author: PALMORE, Justice.

text:
    Esther MILLER et al., Appellants, v. COVINGTON DEVELOPMENT AUTHORITY et al., Appellees. Charles D. MITCHELL et al., Appellants, v. COVINGTON DEVELOPMENT AUTHORITY et al., Appellees.
    Supreme Court of Kentucky.
    June 25, 1976.

      Samuel Milner, Eblen, Milner, Rosen-baum & Wilson, Lexington, R. Barry Wehr-man, Covington, for appellants.
    Jo M. Ferguson, Grafton, Ferguson, Fleischer & Harper, Louisville, Donald C. Wintersheimer, Covington, A. Wallace Grafton, Jr., Sheryl G. Snyder, Francis J. Mellen, Jr., Wyatt, Grafton & Sloss, Louisville, George F. Rabe, Lexington, for appel-lees.
    Whayne C. Priest, Jr., Bowling Green, W. David Denton, Paducah, for amici curiae.
   PALMORE, Justice.

This is a test suit to determine whether two acts of the 1974 General Assembly are valid. They are ch. 131, the Local Development Authority Act, and ch. 132, the Tax Increment Act, which have been placed in the statutes as KRS 99.610-99.680 and KRS 99.750-99.770, respectively. We find them both invalid.

Section 1 of the Local Development Authority Act states as its legislative policy “the preservation and revitalization of historically or economically significant local areas” in first and second-class cities and counties operating under the urban county form of government, “while at the same time accommodating necessary and desirable central city and suburban growth.”

The LDA Act creates an independent local agency consisting of the mayor or his designee as an ex officio nonvoting member and seven commissioners appointed by the mayor, with the approval of the governing body of the municipality, for staggered four-year terms. KRS 99.625.

Among the “public and essential governmental functions” it is expressly empowered to exercise is the threshold act of establishing a development plan fixing the boundaries of a project area and designating the “character and extent of the public and private land ownership and uses proposed within the area.” This plan must be “made available for public inspection,” after which the LDA may among other things proceed to acquire any or all real or personal property within the project area, to clear any dr all improvements or cause them to be renovated, to develop and construct residential housing for persons and families of lower income, to subdivide, sell, lease, exchange, encumber or otherwise dispose of any of the property “at its fair cash value,” notwithstanding the cost of its acquisition, for uses consistent with the development plan. None of this requires approval by the municipal governing body.

With regard to its funds (a principal source of which is provided by the Tax Increment Act, discussed hereinafter), the LDA has these powers (among others) within the jurisdiction of its municipal area for the purposes of developing the project area or areas, all without prior approval of the local governing body:

(1) To make, participate in or acquire loans for construction, development or rehabilitation of residential housing projects if it determines that such loans are not available from private lenders “upon reasonably equivalent terms and conditions;”

(2) To insure the payment of loans made by other lenders for those purposes if it determines that such insurance is not available from private insurers “upon reasonably equivalent terms and conditions;”

(3) To make grants (that is, as we construe it, to donate, or give away) to builders, developers and owners of residential housing for the development, construction, rehabilitation or maintenance of residential housing as it “shall deem important for a proper living environment, all on such terms and conditions” as it may deem appropriate;

(4) To consent to modifications in the rate of interest, times of payment, or any other terms of loans and agreements relating to residential housing projects to which it is a party;

(5) To construct residential housing for persons and families of lower income, and to construct, through lessees, industrial buildings pursuant to KRS 103.200-103.285;

(6) To acquire, establish and operate, lease or sublease residential housing for persons and families of lower income, and to contract to assume the rights, powers, obligations and duties of any local housing authority or similar agency of the federal, state, city or urban county government;

(7) To make periodic grants to reduce principal and interest payments on mortgages or rentals payable by persons and families “of low income;”

(8) To borrow or accept funds from any source and, in that respect, to “include in any contract for financial assistance with the federal, state, city or urban-county government any conditions which the federal, state city or urban-county government may attach to its financial aid ” not inconsistent with the purposes of the LDA Act (emphasis added); and

(9) To issue revenue bonds payable solely out of the revenues of the project, including tax increments released to the LDA pursuant to the Tax Increment Act.

The Tax Increment Act is less complex. Its fundamental provision is that any taxing district, including school districts, may contract to “release” to the LDA, for a period up to 25 years, not less than 50% or more than 95% of all ad valorem tax revenues received from a development or project area in excess of those received from the same area in the last year before its establishment.

Obviously these two statutes have the constructive public purpose of enabling urban governments to attempt the revitalization of decaying “inner cities.” The theory on which the hypothecation of future ad valorem tax revenues is justified is that in the long run the taxing districts will be repaid in the form of a greatly enhanced tax base and that the increased revenues (“increments”) meanwhile released to the LDA and used by it to create this enhancement are revenues that would not have existed otherwise. We find no fault in the purpose or in the theory, but for the reasons that follow it is our opinion that each of the acts transcends the limits of the Kentucky Constitution.

We need not encumber our opinion with an excruciating analysis of what this and other courts have said in cases involving similar problems with different facts. Counsel for all parties are familiar with all the broad principles and ancient shibboleths of constitutional law, and recognize that each new application comes down to a matter of degree and calls for a value judgment. In this case the burden of casting that judgment rests finally on the seven elected members of this court.

We mention the word “elected” because it is appropriate to our assessment of the LDA Act. It is a fundamental proposition that a legislative body should not and ordinarily cannot divest itself of a legislative power. A state legislature may delegate legislative powers to cities because a state constitution gives it that right. Cf. Const. § 156. If, however, a state legislature purports to authorize a city to pass such powers on to an administrative agency, it attempts to authorize something it cannot do itself. For that reason cities cannot be so authorized, notwithstanding the legislature’s constitutional prerogative of prescribing the bounds of their powers. If there is one essential characteristic inherent in legislative power, it is that such power must be exercised by an elected representative or representatives of the people, and not by a person, persons or agency created or designated by those representatives. Therein, we think, lies the major flaw of the LDA Act. It authorizes the agency to exercise choices that the people are entitled to have exercised by their elected representatives.

In other instances too numerous to recount, delegations of authority have been upheld on the theory that the legislative body has prescribed standards or safeguards that so confine the administrative body’s powers that it can be said that they do not exceed the scope of mere details in the execution. In our judgment they are not so confined here, nor do we have the safeguard of a long-established administrative agency such as a state highway department or department of education, with a track record of experience and expertise in a well-recognized field. Nor, indeed, are the powers delegated to the LDA confined to matters so involved or so beyond the technical competence of a legislative body that it would be unrealistic not to vest them in an administrative agency.

Take for example the very first choice the LDA is required to make, the choice of an area. By what legislative criteria is the agency restricted in arriving at this vital decision? Only by its own notions of whether the area is economically or historically “significant”. Considering the emphasis placed by the remaining provisions of the Act upon revitalization of the area by means of “development,” one might reasonably conclude that the “historical” aspect of this two-headed criterion is of dubious practical importance, and we so regard it. The real thrust of the Act is toward economic development. What then is to characterize an area as “economically significant”? Indeed, is there any real estate, or any area, within a city that is not “economically significant”? And if there are certain areas of a city that can be classified as depressed and dying, and for that reason subjected to radical cosmetic surgery, what is to prevent the elected representatives of that city either from determining its boundaries themselves or from prescribing some tangible formulae or criteria by which it is to be done, and is there any practical reason why that responsibility should be shifted to another layer of officialdom that is not directly responsible to the electorate? We think these questions go to the heart of the deleg-ability question, and the answer is that there is no substantial reason for the ultimate choice not to be made by the legislative body, as it must be made, for example, in the case of zoning or urban renewal. Certainly it does not appear to be justified in terms of “the practical needs of effective government.” Cf. Butler v. United Cerebral Palsy of Northern Kentucky, Inc., Ky., 352 S.W.2d 203, 208 (1961).

The constitutional authority of any administrative agency to make a final decision on any question that lies within the authority of the direct representatives of the electorate to decide owes its existence to one of two pragmatic factors. Either, as in the instance of activities usually labeled “ministerial,” the matters decided are not of sufficient public importance or impact to warrant the day-to-day attention of “the boss” (the legislative body) or, if they are of such importance, for some practical reason or reasons identifiable by the exercise of common sense they cannot be effectively handled by the legislative body itself. In theory if not in fact, the major administrative agencies that conduct substantial segments of government today live by virtue of the latter supposition. Since, however, this basis for administrative authority runs counter to the idea of unfettered democratic choice, and removes the exercise of discretion one step beyond that which is contemplated by representative government through elected legislators, we think that sound jurisprudence must confine it to instances of clear necessity. It is understandable that the federal Congress cannot survey the boundaries for national parks or choose the sites of federal buildings, nor could a state legislature be expected to make such decisions directly. Within the much smaller bounds of a city or county, however, the problem is not so formidable, and the question of necessity may not result in the same answer.

It is for the broad reason that the LDA Act unnecessarily empowers a legislative choice to be delegated away that we hold it invalid under Const. §§ 27, 28. We do not reach the due process and other arguments leveled at the Act, nor do we pass on the validity of the various grants of authority heretofore mentioned for the purpose of illustrating the great scope of discretionary power vested in the administrative agency by the statute.

The Tax Increment Act is even more clearly in violation of the Constitution. Const. § 184 has always been construed as meaning that money collected for the purposes of education in the common school system cannot be spent for any other purpose, public or not. Cf. Pollitt v. Lewis, 269 Ky. 680, 108 S.W.2d 671, 113 ALR 691 (1937). It is no answer to say that the tax increments will be money the schools would not have had anyway, because the fact is that neither could this portion of the tax increments ever be realized except through taxes levied for and in the name of the common schools. It is also irrelevant, we think, that as a practical matter tax increment financing eventually will increase the revenues of a school district by enhancing its tax base, or that the redevelopment of depressed areas may increase the average levels of student achievement by improving the environment in which the students live. The stubborn fact remains that school taxes can be raised only for school purposes, and there is neither jot nor tittle in either of these two legislative acts, singly or together, that suggests the improvement of schools or the improvement of education as being among its objectives. Every bet made at the racetrack benefits the public through the pari-mutuel taxes collected by the state, but we have yet to hear it suggested that one’s losses may be deducted as charitable contributions. If tax increment financing under these acts will confer any benefit on the school districts involved, it is purely incidental, fortuitous, far in the future, and at this point speculative. Meanwhile, it envisions that during an uncertain interim all or an undetermined portion of the present tax base will be completely destroyed through public acquisition and ownership.

We think also that although in other cases this court has held that various excise taxes may be pledged as the source of bond payments under the “special fund” theory, ad valorem taxes cannot be put in that category. Though property taxation probably is the most unpopular kind of governmental financing in the world of today, our 1891 Constitution, which the people more than once in modern times have vigorously declined to submit to wholesale revision, clearly established it as the staple commodity of local governmental sustenance. The ad valorem tax is the one tax that is mandatory. Const. § 174; Raydure v. Board of Sup’rs of Estill County, 183 Ky. 84, 209 S.W. 19, 25 (1919); Levi v. City of Louisville, 97 Ky. 394, 16 KLR 872, 30 S.W. 973, 974, 28 LRA 480 (1895). It is a tax the city has no option to discontinue, and is the ultimate resource of its fiscal integrity. Any obligation that is payable from it is a debt within the meaning of Const. § 157. Cf. Sawyer v. Jefferson County Fiscal Court, Ky., 438 S.W.2d 531, 533 (1969).

The judgment is reversed.

All concur.

      . For brevity we thus abbreviate Local Development Authority and use the abbreviation to identify the local agency created for the purpose of implementing the Act.

      . KRS 99.655.

      . Defined as those who lack the income “necessary (as determined by standards established by the agency) to enable them, without financial assistance, to live in decent, safe and sanitary dwellings, without overcrowding.”- (Emphasis added.) KRS 99.615(14).

      . KRS 99.655, 99.650(d).

      . KRS 99.650(e), 99.650(d), 99.650(k)(2), 99.-650(m), 99.650(1), 99.650(n), 99.670.

      . KRS 99.750, 99.760.

      . Cf. KRS 100.207, 100.211, 100.297(2), 100.-321.

      . Cf. KRS 99.370(6) and (7).

      . “The purpose of the nondelegation doctrine should no longer be either to prevent delegation or to require statutory standards; the purpose should be the much deeper one of protecting against unnecessary and uncontrolled discretionary power." (Emphasis added.) Davis, Administrative Law Text (3d ed., 1972), § 2.08.

      . Some of which strike us as rather startling.


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    COMMONWEALTH of Kentucky, Appellant v. Johnnie Mae HOSKINS and Harold Edward Clark, Appellees.
    Supreme Court of Kentucky.
    June 25, 1976.
    Robert F. Stephens, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, Paul E. Hieronymus, Commonwealth Atty., 41st Judicial Dist., McKee, for appellant.
    William Gary Crabtree, London, for ap-pellees.
   JONES, Justice.

On March 10, 1975, the Leslie County Grand Jury returned three indictments that charged Johnnie Mae Hoskins and Harold Edward Clark of receiving stolen property. Each of the indictments cited the statute involved under the new penal code [KRS 514.110(1)]. Each indictment also followed verbatim the Official Form for such charge set forth in the Appendix of Forms attached to the Rules of Criminal Procedure.

The trial court sustained the motion of Hoskins and Clark to dismiss each of the indictments because the word “knowingly” was not included in each offense charged in each of the indictments.

The Commonwealth appeals from the order dismissing the indictments. This court is of the opinion that the single issue presented here is whether this court means what it says when it promulgates and adopts rules.

It is apparent that neither counsel for Hoskins and Clark nor the trial court was familiar with RCr 13.06 promulgated by this court, adopted effective February 5, 1975, which provides, “The forms contained in the Appendix of Forms are sufficient under these rules and illustrate the simplicity of statement contemplated.”

Each of the indictments against Hoskins and Clark conforms to the Rules of Criminal Procedure in every respect. There is no aura of mystique in omitting “knowingly” from the face of the indictment which otherwise charges an offense. It is true that guilty knowledge is a necessary element for conviction of the crime of receiving stolen property. That is contained in the statute. It is unnecessary that it be included in the indictment. It is enough that it be in the instructions to the jury. RCr 13.06 in clear, precise and plain language states that the forms adopted by this court are sufficient. The trial court ignored the rule.

The judgment is reversed with directions that the three indictments charging Hos-kins and Clark with receiving stolen property be reinstated on the criminal docket of the Leslie Circuit Court.

All concur.


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Everett G. BOYD, Appellant.
    No. 36847.
    Missouri Court of Appeals, St. Louis District, Division Two.
    June 15, 1976.
    Motion for Rehearing or Transfer Denied July 9, 1976.
    Charles D. Kitchin, Public Defender, James C. Jones, Asst. Public Defender, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Richard L. Poehling, Asst. Circuit Atty., St. Louis, Robert M Sommers, Asst. Atty. Gen., Jefferson City, for respondent.
   CLEMENS, Presiding Judge.

The state charged defendant with, and a jury found him guilty of, first degree robbery by forcibly stealing the victim’s automobile. The court sentenced defendant to six years’ imprisonment and he appeals. He primarily contends the state’s evidence was insufficient to identify him as the robber.

The victim, William McCoy, left home one morning and drove to a restaurant where he met defendant, a stranger. McCoy drove to a liquor store where defendant purchased whiskey for them. After the two men had been drinking for an hour or so defendant asked McCoy to drive him to Park Avenue. On arrival defendant brandished a metal bar and said he wanted the car. After defendant had struck McCoy twice with the metal bar McCoy got out, walked away and reported the theft to police.

Late that afternoon police found defendant sitting alone in McCoy’s car trying to start it. They arrested defendant and took him to the police station where McCoy identified him in a lineup. McCoy again identified defendant at the trial.

Defendant contends the evidence was insufficient to prove it was he who committed the robbery. He argues that the circumstances of the victim’s identification testimony created a substantial likelihood of misidentification. Defendant stresses testimony that McCoy wore glasses at the trial but hadn’t worn them during the robbery or when he identified defendant at the lineup; that the robber wore a cap pulled down over his eyes and that before the lineup police told McCoy someone had been found in possession of his car. These are the facts which defendant argues caused a questionable identification.

Defendant argues that if McCoy’s identification is discounted the state did not make a submissible case. In determining the sufficiency of evidence we view it favorably to the state. Defendant’s argument goes only to the credibility of the witness, not the sufficiency of the evidence. Defendant’s argument is further weakened by the fact that on the day of the robbery police found defendant in sole possession of the stolen automobile. The evidence supports the conviction.

Defendant also argues that the trial court erred by overruling his objection to the state’s final argument that defendant intended to strip McCoy’s car. Police testified they found defendant alone in the stolen car just outside an auto junkyard. From this it was not illogical to infer defendant intended to have the car stripped. The propriety of the prosecutor’s remarks was within the trial court’s discretion. We find no abuse of that discretion. State v. Taylor, 508 S.W.2d 506[15,16] (Mo.App.1974).

Judgment affirmed.

DOWD and STEWART, JJ., concur.


author: WASSERSTROM, Judge.

text:
    Sharon K. RAINES and Herman D. Raines, Appellants, v. Lucinda L. YOST, Respondent.
    No. KCD 27286.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.
    Martin M. Bauman, St. Joseph, for appellants.
    R. A. Brown, Jr., St. Joseph, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Plaintiff Sharon K. Raines sued for personal injuries suffered by her in an automobile accident and her husband, Herman D. Raines, sued for loss of consortium. Defendant counterclaimed against Sharon for personal injuries suffered by defendant in that accident. The jury found for defendant on plaintiffs’ claims and for Sharon on defendant’s counterclaim. Plaintiffs appeal, assigning as their sole point that there was not sufficient evidence to support submission to the jury of contributory negligence on the part of Sharon by failing to maintain a careful lookout.

The accident occurred at approximately 8:00 A.M., September 2, 1972, in a rural area of Andrew County, Missouri. Defendant, operating a Mustang automobile, backed out of a driveway on the north side of Route 0 and continued to back southwest on to the south half of the highway in order to proceed eastwardly. At that time, Sharon was driving east on Route 0 at about 55 miles per hour, returning home from working the night shift from 10:00 P.M., to 7:30 A.M., as a nurse’s aide in a rest home.

Sharon’s first opportunity to see the Mustang was when she crested a small hill to the west of the point where defendant entered the highway. Sharon testified that she applied her brakes but could not stop, with the result that her Dodge ran into the Mustang.

Plaintiffs contend that the trial court erred in submitting to the jury the issue as to whether Sharon maintained a careful lookout because: (a) there was no evidence that she could have seen the Mustang sooner than she did; and (b) that even if she had seen the Mustang sooner, there was no evidence that she could have done anything in time to avoid the accident.

As to (a). The investigating officers testified that the sighting distance from which a motorist approaching from the west could have seen the point of impact was 315 feet. Sharon on the other hand testified on deposition that she did not see the Mustang until she was two to three car lengths away from it. Since the evidence showed that her Dodge was 17 feet in length, that means that she was within 51 feet of the Mustang before she first saw it. Had she been attentive, Sharon could have seen the Mustang when it was 264 feet further away than she actually did. On this testimony alone the jury could reasonably find, as it did, that Sharon had failed to maintain a vigilant lookout. Furthermore, an analysis of the additional facts considered below further tends to show that Sharon did not keep a careful lookout in the exercise of the highest degree of care, the standard which the law enjoined upon her.

As to (b). Plaintiffs lay their greatest emphasis on the claim that the evidence failed to show that Sharon’s alleged inattentiveness constituted the proximate cause of the accident. The law unquestionably does require that before plaintiffs can be barred from recovery, there must be evidence that Sharon could have seen the Mustang in time to take effective precautionary action. Shelton v. Bruner, 449 S.W.2d 673, 679 (Mo.App.1969). Plaintiffs claim that even assuming that Sharon could have seen the Mustang sooner, there is nothing to show that she could have done anything to avoid the accident.

The facts, however, warrant the conclusion that if Sharon had been attentive, she could have avoided the accident. As already stated, the investigating officers testified that she could have seen the Mustang when the Raines’ Dodge was 315 feet west of the point of impact. At 55 miles per hour the Dodge was traveling 80'3" per second. Allowing reaction time of ¾ second, 60 feet would be accounted for before Sharon was called upon to act. That left her 255 feet within which to take precautionary measures.

From the point at which Sharon could and should have acted, she had at least three seconds available to her. Defendant and all of the other occupants in the Mustang testified that by that time the Mustang was wholly in the eastbound lane on the south half of Route 0. This testimony by defendant’s witnesses was supported by the location of the debris at the scene of the accident, which was found by the investigating officers to be about 5 feet from the south edge of the highway. The testimony that the Mustang was wholly in the south half of the highway headed directly east was also supported by the physical fact that the damage from the collision was to the whole front of Raines’ Dodge and all across the back of Yost’s Mustang.

Route O measures 21 to 24 feet in width, and the Mustang was only 71" (less than 6 feet) in width. There was nothing at all by way of traffic in the westbound lane either immediately before, at the time of, or immediately after the accident. That lane was therefore completely open for Sharon to use in order to pass the Mustang on the left. Sharon admits that she could have swerved to do so in “a matter of seconds,” and this admission on her part accords with common experience.

Yet the evidence is uncontroverted that Sharon made no effort at all to swerve. On these facts the jury could reasonably find, as it did, that Sharon failed to exercise the highest degree of care in maintaining a careful lookout and that this failure proximately contributed to cause the accident. See Bounds v. Scott Construction Co., 498 S.W.2d 765, l. c. 768 (Mo.1973).

Affirmed.

All concur.


author: PER CURIAM.

text:
    Jo D. STOCKWELL et al., Respondents, v. ZAJIC LAKES DEVELOPMENT COMPANY, Appellant.
    No. KCD 27504.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.
    Charles C. Shafer, Jr., Howard Chamber-lin, Kansas City, for appellant.
    Jerry Conkling, Kansas City, for respondents.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   PER CURIAM.

Plaintiffs (respondents) brought an action for damages for “breach of covenant” against defendant (appellant), a corporation. Trial by jury resulted in an award of damages to plaintiffs in the amount of $5,308.00 from which defendant has appealed.

The “covenant” upon which plaintiffs’ action was predicated (same obligating defendant to construct a sewer line) was auxiliary to conveyance of a vacant building lot by defendant as grantor. Plaintiffs and defendant throughout have properly treated the “breach of covenant” action as an action for breach of contract.

Defendant seeks appellate relief on five grounds, one of which entitles.it to reversal and remand of the cause for a new trial. Therefore, it is deemed unnecessary to definitively rule on any of the remaining grounds.

Defendant claims the trial court, over its objection that such was inadmissible by virtue of the “dead man’s statute” (Section 491.010, RSMo 1969), erred in permitting plaintiff Prances Stockwell to testify as to certain conversations with Joseph Zajic, the deceased president of defendant corporation, which occurred subsequent to execution of the “covenant” and were claimed relevant to the issue of damages. Applicability vel non of the “dead man’s statute” in a given instance is a legal conundrum which has plagued bench and bar since 1865, and this case is no exception. To resolve this issue a brief iteration of certain evidence, and the sequence in which it occurred, is indispensible in order to place the issue in proper perspective.

Nora Marie Zajic, widow of Joseph Zajic (deceased president of defendant corporation), was called as a witness by plaintiffs. Insofar as here pertinent, plaintiffs’ examination of Nora Marie Zajic revealed that she was a stockholder in defendant corporation, and its vice-president and secretary in name only since her late husband, Joseph Zajic, conducted all of the corporation’s business affairs. Plaintiffs’ examination of Nora Marie Zajic further revealed that she was not even present, much less involved or acting for or on behalf of defendant corporation, when the “covenant” sued upon was negotiated or at any subsequent time with respect to any conversations that may have taken place between plaintiffs and her late husband concerning construction of the sewer in question. Nora Marie Zajic further testified on direct examination that plaintiffs had never discussed construction of the sewer with her. Counsel for defendant, during a brief cross-examination of Nora Marie Zajic, asked her whether the plaintiffs, to her knowledge, ever discussed construction of the sewer with her late husband, Joseph Zajic, which she answered in the negative. Plaintiffs seek to rebut defendant’s claim of error by arguing that the aforementioned constituted a waiver of the “dead man’s statute” by defendant. Plaintiffs cite no authority to support their claim of waiver and their argument is abstract and diffuse. They appear to summarily assume that Nora Marie Zajic was an incompetent witness within the purview of the “dead man’s statute” and cite Fowler v. Sone, 226 S.W. 995, 996 (Mo.App.1920) and Baker v. Baker, 363 Mo. 318, 251 S.W.2d 31, 34 (1952) as authority for the proposition that under the “dead man’s statute” a waiver as to the incompetency of one witness constitutes a waiver as to all other incompetent witnesses. Plaintiffs, in addition to assuming, sub silentio, that Nora Marie Zajic was an incompetent witness within the purview of the “dead man’s statute”, appear to further assume, in a like vein, that her answer to the question was tantamount to a categorical denial that the plaintiffs and her late husband ever engaged in any conversation regarding construction of the sewer after defendant corporation became legally obligated to do so. The question and answer that occurred during cross-examination of Nora Marie Za-jic is simply not subject to the tortuous construction which plaintiffs attempt to place upon it. In view of the record it is unnecessary to decide whether a different issue would be presented, and a different result indicated, if Nora Marie Zajie had testified that her late husband, at no time ever had any subsequent conversations with the plaintiffs about construction of the sewer or if she had testified that she was present and together with her late husband actively participated on behalf of the corporation in negotiations that culminated in execution of the “covenant” in question and in subsequent conversations with plaintiffs concerning construction of the sewer. Joseph Zajie, deceased president of defendant corporation, negotiated the “covenant” on behalf of defendant corporation and acted in its behalf with reference to all subsequent conversations pertaining to it. A “party to a contract” with reference to the contract of a corporation, as the term is used in the “dead man’s statute” (Section 491.010, supra), has been judicially construed in this state to refer to the agent or officer of the corporation who negotiates a contract on its behalf, rather than the corporation in whose name and interest it is negotiated. Williams v. Edwards, 94 Mo. 447, 7 S.W. 429 (1888); Southern Commercial Sav. Bank v. Slattery’s Admr., supra; and Columbia Brewery Co. v. Rohling, 133 Mo.App. 65, 112 S.W. 767 (1908). So construed, Joseph Zajie, deceased president of defendant corporation, who died prior to the time suit was filed, was the party to the “covenant” or “contract” in question and the “dead man’s statute” (Section 491.010, supra) sealed the lips of both plaintiffs from testifying, over proper objection lodged by defendant, as to any statements attributed to Joseph Zajie during any subsequent conversations between the parties regarding construction of the sewer. Therefore, the trial court erred in not sustaining defendant’s timely objection to the complained of testimony elicited from plaintiff Frances Stoekwell.

Although this case was submitted to the jury on the dual issues of liability and damages, the judgment of the lower court is reversed and the cause is remanded for a new trial on the issue of damages alone since defendant, both below and on appeal, has admitted that it is obligated to build the sewer in question and that it has breached its “covenant” to do so (although it vociferously challenges the amount of damages awarded as being excessive).

The undiscussed grounds asserted by defendant on appeal are unlikely to reoccur at any subsequent trial on the issue of damages alone. Parenthetically, it appears that they were generated by the fact that neither side made any effort to acquaint itself as to what are legally recognized as recoverable items of special damages in a breach of contract action and how such should be pleaded and proved. Upon retrial of this case it would behoove counsel for both sides to familiarize themselves with certain existing cases and rules in this state, of which Young v. Raupp, 305 S.W.2d 731 (Mo.App.1957), Duncan v. Townsend, 325 S.W.2d 67 (Mo.App.1959), Gottlieb v. Hyken, 448 S.W.2d 617 (Mo.1970), and Rule 55.19 are but a few examples.

Judgment reversed and cause remanded for a new trial solely on the issue of damages.

      . Chapter 144, Section 1, Gen.St.1865.

      . According to Southern Commercial Sav. Bank v. Slattery’s Admr., 166 Mo. 620, 66 S.W. 1066 (1902), albeit a converse situation insofar as which party was dead, the fact that she was a stockholder in and an officer of defendant corporation, standing alone, would not make her an incompetent witness.


author: PER CURIAM:

text:
    John C. VAUGHN and Jaccolyn B. Vaughn, Appellants, v. Charles E. BRUDER, d/b/a Charles E. Bruder Construction Co., Respondent.
    No. KCD 27583.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.

      Louis Wagner, Kansas City, for appellants.
    James S. Cottingham, Independence, for respondent.
    Before PRITCHARD, C. J., and ELLIOTT, CONNETT and McFARLAND, Special Judges.
   PER CURIAM:

In a trial to the court, appellants were awarded a judgment for $500.00 and costs, upon a theory not specifically pleaded, but obviously submitted to the court, of breach of an implied warranty of fitness for use arising out of faulty construction of a residence.

Appellants’ sole claim is that the trial court erred in failing to consider cost of restoration of the home, its driveway and the depreciation in its value, which they say resulted in inadequate damages. The evidence set forth in the briefs and transcript has been considered. Appellants’ evidence did tend to establish that the cost of repair to the interior of the house would be $1,000.00 to $1,200.00; and the cost of replacing the driveway concrete where it was settled and cracked was also $1,000.00 to $1,200.00. Respondent’s evidence was that the cost of concrete repair was $125.00 to $300.00, and that other claimed defects were minimal, e. g., there , were few dry wall nails popped out, and these were repaired; there was only one saw mark on the plywood of the soffit; only six batts on the exterior of the house were split; and an uneven plywood joint causing a ridge in the kitchen linoleum was only about ⅛2 inch up. All of this evidence was for the trial court to resolve as to its credibility, and this court will not interfere with that trial court function. Scheidegger v. Thompson, 174 S.W.2d 216 (Mo.App.1943); Rothenhoefer v. City of St. Louis, 410 S.W.2d 73 (Mo.1966). The judgment, being for an unliquidated claim, may not be amended by this court. The rule is so firmly established that any further discussion would have no precedential value. Rule 84.16(c). Accordingly, the judgment is affirmed.


author: TURNAGE, Presiding Judge.

text:
    Donald Dennis MILLER, Plaintiff-Respondent, v. Billy Dan SIMS, Defendant-Appellant.
    No. KCD 27840.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.

      Michael J. Maloney, Popham, Popham, Conway, Sweeny & Fremont, P.C., Kansas City, for defendant-appellant.
    Robert L. Shirkey, James E. Chumley, Kansas City, for plaintiff-respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

Donald Miller brought suit against Billy Sims to recover damages resulting from an automobile collision. Following a jury verdict in favor of Sims, the court granted Miller a new trial on the ground the verdict was against the weight of the evidence and for the erroneous admission of certain evidence. Sims appeals the order granting a new trial on the sole ground Miller failed to make a submissible case because his own evidence proved he was contributorily negligent as a matter of law. Affirmed.

On this appeal the evidence must be viewed in the light most favorable to Miller and the order granting a new trial may not be disturbed unless it can be said the evidence would not support a verdict in favor of Miller. Leonard v. Bartimus, 463 S.W.2d 579 (Mo.App.1971).

Miller’s evidence came wholly from his own testimony. He stated he lived on the east side of Missouri Highway 131. At the time of the accident it was light, the weather was warm and the highway dry. Miller was going from his house to the home of a babysitter to pick up his children. The babysitter also lived on the east side of Highway 131 about 660 feet south of Miller’s house.

As Miller pulled onto the highway, which was a two-lane blacktop road, he observed Sims about a quarter of a mile to the north. At this time Miller made no estimate of Sims’ speed. Miller proceeded south in his own right lane with a maximum speed of 30-35 m. p. h. When he was about 150-200 feet north of the babysitter’s driveway, he looked in his rear view mirror and observed Sims at about Miller’s driveway, which would put Sims about 400-450 feet at the rear. Again Miller made no estimate of Sims’ speed.

Miller stated there was no erratic driving on the part of Sims and he observed nothing to rouse his fear of the manner in which Sims was driving.

At the time Miller saw Sims at about Miller’s driveway, Miller stated he turned his left-turn signal on and it was working properly. He also extended his left arm from his open window. When Miller was from 40 to 50 feet north of the babysitter’s driveway, he started to cross the centerline to make his left turn. Up to this point Miller denied ever hearing any horn sound or any other warning that Sims was going to pass. However, as Miller started to cross the centerline, he heard a screeching of brakes, then saw Sims’ car streak by on the left. The Sims’ car struck the Miller car on the left rear fender and after some sideswipe contact, the Sims’ car proceeded to hurdle a culvert then rolled over twice and came to rest on its wheels.

Miller testified there was visibility all the way between his driveway and the babysitter’s driveway. He further stated he did not look in his rear view mirrors again after he saw Sims about 400 feet to his rear, at a time when Miller was about 150-200 feet from the babysitter’s driveway.

Sims predicates his entire argument of Miller’s contributory negligence on this failure to look in the rear view mirrors to determine the location of Sims’ vehicle immediately before Miller started to make his left turn. He further urges Miller could not have safely made his left turn without looking to determine the location of Sims at that moment so he could make a judgment as to whether his left turn could be made in reasonable safety.

Sims relies on Myers v. Searcy, 356 S.W.2d 59 (Mo.1962) and Reed v. Shelly, 378 S.W.2d 291 (Mo.App.1964). Neither of these cases involved the question of contributory negligence as a matter of law. Myers considered the duty imposed upon a driver making a left turn to keep a lookout. Reed also considered the duty of a left turning driver to keep a lookout. Neither case supports Sims’ argument that Miller was con-tributorily negligent as a matter of law.

The case most similar on its facts is Wilkerson v. State Farm Mutual Automobile Ins. Co., 510 S.W.2d 50 (Mo.App.1974). There the court considered the question of whether a left turning driver was contribu-torily negligent as a matter of law for failure to take a “second look” to the rear to ascertain whether she could turn left with reasonable safety. In that case, as in the case at bar, the plaintiff was driving the forward vehicle and the defendant was passing to plaintiff’s left. There also the plaintiff had seen the defendant to her rear some distance before she started her left turn, but did not again look in her rear view mirrors to determine the defendant’s location immediately prior to making a left turn.

In Wilkerson the court stated at 510 S.W.2d 54[4]:

“Therein (Reed v. Shelly) we concluded that the operator of a motor vehicle who intends to turn left must, among other things, make such observation of overtaking traffic as comports with the highest degree of care, Reed v. Shelly, supra, 378 S.W.2d at 297, but to reiterate, neither that case nor any of those cited by the defendant undertakes to state what constitutes a sufficient observation to the rear in rigorous or exact terms; whether a driver has been negligent or contributo-rily negligent in failing to look in a particular direction at a specific time and has thereby failed to see all he should have seen is usually a jury question (citations omitted), and we believe that it was such in this case.”

Sims seeks to convict Miller of contributory negligence as a matter of law for failing to look in his rear view mirrors after seeing Sims about 400 feet to his rear with no indication of erratic driving at a time when Miller says his left turn signal was indicating a left turn and his left arm was extended to further indicate a left turn. As was so aptly stated in Wilkerson, the cases have not sought to define in rigorous or exact terms at what precise point a motorist should look in his rear view mirrors nor how often he should look. These questions can and do vary from case to case and are generally left for resolution by a jury.

This court must say from all of the evidence in this case favorable to Miller that reasonable and disinterested minds could rightfully disagree on the question of whether or not Miller failed to exercise the highest degree of care in the operation of his automobile. In that circumstance it cannot be held that Miller was eontributorily negligent so as to bar his recovery. Brooks v. Stewart, 335 S.W.2d 104 (Mo.1960).

The order granting Miller a new trial is affirmed.

All concur.


author: PRITCHARD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Steve WEBSTER, Appellant.
    No. KCD 28249.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.

      Shubert, Hight & Ballew, Harrisonville, for appellant.
    John C. Danforth, Atty. Gen., Sheila K. Hyatt, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   PRITCHARD, Chief Judge.

By the verdict of a jury appellant was convicted of the commission of the crime of sale of a Schedule II controlled substance, amphetamine (500 “hits” of “speed”). The court sentenced appellant to 20 years imprisonment in the Department of Corrections in accordance with the jury’s assessment of punishment.

The sufficiency of the evidence to establish the sale of the speed is not challenged. It will suffice to say that appellant, by prearrangement, sold the 500 hits to State Highway Patrol undercover narcotics agent, Mack Nations, on November 11, 1974, receiving $125.00 for them.

Appellant’s first point is that the court erred in failing to sustain a challenge for cause of venireman Whited because of his extensive close personal and professional relationship with the prosecutor (as argued but not adequately set out in Point I as to why the court erred). There was in the record a direct statement of Mr. Whited in regard to his close relationship with the prosecutor, and the matter further came up in this manner: “MR. BALLEW: Mr. Whited, in your extensive acquaintance with Mr. Hamilton, do you feel that would be such that it would be difficult for you to sit and render an impartial verdict in this case? VENIREMAN WHITED: No, sir. MR. BALLEW: The fact that you have been close friends with him and, uh, your daughter babysits with him, you don’t feel would cause you to be more disposed to listen to the case that he presented and more disposed to the evidence presented by him, than anyone else? VENIREMAN WHITED: I don’t believe so.” Appellant seizes upon the italicized words under the claim that the answer is equivocal and the court should have sustained his challenge for cause. On this cold record there is no way for this court to determine if the answer meant that Whited had doubt that he could render a fair and impartial verdict because of his personal relationship with the prosecutor, or whether it was his personal manner of speaking and indicated a positive belief that he could render a fair verdict. Whited’s voice inflection, his facial expression and movements were before the trial court and were, in the exercise of discretion, for it to determine as to Whited’s qualifications as a juror. State v. Wilson, 436 S.W.2d 633 (Mo.1969); State v. Cuckovich, 486 S.W.2d 16 (Mo.1972); and see State v. Grant, 394 S.W.2d 285 (Mo.1965). Besides, Whited did not serve on the jury and the record does not show that appellant was forced to expend one of his peremptory challenges to remove him from the panel, and therefore a finding of prejudice is precluded. State v. Daugherty, 484 S.W.2d 236 (Mo.1972); State v. Brauch, 529 S.W.2d 926 (Mo.App.1975), and cases cited. Point I is overruled.

Appellant’s Point II contention is that there was a break in the evidence as to a chain of custody of the plastic bags containing the amphetamine, and that the court therefore erred in receiving the exhibit into evidence. Officer Nation received the 500 hits from appellant; Nation sealed them in an outer plastic bag; and sealed it with a white evidence tape, initialed it, and put the case number on it. The seal was unbroken to the time of trial. Nation then took the sealed container to the Highway Patrol laboratory in Jefferson City and handed it to Miss Niecamp who put it in a locked evidence locker. Markway there removed the bag from the locker, carefully opened it from the other end than where it was sealed, and made tests, determining that the five inner bags contained amphetamine. Markway then replaced the evidence bag back in the locker, and both he and Nation positively identified it at trial. Appellant says the failure of Miss Niecamp to testify that she received the evidence bag from Nation, and to identify it broke the chain of custody. Note that Nation testified that he delivered the bag to Miss Nie-camp. Chain of custody was here sufficiently proved as required by State v. Winters, 525 S.W.2d 417, 426 (Mo.App.1975); and see State v. Heather, 498 S.W.2d 300 (Mo.App.1973), where it was held that it was unnecessary for the state to exclude every possibility of tampering or substitution; to show that some credible person had the exhibit under constant possession and watch; or to show hand delivery. The evidence here clearly provided reasonable assurance that the exhibit was the same and in the same condition as when the authorities first had its possession. State v. Lemon, 504 S.W.2d 676, 684 (Mo.App.1973). Point II is overruled.

By Point III, appellant claims the jury’s assessment of punishment is excessive and shows bias and prejudice because (as argued), the prosecutor argued for a sentence of 15 years, and the jury returned a verdict of 5 years more than that. The point is without merit because it is the jury’s sole function to assess the punishment, absent a failure to agree or a second offender prosecution. That function will not be disturbed so long as it is within the statutory range of punishment, as it here is. Shields v. State, 491 S.W.2d 6 (Mo.App.1973).

The judgment is affirmed.

All concur.


author: SHANGLER, Presiding Judge.

text:
    Claim of Carl S. DANLEY, Claimant-Appellant, v. The ESTATE of Grafton A. SMITH, Deceased, Defendant-Respondent.
    No. KCD 27522.
    Missouri Court of Appeals, Kansas City District.
    July 6, 1976.
    Henry T. Limerick, Jr., Columbia, for claimant-appellant.
    David B. Rogers, Smith, Lewis & Rogers, Columbia, for defendant-respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SHANGLER, Presiding Judge.

The claim of Danley for the use of his tractor to mow the pasture land of the decedent Smith was denied in the probate court and then in the circuit court. The circuit court found that the evidence on the claim, presented on quantum meruit, did not establish the reasonable value of the equipment used for the service. The claimant has appealed.

There was evidence by Biggs, employee of claimant Danley, that he used a John Deere Model 70, 1960 tractor and brush cutter to mow the pastures of the decedent during years 1969 and 1970. There was expert testimony for the claimant by Lindsey, engaged in the business of tractor and equipment rental, that the reasonable value of such equipment was $7.50 per hour. The claim actually presented was calculated on the rate of $4.50 per hour for 627 hours of machine time. The employee Biggs testified to 279 hours use in year 1969 and 348 hours use in year 1970.

In the memorandum of decision, the circuit court denied recovery of the claim on the express ground that the expert had neither inspected the tractor nor been given information concerning it, thus his opinion of reasonable value was conjectural.

The respondent contends for the decision of the trial court on the authority of cases such as State ex rel. State Highway Commission v. Koberna, 396 S.W.2d 654 (Mo.1965), which declare [l.c. 663]:

The expert witness must base his opinion on facts established by competent evidence. . . . The requirement that the opinion be supported on a factual basis may be met either by the witness premising his conclusion on facts within his personal knowledge or observation, or by premising the conclusion on a specified state of facts, assumed to be true, as to which some evidence has been received.

The opinion by the expert Lindsey on the reasonable rental value of a tractor of the description used by the claimant to mow the pastures had no probative validity on the issue, to be sure, unless supported by evidence that the equipment actually used was of reasonable efficiency. The uncon-tradicted testimony of claimant witnesses that the pastures were cut for two years without complaint from the decedent imports proof that the machine used was in reasonable operating condition.

The decision of the circuit court applied the law erroneously and must be reversed. Rule 73.01, Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We do not direct judgment because the circuit court reserved objections to evidence at the trial and then did not rule those issues of law on the assumption that the disposition reached removed that necessity. They are questions which we cannot resolve without the briefs and arguments of the parties.

Accordingly, the cause is reversed and remanded for further proceedings.

All concur.


author: BROCK, Justice.

text:
    The METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Petitioner, v. Sandra Jane MITCHELL and Robert W. Turner, Respondents.
    Supreme Court of Tennessee.
    May 24, 1976.
    Don Corlew, Metropolitan Atty., Metropolitan Government of Nashville & Davidson County, Nashville, for petitioner.
    Dan Garfinkle, Nashville, for respondents.
   OPINION

BROCK, Justice.

Respondents were found guilty in the Circuit Court for Davidson County of violating Ordinance No. 73-691, Amend. 1, of the Metropolitan Government of Nashville and Davidson County which purports to regulate “massage parlors.” Respondents asserted that the ordinance was not validly adopted because it was so drastically changed between its first and second readings that its identity was destroyed, thereby resulting in a violation of the Metropolitan Charter provision that:

“ . . .no ordinance shall become effective until it shall have been passed by majority vote on three different days.” Metropolitan Charter, Art. 3, § 3.05.

This claim was denied by the Circuit Court but the Court of Appeals held it to be a valid argument and reversed the judgment of the Circuit Court and dismissed the charges. We granted certiorari.

In determining whether or not the Charter provision in question has been violated, the Court of Appeals has applied the rule, followed in some states, that any material or substantial change in a proposed ordinance between the time of its first reading and its third reading and passage operatés to destroy its identity, thereby resulting in a violation of the charter requirement that the same ordinance be passed on three different days. Upon applying this test, the ordinance here in issue was found to be void.

We agree that the ordinance was materially and substantially altered between its first and second readings, but we do not agree that this operated to render the ordinance void, because we do not agree that the identity test applied by the Court of Appeals is the correct rule in Tennessee.

Of course, the purpose of such charter provisions is to prevent hasty and ill-considered legislation. They are generally held to be mandatory, Brumley v. Town of Greeneville, 38 Tenn.App. 322, 274 S.W.2d 12 (1954), but they must be given a reasonable construction, one that does not result in frustrating the legislative process at the municipal level.

For guidance we turn not to authorities from other states but to the Tennessee cases construing and applying Article 2, § 18, Constitution of Tennessee, which provides that “ . . .no bill shall become a law, until it shall have been read and passed, on three different days in each house . . . .” We do so because it may be assumed that the draftsmen of the Metropolitan Charter were aware of the import of these decisions and relied upon them when they wrote the provision requiring that ordinances be passed on three separate days.

Our cases have consistently given a different treatment to changes in the title or captions of bills from that given to changes in the bodies of bills. Thus, we have held that when the title or caption of a bill is altered “substantially” or changed to introduce “new or foreign matter,” the bill loses its identity and a new bill is thereby created which must, itself, be passed on three different days. Tenn. Coal, Iron & R. Co. v. Hooper, 131 Tenn. 611, 618, 175 S.W. 1146, 1147 (1915); State ex rel. Pitts v. Nashville Baseball Club, 127 Tenn. 292, 154 S.W. 1151 (1913); Erwin v. State, 116 Tenn. 71, 93 S.W. 73 (1906).

But, with respect to changes only in the body of a bill, a much more liberal test has been applied, as shown in this excerpt from the Erwin opinion, to-wit:

“No restriction is placed upon this power of amendment further than results from the rigidity of the title and the necessity of conforming thereto, and the requirement that there shall be a concurrence of the two houses upon the whole bill. One section may be stricken out and its place supplied by another containing a different provision; all may be stricken out except the title and the enacting clause, and new provisions inserted quite different from those which first constituted the body of the bill, but upon this liberty there rests one unyielding limitation, one imperious requirement. Every amendment, be it great or small, must harmonize with the title, must be germane to it, must fall within its scope.” 116 Tenn. at 80, 93 S.W. at 75.

The principle of the Erwin decision was reaffirmed in Southern Ry. Co. v. City of Memphis, 126 Tenn. 267, 148 S.W. 662 (1912), wherein the Court held to be valid the substitution of one bill for another, even though they were essentially different, since the title remained unchanged and the content of the substituted body was germane to and within the scope of the title. See also D. M. C. Corp. v. Shriver, 224 Tenn. 664, 461 S.W.2d 389 (1970).

It must be remembered that Article 2, § 17, Constitution of Tennessee, requires that, to become a law, a bill must contain only one subject which must be expressed in its title. Therefore, the net effect of the above-mentioned cases construing and applying Article 2, § 18, Constitution of Tennessee, may be said to be that the subject of a bill may not be substantially or materially altered between first and final readings, but that substantial and material changes may be made in the particular provisions of a bill between first and final readings so long as those changes are germane to and within the scope of the original subject. It is our conclusion that a like standard should be employed when applying the Charter provision in question or similar provisions of other municipal charters and statutes which require that an ordinance be read and passed on three separate days. We hold that this charter requirement is not violated when the particular provisions of an ordinance are materially or substantially altered between first and final readings, provided, that such changes are germane to and within the scope of the original subject of the ordinance as expressed in its title, or if it has no title, in the ordinance as it appeared at the time of its first reading and passage.

Applying this rule to the ordinance here in issue, we conclude that material and substantial changes were made in the particular provisions of its body between first and final readings, but that these changes were germane to and within the scope of the subject of the ordinance, the regulation of “massage parlors,” as expressed in its title which was never changed. Therefore, it is our judgment that the ordinance does not violate Article 3, § 3.05, of the Metropolitan Charter, but is a valid enactment.

We reverse the judgment of the Court of Appeals and reinstate that of the Circuit Court. Respondents will pay the costs incurred in this Court.

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

HARBISON, J., not participating.

APPENDIX

I. ORDINANCE NO. 73-691 [original form]:

“An ordinance regulating the operation of massage parlors within the area of the Metropolitan Government.
“Now be it enacted by the council of the Metropolitan Government of Nashville and Davidson County.
“Section 1. That it shall be unlawful for any establishment, firm, partnership or corporation regardless of whether it is a public or private facility to operate as a massage parlor, bath parlor, or any similar type business wherein physical contact is made where the recipient of such service is provided by a person of the opposite sex. And further it is unlawful for any person to perform body massages on the premises of the aforesaid establishments either by hand or mechanical apparatus on a person of the opposite sex. Violation of this section shall be punishable as provided by Section 1-1-7 of the Metropolitan Code of Laws.
“Section 2. This ordinance shall take effect hereinafter its passage, the welfare of Metropolitan Davidson County, Tennessee, requiring.”

II. ORDINANCE NO. 73-691 [final form]:

“An ordinance regulating the operation of massage parlors within the area of the Metropolitan Government.
“Now be it enacted by the council of the Metropolitan Government of Nashville and Davidson County,
“Section 1. A. It is unlawful for any person to pay a fee, or to receive a fee directly or indirectly for touching or offering to touch the sexual parts of another for the purpose of arousing or gratifying the sexual desire of either party.
“B. It is unlawful for any person managing or controlling any place of business to cause or to permit any agent, employee or other person under his control or supervision to participate in conduct prohibited in subsection A of this section.
“C. Violation of this section shall be punishable as provided in Section 1-1-7 of the Metropolitan Code of Law.
“Section 2. This ordinance shall take effect hereinafter its passage, the welfare of Metropolitan Davidson County, requiring.”

      . For the ordinance in original and final form, see Appendix.

      . We have examined the decision in Biltmore Hotel Court v. City of Berry Hill, 216 Tenn. 62, 390 S.W.2d 223 (1965), and find no conflict between the holding in that case and the rule we adopt today.


author: HENRY, Justice.

text:
    Wylie BLANKENSHIP, Appellant, v. OLD REPUBLIC INSURANCE COMPANY, Appellee.
    Supreme Court of Tennessee.
    June 28, 1976.

      H. Calvin Walter, Walter, Gilbertson & Claiborne, Knoxville, for appellant.
    Earl R. Layman, Key, Lee & Layman, Knoxville, for appellee.
   OPINION

HENRY, Justice.

This is a workmen’s compensation case in which the sole issue presented for our determination is whether an employee’s receipt of “Black Lung” benefits under the Federal Coal Mine Health and Safety Act of 1969 is conclusive as to the issue of disability in a workmen’s compensation proceeding under § 50-1102, T.C.A.

I.

The appellant filed a claim for workmen’s compensation benefits in the Chancery Court at Knoxville on July 22, 1974. In his complaint he alleged that pursuant to his employment with the Gay Coal Company, he “was required to work in air heavily laden with particles of dust and injurious substances” with the result that he was unable to continue working because of poor health. Specifically, appellant alleged that he was totally and permanently disabled from coal worker’s pneumoconiosis.

A motion for summary judgment was filed by appellant on September 26, 1974. In it he alleged that § 50-1102, T.C.A. provides that pursuant to a finding in an administrative proceeding under the Federal Coal Mine Health and Safety Act of 1969 that an employee is entitled to benefits, “the said employee shall be considered totally disabled from coal worker’s pneumoco-niosis and its effect under the Workmen’s Compensation Law of this State.” Included with this motion was an exhibit entitled “Certificate of Award”, issued by the Social Security Administration, entitling appellant to receive “Black Lung” benefits pursuant to the Federal Coal Mine Health and Safety Act of 1969.

The Chancellor apparently was of the opinion that the mere fact of an award of benefits pursuant to the Federal Coal Mine Health and Safety Act of 1969 was not binding upon the court in a state workmen’s compensation proceeding under § 50-1102, T.C.A. Accordingly, appellant’s motion for summary judgment was overruled.

At the trial appellant testified that he had spent approximately fifteen years working underground as a coal miner, and that he had been employed by the Gay Coal Company continuously from 1970 until the date he terminated his employment in May of 1973. The record indicates some conflict as to the precise cause of this termination. The appellant testified that a back injury was at least partly responsible for his inability to continue working. However, he further testified that he had experienced lung problems for some five years prior to May, 1973, and that he had been medically examined and diagnosed as suffering from coal worker’s pneumoconiosis prior to the termination of his employment.

In support of his testimony, and despite objection from opposing counsel, appellant was allowed to introduce into evidence the “Certificate of Award” from the Social Security Administration which entitled him to receive “Black Lung” benefits pursuant to the Federal Coal Mine Health and Safety Act of 1969. In pertinent part, this Certificate states that:

A miner is considered to be totally disabled if he has pneumoconiosis which has advanced to the ‘complicated’ stage. He may also be considered totally disabled if he has a lung condition which prevents him from working as a coal miner, or doing other gainful work requiring the skills and abilities similar to those of any work in a mine or mines in which he previously engaged with some regularity over a substantial period of time.
The medical evidence in your case shows that while you have a lung condition, you do not have ‘complicated pneumoconiosis.’ Also, according to your records, you were employed in your regular occupation as a coal miner from February 6, 1973, the time you filed your application for black lung benefits until you stopped working because of your lung condition on May 23, 1973. Therefore, your claim for black lung benefits is being allowed as of June 1, 1973, the first day of the first month you did not work at a gainful level.

Medical records introduced by the appel-lee indicate that the appellant has been hospitalized on some nineteen separate occasions during the previous five years for a variety of ailments including, among other things, a knee operation, back surgery, high blood pressure, a deviated septum, tonsilitis, dermatitis, and stomach ulcers. Throughout this entire medical history, although admittedly somewhat incomplete, there is no indication that appellant has ever been diagnosed or treated for any type of lung disease.

In addition, the appellee introduced a medical report submitted by Dr. William K. Rogers, who examined the appellant pursuant to a request by the appellee. Dr. Rogers concluded that:

[tjhere are only a few nodules in the right lower and left lower lung field which is unusual for a distribution of pneumoconi-osis and I seriously doubt if there is any significant pneumoconiosis present. .
. In other words I did not detect occupational lung disease in this case.

After considering all of this evidence, the Chancellor noted that the only medical testimony before the court concerning appellant’s disability was the report by Dr. Rogers stating that he did not detect any occupational lung disease. Apparently as a result of the insufficiency of medical proof regarding the existence of appellant's disability, a continuance was granted to allow appellant time in which to obtain his medical records from the Social Security Administration. Subsequently, on December 22, 1975, the Chancellor determined that based upon these medical records obtained from the Social Security Administration, as well as all of the evidence previously introduced, the appellant did “not suffer disability as a result of an occupational disease which is compensable within the scope and meaning of the Tennessee Workmen’s Compensation Law.”

II.

The appellant has challenged the Chancellor’s determination, alleging that under § 50-1102, T.C.A., where an employee would be entitled to benefits under the Federal Coal Mine Health and Safety Act of 1969, that employee shall be considered totally disabled from coal worker’s pneumo-coniosis in any state workmen’s compensation proceeding.

Any discussion of this question will, of necessity, involve a determination as to the precise meaning of the language contained in the applicable provisions of our Workmen’s Compensation Law. Section 50-1102, T.C.A., as amended, ... in 1971, provides, in pertinent part, as follows:

In considering whether an employee has the occupational disease of coal worker’s pneumoconiosis and is totally disabled or dies therefrom all the presumptions, criteria and standards contained in or promulgated by reason of the Federal Goal Mine Health and Safety Act of 1969, Public Law 91-173, specified as the basis for determining eligibility of applicants for benefits because of said disease or its effects shall be used and be applicable under this law, and where in a proceeding under this law for benefits it is determined the employee or his dependents would be entitled to benefits under the Federal Coal Mine Health and Safety Act of 1969, the said employee or his dependents by reason of said determination shall be considered totally disabled from coal worker’s pneumoconiosis and its effects, under this law the same as if said employee, or his dependents, establishes the right to recover benefits based upon a total disability from coal worker’s pneu-moconiosis, or death by reason thereof under the laws of this state. (Emphasis supplied).

The relationship between § 50-1102, T.C.A. and the federal act referred to therein has been previously considered by this Court on several occasions. In Moore v. Old Republic Insurance Co., 512 S.W.2d 564 (Tenn.1974), we found that it was the intent of the Tennessee General Assembly “to adopt the Federal law concerning coal worker’s pneumoconiosis as the law in Tennessee.” 512 S.W.2d at 567.

The result of such a determination is that all of the presumptions, criteria and standards contained in or promulgated by the Federal Coal Mine Health and Safety Act of 1969, that are used in determining the eligibility of applicants for benefits because of coal worker’s pneumoconiosis, have, by virtue of the enactment of § 50-1102, T.C.A., been incorporated by reference into Tennessee law. Lawson, supra at 224; Moore, supra at 568. Therefore, this portion of the federal act, and such portions of the federal regulations as pertain thereto, have become as much a part of our Workmen’s Compensation Law as if they had been enacted, in their entirety, by the General Assembly.

With reference to the Federal Coal Mine Health and Safety Act of 1969, it was observed by this Court in Hill v. Four-Leaf Coal Co., 529 S.W.2d 225 (Tenn.1975), that:

[t]he criteria for total disability under said statute and regulations are different from and less stringent than those prescribed for total permanent disability under the Tennessee Workmen’s Compensation Law. (Emphasis supplied). 529 S.W.2d at 226.

Therefore, any proceeding under our State Workmen’s Compensation Law must necessarily be governed by the requirements of the federal act and the appropriate federal regulations, and not by the more stringent requirements prescribed under the state compensation statutes.

In the present case a federal administrative agency, presumably by application of the appropriate federal presumptions, criteria and standards, has made a determination that the appellant is, for purposes of receiving “Black Lung” benefits, totally disabled. It is appellant’s contention that in the subsequent state proceedings under § 50-1102, T.C.A., proof as to his receipt of “Black Lung” benefits under the federal administrative proceeding, combined with a finding that appellant was subjected to work under a dusty environment for his last employer, Gay Coal Company, establishes conclusively appellant’s right, under the State Workmen’s Compensation Law, to recover total disability benefits from the ap-pellee.

We do not agree that § 50-1102, T.C.A. requires such an interpretation. In practical effect, this interpretation of the statute denies due process of law to the appellee, since there would never be any opportunity for the appellee to present proof as to whether the employee was actually disabled because of coal worker’s pneu-moconiosis, or to cross-examine the witnesses and rebut the evidence upon which the appellant’s federal “Black Lung” benefits award was based. Such a result would be intolerable under the Tennessee Constitution, Article 1, Section 8, as well as the Fourteenth Amendment of the United States Constitution. It has long been an established rule of statutory construction in this state that when interpreting acts of the Legislature, where one construction would make a statute unconstitutional, and another interpretation would render it valid, every reasonable doubt must be resolved in favor of the legislative enactment. Metropolitan Gov’t of Nashville & Davidson County v. Reynolds, 512 S.W.2d 6, 8 (Tenn.1974); Cole Manufacturing Co. v. Falls, 90 Tenn. 466, 16 S.W. 1045 (1891).

Referring again to the pertinent language of the statute, § 50-1102, T.C.A. provides that:

[W]here in a proceeding under this law for benefits it is determined the employee . would be entitled to benefits under the Federal Coal Mine Health and Safety Act of 1969, the said employee . by reason of said determination shall be considered totally disabled from coal worker’s pneumoconiosis and its effects, under this law . . .. (Emphasis supplied).

The quoted provision, supra, allows the state court in a workmen’s compensation proceeding to make its own independent determination of whether an employee is entitled to federal “Black Lung” benefits, by applying the appropriate federal presumptions, criteria and standards. This independent determination may be based not only upon the claimant’s federal “Black Lung” award, but upon any other competent evidence presented by either party.

We, therefore, hold that an employee’s award of “Black Lung” benefits under the Federal Coal Mine Health and Safety Act of 1969 is not conclusive as to the issue of that employee’s disability in a workmen’s compensation proceeding under § 50-1102, T.C.A.

III.

Although it might logically appear that similar results would obtain in both the federal and the state proceedings since identical presumptions, criteria and standards are applicable in making both determinations, such a result is not mandated by the express language of § 50-1102, T.C.A. From our holding in this case it is apparent that the federal and state proceedings may be based upon entirely separate evidence.

In the present case the Chancellor, after a delay of over a year, determined upon the basis of the appellant’s medical records obtained from the Social Security Administration, and all other evidence introduced during the trial, that the appellant did not suffer disability as the result of an occupational disease which is compensable under the Tennessee Workmen’s Compensation Law. His opinion contains no indication as to whether the requirements of the applicable federal statutes and regulations were considered in reaching this determination, or whether the case was tried and disposed of based purely upon the principles and standards governing ordinary workmen’s compensation claims under state law.

Our review of this case is further complicated by the fact that we do not have before us in the record any of appellant’s medical files which were obtained from the Social Security Administration and upon which the Chancellor, at least in part, based his final decree of December 22, 1973.

Under these circumstances we are of the opinion that complete justice cannot be obtained in the absence of this missing portion of the record. For that reason, and under the authority of § 27-329, T.C.A., the judgment will be vacated and the cause remanded for further consideration by the Chancellor. See Floyd v. Tennessee Dickel Distilling Co., 225 Tenn. 65, 69, 463 S.W.2d 684, 686 (1971).

Upon retrial either party will be permitted to introduce supplemental or additional medical testimony concerning appellant’s disability in order to enable the Chancellor to make appropriate findings and conclusions under the federal statutes and regulations which have been incorporated into our state law by § 50-1102, T.C.A.

Vacated and remanded.

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

      . The Federal Coal Mine Health and Safety Act of 1969, P.L. 91-173, is codified at 30 U.S.C.A. § 801 et seq. It was subsequently amended, in part, by P.L. 92-303 (May 19, 1972), codified at 30 U.S.C.A. § 901 et seq.

      . See also Lawson v. Oneida Fuel and Coal Co., 529 S.W.2d 220, 222 (Tenn.1975) wherein Moore was cited for this identical proposition.


author: HARBISON, Justice.

text:
    T. L. HERBERT & SONS, INC., Appellant-Plaintiff, v. Jayne Ann WOODS, Commissioner of Revenue of the State of Tennessee, and Joe E. Torrence, Finance Director of the Metropolitan Government of Nashville and Davidson County, Tennessee, Appellees-Defendants.
    Supreme Court of Tennessee.
    July 6, 1976.
    Ames Davis, Nashville, for appellant-plaintiff.
    Alex Shipley, Jr., Asst. Atty. Gen., Edward W. McCabe and Donald L. Corlew, Metropolitan Legal Department, Nashville, for appellees-defendants.
   OPINION

HARBISON, Justice.

This case involves the construction and application of an exemption enacted in 1973 to the Tennessee Retailers’ Sales Tax and the compensating use tax.

The case was disposed of on summary judgment in the trial court. In the trial court, the taxpayer urged constitutional issues as well as the interpretation of the recent statute, and denied the power of the State to levy the tax in question.

As the case comes here, however, the constitutional questions have been abandoned. The only remaining issue is one of statutory construction and the application of undisputed, although quite meager, facts on a very abbreviated record.

The taxpayer is a Tennessee corporation with its principal office in Nashville, Tennessee. It is engaged in commercial towing on navigable inland waters of Tennessee and other states, and in the coasting trade. No issue is taken by either party to the following findings of fact contained in the memorandum of the trial court:

“The cargoes transported by plaintiff move wholly in interstate commerce, that is, all such cargoes either originate from or are destined for points outside the State of Tennessee. In March of 1974, plaintiff purchased the M/V Martha Anne, a towboat of approximately eighty-one tons, from Scully Boatworks in Stephensville, Louisiana and took delivery of the towboat in the Mississippi River, off Stephensville. Since that time the M/V Martha Anne has been used at all times and is now being used in plaintiff’s interstate commercial towing business, specifically, to make tows in the Nashville harbor which are destined for ports outside Tennessee; to deliver barges from tows arriving in the Nashville harbor from outside Tennessee to their ultimate destinations within the state; and to move barges and tows between the Nashville harbor and ports outside the state. The M/V Martha Anne itself seldom ventures outside the territorial waters of the State of Tennessee.”

It appears from answers to interrogatories filed in the record that when appellant purchased the vessel, no sales tax was paid to the State of Louisiana, because the sales tax law of that state expressly exempts such transactions. The vessel was brought to Tennessee shortly after its purchase, and has been used in and around the Nashville harbor almost exclusively since that time. There is no question but that it has “come to rest” within the territory of Tennessee, and has become a part of the “mass of property” used here. As previously stated, the taxpayer now concedes that the use of the vessel within the State of Tennessee, under the foregoing facts, is clearly within the taxing power of the state, and that the levy of a use tax upon the ownership, possession and operation of the vessel under the facts above described would clearly be within the constitutional power of this state. For an analogous situation involving the ownership and use of an aircraft within the state, see Vector Company, Inc. v. Benson, 491 S.W.2d 612 (Tenn.1973).

In 1973, however, the General Assembly enacted the following specific exemption from the sales and use tax statutes:

“There shall also be exempt from sales tax the transfer, by any dealer in personal property, of vessels or barges of fifty (50) tons or over of displacement where the purchaser gives the seller an affidavit that such vessels are being purchased for use in interstate commerce or outside the state of Tennessee; and any such vessel shall also be exempt from use tax so long as it is being used in interstate commerce.” T.C.A. § 67-3012 (Tenn. Public Acts 1973, ch. 173).

The purchase and use of the towboat by appellant have occurred since the effective date of this exemption. Despite the fact that the vessel was exempted from sales tax in Louisiana, the taxing authorities of Tennessee have insisted that its use within the borders of this state, in the manner above stated, subject it to a use tax. The taxpayer contends that such use is in interstate commerce and falls within the exemption above quoted.

The trial judge concluded that the vessel was not being “used in interstate commerce”, so as to fall within the purview of the exemption. His findings, however were based largely upon the discussion of constitutional issues, and upon the taxpayer’s contention that the state could not constitutionally levy a tax upon a vessel used as described above. As previously stated, the trial court was clearly correct in holding that the taxing power of the state does attach to such use, and that the state may validly tax some aspects of “interstate commerce”.

There was no evidentiary hearing in this case, and both sides rested their claims for summary judgment upon the pleadings, an affidavit of an official of appellant, and answers to interrogatories propounded to the appellant. Prom these, there seems to be no question but that the vessel at all times has actually been used to transport cargoes moving in “interstate commerce” as that term is generally accepted and defined. It is not engaged in moving intrastate or local cargoes, although the vessel itself seldom leaves the territorial borders of the state.

The exemption clearly undertakes to exempt from the Tennessee sales tax the sale and transfer by Tennessee boat builders or dealers of certain vessels described in the statute, when such sales are accompanied by an affidavit that the purchaser intends to use the vessel outside of the state or to devote its use to interstate commerce.

As stated in Vector Company, Inc. v. Benson, 491 S.W.2d 612, 613 (Tenn.1973):

“The use tax is complimentary to the sales tax and is applicable with respect to tangible personal property imported from outside the state and used by the importer within the state. Each such use is defined to be the equivalent of a sale at retail to which the appropriate tax shall immediately apply.”

The use tax statute, T.C.A. § 67-3005, insofar as here pertinent, bearing the caption “Use tax on imports” provides:

“On all tangible personal property imported, or caused to be imported from other states or foreign country, and used by him, the ‘dealer’ as defined in § 67-3017, shall pay the tax imposed by this chapter on all articles of tangible personal property so imported and used, the same as if the said articles had been sold at retail for use or consumption in this state. For the purposes of this chapter, the use, or consumption, or distribution, or storage to be used or consumed in this state of tangible personal property shall each be equivalent to a sale at retail, and the tax shall thereupon immediately levy and be collected in the manner provided herein, provided there shall be no duplication of the tax in any event.” T.C.A. § 67-3005.

Detailed definitions of the term “use” are found in T.C.A. § 67-3002(m).

Were it not for the 1973 exemption in question, it is hardly debatable but that the taxpayer would owe a use tax to the state and to the Metropolitan Government as a result of bringing the vessel into Nashville and using it there. T.C.A. § 67-3012, however, contains a number of exemptions from the sales and use tax, and the exemption in question appears to exempt sales occurring in Tennessee of towboats such as the one involved here, and also to exempt use in Tennessee of “any such vessel”.

It is argued on behalf of the State that this use tax exemption only applies to vessels sold in Tennessee and exempted from the Tennessee sales tax; that is, the State argues that if a vessel is exempted from the Tennessee sales tax, the Commissioner is also prohibited from levying a use tax against the same vessel. This, to us, is not the proper construction or meaning of the exemption. As previously stated, the use tax is complimentary to the sales tax and is applicable to personal property imported into the state, not to personal property sold or transferred within the state. The construction or interpretation of the statute proposed by the Department of Revenue is, in our opinion, erroneous and renders inoperative the use tax exemption sought to be granted by the General Assembly.

The sale of the vessel in question was, of course, not subject to the Tennessee sales tax under any circumstances, because it occurred within the territorial waters of the State of Louisiana. Its use within Tennessee is entirely in “interstate commerce”, according to such facts as appear in the record, and such use is, therefore, within the terms and provisions of the exemption created by the 1973 statute.

The facts show that at the time of the purchase of the vessel by appellant, no affidavit such as that required in the Tennessee statute was given, but no such affidavit is required by the law of Louisiana, which governs the sale itself. The requirement of the affidavit pertains to sales and transfers which are subject to the Tennessee sales tax law. There is no requirement of such affidavit in connection with the use of a vessel purchased in another state and brought into Tennessee.

The words “such vessel” found in the use tax exemption appear to refer to vessels or barges of fifty tons or over of displacement, and the vessel in question falls within that description. It has continuously been used in interstate commerce since being in Tennessee, and “so long as it is being used” in that manner, it falls within the purview of the exemption.

The judgment of the trial court is reversed and the cause is remanded to the trial court for entry of an appropriate judgment against the respective state and local officials, the tax in question admittedly having been paid under protest. Costs of the cause will be taxed to appellees.

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

      . La.Rev.Stats. § 47:305.1 (1970).

      . For application of a somewhat similar exemption of vehicles used for “movement in interstate commerce,” see United Parcel Service, Inc. v. Arnold, 218 Kan. 102, 542 P.2d 694 (1975).