author: DOERNER, Commissioner.

text:
    Richard FARRAR, John Allers, Laverne Kelly et al., Individually, and Also for and on Behalf of All Other Members of Independent Union of Paper Workers, an Unincorporated Labor Organization, Plaintiffs-Appellants, v. Paul E. MESSMER, James B. Rhine, Charles Lesley, et al., Individually, and as Representatives, Officers, and Agents of Independent Union of Paper Workers, an Unincorporated Labor Organization, Defendants-Respondents.
    No. 31329.
    St. Louis Court of Appeals. Missouri.
    June 14, 1963.
    Motion for Rehearing or for Transfer to Supreme Court Denied July 12, 1963.

      Schuchat, Cook & Werner, Charles A. Werner, St. Louis, for plaintiffs-appellants.
    Tralles, Hoffmeister & Gilpin, Carroll C. Gilpin, Levin & Weinhaus, S. Sheldon Weinhaus, Morris J. Levin, St. Louis, for defendants-respondents.
   DOERNER, Commissioner.

Plaintiffs, twenty-three in number, appeal from an order dismissing their petition with prejudice.

Their petition is in three counts, and for the purpose of this review, each will be considered separately. In Count I plaintiffs allege that they are employees of Cupples-Hesse Company, Division of St. Regis Paper Company, in St. Louis, and are members in good standing of the Independent Union of Paper Workers, an unincorporated labor organization, hereafter referred to as “Independent Union”; that they sue as members of a class, the majority of the members of the Independent Union, which they fairly and adequately represent; that the defendants are the last elected officers and members of the Executive Committee of the Independent Union; that the Independent Union is a local labor organization, founded about 1956, which formerly represented the employees in St. Louis working at the American Seal-Kap Corporation and Cupples-Hesse Company; that in the Spring of 1961 American Seal-Kap moved its operations out of town and that on or about July 14, 1961, in an election conducted by the National Labor Relations Board to determine whether the Independent Union, the International Brotherhood of Bookbinders, AFI^CIO, or neither, would be the exclusive bargaining representative of the production and maintenance employees of the Cupples-Hesse Company, said employees chose the International Brotherhood of Bookbinders (hereafter called the Bookbinders); and that on July 24, 1961, the NLRB certified the Bookbinders as the exclusive bargaining agent.

Plaintiffs further allege in Count I that “Following the certification * * * ” (no date is stated) four members in good standing of the Independent Union, pursuant to Article XI of the Constitution and By-Laws of the Independent Union (attached to the petition as Exhibit B), submitted the following proposed amendments of the Independent Union’s Constitution and By-Laws to its Executive Committee:

‘Be it resolved that all funds, moneys, records, books, and other properties of the Independent Union of Paper Workers be transferred to the Envelope Division of Local 18, International Brotherhood of Bookbinders, AFL-CIO.
“ ‘Be it resolved that we herewith dissolve and abandon the Independent Union of Paper Workers.’ ”

That pursuant to Article III, Section 7 of such Constitution the first regular membership meeting after the July 14, 1961 election was the September meeting, scheduled for the first Tuesday of September; that subsequent to the submission of the foregoing amendments to the Executive Committee and prior to the September meeting, “ * * the Executive Committee took no action on said Amendments, even though, on information and belief, the Executive Committee met at least two times prior to the regular membership meeting in September after said submission”; that at the regular membership meeting held on September 5, 1961, “ * * * the following Amendments (to the Constitution and By-Laws) were submitted to the members present at said meeting, said Amendments supported by a petition signed by one-third (⅛) of the membership of the Independent Union, to-wit: 109 of the 233 members in good standing:

“ ‘Be it resolved that all funds, monies, records, books and other properties of the Independent Union of Paper Workers be transferred to the International Brotherhood of Bookbinders, AFL-CIO effective September 5, 1961, provided, however, that any person who is not a member of the International Brotherhood of Bookbinders or has not submitted an application to become a member of the International Brotherhood of Bookbinders can obtain his pro rata share of the aforesaid funds, monies, and other properties.
“ ‘Be it resolved that we herewith dissolve and abandon the Independent Union of Paper Workers.’

Both of the Amendments were adopted by a majority of the members present in a secret ballot vote.”

Plaintiffs further plead in Count I that on September 6, 1961, in conformance with the amendments adopted at the meeting held on September 5, 1961, they demanded of defendants that defendants transfer the funds, moneys, books and other properties of the Independent Union to the Bookbinders, subject to the provision that any member of the Independent Union who was not a member of or who had not submitted an application for membership to the Bookbinders could obtain his pro rata share of the assets of the Independent Union; that the defendants refused to transfer the assets of the Independent Union to the Bookbinders; that on September 8, 1961, and prior to the filing of plaintiffs’ petition, 163 members in good standing of the Independent Union individually and collectively adopted and ratified “the resolutions” passed at the September 5, 1961, meeting of the Independent Union by signing a petition to that effect, which petition was marked Exhibit A, attached to plaintiffs’ petition, and so declared; that the defendants have custody of the assets of the Independent Union, which on information and belief plaintiffs allege consist of one tape recorder machine, one movie projector and screen, one public address system, one mimeograph machine, and cash, bank accounts or savings certificates in an estimated amount of $12,000; that defendants have secreted said property and refused to reveal to plaintiffs where it is located; that plaintiffs are in danger of losing said property by dissipation or depreciation; that their damages are conjectural; and that they have no adequate remedy at law.

In their prayer in Count I plaintiffs ask that: “ * * * the Court direct and order defendants to carry out the Amendments adopted at the membership meeting of September 5, 1961 * * * ”; for such damages as the court might find has accrued to the property by dissipation or depreciation; for general relief; and for their costs.

Exhibit B, attached to the plaintiffs’ petition, is titled “Constitution and ByLaws of Independent Union of Paper Workers.” Pertinent provisions will be referred to where appropriate, but for our immediate purpose the only provision we need notice is “Article XI — Amendments to By-Laws,” which is as follows:

“Section 1. Amendment to these By-Laws may be suggested by three members in good standing of the Union, the same to be submitted to the Executive Committee in writing.
“Section 2. Such amendment or amendments shall be acted upon by the Executive Committee and a majority vote of said Executive Committee snail be necessary to approve such amendment or amendments.
“Section 3. After approval by the Executive Committee the same shall be considered at the next regular or special meeting of the Union. Notice of such meeting shall be given to the membership at least three days prior thereto, which notice shall set out the proposed amendment. A majority vote by secret ballot of the members present at said meeting shall be necessary to adopt such amendment or amendments.
“Section 4, Should an amendment be rejected by the Executive Committee it may be resubmitted at the next regular meeting of the Union, provided it is supported by a petition signed by one-third (i/j) of the membership.”

Defendants moved to dismiss all counts of plaintiffs’ petition, their primary ground being that none of them state a claim upon which relief can be granted. Presumably after a hearing thereon (while the transcript does not so state, no contention to the contrary is raised on appeal) the Court sustained defendants’ motion to dismiss, and after an unsuccessful motion to set aside that order or in the alternative for “a new trial,” plaintiffs appealed.

Learned counsel for both parties, by agreeing in their excellent briefs on certain principles of law and matters of fact, have markedly narrowed the area of disagreement. Thus both agree that the relationship existing between a voluntary labor organization and its members is contractual, and that the constitution and by-laws, if any, constitute the contract, which the court will enforce, if it is not immoral, contrary to public policy or the law of the land, or unreasonable. Junkins v. Local Union No. 6313, Communication Workers of America, 241 Mo.App. 1029, 271 S.W.2d 71; Robinson v. Nick, 235 Mo.App. 461, 136 S.W.2d 374; Hall v. Morrin, Mo.App., 293 S.W. 435. Both further agree that the Constitution and By-Laws of the Independent Union did not mention or refer in any way to the subject of dissolution, and that there was, of course, no provision for the disposition of its assets upon dissolution. Lastly, both agree, expressly or tacitly, that the Independent Union could be dissolved and its assets transferred or distributed.

The apparent scope of our review may be further narrowed by certain general observations. The first of these is that the parties do not quibble about the form of the propositions submitted to the Executive Committee, or those voted on at the membership meeting of September 5, 1961; although in truth both sets of proposals more closely resemble resolutions than they do amendments to the Constitution and By-Laws. Secondly, it will be perceived that the proposal concerning the disposition of the property of the Independent Union which was submitted to the Executive Committee differs materially from that submitted to and voted upon by the members at the regular meeting of September 5. Under the former all assets are to be transferred to the Bookbinders while under the latter a member of the Independent Union who is not a member of the Bookbinders or has not submitted an application for membership to it is to receive his pro rata share of the Independent Union’s funds. Thirdly, while the plaintiffs plead in the body of their petition that they had submitted the first set of proposals to the Executive Committee, and that the Executive Committee took no action thereon prior to the membership meeting, it will be noted that they do not seek to establish the validity of the first set of proposals. The only relief for which they pray is that “ * * * the Court direct and order defendants to carry out the Amendments adopted at the membership meeting of September 5, 1961, as set forth herein-above in paragraph 5, and as ratified and adopted by a majority of the members of the Independent Union in Exhibit A of this petition. * * * ”

Lastly, throughout their brief defendants refer to the plaintiffs and those whom plaintiffs represent as the “withdrawing majority” and treat them as having withdrawn from membership in the Independent Union. If this was in fact the case the controversy would be easily resolved, for as defendants point out in their brief, it has been repeatedly held that in the absence of a contrary provision in the constitution or by-laws, the ownership of the property or funds of a voluntary association is vested in the members jointly, or held by the officers in trust for the membership; that a member does not have a severable right to any of its property or funds; and that upon his withdrawal or lawful expulsion the member loses all his rights in such property or funds of the association. But there is nothing in plaintiffs’ petition which supports the view that plaintiffs and those they represent have withdrawn from the Independent Union. In fact, their allegations are to the contrary, for throughout their petition they refer to themselves as “ * * * members in good standing of the Independent Union of Paper Workers * * Nor do they allege that they are members of the rival labor union, the Bookbinders; and even if we were to assume, from the objective of their action, that such was the case, it would not necessarily follow that they had thereby withdrawn from the Independent Union. There is nothing in the Constitution and By-Laws of the Independent Union which forbids dual unionism. See Bentley v. Hurley, 222 Mo.App. 51, 299 S.W. 604. In determining the sufficiency of plaintiffs’ petition to state a claim upon which relief can he granted we must accept as an allegation of an ultimate fact plaintiffs’ averments that they are members in good standing of the Independent Union.

Having eliminated those matters which we need not consider, we turn to those remaining for determination. We said earlier that both parties agree, expressly or tacitly, that the members could by proper action effect the dissolution of the Independent Union and the distribution of its funds. They differ, however, and sharply, on whether the procedure followed by the plaintiffs in the instant case was lawful and proper under the Constitution and By-Laws of the Independent Union. Plaintiffs forcefully argue, first, that the proposals adopted at the membership meeting of September 5 were presented and adopted in accordance with Article XI of the Constitution and By-Laws which governs amendments. And second, that in the absence of any specific provision to the contrary, the adoption of such proposals to dissolve and to distribute the property and funds by the vote of a majority of the members was valid and sufficient, citing Wrightington on The Law of Unincorporated Associations and Business Trusts, 2nd Ed., Sec. 69, p. 420; Harker v. McKissock (App.Div.) 10 N.J.Super. 26, 76 A.2d 89, and other authorities. Defendants contend, with equal vigor, that such proposals were not adopted in accordance with the requirements of Article XI; and that propositions to dissolve and to distribute the property and funds could be adopted only by a unanimous vote of the members, citing Harris ex rel. Carpenters Union, etc. v. Backman, 160 Or. 520, 86 P.2d 456; Liggett v. Koivunen, 227 Minn. 114, 34 N.W.2d 345, and other cases.

Because of the conclusion we have reached as to the first controverted issue we need not consider the second. Regardless of the differences in their views regarding the number of votes required to effect the dissolution of a voluntary association, all of the authorities agree that the measure, whether an amendment or a resolution, must be adopted in accordance with the organic law of the association. In the instant case the Constitution and By-Laws of the Independent Union requires that an amendment must first be submitted in writing to and acted upon by the Executive Committee. If the Executive Committee approves the amendment it is then to be considered at the next regular or special meeting of the Union, after due notice to each member. It is only when the Executive Committee rejects a proposed amendment that it may be submitted to the membership, provided it is supported by a petition signed by at least one-third of the members. Putting aside the question of lack of notice when an amendment is presented to the meeting on petition of one-third or more of the members, after rejection by the Executive Committee (see Swaine v. Miller, 72 Mo.App. 446) it is apparent from plaintiffs’ petition that the first proposal, to distribute the property and funds of the Independent Union in the manner described therein, has never been submitted to the Executive Committee, much less been rejected by it.

As to the proposal to dissolve, while it has been submitted to the Executive Committee, that body has never rejected it, and absent such rejection it could not be presented at the meeting even though supported by a petition signed by one-third or more of the members. Plaintiffs do not charge any fraud or bad faith on the part of the Executive Committee, nor do they allege that it would have been a vain and useless act to have awaited the action of the Executive Committee. Robinson v. Nick, 235 Mo.App. 461, 136 S.W.2d 374; Junkins v. Local Union No. 6313, C. W. A., supra. Nor do plaintiffs charge that the Executive Committee refused to act, or that it was engaging in dilatory tactics. All that they plead, on information and belief, is that the Executive Committee met at least twice between the time when the proposals were submitted to it and September 5, when the meeting was held, and “took no action” on the proposals. This is a far cry from a charge of an arbitrary or capricious refusal to act. Nor is it to be necessarily inferred that the Executive Committee was guilty of procrastination. In fact, it is impossible to ascertain from plaintiffs’ petition when plaintiffs submitted the first set of proposals to that body. The only reference to when such action was taken by plaintiffs is that it was “Following the certification * * * ” of the Bookbinders by the NLRB, which may have been at any time between July 24, when such certification was made, and September 5, when the regular meeting was held.

From what we have said we believe it is evident that the plaintiffs’ proposed amendments are void because they were not adopted in accordance with the organic law of the Independent Union. Hall v. Morrin, Mo.App., 293 S.W. 435; Froelich v. Musicians Mut. Ben. Ass’n, 93 Mo.App. 383; Kuhl v. Meyer, 42 Mo.App. 474. It follows that the court’s action in refusing to enforce them and in dismissing Count I of plaintiffs’ petition was correct.

In Count II of their petition plaintiffs incorporate by reference the matters pleaded in Count I, and pray that in the event the court should not grant the relief prayed in Count I “then as an alternative but secondary prayer for relief, plaintiffs pray that the court enter its order directing all of the money and property of the Independent Union be distributed to the members in good standing of the Independent Union, as of the date of the filing of this suit, on a pro rata basis, each member to receive an equal share of said money and of the monetary proceeds of said property; * * Thus the plaintiffs seek a judicial dissolution of the Independent Union and the distribution of its property and funds. The sole argument advanced in support of the cause of action attempted to be pleaded in Count II, as stated in plaintiffs’ brief, is that “ * * * When the employees of Cupples-Hesse Company rejected and voted out the Independent Union as their exclusive collective bargaining representative, their action set up a failure or frustration of the stated purposes for which the organization had been formed in 1956. Since the American Seal-Kap Corporation had moved its operations out of St. Louis in the spring of 1961, with the rejection of the Independent Union at Cupples-Hesse, the Independent Union no longer represented for collective bargaining purposes any employees in any plant.”

It is true that a court of equity has jurisdiction to decree the dissolution of a voluntary association and to order the distribution of its assets where it clearly appears that its operations have been abandoned by the common consent of its members and it is apparent that the objects and purposes for which it was formed can no longer be carried out. But equity will not dissolve such an association where there remain a sufficient number of members, even though they be a minority, who are ready and willing to continue its operations and execute the objects and purposes for which it came into existence. Kuehl v. Meyer, 50 Mo.App. 648; Kuhl v. Meyer, 42 Mo.App. 474; 7 C.J.S. Associations § 9, pp. 28-30; 4 Amer.Jur., Associations and Clubs, Sec. 54, p. 490. The weakness in plaintiffs’ position is in assuming that in losing one battle the Independent Union thereby lost the war. The loss of bargaining rights of the Cupples-Hesse employees was undoubtedly a serious blow to the Independent Union but it is not necessarily a fatal one. It is apparent from the figures given in plaintiffs’ petition that a substantial number of its members, ample to carry out its purposes and functions, remain loyal to it. There is nothing to prevent them from organizing the employees of other employers. For that matter, there is nothing to prevent them from continuing to do battle with the Bookbinders by recapturing the allegiance of those who have currently allied themselves with that organization, and, at the proper time, petitioning for another representation election. 29 U.S.C.A. § 159(c) (3). It is obvious that the facts alleged fall far short of those necessary to induce a court of equity to decree the dissolution of the Independent Union and that Count II was therefore properly dismissed.

In paragraph one of Count III of their petition plaintiffs again incorporate by reference the matters alleged in Count I, and, in addition, in the succeeding paragraphs plead “2. Since the time when it was organized the Independent Union has been collecting dues from plaintiffs at an estimated rate in excess of $8,000 per year. 3. Defendants, particularly during the period of the last two years, have failed and refused to provide plaintiffs with an adequate accounting of the total amount of dues collected by the Independent Union. Defendants have further failed and refused to provide plaintiffs with a full and adequate explanation and accounting of disbursements made from the assets of said union. 4. On information and belief, defendants have made or permitted expenditures or disbursements from the assets of the Independent Union without securing authorization for such expenditures and disbursements in accordance with the Constitution of the Independent Union or from the membership of the Independent Union. 5. Said receipts and disbursements by the Independent Union are of a complicated nature. 6. All of defendants stood in a fiduciary relationship to said Independent Union and to plaintiffs, as members of said Union.” In their prayer plaintiffs ask that the court enter an order and decree “requiring defendants, and each of them, to account to plaintiffs for all of their acts with respect to money and property of the Independent Union"; that the court enter judgment against defendants for any money or property unaccounted for, and for any unauthorized disbursements; for general relief; and for their costs.

Plaintiffs contend that the court erred in dismissing Count III because the usual and proper procedure in a suit for an accounting is to first hear and determine the question of whether or not the petitioner is entitled to an accounting, and then to enter an interlocutory decree so finding or a decree denying the relief sought, citing Adams v. Adams, Mo., 294 S.W.2d 18 and Ewalt v. Hudson, Mo.App., 223 S.W.2d 132. That is undoubtedly the rule if the petition states a claim upon which the relief sought can be granted. But a petition for an accounting, like any other petition, must contain facts showing that the pleader is entitled to the relief prayed, not mere conclusions. Dahlberg v. Fisse, 328 Mo. 213, 40 S.W.2d 606; Young v. Southwestern Bell Telephone Co., 318 Mo. 1214, 3 S.W.2d 381; Sandwich Mfg. Co. v. Bogie, 317 Mo. 972, 298 S.W. 56. We are not unmindful of the rule that in determining the sufficiency of a petition to state a claim upon which relief can be granted, the averments are to be given a liberal construction and the petition accorded those reasonable inferences fairly indulged from the facts stated. Zuber v. Clarkson Const. Co., 363 Mo. 352, 251 S.W.2d 52; Royster v. Baker, Mo., 365 S.W.2d 496. However, “ * * * The conclusions of the pleader are not to be considered in determining whether plaintiffs have stated a cause of action, * * * because the averment of a legal conclusion is not a statement of an issuable fact and is to be treated as no statement at all.” Goodson v. City of Ferguson, Mo., 339 S.W.2d 841, 845; Royster v. Baker, supra.

The basic allegations of plaintiffs’ claim appear in paragraphs 3 and 4. It will be noted that plaintiffs do not charge that the defendants refused to render any accounting of receipts and disbursements. What they allege is that the defendants failed and refused to provide “an adequate accounting” and a “full and adequate explanation and accounting”. The effect of these allegations, of course, is that the defendants did render an accounting, but that in the opinion of the plaintiffs it was not full and adequate. In what respect the accounting rendered by defendants failed to meet the unknown standards established by plaintiffs is not stated, and is left to speculation and conjecture. Obviously such allegations are but mere conclusions of the pleader, to be disregarded in determining whether a claim upon which relief may be granted has been stated in the petition.

In that connection it is to be particularly noted that plaintiffs do not refer to or attempt to plead a cause of action as authorized by the Labor-Management Reporting and Disclosure Procedure Act of 1959, 29 U.S.C.A. § 431. That Act requires every labor organization to file annually with the Secretary of Labor a financial report showing the assets and liabilities of the union at the beginning and end of its fiscal year; receipts of any kind and the source thereof; the salary, allowances and disbursements to each officer and employee receiving more than $10,000 in the aggregate per year; the direct and indirect loans made to any officer, employee or member which aggregated more than $250 during the year; any other direct and indirect loans; and “other disbursements made by it including the purposes thereof,” in such categories as the Secretary may prescribe. Sec. 431 (b). Paragraph (c) of that section provides that “Every labor organization required to submit a report under this subchapter shall make available the information required to be contained in such report to all of its members, and every such labor organization and its officers shall be under a duty enforceable at the suit of any member of such organization in any State court of competent jurisdiction or in the district court of the United States for the district in which such labor organization maintains its principal office, to permit such member for just cause to examine any books, records, and accounts necessary to verify such report. * * * ” If these defendants have failed and refused to comply in every respect with the requirements of that Act it would have been a relatively easy matter for the plaintiffs to state in what manner defendants violated or were derelict in their statutory duties.

A similar infirmity is evident as to paragraph 5 of Count III. The charge that the defendants have made or permitted disbursements from the assets of the Independent Union without securing authorization for such expenditures and disbursements “in accordance with the Constitution of the Independent Union or from the membership of the Independent Union” is likewise a mere conclusion. No facts are alleged as to what authorization, whether of the membership or otherwise, these defendants were required to obtain before making or countenancing disbursements. No provision of the Constitution and ByLaws is pointed to which specifies the authorization required. In truth, the organic law of the Independent Union, as contained in the Constitution and By-Laws attached to plaintiffs’ petition, shows that these defendants as the officers and members of the Executive Committee are therein given full authority to disburse the funds of the Union for legitimate purposes without securing the authorization of any other body, or of the membership. And it is to be borne in mind that plaintiffs do not allege, as in Robinson v. Nick, 235 Mo.App. 461, 136 S.W.2d 374, that defendants have misappropriated the funds of the Independent Union or diverted them to their own use and benefit.

We likewise regard as a conclusion the allegation in paragraph 5, standing alone, that, “Said receipts and disbursements by the Independent Union are of a complicated nature.” It follows that for the failure to allege facts showing that the plaintiffs are entitled to an accounting Count III was properly dismissed.

It is the recommendation of the Commissioner that the judgment be affirmed.

PER CURIAM.

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

WOLFE, Acting P. J., ANDERSON, J„ and JACK P. PRITCHARD, Special Judge, concur.

      . Thadeus Kosciuszko Society v. Polish Home Ass’n, Mo.App., 218 S.W.2d 811; Bentley v. Hurley, 222 Mo.App. 51, 299 S.W. 604; Missouri Bottlers’ Ass’n v. Fennerty, 81 Mo.App. 525; McRoberts v. Moudy, 19 Mo.App. 26; 87 C.J.S. Trade Unions § 38, pp. 827-828; 4 Amer.Jur., Associations and Clubs, Sec. 33, p. 476.

      . See also in that regard Kuhl v. Meyer, 42 Mo.App. 474; and McRoberts v. Moudy, 19 Mo.App. 26.

      . Wrightington, supra; Hall v. Morrin, Mo.App., 293 S.W. 435; Froelich v. Musicians Mut. Ben. Ass’n, 93 Mo.App. 383; Kuhl v. Meyer, supra; 7 C.J.S. Associations § 9, p. 27; 4 Amer.Jur., Associations and Clubs, Sec. 55, p. 490.


source: Caselaw Access Project

author: GRIFFIN, Justice.

license: Public Domain

text:
    The STATE of Texas, Relator, v. Honorable Owen GILES et al., Respondents.
    No. A-9475.
    Supreme Court of Texas.
    June 12, 1963.
    Rehearing Denied July 10, 1963.
    Waggoner Carr, Atty. Gen., Austin. Robert C. Patterson, T. B. Wright, Leslie King, Wm. H. Pool, Jr., and David R. Thomas, Asst. Attys. Gen., for relator.
    Mike McKool, McKool & McKool, Locke, Purnell, Boren, Laney & Neely, Dallas, for respondents.
   GRIFFIN, Justice.

The State filed with the Judge of the County Court at Law No. One of Dallas County, Texas, a petition to condemn for highway purposes, property situated in Dallas County, Texas, and belonging to J. B. Lapsley and wife, Allie N. Lapsley. This petition was in compliance with Articles 3264 and 1970-3, Vernon’s Ann.Civil Statutes. The Judge appointed three special commissioners, who, after taking proper oaths, set a time and place for a hearing and issued and caused to be served notices of hearing to the interested parties in accordance with said Article 3264. The hearing before the special commissioners was set for February 14, 1963. On February 12, 1963, respondents, J. B. Lapsley and wife, filed an action in the 68th Judicial District Court of Dallas County, Texas, presided over by respondent, the Honorable Owen Giles, complaining that relator and its agency, the State Highway Commission of Texas, was proceeding with the condemnation with Leonard Cowley, who they allege is not a disinterested freeholder, serving in such proceeding as a special commissioner. They contend that the proceeding will be void should Cowley continue as a special commissioner. They also contend that the impending condemnation proceeding has placed a cloud on their property sought to be condemned. Respondent Judge issued a temporary restraining order commanding the relator and its attorneys, agents and employees to refrain from participating in the aforesaid hearing before the special commissioners until ordered to do otherwise. Relator, its agents, servants or representatives, were also directed to appear before Respondent Judge on February 22, 1963, to show cause why said temporary restraining order should not be continued in force as a temporary injunction. On February 14, 1963, Respondent Judge overruled relator’s motion to dismiss the said cause now pending in the 68th Judicial District Court and to dissolve said restraining order.

A hearing before the special commissioners was held on February 15, 1963, at which no one appeared or participated in as either an attorney or employee of relator. This hearing was recessed until February 19, 1963. The commissioners issued subpoenas to compel certain of the attorneys for relator and an employee of an agency of the relator to appear at and testify in the hearing set for February 19, 1963.

These proceedings put the relator, its agents and attorneys in the position of being forced to violate the order of either Respondent Judge by obeying the subpoenas issued by the commissioners, or to violate the subpoenas issued by the commissioners and thus obey the order of Respondent Judge.

At this point relator came to this Court with its petition asking leave to file a petition for mandamus against Respondent Judge, commanding him to set aside his temporary restraining order and to refrain from issuing a permanent injunction against relator. We granted relator’s petition, set the cause for hearing, and issued appropriate orders staying further proceeding by Respondent Judge and by the commissioners until further orders of the Court.

We direct that Respondent Judge set aside his temporary restraining order and not issue any further orders preventing the commissioners from proceeding in accordance with Articles 3264 — 3268.

Respondents Lapsley in their original petition in addition to pleading in detail the reasons they feel that the complained-of commissioner is disqualified, also assert that “a cloud has been placed upon their property due to the threatened condemnation during the last several years and plaintiffs have not been able to develop or sell said property.” They also allege that any attempt to condemn the property with Cowley as a commissioner, or to make an award or enter a judgment, will be null and void and of no force and effect.

The prayer of this original petition is as follows:

“Wherefore, plaintiffs pray that defendants be cited according to law, and that this Court grant a temporary restraining order, restraining and enjoining the defendants from proceeding with the commissioners’ hearing on February 14, 1963, involving plaintiffs’ real property described in Exhibits ‘A’, ‘B’, ‘C’ and ‘D’ in plaintiffs’ original petition until further orders of the Court, and for the defendants to appear and show cause why a temporary injunction should not be granted restraining and enjoining the defendants as herein prayed, and upon final hearing herein, this Court determine and find that plaintiffs are the owners of the real property in question and that the cloud placed upon plaintiffs’ property by the threat of condemnation be removed, and further that in the alternative, in the event that this matter shall proceed before special commissioners, that the said Leonard M. Cowley not be one of the special commissioners because he is not a disinterested person and/or freeholder, and the said Leonard M. Cowley not be permitted to sit in and determine this matter, and for such other and further relief to which plaintiffs may be entitled at law or in equity.”

It will be noted that plaintiffs’ original petition seeks an injunction from the Respondent District Judge and upon final hearing of the petition that Respondents Lapsley be adjudged to be the owners of the real property in question and that the cloud placed upon plaintiffs’ property by threat of condemnation be removed; and in the alternative, in the event this matter shall proceed before the special commissioners, that Cowley not be one of the special commissioners, because he is not a disinterested person and/or freeholder, and the said Cowley not be permitted to sit in and determine this matter.

Respondents do not attack the legality of the petition filed, nor the jurisdiction of the Judge of the County Court at Law No. One to appoint commissioners, and for the condemnation proceedings to be carried out as provided by statutes.

At this stage of the condemnation proceeding it is an administrative and not a judicial proceeding. Pearson v. State (1958), 159 Tex. 66, 315 S.W.2d 935; Lower Nueces River Water Supply Dist. v. Cartwright (1959), 160 Tex. 239, 328 S.W.2d 752, 753, 754; McInnis v. Brown County Water Improvement Dist. No. 1 (Tex.Civ.App.1931), 41 S.W.2d 741, 744, writ refused.

In the case of Gulf, C. & S. F. Ry. Co. v. Ft. Worth & R. G. Ry. Co. (1894), 86 Tex. 537, 26 S.W. 54, Ft. Worth Railway filed a petition with the County Judge of Brown County to condemn land enabling Ft. Worth to cross Santa Fe right-of-way and construct a Y. The County Judge appointed commissioners who proceeded according to statute and awarded Santa Fe $5.00 as damages. Santa Fe appeared before the commissioners and objected to the jurisdiction of the County Judge to appoint them, alleged that the commissioners were disqualified to act as such by virtue of the fact that each of them was bound to pay, with others, for right-of-way and damages for this crossing and building a Y; therefore, the commissioners were disqualified and any award made by them would be void. Santa Fe made no objection to the award nor took an appeal to court from the commissioners’ award.

Santa Fe then brought its suit against Ft. Worth Railway Co. in the District Court of Johnson County, making allegations as aforesaid and asking for an injunction to restrain Ft. Worth from crossing Santa Fe’s right-of-way. The trial court denied injunction, which action was affirmed by the Court of Civil Appeals.

The Supreme Court, speaking through Judge Brown, affirmed the Court of Civil Appeals. In discussing the matter of the disqualification of the commissioners appointed by the County Judge, the Court said:

“The law required that the county judge should appoint disinterested freeholders of the county, which involved an investigation of and decision as to their qualification, as an official act, and in this proceeding the court will conclusively presume that he decided correctly. Houston Tap & B. Railroad Co. v. Randolph, 24 Tex. 317; Foster v. Wells, 4 Tex. 101; Burdett v. Silsbee’s Adm’r, 15 Tex. 604; Johnson v. Smith, 21 Tex. 722; Hatch v. Dunn, 11 Tex. 708.” 26 S.W. p. 60.

The Court then recited that the record showed that Santa Fe knew of this ground for disqualification four days after the award was made, and within the ten days allowed. The Court then says:

“ * * * during that time (the ten days), plaintiff, by filing objections to it (the award), would have been entitled to a trial de novo before a jury, by which objections it would have set aside the award, and thus have secured ample protection before the county court, with the right of appeal to the court of (Civil) appeals if its rights were not fully protected.”

The Court then said that Santa Fe not having availed itself of so simple and effective a remedy:

“ * * * [W]e see no reason why the rules of law by which such proceedings are held to be binding upon parties to them, when duly notified, should he departed from, and a collateral attack allowed to be made upon the proceedings of a court of competent jurisdiction.”

In the case of Gregg v. Lower Nueces River Water Supply District et al. (Tex.Civ.App.1957), 303 S.W.2d 812, writ refused, Gregg filed a trespass to try title suit in the district court of San Patricio County, Texas against Water Supply District, seeking to recover mineral interests under described lands. Thereafter, the District filed condemnation proceedings in Jim Wells County against Gregg et al., to condemn lands for creation of Wesley Seale Lake. In its condemnation suit, the District included a part of the land included in Gregg’s trespass to try title suit. Thereafter, Gregg sought an injunction against the District to prevent it from proceeding further with its Jim Wells County suit. On hearing, the District Court refused the injunction. The Court of Civil Appeals said:

“The law is well settled in this State that the condemnor cannot * * * be enjoined by the District Court from proceeding with its condemnation suit in the County Court, even though the suit in the District Court was filed first, unless the 1945 amendment of Article 3269 makes such requirement. Lone Star Gas Co. v. Webb, Tex.Civ.App., 20 S.W.2d 222; Rabb v. La Feria Mut. Canal Co., 62 Tex.Civ.App. 24, 130 S.W. 916, writ refused.”

After discussing Gregg’s contention that Art. 3269 gives the landowner the right to file a trespass to try title suit in the District Court and force condemnation in the District Court, the Court holds that Art. 3269 gives only to condemnor the right to elect to condemn in the District Court. In the absence of such election, the District Court has no right to enjoin prosecution by condemnor of the condemnation in the County Court. The Court also disposes adversely of Gregg’s contention that having filed his suit in the District Court first, the County Court’s condemnation powers were superseded.

In the case of Rabb v. LaFeria Mutual Canal Co. (Tex.Civ.App.1910), 62 Tex.Civ.App. 24, 130 S.W. 916, writ refused, a dispute arose between Rabb, the Canal Company and others as to the ownership of a tract of land across which the Canal Company was attempting to dig its ditch. Rabb went into a district court with a trespass to try title suit and asked for an injunction •to prevent the Canal Company from crossing this land. Thereupon Canal Company filed its petition for condemnation before the County Judge, who appointed commissioners for condemnation. These commissioners gave notice, a hearing was had, and an award made. Rabb appeared at the hearing and protested the legal competency of the commissioners and preserved his right to object to the condemnation proceedings in the proper court. The Canal Company put up the amount of award and prepared to take possession of the land. Rabb and others appealed the award to the County Court, where the appeal was pending at the time the Court of Civil Appeals decided the case. Canal Company came into the district court, pleaded the condemnation proceedings, and moved for dissolution of Rabb’s temporary injunction. The District Judge granted Canal Company’s motion and dissolved the injunction. Rabb appealed to the Court of Civil Appeals. In affirming the action of the trial court dissolving the injunction, the Court said:

“It was also objected that the condemnation proceedings were void because of the pendency of this suit whereby the jurisdiction of the district court attached to the land in controversy, in which the land could be condemned for the use of the canal company. It is true that in this suit the district court had authority to condemn the land and award the damages (article 4472, Rev.St.1895 [the predecessor of present Article 3269]), but necessarily this could not be done until a final determination of the question of title as between appellant and the irrigation company. Appellee could not be required to wait until this was done, hut might resort to the proceedings under the statute, as it did do, in order to have an immediate condemnation. Otherwise, it might have to wait for years before it could proceed with the prosecution of this quasi public work. * * * ”

See also Wilson v. Donna Irrigation Dist. etc. (Tex.Civ.App.1928), 8 S.W.2d 187, writ refused; State of Texas v. Andricks (Tex.Civ.App.1957), 304 S.W.2d 566, writ refused; Benat v. Dallas County (Tex.Civ.App.1924), 266 S.W. 539(6), writ refused; Ellis v. Houston & T. C. Ry. Co. (Tex.Civ.App.1918), 203 S.W. 172(2), (3) and (4), writ refused.

The district court has no jurisdiction to interfere with the progress of a condemnation proceeding before the Commissioners of condemnation because of the disqualification of one of the Commissioners. Therefore Judge Giles’ orders herein are void, and relator is entitled to a mandamus. -

Respondents amended their petition in the district court, alleging that there was a title dispute between relator and respondents as to lands included in the condemnation.

Since relator is condemning this right-of-way under Arts. 3264 et seq., relator admits as a matter of law the title in respondents to all of the land sought to be condemned. Houston North Shore Ry. Co. v. Tyrrell (1936), 128 Tex. 248, 98 S.W.2d 786(7), 108 A.L.R. 1508 and authorities therein cited.

Relator filed its answer to respondents’ amended original petition in which it specifically admitted respondents’ title to all the land sought to be condemned.

The pleadings of respondents as to a cloud being cast on their title and the law regarding the effect of relator’s condemnation petition, show respondents are not entitled to have the injunction issue.

From the authorities above quoted, it must follow that Respondent Giles was in error in issuing the temporary restraining order. We are sure Respondent Giles will set aside the temporary restraining order heretofore issued, and not interfere further with the condemnation proceedings, therefore we will not issue the Writ of Mandamus. Should Respondent Giles not abide by this decision, the clerk of this Court will issue an appropriate Writ of Mandamus.

SMITH, J., dissenting.


author: PER CURIAM.

text:
    W. W. (Woody) HEIDELBERG et ux., Petitioners, v. Arthur Fred HARVEY et al., Respondents.
    No. A-9566.
    Supreme Court of Texas.
    June 26, 1963.

      Leonard Howell, Midland, for petitioners.
    Deaderick & McMahon, Odessa, far respondents.
   PER CURIAM.

The Court of Civil Appeals opinion is reported in 366 S.W.2d 121. The order from which an appeal was attempted is not an appealable order. Accordingly, the judgment of the Court of Civil Appeals is reversed and the attempted appeal from the District Court is dismissed. Rule 483, Texas Rules of Civil Procedure, McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265.


author: WOODLEY, Presiding Judge.

text:
    Rosalie MONRREAL, Appellant, v. The STATE of Texas, Appellee.
    No. 36041.
    Court of Criminal Appeals of Texas.
    June 26, 1963.
    No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is murder without malice; the punishment, 5 years.

Notice of appeal was given in open court on June 7, 1963, but was withdrawn during the same term of court, on June 25, 1963.

In the absence of a notice of appeal, this Court has no jurisdiction.

The appeal is dismissed.


text:
    Fessor Sonie FROST, Appellant, v. The STATE of Texas, Appellee.
    No. 35954.
    Court of Criminal Appeals of Texas.
    June 19, 1963.

      Howard B. Law, James Keith Marks, Dallas, for appellant.
    Henry Wade, Dist. Atty., Emmett Colvin, Jr., Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is transporting whisky in a dry area; the punishment, 50 days in jail.

The state confesses error and suggests reversal because of a fundamental defect in the complaint and information.

An examination of the state’s pleadings shows failure to allege publication of the order declaring the result of the local option election, which is fatal. Gallagher v. State, 142 Tex.Cr.R. 133, 151 S.W.2d 819.

The judgment is reversed and the prosecution under the complaint and information is ordered dismissed.


author: WILSON, Justice.

text:
    Mrs. Jeannette NAJER et vir, Appellants, v. ABEGG & REINHOLD COMPANY et al., Appellees.
    No. 4115.
    Court of Civil Appeals of Texas. Waco.
    May 15, 1963.
    Helm, Jones, Pletcher & Winkelman, Albert P. Jones, Houston, for appellants.
    Baker, Botts, Shepherd & Coates, A. J. Watkins, Houston, for appellees.
   WILSON, Justice.

Plaintiffs appeal from an adverse judgment in a rear-end automobile collision case asserting, in effect, that there is insufficient evidence, or none, to support the verdict. The jury made findings favorable to the driver of the rear vehicle on issues as to his proper lookout, application of brakes and speed; found the collision was the result of an unavoidable accident, and that plaintiffs suffered no personal injury damages as a result of the collision.

The driver of the vehicle which struck plaintiffs’ car from the rear died before trial. The collision occurred at night in the center lane of a street in Houston. Plaintiff driver and his wife testified that as their car approached an intersection “some car was coasting, and some car in front of us had stopped, so we stopped” behind two preceding automobiles, and “a car came at pretty good speed down at the back before we could realize what it was.” Plaintiffs did not see this car before the collision. “It was a pretty heavy blow.” Plaintiff testified he had his foot on the brake and his car did not strike the preceding vehicle which was a car-length ahead. The evidence is not clear as to how long plaintiff was stopped before impact. Although he once testified, “maybe a minute and a half, a minute, something like that”, when his counsel reminded him that “a minute is a pretty good while”, he testified “there was some time in between.” Repair cost to his Cadillac automobile was $130.

This is the full extent of the evidence we have been able to find in the record, and we are unable therefrom to sustain the points as to no evidence and overwhelming preponderance of the evidence relating to negligence. Other points thereby become immaterial. Affirmed.


author: TIREY, Justice.

text:
    Carma Ann BOURLAND et vir, Appellants, v. Sherwood Maurice WALKER et ux., Appellees.
    No. 4123.
    Court of Civil Appeals of Texas. Waco.
    May 16, 1963.
    John Cahoon, Houston, for appellants.
    Fred Collins, Houston, McLeod, Mills, Shirley & Alexander, Benjamin R. Powel, Galveston, for appellees.
   TIREY, Justice.

This is a child custody case. Mrs. Carma Ann Bourland, joined by her husband, has perfected her appeal from an order entered October 9th, 1962, in the Court of Domestic Relations #2 of Harris County, which order changed the custody of Sharel Lynn Walker from her mother to the father, Sherwood Maurice Walker; and denied to Mrs. Bourland and her husband any relief under writ of Habeas Corpus filed by them. The decree awarded to Mrs. Bourland the privilege of visiting her minor daughter on the second Saturday and Sunday of each month and for a period of two weeks during June, July or August of each year, said two weeks period to be designated thirty days in advance in writing, which order further provided that such minor shall not be taken outside the State of Texas during such visitation. The appellees have filed their motion supported by affidavit attached in which motion appellees state that Mrs. Bourland and her husband invoked the jurisdiction of the Harris County Court by filing a habeas corpus proceeding on the 30th day of August, 1962; that thereafter such application for habeas corpus was consolidated with a suit filed by the appellees for change of custody, and that the cause was heard by all parties present on the 9th day of October, 1962, in which custody was awarded to the father; that during the pendency of this appeal Mrs. Bourland exercised her visitation rights to visit her minor daughter, and that while Mrs. Bourland was in possession of the child she removed the minor child from the State of Texas, and took such child to the State of California during the pendency of the custody suit, and during the time in which she was perfecting her appeal. Ap-pellees allege that the action of Mrs. Bour-land in removing the minor child from the State of Texas constituted a fraud upon the Courts of this State, and by reason thereof she is not entitled to any relief on appeal. Appellants have not filed any reply to this motion.

We believe this motion must abide the decision of our Supreme Court in Burckhalter v. Conyer, Tex.Commission of Appeals, 285 S.W. 606, also 7 S.W.2d 73. The Commission of Appeals, in a situation similar to the one here, held that the parties seeking relief are not in position to invoke the jurisdiction of an appellate court when they refuse to comply with an order entered by the Courts of Texas, which is necessary in order to make effective the judgment which may be rendered in a case on appeal. See also Suhren v. Suhren, Tex.Civ.App., 289 S.W.2d 663, n. r. e; Hays v. Brandon, 245 S.W.2d 381, (Ft. Worth CCA, 1951) n. w. h., and Smith v. Ansley, 257 S.W.2d 156, (Waco CCA 1953) w. ref., n. r. e. In view of the doctrine announced in the foregoing cases it will be the duty of the appellants and their attorneys to return the minor child, Sharel Lynn Walker, to some point within the State of Texas, together with proper assurances that she will be so kept and appropriately cared for pending the further orders to be made in this Court.

Accordingly the appellants and their attorneys are given until Monday, May 13, 1963, in which to return the said child to the State of Texas as herein provided for prescribed showing. Upon failure to make such showing this appeal will be dismissed.


author: WILLIAMS, Justice.

text:
    UNITED STATES LEASING CORP., Petitioner, v. CENTENNIAL LIQUOR STORES, INC., Respondent.
    No. 16181.
    Court of Civil Appeals of Texas. Dallas.
    May 31, 1963.

      Coke & Coke and Lawrence L. Beason, Dallas, for petitioner.
    Jean Maier, Dallas, for respondent.
   WILLIAMS, Justice.

Alleging that the record demonstrates absence of valid service, Petitioner, by Writ of Error, seeks reversal of a default judgment rendered in the Court below. Respondent’s petition in the trial court alleges Petitioner (defendant below) to be a Texas Corporation and that service might be had upon H. David Lasseter, its “authorized agent”. Sheriff’s return recited service on petitioner by serving H. David Lasseter, its “agent”. Judgment by default recited that service had been “duly and legally” had but defendant failed to appear.

Art. 2.11 of the Texas Business Corporation Act, V.A.T.S. governs method of service on domestic corporations. It is therein provided that the “president and all vice presidents of the corporation and the registered agent of the corporation shall be agents * * * upon whom any process * * * may be served.” (Emphasis ours.)

In this instance H. David Las-seter is neither alleged nor shown to be one of those named by law as authorized to be served on behalf of the corporation defendant. The case is governed by our recent decision in Texaco, Inc. v. McEwen, 356 S.W.2d 809 (Tex.Civ.App., 1962, wr. err. ref. n. r. e.) wherein we reiterated the rule that the record must affirmatively show strict compliance with the statute. The record here fails to show that the person actually served was one of those expressly named by law to receive process on behalf of the corporation, and, accordingly, the judgment must fail.

Reversed and remanded.


author: BATEMAN, Justice.

text:
    Lloyd L. COOPER, Appellant, v. AMERICAN EMPLOYERS INS. CO., Appellee.
    No. 16178.
    Court of Civil Appeals of Texas. Dallas.
    May 24, 1963.
    Rehearing Denied June 21, 1963.

      Yarborough, Yarborough & Johnson and Roger L. Turner, Dallas, for appellant.
    Bailey & Williams, Dallas, for appel-lee.
   BATEMAN, Justice.

Appeal from summary judgment denying damages for interfering with and causing termination of appellant’s employment. Affirmed.

Appellant alleged that he sustained a compensable injury as an employee of Cannon Ball Chair Rental Company, which was insured by appellee under the Workmen’s Compensation Insurance Law; that several days after his injury he returned to his work, and several months later was discharged because appellee “injected itself into and interferred with * * * plaintiff’s employment relationship in a course of conduct that was reasonably calculated to and did terminate a job that he had held for 13 years.” There was no allegation of malice or any motive inconsistent with legitimate business reasons or purposes of appellee.

Attached to appellee’s motion for summary judgment were affidavits of the owner and manager of the Cannon Ball Chair Rental Company denying that appellee had instructed, suggested or recommended that appellant be discharged, and stating positively that appellant’s allegation that his discharge had been caused by appellee was false. The managér testified to the same effect by deposition. Appellant filed his and his attorney’s affidavits to the effect that the manager of his employer told both of them that appellant had been discharged at the behest of appellee.

Appellant’s position is twofold: (1) the evidence before the court on the controlling question of the cause of his discharge was conflicting, which conflict he is entitled to have resolved by a jury, and (2) upon the conflict being resolved in his favor his right of action is established by the decision of the Beaumont Court of Civil Appeals in Harris v. Traders & General Ins. Co., 82 S.W.2d 750, err. ref.

We overrule the first contention because the alleged conflict in the evidence is unreal. It is well settled that the movant for summary judgment assumes the burden of demonstrating the lack of a genuine issue of material fact, all doubts as to the existence of such an issue being resolved against movant, and that the opposite party is entitled to the benefit of every reasonable inference which can properly be drawn in his favor. Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274; Womack v. Allstate Ins. Co., 156 Tex. 467, 296 S.W.2d 233. However, it is equally well settled that affidavits, either supporting or opposing a motion for summary judgment, must set forth facts within the personal knowledge of the affiant which would be admissible in evidence; that if based on hearsay or mere conclusions of law such affidavits are insufficient under Rule 166-A, Vernon’s Texas R.C.P.; 41B Tex.Jur. 49-50, § 27; Sparkman v. McWhirter, Tex.Civ.App., 263 S.W.2d 832, err. ref.

The affidavits attached to the motion in this case comply with the foregoing requirements, but those filed by appellant do not. The facts stated in the latter were pure hearsay as to appellee and would therefore not be admissible against it on a trial. While the testimony might possibly be admissible to impeach the testimony of the manager' (if it ever became necessary on the trial for appellee to offer his testimony), it would not be admissible to impeach that of the owner of the business, whose affidavit alone was sufficient to support the summary judgment. All appellant shows by his affidavits is that, although he has no admissible evidence to prove appellee’s alleged wrongdoing, if appellee ever offers the testimony of his employer’s manager it will be impeached. This presents no real opposition to the proof offered in support of the motion.

Appellant’s second contention must also be overruled. Harris v. Traders & General Ins Co., Tex.Civ.App., 82 S.W.2d 750, err. ref., held that a petition stated a cause of action for damages which alleged that a compensation insurer caused the plaintiff to lose his job by requesting his employer to discharge him because the plaintiff had received compensation from the insurer. It was based on the premise that at that time all compensation insurers doing business in Texas were required to accept all risks tendered them, the rationale being that, since its duty to accept all risks tendered was absolute, the insurer could not limit that duty by promulgating a rule which would have the effect of limiting the discretion of the employer in the selection of his employees. This followed the opinion of the Commission of Appeals in Texas Employers Ins. Ass’n. v. United States Torpedo Co., Tex.Com.App., 26 S.W.2d 1057, which was also followed by this court in Associated Indemnity Corp. v. Oil Well Drilling Co., Tex.Civ.App., 258 S.W.2d 523, affirmed in Oil Well Drilling Co. v. Associated Indemnity Corp., 153 Tex. 153, 264 S.W.2d 697; also in Capps v. General Accident Fire & Life Assur. Corp., D.C., 92 F.Supp. 227.

However, the Legislature in 1953 amended Section 2 of Art. 8309, Vernon’s Ann.Tex.St., by adding the sentence, “Nothing contained in this or any other law shall require an insurance company or the association to issue a policy to any applicant applying for coverage under this law, except as provided in Article 5.76 of the Insurance Code of Texas.” Thus the basic reason for the holding in Harris v. Traders & General Ins. Co., supra, has been removed and, with it, the value of the case as an authority here. Under the facts of this case as presented to us, we hold appellant to be without a right of action against appellee.

Affirmed.

      . Article 5.76 of the Insurance Code, V.A.T.S., enacted at the same time, provided for the “Assigned Risk Pool,” a device which, briefly stated, assures that even the most undesirable risks will be insured, even though an employer can no longer force its business on a particular reluctant insurer.


author: HUGHES, Justice.

text:
    Nancy Carolyn FRAZIER, Appellant, v. EMPLOYERS MUTUAL CASUALTY COMPANY, Appellee.
    No. 11097.
    Court of Civil Appeals of Texas. Austin.
    June 12, 1963.
    Rehearing Denied July 3, 1963.
    Arthur Mitchell, Sam Houston Clinton, Jr., Austin, for appellant.
    Strasburger, Price, Kelton, Miller & Martin, Royal H. Brin, Jr., Dallas, for appel-lee.
   HUGHES, Justice.

This is a Workmen’s Compensation case in which the jury, having failed to agree upon answers to any of the special issues submitted to it, was discharged and judgment rendered, upon appellee’s Motion, that appellant, Nancy Carolyn Frazier, take nothing by her suit. Appellee, the insurance carrier, is Employers Mutual Casualty Company.

The basis of appellee’s motion for judgment was that there was no evidence to support a jury finding that appellant sustained an injury or an accidental injury on July 31, 1961, the date of the alleged injury, within the meaning of such terms as used in the Workmen’s Compensation Act.

The specific contention of appellee is that the disability of which appellant complains was brought on gradually by the nature of her work and her physical and emotional state which cannot be traced to any definite time or place.

We accept the following statement from Solomon v. Massachusetts Bonding and Insurance Company, 347 S.W.2d 17, San Antonio Civil Appeals, writ ref., as correctly reflecting the rule of law to be applied by us to the facts of this case:

“An industrial accident or accidental injury is distinguished from an occupational disease by the following characteristics: An industrial accident or accidental injury can always be traced to a definite time, place and cause, whereas an industrial disease is of slow and gradual development, and the time, place and cause thereof are not susceptible of definite ascertainment.”

There is no claim here for disability resulting from an occupational disease.

We will recite the facts fully, but as briefly as possible, to show the nature of and circumstances attending the illness or disability from which appellant suffered and continues to suffer.

Appellant was 29 years of age in 1962. She is divorced. She has a nine year old child. She is a high school graduate with two years training in a business college. After doing filing and secretarial work for several years, appellant was employed by radio station KNOW in Austin in 1957, where her employment continued until 1962 when she became unable to perform her duties as an employee.

During her first three years with KNOW as receptionist-secretary, appellant performed her duties satisfactorily and without difficulty. In 1960, she was assigned to and put in charge of “traffic.” In radio language this meant that she must arrange and “log,” or schedule, the material to be broadcast, fitting it to a second-by-second timetable. She had to type the finished “log.” The work was exacting; it increased her duties and responsibilities.

In July 1960, appellant experienced “tightness” in her neck. She consulted a physician who prescribed medication.

In October 1960, KNOW changed its broadcasting pattern with the result of an increase in its business. The “traffic” duties of appellant were doubled. She found it necessary to take work home with her at night. The pace of her work became faster. She was under more tension and pressure. This increased her anxiety. She became nervous.

In January 1961, appellant experienced more pain in her neck, and was unable to hold her head erect.

In June 1961, appellant took a two weeks vacation. Upon her return she found that her work had been disarranged by her replacement. This required extra work by appellant, and she was compelled to take home night work, and she had to work on some week ends.

About July 20, 1961, KNOW increased its daily broadcasting hours from 18 to 24. This added to appellant’s work.

During the week before Monday, July 31, 1961, appellant had not taken any work home with her because, “I had reached a point where I was so completely exhausted that I went home * * * and was in bed around 6:00 o’clock. I had to or I couldn’t have gotten up the next morning.” Appellant did not miss time from her work. She worked all day Saturday, July 29, and Sunday, July 30. She collapsed at her place of work shortly after noon Monday, July 31st. We quote appellant’s testimony concerning her collapse:

“Q What time of day was it, Mrs. Frazier?
“A It was between 1:15 and 1:20 p. m.
“Q During the day?
“A Yes.
“Q Where were you?
“A I was at the front reception desk at KNOW.
“Q That is the same KNOW that Mr. Cook has told us about; is that correct ?
"A Yes.
“Q What did occur specifically at that time, Mrs. Frazier?
“A It was my custom to go out on the front reception desk and relieve the girl who ordinarily stayed out there all day while she went to lunch. She went to lunch from 12:30 to 1:30, and I was to take my work and go out there and answer the phone and take care of the desk while she was away, and do whatever I could on my work at that time. I was sitting there typing and answering the phone and just ordinary work. I was suffering a great deal of pain at the time.
“Q Where was this pain?
“A It was in my neck, and in my back, and in my arms.
“Q All right.
“A Approximately fifteen minutes until one, I would say around that time, I placed a call to Dr. Alexander. At this time he had me on some medicine. * * * I called Dr. Alexander, and I told him— I said, ‘I just can’t make it any longer, Dr. Alexander.’ At first he didn’t recognize my voice, and he said, ‘Is this you, Miss Frazier ?’ And I said, ‘Yes, it is.’ And he said, ‘What is wrong?’ And I said, ‘I am suffering death. 1 just can’t stand it any longer. I have either got to have some stronger medicine or I just can’t work.’ So he said, ‘All right; you go on home and go to bed, and we will put you in the hospital.’ I put down the receiver, and at this time I just fell down across my typewriter and my hands went up over the typewriter like this (inr dicating).
“Q Was your physical condition different after July 31st than it was prior to July 31st?,
“A Yes.
“Q In what regard?
“A It was this date that I lost complete control of my neck.
“Q Now, let me ask you this: In what way did you lose control of the muscles in your neck?
“A At the time I collapsed my neck went down on my chest like this, and I couldn’t get it up. * * *
“Q The stresses under which you worked exhausted you, and you finally collapsed; is that the idea?
“A Yes; I collapsed.
“Q I beg your pardon?
“A Yes; I collapsed.
“Q And when you collapsed, nothing fell from the ceiling; you didn’t hit anything; you were not bruised, or cut, or have any broken bones, or anything like that?
“A No; I was not.
“Q And when you collapsed, you just laid across the typewriter ?
“A I fell across it. I didn’t have any choice. I couldn’t sit up.”

Appellant when cross examined as to the time of her injury testified, “It was something that came on me gradually, and it was caused by the tension and the pressure under which I had to work. * * * ” She stated that she first noticed she was having “some type of difficulty” in July 1960.

Dr. Richard J. Alexander, appellant’s personal doctor and witness, testified as the only medical witness, and at great length. He said that appellant was suffering from spasmodic torticollis. We quote from his testimony:

“A Mrs. Frazier had been having trouble with her back and with her neck for approximately one year. You had to look back in the history, but you could see this thing developing insidiously.
“Q Over a long period of time?
“A I would think it was over approximately a year’s period of time.
“Q And it gradually increased?
“A Yes, I think so.
“Q And you mentioned to the jury that her condition was disabling; now, is it the spasmodic torticollis that is disabling?
“A Yes, sir; and the pain.
“Q And the pain?
“A Yes, sir.
“Q And that is what you are basing this disability upon?
"A Yes, sir.
“Q And nothing else ?
“A Well, I think that this is the disability, yes, sir.
“Q Now, if a fellow that is in as bad shape as I am right now got out and started running down the street until he finally collapsed—
“A That’s right.
“Q —until he just gave up and pooped out—
“A That’s right.
“Q —that would kind of be the culmination of outrunning of my—
“A Resources, that’s right.
“Q Yes. And that is the same kind of things that happened here, wasn’t it, except it involved both mental and physical ?
“A She outran her resources, or she was unable to find the — did not have the ability to carry on. She made a conscious effort to try to carry on, as you would do when you run down the street, but you are not able past a certain point from physical reasons to go on.
"Q Yes; and that is the same type of situation which Mrs. Frazier had.
“A With the — in a sense. You have to recall that there are some basic problems or defects with regard to her neural function or her neck function. I mean, that is involved in this. I think — I would make a distinction between, say, normal physical conditioning measures, which I think you are pointing up, and make a distinction between that and the — explaining your reserves and explaining her reserves in terms of the problem with her neck.
“Q Well, it is a different type of reserve, so to speak, but it is a gradual thing. * * *
“Q When did this disabling condition commence ?
“A As best I can determine, the condition — the pain and the disability— not the disability, but the spasm of her neck muscles, began insidiously. You can trace it back approximately one year from the time I first saw her. Now, she reached, I think, a state of disability — an inability to function in her work shortly after I started treating her.
“Q In other words,—
“A I am sort of — the word ‘disability’ is what — I am not sure what you would classify as disability.
“Q Well, as I understand it, the disability is due to this spasmodic torticollis ?
“A Right.
“Q Is that right?
“A That is right.
“Q When did that begin ?
“A It began approximately one year before. * * *
“Q Doctor, based upon what you have observed in the some thirty-odd visits that you have had, and based upon your — that is, your personal knowledge, and based upon your expert training in the field of psychiatry and medicine, do you have an opinion as to whether or not her job and the pressures of her employment, emotional strain, anxieties, and pressures, significantly contributed to the disabling effects which you observed?
“A I don’t see how you can separate the two. I think you have to use a concept of a chain, and this being one link in the chain.
“Q Your answer would be ‘Yes’?
"A Yes.”

Dr. Alexander had first seen appellant as a patient on July 20, 1961, and again on July 22, and July 26, 1961.

To hold that appellant, under these facts, has sustained an injury, or an accidental injury, under our Workmen’s Compensation Law would be to disregard the distinction which the Legislature has made between an injury and a disease emanating from an occupation. This is not meant to imply that all occupational diseases are compensable under our statute. They are not. Only those meeting the requirements of the statute are compensable under it. Sec. 25, Art. 8306, V.A.C.S. Under the evidence appellant has contracted a disease, at least partly, from the work in which she engaged. As to her, it is an occupational disease. We are not called upon to decide whether such disease is compensa-ble under our statute because such claim was not and is not made.

In order to hold that appellant has sustained an injury as claimed we would also have to disregard the decisions which hold that an injury or an accidental injury, under the Workmen’s Compensation Act, must be traced to an incident occurring at a definite time and place and as the result of a definite cause. Authorities supra, and Texas Employers Ins. Association v. McKay, 146 Tex. 569, 210 S.W.2d 147.

It is our opinion that the Trial Court correctly concluded that appellant did not sustain an injury or an accidental injury within the meaning of those terms as used in our Workmen’s Compensation Act. We, therefore, affirm its judgment.

Affirmed.


author: McNEILL, Justice.

text:
    Joe John OWENS et ux., Relators, v. Hon. Ernest COKER, District Judge, et al., Respondents.
    No. 6651.
    Court of Civil Appeals of Texas. Beaumont.
    May 30, 1963.

      J. Robert Liles, Houston, for relator.
    W. C. McClain, Conroe, William S. Clarke, Houston, for respondent.
   McNEILL, Justice.

Respondents say this court erred in holding the injunction granted was a permanent one. Though the question is not free from doubt, we believe the decision made was correct. The following additional authorities are cited on the question: Riggins v. Thompson, 96 Tex. 154, 71 S.W. 14, holds that the class into which an injunction falls is determined by the judge’s fiat; Ft. Worth Imp. Dist. No. 1 v. City of Ft. Worth, 106 Tex. 148, 158 S.W. 164, 48 L.R.A.,N.S., 994, holds that a judgment granting an injunction is final when it leaves nothing to be further litigated in the case. See also 43 C.J.S. Injunctions § 207, p. 935.

However, since we have held that the injunction granted in No. 6650, Owens v. Texaco Inc., et al., 368 S.W.2d 780 in an opinion this day announced should be modified so that it will be a temporary injunction as urged by relators therein, and, since it is the policy of the law not to grant supersedeas from an order issuing temporary injunction [see Rule 385, Sec. (d)], our former order provisionally issuing mandamus made herein is withdrawn and mandamus is denied. For the reasons explained in this paragraph, the motion for rehearing is granted. Costs of this proceeding are taxed against respondents Texaco Inc., Pitts and Cleveland Realty & Investment Company.

Relators’ contention in their answer to respondents’ motion for rehearing that the matters complained of are now moot, is overruled. The trial court’s approval o-f supersedeas bond in this case since our original opinion herein does not make the question moot. This conclusion constitutes authority to trial court to expunge from the record approval of the supersedeas bond.


author: CLAY, Commissioner.

text:
    Stanley TROWBRIDGE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 14, 1963.
    Daniel W. Davies, Newport, for appellant.
    John B. Breckinridge, Atty. Gen., James G. Osborne, Asst. Atty. Gen., Frankfort, for appellee.
   CLAY, Commissioner.

Appellant was convicted of violating KRS 436.240 and fined $250.00. On appeal he contends he could not be charged with a crime under this section of the statutes.

Appellant owned a tavern in which he maintained three pinball machines. While these machines registered winnings only in free games, the evidence was that appellant paid the player, in cash, a nickel for each free game won. KRS 436.240(1) provides :

“(1) Any person who permits any game, table, bank, machine or contrivance prohibited by KRS 436.230, to be set up, conducted, kept or exhibited, in any house, boat or float, or on any premises in his occupation or under his control, or leases such a place or any part of it for that purpose, shall be fined not less than two' hundred and fifty dollars.” (Our emphasis)

KRS 436.230(1) provides:

“(1) Any person who, with or without compensation, sets up, keeps, manages, operates or conducts or assists in setting up, keeping, managing, operating or conducting a keno bank, faro bank, or other machine o>r contrivance used in betting whereby money or any thing of value may be won or lost, * * * shall be fined, etc.” (Our emphasis)

Subsection (5) of KRS 436.230 describes in detail a pinball machine and provides:

“ * * * subsection (1) of this section shall not apply to any person, keeping, managing, operating, conducting or owning such device which only gives a free game or games for the skill of the player playing such machine or device.” (Our emphasis)

The substance of appellant’s argument is that the described pinball machine is not a prohibited gambling device, which we must concede, and that the operation of such a device cannot constitute prohibited gambling under section (1) of KRS 436.230, which does not follow at all.

It is first said that regardless of the exemption under subsection (S) of KRS 436.-230, a pinball machine is not an “other machine or contrivance” because it is not in the same category as a lteno or faro bank. Such a restrictive construction of those words is strained indeed, is inconsistent with the wording of KRS 436.240(1), and contrary to the purpose of the statute. In addition, subsection (S) of KRS 436.230 recognizes that a pinball machine is covered by subsection (1) except to the extent it is exempted by subsection (5).

Appellant’s principal argument is that since subsection (5) exempts a pinball machine as a gambling device, the use of it for gambling purposes cannot constitute the prohibited crime.

The purpose of subsection (5) is clear. A pinball machine which only pays off in free games is not a gambling device and the person operating such a device, where the payoff is limited to the rewards given by the machine itself, may not be charged with violating subsection (1). When the operator uses the innocent machine for gambling purposes, he thereby uses it in a manner prohibited by subsection (1).

The judgment is affirmed.


author: STEWART, Chief Justice.

text:
    CITY OF ST. MATTHEWS, Appellant, v. William H. HARRISON et al., Trustees, Appellees.
    Court of Appeals of Kentucky.
    June 14, 1963.
    J. W. Jones, Louisville, for appellant.
    Albert F. Reutlinger, Louisville, for ap-pellees.
   STEWART, Chief Justice.

In the year 1946 the City of Louisville (herein called “Louisville”) passed an ordinance proposing to annex the business district of the City of St. Matthews (herein called “St. Matthews”). A remonstrance suit was filed and a long period of delay ensued before this Court, in City of Louisville v. Kraft, Ky., 297 S.W.2d 39, terminated this litigation and authorized Louisville to enact an ordinance annexing that area.

On April 1, 1957, Louisville by ordinance annexed the territory involved. Thereafter, on May 31, 1957, in a declaratory judgment action brought by St. Matthews against Louisville, the annexing ordinance was decreed void by the Jefferson Circuit Court. The latter court also purported to hold that the business district was still a part of St. Matthews and enjoined Louisville from exercising any jurisdiction whatsoever over that area.

On appeal that judgment was reversed and the opinion, after directing that the injunction be dissolved, held Louisville was fully empowered on April 1, 1957, to incorporate the business district into its boundary. See City of Louisville v. City of St. Matthews, Ky., 316 S.W.2d 210.

St. Matthews assessed appellees’ property as of April 1, 1957, and as of April 1, 1958, for the payment of ad valorem taxes. Ap-pellees refused to pay the taxes thereafter levied, claiming they are not liable therefor because their property was not within the city of St. Matthews on the two assessment dates. St. Matthews then filed this suit against appellees for a declaration of rights. The trial court found in favor of appellees, and this appeal is from that ruling.

Both parties agree that only property situated within the corporate limits of a city on the assessment date can be the subject for the imposition of ad valorem taxes. So our inquiry is narrowed to the question of whether the property of appellees was located within the corporate limits of St. Matthews on the assessment dates in question.

In the City of Latonia v. Meyer, 86 S.W. 686, 27 Ky.Law Rep. 746, certain property was annexed to Latonia, but after the assessment date, which was April 1st. It was held Latonia could not tax the property, the opinion in that case saying: “Only the property situated within the corporate limits of the city on the 1st day of April should have been assessed and required to pay taxes.”

A different situation was presented in Miller v. City of Pineville, 121 Ky. 211, 89 S.W. 261. There certain property was removed from the municipality when the city was reduced in size. The City of Pine-ville had created a bonded indebtedness while the property was within its city limits, and the contention was advanced that the property, even though it was taken from Pineville, could be made to aid “in paying the bonds.” The opinion in that case rejected the city’s attempt to subject the cutoff property for payments on the bonded indebtedness. It said:

“Neither the organic nor the statutory law of the state provides that the property within the territory stricken from cities of the fourth class shall be required to pay any taxes to the municipality for any purpose.”

The foregoing authorities clearly indicate that only property within the limits of a city at the time of the assessment and levy for taxes may be required to respond to taxation. Since the holding of the City of Louisville v. City of St. Matthews, cited above, was to the effect that the business district had been properly annexed by Louisville on April 1, 1957, that area could not have been an integral part of St. Matthews at the same time. It would therefore appear that all property lying within the business district must pay ad valorem taxes to Louisville for the years 1957 and 1958.

Appellant relies on the case of City of Winter Haven v. A. M. Klemm & Son, 132 Fla. 334, 181 So. 153, wherein the legislature added an area of land to that city to support its position. The title to the legislative act was later found to be defective, and a parcel of the added territory was stricken from the city. In an action by certain property owners within the severed area, resisting the city’s authority to tax them, the court ruled that the city had exercised de facto jurisdiction over the disputed area, which gave it the right to levy and collect taxes on the land embraced therein from the time the legislative enactment became effective to the date the judgment was entered ousting the city of jurisdiction over the land.

Appellant claims St. Matthews had de facto jurisdiction by the reason of the May 31, 1957, judgment, which was binding on everyone until it was set aside or reversed, and that such jurisdiction continued until that judgment was nullified. During that period, St. Matthews maintains, the assessment and collection of ad valorem taxes by it were justified.

In the Klemm case the court clearly held there must first be some authority for conferring de jure jurisdiction before there can be any right to assume or assert de facto jurisdiction. That case stated 181 So. at page 170:

“ * * * If there is a prima facie and presumptively valid statutory de jure municipality, or if there is prima facie and presumptive jurisdiction or authority over an added area to the boundaries of a municipality, there may be de facto municipal existence or jurisdiction. (Case cited.) But if there is no authority for conferring de jure municipal jurisdiction or authority, there can be no de facto jurisdiction or power.”

Unquestionably, the case of City of Louisville v. City of St. Matthews, cited above, held that Louisville had de jure jurisdiction over the business district on April 1, 1957; it follows that St. Matthews could not possibly have also had de jure jurisdiction over the same boundary as of the same date. Furthermore, if there was no possibility of or no authority for de jure jurisdiction ever vesting in St. Matthews, then, under the holding in the Klemm case, there could never be de facto jurisdiction over the territory involved.

Wherefore, the judgment is affirmed.


author: PALMORE, Judge.

text:
    ARLAN’S DEPARTMENT STORE OF LOUISVILLE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 3, 1963.
    As Modified on Denial of Rehearing June 28, 1963.

      James E. Thornberry, Louisville, for appellant.
    Charles E. Keller, Oldham Clarke, Louisville, amici curiae.
    John B. Breckinridge, Atty. Gen., Robert L. Montague, III, Asst. Atty. Gen., Laurence E. Higgins, Commonwealth’s Atty., Carl C. Ousley, Jr., Asst. Commonwealth’s Atty., for appellee.
   PALMORE, Judge.

On a previous appeal of this case we reversed a judgment of the Jefferson Circuit Court holding the Sunday closing law, KRS 436.160, unconstitutional. The particular grounds on which the validity of the law had been successfully challenged in the circuit court are discussed in Commonwealth v. Arlan’s Department Store of Louisville, Ky., 1962, 357 S.W.2d 708. The case was then tried on stipulated facts without a jury and resulted in a conviction from which the defendant now appeals, contesting the statute on a new and different ground. Because of the importance of the question and the desirability of its early resolution we shall not consider the technical objection that in this proceeding it is concluded by the “law of the case” principle.

The heart of the statute is contained in this sentence:

“(1) Any person who works on Sunday at his own or at any other occupation or employs any other person, in labor or other business, whether for profit or amusement, unless his work or the employment of others is in the course of ordinary household duties, work of necessity or charity or work required in the maintenance or operation of a public service or public utility plant or system, shall be fined not less than two dollars nor more than fifty dollars.” (Emphasis added.)

The stipulated facts are;

“The defendant, Arlan’s Department Store of Louisville, Inc., has for the past three years conducted a retail department store in Jefferson County, Kentucky. Said store sells hundreds of items including items of clothing, jewelry, cameras, utensils, appliances, hardware, cosmetics, toys, food for consumption on and off the premises and sundries. Said defendant operated said store on Sunday, April 24, 1960, and sold items above referred to and also sold to a customer a plastic bag containing toy blocks on said date. The defendant in offering for sale to the public the merchandise above referred to, employed various cashiers and other sales personnel on said date.”

The main issue now before us is whether by virtue of its “unless” clause, especially the exception of “work of necessity,” the statute is so vague as to be unenforceable.

As a general principle of law the “void for vagueness” rule is well-established. It was explicitly stated in United States v. Capital Traction Company, 1910, 34 App.D. C. 592, 19 Ann.Cas. 68, 70, as follows:

“In a criminal statute the elements constituting the offense must be so clearly stated and defined as to reasonably admit of but one construction. Otherwise there would be lack of uniformity in its enforcement. The dividing line between what is lawful and unlawful cannot be left to conjecture. The citizen cannot be held to answer charges based upon penal statutes whose mandates are so uncertain that they will reasonably admit of different constructions. A criminal statute cannot rest upon an uncertain foundation. The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful- for him to pursue. Penal statutes prohibiting the doing of certain things, and providing a punishment for their violation, should not admit of such a double meaning that the citizens may act upon the one conception of its requirements and the courts upon another.”

One of the supporting authorities mentioned in the Capital Traction Company opinion was the Kentucky case of Louisville & N. Railroad Company v. Commonwealth, 1896, 99 Ky. 132, 35 S.W. 129, 33 L.R.A. 209, 59 Am.St.Rep. 457, in which this court, citing Mr. Justice Brewer’s observation that there was very little difference between a provision of the Chinese; Penal Code prescribing a penalty for “improper conduct” and a statute making it sj-criminal offense to charge more than a reasonable rate, held void for uncertainty a; statute declaring it an offense punishable; by fine for a railroad corporation to charge “more than a just and reasonable .rate,” etc. In a later case, Sullivan v. Brawner, 1931, 237 Ky. 730, 36 S.W.2d 364, 368, it was suggested that a criminal enactment so indefinitely phrased as to require conjecture in determining its meaning not only violates fundamental rights of individuals charged with disobeying it, but also delegates to the courts what the writer of that opinion considered to be a legislative function. On the other hand, it was pointed out in Bailey v. Commonwealth, 1930, 235 Ky. 173, 30 S.W.2d 879, “that a criminal law is not unconstitutional merely because it throws upon people the risk of rightly estimating a matter of degree which deals with fixed and actual, as distinguished from imaginary and unascertained, conditions.” And in the recent case of McDonald v. Commonwealth, Ky.1960, 331 S.W.2d 716, implicitly acknowledging the influence of its public pur- . pose, we held that the statute making it an . offense to contribute to the delinquency of a minor is not void for uncertainty. KRS 199.320(1).

The law of the colonies to the time of the Revolution was 29 Charles II, c. 7 (1677), which provided in part that no person might do any worldly labor, business or work on Sunday except for “work of necessity and charity only.” The same exception has descended to and appears today in the Sunday closing laws of a number of the states. "The effect of the phrase has been to give the courts a wide range of discretion in determining exceptions. But reasonable men can and do differ as to what is ‘necessity.’ ” In the long history of the statute this has been the issue the courts most frequently, and almost exclusively, have been called upon to decide. Probably because of the persuasive weight of public opinion, it has not often been suggested, until .recently, that the Sunday closing laws are too vague for enforcement. That particular question has never been directly decided by this court, though on several occasions the meaning of “work of necessity” has been discussed incident to a determination of whether the specific activity involved in the case fell within that exception.

In the few jurisdictions where the same or comparable phraseology has been tested against the “void for vagueness” rule the courts have divided. For example, in Commonwealth v. American Baseball Club of Philadelphia, 1927, 290 Pa. 136, 138 A. 497, 53 A.L.R. 1027 (“works of necessity and charity”), State of Iowa v. Linsig, 1916, 178 Iowa 484, 159 N.W. 995 (“work of necessity or charity”), and State of New Jersey v. Monteleone, 1961, 36 N.J. 93, 175 A.2d 207 (“works of necessity and charity”), the law was held not to be fatally uncertain. In State v. Hill, 1962, 189 Kan. 403, 369 P.2d 365, and Harvey v. Priest, Mo.1963, 366 S.W.2d 324, statutes prohibiting Sunday sales of merchandise except for “drugs and medicines, provisions, or other articles of immediate necessity” were held too indefinite for enforcement.

Proceeding from abstract principles a logical case can be made for either side of the proposition in issue. There are ample precedents which, at least by analogy, support the appellant’s position. Logic, however, is but one of the factors that enter into the complex process of jurisprudence. A legal theory is best defined by observation of how it is applied to actual fact situations. The way in which a principle has been applied in one type of case sometimes defies analogy with the way in which it has been applied (or not applied) in another. We are reminded again of Holmes’ famous introductory passage: “The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.”

The process by which the Sunday closing statute has weathered the tests of time, enacted originally for religious purposes that would now be considered fatal to its constitutionality, but later sustained “as a legitimate exercise of the police powers of the state * * * based upon long experience and custom, proving that periods of rest from ordinary pursuits are requisite-to the well-being, physically and mentally, as well as morally, of a people,” provides graphic demonstration of Holmes’ thesis.

Since we are called upon to assess the validity and effect of this law with due regard for “the manners, habits, wants and customs of the people it is to affect,” it is appropriate that we take judicial notice of some of the pertinent facts of life. We are aware that the enforcement of the statute by criminal process has been spotty and sporadic, so much so that 28 years ago a most incisive analyst of the American sociopolitical scene ventured to suggest that the so-called “blue laws” had appeared “to die a natural death without bothering anyone, even though they are not repealed.” Large numbers of people openly flout them with impunity. Yet we think a substantial majority observe them, by common custom and choice if not through respect for or fear of the enactment itself. Some who insist upon its enforcement are animated by considerations (e. g., limitation of business competition) quite foreign from its purposes, and many who do not wish to abide by the law would not abolish it, but prefer (perhaps unconsciously) to retain it as a symbol of morality. All of this, however, is but a natural phenomenon of government by the people, reflecting the ambivalence of human nature itself. That conflicting emotions may combine to keep a law on the books and at the same time chafe at or even prevent its enforcement does not justify the courts in disturbing it or in evading its application. Such conflicts are better brought to the floor of the legislature.

Heretofore this court always has taken for granted, but without having to decide specifically, that the term “work of necessity” is sufficiently understandable, within the context of the Sunday closing law, for practical application. We now formally confirm that viewpoint. Concededly, the language is loose. So is the conception of the “reasonable man,” the most useful tool of Anglo-American law.

We agree, of course, with the appellant’s position that if a law is so vague that the average reasonable man cannot intelligently choose in advance which course to follow, it is void, because such a law would illegally confer upon the courts powers both arbitrary, legislative in character, and ex post facto in effect. That also would be the practical effect if we should say, as was argued in this case, that what is a “work of necessity” is a jury question. Despite language in some of our cases which might give color to that viewpoint, we do not accept it. The question is one of law, to be decided in each instance by the court in which the case is being tried. Commonwealth v. London, 1912, 149 Ky. 372, 149 S.W. 852; Capital Theater Co. v. Commonwealth, 1918, 178 Ky. 780, 199 S.W. 1076, 1079. This is the only way in which the law can be (as it must be) the same in one local community as in another.

It is our opinion that the operation of a department store on Sunday is not necessary. The stipulation contained sufficient evidence to show that the business being conducted by the appellant was not a work of necessity and did not come within any of the other exceptions set forth in KRS 436.160(1).

The judgment is affirmed.

      . Chicago & Northwestern R. Co. v. Dey, 1888, 35 P. 866, 1 L.R.A. 744, 751.

      . Upholding a 1912 penal statute (now KRS 338.120) requiring “suitable and proper” toilet facilities for female employes.

      . KRS 446.080 provides that all statutes of this state shall be liberally construed with a view to promote their object's and that there shall be no difference in the construction of civil, penal and criminal statutes.

      . McGowan v. Maryland, 1960, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393.

      . See the separate opinion of Mr. Justice Frankfurter in the McGowan ease at 366 U.S. 459, 526, 81 S.Ct. 1153, 1189, 6 L. Ed.2d 418, 456, and Appendix II attached thereto. Chapter 375, § 36, Acts of 1801 (Kentucky), provided that “no work or business shall be done or performed on the sabbath day, unless the ordinary household offices of daily necessity, or other work of necessity or charity.” 2 Littell’s Statute Law of Kentucky 480 (1810).

      . Ibid., Opinion of Frankfurter, J., footnoting a formidable selection of diametrically opposed opinions by various courts of last resort on the question of whether specific activities were works of “necessity.”

      . See Gray v. Commonwealth, 1916, 171 Ky. 269, 188 S.W. 354, L.R.A.1917B (bartering not a work of necessity); McAfee v. Commonwealth, 1917, 173 Ky. 83, 190 S.W. 671, L.R.A.1917C, 377 (operation of grocery not a work of necessity); Capital Theater v. Commonwealth, 1918, 178 Ky. 780, 199 S.W. 1076 (operation of a moving picture theater not a work of necessity) ; Natural Gas Products v. Thurman, 1924, 205 Ky. 100, 265 S.W. 475 (manufacturing of carbon black held to be a work of necessity).

      . Holmes, The Common Law, p. 1.

      . Strand Amusement Co. v. Commonwealth, 1931, 241 Ky. 48, 43 S.W.2d 321, 323.

      . Commonwealth v. Louisville & N. Railroad Co., 1882, 80 Ky. 291, 295, 3 LKR 788, 791, 44 Am.Rep. 475, 477.

      . Thurman Arnold, The Symbols of Government, p. 160 (Yale University Press, 1935, reprinted in 1962 by Harcourt, Brace & World, Inc.).

      . Ibid., pp. 159, 160, wherein the author contributes this gem: “No way has yet been discovered of preventing moral attitudes from persisting long after they are in direct conflict with human behavior. Most unenforced criminal laws survive in order to satisfy moral objee-tions to established modes of conduct. They are unenforced because we want to continue our conduct, and unrepealed because we want to preserve our morals.”

      . “The law usually is what the average reasonable man thinks it ought to be.” Drury, C., in Bailey v. Farmers Bank of White Plains, 1928, 227 Ky. 179, 12 S.W.2d 312, 314.

      . If the court determines that the activity described in the charging instrument and proof is not a work of necessity, the jury may be instructed to the effect that if it believes beyond a reasonable doubt that the defendant did in fact engage in that activity on Sunday he should be found guilty.