author: PER CURIAM.

text:
    CITY OF AUSTIN et al., Appellants v. TEXAS PUBLIC EMPLOYEES ASSOCIATION et al., Appellees.
    No. 12,393.
    Court of Civil Appeals of Texas, Austin.
    Oct. 17, 1975.

      Jack C. Eisenberg, Byrd, Davis, Eisen-berg & Clark, Austin, for American Federation of State, County and Municipal Employees, AFL-CIO Local 1624.
    Lloyd Doggett, Doggett & Jacks, Austin, for Communication Workers of America, AFL-CIO Local 12175.
    Don R. Butler, City Atty., Donald L. Wolf, Asst. City Atty., Austin, for City of Austin.
    Charles M. Babb, Stayton, Maloney, Hearne & Babb, Austin, for Texas Public Employees Ass’n.
    Irwin R. Salmanson, Salmanson & Smith, Austin, for Bruce Petty.
   PER CURIAM.

This is an appeal from an order of temporary injunction entered by the district court of Travis County upon application by appel-lees, Texas Public Employees Association and Bruce Petty, restraining appellants, among other things, from holding an election among employees of the City of Austin in connection with a payroll deduction program pursuant to Tex.Rev.Civ.Stat.Ann. art. 6252 — 3a. Appellants are the City of Austin, the Communications Workers of America, AFL-CIO, Local 12175, and American Federation of State, County and Municipal Employees, AFL-CIO, Local 1624. After the submission of the case, this Court entered an order setting aside the order of temporary injunction and remanding the cause to the district court for further proceedings.

Texas Rev.Civ.Stat.Ann. art. 6252-3a(a) provides as follows:

“(a) The governing body of any city of more than 10,000 inhabitants, according to the last preceding federal census, may authorize a program whereby any municipal employee employed in such city may authorize and consent in writing that deduction be made from his monthly salary or wage payment. Such written consent shall so designate and direct the city treasurer or comptroller to transfer such withheld funds to the appointed bona fide employee’s association in payment of his membership dues.”

On July 31, 1975, the City Council of the City of Austin passed the following resolution:

“1. That effective September 1, 1975, Section 5.18 of the Personnel Policies of the City of Austin be and the same are hereby amended to read as follows:
“5.18. Payroll Deductions.
Upon the execution by an employee of proper forms prescribed by the City Manager, regular deductions shall be made from any such employee’s paycheck for savings or payments on loans to the Austin Municipal Federal Credit Union, for City taxes, for approved insurance premiums, for membership dues and fees of the Austin Association of Professional Firefighters Local 975, the Austin Police Association, and the employees’ union so designated by the established employees’ election and Council action, or for any other purpose approved by the City Manager. Provided, all costs of initiating the system for all of the above deductions for membership dues and fees paid to the named employee associations, plus all operational costs of same, shall be at the expense of the union or association. (Emphasis as appearing in Exhibit)
“2. Notwithstanding the above and foregoing provision, payroll deductions for the above named or described organizations shall not be effective until after the last pay period in August and until completion of necessary arrangements to pay for the cost of initiating the system for each of the above associations and for the cost of services.
“3. The City Attorney is hereby authorized and instructed to establish an election procedure for a vote among the City employees on which labor organization shall receive payroll deduction status as provided in Part 1 above. Such election shall be supervised through the City Attorney’s Office.”

About the middle of September, 1975, the City Council further resolved:

“That the City Manager and the City Attorney are hereby instructed to make all necessary arrangements for the conduct of an election among the regular City of Austin employees, with certain exceptions, to determine which labor organization, the Communications Workers of America or the American Federation of State, County and Municipal Employees, will receive payroll deduction privileges, for the purpose of paying membership dues of its members; such election to be held on October 17, 1975; and,
“BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF AUSTIN:
“That the City Manager or the Deputy City Manager be and is hereby authorized to execute on behalf of the City of Austin that certain payroll deduction election agreement further setting out the dates, terms and conditions of said election as this day exhibited to the Council.”

On October 10, 1975, counsel for appellee Texas Public Employees Association filed a request to appear before the City Council during the evening of October 16, 1975 to request “authorization for dues deduction from salaries and wages of City employees who are members of TPEA and authorize such deductions.” The action so requested by the City Council was, “approval of Resolution approving Texas Public Employees Association for dues checkoff or deduction status.”

Pursuant to the resolutions of the Council the office of the City Attorney undertook to establish an election procedure for the City employees to vote upon which labor organization should receive the payroll deduction status. As the result of these efforts a document styled “Payroll Deduction Election Agreement” was signed for the City of Austin by the City Manager and the other appellants on October 6, 1975.

Thereafter, on October 13, 1975, appellee Bruce Petty filed his original petition praying that the appellants be enjoined from holding the October 17, 1975 election. On October 14,1975, appellee Texas Public Employees Association filed its petition. Likewise, the Texas Public Employees Association sought to enjoin the election scheduled to be held on October 17, 1975. Appellees’ lawsuits were consolidated by the court upon motion of appellant City of Austin.

In their petitions, appellees alleged, among other things, that the “Payroll Deduction Election Agreement” was contrary to Tex.Rev.Civ.Stat.Ann. art. 5154c in that the agreement (1) constituted collective bargaining with a labor organization respecting wages, hours, or conditions of employment; (2) constituted recognition of a labor organization as the bargaining agent for a group of public employees; (3) and constituted the recognition of employees’ representatives who have publicly proclaimed the right to strike against government. Appellees alleged further that the “Payroll Deduction Election Agreement” and the procedures of the Council were also in violation of Tex.Rev.Civ.Stat.Ann. art. 6252-3a. Appellee Petty alleged also that the resolutions of the Council and the “Payroll Deduction Election Agreement” were, as to him, a violation of the 14th amendment to the Constitution of the United States.

At the hearing on the application for temporary injunction, appellees called as an adverse witness, Richard Tulk, the first assistant City Attorney. After direct examination and before the completion of appellants’ cross-examination of Tulk, the district judge announced that he had “heard enough” testimony and was prepared to enter a temporary injunction in all of the respects prayed for in appellees’ petitions.

The order entered by the district court enjoined appellants, among other things, from “continuing with the execution of carrying out of any part of the ‘Payroll Deduction Election Agreement’ . . and from “holding or attempting to hold the election of [sic] CITY employees as provided for in the ‘Payroll Deduction Election Agreement’ ” to be held on October 17, 1975.

Appellants attack the judgment by six points of error. Point of error five claims that the district court abused its discretion in entering the temporary injunction without permitting appellants to complete examination of the first and only witness and to present any evidence in their defense. Because we sustain point of error five, we do not consider and we do not pass upon any of the remaining points of error.

As stated previously, the district court terminated the hearing before appellees rested, and, in fact, during the cross-examination of the first witness. At the time of the termination of the hearing, the appel-lees had a number of witness available to offer testimony, and appellants represented to the court that they wished to place into evidence testimony of several witnesses. Appellants’ counsel excepted to the termination of the hearing and requested the district court to proceed with the hearing of the evidence.

Tex.R.Civ.P. 681 requires that no temporary injunction be issued without notice to the adverse party. The requirement of notice impliedly requires an adequate opportunity to be heard. Gibson v. Shaver, 434 S.W.2d 462 (Tex.Civ.App.1968, no writ), Oertel v. Gulf States Abrasive Manufacturing, Inc., 429 S.W.2d 623 (Tex.Civ.App.1968, no writ), Texas State Board of Medical Examiners v. McKinney, 315 S.W.2d 387 (Tex.Civ.App.1958, no writ), Anderson v. Hidalgo County Water Imp. Dist. No. 6, 251 S.W.2d 761 (Tex.Civ.App.1952, writ ref’d n. r. e.). The trial court is not authorized to enter an order of temporary injunction against a party before that party has had an opportunity to present its defenses and has rested its case. Gibson v. Shaver, supra.

For the reasons stated, the order of the district court granting the temporary injunction is set aside, and the judgment is reversed. The cause is remanded to the district court.

Temporary injunction reversed and remanded.


source: Caselaw Access Project

author: CULLEN, Commissioner.

license: Public Domain

text:
    BOARD OF EDUCATION OF LOUISVILLE, Kentucky, Appellant, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, et al., Appellees.
    Court of Appeals of Kentucky.
    April 25, 1975.
    Henry A. Triplett, Henry V. B. Den-zer, Hogan, Taylor, Denzer & Bennett, Louisville, for appellant.
    Jack M. Lowery, Jr., Louisville, Robert A. Becht, Dept, of Highways, Frankfort, for appellees.
   CULLEN, Commissioner.

For the purposes of right-of-way for an expressway and an entrance ramp, the Department of Highways condemned the major portion of the playground area of an elementary school operated by the Louisville Board of Education. Upon the trial of the condemnation proceeding in the circuit court the jury fixed the damages at $238,418, and judgment was entered awarding the board of education that amount. The board has appealed from the judgment, maintaining that the damages are grossly inadequate and that there were procedural errors on the trial.

The board of education took the position throughout the trial, and still argues, that by reason of the taking of substantially all of the playground area, and the high level of noise that will result from traffic on the expressway and the ramp in close proximity to the school, the usability of the property for school purposes has been completely destroyed; therefore, the measure of damages is the cost of acquiring a new site and constructing a new building, less any salvage value of the present school property. The damages on that theory, according to the board’s evidence, would be close to one million dollars.

The contention of the Department of Highways was and is that the existing school can be restored to its former condition of usefulness, or to even a better condition, by the acquisition by the board, through purchase or condemnation, of private land adjoining the school, for a new playground, and by sound-proofing and air-conditioning the present school building to eliminate the noise problem. The department offered evidence that this all could be accomplished at a cost of $238,418 (the figure which the jury accepted).

The trial judge submitted the case to the jury under instructions that if the jury believed that the existing school could be restored to the same or reasonably equal utility for school purposes through the acquisition of other land to replace the land taken and through the sound-proofing and air-conditioning of the building, the jury should award the cost of such restoration; but if the jury believed the existing school could not be so restored to usefulness, the jury should award the cost of acquiring a new site and constructing a new building, less depreciation and less salvage. As hereinbefore indicated, the jury found that the existing property could be restored, and awarded damages on that basis.

The board of education argues that under the “substitute facilities” rule generally used in cases of condemnation of properties, such as schools and churches, which do not have a regular market value, there is no authority for use of a “cost of cure” measure of damages which would permit restoration instead of replacement. The board relies primarily on Commonwealth, Department of Highways v. City of Winchester, Ky., 431 S.W.2d 707, and State v. Waco Independent School District, Tex.Civ.App., 364 S.W.2d 263. We do not interpret either of those cases as precluding the use of cost of restoration, where restoration is feasible, rather than cost of complete replacement.

We observe that in Waco, while the instructions authorized recovery of the cost of replacement of so much of the land and facilities as was taken, the instructions further authorized recovery of the cost of restoration to the same or reasonably equal utility of the remaining portion of the school property.

Likewise, in Winchester, the instructions (which this court approved) directed the jury to award the cost “to reasonably restore * * * the remaining * * * land and facilities to the same or equal utility for elementary school purposes.” As a matter of fact, the award which was approved in Winchester was not for replacement of the whole existing school, but only for the cost of providing, at a new site, additional classrooms which the reduced size of the existing school plot would not permit being added to the existing school building.

From the standpoint of simple reasonableness, surely the law would not be that the board of education should be awarded one million dollars for a new school if the existing one can in fact be restored to equal or better utility for only $238,000.

The cost of restoration or repair, where feasible, always has been the measure of damages in tort cases for damage to structures on realty. See Kentucky Stone Co. v. Gaddie, Ky., 396 S.W.2d 337; Business Realty, Inc. v. Noah’s Dove Lodge No. 20, Ky., 375 S.W.2d 389; Mikkelsen v. Fischer, Ky., 347 S.W.2d 525. That rule, based on common sense, is equally applicable, we think, to the instant case.

The board of education argues that even if the cost of restoration be a proper measure of damages, the evidence in the instant case did not warrant the finding that the school property could in fact be restored to its former condition of utility. This argument is addressed mainly to the evidence as to the effectiveness of soundproofing and air-conditioning to eliminate the noise problem. It is our opinion that the evidence was sufficient to warrant the finding.

The board contends that the evidence of the Department of Highways as to the estimated cost of acquiring, through purchase or condemnation, adjoining private land for a new playground, was pure conjecture and not acceptable as a basis for a determination of cost of restoration. In our opinion that evidence was no more conjectural than any evidence in a condemnation case as to market value of land, and certainly no more conjectural than the evidence of the board in the instant case as to the estimated cost of a new school site.

We find no merit in the contentions of the board of education as to claimed procedural errors. In view of the board’s evidence as to the ineffectiveness of sound-proofing at Male High School we think the subsequent evidence by the department, on the subject of sound-proofing, was proper as rebuttal. We see no likelihood of prejudice having resulted from the questions asked the prospective jurors as to how they would rate the city school system, or from the introduction of the aerial photographs.

The judgment is affirmed.

All concur.


text:
    COMMONWEALTH of Kentucky ex rel. Ed W. HANCOCK, Attorney General, Appellant, v. SOUTH CENTRAL BELL TELEPHONE COMPANY and Public Service Commission of Kentucky, Appellees.
    Court of Appeals of Kentucky.
    May 23, 1975.
    Rehearing Denied Oct. 3, 1975.

      Ed W. Hancock, Atty. Gen., Laura L. Murrell, Asst. Atty. Gen., Frankfort, for appellant.
    Lively M. Wilson, Stites, McElwain & Fowler, William S. Connolly, Louisville, Wiltshire M. Booker, Jr., Gen. Sol., and Norman C. Frost, Vice President and Gen. Counsel, South Central Bell Telephone Co., Birmingham, Ala., for appellees.
   CULLEN, Commissioner.

South Central Bell Telephone Company (Bell) made application to the Kentucky Public Service Commission (PSC) for an increase in rates that would produce additional annual gross revenues of approximately $25.7 million. Protests were made, extensive hearings were conducted, and PSC eventually entered an order granting only a partial increase in rates, that would produce additional annual gross revenues of $15.1 million. The Commonwealth of Kentucky, on relation of the Attorney General (represented by his Consumer Protection Division), appealed to the circuit court. Judgment was entered by that court upholding the PSC order. The Attorney General has appealed to this court from that judgment.

On the appeal to the circuit court the Attorney General, in addition to attacking the rate-increase order, asked the circuit court for a mandatory order directing PSC in the future, for the purpose of future regulatory purposes, to require Bell, in the monthly reports it files with PSC, to show a breakdown of the revenues, expenses and investment data allocable to Kentucky intrastate operations (over which alone PSC has jurisdiction), instead of showing revenues, expenses and investment data on a system-wide basis, which requires the application of a separations manual in order to determine what is subject to PSC regulatory control. The circuit court judgment denied the requested relief and that denial is the first ground of error asserted by the Attorney General.

The case presented to the circuit court on the merits of the rate-increase order was a complicated, difficult, exhausting one, requiring full undivided attention of the court. It is the opinion of this court that the circuit court was entitled to reject, as inappropriate and untimely for consideration, the matter of a detail of future regulatory action. This court finds no error in this regard. We do not consider the denial of the relief in this circumstance as a bar to the seeking- of it in another, more appropriate proceeding.

The Attorney General asserts a claim of denial of procedural due process in connection with the allowance by PSC of a wage adjustment, to the test-year operating expenses, of $2.2 million per year, resulting from a wage agreement that became effective in the latter part of the test year. The Attorney General maintains that this adjustment was never proposed until briefs were filed after the completion of all the evidence in the PSC hearings, and that the facts on which the adjustment was based were not brought out until the rebuttal stage of Bell’s case, wherefore the Attorney General was denied the opportunity to prepare and present opposition to the adjustment, by way of cross-examination, presentation of contrary evidence, argument, etc.

The Attorney General concedes, however, that the $2.2 million figure “is probably an accurate reflection of the dollar increase in wages”; in other words, as an expense item the amount is proper. The harm claimed to have been suffered, from the alleged denial of procedural due process, arises from the loss of the opportunity to show that there may have been revenue growths or productivity increases that would offset the wage increase, so that there would be no need for a rate increase in the amount of the wage increase.

We may concede for the purposes of argument that there was a violation of proper procedure in the handling of the wage-adjustment matter. We are not persuaded, however, that any prejudice resulted therefrom. Throughout the PSC hearings, the interest of Bell was to show increased operating expenses, while the interest of the Attorney General was to show that anticipated revenues under existing rates would be adequate to meet expenses and to pay a fair return on investment. The fact that Bell asserted a new claim of expenses late in the hearings would not be calculated to have prejudiced the Attorney General’s presentation of additional amounts of revenue, unless the activity causing the additional expenses was such as to generate additional revenue. The Attorney General does not suggest in what way the payment of higher wages to the same number of workmen might be productive of more revenue. We think it is reasonable to believe that the Attorney General in the regular course of the hearings brought out every potential source of revenue increase that he could find, and we are not convinced that had he been given the procedural rights that were denied to him he could have found any more. Thus we find no prejudicial error in this phase of the case.

On the merits of the rate increase, the Attorney General makes two arguments, one addressed to the selection of the debt-equity ratio that was used by PSC in determining what rate of return would reasonably be required on the cost-of-capital basis, see Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 33; and the other addressed to the rate base to which the rate of return was applied by PSC in determining the amount of gross revenue that would be produced.

Since Bell is a wholly-owned subsidiary of A.T. & T., which means that A.T. & T. is the one that goes to the public to raise capital, PSC resorted to A.T. & T.’s capital structure as a guide to determine a reasonable debt-equity ratio for Bell. A.T. & T.’s actual debt-equity ratio was:

Debt 46.6%
Preferred stock 2.7%
Common equity 50.7%

Instead of using that exact ratio, PSC lumped the preferred stock in with the common and rounded the total upward a few percentage points to take into account future stock issues, and ended up with the following ratio for Bell:

Debt 45%
Equity 55%

PSC found that the cost of debt was 6.12% and the cost of equity capital was 10.9%, making a net rate of return, using the 45-55 debt-equity ratio, of 8.75%. Obviously, since the cost of equity capital is much higher than the cost of debt, the higher the equity factor is in the debt-equity ratio, the higher the rate of return must be.

The Attorney General argues that PSC should have used the exact A.T. & T. debt-equity ratio (with a cost of 8.00% for preferred stock), which would have reduced the equity factor to 50.7% and would have reduced the rate of return to 8.60%. The lower rate of return would produce some $400,000 less in net revenues.

Even if it be accepted that proper accounting practices and theory would dictate the selection of the 8.60% rate of return rather than the 8.75% rate, it would not follow as a matter of course that the choice of the latter rate made the PSC order unlawful or unreasonable, when it is considered that not only is the rate of return itself a matter of what is fair rather than one of mathematical precision, but the debt-equity ratio used for Bell was and could be no more than an approximation. Testimony by qualified experts would have authorized the selection of a rate of return even higher than the 8.75% fixed by PSC.

In any event, the reasonableness of the rate of return cannot be decided in isolation from the rate base to which the rate of return will be applied, because the reasonableness of the rate of return will vary in accordance with the method or formula employed in fixing the rate base. See Citizens Telephone Co. v. Public Service Commission, Ky., 247 S.W.2d 510. The Attorney General, citing only one figure in an exhibit submitted by one of his witnesses, says that Bell’s capitalization (end of test period) was only $262,126,000 whereas the rate base fixed by PSC on the basis of net original cost (again, end of test period) was $271,355,-398, indicating that the capitalization was some $9 million lower than the rate base. The Attorney General does not suggest that the use of net original cost is not a proper approach to determination of a rate base, or that the actual net original cost of Bell’s properties (used and useful) was not as found by PSC. What he argues is that when a rate of return computed on the basis of actual capitalization is applied to an original-cost rate base higher than actual capitalization, the result is to so increase the true return on equity as to make the return unreasonably high.

The Attorney General does not undertake to explain how the original-cost rate base can be and is in excess of the actual capitalization. In the Citizens Telephone Company case, supra, at page 513 of 247 S.W.2d, we said:

“Where original cost less depreciation has been used as the rate base, public regulatory bodies generally have employed the ‘cost of capital’ test for determining what will constitute a reasonable rate of return. Rose, ‘The Bell Telephone System Rate Cases,’ 37 Virginia Law Review, page 699. This is because the rate base is determined with relation to capital structure, and it is therefore proper to relate the rate of return also to capital structure. * * * ”

In Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333, the Supreme Court said that one who seeks to set aside a rate order of a public regulatory body carries a heavy burden of making a convincing showing that the order is invalid because it is unjust and unreasonable in its consequences. The Attorney General’s showing in the instant case is not of that quality.

The judgment is affirmed.

All concur.


author: CULLEN, Commissioner,

text:
    O. H. SNYDER and Helen C. Snyder, his wife, d/b/a Owensboro Homes, a partnership, Appellants, v. OWENSBORO, Kentucky, a political subdivision, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    May 23, 1975.
    Rehearing Denied Sept. 19, 1975.
    Sandidge, Holbrook & Craig, P. S. C., Ronald M. Sullivan, Owensboro, for appellants.
    Rummage, Kamuf & Yewell, Charles J. Kamuf, Hugh D. Moore, Joseph L. Ban-ken, Owensboro, for appellees.
   CULLEN, Commissioner,

The appellants, Snyders, made application to the Owensboro Metropolitan Planning Commission (hereinafter OMPC), which has planning jurisdiction throughout Daviess County, Kentucky, for approval, under KRS 100.277, of a preliminary plat for the subdivision of a 21.19-acre tract of land lying near the City of Owensboro. OMPC denied approval, for stated reasons. The Snyders appealed to the Daviess Circuit Court, pursuant to KRS 100.347. The circuit court found that one of the stated grounds for denying approval of the plat was not valid, but the other grounds were valid, and that the action of OMPC was not unreasonable or arbitrary. Judgment was entered accordingly, upholding OMPC’s action. The Snyders have appealed to this court from that judgment.

The tract of land in question is rectangular in shape. Its southern and eastern sides border on a county road known as Beatch Road. That road, running along those boundaries of the tract, makes a 90-degree turn at the southeast corner of the tract. Also, near the northeast corner, it makes another 90-degree turn to the east. The primary objections by OMPC to the proposed plat relate to the road situation.

The comprehensive plan adopted by OMPC for Daviess County, pursuant to KRS 100.183 to KRS 100.197, contained a proposal for a future change in the course of Veatch Road in the area of the Snyder tract, so as to extend the road from the point where it now meets the tract at the northeast corner, diagonally across the tract to the southwest corner, thus eliminating both of the 90-degree turns. The primary reason asserted by OMPC for denying approval of the Snyder plat was the failure of the plat to provide for a “collector street” diagonally across the subdivision which would in effect supply the proposed change of course for Beatch road. That reason is the one which the circuit court found to be invalid.

The subdivision regulations adopted by OMPC under KRS 100.281 contained a section stating that if a proposed plat is disapproved, “the reasons for such disapproval, referring to the requirements of law and/or these regulations, shall be stated in clear and concise terms.” We consider that section to set forth in substance what due process would require anyway. The statement by OMPC of its reasons for disapproval of the Snyder plat did not refer to the specific requirements of the law or of the regulations, and in fact none of the stated reasons can be related to any specific provision of the. law or the regulations. In our opinion this renders the disapproval invalid.

Our statute, KRS 100.281, specifies requirements for the contents of subdivision regulations. The statute plainly contemplates that specific standards shall be set forth, rather than mere broad generalizations with regard to health, safety, morals and general welfare, or the use of such flexible terms as “most advantageous development.”

The proposition is generally accepted in other jurisdictions that a mere generalization of matters to be considered in approval of subdivision plats is not sufficient; there must be rules and regulations constituting specific standards to be applied in determining whether approval is to be granted. See Rathkoff, The Law of Zoning and Planning, Vol. 3, p. 71-18. And the power of a planning board to approve or disapprove plats is limited by those rules and regulations. Rathkoff, Vol. 3., p. 71-82.

It follows, therefore, that the approval of subdivision plats is a ministerial act. See Knutson v. State, 239 Ind. 656, 157 N.E.2d 469; Castle Estates, Inc. v. Park & Plan Bd. of Medfield, 344 Mass. 329, 182 N.E.2d 540; R. K. Dev. Corp. v. City of Norwalk, 156 Conn. 369, 242 A.2d 781; Levitt and Sons, Inc. v. Township of Freehold, 120 N.J.Super. 595, 295 A.2d 397. That our statute so intends is made obvious by the provision of KRS 100.281 that the planning commission may delegate to its secretary or any other officer or employe the power to approve plats.

The appellees herein, OMPC and others, cite some of our Kentucky cases dealing with the granting of variances from zoning regulations. Of necessity, the granting of variances, based on factors such as hardship, requires the exercise of some discretion. That is not so, however, in the determination of the fact of whether there is a compliance with regulations, as in the case of approval of subdivision plats.

While OMPC cited a number of reasons for disapproval of the Snyder plat (none of which referred to any specific law or regulation), it is admitted in the ap-pellees’ brief that the “basic problem” with the plat and the “fundamental reason” for the disapproval lay in the failure of the plat to remedy the existing deficiencies in the course and design of Veatch Road. As hereinbefore stated, the main objection (which the circuit court found to be invalid) was concerned with the failure of the plat to supply a changed course for the road so as to eliminate the 90-degree turns. Another ground of objection was that the plat did not provide for widening the right-of-way of the road at the turn at the southeast corner of the Snyder tract, which widening was thought necessary because, although the existing right-of-way was of ample width, the existing pavement ran close to the property line. The sections of the regulations which OMPC now cites to us as supporting those grounds (but which were not cited as reasons in the statement of disapproval) do not in fact support them. A third ground of objection was that the main street entering into the proposed subdivision, near the northeast corner, would not be in alignment with Veatch Road as it approaches the Snyder tract from the east (before making its 90-degree turn to the south). Again, we do not interpret the regulation now cited by OMPC in support of that ground as meaning that the street must enter from an existing road at the exact point of a 90-de-gree turn.

The appellees undertake in their brief to cite, with reference to sections of the regulations, new reasons why it was proper to disapprove the Snyder subdivision plat. Those reasons cannot for the first time be raised here, because not only the regulations themselves, but considerations of due process, required that they be stated when the disapproval was made.

The judgment is reversed, with directions to enter judgment setting aside the Owensboro Metropolitan Planning Commission’s order of disapproval of the Snyder plat, and directing the commission to approve the plat.

All concur.


author: VANCE, Commissioner.

text:
    Travis GRAVES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 23, 1975.

      Jack Emory Farley, Public Defender, William C. Ayer, Jr., Asst. Public Defender, Frankfort, for appellant.
    Ed W. Hancock, Atty. Gen., Raymond Larson, Asst. Atty. Gen., Frankfort, for appellee.
   VANCE, Commissioner.

The appellant was convicted of the offense of armed assault with intent to rob and sentenced to confinement in the penitentiary for a term of ten years. We reverse the conviction solely because of the improper argument of the Commonwealth’s Attorney.

During the course of cross-examination the Commonwealth, without following the procedures suggested in Cotton v. Commonwealth, Ky., 454 S.W.2d 698 (1970), elicited from the appellant the fact that he had previously been convicted of a felony. The failure to follow the guidelines set forth in Cotton, supra, and Bell v. Commonwealth, Ky., 520 S.W.2d 316 (1975), have not been preserved for review.

The trial judge admonished the jury that the previous felony conviction could be considered solely for the purpose of affecting the appellant’s credibility and for no other purpose. Notwithstanding that admonition as to the limited purpose fpr which the previous felony conviction was admitted into evidence, the Commonwealth’s Attorney made the following argument to the jury:

“Do we want this man, who admitted that he was convicted of a felony before, do we want this man turned loose so that he can commit a felony again. I think the answer is ‘no’. If he was going to reform he would have done it after the last conviction.”

By this argument the Commonwealth’s Attorney ignored the admonition of the trial judge as to the limited purpose of the evidence. We have consistently condemned similar arguments.

The appellant was on trial for one crime only. Evidence of the commission of prior felonies is generally inadmissible. Arnett v. Commonwealth, Ky., 470 S.W.2d 834 (1971).

In Brown v. Commonwealth, Ky., 357 S.W.2d 681 (1962), the Commonwealth’s Attorney made the following argument:

“ ‘ * * * I ask you, I implore you, to help us, help us make Jefferson County a place where a robber does not dare to pull an armed robbery. Confinement in the penitentiary, is that the answer, in view of the record of the man? Three and a half years for robbery, another robbery in Rockford, Illinois, assault with intent to rob here in Jefferson County with a 21 year sentence. Did any of those confinements stop him? The answer is obvious.’ ”
In reversing Brown’s conviction we said:
“ * * *. The appellant was on trial for one crime only. Substantive evidence concerning the other crimes which he had committed would not have been admissible. The effect of the closing argument of the prosecuting attorney was to make substantive evidence out of that which was admitted only for the purpose of attacking the witness’s credibility. As a consequence the argument was prejudicial. A similar argument was condemned in Matters v. Commonwealth, Ky., 245 S.W.2d 913, where it was said: ‘In his argument to the jury the Commonwealth’s Attorney commented on Matters’ conviction of robbery in Ohio as though the evidence was admissible without qualification. This he should not have done. * * *.’ ”

In Messmear v. Commonwealth, Ky., 472 S.W.2d 682 (1971), we said:

“It was made plain in Cotton v. Commonwealth, Ky., 454 S.W.2d 698, and in Cowan v. Commonwealth, Ky., 407 S.W.2d 695, and in a line of cases preceding them that the only purpose of permitting evidence of prior conviction of felony is for impeachment. CR 43.07. In no circumstance is it proper for the prosecutor to equate a prior felony conviction with a ‘track record.’ Although the prosecuting attorney told the jury that the prior conviction had to do only with the question of veracity, in almost the same breath he insisted that the prior conviction was equatable with a ‘track record’ and pointedly argued that it was reasonable to suppose that appellant had committed incest in 1970 because that was in keeping with his ‘track record’ of having committed an earlier felony. This was error and prejudicial error, requiring a new trial.”

We have enunciated this rule repeatedly and in language that is easily understood. The violation in this instance was sufficient to prejudice the appellant’s right to a fair trial on the issue of guilt or innocence of the crime charged in the indictment.

On a retrial of the case the proscriptions of Cotton v. Commonwealth, supra, and Bell v. Commonwealth, supra, must be observed. The Commonwealth’s Attorney will limit his closing argument to reasonable comments upon the evidence and reasonable inferences that may be drawn therefrom. Hunt v. Commonwealth, Ky., 466 S.W.2d 957 (1971).

We express no opinion as to other allegations of error presented by appellant because we consider it unlikely that they will reoccur upon another trial.

The judgment is reversed for further proceedings in conformity with this opinion.

All concur.


author: CATINNA, Commissioner.

text:
    CITY OF ST. MATTHEWS, Appellant, v. William J. McGALIN et al., Appellees.
    Court of Appeals of Kentucky.
    May 23, 1975.
    J. W. Jones, Louisville, for appellant.
    Foster L. Haunz, Dougherty, Gray & Haunz, Louisville, for appellees.
   CATINNA, Commissioner.

The City of St. Matthews appeals from a judgment of the Jefferson Circuit Court, Chancery Branch, Third Division, dismissing annexation proceedings filed by the city.

This is a companion case to Corn et al. v. City of Windy Hills, Ky., 528 S.W.2d 668, this day decided, in that both cities attempted to annex practically the same territory. This action was transferred from Chancery Branch, Fourth Division, to Chancery Branch, Third Division, for the purpose of being consolidated with the Windy Hills action. However, the court refused to consolidate and entered an order abating this action until a final judgment had been entered in the Windy Hills proceeding. The Windy Hills judgment approved annexation by that city of the tracts involved; thereupon, a judgment was entered dismissing the St. Matthews proceeding, and it is from that order of dismissal the City of St. Matthews appeals.

The appeal was filed on November 1, 1974, and a notation made on the record that it was placed with the Windy Hills file. There was a further notation that appellant’s briefs were due December 11, 1974. The City of St. Matthews did not file briefs. RCA 1.260(b) provides: “If the appellant fails to file his brief within the time allowed, the appeal may be dismissed.” Cf. Barker v. Lappas, Ky., 412 S.W.2d 263 (1967).

The appeal is dismissed.

All concur.


text:
    Anne Hite CORN et al., Appellants, v. CITY OF WINDY HILLS, Appellee.
    Court of Appeals of Kentucky.
    May 23, 1975.
    Charles R. Boyer, Thurston M. J. Crady, Robert E. Fleming, Louisville, for appellants.
    Foster L. Haunz, Frank J. Dougherty, Jr., Louisville, for appellee.
   CATINNA, Commissioner.

This is an appeal from a judgment of the Jefferson Circuit Court, Chancery Branch, Third Division, upholding the right of the City of Windy Hills to annex certain territory, including that of the appellants, the Windhurst Subdivision.

By an ordinance dated April 12, 1971, the City of Windy Hills proposed to annex the Windhurst Subdivision and several adjoining tracts, all of which were contiguous to the boundaries of the City of Windy Hills and also to the boundaries of the City of St. Matthews. On May 11, 1971, Anne Corn and others filed this action seeking to prevent such annexation. In the meantime, the City of St. Matthews, by an ordinance dated November 14, 1972, proposed to annex practically the same territory, including in part the Windhurst Subdivision. On November 27, 1972, St. Matthews filed an action in the Jefferson Circuit Court, Chancery Branch, Fourth Division, seeking approval of the proposed annexation. William H. McGalin and others filed a remonstrance action against such annexation on January 5,1973.

The City of Windy Hills moved that the St. Matthews case be reassigned to the Chancery Branch, Third Division, where there was then pending the remonstrance action filed against the City of Windy Hills. An order was entered reassigning and transferring the case to the Third Division, Chancery Branch, to be consolidated with the Windy Hills remonstrance, it being the senior action.

Chancery Branch, Third Division, refused to consolidate the St. Matthews and Windy Hills actions but entered an order abating the St. Matthews action until the City of Windy Hills action had been resolved and a final judgment entered.

Upon a trial of the Windy Hills action, findings of fact and conclusions of law were made by the court and on July 10, 1974, a judgment was entered approving the annexation of the territory described by the City of Windy Hills and dismissing the remonstrance suit of Anne Corn and others.

At the same time a judgment was entered in the St. Matthews case which recited the entry of the Windy Hills judgment and the court’s conclusion that such judgment had the effect of vitiating the St. Matthews action and rendering its question of annexation moot. The court directed that the St. Matthews action be dismissed. St. Matthews appealed from this order of dismissal. See City of St. Matthews v. William J. McGalin et al., Ky., 528 S.W.2d 667, this day decided.

The City of Windy Hills moved that the instant appeal be dismissed, and such motion was passed to the merits of the appeal.

Windy Hills is a fifth-class city. KRS 81.010(5). Annexations by fifth-class cities are governed by KRS 81.230 which provides that territory may be annexed in the same manner and under the same procedure as provided in KRS 81.100 and 81.-110 for the annexation of a territory by a first-class city with two exceptions, the second one being: “There shall be no appeal from the judgment of the circuit court.”

In view of this statutory provision, Anne Corn and others did not have the right to appeal from the judgment of the Jefferson Circuit Court, Chancery Branch, Third Division, approving the annexation of the territory, as described in the proceeding, by the City of Windy Hills. See Yount v. City of Frankfort, Ky., 255 S.W.2d 632 (1953); City of Eddyville v. City of Kuttawa, Ky., 343 S.W.2d 404 (1961); and Jobe v. City of Erlanger, Ky., 383 S.W.2d 675 (1964).

The appeal is dismissed.

All concur.


text:
    Barbara HAWLEY, Appellant, v. Robert C. SHAVER, Appellee.
    Court of Appeals of Kentucky.
    Feb. 21, 1975.
    As Modified on Denial of Rehearing April 25, 1975.

      Eugene H. Alvey, Louisville, for appellant.
    David L. Gittleman, Louisville, for ap-pellee.
   VANCE, Commissioner.

This is an appeal from a judgment which denied to appellant the immediate custody of two minor children.

The appellant, mother of the children, was granted a divorce and custody of her infant children by a court of competent jurisdiction in the state of Connecticut in 1971. In violation of the order of custody, the appellee removed two of the children from the United States to England for a period of more than two years and did not return them to their mother until December 1973. At that time the appellant was residing in the state of New York and the children made their home with her until July 4, 1974, a period of more than six months.

In the meantime the appellee became a resident of the state of Kentucky, and appellant permitted the children to visit with appellee in Kentucky during the summer of 1974, commencing with the July 4th weekend. At the end of the summer the appel-lee refused to return the children to appellant in New York, and she instituted this petition in Kentucky to obtain their immediate custody.

The trial court refused to grant immediate custody to her upon its finding that appellant had orally agreed with appellee to modify the custody order of the Connecticut Court and that said order having thereby been modified the appellant was not entitled to immediate custody of the children.

We have grave doubts that any evidence in the record supports the finding of the chancellor concerning the oral modification of the Connecticut decree. Be that as it may this proceeding does not involve the question of which party is entitled ultimately to the custody of the children but only the question of which party is entitled to immediate custody.

No authority is cited to us which vests any jurisdiction in the courts of Kentucky to adjudicate the question of ultimate custody. KRS 403.260 provides:

“A court of this state competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
“(a) This state:
“1. Is the home state of the child at the time of commencement of the proceeding ; or
“2. Had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reason, and a parent or person acting as parent continues to live in this state; or
“(b) It is in the best interest of the child that a court of this state assume jurisdiction because:
“1. The child and his parents, or the child and at least one (1) contestant, have a significant connection with this state; and
“2. There is available in this state substantial evidence concerning the child’s present future care, protection, training, and personal relationships; or
“(c) The child is physically present in this state,; and
“1. Has been abandoned; or
“2. It is necessary in an emergency to protect him because he has been subjected to or threatened with mistreatment or abuse or is neglected or dependent; or
“(d) 1. No other state has jurisdiction under prerequisites substantially in accordance with paragraphs (a), (b) or (c) of subsection (1), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine custody of the child; and
“2. It is in his best interest that the court assume jurisdiction.
“(2) Except under paragraphs (c) and (d) of subsection (1), physical presence in this state of the child, or of the child and one (1) of the contestants, is not alone sufficient to confer jurisdiction on the court of this state to make a child custody determination.
“(3) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody, * *

It is evident that Kentucky is not the home state of these children. The children have no significant connection with this state except for their presence here as a result of the visitation consented to by appellant. Physical presence alone is not sufficient to confer jurisdiction except under KRS 403.260(1) (c) & (d) which grants such jurisdiction if the child has been abandoned or is threatened with the emergency of immediate mistreatment or neglect or if no other state has jurisdiction under the prerequisites set forth in the statute. Neither of those sections is applicable under the facts of this case.

The denial of immediate possession to the appellant based upon an alleged oral modification of the Connecticut decree has the effect of modifying that decree, and in our opinion the trial court had no jurisdiction to modify the Connecticut decree.

Story v. Story, Ky., 423 S.W.2d 907 (1968), is distinguishable on the facts. It upheld a judgment in which the chancellor found there had been no oral modification of a judgment providing for the payment of child support in installments and the question of jurisdiction was not raised or discussed. Likewise the case of Galloway v. Pruitt, Ky., 469 S.W.2d 556 (1971), is not controlling because it predated the enactment of KRS 403.260. Cf. Turley v. Griffin, Ky., 508 S.W.2d 764 (1974).

The judgment is reversed with direction that appellant’s petition for immediate custody and possession of the infant children be granted.

All concur except STERNBERG, J., not sitting or participating.


text:
    KENTUCKY STATE BAR ASSOCIATION, Complainant, v. Emmett B. SMITH, Respondent.
    Court of Appeals of Kentucky.
    Feb. 21, 1975.
    Edward L. Clark, Louisville, Leslie G. Whitmer, Counsel, Kentucky State Bar Ass’n, Frankfort, for complainant.
    Emmett B. Smith, pro se.
   OPINION

PER CURIAM.

This cause is before the Court on the application of Emmett B. Smith for reinstatement to the practice of law following the imposition of a suspension of sixty days in Kentucky State Bar Association v. Smith, Ky., 503 S.W.2d 482 (1973). Smith had prior experience with the disciplinary process in Kentucky State Bar Association v. Smith, Ky., 439 S.W.2d 56 (1969), which resulted in a suspension for one year.

The application was filed pursuant to R. C.A. 3.510 and Smith was assigned the burden of proof of present professional competency and good moral character by R.C.A. 3.330. The Board of Governors of the Kentucky State Bar Association found that Smith failed to sustain this burden and recommends that the application be denied.

A meticulous examination of the record discloses that the evidence lacked the persuasive quality required to induce belief in Smith’s present professional competency and good moral character. Indeed, the evidence would support completely negative findings on these issues.

The application for reinstatement is denied and Smith is ordered to pay the costs of this proceeding.

All concur except STEPHENSON and STERNBERG, JJ., not sitting.


author: PALMORE, Justice.

text:
    KNOX COUNTY FISCAL COURT, Appellant, v. KNOX COUNTY GENERAL HOSPITAL, INC., et al., Appellees.
    Court of Appeals of Kentucky.
    March 7, 1975.

      E. Gaines Davis, Jr., Frankfort, Guy Millward, Jr., Barbourville, for appellant.
    Robert L. Milby, Hamm, Taylor, Milby & Farmer, London, Lowell W. Lundy, Samuel E. Davies, John C. Dixon, Bar-bourville, for appellees.
   PALMORE, Justice.

The question in this case is whether the Fiscal Court of Knox County has the right to assume the management of a county hospital and terminate its control by the directors of a nonprofit corporation organized by the Fiscal Court some years ago for that purpose. We hold that it does.

All of the dispositive facts have been established by stipulation. There is, however, one technical issue arising from the Fiscal Court’s omission to answer a cross-claim asserted against it by the hospital corporation. The only matter in this cross-claim the Fiscal Court would have any reason to deny is an allegation to the effect that it had no authority to take control of the hospital and that its order purporting to do so was null and void. That allegation did no more than set forth a legal conclusion which in substance had been put in issue by the Fiscal Court’s cross-claim against the hospital. It would surely exalt form over substance to say that with the pleadings in this posture the Fiscal Court’s failure to answer an unnecessary cross-claim had the effect of admitting it.

Construction of the hospital in question through a general-obligation bond issue was authorized by the voters of Knox County in 1956 pursuant to KRS 216.020. In 1958 the Fiscal Court appointed a 9-member board of directors to operate the hospital and adopted a set of bylaws for its governance. In 1959 the Fiscal Court authorized the county attorney to incorporate it as a charitable, nonprofit corporation, which was promptly done. Thereafter and until the present controversy arose the hospital was operated exclusively by the corporation in accordance with its articles. The payment schedule of the bond issue runs until 1987, and the Fiscal Court continues to levy a tax for retirement of the bonds as they fall due. Meanwhile, two additions to the hospital have been constructed and paid for entirely out of hospital revenues.

The county has retained legal title to the hospital property and has never entered into a lease arrangement with the hospital corporation, nor has there been any other formal contractual relationship between them. No distinction is drawn between the property and the business of the hospital, it being stipulated simply that the county has legal title to “the hospital.”

The charter of the hospital corporation, as did the bylaws theretofore adopted by the Fiscal Court, provides that its affairs shall be governed by a board of not less than nine (9) nor more than 15 directors whose terms of office shall be nine (9) years, staggered so that one or more will be appointed each year.

The corporation has no members — only a board of directors. Its directors are appointed by the Fiscal Court, but. the appointment of each new director upon expiration of the respective terms of the directors initially designated in the articles of incorporation must be made from a list supplied to the Fiscal Court by the board of directors as currently constituted. In this particular, the literal requirement of the articles is as follows:

“The Board shall submit names to the Fiscal Court, from which list the Fiscal Court shall approve said appointment for the term of nine (9) years.”

KRS 216.040, which applies in this case, says: “The county hospital shall be under the control of the proper county authorities.” That provision has been held to mean that the county is not permitted “to take a private corporation into partnership in conducting such public enterprise. To do so is to surrender official responsibility and to delegate the public function to persons who are not responsible to the people.” Booth v. City of Owensboro, 274 Ky. 325, 118 S.W.2d 684, 686 (1938). A fiscal court may sell or lease property for the purpose of being operated as a hospital, but if it is to be a county hospital it must remain under control of the governing body directly responsible to the county electorate, which is the fiscal court.

The trial court was of the opinion that if the governing 'body of a hospital consists entirely of persons appointed by the fiscal court there is no violation of KRS 216.040. That is not necessarily true. The real criterion is whether the fiscal court has parted with any of its authority. To the extent that it cannot override the governing body of the hospital it has given away its power, and that is what it cannot legally do.

In this particular instance the articles of incorporation do not leave the ultimate control of the hospital in the governing body of the county. First, they do not give the Fiscal Court a choice as to whom it will appoint as directors, since it must choose from those nominated by the current members of the board. Secondly, the power of the current members of the Fiscal Court over the directors is limited to the filling of vacancies as they arise. They have no power to remove or replace directors appointed by their predecessors in office except upon the expiration of the 9-year terms for which the directors were appointed. Third, and most importantly, the Fiscal Court has no veto power over the actions of the directors.

Neither the good and wholesome considerations that motivated the 1958-1959 fiscal court in providing for a separate, nonpolitical operation of the hospital, nor its exemplary and successful management in the interim, nor the role of local politics in the present controversy is relevant to the decision required of this court. We are confined strictly to the question of legal authority, and on that issue we find no room for choice.

The cases on which the hospital relies are correctly distinguished in the Fiscal Court’s briefs. Both State Bank & Trust Co. v. Madison County, 275 Ky. 501, 122 S.W.2d 99 (1938), and Abernathy v. City of Irvine, Ky., 355 S.W.2d 159 (1962), were instances in which the public authority leased hospital property to another entity. In the Madison County case “the fiscal court of Madison County [was] vested with the control of the hospital.” In the City of Irvine case the city did not undertake to have the hospital operated as a governmental institution. Neither Henderson County Board of Health v. Ward, 107 Ky. 477, 54 S.W. 725 (1900), nor Walker v. Henderson County, 23 KLR 1267, 65 S.W. 15 (1901), involved the hospital statute (KRS 216.040) which controls this case.

There is yet a simpler and more rudimentary solution of this particular controversy. Though organized and given life at the instance of the 1959 fiscal court, the hospital corporation is a separate legal entity from the county. Whatever may be its powers, they are derived from its articles of incorporation and the general statutes (principally KRS Ch. 273) applicable to nonprofit corporations. The authority to manage anyone’s hospital could come to it only from the owner of that hospital. The Fiscal Court did not, by sheer force of causing the articles of incorporation to be issued, make a contract with the corporation. The articles of incorporation were no more a grant of authority from the county than they were a deed of conveyance. Its corporate existence may continue, because certainly its charter remains valid, but the hospital corporation has neither an ownership interest nor a contract right to retain possession or control of the county’s hospital facilities. It has been a mere tenant at will, holding at the pleasure of the landlord.

The judgment is reversed.

All concur.


text:
    Noble GABBARD, Petitioner, v. John P. LAIR, Judge, Respondent.
    Court of Appeals of Kentucky.
    March 21, 1975.

      Joe A. Jarrell, Asst. Public Defender, Frankfort, for petitioner.
   CATINNA, Commissioner.

Noble Gabbard was convicted in the Pendleton Circuit Court of receiving stolen property and his punishment fixed at three years’ imprisonment. Gabbard filed a timely notice of appeal. Later he moved that he be permitted to proceed on appeal in forma pauperis and in support of the motion filed an affidavit stating, “ . . . that he is entirely without funds or property of any kind whatsoever with which to retain counsel and to pay the cost of an appeal.” No counter-affidavits were filed. The trial court, without making any findings of fact, summarily denied the motion.

Gabbard now invokes the original jurisdiction of this court seeking an order requiring the trial judge to permit him to proceed in forma pauperis and also requiring that he be furnished a transcript of the evidence free of charge. In his response, the trial judge states that the motion was denied because Gabbard “ . . . was represented by highly competent counsel whom he had retained and paid, . . . . ” Finally, the trial judge states that he “ . . . definitely does not believe this man to be a pauper.” Regardless of what the trial judge may believe, there is no evidence in the record controverting Gabbard’s affidavit that he is a pauper, and his holding to the contrary is clearly erroneous, being unsupported by any evidence. Therefore, the petition for writ of mandamus will be sustained and the relief sought will be granted.

Presently, appellate review of a trial court’s order overruling a motion to appeal in forma pauperis may be obtained either by petitioning this court for a writ of mandamus or by filing a motion in this court for a rule against the circuit clerk and the court reporter to show cause why the record should not be furnished without cost.

A poor person has always been entitled to a transcript of the record for appeal, upon a showing that he is unable to pay for it. Cf. Collins v. Cleveland, Ky., 17 B.Mon. 459 (1856). If the trial court refused to order the circuit clerk to supply a free record, the appellant was required to proceed in this court against the circuit clerk by filing a copy of the trial court’s order and a motion for a rule against the circuit clerk to show cause why he should not furnish a free record. Smith v. Sisters of the Good Shepherd, Ky., 87 S.W. 1076 (1905). In Smith the right of an appellant to proceed in forma pauperis was not in issue. The only question before the court involved the procedure required to enforce those rights afforded one already proceeding forma pauperis.

In Smith v. Bastin, 192 Ky. 164, 232 S.W. 415 (1921), the court, in refusing to mandatorily order the release of a prisoner who had abandoned an appeal when denied permission to proceed in forma pauperis, said:

“ , . . The mere fact that the trial court overruled appellant’s motion to be allowed to prosecute the appeal in forma pauperis was not a denial of the right of appeal, and if the trial court abused its discretion in overruling the motion to be allowed to prosecute the appeal as a poor person, it was subject to review by this court. Smith v. Sisters of the Good Shepherd, 87 Ky. 1076. (Note: Correct citation 87 S.W. 1076.) This question could have been decided on motion for rule against the clerk and reporter made here, . . . . ”

Marcum v. Wallace, 240 Ky. 444, 42 S.W.2d 531 (1931), enlarged the procedural requirements by holding:

“ . . .If his application there be denied, he should file in this court a certified copy of the judgment from which he desires to appeal, a certified copy of the order of the circuit court overruling his motion to prosecute that appeal in forma pauperis, such affidavits as he may deem necessary to establish his right to appeal in forma pauperis, and a motion for a rule against the clerk and/or official stenographer to show cause why they or either of them should not furnish without cost to the appellant such parts of the record on appeal as is their duty to prepare and furnish for appeals.”

McIntosh v. Armour & Co. of Illinois, 279 Ky. 517, 131 S.W.2d 393 (1939), requires that there be filed with the motion to show cause a transcript of the evidence heard in circuit court upon trial of the motion to appeal in forma pauperis, it being said that the only function of this court in disposing of the motion to show cause is to determine whether or not the trial court, upon the evidence before it, properly determined the issue. Pearson v. Commonwealth, Ky., 290 S.W.2d 474 (1956), and Robinson v. Pound, Ky., 432 S.W.2d 645 (1968), approve the procedure as outlined in Marcum and McIntosh. In Robinson v. Pound, supra, it was held that the “motion to show cause” procedure was an available adequate remedy and, therefore, precluded resort to the extraordinary remedy of mandamus.

This court has concluded that the “motion to show cause” proceedings and the “mandamus” proceedings do not adequately present for consideration by this court the question of a party’s right to appeal in for-ma pauperis. Seldom does the record contain a sufficient transcript or other showing of evidentiary material upon which the circuit court order was based, thereby causing this court to rely on recitations of fact to be gleaned from the motion, the petition, and any response that may have been filed. There is the ever-present danger that the time within which the principal record on appeal must be filed will expire before a determination is forthcoming on the question of appellant’s right to prosecute the appeal in forma pauperis.

For the reasons herein set out, the right of an appellant to prosecute an appeal in forma pauperis shall hereafter be determined by an appeal to this court from the order of the circuit court denying appellant’s motion to appeal forma pauperis.

In any criminal proceeding where a defendant proposes to appeal a judgment of conviction and desires to prosecute the appeal in forma pauperis, the following procedure is required.

There must be a valid appeal pending from the judgment of conviction at the time the defendant files his motion in the trial court requesting permission to prosecute the appeal in forma pauperis. RCr 12.52 and RCr 12.54.

The order of the trial court overruling the motion of the appellant to prosecute the appeal in forma pauperis will be reviewed by this court on an appeal from the order filed in compliance with RCr 12.52 and RCr 12.54.

The notice of appeal from the order of the trial court shall be filed as required by RCr 12.52 and within the time fixed by RCr 12.54. However, a copy of the notice of appeal shall be served on the trial judge who entered the order.

Upon the filing of the notice of appeal from the order of the trial court, the clerk of the circuit court shall prepare and certify a copy of all proceedings had and evidence introduced at a hearing upon the motion to prosecute the appeal in forma pauperis. The certified record, including a copy of the motion, together with supporting documents and the order, shall be prepared and filed with the clerk of this court as required by RCr 12.56 and RCr 12.58. The appellant shall not be required to pay any fees or costs incident to the preparation and filing of this record.

Upon receipt of the certified record by the clerk of this court, the appeal shall be submitted for final disposition. No briefs need be filed unless requested by the court.

Until such time as the court disposes of the appeal on the motion to proceed in for-ma pauperis, the running of the time set by RCr 12.58 within which the record on the appeal from the criminal conviction must be filed shall be stayed.

Smith v. Bastin, 192 Ky. 164, 232 S.W. 415 (1921); Marcum v. Wallace, 240 Ky. 444, 42 S.W.2d 531 (1931); McIntosh v. Armour & Co. at Illinois, 279 Ky. 517, 131 S.W.2d 393 (1939); Pearson v. Commonwealth, Ky., 290 S.W.2d 474 (1956); Robinson v. Pound, Ky., 432 S.W.2d 645 (1968), and all other cases holding that appellate review of an order denying the right to prosecute an appeal in forma pau-peris may be obtained only by the filing in this court of a motion to show cause against the circuit court clerk and the court reporter are hereby overruled.

For reasons previously stated, the petition is sustained and the relief sought is granted.

All concur.


author: JONES, Justice.

text:
    Woodrow ARNETT and Lula Arnett, Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    April 25, 1975.

      Robert Greene, Perry & Greene, Paints-ville, for appellants.
    Jim Robinson, Gen. Counsel, Dept, of Highways, Frankfort, Kenneth Baker, Dept, of Highways, Jackson, for appellee.
   JONES, Justice.

This action was brought by Woodrow and Lula Arnett in 1971 seeking damages from the Commonwealth. In their complaint they alleged that the Commonwealth constructed a bridge across a stream on their property in 1968. They contended that the bridge was constructed in such a manner that water was diverted upon their property. They said that such diversion of water ruined their crops, and constituted a taking of their property without just compensation.

The Commonwealth filed an answer denying each allegation of the complaint.

At a pretrial conference the trial court permitted Woodrow and Lula to amend their complaint. They reiterated the allegations of the original complaint. However, in the amended complaint they alleged their purchase of the property in 1967. They contended that the bridge was constructed prior to the purchase of the property, and that the injuries complained of commenced in 1968.

The Commonwealth then filed a motion to dismiss. Among other grounds in support of its motion was an allegation that the bridge was constructed in 1962. It was the contention of the Commonwealth that the action was barred by the statute of limitations.

The trial court sustained the Commonwealth’s motion to dismiss. From that action Woodrow and Lula instituted this appeal.

Although the trial court failed to specify the reason for dismissal of the action, the Arnetts assumed that the trial court concluded that the action was barred by the statute of limitations. That is the only issue presented in this appeal. That is the sole agrument presented by the parties in their respective briefs.

This court is of the opinion that the complaint states a cause of action and is not barred by the statute of limitations. The controlling question is not when the bridge was built, but when the damage occurred. The purchase of the property by the Arnetts after construction of the bridge did not deprive them of standing to sue. If the Commonwealth was creating a nuisance, the Arnetts would be entitled to compensation. Cf. Klutey v. Commonwealth, Department of Highways, Ky., 428 S.W.2d 766 (1968).

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

All concur.


author: REED, Chief Justice.

text:
    Jeffrey M. GOINS, Petitioner, v. N. Mitchell MEADE, Judge, Fayette Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    April 25, 1975.
    Rehearing Denied June 27, 1975.
    Timothy T. Riddell, Asst. Public Defender, Frankfort, A. Norrie Wake, Lexington, for petitioner.
    John M. Famularo, Asst. Commonwealth’s Atty., Lexington, Miles H. Franklin, Asst. Atty. Gen., Frankfort, for respondent.
   REED, Chief Justice.

This is an original proceeding in this court to require the Judge of the Fayette Circuit Court, Second Division, to order the court reporter to prepare a transcript of the entire proceedings of petitioner’s trial in that court (including the opening statements of counsel and the voir dire examination of jurors) for the record on appeal.

The petitioner is an indigent person. He was represented at trial by the local public defender and he will be represented by the state public defender on appeal. All of his legal representation has been provided at public expense.

The petitioner was convicted and sentenced to confinement in the penitentiary for a period of 21 years for the crime of malicious cutting and wounding with intent to kill; 7 years for the crime of detaining a female: 25 years for the crime of armed robbery; and an additional 7 years for another crime of detaining a female, and 3 years for the crime of robbery. The trial judge ordered that all these sentences should run concurrently.

Five days after the trial, the local public defender filed the motion for a new trial in which the sole assertion of error related to petitioner’s mental competence to stand trial. This motion was promptly overruled. On the same day the trial counsel filed a notice of appeal, a motion to be permitted to appeal in forma pauperis and a request that the entire record be transcribed and filed as the record on appeal.

The motion to be allowed to appeal in forma pauperis was sustained but the court ordered a hearing for the purpose of determining what portions of the record could be omitted without prejudice to the petitioner. At the hearing, trial counsel did not assert that any issue would be raised on the appeal involving any alleged error either in the conduct of the voir dire examination of jurors or in the opening statements of counsel but did state that because of the lapse of time since the trial and because of his involvement in other trials subsequent to petitioner’s trial, he was unable to recall whether or not errors occurred during the voir dire examination of jurors and the opening statements of counsel which might be asserted upon appeal.

The state public defender asserted that he was not present during the trial and could not properly determine whether errors occurred during the voir dire examination of jurors and opening statements of counsel unless he was furnished a complete transcript.

The court directed that the voir dire examination of jurors and the opening statements of counsel be omitted from the transcript. The response to this petition states that the omitted portions of the record are not essential for the consideration of any issue presented by the petitioner and the furnishing of these unnecessary parts of the record would occasion a needless expense to the taxpayers and would increase the already heavy burden upon court reporters of the Fayette Circuit Court which would cause delay in processing other criminal appeals from that court.

The action of the trial court was predicated upon RCr 12.63 which provides:

“Upon leave to proceed in forma pau-peris, the circuit court may by order specify some different and more economical manner by which the record on appeal may be prepared and settled, to the end that the appellant may be enabled to present his case to the Court of Appeals.”

The petitioner argues that the application of RCr 12.63 operates to deny him due process and also denies him equal protection of the law in contravention of the requirements of the Fifth and Fourteenth Amendments to the Constitution of the United States.

The petitioner argues in substance that unless our rules concerning the makeup of the record for criminal appeals are changed so as to provide limitations on nonindigents that would equally apply to indigents, there is a constitutional infirmity. Since RCr 12.63, upon which the trial judge relied, directs itself to a forma pau-peris proceeding, it would appear that this argument amounts to a plea to extend the decisions of the United States Supreme Court and to construe them to require this court to declare its own rule unconstitutional under the due process and equal protection requirements of the Fourteenth Amendment of the Constitution of the United States.

The “watershed” case concerning a state’s duty toward an indigent defendant where the state provides all defendants a criminal appeal is Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). Griffin established these principles: (1) A state is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all; (2) A state that does grant appellate review may not do so in a way that discriminates against some convicted defendants on account of their poverty so far as the adequacy of review of claims of errors is concerned; (3) Although a state that does grant appellate review cannot do so in a way that discriminates against indigent convicted defendants, that does not mean that “it must purchase a stenographer’s transcript in every case where a defendant cannot buy it;” (4) Special rules applicable to indigents may be properly made so long as they award the indigent adequate review of his claims of trial error.

In Burns v. State of Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209 (1959), the Supreme Court merely held that an indigent defendant was as entitled to have his motion for leave to appeal considered by the Ohio Supreme Court without payment of a filing fee as was a nonindigent defendant who did pay the fee.

In Draper v. State of Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963), the Supreme Court considered a state system whereby the trial judge determined whether an indigent defendant’s claims of errors were frivolous. The court did not condemn the state’s treatment of appeals by indigents in a separate category. In the case before it, the trial judge had made a conclusionary finding that the guilt of each defendant was established by overwhelming evidence and that the furnishing of a transcript would result in a waste of public funds. The evidence upon which his conclusions were based was 'not described in his order. In Draper, the majority opinion stated: “A State need not purchase a stenographer’s transcript in every case where a defendant cannot buy it.” It also made the following statement which is particularly applicable to many criminal appeals in this court:

“Moreover, part or all of the stenographic transcript in certain cases will not be germane to consideration of the appeal, and a State will not be required to expend its funds unnecessarily in such circumstances. If, for instance, the points urged relate only to the validity of the statute or the sufficiency of the indictment upon which conviction was predicated, the transcript is irrelevant and need not be provided. If the assignments of error go only to rulings on evidence or to its sufficiency, the transcript provided might well be limited to the portions relevant to such issues. Even as to this kind of issue, however, it is unnecessary to afford a record of the proceedings pertaining to an alleged failure of proof on a point which is irrelevant as a matter of law to the elements of the crime for which the defendant has been convicted. In the examples given, the fact that an appellant with funds may choose to waste his money by unnecessarily including in the record all of the transcript does not mean that the State must waste its funds by providing what is unnecessary for adequate appellate review.” (Emphasis supplied).

There is certainly nothing in this language which indicates any intent on the part of the Supreme Court to hold that the appealing indigent defendant cannot be the subject of an appellate rule of procedure directed to forma pauperis appeals.

The constitutional requirement is only that the indigent must be given adequate appellate review of his claims of error if appellate review is accorded at all to any defendant.

In Draper a specific holding was that if Washington could show, in the light of the defendant’s claims of error, that a narrative statement or only a portion of the transcript would be adequate and available for appellate consideration of the indigent defendant’s contentions that would be sufficient to satisfy Federal Constitutional requirements. The statement in the opinion that nothing in the holding “militates” against a state’s formulation and application of operative nondiscriminate rules to both indigents and nonindigents in order to guard against frivolous appeals is illustrative dictum and certainly announces no constitutional mandate.

In the case before us, the trial judge directed a full transcript of the evidence. He did direct that the voir dire examination of jurors and the opening statements of counsel need not be transcribed. The defendant made no claim that any error, of constitutional proportions or otherwise, occurred during the voir dire or during opening statements of counsel. It is inconceivable that if the defendant was afforded even a modicum of “adequate representation by counsel”, which is the primary responsibility of the state public defender to assure, the errors, if they had occurred, would not have been brought to the trial court’s attention or at least alleged before this court in support of the application for the extraordinary order of .mandamus. There is not even the contention of a probability of error. Have we now reached the point where there is a rebuttable presumption of error and the burden is on the trial court of general jurisdiction to prove the nonexistence of possibility of error?

In criminal appeals before this court, we deal with indigent defendants who have been convicted and thereby lost the presumption that they are entitled to bail as a matter of right. The presumption of innocence has vanished. In most cases, therefore, they start to serve their sentences of confinement while their appeals pend. One of the greatest causes for delay in the disposition of appeals is applications to extend the time for filing the record in this court because overburdened court reporters cannot prepare the transcript in a reasonable time. When the transcript finally is filed, in too many instances much of it proves entirely unnecessary to the disposition of the defendant’s contentions on appeal. The indigent defendant who has a meritorious appeal is thus relegated to serving a term of confinement which cannot be restored to him. The defendant with the meritless appeal who has persuaded the trial judge to grant bail pending the appeal is free to pursue a course of criminal conduct in some instances until his appeal is disposed of.

Mayer v. City of Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971), goes no further than to hold that a distinction may not be drawn in the furnishing of transcript for the disposition of appeals between misdemeanor convictions and felony convictions. The Mayer case does, however, contain a concurring opinion by the present Chief Justice of the United States which states: “ . . . there are alternatives in the majority of cases to a full verbatim transcript of an entire trial.” This concurring opinion also says: “One need only examine briefs in appeals to see that at the appellate stage the area of conflict on the facts is generally narrow.” The Chief Justice also makes this statement:

“Every busy court is plagued with excessive demands for free transcripts in criminal cases. My own experience over the years indicates that privately employed counsel are usually spartan in their demands because the client must pay his own costs. Unfortunately one consequence of the advent of the Criminal Justice Act and state counterparts is that when costs are paid by the public, counsel are sometimes profligate in their demands, or yield their professional judgment to the client’s desires. This is more than a matter of costs. An affluent society ought not be miserly in support of justice, for economy is not an objective of the system; the real vice is the resulting delay in securing transcripts and hence determining the appeal. When excessive demands are made by an appellant in order to postpone the day when the appeal is finally determined, because, for example, he is at liberty pending appeal, a lawyer who cooperates is guilty of unprofessional conduct.”

If a defendant or his counsel claims the occurrence of error during the voir dire, or during opening statements, the transcript must include those events. There is nothing constitutionally infirm in the reasonable regulation of appeals in for-ma pauperis so long as the indigent defendant is assured adequate and expeditious consideration of his contentions of error. Constitutional issues are not decided in a vacuum. The possibility of reversible error during the voir dire or the opening statement in the circumstances of this case is virtually nonexistent. To adopt the petitioner’s abstract argument would encourage the waste of public money and delay finality in the disposition of criminal cases to the detriment of the affected defendant and society which deserves protection.

The petition for an order of mandamus is denied.

All concur.


author: LUKOWSKY, Justice.

text:
    DEPARTMENT FOR NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION of the Commonwealth of Kentucky et al., Appellants, v. NO. 8 LIMITED OF VIRGINIA, a Virginia Corporation, Appellee.
    Court of Appeals of Kentucky.
    May 9, 1975.
    Dean Hill Rivkin, Appalachian Research and Defense Fund of Kentucky, Inc., Lexington, John M. Rosenberg, Appalachian Research and Defense Fund of Kentucky, Inc., Prestonsburg, for intervening defendants-appellants, Henry Hurt, J. R, Kelly, Nancy Kelly and Floyd Whitaker.
    Ed W. Hancock, Atty. Gen., Commonwealth of Kentucky, David D. Beals, Asst. Atty. Gen., Frankfort, for defendant-appellant, Dept, for Natural Resources and Environmental Protection of the Commonwealth of Kentucky.
    Oscar H. Geralds, Jr., Moloney & Molo-ney, Lexington, for amicus curiae, Sierra Club.
    Frederick W. Whiteside, Jr., Lexington, for amicus curiae, League of Women Voters of Kentucky.
    Harry M. Caudill, Whitesburg, for ami-cus curiae, Kentucky Black Lung Ass’n, Citizens’ League to Protect the Surface Rights, Floyd County Save Our Land Club, Inc., and Knott County Property Owners Protective Ass’n, Inc.
    Bert T. Combs, Tarrant, Combs & Bullitt, Richard W. Iler, Charles R. Simons, Tar-rant, Combs & Bullitt, Louisville, for ap-pellee; J. W. Craft, Jr., Hazard, of counsel.
    Fred G. Francis, Prestonsburg, Bruce Stephens, Jr., Hazard, for appellee, of counsel.
   LUKOWSKY, Justice.

This is an appeal from a judgment of the Franklin Circuit Court which declared KRS 350.060(8) to be unconstitutional and granted appropriate ancillary injunctive relief. We affirm.

The declared purpose of Chapter 350 of the Kentucky Revised Statutes is to provide such regulation and control of the strip mining of coal as to minimize or prevent its injurious effects on the people and resources of the commonwealth. KRS 350.020.

The apposite portions of KRS 350.060 are as follows:

“(1) No operator shall engage in strip mining without having first obtained from the department a permit ...”
'‘(8) Each application shall also be accompanied by a statement of consent to have strip mining conducted upon the area of land described in the application for a permit. The statement of consent shall be signed by each holder of a freehold interest in such land. Each signature shall be notarized. No permit shall be issued if the application therefor is not accompanied by the statement of consent. This statement of consent shall not be required for coal mined under the provisions of KRS chapters 351 and 352.”

The source of subsection 8 is section 2 of Chapter 373 of the 1974 Acts of the General Assembly. Section 1 of that chapter, which is not codified in the Kentucky Revised Statutes, is as follows:

“It is the intent of the General Assembly in this Act to declare that the notarized statement of consent required by Section 2 of this Act is a perfectly legitimate, right, and proper requirement to protect the public safety and welfare as it pertains to the broad form deed. It is also the intent of the General Assembly that this Act does not affect any other form of contract in any manner, nor affect underground mining in any manner.”

It is immediately apparent that subsection 8 does not apply to situations in which the owner of the mineral rights also owns the surface rights to the land or in which the owner of the mineral rights was granted specific authority to conduct strip mining in the deed which conveyed the mineral rights to him. It is an obvious retrospective diminution of rights granted by a specific form of contract bare of any attempt to control the noxious aspects of the strip mining operation. It is equally apparent that subsection 8 does not involve the construction and validity of broad form deeds.

Article 1, Section 10 (1) and Amendments 5 and 14 of the Constitution of the United States and Sections 13, 19 and 242 of the Constitution of the Commonwealth of Kentucky provide that the legislature may not impair the obligations of a contract and that private property may not be taken for a public use without just compensation. However, government could hardly go on if, to some extent, values incident to property could not be diminished without paying for every such change in the general law. As long recognized, some values are enjoyed under an implied limitation, and must yield to the police power. But obviously the implied limitation must have its limits or the contract and due process clauses are emasculated. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322, 28 A.L.R. 1321 (1922).

The limits are that the police power may be used so as to invade private rights only if the legislation bears a real and substantial relation to the public health, safety, morality or some other phase of the general welfare. Louis K. Liggett Co. v. Baldridge, 278 U.S. 105, 49 S.Ct. 57, 73 L.Ed. 204 (1928); City of Covington v. Sanitation District No. 1 of Campbell and Kenton Counties, Ky., 301 S.W.2d 885 (1957).

This dissection exposes the “gut issue” here. May subsection 8 be justified as a legitimate exercise of the police power?

In order to be justified it must stand as an evironmental conservation measure. It may well be that the General Assembly, in the exercise of its legislative wisdom, might strike a balance between the “energy crunch” and the necessity to conserve the environment which, for example, would prohibit strip mining entirely, prohibit strip mining which would remove tillable soil from production, limit strip mining to areas which have less than a given percentage of grade, require extensive restoration and reforestation of land to be stripped, limit the activity in areas where the watershed and wildlife might be adversely affected and even protect aesthetic beauty. Blue Diamond Coal Co. v. Neace, Ky., 337 S.W.2d 725 (1960).

But that is not this case. Here the legislation is ineffective as an environmental conservation measure. It does no more than delegate to an individual, a privy of a party to the contract which severed the mineral, a veto over the use of land by the other party to the contract. It puts the surface owner in a position to be paid again for what he or his predecessor in title has already received compensation. Martin v. Kentucky Oak Mining Co., Ky., 429 S.W.2d 395, 398 (1968).

In Martin, supra, at 397 we demonstrated that the consent of the surface owner bears no rational relationship to environmental conservation.

“The court is fully aware of the great public concern with the conservation problems attendant upon strip and auger mining, and the urgent necessity to protect the soil and the water courses from destruction and pollution. However, counsel for the landowners, and for those amicus curiae who side with them in arguing that the broad form deed does not permit strip or auger mining, frankly concede that a decision of this court upholding their contention as to the construction of the deed will not stop strip or auger mining. They admit that in Pennsylvania and West Virginia, where the courts have held that the broad form deed does not authorize strip or auger mining, that type of mining is even more prevalent than in eastern Kentucky. And of course it is common knowledge that strip mining has been done on a large scale in western Kentucky where the broad form deed was not commonly used.”

Subsection 8 delegates to countless private individuals who own interests in surface estates from which the mineral has been severed the right to undo whatever environmental conservation purpose the legislation may have by granting their consent, for a consideration, to surface mining on their land. It is beyond cavil that the primary purpose and effect of subsection 8 is to change the relative legal rights and economic bargaining positions of many private parties under their contracts rather than achieve any public purpose. It is, therefore, axiomatic that subsection 8 is unconstitutional. Tilford v. Belknap, 126 Ky. 244, 103 S.W. 289 (1907); McCown v. Gose, 244 Ky. 402, 51 S.W.2d 251 (1932).

For an excellent resume and analysis of the legal principles involved here which reaches the same conclusion see, Caudill, Kentucky’s Experience with the Broad Form Deed, 63 Ky.L.J. 107 (1974-1975).

The judgment is affirmed.

All concur.