts, its effect under the unemployment compensation statutes of the several states was for their courts to determine. In brief, the District Court’s construction with respect to anticipated side effects of its injunction is entitled to weight and respect but is not binding in this proceeding.

Even if we should accept the expository recitations of the ancillary judgment at face value, it is not at all clear that they help to solve this case. The absence of a dispute concerning present status during the injunc-tive period is not inconsistent with the active progress of an antecedent dispute which certainly involved the status that would exist thereafter. The declaration that no union member could have been unemployed after November 7, 1959, "due to the continuation after that date of the dispute” is likewise equivocal insofar as might bear upon our particular statute, because the disqualifying language of KRS 341.360(1) does not require that the unemployment be “due to” a continuation of the dispute. It simply calls for two concurring circumstances, (a) that the labor dispute caused the loss of employment in the first place, and (b) that the same dispute is still in active progress.

In the last analysis, it is unnecessary in this particular case to rely on the definition of “labor dispute” heretofore adopted from the Norris-La Guardia and Wagner Acts. There is no doubt that a labor dispute was in active progress until the injunction was granted. Giving to the terminology of KRS 341.360(1) the meaning we think would be commonly accepted by lawyer and layman alike, it is our conclusion that when all that kept the dispute from taking the form of a strike was the existence of a temporary injunction it was still a “labor dispute” and was “in active progress.”

The judgment is affirmed.


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

text:
    Oscar B. LACKEY et al., Appellants, v. John W. GARNER et al., Appellees.
    Court of Appeals of Kentucky.
    April 19, 1963.
    Morris E. Burton of Johnson & Burton, Frankfort, Charles C. Adams of Adams & Adams, Somerset, for appellants.
    H. K. Spear, Somerset, John B. Breckin-ridge, Atty. Gen., amicus curiae, Walter C. Herdman, Asst. Atty. Gen., Frankfort, for appellees.
   BIRD, Judge.

The General Assembly of Kentucky at its regular session in 1960 enacted into law KRS 118.450(4) which reads as follows:

“Each county shall acquire voting machines meeting the specification of Section 125.040 of the Kentucky Revised Statutes, for each precinct in which such machines are not already in use, no later than the primary election in 1963; provided, however, that (a) counties containing a population of 21,000 or more shall acquire voting machines for each precinct therein prior to the primary election in 1961; (b) counties containing a population of over 13,000 and less than 21,000 shall acquire voting machines for each precinct therein prior to the primary election in 1962; and (c) counties containing a population of 13,000 or less shall acquire voting machines for each precinct therein prior to the primary election in 1963; provided, however, that nothing contained herein shall be construed to prevent a county from acquiring voting machines prior to' the general election in November, 1960.” Emphasis added.

It is claimed in the action that the mandatory provisions of the statute are in violation of Section 147 of the Constitution of Kentucky.

The issue was heard in the Pulaski Circuit Court where the statute was held unconstitutional because of its mandatory provisions. The parties seeking compliance with the statute have appealed.

The pertinent part of Section 147 of the Constitution of Kentucky reads as follows: “Counties so desiring may use voting machines, * * The eminent trial judge construed the foregoing words of the constitution as prohibiting the legislature from enacting its mandate. In this we admit that the trial judge was not without authority. Billiter v. Nelson, Ky., 300 S.W.2d 790.

In the Billiter case this Court placed its construction on the “may” provision of Section 144 of the Constitution of Kentucky, a provision quite similar to the “may” provision of Section 147 involved in this action.

Section 144 provides that counties may have commissioners. An Act of the General Assembly required certain counties to have commissioners. This Court pointed out that the Constitution intended that all counties have an option and held the mandatory requirements of the Act unconstitutional.

It is now the opinion of a majority of the members of the Court that the holding in the Billiter case is too restrictive. The Court agrees that the wording of Sections 144 and 147 provides options which may be exercised by the counties but it does not agree that the wording in either section precludes a mandatory requirement by the General Assembly.

Without legislative action the counties may exercise an option but the constitutional provision does not preclude mandatory action by the legislature.

It is the Court’s conclusion that KRS 118.450(4) does not violate Section 147 of the Constitution of Kentucky.

Other cases in conflict with this opinion are overruled and the judgment of the trial court is therefore reversed. The trial court is directed to enter a judgment in conformity with this opinion.

PALMORE, Judge

(concurring).

The permissive language of Const. § 147 was added by amendment after this court, by a split decision in the case of Jefferson County ex rel. Grauman v. Jefferson County Fiscal Court, 1938, 273 Ky. 674, 117 S.W.2d 918, had held that the legislature could not authorize the use of voting machines. The stated basis for that opinion was that the framers of the Constitution intended to make the paper ballot mandatory. The argument in this case is that the paper ballot is still mandatory unless and until the individual counties choose otherwise. I believe that the result in Jefferson County ex rel. Grauman v. Jefferson County Fiscal Court was unnecessarily restrictive and not in keeping with the sound principles of constitutional construction which, having been given liberal lip service throughout the first half of the opinion, were then dropped like a burlesque dancer’s last fan as the writer skipped lightly off-stage. Be that as it may, however, to say that the great mass of voters knew about that opinion, and in voting on the amendment thereby accepted and affirmed it except as modified by the amendment, is so far removed from the facts of life that its use as an argument is incredible. The fact is that if the people had regarded the paper ballot as fundamental they would never have adopted an amendment permitting voting machines. In both letter and spirit their vote on the amendment nullified Jefferson County ex rel. Grauman v. Jefferson County Fiscal Court.

It is elementary that the legislature, being the direct representative of the people, has the right to enact any legislation not forbidden by the state or federal constitutions. City of Louisville M. H. Com’n v. Public Housing Admin., Ky.1953, 261 S.W.2d 286, and cases collected in West’s Kentucky Digest, Constitutional Law, ®=526. It would appear self-evident that the comparable provisions of Const. §§ 147 and 144 under which counties “may” do certain things on their own initiative, without enabling legislation, are not inconsistent with the power of the legislature to require those things to be done.

MONTGOMERY, Judge

(dissenting).

Section 147 of the Constitution was amended in 1941 by adding “Counties so desiring may use voting machines, these machines to be installed at the expense of such counties.” Provision for the use of secret official ballots in all elections was retained.

Prior to the 1941 amendment it had been held that voting by a machine violated the secret ballot provision of Section 147 and that the legislative Act attempting to authorize voting by machine was unconstitutional as a violation of such provision. Jefferson County ex rel. Grauman v. Jefferson County Fiscal Court, 273 Ky. 674, 117 S.W.2d 918. A learned discussion of the origin and development of the uses of ballots in voting is contained in that opinion.

The adoption of the amendment to Section 147 by the people in 1941 thus authorized the use of voting machines, where such authority had been lacking theretofore. The amendment provides:

“The * * * General Assembly * * * shall pass all necessary laws to enforce this provision, * *

Thus, the authority of the General Assembly stems from the 1941 amendment.

Sovereignty primarily resides in the people. There is reserved to the people of Kentucky, acting through the Legislature, all governmental power not expressly, or by necessary implication, denied them by the Constitution. Jefferson County ex rel. Grauman v. Jefferson County Fiscal Court, 273 Ky. 674, 117 S.W.2d 918; City of Louisville Municipal Housing Commission v. Public Housing Administration, Ky., 261 S.W.2d 286; Chenault v. Carter, Ky., 332 S.W.2d 623. Thus, the action of the people of Kentucky in amending Section 147 must be construed as a grant of authority to the Legislature to permit the use of voting machines in counties so desiring and a direction to the Legislature to pass all necessary laws to carry out such amendment. This constitutes a constitutional limitation or restriction against mandatory legislation requiring all counties to use voting machines. When the people speak through the voice of constitutional amendment on a given subject, the implication is that any other action by the Legislature is prohibited. Otherwise, there would be no need for constitutional amendment. Unless such construction is recognized, the Legislature may pass any kind of legislation not expressly prohibited by the Constitution. This could never have been the intent of the framers of our Constitution who made the constitutional revision and amendment processes so difficult of attainment.

The conclusion to be reached then is that KRS 118.450(4), making it mandatory for all counties to acquire voting machines, is unconstitutional. The legislative amendment exceeds the permissive authority of Section 147 as amended.

Appellants argue that “may” should be considered as “must.” The same contention was made in Scott v. McCreary, 148 Ky. 791, 147 S.W. 903. In rejecting such argument, Hobson, C. J., said:

“The words of a state Constitution are usually selected with great care; and so solemn an instrument should be read as written, unless upon the clearest evidence that the makers of the instrument intended otherwise.”

Clearly, the drafters of the 1941 amendment in making the use of voting machines permissive realized that such was necessary in order to secure the adoption of the amendment by the people. A mandatory provision would undoubtedly have been defeated then. Thus, the intent of those drawing the amendment was for permissive use.

A reading of the pertinent constitutional section discloses that certain things were made mandatory and other things were made permissive. The word “shall” is used seven times and the word “may” is used four times. Such use of these two words clearly indicates that their meanings were understood and that by such use different meanings were intended. I am sure that when “may” was used in Section 147 it was intended to be permissive, which is contrary to the decision in the majority opinion.

Such construction of Section 147 is consonant with good constitutional construction that ordinary, everyday words shall receive their usual meaning. As was said in the Jefferson County case, “Neither legislatures nor courts have the right to add to or take from the simple words and meaning of the constitution.”

This Court construed the word “may” as permissive when used in Section 144 of the Constitution. In Billiter v. Nelson, Ky., 300 S.W.2d 790, a statute making it mandatory that certain counties have the commission form of government was held invalid because the constitutional section used the words “may have,” which were held to be permissive instead of mandatory. The Billiter case and this case are identical in principle. The phrase in Section 147 “so desiring may” more strongly indicates that the use of voting machines was to be a matter of local option in the discretion of the fiscal court.

For these reasons I respectfully dissent. I cannot understand how the majority of this Court can vote for the majority opinion without overruling the Billiter case. It cannot be distinguished. Further, the majority opinion by its construction of the word “may” violates the basic rule of constitutional construction. I am fully aware of the problem concerning voting machines and the desirability of their use, but this does not justify abusing the plain meaning of simple words and violating the Constitution.


author: WILLIAMS, Judge.

text:
    KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION and Earl King, Appellants, v. AMERICAN NATIONAL BANK & TRUST COMPANY, Appellee.
    Court of Appeals of Kentucky.
    April 26, 1963.

      Paul E. Tierney, Clarence E. Powell, Forest Smith, Frankfort, for appellants.
    Marshall Funk, Bowling Green, for ap-pellee.
   WILLIAMS, Judge.

The appellee, American National Bank & Trust Company, commenced renovation of its permanent premises and in order to carry on business as usual moved to another location until the renovation was completed. It was found necessary to employ a guard at the temporary location. Earl King was hired and worked for approximately one year until the Bank returned to its renovated permanent premises and his services were no longer needed. Upon termination of his employment King filed an application for unemployment insurance benefits. The Kentucky Unemployment Insurance Commission determined the claim was valid and that all payments made were to be chargeable to the reserve account of the Bank. The Bank protested the payments and charges on the ground that King had voluntarily quit his most recent work without good cause. An appeal to the Warren Circuit Court resulted in a reversal of the order of the Kentucky Unemployment Insurance Commission. It was held that King voluntarily quit his employment within the meaning of the statutes and that the Bank’s reserve account should be relieved of charges for benefits paid. This appeal results.

The sole issue before us is whether a worker who leaves temporary work upon completion of the job voluntarily quits such work within the meaning of the statutes involved. KRS 341.370(1) provides:

“According to the circumstances in each case, a worker shall be disqualified from receiving benefits or serving a waiting period:
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
“(b) For not less than six nor more than sixteen weeks immediately following the commission of the disqualifying act, if * * *
“(2) * * * (c) He has left his most recent suitable work voluntarily without good cause.”

KRS 341.530(3) provides:

“Notwithstanding the provisions of subsection (2) of this section, benefits paid to an eligible worker and chargeable to an employer’s reserve account under such subsection shall be charged against the pooled account if such worker was discharged by such employer for misconduct connected with his most recent work for such employer, or voluntarily left his most recent work with such employer without good cause attributable to the employment, and the employer within a reasonable time, as prescribed by commission regulation, notifies the division, in writing, of the alleged voluntary quitting or discharge for misconduct.”

The effect of the judgment of the Warren Circuit Court is that an employee voluntarily quits when he is hired for a specific time and quits at the end of the time, for at the beginning he agrees to voluntarily quit at that time. The fact that he stands ready for new employment imposes no obligation on his former employer. But the appellants argue that the employee had no alternative or choice concerning his employment. His job became unnecessary and was abolished by the Bank which was the sole cause of his failure to continue to work.

A similar question was before this Court in Kentucky Unemployment Insurance Commission v. Kroehler Mfg. Co., Ky., 352 S.W.2d 212. In that case the question was whether an employee voluntarily quit his employment by reason of the fact he accepted the provisions of a retirement plan which required him to retire at age 65. We said:

“The purpose of the General Assembly in the enactment of such legislation (1938 Acts, Chapter 50, section 2) was to provide benefits for only those employees who have been forced to leave their employment because of forces beyond their control and not because of any voluntary act of their own.”

It was held that retirement of the employee constituted a voluntary quitting of employment which was not attributable to the employment and the reserve account of the employer should be relieved of any charges for benefits paid to the employee.

At first blush it appears that the reasoning of the Kroehler case will necessarily dictate the result in this one. There is a distinguishable difference between the two however. The statutes dictate that the employee must have voluntarily left his most recent work without good cause attributable to the employment. In Kroehler he agreed to retire and did retire at age 65, thus leaving his work and taking himself out of the labor pool. The work was there to do but he quit. In this case King accepted employment which he knew was temporary but he did not agree to leave the work. When the need to have the work done ceased to exist,'he became unemployed. But had the need for the work continued he would have continued to perform.

Thus it is our opinion that a correct interpretation of the statute is that an employee who accepts a job which he knows ⅛ advance to be temporary does not voluntarily leave when the job ceases to exist. There is language in a New Jersey case, Campbell Soup Company v. Board of Review, etc., 13 N.J. 431, 100 A.2d 287, which sustains that view. That Court said that employees frequently take jobs which employers tell them at the time will engage their services for only a stipulated period. But, even so, the voluntary acceptance of such work does not constitute a voluntary leaving at the end of the agreed time. The New Jersey Court said the leaving was involuntary in the statutory sense.

The appellants also argue that the agreement to quit when the job no longer exists is prohibited by KRS 341.470, which provides that no agreement by a worker to waive, release or commute his rights to benefits shall be valid. The argument is answered in Kentucky Unemployment Insurance Commission v. Kroehler, supra, which holds such an agreement as one for the voluntary termination of employment and does not constitute a waiver.

Judgment reversed.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Rosey BURCHETT and Ollie Burchett, Husband, Appellees. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Maggie BINGHAM and Clabe Bingham, Husband, Appellees.
    Court of Appeals of Kentucky.
    April 26, 1963.

      John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Edmond H. Tackett, Pikeville, for appellant.
    Clifford B. Latta, Prestonsburg, for ap-pellees.
   PALMORE, Judge.

In connection with the reconstruction, of a portion of U. S. Highway 23 some 3 to 4 miles north of Prestonsburg the state highway department brought these proceedings pursuant to KRS 177.081 et seq. to condemn 9.77 acres of land in fee simple. It appeals from a judgment of the Floyd Circuit Court denying it the right to condemn for. the following reason:

“That the petitioner is not authorized to condemn the lands for the use and occupancy thereof and the material for the purposes and under the conditions and limitations set forth in the petition on the grounds that the petitioner has exercised had faith and has abused its discretion. The selection of the property to be taken was not a- practical necessity. The Court has personally viewed the land proposed to be taken and finds that the property was selected as a mere convenience and that there is other land readily available for the specified purpose of a waste area and that the public interest will not be served by appropriating valuable land for the purpose of waste when less valuable land is available to the petitioner -at less cost and equal convenience.”

KRS 177.081(1) specifies that “the condemnor’s decision as to the necessity for taking the property will not be disturbed in the absence of fraud, bad faith, or abuse of discretion.” When the highway department by official order determines that an acquisition is necessary, as it did in these cases, this statute places on the defendant the burden of proving fraud, bad faith or abuse of discretion. Cf. Weiss v. Commissioners of Sewerage, 1913, 152 Ky. 552, 153 S.W. 967. Therefore, the question before us is whether the trial court’s factual determination of bad faith and abuse of discretion was supported by substantial evidence. If not, the finding was “clearly erroneous” under CR 52.01. Byerly Motors, Inc. v. Phillips Petroleum Co. (Ky.1961), 346 S.W.2d 762, 765.

At the place where it is to be reconstructed, U. S. 23 runs near Levisa Fork of the Big Sandy River, a stream noted for the devastation wrought by its sudden and frequent flooding. The space between the two is bottom land lying 10 to 12 feet below the level of the highway. The road is situated along the side of a hill, and high water has caused slippage of the supporting soil. To correct this situation the highway department proposes to move the center of the road farther into the hill, which will necessitate the cutting out and removal of about 130,000 cubic yards of dirt and rock. The land sought to be acquired in these proceedings belongs to two owners and consists of a section of the bottom land reaching from the highway to the river. Though neither the official order of the highway department nor its petition to condemn defines or limits the specific use to which this land is to be devoted, the evidence shows that the immediate purpose of the department, and the sole reason why its district engineer selected it, is to use the land for waste disposal, that is, to deposit on it the 130,000 yards of dirt and rock to be removed from the relocated right-of-way. This will result in bringing the 9.77-acre disposal area up to the level of the highway and several feet above the level of the bottom land that will be left on each side of the property taken.

Bottom land in hill country is, of course, scarce and valuable, and although that is one of the circumstances of this case no one would contend that it is a dispositive consideration on the question of necessity. Whatever the property is worth, if it is taken the law secures to its owners the right of just compensation. With respect to the public interest, obviously the highway department must be allowed a broad discretion. However, if it be conceded for the sake of argument that the public interest is a relevant evi-dentiary factor bearing on the issues of bad faith and abuse of discretion, we observe that the learned trial judge himself pointed out during the hearing that the mere filling in of the low land would not destroy either its utility or its value, commenting as follows: “Well, later on if they decide to use it, which I think ought to be done — there’s no use to waste that much level land in this country. You could put 12 inches of dirt on all kinds of flat rock and you could get a good crop. If it were my land I would like mighty well to have it after the fill is made, and to put 12 or 14 inches of soil on it, level land, it could be used to good advantage in this country.” So the “public interest” argument really is not based on the unnecessary destruction of useful land, but on its transfer to public ownership. As will appear from the ensuing discussion, we do not consider this to be either against the public interest or remotely suggestive of bad faith.

The main thrust of the landowners’ case is that the refusal of the highway department to accept, as a gift, a temporary easement to dispose of the waste material within a boundary different from that chosen by the department gives substance to the claim of bad faith and abuse of discretion. The proposed alternative area embraces a portion of the 9.77-acre site selected by the state that lies adjacent to the existing right-of-way, and extends into a hollow or ravine owned by a third party who joined with the appellees in the offer of a temporary easement. A qualified engineer testified in their behalf to the effect that the alternative area would serve the purpose with no material loss of convenience, but he gave no support to the allegations of bad faith and abuse of discretion. To the contrary, we quote his testimony as follows:

Under cross-examination,
“Q-80 Now you say that this proposed taking by the state is sufficient, and it would accommodate this waste, wouldn’t it?
“A- Yes, sir.
“Q-81 Now, Mr. Onkst [the district engineer] testified here about choosing that spot there. Do you think he used bad judgment or bad faith ?
“A- I see no bad faith. It is the easiest place in that area to get into to serve his purpose.
“Q-82 The easiest place. Then, what are you trying to do? You are just showing that another area could be — ■
“A- I am showing there is another area. I don’t say that this is the easiest area. What I do say about this area isthat it will handle the same amount of yardage, and when it is all taken in it won’t be any further to handle. Now, I am not saying which is the easiest to use.
“Q-83 Actually, the way it is laid out here, it would be easier for them ta come in and dump on the state ?
“A- Oh, that is for sure.
“Q-84 And he didn’t use any bad faith in choosing this, did he ?
“A- Oh, I see where he used no bad faith.
⅜ sjc ⅝ ⅜ ⅜ sjf
“Q-93 Do you think, being an engineer and having worked with a corps, of engineers, that Mr. Onkst made a. wise choice in picking this particular spot?
“A- Oh, I would say for his purpose that he definitely picked the easiest place and the least cost to the state to put it there.
“Q-94 And what you have done is just to show that another spot could be used?
“A- Right.”
And on re-direct examination,
“Q-99 Well, now, in the selection of this site by the state that Mr. Tack-ett asked you about, in your opinion, is that the most convenient site that they selected ?
“A- I would say it is the easiest and best to get in and get out of.
“Q-100 If you were going down there to select a waste area for the department of highways and you wanted to get the easiest possible place you could get to do it, would this be the site you would pick ?
“A- Yes, sir.
“Q-101 And as a matter of mere convenience, if nothing else, this is an ideal spot?
“A- It is. It’s an ideal spot.
“Q-102 But the property which you propose and which is indicated in green on this map, can serve the same pur'pose ?
“A- It can; yes, sir.”

The district engineer admitted it was not absolutely necessary to choose this particular plot of land, but that he did so because he thought it was the most logical and convenient place for the purpose. In making the selection he had no other purpose in mind, and at that time did not know who owned the land. He admitted also that he had heard rumors that the property would later be used as the location of a district highway garage, and that the subject had been discussed within the department, but he did not know of any decision to that effect. It was developed through his testimony that quite often in awarding highway construction contracts the department requires or permits the contractor to assume the burden of waste disposal, and that eyqn when that is not the case there are many instances in which temporary easements, rather than the fee title, are acquired.

The project in question is to be financed 50% by the state and 50% by the United States. Hence it was necessary that the disposal site, and its acquisition in fee, be approved by a federal representative. This acquisition was so approved. Whether the United States would approve the alternative plan suggested by the owners, or even the acquisition of a temporary easement, is a matter of pure speculation. There was no evidence in that respect. Certainly, however, there is manifest good reason for acquisition of the fee simple title, if, as appears distinctly possible, the value of the land will be enhanced by filling it to the level of the highway. Even with a cost-free land acquisition, the expense of moving the waste material would represent a substantial investment of funds that would be lost and beyond recoupment unless the acquisition were in fee.

In this whole case we do not find one iota of evidence to support the claim of bad faith or abuse of discretion. It makes no difference that the department could have chosen another location or another plan for waste disposal. Probably any highway could be routed some other way. The state cannot reasonably be compelled to submit its administrative judgments to battle in every county court house. Cf. Davidson v. Commonwealth ex rel. State Highway Commission, 1933, 249 Ky. 568, 61 S.W.2d 34, 37. And if it be conceded that when the immediate purpose of the acquisition has been completed the state will be the owner of a valuable piece of property, so what? Is long-range planning by a governmental agency charged with the expenditure of astronomical sums of money to be regarded as against the public interest? Is the possibility that it may contemplate getting further use out of the property evidence of bad faith? On the question of “public necessity,” is the highway department to be denied the exercise of prudence and foresight? Surely the answer is self-evident.

The judicial power of government should not be invoked against the discretion of an agency of the executive branch in determining what is in the public interest, including what particular property is needed in connection with a valid public project, unless there is such a clear and gross abuse of that discretion as to offend the guaranty of Const. § 2 against the exercise of arbitrary power.

The judgment is reversed.

      . Thé right to procure an excess quantity of land in contemplation of reasonably anticipated future necessity provides an example. See McGee v. City of Williamstown, Ky.1958, 308 S.W.2d 795; Pike County Board of Education v. Ford, Ky.1955, 279 S.W.2d 245, 248.


text:
    JAMES B. BEAM DISTILLING COMPANY, Appellant, v. DEPARTMENT OF REVENUE, Appellee.
    Court of Appeals of Kentucky.
    March 1, 1963.
    Rehearing Denied May 24, 1963.
    Millard Cox, Louisville, for appellant.
    William S. Riley, Paul D. Ross, Hal O. Williams, Dept, of Revenue, Frankfort, for appellee.
   STEWART, Chief Justice.

This is an appeal by James B. Beam Distilling Company from a judgment of the Franklin Circuit Court upholding a ruling of the Kentucky Tax Commission, which denied appellant’s claim for a refund of taxes on distilled liquors. The sum of $5107.09 was paid to the Department of Revenue between September 1, 1959, and April 1, 1960, under the provisions of KRS 243.680(2), which reads:

“(a) No person shall ship or transport or cause to be shipped or transported into the state any distilled spirits from points without the state without first obtaining a permit from the department and paying a tax of ten cents on each proof gallon contained in the shipment.
“(b) No railroad company or express company shall receive for shipment or ship into this.state any package or receptacle containing distilled spirits unless a copy of the permit, showing that payment of required taxes has been made, accompanies the shipment.
“(c) The permit shall be in the form prescribed by the department, and all shipments into the state shall be governed by the regulations promulgated by the department.”

Appellant’s position is this statute is unconstitutional because it conflicts with article 1, section 10, clause 2 of the Constitution of the United States, which reads:

“No State shall, without the Consent of the Congress, lay any Imposts, or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws; and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.”

Appellant is the sole distributor in the United States of a brand of Scotch whisky called “Gilbey’s Spey Royal.” The whisky is produced in Scotland, received by appellant at its Kentucky plant at Clermont in Nelson County by direct shipment from Scotland, and then sold by it to its customers in the domestic markets throughout this country. The record shows, which is is not disputed, that this whisky is an import; that it has been brought in from another country; and that the tax was collected while the whisky remained in unbroken packages in the hands of the original importer and prior to resale or use by the importer.

Before appellant can bring this whisky into Kentucky, it must obtain a permit pursuant to KRS 243.680(2) (c) ; and, as a condition precedent to the issuance of the permit, it must pay a tax of 10^ per proof gallon on the whisky to be imported.

Since the case of Brown v. Maryland, 12 Wheat. 419, 25 U.S. 419, 6 L.Ed. 678, the United States Supreme Court has held that the above-quoted constitutional provision, known as the “import-export clause,” protects goods imported for sale while they are in their original packages and have not been sold or used by the importer. “Use” by the importer of such goods does not include their storage preparatory to sale. Storage does not cause the goods to lose their character as imports. This is true even if the goods, such as the liquor in the case at bar, will only be sold for delivery in Kentucky. See State ex rel. Morton Co. v. Board of Review, City of Milwaukee, et al., 15 Wis.2d 330, 112 N.W.2d 914.

Even though the tax is denominated as something else, such as an occupational tax (Brown v. Maryland, supra), an excise tax (Richfield Oil Corporation v. State Board of Equalization, 329 U.S. 69, 67 S.Ct. 156, 91 L.Ed. 80), or an ad valorem tax (Hooven & Allison v. Evatt, 324 U.S. 652, 65 S.Ct. 870, 89 L.Ed. 1252), if, in fact, it is a tax on imports, as that term is interpreted by the Supreme Court of the United States, the levy is invalid. The tax in the case at bar is an occupational or license tax in form, but appellant maintains it is nevertheless a tax on imports in fact.

Appellee argues that the Twenty-first Amendment to the Constitution of the United States has changed the rule regarding a state’s right to tax imports. Section 2 of this amendment reads: “The transportation or importation into any State or Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” This point has been dealt with by courts of other jurisdictions.

In the case of Parrot & Co. v. San Francisco, 131 Cal.App.2d 332, 280 P.2d 881, the City of San Francisco levied and collected an ad valorem property tax on some imported liquor which was still in its original unbroken packages, was stored in separate lots in warehouses and was undisposed of by the original importer by consignment or sale. That court held the second section •of the amendment did not repeal the import-export clause of the Constitution of the United States insofar as intoxicating liquors are concerned. The opinion states:

“ * * * [T]he two sections (of the amendment), in their application to foreign imported liquor, are quite clearly complementary. The import-export •clause permits the federal government •exclusively to regulate and tax all imports from foreign lands, including liquors, as long as they remain imports, but when the importation is completed and the liquor is being transported or imported into one of the states ‘for delivery or use therein’ the power of the state attaches. The obvious purpose of the Twenty-first Amendment was to preserve the intrastate jurisdiction of the states so as to grant constitutional protection to those states desiring to remain or to become ‘dry.’ ”

That court concluded such imported liquor was not subject to the city’s ad valorem tax. A similar ruling was handed down by the Supreme Court of Wisconsin in State v. Board of Review, City of Milwaukee, supra, where the City of Milwaukee undertook to assess for the purpose of city taxation certain wines and liquors imported directly from various foreign countries. That court held that the assessment on the wines and liquors still in the original packages, unconsigned and unsold, violated the import-export clause and was therefore void.

Appellee contends it has authority to impose the tax under the Webb-Kenyon Act. See U.S.C.A., Title 27, Chapter 6. We do not agree. The two sections of this Act bestow upon the several states the power either to prohibit the transportation of any and all liquors into a state, if that particular state happens to be “dry,” or to regulate the traffic in liquors within a state, if that particular state is “wet.” Clearly this Act does not by its language confer upon a state the right to tax liquors in contravention of the import-export clause of the federal Constitution; furthermore, it was not the purpose of this Act to accomplish that purpose. The case of Carter v. Virginia, 321 U.S. 131, 64 S.Ct. 464, 88 L.Ed. 605, relied upon by appellee to sustain its right to levy the tax under consideration, simply does not, in our view, uphold any such right or imply in any wise that the import-export clause of the Constitution of the United States may be ignored where the taxation of direct imports of foreign origin is involved.

It cannot be said the tax in question is an inspection measure, as appellee seems to suggest. Neither KRS 243.680 (2), nor the regulation implementing this statute, provides for actual inspection of the imported whisky. Actual inspection must be provided for in order that the statute may come under the exception noted in the import-export clause of the federal Constitution. See 29 Am Jur., Inspection Laws, sec. 4, pp. 369-370. Kentucky makes no independent inspection of imported distilled spirits, but accepts the inspection made by the Alcohol & Tobacco Tax Division of the ¡Bureau of Internal Revenue. See KRS ,244.230.

In the final analysis, we conclude the language of KRS 243.680(2) makes it plain the incidence of the tax is the act of transporting or shipping the distilled spirits under consideration into this state. It is our opinion, under the facts presented and under the authority of the Wisconsin and the California cases, extensively referred to above, and the legal principles of both of which we adopt as the law of Kentucky, the whisky is not subject to the tax collected under KRS 243.680(2). It follows that appellant is entitled to the relief sought, namely, a refund of the amount heretofore paid.

Wherefore, the judgment is reversed and remanded for further proceedings not inconsistent with this opinion.