author: STEWART, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Joseph Walter REDECKER, Defendant-Appellant.
    No. 39104.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Oct. 10, 1978.
    Dewey S. Godfrey, Jr., St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Robert L. Presson, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Richard Poehling, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   STEWART, Presiding Judge.

Defendant appeals from the judgment entered upon a verdict of a jury finding defendant guilty of receiving stolen property in the amount of $50.00 or over.

Defendant contends that the court erred in failing to sustain his motions to suppress the evidence of the stolen television set and in failing to quash the arrest warrant. He also charges that the court erred in failing to give MAI-CR 3.54 at his request. We affirm.

Alfred Anderson had been Renee Anthony’s boyfriend for about a year. He stayed at her home on the night of May 11, 1975. The following morning he left the house after Renee and set the lock so that he could regain entry. He went to his grandmother’s home. His uncle, Roy Wash, and the defendant were present. He told them that he was going to take the television set and other furniture from Renee’s house. Defendant let Anderson use his truck for that purpose and agreed to purchase the television set. Anderson delivered the set to defendant who paid him $150.00. The television set was seized from defendant’s home under a search warrant on September 26, 1975 and he was arrested later on that day.

Defendant contends that the court erred in failing to sustain the motion to suppress evidence and motion to quash warrant of search and seizure filed by the defendant because the search of the defendant’s home on September 4, 1975 was without warrant and no exigent circumstances were present; that during the course of the warrantless search on that date the police discovered and acquired information from the premises as to the identification of the stolen television set; that subsequently the police acquired information that the Magnavox television set was stolen. To this information was added the illegal information which provided them with the opportunity to obtain a warrant of search and seizure which was executed on September 26, 1975. He claims that information obtained on September 4, 1975, as a result of the warrant-less search, was “Fruit of the Poisonous Tree” and without it the police never could have pieced together the two facts in order to be able to determine the locale of the television set and the identity of the person in whose possession it was found.

The facts pertinent to this contention are that on September 3,1975, Detective Titone of the Second District received a tip from a confidential informant that defendant was dealing in stolen property, primarily C.B. radios and stereos. On September 4, 1975, Detective Titone, accompanied by Detectives Grieshaber, Qualls, Allen and Pate, went to defendant’s residence. They did not have a search warrant. Detectives Grieshaber and Qualls knocked at the rear door while Detectives Titone, Allen and Pate went to the front door. Sandra Pau-lus, defendant’s stepdaughter, who was living with Mr. and Mrs. Redecker, answered the rear door. The officers identified themselves to Miss Paulus and asked to talk with defendant. She asked them to “step in.” Miss Paulus told them that her stepfather was not home. She then went to the front door and admitted the other officers. While in the kitchen Detective Grieshaber noticed a box on the floor which contained C.B. radios and tape recorders. He asked Miss Paulus if he could look through the box, and she stated that she didn’t care since it wasn’t hers. Detective Grieshaber verified through the police computer that one of the items in the box was stolen. The other officers then searched the premises. Detective Grieshaber also ran a computer check on a serial number taken from a Magnavox color television set. He was advised that the television set had not been reported as stolen.

On September 25, 1975, Renee Anthony contacted Detective Allen and told him that Alfred Anderson admitted stealing her Magnavox television set and selling it to defendant for $150.00. Anderson gave Renee Anthony the defendant’s name and phone number. She called defendant, who refused to return the set unless his money was refunded.

Based on this information, Detectives Allen and Titone interviewed Alfred Anderson who was incarcerated on another charge. Anderson admitted the theft and confirmed the fact that he had sold the set to the defendant. A search warrant was applied for and issued on September 25, and executed on September 26. A Magnavox television set was seized from defendant’s residence and later identified by Mrs. Anthony as hers.

Defendant very ably argues the illegality of the search of September 4, 1975. However, under the view that we take of the case we need not make a determination of the legality of the early search. Assuming arguendo the illegality of the original search, the issue is whether the warrant for search and arrest obtained on September 25 was the fruit of the earlier search in accord with the principals of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The facts obtained from an illegal search do not become “sacred and inaccessible” Silverthorne Lumber Co., Inc. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1919). The “doctrine of the fruit of the poisonous tree is inapplicable if the evidence emanated from an independent source, or the causal connection between the primary illegality and the prosecutor’s proof becomes ‘so attenuated as to dissipate the taint’ ” State v. Thomas, 491 S.W.2d 328, 330 (Mo.1973).

In the case at hand the police officers who obtained the warrant were not aware that Mrs. Anthony’s television set was stolen and was in the possession of defendant until she contacted them. They did not act solely upon the information obtained from her but obtained corroborating information from Anderson before they applied for the warrant. There is no evidence from which it can be said that the search of defendant’s premises on September 4 in any way motivated the application for the warrant that resulted in the seizure of the television set. There was substantial basis for the trial court to determine that the evidence objected to and the arrest did not come about by reason of the exploitation of the warrantless search of September 4, but by reason of an independent source, the information given them by Mrs. Anthony and Anderson. State v. Thomas, supra. The trial court did not err in denying defendant’s motion to suppress.

Defendant argues that under the following circumstances the court was required to give MAI-CR 3.54 which he requested.

In the cross examination of a police officer, defendant sought to show that at the time of his arrest he told the police officer that he “bought the set legitimately from some guy.” The court sustained the objection as being self serving. Defendant took the stand in his own behalf and testified that Anderson, whom he knew through Anderson’s uncle, called him, said that he and his wife were breaking up and asked defendant if he wished to buy a television set. Defendant testified that he went to Anderson’s grandmother’s, examined the set and after some discussion paid $310.00 for it. He testified that he did not know it was stolen.

On cross-examination defendant was asked what he told the police at the time of his arrest. He testified as follows:

“A. I just told them I bought it.
Q. Legitimately from some guy?
A. Yes.
Q. You didn’t tell them you bought it from Alfred Anderson?
A. No Sir, I did not. I didn’t tell nobody but Mr. Godfrey when he asked me.”

MAI-CR 3.54 is intended for use in instances where a defendant has been impeached and a prior consistent statement is placed in evidence for the purpose of rehabilitating the defendant. See State v. Haggard, 250 Mo. 335, 157 S.W. 354 (1913).

The defendant argues that the State attempted to impeach defendant with the statement to the police as inconsistent with his testimony at the trial. If, in fact, it could be said to be inconsistent, then there would be no basis for giving the instructions because there would then be no consistent statement to form the basis for rehabilitation.

The statement to the police was in fact consistent with his testimony at the trial. In as much as there were no inconsistent impeaching statements made by defendant the court was not required to give MAI-CR 3.54.

Finding no error, the judgment of the trial court is affirmed.

REINHARD and STEPHAN, JJ., concur.

      . Mrs. Anthony had reported the theft to another police district shortly after the theft.

      . The instruction reads: “If you find and believe from the evidence that on some former occasion the defendant made a statement consistent with his testimony in this case, you may consider such evidence for the purpose of deciding the believability of the defendant and the weight to be given to his testimony. However, in deciding his guilt or innocence, any prior statement of the defendant consistent with his testimony must not be considered by you as evidence of the matters contained in the statement.”


source: Caselaw Access Project

author: TITUS, Judge.

license: Public Domain

text:
    ONE HUNDRED TWO GLENSTONE, INC., a corporation, Plaintiff-Appellant, v. BOARD OF ADJUSTMENT OF the CITY OF SPRINGFIELD, Missouri, et al., Defendants-Respondents.
    No. 10243.
    Missouri Court of Appeals, Springfield District.
    Oct. 11, 1978.

      Paul L. Bradshaw, Joseph A. Bohrer, Neale, Newman, Bradshaw & Freeman, Springfield, for plaintiff-appellant.
    Howard C. Wright, Jr., City Atty., Springfield, for defendants-respondents.
    Before BILLINGS, C. J„ and TITUS and FLANIGAN, JJ.
   TITUS, Judge.

Plaintiff applied to the Springfield Board of Adjustment (board) for a “special exception” to permit completion of a “loading dock-covered” which had been partially built onto the south end of plaintiff’s shopping center building in violation of the city’s zoning ordinance. The board denied the request under a specific finding and conclusion of law that it “may grant a special exception pursuant only to Section 80.790 of the Zoning Ordinance,” which is entitled “When special exceptions may be granted.” Via certiorari, plaintiff sought review in the circuit court. § 89.110, V.A. M.S. The board’s order was affirmed and plaintiff appealed.

Plaintiff’s property lies between east-west Glenwood Street to the north and east-west Sunset Street to the south and immediately east of north-south Holland Avenue. A 40 foot by 200 foot building, which houses the stores in the shopping center, runs lengthwise north and south and is situate on the east side of plaintiff’s property; the west side of the property is used for vehicular parking. To the east of or behind the shopping center are apartment complexes whose backyards adjoin Sunset Street. A required 38-foot setback line runs east and west across the south side of plaintiff’s property and the property on which the apartments are located. This setback, as noted above, is immediately north of Sunset Street.

On June 12, 1973, plaintiff’s agent applied to the superintendent of the city’s building regulation section for a permit to build a 20' X 60' “loading dock-covered” onto and across the south end of its shopping center building. Construction of the dock was authorized after the superintendent was erroneously informed by another city employee that Sunset Street south of the proposed construction had been “de-mapped,” i. e., that Sunset Street was not a dedicated public way. If this had in fact been true, which it was not, the 20-foot-wide dock would have provided a setback line 18 feet north of Sunset Street or eight feet more than required had the street been a nondedicated thoroughfare.

After issuance of the permit, plaintiff commenced construction. There was no evidence that the city had or had not been given notice when actual construction began. Plaintiff’s agent said he left this chore to the builder. By August 10, 1973, the loading dock was complete except for the concrete floor and roof decking. On that day city employees became aware of the zoning violation caused by the construction and a “stop work” order was issued. Thereafter, on a form addressed to the board and entitled “Board of Adjustment Special Exception” plaintiff stated: “The Special Exception is requested under the provisions of Section 80.310(c)(2) of the Zoning Ordinance and the applicant requests the special exception in order to: Retain and complete a 20' X 60' addition to an existing commercial structure . . . .” At the hearing before the board, plaintiff’s counsel repeatedly assured the board members that plaintiff was seeking a special exception under § 80.790 of the zoning ordinance. As previously noted, the board in its order concluded it could only grant a special exception pursuant to said § 80.790.

In § 80.780 of the zoning ordinance, exceptions and variances are distinguished as follows: “A ‘special exception’ is a permission given by the Board properly authorized by this Ordinance in specific cases for the applicant to use his property in a manner contrary to the provisions of this Ordinance provided such use subserves the general welfare and preserves the community interest. A ‘variance’ is an authorization by the Board granting relief and doing substantial justice in the use of the applicant’s property by a property owner where, owing to special conditions a literal enforcement of the provisions of the ordinance will result in unnecessary hardship.”

Generally, the “uses” of property covered by zoning ordinances fall in three categories. First, a “nonconforming use” is a use permitted which was in effect prior to ordinance enactment. Second, a “conditional use”, also denominated a “special exception” or “special permit”, may be permitted where desirable or essential to public welfare or convenience, will not impair the integrity and character of the zoned district, and is not detrimental to public health, welfare or morals. Third, a “variance” is allowable upon a showing that a strict enforcement of the zoning limitation would cause unnecessary hardship. Hardship is not a prerequisite to the granting of a special exception, whereas a showing that strict enforcement of the ordinance would cause unnecessary hardship is a prerequisite to obtaining a variance and the burden of so showing is upon the applicant. Tustin Heights Ass’n v. Board of Supervisors, 170 Cal.App.2d 619, 339 P.2d 914, 919[1] (1959). In a shorthand fashion, it has been said that the “basic difference between a use which is a special exception and one which requires a variance is that the former is legislatively permitted in a zone subject to controls whereas the latter is legislatively prohibited but may be allowed for special reasons.” Verona, Inc. v. Mayor and Council of West Caldwell, 49 N.J. 274, 229 A.2d 651, 655[1] (1967). See also, “Special Exceptions Distinguished from Variances,” 3 Rathkopf, The Law of Zoning and Planning, 4th ed., pp. 54-3 to 54-5; 82 Am.Jur.2d, Zoning and Planning, § 255, at p. 790 and § 281, at p. 827. It is apparent from § 80.780, supra, and §§ 80.790 and 80.800, see Appendix, that a special exception and a variance are dissimilar, are not one and the same and that the provisions for each are not to be construed together as reciprocal parts of an integrated ordinance. 8 McQuillin, Municipal Corporations, 3rd ed. Rev., § 25.160, pp. 475-483.

To refine the subject further, especially as it relates to the instant case, it seems apparent that what plaintiff actually desired but erroneously did not request was a variance or, more particularly, an “area variance.” The latter term is defined as not involving a prohibited use and having no relation to a change of use. “Rather, [it] involve[s] such matters as setback lines [or in] other words, the term ‘area’ variance is a shorthand description of a variance from structural or lot-area restrictions.” 82 Am. Jur.2d, Zoning and Planning, § 256, pp. 792-793.

In short, what plaintiff actually needed was a variance. However, it erroneously and repeatedly assured the board that it sought only a special exception to which, in our opinion, it was not entitled. Therefore, as there was no application before the board for or a hearing held on a variance, we cannot say that the board or the circuit court erred in not granting, sua sponte, a variance or in denying the specific and limited request for a special exception. Waeckerle v. Board of Zoning Adjustment, 525 S.W.2d 351, 358[2] (Mo.App.1975).

Plaintiff’s concluding point relied on consists of an asseveration that the board and the City of Springfield should have been estopped from invalidating the permit erroneously issued by city officials because “the building permit was honestly obtained and any violation of the city’s ordinance resulted from reliance upon the officials of the city charged with the issuance of such permit.” The answer to this point is found in State ex rel. Walmar Investment Co. v. Mueller, supra, 512 S.W.2d at 184[4, 5]. “In cases such as the instant one, involving a governmental body, the doctrine of estoppel is not generally applicable; and if applied, is done so only in exceptional circumstances and with great caution. ... In fact, in the exercise of governmental functions, the doctrine of equitable estoppel cannot usually be invoked against a municipal or public corporation. . . . Further, it is a well established principle in Missouri that a governmental unit is not estopped by illegal or unauthorized acts of its officers. . In this connection, it is recognized that a building permit for construction issued but unauthorized under the ordinance is void and a city is not estopped because its employee issued the license or permit.”

In its conclusions of law, the circuit court recognized that plaintiff had limited its request to a special exception and that the board’s denial of relief was expressly confined to the specific request made. Curiously enough, however, the court proceeded to conclude that albeit the plaintiff and the board expressly confined themselves to a special exception, the board had also “apparently” considered and denied plaintiff a variance under § 80.800 of the zoning ordinance (see Appendix) or § 89.090, V.A.M.S. We deem such a conclusion as superfluous and of no force or effect. “Neither we nor the circuit court can review a matter unless it was first presented to and passed upon by the Zoning Board and then only if the alleged injured party appeals.” Bourke v. Foster, 343 S.W.2d 208, 211[4] (Mo.App.1960). Accord, State ex rel. Weinhardt v. Ladue Professional Building, Inc., 395 S.W.2d 316, 321[6, 7] (Mo.App.1965); Williams v. International Shoe Co., 213 S.W.2d 657, 661-662 (Mo.App.1948).

While we affirm the judgment nisi for the reasons stated, supra, as obiter dictum it might be suggested that as plaintiff did not have two remedies in point of fact, that it misconceived its rights and pursued a supposed remedy to which it was not entitled, it is not enough to prevent it from pursuing a remedy to which it might be entitled if the circumstances and proof so warrant. Pemberton v. Ladue Realty & Construction Co., 359 Mo. 907, 911, 224 S.W.2d 383, 385[3, 4] (1949); Hollipeter v. Stuyvesant Insurance Company, 523 S.W.2d 595, 600[6] (Mo.App.1975).

All concur.

APPENDIX

80.790. When special exceptions may be granted: The Board of Adjustment may, after public notice and hearing and subject to the conditions and safeguards herein contained, authorize special exceptions to this Ordinance as follows:

(a) Permit the reconstruction, extension or enlargement of a building occupied as a non-conforming use.

(b) Permit the extension of a non-conforming use in a building upon a lot occupied as a non-conforming use.

(c) Grant in relatively undeveloped sections of the City temporary and conditional permits for not more than two-year periods for any use of land, excluding structures.

(d) Permit the use of property in the “R-l” or “R-2” Districts adjacent to the “R-3”, “C” or “M” Districts, even if separated therefrom by an alley or by a street, for parking of passenger cars under such safeguards and conditions of the set-back requirements of the more restricted property, provided no other business use is made of such property, and further provided that such parking area shall not extend a greater distance than 500 feet from the “R-3”, “C” or “M” Districts.

(e) Permit the use of property owned by a church for the parking of passenger cars in any district under such safeguards and conditions as are necessary to protect the adjacent property.

(f) Permit in any district such modification of the requirements of this Ordinance as the Board may deem necessary to secure an appropriate development of a lot where adjacent to such lot on two or more sides there are buildings that do not conform to these regulations.

(g) Permit such modification of a yard, lot area or lot width regulation requirements as may be necessary to secure appropriate improvements of a parcel of land where such parcel was separately owned on the date of the passage of this Ordinance, and is not adjacent to another parcel of the same ownership and where such parcel is of such size that it cannot be improved without such modification or of such restricted area that it cannot be appropriately improved without such modification.

(h) Permit the extension of a building existing on the date of the passage of this Ordinance by the construction of additional stories above the height limit herein established, if the original plans provided for such additional stories and such building was actually designed and constructed to carry such additional stories.

******

ORDER OF THE BOARD OF ADJUSTMENT

Case No. E-1071

Comes now the Board of Adjustment after hearing evidence and testimony presented by the applicant on August 13,1974, and having entered said decision by vote of the Board on August 13, 1974, denying applicant’s request for a special exception from provisions of Section 80.310(c)(2) of the Zoning Ordinance and hereby makes its findings of fact and conclusions of law on this 3rd day of December, 1974, and hereby orders that said findings of fact and conclusions of law be served by mail on the parties to the proceeding and the right to appeal the decision of said Board shall be from the date of this order.

The Board of Adjustment finds the following facts:

(1) Applicant has filed a request (a copy of which is attached hereto) in Case No. E-1071 for permission to extend an enclosed structure now under construction and to retain and complete said structure requesting a special exception from Section 80.310(c)(2) of the Zoning Ordinance.

(2) Applicant admits that the proposed structure is located within the required front yard by approximately 20 feet and all those facts contained in applicant’s request for a special exception.

(3) All those facts stipulated in a joint stipulation of facts.

(4) That the proposed building does not constitute the reconstruction, extension or enlargement of a building occupied as a non-conforming use.

(5) That the request is not in an undeveloped area of the City of Springfield, being in an area subdivided and being used as a shopping center and said area being immediately adjacent to multi-family dwellings.

(6) That the building is not adjacent to a lot on two or more sides where buildings do not conform to these regulations.

(7) That the land was not separately owned on December 5, 1956, the effective date of the Zoning Ordinance.

(8) That the land is a single tract under one ownership owned by the applicant.

(9) That the land owned by the applicant is of such size that it can be improved without modification of the existing regulations under the Zoning Ordinance.

(10) That the granting of the special exception will cause a structure to be located in front of the existing rear building line as shown by Joint Exhibit No. 2-A, 2-B, and 2-C.

(11) That applicant’s property has frontage on Glenwood Street and Sunset Street as shown by Joint Exhibit 5.

(12) That the location of the structure shown on Joint Exhibits No. 2-A through 2-H will interfere with the light and air of that property immediately to the east of applicant’s property.

(13)That the structure is a building as defined by the Zoning Ordinance, Section 80.010, because the structure as contemplated has a roof supported by columns or walls.

The Board of Adjustment hereby finds the following conclusions of law:

(1) That the Board may grant a special exception pursuant only to Section 80.790 of the Zoning Ordinance.

(2) That applicant has failed to show that he is entitled to an exception under Section 80.790 of the Zoning Ordinance for the following reasons, to-wit:

a. The proposed building does not constitute the reconstruction, enlargement or extension of a non-conforming use under Sections 80.790(a) and (b) of the Zoning Ordinance.
b. That the area is not a relatively undeveloped section of the City and the applicant is not seeking a temporary or conditional permit for a period of two years and therefore applicant is not entitled to an exception under Section 80.790(c) of the Zoning Ordinance.
c. That the applicant does not seek to use this area for the parking of passenger vehicles nor does applicant propose to use the property for parking of passenger vehicles for a church. Therefore, applicant is not entitled to an exception under Sections 80.790(d) or (e) of the Zoning Ordinance.
d. That the property on two or more sides of applicant’s property on which there are buildings do not contain buildings that do not conform to these regulations and therefore applicant is not entitled to the special exception under Section 80.790(f) of the Zoning Ordinance.
e. That the applicant’s property was not separately owned on the passage of the Zoning Ordinance which was December 5, 1956, and applicant’s property is adjacent to another parcel of land of the same ownership which is of such size that it can be improved without modification. Therefore, applicant is not entitled to an exception under Section 80.790(g).
f. That intent of provisions of Section 80.310(c) of the Zoning Ordinance will be violated in that the granting of this exception would block light, air, and destroy the aesthetic value of adjoining property as shown by the pictures submitted as joint exhibits.
g. That the special exception requested by applicant should not be granted because the use of the land as requested by applicant does not serve the general welfare and the community interest because such interest is not served by permitting the applicant to build in the required front yard.
h. That applicant has failed to sustain his burden of proof in front of the Board in presenting evidence to show that the applicant is as a matter of law entitled to a special exception as requested.

This order entered by the Board of Adjustment on the 3rd day of December, 1974.

/s/Wm. H. Blanton

Chairman

* * * * * *

80.800. When variances may be permitted : A variance may be granted an applicant when the Board of Adjustment finds:

(a)That there are special circumstances or conditions applying to the land or buildings for which the variance is sought, which circumstances or conditions are peculiar to such land or building and do not apply generally to lands or buildings in the same zone or neighborhood, and that said circumstances or conditions are such that the strict application of the provisions of this ordinance shall deprive the applicant of the reasonable use of such land or building, and;

(b) That the granting of such variance will not be detrimental to the public welfare or substantially or permanently injurious to the property or improvements in such zones or neighborhoods in which the property is located, and;

(c) That the granting of the variance is necessary for the reasonable use of the land or building and that the variance as granted by the Board is the minimum variance that will accomplish this purpose, and;

(d) That the literal enforcement and strict application of the provisions of this Ordinance will result in an unnecessary hardship inconsistent with the general provisions and intent of this Ordinance and that in granting such variance the spirit of the ordinance will be preserved and substantial justice done.

(e) In addition to considering the character and use of adjoining buildings and those in the vicinity, the Board, in determining the findings shall take into account the number of persons residing or working in such building or upon such land and traffic conditions in the vicinity.

      . See State ex rel. Walmar Investment Co. v. Mueller, 512 S.W.2d 180, 183[2 and 3] (Mo.App.1974) as to the propriety vel non of seeking review via certiorari rather than by filing a petition for review as indicated in Rule 100, V.A.M.R.

      . See attached Appendix for copy of (1) § 80.-790 of the ordinance, (2) findings of fact and conclusions of law made by the board (Order), and (3) § 80.800 of the zoning ordinance.


author: CLEMENS, Judge.

text:
    Robert FRANKLIN, Appellant, v. STATE of Missouri, Respondent.
    No. 39936.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Oct. 17, 1978.

      Neal P. Murphy, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George Peach, Circuit Atty., Joseph W. Warzycki, St. Louis, for respondent.
   CLEMENS, Judge.

After an evidentiary hearing on defendant’s Rule 27.26 motion the trial court denied relief and defendant has appealed. We affirm.

Defendant’s only point relied on charges ineffective assistance of trial counsel in failing to challenge the charged prior conviction for tampering with a motor vehicle which subjected defendant to trial as a second offender. He contends the previously charged offense was not a felony and therefore not a valid basis for applying the second offender act.

The present conviction arose from a guilty verdict on an armed robbery charge, with application of the second offender act by the trial court. That judgment was affirmed on appeal which did not raise the issue of a prior conviction. See State v. Franklin, 526 S.W.2d 86 (Mo.App.1975).

The trial court made findings of fact and conclusions of law in denying defendant’s Rule 27.26 motion. We paraphrase the trial court’s reasoning and adopt it as our own:

Defendant contends that since the substitute information failed to characterize his prior conviction of tampering with a motor vehicle as a felony, and since the trial court’s finding also failed to do so and he was not sentenced to the penitentiary, there is no evidence he was previously convicted under Subsection 1 of Section 560.175 [a felony], as opposed to Subsections 2 or 4 [misdemeanors]. . Taking judicial notice of the files and records of this court, it appears that on October 23, 1964, movant pleaded guilty to tampering with a motor vehicle as charged in these words: “That Robert Franklin . . . unlawfully, wilfully and feloniously did improperly interfere and tamper with a certain motor vehicle, to-wit: ... by breaking vent window, of said motor vehicle, without permission so to do . . . .” Not only does the prior information expressly describe the offense to have been committed ‘feloniously’ but the act constituting the offense “breaking the vent window” clearly falls only within the purview of the word “tamper” in felony Subsection 1 of the statute. Therefore, the fact that the use of the word “felony” was overlooked in the substitute information in the present case and in the finding made by the trial court therein was not, in fact, prejudicial to movant and does not constitute an infirmity requiring the vacation of the judgment therein. A procedural error without prejudice is not grounds for reversal. State v. Brown, 554 [S.W.2d 574] (Mo.App.1977).

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri ex rel. MEMBERS OF the BOARD OF EDUCATION OF EVERTON R-III SCHOOL DISTRICT, Relators-Appellants, v. MEMBERS OF the BOARD OF EDUCATION OF GREENFIELD R-IV SCHOOL DISTRICT, Respondents.
    No. 10560.
    Missouri Court of Appeals, Springfield District, Division Two.
    Oct. 19, 1978.
    Nicholas R. Fiorella, Springfield, for rela-tors-appellants.
    J. A. Appelquist, Springfield, for respondents.
   BILLINGS, Chief Judge.

Two-count suit by Everton R — III School District against Greenfield R-IV School District. Plaintiff sought mandamus and declaratory judgment relief, challenging the change of boundaries between the two districts. The trial court ruled quo warran-to, not mandamus, was plaintiff’s remedy and entered judgment for defendant on count two. The judgment entered on count two is modified as hereinafter set forth, and as modified the judgment of the lower court is affirmed.

Everton and Greenfield are six-director districts. Pursuant to § 162.431, RSMo 1969, an election for a change in boundaries was conducted. Everton voted against and Greenfield voted for the proposed change. Appeal to the state board of education resulted in the appointment of a Board of Arbitration which approved the boundaries change. This action transferred property formerly included in Everton district to the Greenfield district.

Plaintiff’s counts alleged the transferred property was not contiguous territory to the Greenfield district and the change violated Missouri law. Both counts sought restoration of the disputed property to Everton’s jurisdiction.

After hearing evidence, the trial court sustained Greenfield’s motion to dismiss the mandamus proceeding and in entering judgment against Everton for a declaratory judgment held the court . can not and will not disturb, invade or review the merits of changes in school district boundaries passed upon by a Statutory Board of Arbitration having duly acted as in the case at hand and [Everton is] denied the relief requested in Count Two and the decision of the Board of Arbitration is upheld.”

We need not and do not consider Ever-ton’s contention that § 162.431 requires any boundaries change to be contiguous to the districts involved because resolution of that question can only be determined in quo warranto since it is clear to us that the dispute in this case involves claim of jurisdiction over the same property by two school districts. “[T]he public interest is involved and the rights of the respective districts should be settled in Quo Warran-to.” State ex rel. Purdy Reorg. Sch. Dist. No. 11 v. Snider, 470 S.W.2d 805, 809 (Mo.App.1971).

In State ex inf. Dalton ex rel. Hough v. Eckley, 347 S.W.2d 704 (Mo. banc 1961), our Supreme Court said at 707: “Quo Warranto is a proper remedy to test the jurisdiction of a school board over territory claimed by another school district.” The court also stated that the courts could not review the merits of changes in boundaries or the merits of a reorganization of school districts because such matters, as well as the proceedings to effect such changes, were legislative matters.

Everton, nevertheless, contends it is entitled to judicial review, either in mandamus or by declaratory judgment, and in support of the latter remedy relies on declaratory judgment suits in which the validity of annexation proceedings was the central issue. In an earlier chapter of Eckley, England v. Eckley, 330 S.W.2d 738 (Mo. banc 1959), the court reviewed at length the history of the change of boundaries statute and distinguished what is now § 162.431 from the annexation statute, § 162.441. Among other things, the court noted that arbitration between districts is provided for in change of boundaries but not in annexation proceedings, and said “Arbitration was provided for upon disagreement of districts, the arbitration to be final.” 330 S.W.2d at 743 (our emphasis).

The trial court correctly ruled mandamus would not lie against Greenfield. It was also correct in concluding it had no jurisdiction to review the merits of the boundaries change between the contesting districts. It erred in purporting to affirm the decision of the Board of Arbitration. Having determined it had no jurisdiction, the count for declaratory relief should have been dismissed without prejudice to plaintiff’s right to proceed via quo warranto if it was so inclined. Accordingly, the judgment entry is so modified and as modified, is affirmed.

HOGAN, J., and RAGLAND, CONLEY and YEAMAN, Special Judges, concur.


author: FLANIGAN, Judge.

text:
    W. W. WILSON, Appellant, v. Anna Chloe WILSON, Respondent.
    No. 10322.
    Missouri Court of Appeals, Springfield District.
    Oct. 19, 1978.

      Devon F. Sherwood, Springfield, for appellant.
    Garrison & Eiffert, Ozark, for respondent.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   FLANIGAN, Judge.

In this dissolution of marriage proceeding, the second between the parties, appellant-husband claims that the trial court erred in that the amount awarded the wife as her share of the marital property was excessive, the maintenance award in favor of the wife was excessive, and the amount awarded for the fee for her attorneys was excessive. This court has read the two-volume transcript, examined the exhibits, and considered the briefs of the parties. The decree entered by the trial judge is supported by substantial evidence and is not against the weight of the evidence. No error of law appears and abuse of discretion by the court is not demonstrated. An opinion would have no precedential value.

In compliance with Rule 84.16 V.A.M.R. the judgment is affirmed.

All concur.


author: BROCK, Justice.

text:
    Elizabeth M. MORRIS, Appellant, v. Charles W. GROSS, Appellee.
    Supreme Court of Tennessee.
    Oct. 27, 1978.

      Walter Buford, Memphis, for appellant.
    John J. Thomason, Kenneth R. Master-son, Memphis, for appellee; Thomason, Crawford & Hendrix, Memphis, of counsel.
   OPINION

BROCK, Justice.

I

The plaintiff, Elizabeth M. Morris, sues the defendant, Charles W. Gross, a physician, for damages for personal injuries alleged to have resulted from malpractice on the part of the defendant.

The defendant, in his answer, pled that the plaintiff’s action was barred by the special statute of limitations of sixty days contained in Section 4(g) of Chapter 759 of the Public Acts of 1976, now codified as T.C.A. § 23-3403(g). The plaintiff responded to this defense by a motion for partial summary judgment in which she asserted that Section 4(g) is invalid, in that it violates the equal protection and due process provisions of the federal and state constitutions.

After a hearing, based upon the complaint, the answer, the plaintiff’s motion for partial summary judgment and argument of counsel, the trial judge concluded that the special sixty days statute of limitations was valid and applicable to the plaintiff’s claim; and since the complaint had not been filed within the sixty day period provided by that statute, he concluded that the plaintiff’s claim was barred. Accordingly, he dismissed her complaint. She appeals from the order of dismissal.

The complaint alleges that plaintiff’s cause of action accrued on October 1, 1975, at which time the “Medical Malpractice Review Board and Claims Act of 1975,” T.C.A., § 23-3401 et seq., was in effect and controlled the plaintiff’s claim. That Act then provided, in pertinent part, as follows:

“Section 23-3403 .
******
(b) No medical malpractice action shall be filed in any court within this state unless the plaintiff in such action shall have complied with the provisions of this chapter requiring a review of the claim upon which such action is based by the Medical Malpractice Review Board having jurisdiction over the matter.
(c) Prior to the filing of a medical malpractice action, the claimant shall give written notice to the board . [Simultaneously a copy of said notice shall be sent by registered or certified mail to each party against whom the claim is or may be asserted. Such notices must be given within the time for filing an action as prescribed by the applicable statute of limitations. The giving of such notices shall toll the running of the statute until such time as the board shall have completed its hearing, made its recommendations, and given the parties an opportunity to act thereon as hereinafter provided. (Emphasis added.)
* ⅜5 * ⅜ * *
(e) . . . if either party rejects the recommendations of the board, or, in the event the parties accept the recommendations of the board but fail to execute an agreement within thirty (30) days, then after the expiration of such thirty (30) day period, the claimant may proceed to file his malpractice action in any court having jurisdiction of the same.”

The plaintiff complied with the requirements of the statute, as it then existed, by filing her written claim with the Medical Malpractice Review Board on November 5, 1975, and, in due course, the defendant filed his written response thereto. The Board assumed jurisdiction of the claim and, by a letter dated March 29, 1976, notified the parties that a hearing would be set in the near future and that the parties “. will be notified of the date and place of the hearing.”

However, before a hearing was conducted, the legislature enacted Chapter 759 of the Public Acts of 1976 which repealed the above quoted provisions of the 1975 Act and, in lieu thereof, provided that a malpractice claim must first be filed in the appropriate court, instead of with the Board, and that, after such case should become at issue, the judge would refer the claim to the Malpractice Review Board for review. It was provided that the Board would conduct a hearing and make recommendations to the parties but that, if the recommendations of the Board were not accepted, the claimant might proceed with his malpractice action in the court in which suit had been filed.

Section 4 of the 1976 Act is of particular relevance to the case before us, in that, it dealt specifically with claims, such as that of the plaintiff, which were pending before the Malpractice Review Board on May 1, 1976, and had not been filed in court. Section 4 provides as follows:

“Any person who has prior to May 1, 1976, timely filed a malpractice claim or claims with the board but had not as of that date filed a malpractice action against the health care providers involved shall, not later than sixty (60) days after May 1, 1976, file his or her malpractice action or actions in the proper court. After such action or actions are at issue the court shall refer the action to the board to proceed as set forth herein. The completion of the aforesaid proceedings in court shall not delay the review of malpractice claims pending before the board on or before May 1, 1976. The timely filing of such claim or claims shall continue to toll the running of the applicable statute of limitations for said sixty (60) day period.”

Although the 1976 Act had the effect of terminating the jurisdiction of the Medical Malpractice Review Board over claims pending before it on May 1, 1976, and required that such claims be filed in court within sixty days immediately following May 1, 1976, or be forever barred, the Act contained no provisions for giving notice to claimants of such dismissals and of the necessity for filing such claims in court within sixty days.

The plaintiff, having timely filed her claim before the Board as directed by the 1975 Act, awaited the promised notification from the Board that a hearing on her claim had been set. She had no notice of the passage of the 1976 Act and of the effect upon her claim of Section 4 of that Act until the fall of 1976, after the new sixty day period of limitations had run. She filed her complaint in this action on November 5, 1976.

II

We hold that the portion of the 1976 Act, now codified as T.C.A., § 23-3403(g), quoted supra, is invalid. In our view, it deprives the plaintiff and other claimants who had claims pending before the Board on May 1, 1976, of property without due process of law as guaranteed by the Fourteenth Amendment to the Constitution of the United States and the law of the land clause of Article I, Section 8 of the Constitution of Tennessee. Moreover, it also violates the mandate of Article I, Section 20 of the Constitution of Tennessee, “that no retrospective law, or law impairing the obligation of contracts, shall be made.”

It is well settled that a vested right of action is as much property as are tangible things and is protected from arbitrary legislation, whether such right of action be based upon the law of contracts or upon other principles of the common law. Mabry v. Baxter, 58 Tenn. 682 (1872); Collins v. East Tennessee, Virginia & Georgia Railroad Company, 56 Tenn. 841 (1872); Coombes v. Getz, 285 U.S. 434, 52 S.Ct. 435, 76 L.Ed. 866 (1932); Pickering v. Peskind, 43 Ohio App. 401, 183 N.E. 301 (1930); 16A C.J.S. Constitutional Law § 614 (1956). Such a vested right of action enjoys the full protection of the due process clauses of the Federal and State Constitutions. See State v. Louisiana Oil Refining Corporation, 176 So. 686 (La.App.1937), motion denied, 177 So. 476 (La.App.1937), aff’d 304 U.S. 197, 58 S.Ct. 832, 82 L.Ed. 1287 (1938), rehearing denied, 304 U.S. 589, 58 S.Ct. 1044, 82 L.Ed. 1549 (1938).

“Vested rights include not only legal or equitable title to enforcement of a demand but also an exemption from new obligations created after the right has vested. . . . The words [vested rights] are used as implying interests which it is proper for the state to recognize and protect and of which the individual could not be deprived arbitrarily without injustice.” 16 Am.Jur.2d Constitutional Law § 421 (1964).

We recognize the general rule that no one has a vested right in a particular remedy for the enforcement of a right of action and, thus, that the legislature ordinarily may change existing remedies for the enforcement of rights, including those which have already vested, without denying due process of law, provided, a substantial remedy to redress that right by some effective procedure is given. Brandon v. Warmath, 198 Tenn. 38, 277 S.W.2d 408 (1955); Hope v. Johnson, 10 Tenn. 123 (1826); Gibbes v. Zimmerman, 290 U.S. 326, 54 S.Ct. 140, 78 L.Ed. 342 (1933); 16A C.J.S. Constitutional Law § 614 (1956).

It is equally clear, however, that principles of due process forbid the legislature to abolish a remedy that has been so far carried into operation that the substantive rights of the litigants would be adversely affected if the remedy, as to them, were abolished. Fisher’s Negroes v. Dabbs, 14 Tenn. 119 (1834); Mabry v. Baxter, supra; Ruecking Const. Co. v. Withnell, 269 Mo. 546, 191 S.W. 685 (1917), aff’d 249 U.S. 63, 39 S.Ct. 200, 63 L.Ed. 479 (1919); McSurely v. McGrew, 140 Iowa 163, 118 N.W. 415 (1908); Commonwealth v. Brown, 327 Pa. 136, 193 A. 258 (1937); Koger v. Ball, 497 F.2d 702 (4th Cir. 1974).

In the Dabbs case, supra, this Court held that an 1831 statute, which directed the chancellors of the state to dismiss all pending bills filed by slaves in the chancery courts to gain their freedom, as authorized by an 1829 statute, and which directed the clerks to send the records in such cases to the county court for trial “as if originally filed therein,” was unconstitutional and void because it denied to such plaintiffs the remedial rights that vested when they filed their bills in the chancery court.

In the Mabry case, supra, this Court had before it a statute enacted in 1871 that gave to parties jointly sued the right to sever and, if not sued in the county of their residence, the right upon demand to have a change ,of venue to the county of their respective residences. Prior to the enactment of the' 1871 act, defendants jointly sued did not have such an absolute right to sever nor the right, if not sued in the county of their residence, to have a change of venue to the county of their respective residences upon demand but were limited to requesting such relief from the trial judge who had discretion to deny or grant it. This Court held that the 1871 act, when applied to a suit pending at the time it became effective on December 11,1871, was unconstitutional because (1) it did not furnish to the plaintiff a remedy substantially the same as that in force when his suit was commenced and (2) was a “judicial,” rather than a “legislative” act. See also Henderson v. Ford, Tenn., 488 S.W.2d 720 (1972).

In Commonwealth v. Brown, supra, a statute which attempted to abolish a municipal court without any provision for the protection of rights vested by litigation in such court was held to deny due process of law to the litigants and, therefore, invalid.

In the McSurely case, supra, the Iowa court considered an act of the legislature which declared void any action brought on a county treasurer’s bond. The court held that the act could not be constitutionally applied to an action on a county treasurer’s bond which was pending at the time the statute became effective. The Iowa court said:

“After action is brought it is certainly beyond the power of the Legislature to declare that action void and the court in which it is pending without jurisdiction. Such matters are purely judicial, and not legislative, and under our three-department system of government it is inadvisable for one to assume the powers, duties, or responsibilities of the other. When action is once commenced the question of jurisdiction is purely a judicial one, and the Legislature should not attempt to usurp the functions of the judiciary by such an act as is now under consideration.” 118 N.W. at 417, 418.

In the Ruecking Const. Co. case, supra, the Missouri court considered a statute which required that notice be lodged with the city comptroller within ten days after the institution of an action to enforce a “special tax bill.” The court held that the act could not constitutionally be applied retroactively to a suit instituted prior to its passage and, in the course of its opinion, said:

“. . .We have held in no uncertain terms that a statute which takes away or impairs a right acquired under existing laws or creates a new obligation or imposes a new duty or attaches a new disability in respect to transactions or considerations already consummated must be deemed retrospective in its operation, and hence violative of section 15 of article 2 of the state Constitution.” 191 S.W. at 688.

Without any notice whatever to the litigants, Section 4 of the 1976 Act before us had the effect of ousting the Medical Malpractice Review Board of its jurisdiction over those claims pending before it on May 1, 1976, or of dismissing such claims, thereby depriving the plaintiff and other such claimants of the benefit of the provisions of Subsection c of the 1975 Act, T.C.A., § 23-3403, that:

“. . . the giving of such notices shall toll the running of the statute until such time as the board shall have completed its hearing, made its recommendation, and given the parties an opportunity to act thereon, as hereinafter provided.”

Also, Section 4 of the 1976 Act purported to create a new statute of limitations of sixty days and started the running of this new period of limitations on May 1, 1976, without providing for the giving of notice to the plaintiff and other claimants that their rights were thus affected.

Although the legislature ordinarily may reduce the statute of limitations and make the reduced period of limitations applicable to the rights of action which have already accrued, provided the new period of limitations accords to claimants a reasonable time within which to file suit, it cannot, by legislative fiat, dismiss an action already pending in the appropriate tribunal, in this case, the Medical Malpractice Review Board, and provide that such action must be filed in court within sixty days of such dismissal or be forever barred, without notice to the owners of claims thus affected. Such a statute obviously denies due process of law to the claimants and also violates the above quoted constitutional provision that no retrospective laws shall be passed.

“Although, . . . existing causes of action may be affected by statutory amendments whereby procedural limitation periods are shortened or lengthened, the legislature has no power to interfere with vested rights of action after suit has been commenced.” 51 Am.Jur.2d Limitation of Actions § 28 (1970) citing Slover v. Union Bank, 115 Tenn. 347, 89 S.W. 399 (1905); Shaurette v. Capitol Erecting Co., 23 Wis.2d 538, 128 N.W.2d 34 (1964).

See also Bates v. Shapard, 224 Tenn. 672, 461 S.W.2d 946 (1970).

The parties who litigate claims before the courts or administrative tribunals are charged with notice of steps taken by the court or administrative tribunal or by opposing parties in the regular course of such proceedings, but they cannot be expected to anticipate and will not be charged with notice that the legislative branch of government will attempt to interfere in such proceedings and effect a dismissal thereof.

When the plaintiff filed her claim with the Medical Malpractice Review Board, she thereby acquired a vested right in the provision of T.C.A., § 23-3403(c), that such filing “. . shall toll the running of the statute until such time as the board shall have completed its hearing, made its recommendations, and given the parties an opportunity to act thereon as hereinafter provided.” In other words, she acquired a right that the statute of limitations would not begin to run again on her right of action until the board had disposed of her claim in due course as provided by the 1975 Act. We hold that, under the above cited authorities, Section 4 of the 1976 Act is invalid because it deprived the plaintiff of this right without notice with the result that the new sixty day statute of limitations ran before she learned of its existence. Such a deprivation is a denial of due process.

Moreover, Section 4 of the 1976 Act, in dismissing the plaintiff’s claim before the Board as of May 1, 1976, in starting the statute of limitations to run on that date and in repealing the limitation provisions which were in effect at the time plaintiff filed her claim before the Malpractice Review Board and substituting, in lieu thereof, a new sixty days period of limitations, is a retrospective law which is prohibited by Article I, Section 20 of the Constitution of Tennessee.

Retrospective laws are generally defined, from a legal standpoint, as those which take away or impair vested rights acquired under existing laws or create a new obligation, impose a new duty, or attach a new disability in respect of transactions or considerations already passed. Fisher’s Negroes v. Dabbs, supra; Mabry v. Baxter, supra; O’Connor v. City of Memphis, 74 Tenn. 730, 739 (1881); Roberts v. Knoxville Transit Lines, 36 Tenn.App.595, 259 S.W.2d 883, 886 (1953).

Since Section 4 of the 1976 Act is invalid, the plaintiff’s action was not barred by the sixty days limitation therein provided. Instead, plaintiff’s right of action was governed by the limitation provisions of the 1975 Act, T.C.A., § 23-3401 et seq., as it was prior to the enactment of Chapter 759 of the Public Acts of 1976, and by T.C.A., § 28-304. Under those provisions she had one year from the date her cause of action accrued, T.C.A., § 28-304, within which to file her suit in court, as extended, however, by provisions of T.C.A. § 23-3403, that limitations were tolled from the date her claim was filed before the Medical Malpractice Review Board until the Board should dispose of her claim. Since the Board did not dispose of her claims before she filed suit in court, it follows that the suit was timely filed.

The judgment of the trial court is reversed and the cause is remanded for appropriate further proceedings. Appellee will pay the costs incident to this appeal.

HENRY, C. J., and FONES, COOPER and HARBISON, JJ., concur.


author: HARBISON, Justice:

text:
    Thomas C. PRINCE, Petitioner-Defendant, v. Gloria Lyle PRINCE (Koogler), Respondent-Plaintiff.
    Supreme Court of Tennessee.
    Oct. 30, 1978.
    Frank L. Flynn, Sr., Robert J. Brenner, Knoxville, for petitioner-defendant.
    Ray H. Jenkins, Knoxville, for respondent-plaintiff.
   OPINION

HARBISON, Justice:

This case involves the interpretation of life insurance provisions in a divorce decree.

The trial judge held that upon remarriage of the wife, some two years after entry of the decree, the husband had no further obligation to pay premiums on the policies involved. He dismissed a contempt petition citing the husband for discontinuing the payments. He held, however, that the husband, at the option of the wife, would be obligated to pay to her in a lump sum any cash values of the policies as of the date of her remarriage. The Court of Appeals reversed. It concluded that the provisions of the divorce decree were in the nature of a property settlement, requiring the husband to maintain the insurance policies for the benefit of his former wife, despite her remarriage, and to continue the payment of premiums in the future. This Court granted certiorari to give further consideration to the issues.

The question presented is more factual than legal. In the disposition of domestic relations cases insurance on the life of the husband is utilized in many different ways in making provisions for alimony, child support and the settlement of property rights. In many instances the husband is required to procure or maintain insurance on his life for the benefit of his former wife only for specific periods of time, or until her death or remarriage. Frequently such insurance is used as a form of security, to guarantee to the wife a minimum or a specified sum, and to insure its payment in the event of the untimely death of the husband.

On the other hand, it is not at all uncommon for property settlements to provide that a husband maintain his life insurance for the benefit of his wife indefinitely and that he pay the premiums until policy maturity or until his death. The insurance proceeds may, and frequently do, comprise a major portion of an overall or lump-sum division of assets between the parties.

The problem is primarily one of draftsmanship and of the intention of the parties. There is nothing improper or contrary to public policy in an agreement by a husband to continue to pay premiums on insurance policies for the benefit of his former wife, despite her remarriage. In many instances insurance carriers are furnished copies of such agreements and are directed to notify the wife or her counsel in the event of failure of the husband to comply with their terms.

In the present case the provisions of the divorce decree were somewhat indefinite. They were not entirely clarified by the testimony offered at the contempt hearing. The parties are in disagreement as to the meaning and import of the provisions of the decree which they agreed upon. However, many of the facts leading up to their agreement are not disputed.

Respondent, then Mrs. Prince, filed her petition for divorce on April 3, 1972. The petition recites that the parties at that time had been married for about five and one-half years and had no children. The husband was charged with cruel and inhuman treatment. The petition states that the parties had made “a full, final and complete property and alimony settlement,” the terms of which were set out in ten paragraphs. It is not necessary to quote these in detail. The petition states that the wife was the owner of a residence in Knoxville, encumbered by a small first mortgage and also by a home improvement loan. It alleges that the husband had agreed to make payments on the home until it was cleared, or until remarriage of the wife. The wife was also to receive certain articles of household furnishings and an automobile, with the husband agreeing to make monthly payments on the unpaid purchase price of the automobile until it was fully paid or until the wife remarried. The husband also agreed to pay to the wife periodic alimony of $410 per month, these payments to continue until remarriage of the wife.

The fifth paragraph of the alleged agreement is that around which the present dispute centers. The complaint alleged:

“(5) Defendant is the owner of life insurance policies, and he is to give and transfer to the plaintiff life insurance which he now carries aggregating $30,-000, which is to be the absolute property of the plaintiff with no strings attached, and defendant is to continue paying the premiums on said life insurance. The said policy will be delivered to the plaintiff.”

The divorce petition further recites that the defendant had agreed to provide certain tuition for the wife at the University of Tennessee for a period of two years, and there were provisions for the repayment by him to her and to her son of certain loans they had made to him, totaling $16,000. These were to be repaid after the mortgage payments on the home and automobile had been completed. There was no provision for termination of these payments upon the remarriage of the wife. In the ninth paragraph the husband agreed to purchase for the wife a five-acre tract of land, and in the tenth paragraph there was provision for his payment of her attorney’s fees.

The only other provision of the agreement with reference to any type of insurance was the seventh paragraph as follows:

(7) Defendant is to pay for all reasonable repairs and upkeep on plaintiff’s automobile, and likewise is to pay the premi-urns on automobile liability insurance until she remarries or dies, also hospitalization insurance.”

The petition alleged that the foregoing agreement was to be incorporated into any final divorce decree, and that there was to be a further provision that if the husband should die before the $16,000 indebtedness to the wife and son was fully liquidated, the balance should be an obligation upon his estate.

To this petition, the husband filed an answer, through counsel, the last paragraph of which is as follows:

“He admits that the agreement of the parties hereto with respect to property, alimony and support, and other payments is correctly set forth in the original complaint.”

The divorce case was heard on May 5, 1972, a little over a month after the petition had been filed, and a final decree was entered on that date, signed by the trial judge and by counsel for each of the parties. It awarded a divorce to the wife, and ratified and confirmed the agreement between the parties. The terms of the agreement were restated in the divorce decree, in unnumbered paragraphs, but almost verbatim in the language of the original complaint.

The decree recited that it was final insofar as the divorce was concerned, but the cause was retained on the docket and continued from term to term for the purpose of enforcing “the provisions thereof”.

Insofar as the record reveals, there never was a separate written property settlement and alimony agreement between the parties. Such agreements as had been reached were reflected in the petition and in the final divorce decree.

It is apparent from reading the agreements between the parties that many of the obligations of the husband were expressly made to terminate upon the remarriage or death of the wife, including provisions for automobile and hospitalization insurance premiums. Others were clearly to survive even the death of the husband and obviously were not to be affected by remarriage of the wife, these including the purchase and transfer to her of a five-acre lot, and the payment of $16,000 in indebtedness, representing money borrowed from the wife and her son by a former marriage. The payments of tuition for a period of two years at the University of Tennessee were not to be affected by remarriage, nor were those involving distribution of household furnishings or payment of counsel fees.

There is no reference whatever to termination of petitioner’s obligation to pay the life insurance premiums in the provisions now in dispute. The divorce decree is indefinite as to what type of life insurance was contemplated — that is, whether the husband was merely to provide term insurance, a whole life policy, or some combination thereof. There are no references to the insurance carrier, policy number, or any other specific data such as are frequently included in settlement agreements of this type. On its face, however, the agreement contemplated that the husband would make the wife the absolute owner of any life insurance covered by it, and seemingly he agreed to continue to pay the premiums thereon indefinitely.

It is undisputed that pursuant to this agreement the husband did transfer certain insurance policies to his wife and executed other documents which will be referred to hereafter. He paid the premiums on $30,-000 of life insurance for the benefit of his former wife until her remarriage in August 1974. How the parties treated these premium payments for income tax purposes does not appear in the record.

Following remarriage of the wife, however, the husband ceased paying premiums, and she thereafter filed a petition for contempt, charging him with failure to comply with the provisions of the final decree. He filed an answer and counterclaim, asserting that the remarriage of the wife terminated his obligation to pay the premiums and alleging that such payments “were in the nature of alimony.” In the alternative, he prayed that the court modify the provisions of the decree and terminate his obligations with respect to life insurance, alleging that remarriage of the wife represented a material change in circumstances justifying such action. The wife answered this counterclaim, asserting that the provisions for life insurance were part of a property settlement which had been fully understood and agreed to by both parties.

The trial judge held an oral hearing on June 30, 1977. The parties testified generally in accordance with their pleadings. Both the husband and the attorney who represented him in the divorce action testified that the premium agreement was intended to guarantee to the wife a reasonable sum of alimony if the husband died. They insisted that premiums were provided only as security for such alimony, with the intention that any premium payments by the husband would terminate upon her remarriage. Both testified entirely without records.

The testimony revealed that the husband was an established physician with a substantial amount of life insurance in force, but he testified that most of it was encumbered by policy loans at the time of the divorce. He said that there had been no discussion between the parties as to the kinds of policies which he would make available to his wife. He testified, however, that he had some “term insurance” and that this was what he used in fulfilling the provisions of the divorce decree. He testified that he had a combination policy of hospitalization, disability and life insurance with the state medical association, which included $5000 of term life insurance with no cash surrender value. He transferred this to his wife, along with another $25,000 “term insurance” policy. He stated:

“Q. So actually neither policy had any cash surrender value at the time?
“A. Correct.
“Q. Did you have to obtain copies of these policies?
“A. Yes.
“Q. Had they been lost or misplaced? “A. Yes they had.
“Q. And you obtained copies of those two policies from the companies and delivered them to your former wife, the plaintiff in this lawsuit?
“A. That is correct.
“Q. And you have kept those policies in force and effect until she remarried?
“A. That is right.”

Had these been the facts, and had the husband only provided term life insurance having no cash surrender value, loan value or other ownership benefits, his insistence that the insurance was intended only as security for the periodic alimony payments would be strengthened. Later in the hearing, however, there were introduced a number of documents, which demonstrate that the foregoing testimony by Dr. Prince was materially erroneous, and which also shed some light upon his intentions and his understanding of his obligations under the divorce decree.

Apparently the insurance which he had with the state medical association was indeed group term insurance. The policy is not in the record. On May 12, 1972 Dr. Prince wrote to the managing agent for that group, requesting a change of beneficiary on the $5000 life insurance portion of this policy, designating respondent as the new beneficiary.

On the same date, however, he wrote to John Hancock Mutual Life Insurance Company with respect to policy No. 7134710, as follows:

“This is to inform you that I am requesting a change of beneficiary of the above policy from the Insured Estate to Mrs. Gloria June (Betty) Lyle, previously Gloria June Prince. She is also to become owner of this policy and upon receipt from you of the change of beneficiary, I will deliver the policy to her the face amount of the policy is $25,000. I will continue to pay the premiums.” (Emphasis added).

This letter was written one week after the entry of the divorce decree. It makes no reference whatever to any limited obligation on the part of the husband to pay premiums, nor does it advise the carrier that it should look to the wife for premium payments in the event of her remarriage.

Under date of May 26, 1972, Dr. Prince signed a change of beneficiary form. On the previous day he executed an absolute assignment of the policy, transferring it to the wife. On this form are printed directions with respect to premiums. Dr. Prince on that form expressly directed the company to “Continue Current Premium Billing.” (Emphasis supplied). He mailed Mrs. Prince copies of his correspondence with the insurance carriers and sent her the John Hancock policy on May 12.

The policy with John Hancock was not by any means “term” insurance. It was a policy of whole life insurance, issued on October 15, 1959, in the amount of $25,000. It was unencumbered and, according to tables of values contained therein, had a cash surrender value on the date of its transfer to respondent in excess of $5,500. Premiums at that time could have been terminated leaving permanent paid-up insurance in excess of $10,000. In addition the policy contained a feature under which additional term insurance was to be purchased each year out of dividends, and any additional dividends were to be applied in reduction of premiums.

It is thus readily apparent that Dr. Prince transferred to his former wife not merely “term” insurance to provide a fund to substitute for monthly alimony if he died. She was given a whole life policy having substantial accrued value. He did not question that she was to become the absolute owner of this policy. The ownership transfer, of course, prevented his encumbering it or further changing the beneficiary and also gave her control of the cash and loan values.

Insofar as the record discloses, petitioner never advised either the carrier or his former wife that he was expecting to cease paying the premiums on this policy at any time prior to his death or until the policy matured without further premiums. He made no objection to the introduction of the policy and accompanying correspondence in evidence, nor did he take the stand after the policy had been introduced to explain or modify his previous testimony, part of which was quoted above.

From an examination of the record, therefore, we are in agreement with the Court of Appeals that more was intended in this case than the mere procuring of term life insurance on a temporary basis to insure payment of alimony in the event of premature death of the husband. The property settlement agreement appears to have been carefully negotiated by knowledgeable counsel and well-informed parties. It made no reference to the termination of insurance premiums upon remarriage of the wife, although there were careful provisions for termination of many of petitioner’s other obligations in that event.

Both parties have cited cases from other jurisdictions, some holding that obligations of a husband with reference to life insurance premiums terminated upon remarriage of the wife, and others holding to the contrary. We do not find precedents to be of controlling value in the case, however, since the issue is primarily one of fact and of the intention of the parties. We are persuaded both by the terms of the agreement itself and by the preponderance of the oral testimony that the life insurance provisions incorporated into the final divorce decree were intended to be part of a property settlement or division of assets between these parties and were not intended merely to be temporary security for the payment of interim alimony.

Accordingly the judgment of the Court of Appeals is affirmed. The cause is remanded to the trial court with directions to require petitioner to reinstate the policies at his expense, to obtain equivalent insurance, or, subject to court approval, to make other financial arrangements providing comparable benefits to the respondent. Because all parties apparently acted in good faith, we see no reason to hold petitioner in contempt or to impose any punitive sanctions upon him. All costs in the cause are taxed to petitioner.

HENRY, C. J., and COOPER, FONES and BROCK, JJ., concur.

      . The provision with respect to life insurance as carried in the divorce decree differed from the allegations of the complaint only in a minor respect. In the last portion it called for delivery to the plaintiff of a “policy or policies” whereas the complaint had referred only to a single policy.

      . E. g., Maginnis v. Maginnis, 323 Ill. 113, 153 N.E. 654 (1926); Wiederanders v. Wiederanders, 187 N.W.2d 74 (N.D.1971).

      . Magarrell v. Magarrell, 144 Colo. 228, 355 P.2d 946 (1960); Lynch v. Lynch, 67 Wash.2d. 84, 406 P.2d 621 (1965).


author: FONES, Justice.

text:
    STATE of Tennessee, Petitioner, v. Myles WITT and Claude W. Folk, Respondents.
    Supreme Court of Tennessee.
    Nov. 6, 1978.

      Brooks McLemore, Jr., Atty. Gen., Linda Ross Butts, Asst. Atty. Gen., Nashville, for petitioner.
    Philip P. Durand, Ambrose, Wilson Lock-ridge & Grimm, Knoxville, for respondents.
   OPINION

FONES, Justice.

The trial judge, upon motion of defendants, dismissed the indictments for murder in the first degree, after three mistrials had been declared because of deadlocked juries. The issue is whether the trial judge had authority to dismiss this prosecution either in the exercise of a sound judicial discretion or upon the constitutional grounds of double jeopardy, cruel and unusual punishment or due process.

Defendants Witt and Folk and one Marvin E. Kelley were indicted for murder in the first degree in August, 1974. The first trial required six days in October of 1974, the second trial required five days in June, 1975, and the third trial required five days in June, 1976. All three juries reported hopelessly deadlocked as to the guilt or innocence of Witt and Folk. The third trial jury acquitted Marvin Kelley.

The record brought to this Court does not reflect the length of time that each of the three juries deliberated. However, no contention was made by the State or defendants that the trial judge declared a mistrial prematurely on any of the three occasions. We are therefore entitled to, and do, assume that each of the three juries deliberated until it was clearly demonstrated to the satisfaction of all the parties, counsel and the trial judge, that a unanimous verdict of guilt or innocence could not be returned as to Witt and Folk at any one of the three trials. The trial judge at the first trial was H. C. Smith and Tillman Grant presided at the second and third trials and granted defendants’ motion to dismiss.

All three defendants moved to dismiss the indictments, following the second mistrial, which motions were overruled. Similar motions were filed by Witt and Folk after the third jury failed to agree on a verdict. The motions were predicated on the constitutional grounds of double jeopardy, cruel and unusual punishment and due process. A hearing on defendants’ motions was held on December 13, 1976, at which time defendants and the State presented oral argument. Defendants’ motions were supported by the affidavits of two jurors who served on the third trial jury, each to the effect that that jury voted 8 for acquittal and 4 for conviction of various offenses and expressing the belief that no jury would ever agree on a verdict on substantially the same evidence presented at that trial. The State questioned the efficacy of the affidavits as proof, and the trial judge continued the hearing to December 28, 1976, at which time defendants presented eight witnesses. Among the eight witnesses were jurors from each of the three trials and all of those testifying expressed the opinion that no future jury would agree on a verdict, assuming the presentation of substantially the same evidence which they had heard.

At the first hearing the trial judge said that the “big question” in his opinion was, “can this court, or any court ever get a jury that will decide this case in view of the past history?” After hearing defendants’ proof and argument of counsel at the second hearing on the motions, the experienced and distinguished trial judge, from the vantage point of having presided over the second and third trials and having studied Judge Smith’s extensive notes on the evidence presented at the first trial observed, in essence, that both the State and defendants had received three fair and impartial trials before three competent juries; that he particularly recalled that the third jury was an exceptionally good jury, that they knew little or nothing about the case, being from the Sweetwater area, that the Attorney General and defense attorneys “almost beg[ged] the jury to reach a verdict one way or the other, and still they didn’t reach a verdict.” The trial judge, exercising the “Courts discretionary right ... in the interest of justice” dismissed the indictments, implicitly answering the question of whether any future jury would agree on a verdict in the negative. The Court of Criminal Appeals affirmed.

In 1824, the United States Supreme Court rejected a plea of double jeopardy, based upon the trial judge’s discharge of the jury, without defendant’s consent, when the jury could not agree upon a verdict following defendant’s first trial for a capital offense. United States v. Perez, 22 U.S. (9 Wheaton) 579, 6 L.Ed. 165 (1824). Mr. Justice Story writing for the Court reasoned as follows:

“The prisoner has not been convicted or acquitted, and may again be put upon his defense. We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases, especially, courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the judges, under their oaths of office.” 22 U.S. at 580.

In Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973), the Supreme Court was considering a case wherein the trial judge had declared a mistrial over the defendant’s objection because he concluded the indictment was insufficient to charge a crime under Illinois law. The issue was whether the mistrial met the manifest necessity requirement which would defeat defendant’s double jeopardy claim under Perez. After quoting from Perez the Somerville Court continued as follows:

“This formulation, consistently adhered to by this Court in subsequent decisions, abjures the application of any mechanical formula by which to judge the propriety of declaring a mistrial in the varying and often unique situations arising during the course of a criminal trial. The broad discretion reserved to the trial judge in such circumstances has been consistently reiterated in decisions of this Court. . . .
In reviewing the propriety of the trial judge’s exercise of his discretion, this Court, following the counsel of Mr. Justice Story, has scrutinized the action to determine whether, in the context of that particular trial, the declaration of a mistrial was dictated by ‘manifest necessity’ or the ‘ends of public justice.’ The interests of the public in seeing that a criminal prosecution proceed to verdict, either of acquittal or conviction, need not be forsaken by the formulation or application of rigid rules that necessarily preclude the vindication of that interest. This consideration, whether termed the ‘ends of public justice,’ United States v. Perez, supra, at 580 of 22 U.S. or, more precisely, ‘the public’s interest in fair trials designed to end in just judgments,’ Wade v. Hunter, supra, at 689 of 336 U.S., at 837 of 69 S.Ct. has not been disregarded by this Court.” 93 S.Ct. at 1069-1070.

In Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963), Mr. Justice Douglas, in affirming the manifest necessity rationale of Perez said, “The classic example is a mistrial because the jury is unable to agree.” 372 U.S. at 736, 83 S.Ct. at 1034.

Thus, Perez, and its progeny, makes it certain that double jeopardy does not prevent retrial of a defendant after one mistrial resulting from a genuinely deadlocked jury.

We next consider cases dealing with two or more mistrials caused by hung juries.

In Carsey v. United States, 129 U.S.App.D.C. 205, 392 F.2d 810 (1967), defendant was convicted for the murder of his wife by the fourth jury he faced. The first and second trials ended with deadlocked juries. At his third trial the trial judge declared a mistrial because of improper final argument by defense counsel. Defendant’s plea of double jeopardy at his fourth trial was sustained by the appellate court. However, as we read the decision, it was predicated on the absence of a manifest necessity for declaring a mistrial at the third trial rather than the prior two hung juries.

In United States v. Gunter, 546 F.2d 861 (10th Cir. 1976) the first trial of eight defendants resulted in a hung jury. At the second trial two defendants were convicted, and the jury could not agree on a verdict as to the other six defendants. The appellate court rejected their plea of double jeopardy based upon its interpretation of Perez, Som-erville, and Gunter, but said, “There indeed may be a breaking point, but we do not believe it was reached in the instant case.” 546 F.2d at 866.

In Iowa v. White, 209 N.W.2d 15 (Iowa 1973), defendant was convicted by the third jury he faced, his first two trials having ended with hung juries. The Supreme Court of Iowa rejected his plea of double jeopardy, but said, in part:

“On the other hand, repeated efforts to convict an individual for an alleged offense enhance the possibility that even though innocent he may be found guilty, subject him to embarrassment, expense and ordeal, and compel him to live in a continual state of anxiety and insecurity. At some point such pursuit must end.” 209 N.W.2d at 16.

In Preston v. Blackledge, 332 F.Supp. 681 (E.D.N.C.1971), defendants were convicted at their fifth trial, four prior trials having resulted m hung juries. The district judge held that jeopardy attached after the fourth jury failed to agree, precluding a fifth trial.

In United States v. Castellanos, 478 F.2d 749 (2nd Cir. 1973), the trial judge dismissed the prosecution on defendant’s pleas of double jeopardy following two mistrials caused by hung juries. The appellate court reversed, saying in part:

“Judge Dooling recognized this tension between the rights of the accused and the public interest, and held that the appropriate balance was struck by limiting the government to two bites at the apple, at least where it appeared that no new evidence would be introduced at a third trial. But such an approach is the kind of ‘mechanical application of an abstract formula’ that the cases condemn. Wade [v. Hunter], supra, 336 U.S. at 691, 69 S.Ct. at 838. See also, Illinois v. Somerville, supra. Indeed, the Supreme Court decisions make it clear that it is the Perez standard itself which embodies the appropriate balancing test — the defendant’s interests bar retrial in all but those instances where there is ‘manifest necessity’ for taking the case away from the jury. Since each mistrial was properly declared here, the Perez formulation tips the balance in the government’s favor, and does not constitutionally bar retrial.” 478 F.2d at 752.

We are in agreement with the reasoning of the Castellanos Court and reject the application of the constitutional ground of double jeopardy to the instant case.

Defendants have not cited any relevant authority supporting the application of the constitutional grounds of cruel and inhuman treatment or due process to the facts of this case. We think this case involves an element not present in any reported case dealing with multiple trials that ended in deadlocked juries. It is clear that the trial judge made a finding, upon his sound judicial evaluation of the evidence, supported by opinions of jurors who had heard the evidence and participated in deliberations seeking to reach a verdict, that the probability of any future jury reaching a verdict of guilt or innocence is almost nonexistent. In substance that is tantamount to a determination that the evidence presented by the State to three different juries was insufficient to obtain a jury verdict of conviction. The record is devoid of any suggestion that any other factor could have caused or contributed to the hung juries, such as complicated or confusing instructions, erroneous admission or rejection of evidence, emotional factors, etc.

While it is conceded that the State has presented sufficient evidence at each trial to require submission of the case to a jury, that evidence has proven insufficient to convict on three occasions and the trial judge, who is in the best position to evaluate the evidence, does not believe that any future jury will agree on a verdict.

We do not think that the relief applicable here can be accurately labelled double jeopardy, cruel and unusual punishment or due process. However, we think that trial judges have the inherent authority to terminate a prosecution in the exercise of a sound judicial discretion, where, as here, repeated trials, free of prejudicial error, have resulted in genuinely deadlocked juries and where it appears that at future trials substantially the same evidence will be presented and that the probability of continued hung juries is great.

The Perez rule vests in trial judges a sound judicial discretion to balance the public interest in fair trials designed to end in just judgments, with defendant’s valued right to have his trial completed by a particular tribunal, with the result that upon a finding of manifest necessity to declare a mistrial, defendant can be tried again. It must logically follow that trial judges may also exercise a sound judicial discretion and find, under the guidelines expressed above, that defendant cannot be tried again following multiple hung juries and a great probability of additional no verdict trials. Requiring defendants to face additional juries with the continuing prospect of no verdict offends traditional notions of fair play and substantial justice.

This opinion is not to be construed as fixing the permissible or impermissible number of mistrials caused by deadlocked juries. Like the Perez rule, the relevant principles must be applied on an ad hoc basis. The sound judicial discretion of a trial judge to terminate a criminal prosecution is a power that ought to be used with the greatest caution and only in the most urgent circumstances and for very plain and obvious causes, as said by Justice Story in Perez, with respect to the discretion to be exercised in finding manifest necessity for the declaration of a mistrial. The trial judge’s action is, of course, subject to review for an abuse of discretion. There is no evidence of abuse of discretion in the record the State has brought to the appellate courts.

Affirmed.

HENRY, C. J., and COOPER, BROCK and HARBISON, JJ., concur.

      . During the course of the trial judge’s ruling from the bench, on defendants’ motion to dismiss on December 28, 1976, he stated that, to the best of his recollection, the jury in the June, 1976, trial deliberated from 3:00 or 3:30 p. m. to 6:00 or 6:30 p. m. reported, were sent back, and deliberated further until about 9:00 p. m.

      . United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971).


author: COOPER, Justice.

text:
    STATE of Tennessee, Appellant, v. Ray EDWARDS, Appellee.
    Supreme Court of Tennessee.
    Nov. 6, 1978.

      Michael J. Passino, Asst. Atty. Gen., William M. Leech, Jr., Atty. Gen., Nashville, for appellant.
    Jack H. McPherson, Jr., Kingston, for appellee.
   OPINION

COOPER, Justice.

This case is before us on appeal from a judgment by the Roane County Criminal Court, which quashed an indictment that charged a defendant with selling a controlled substance in violation of the Tennessee Drug Control Act.

In general, the Tennessee Drug Control Act, T.C.A. §§ 52-1408 — 52-1448, regulates the manufacture, distribution, sale, and possession of certain materials defined by the Act to be “controlled substances” — materials that, in common parlance, would for the most part be referred to as drugs. These substances are classified in several schedules, depending on the danger presented by their abuse. Penalties appropriate to the severity of the offense and keyed for this purpose to the schedules are imposed for violations of the Act. See, e. g., T.C.A. § 52-1432. Although many substances were placed in the schedules when the Act was first passed, the legislature did not intend that the contents of the schedules necessarily would remain unchanged. Under the provisions of T.C.A. § 52-1410,

[t]he commissioner of mental health and mental retardation upon the agreement of the commissioner of public health . may add substances to or delete or reschedule all substances enumerated in the schedules . ...

In making such a determination, the commissioners are instructed to consider, with respect to each substance, a number of specific factors. In addition, to guide the placement of a given substance on a particular schedule, the legislature has set forth specific criteria relating the various schedules to each other. For example, with respect to schedule IV, T.C.A. § 52-1418 provides:

[The Commissioners] shall place a substance in schedule IV if [it is found] that:
(1) The substance has a low potential for abuse relative to substances in schedule III;
(2) The substance has a currently accepted medical use in treatment in the United States; and
(3) Abuse of the substance may lead to limited physical dependence or psychological dependence relative to the substances in schedule III.

Under the procedure just outlined, the Commissioners added diazepam, the substance which under the indictment the defendant was charged with selling, to schedule IV. Rules and Regulations, State of Tennessee, 0940-8-8.08. The trial judge found the provisions authorizing this addition to be an unconstitutional delegation of legislative authority, and quashed the indictment. We disagree.

At the outset, it should be noted that the area of drug control is one in which some form of delegation by the legislature of discretionary authority to an agency is peculiarly necessary. To be effective, a drug control program must be reviewed continuously, and adjusted when necessary, in the light both of new drugs coming on to the market, and of new knowledge concerning old drugs. The legislature, by its nature, has neither the facilities nor the expertise to assume this task. Furthermore, because the legislature is not in continuous session, it cannot give the drug control program constant attention, the lack of which could result in a dangerous drug being widely disseminated throughout the state before effective controls were instituted. Cf. United States v. Pastor, 557 F.2d 930 (2d Cir. 1977); Iske v. United States, 396 F.2d 28 (10th Cir. 1968).

In general, although the legislature may not delegate power that is “purely legislative,” First Suburban Water Utility District v. McCanless, 177 Tenn. 128, 146 S.W.2d 948 (1941), it may, with certain qualifications, delegate to an administrative agency the authority necessary to implement the expressed policy and program of a given statute. Cf. American Power Co. v. S. E. C., 329 U.S. 90, 67 S.Ct. 133, 91 L.Ed. 103 (1946); Currin v. Wallace, 306 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441 (1939). In so far as is material to the instant case, the qualifications referred to require that the legislature establish adequate standards to guide the agency in its exercise of the delegated authority, and that there be sufficient safeguards to prevent arbitrary action by the agency. Department of Public Welfare v. National Help “U” Assoc., 197 Tenn. 8, 270 S.W.2d 337 (1954). Cf. Kugler v. Yocum, 69 Cal.2d 371, 71 Cal.Rptr. 687, 445 P.2d 303 (1968); Elk Run Telephone Co. v. General Telephone Co., 160 N.W.2d 311 (Iowa 1968); Department of Health v. Owens-Corning Fiberglass, 100 N.J.Super. 366, 242 A.2d 21 (1968).

These criteria are met by the provisions of the Drug Control Act under consideration here. As we noted previously, T.C.A. § 52-1410(a) sets forth a number of specific standards that serve to delineate the general policy of the Act. In addition, T.C.A. § 52-1418, for schedule IV, and the analogous provisions for the other schedules, provide specific criteria for the placement of a substance within a given schedule. Taken as a whole, this statutory scheme is more than adequate to provide the commissioners with the requisite guidance to determine and effect the will of the legislature. A number of other jurisdictions have reached the same result upon the review of similar statutes. United States v. Pastor, 557 F.2d 930 (2d Cir. 1977); Cassell v. State, 55 Ala.App. 502, 317 So.2d 348 ’(1975); People v. Avery, 67 Ill.2d 182, 9 Ill.Dec. 645, 367 N.E.2d 79 (1977) (reversed on other grounds); People v. Uriel, 76 Mich.App. 102, 255 N.W.2d 788 (1977); State v. King, Minn., 257 N.W.2d 693 (1977); State v. Lisk, 21 N.C.App. 474, 204 S.W.2d 868 (1974); State v. Brown, 576 P.2d 776 (Okl.Cr.1978). Furthermore, the manner in which the contents of the various schedules are adjusted provides, on its face, sufficient procedural safeguards to prevent arbitrary exercise of the delegated power. See T.C.A. § 52-1410; §§ 4-507—4-527. There is no indication in the record here that the procedures prescribed by those sections were not followed when diazepam was listed as a scheduled substance.

Although it did not form a basis for the trial judge’s decision, it has been argued before this court that, as diazepam is not one of the controlled substances listed in the Code, the defendant did not have fair notice that its sale was a crime. Of course, if the defendant did not have fair notice that the conduct upon which his indictment is based was unlawful, that indictment could not stand. Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939). However, that situation is not presented here. The defendant has been indicted for conduct clearly proscribed by a duly enacted statute, as amplified by the regulations issued pursuant to it, to which the statute makes reference. There is no indication in the record before us that the regulations defining the offense for which the defendant was indicted were not reasonably accessible to any person who would seek them out. Compare State v. King, Minn., 257 N.W.2d 693 (1977) with State v. Dougall, 89 Wash.2d 118, 570 P.2d 135 (1977) and People v. Avery, 67 Ill.2d 182, 9 Ill.Dec. 645, 367 N.E.2d 79 (1977). Therefore, the defendant must be presumed to have known the content of those regulations, and will be held accountable for any violation of them. McKnight v. State, 171 Tenn. 574, 106 S.W.2d 556 (1937); Atkins v. State, 95 Tenn. 474, 32 S.W. 391 (1895).

The judgment of the trial court is reversed, and the cause is remanded for trial.

HENRY, C. J., and FONES, BROCK and HARBISON, JJ., concur.

      . T.C.A. § 52-1410(a) provides in pertinent part:
      In making a determination regarding a substance, the commissioner of mental health and mental retardation upon the agreement of the commissioner of public health shall consider the following:
      (1) The actual or relative potential for abuse;
      (2) The scientific evidence of its pharmacological effect, if known;
      (3) The state of current scientific knowledge regarding the substance;
      (4) The history and current pattern of abuse;
      (5) The scope, duration, and significance of abuse;
      (6) The risk to the public health;
      (7) The potential of the substance to produce psychic or physiological dependence liability; and
      (8) Whether the substance is an immediate precursor of a substance already controlled under this section.

      . The Tennessee Drug Control Act is patterned after the Uniform Controlled Substances Act, which has been adopted, with various modifications, in 43 states, Puerto Rico, and the Virgin Islands. 9 U.L.A., Supp. 1974-77, at 47. The Uniform Act, in turn, is based in large measure on the Federal Controlled Substances Act, 21 U.S.C. § 801 et seq. 9 U.L.A., at 146.

      . Although not strictly relevant to the question of whether the defendant had notice that his conduct was a violation of state law, in all fairness it should be noted that the sale of diazepam is an offense against federal law as well. 21 C.F.R. § 1308.14.