author: JONES, Justice.

text:
    FISCAL COURT OF JEFFERSON COUNTY, Kentucky, Appellant, v. CITY OF LOUISVILLE, Kentucky, et al., Appellees. CITY OF WINDY HILLS, Kentucky, Individually, etc., et al., Cross-Appellants, v. FISCAL COURT OF JEFFERSON COUNTY, Kentucky, et al., Cross-Appellees. Bill BLANFORD, Cross-Appellant, v. FISCAL COURT OF JEFFERSON COUNTY, Kentucky, et al., Cross-Appellees. CITY OF LOUISVILLE, Kentucky, Cross-Appellant, v. FISCAL COURT OF JEFFERSON COUNTY, Kentucky, et al., Cross-Appellees. CITY OF SHIVELY, Kentucky, Cross-Appellant, v. FISCAL COURT OF JEFFERSON COUNTY, Kentucky, et al., Cross-Appellees.
    Supreme Court of Kentucky.
    Sept. 16, 1977.
    As Modified on Denial of Rehearing Dec. 9, 1977.

      J. Bruce Miller, Jefferson County Atty., Eugene L. Mosley, Asst. County Atty., Stuart L. Adams, Jr., Bert T. Combs and Charles R. Simons, Tarrant, Combs & Bul-litt, Louisville, for appellant and cross-ap-pellees.
    Foster L. Haunz, Harry K. Herren, Jr., Claude L. Nutt, Richard G. Segal, L. Stanley Chauvin, Jr., J. W. Jones, Burt J. Deutsch, Director of Law, George S. Schuh-mann, William W. Lawrence, Mark Simpson, Louisville, for appellees and cross-appellants.
    Robert F. Stephens, Atty. Gen., Charles W. Runyan, Asst. Deputy Atty. Gen., Frankfort, Paul L. Madden, Hancock County Atty., Hawesville, Vic Hellard, Jr., Legislative Research Commission, Frankfort, George M. McClure, III, Boyle County Atty., Danville, Morton Holbrook, Sandidge, Holbrook & Craig, PSC, Owensboro, Henry D. Stratton, Pikeville, Mark E. Gormley, Woodford County Atty., Versailles, Homer W. Ramsey, Whitley City, Richard H. Lewis, Benton, amicus curiae.
   JONES, Justice.

This case turns upon the constitutionality of Senate Bill 165, (KRS 67.083) enacted by the General Assembly at its 1972 regular session. Although it is not designated as such, the act purports to grant home rule to the 120 counties in the Commonwealth. It is referred to in the briefs of the numerous litigants as the “Home Rule” act. Its provisions are as follows:

“(1) The fiscal court of any county is hereby authorized and empowered to exercise all rights, powers, franchises, and privileges including the power to levy all taxes not in conflict with the constitution and statutes of this state now or hereafter enacted, which the fiscal court shall deem requisite for the health, education, safety, welfare, and convenience of the inhabitants of the county and for the effective administration of the county government to the same extent as if the general assembly had expressly granted and delegated to the fiscal court all the authority that is within the power of the general assembly to grant to the fiscal court of said counties.
(2) The county judge is hereby authorized and empowered to exercise all of the executive powers pursuant to subsection (1) of this section.
(3) The powers granted to counties by this Act shall be in addition to all other powers granted to counties by other provisions of law. A permissive procedure authorized by this Act shall not be deemed exclusive or to prohibit the exercise of other existing laws and laws which may hereafter be enacted but shall be an alternate thereto.”

Pursuant to the authority granted by KRS 67.083, the fiscal court of Jefferson County enacted a series of ordinances intended to have county-wide application.

This action was brought by the Jefferson Fiscal Court seeking a declaration of its rights under KRS 67.083. Various classes of cities located in Jefferson County, and Bill Blanford, a resident of an unincorporated area of the county, representing the class of others so situated, were named as defendants. On January 8, 1974, all the parties to the action signed an agreed order holding this action in abeyance until “such time as the 1974 General Assembly has met and determined whether any changes are necessary.” Counsel for the parties had information that proposed changes in KRS 67.083 would be made by the legislature at its 1974 session. However, no changes were made. On June 6, 1974, all parties that actively participated in the action joined in a stipulation of the issues involved. The case was submitted for judgment upon the pleadings and the briefs filed by the parties.

The trial court, in a comprehensive opinion dealing with the issues, made detailed findings of fact and conclusions of law. In conformity with that opinion, he entered judgment. He found KRS 67.083 to be a lawful delegation of powers to the fiscal courts of this Commonwealth. However, he held that those powers could be exercised only in the unincorporated areas of any county.

The Fiscal Court of Jefferson County appealed the judgment. Cross-appeals were filed by the City of Louisville and by numerous cities of the fifth and sixth class located in Jefferson County. Bill Blanford, a resident of an unincorporated area of Jefferson County, likewise filed a cross-appeal. The appeal and cross-appeals were consolidated in this court to the extent of placing the records together and consolidating the briefing of appeals.

The Fiscal Court of Jefferson County contends the trial court erred by interpreting the statute to mean that fiscal courts cannot enforce county ordinances within the boundaries of municipalities located in those counties. The other cities, parties to this action, and Bill Blanford, contend KRS 67.083 is unconstitutional — an unlawful delegation of powers of the Kentucky Legislature.

In the interpretation of statutes, the function of this or any court is to construe the language so as to give effect to the intent of the legislature. There is no invariable rule for the discovery of that intention. The actual words used are important but often insufficient. The report of legislative committees may give some clue. Pri- or drafts of the statute may show where meaning was intentionally changed. Bills presented but not passed may have some bearing. Words spoken in debate may be looked at to determine the intent of the legislature. Here we have none of these.

However, we do have the official reports of the debates of delegates to the Constitutional Convention of 1890-1891. This court is convinced that the debates indicate that most of the delegates felt that the root of Kentucky governmental problems was the almost unlimited power of the General Assembly. One of the delegates said: “The principal if not the sole purpose of the constitution we are here to frame is to restrain its [the legislature’s] will and restrict its authority.”

The legislative branch of government was drastically affected by the work of the delegates. They prohibited special laws applicable to one city, one town or county. The delegates enumerated 28 subjects on which special legislation was forbidden. The last session of the General Assembly under the 1850 constitution enacted 1926 Acts. Only 117 of these affected more than one county.

The changing of county lines for the accommodation of certain individuals prompted one of the delegates to say: “The committee [legislative] is of the opinion that there should be some general principles which shall control the dismemberment of counties. That principle are (sic) that the county itself shall consent and the dismembered parts shall consent ... a majority in the county is as safe a body to determine that question as the legislature of a state.” (Emphasis added).

This court does not infer that the statute under consideration is special legislation. It is not. The court, however, is persuaded that the delegates to the Constitutional Convention, in such an important matter as “Home Rule” intended that counties have a voice on the question and the electorate a vote.

“Historically, counties, although containing municipalities, have existed primarily to perform state functions, such as law enforcement, public welfare, and the administration of justice, and to provide governmental services for rural areas; whereas municipalities have existed to supply the governmental needs of compact urban areas. Municipalities have been delegated vast authority to exercise the police power, i.e., to enact legislation relating to public health, safety, welfare and morals, and consequently, the range of municipal functions greatly exceeds that of county functions. Accordingly, counties are more carefully restricted constitutionally than cities in the rate at which they may impose property taxes.”

Although the Fiscal Court of Jefferson County concedes that a county should not be permitted to enforce its ordinances within a municipality under many circumstances, it nevertheless contends that there are some matters where the fiscal court can supersede the powers of a city. This position would create numerous problems. The overlapping of governmental boundaries in Jefferson County creates a maze of jurisdictions. The overly broad grant of authority to fiscal courts would magnify those problems. With.more that 80 incorporated cities in Jefferson "County, each having its officers, ordinances and regulations, the problems engendered by KRS 67.083 would be increasingly more complex. In baseball parlance, it would be difficult for the citizenry, as well as officers of the municipalities to ascertain whose turn it was at bat. No one could ever tell who was “on first.” The problems created would be sufficient for the citizens of municipalities, as well as those of unincorporated areas to “ ‘Cry Havoc’ and let slip the dogs of war.”

This court approaches the decision of the General Assembly in enacting KRS 67.-083 “with a sense of its grave responsibility to render judgment in accordance with the principles established for the goverance of all three branches of government.” Let there be no misunderstanding as to the function of this court in such a case. “It is sometimes said that the court assumes a power to overrule or control the action of the people’s representatives.” This is not so. The constitution of this state is supreme. It is ordained and established by the people. Each member of this court took a solemn oath: “To support the constitution . of this Commonwealth. . . . ” All legislation must conform to the principles established by the constitution. When an act of the legislature is appropriately challenged in the courts as not conforming to the constitutional mandate, this court has only one duty — “to lay the article of the constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former.” All this court can do is to announce its considered judgment on the question. “This court neither approves nor condemns any legislative policy.” Its function is to “ascertain and declare whether the legislation is in accordance with or in contravention of the provisions of the constitution.”

Using this formula, the court directs its attention to the constitutional article invoked, § 29 of the Kentucky Constitution which provides:

“The legislative power shall be vested in a House of Representatives and a Senate, which, together, shall be styled the ‘General Assembly of the Commonwealth of Kentucky.’ ” '

To paraphrase KRS 67.083, set out in detail at the beginning of this opinion, the General Assembly granted fiscal courts “carte blanche” authority to administer county government to the same extent as if the General Assembly had expressly granted and delegated to the fiscal court all the authority that is within the power of the General Assembly to grant to the fiscal courts of said counties. In essence, this court views such overly broad delegation of powers of the General Assembly to fiscal courts as a “quit claim deed” to all its powers.

Tradition establishes that county government in Kentucky is based on the premise that all power exercised by the fiscal court must be expressly delegated to it by statute. County Government in Kentucky, L.R.C. Info. Bull. # 115 (1976) at p. 1. The 1964-65 Constitution Assembly was well aware of our history and tradition when it proposed for adoption a new Local Government Article. In the comment to that Article it was stated:

“The Revision attempts to reverse the basic relationship of state government with its subdivisions. Under the present Constitution, and as firmly reiterated by the court, counties and cities have only those powers expressly delegated by state legislation. Under the Revision, counties and cities would have all powers not denied to them by the state Constitution or by state legislation.” A Comparison of the Present and the Proposed Kentucky Constitutions, L.R.C. Info. Bull. # 52 (1966) at p. 61.

The metallic thread which history and tradition weave through the warp and woof of our Constitution is that while the General Assembly may grant governmental powers to counties it must do so with the precision of a rifle shot and not with the casualness of a shotgun blast. The thoughtful, purposeful and deliberate delegation of a known power is required of the General Assembly. It is here that KRS 67.083 fatally differs from the myriad of effective specific grants of power which appear in other statutes.

Sec. 181 of our Constitution provides that the General Assembly may delegate to counties the power to impose and collect license, franchise and occupational taxes. At the time the General Assembly passed this statute it had to know that by the terms of Sec. 181 these powers effectively passed to the counties. To that extent and no further, its action was thoughtful, purposeful and deliberate. As to those powers not so enumerated, the grant is legislation in a vacuum and a nullity.

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

All concur.

      . Constitution of the Comm, of Ky. L.R.C. Info. Bull. # 59 (1971) at vii.

      . See Id. at x.

      . Convention of the Constitution of Kentucky, Official Report, pp. 393-396.

      . Dr. Kenneth Vanlandingham, The Constitution and Local Government, L.R.C. Info. Bull. # 36 (1964) at p. 9.

      . William Shakespeare, Julius Caesar, Act III, Sc. I.

        . United States v. Butler, 297 U.S. 1, 62, 63, 56 S.Ct. 312, 318, 80 L.Ed. 477 (1936).

      . For example see KRS 67.080, 70.540, 70.570, 97.791, 100.117, 100.201 and others too numerous to mention.


source: Caselaw Access Project

license: Public Domain

text:
    Elbert Phillip LONG, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Dec. 9, 1977.

      Jack Emory Farley, Public Defender, Erwin W. Lewis, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Raymond M. Edelman, Asst. Atty. Gen., Frankfort, for appellee.
   JONES, Justice.

On a jury trial, Elbert P. Long was found guilty of murder and attempted rape. In conformity with the jury’s verdict, the trial court sentenced Elbert to life imprisonment on the murder conviction and five years’ imprisonment on the conviction of attempted rape. The trial court ordered Elbert to serve the sentences consecutively. From that judgment, Elbert prosecutes this appeal.

There are other questions, but the principal issue presented for decision is whether Elbert made known to the trial court the specific grounds for his objection to the instructions during the trial.

In order that the issue be resolved, this court briefly summarizes the evidence upon which the jury made its determination.

On November 16, 1976, at approximately 9:40 A.M., Elbert went to the Owensboro-Daviess County Animal Shelter to “look at some dogs.” Mrs. Connie White was in charge. Shortly after Elbert arrived at the shelter he led or pushed Connie at gun point into the bathroom with his left hand over her mouth and holding in his right hand a gun pointed against her ear. Elbert told Connie, “Just do as I say and everything will be alright.” He then ordered Connie to take her clothes off. She took her jacket and jumpsuit off and “undid” her bra. At that point a truck arrived. Elbert ordered Connie to put her clothes on. He then went to the office and Connie followed him. The truck driver was William C. Damron, Jr., Connie’s father, who was dog warden of Daviess County. Connie’s demeanor and her conduct alerted Damron that something was wrong. He said to Connie, “What’s the matter with you?” Subsequently, Connie took her father outside and told him of Elbert’s attempted rape. Damron went to his truck and procured a .22 caliber pistol. He returned to the office. A struggle between Damron and Elbert took place in the doorway. Elbert shot Damron with a .38 caliber pistol, seized Damron’s pistol and fled the scene. Shortly thereafter Damron died as a result of the gunshot wound.

Other testimony offered by the Commonwealth was that of the officers who made the investigation. Also, there was the testimony of two witnesses who had a brief glimpse of the struggle, and heard the shot.

At the close of the Commonwealth’s case, Elbert’s counsel moved for a directed verdict. The trial court overruled the motion and Elbert testified in his own behalf.

As the custom is in most rape cases, the victim seduces the defendant whose intentions are always as pure as the “driven snow.” Thus, it was with Elbert. He stopped by the animal shelter to look at some dogs. He testified that Connie showed him some dogs and later propositioned him in this manner: . . and she came back there and she had kind of a smile and she said, ‘You want more than to look at dogs, don’t you?’ I said ‘No’ and I left.” Elbert testified that he saw Damron get a pistol from the truck, come back to the office and threaten to kill him. Elbert testified that when Damron “cocked” his gun he shot Damron, took his gun and fled.

The court now directs its attention to Elbert’s argument that the trial court erred by placing improper qualifications upon his privilege of self-protection in its instruction to the jury. The record reveals that at the conclusion of all the evidence the trial court stated, “I have the instructions about ready . but I do want a chance to go over with the attorneys some things . . . .”

While court and counsel were in chambers and out of the hearing of the jury Elbert’s counsel stated, “I would like to tender the self-defense instruction.” In response the court said, “Let the record show that no one has any objections to the instructions given except insofar as on behalf of the defendant (Elbert) as the court refuses to give the defendant’s Instruction I.” Elbert's tendered instruction is as follows:

“If at the time the defendant shot William C. Damron as mentioned in Instruction I he believed that William C. Dam-ron was then and there about to use physical force upon him, he was privileged to use such physical force against William C. Damron as he believed to be necessary in order to protect himself from it.
‘Physical force’ means force used upon or directed toward the body of another person.”

Elbert concedes that his tendered instruction was not proper in that it instructed only as to the privilege to use physical force. It appears to this court that Elbert’s tendered instruction on self-protection is copied verbatim from Palmore, Kentucky Instructions to Juries, Sec. 10.01. That instruction deals with the use of non-deadly force. The defense of self-protection is defined in KRS 503.050, which distinguishes deadly force and non-deadly force. Under the facts of this case, where both Elbert and Damron were armed with pistols and engaged in an apparent “shoot-out,” then the self-protection instruction given by the trial court was in compliance with the definition of self-protection involving a deadly force as set out in KRS 503.050. Elbert’s tendered instruction did not impose any qualification on the justification for self-protection. The instruction on self-protection given by the trial court included the qualification. Thus, Elbert received an unexpected bounty under the instructions given by the trial court.

This court is of the opinion that Elbert’s objection to the trial court’s qualified instruction on self-protection did not comply with the provisions of RCr 9.54(2), which provides:

“No party may assign as error the giving or failure to give an instruction unless he fairly and adequately presented his position by an offered instruction or by a motion, or unless he makes objection before the court instructs the jury, stating specifically the matter to which he objects and the ground or grounds of his objection.” (Emphasis added).

It is obvious that under the facts presented in the trial of this case Elbert’s tendered instruction was improper. It certainly was not the law of the case. It touched neither top, side nor bottom the facts presented for the jury’s determination. Had the trial court given Elbert’s tendered instruction, it would have been an error of some magnitude.

This court expects strict compliance with the rules it promulgates. In addressing the matter of strict compliance as relates to the requirements of the provisions of RCr 9.54(2), this court noted:

“. . . it is now the duty of the accused to assure himself that the jury is properly instructed at the time of submission. If the instructions do not meet with his approval, then he must timely offer other instructions or make known to the trial court his objection to those given, together with the ground support ing his objection.” (Emphasis added). Hopper v. Commonwealth, Ky., 516 S.W.2d 855 (1974).

This court is of the opinion that when Elbert tendered an instruction containing no qualification on his theory of self-protection, and did nothing further to clarify his objections to the self-protection instruction offered by the trial court, his tendered instruction did not “fairly and adequately” present his position to the trial court. Because the trial court had no opportunity to rule upon the matter, there was no error.

Elbert next argues that the prosecution failed to establish the element of specific intent to rape beyond a reasonable doubt. At the close of all the evidence Elbert failed to renew his motion for a directed verdict of acquittal. This court has recently held:

“A motion for directed verdict made at the close of the plaintiff’s (here the Commonwealth’s) case is not sufficient to preserve error unless renewed at the close of all the evidence, because once the defense has come forward with its proof, the propriety of a directed verdict can only be tested in terms of all the evidence.
If there has been no motion for a directed verdict at the close of all the evidence, it cannot be said that the trial judge has ever been given an opportunity to pass on the sufficiency of the evidence as it stood when finally submitted to the jury. In effect, therefore, a motion for directed verdict made only at the close of one party’s evidence loses any significance, once it is denied and the other party, by producing further evidence, chooses not to stand on it”. Kimbrough v. Commonwealth, Ky., 550 S.W.2d 525 (1977).

In any event, this court is of the opinion that Elbert’s action in forcing Connie into the bathroom at gun point, cornering her, kissing her, and ordering her to remove her clothes, would support a jury’s belief beyond a reasonable doubt that he intended to rape Connie.

There is absolutely no merit to Elbert’s contention that when he was cross-examined the Commonwealth’s Attorney elicited evidence of another crime. The record is clear that when the Commonwealth’s Attorney asked Elbert a question concerning the gun he had in possession: “Why didn’t you buy it?”, Elbert’s counsel objected. The objection was overruled. Elbert answered, “I’m not allowed to carry a gun.” At this point the trial court asked Elbert’s counsel and the Commonwealth’s Attorney to approach the bench. After the conference the Commonwealth’s Attorney never pursued the inquiry. During the entire trial of this case there was not a shred of evidence that tended to show other specific criminal acts of Elbert.

The jury heard all the evidence, the instructions of the court, and observed the demeanor of the witnesses. Based upon the evidence and the law, the jury rendered its verdict. Under these circumstances this court will not substitute its judgment for that of the jury.

The judgment is affirmed.

All concur.


author: PARK, Judge.

text:
    James F. THOMPSON, Appellant, v. Gail HUECKER, Individually and as Commissioner of Department of Economic Securities, Cattie Lou Miller, Individually and as Commissioner of the Department of Personnel, Enos Swain, D. J. Carty, Ralph Homan, James Way, and Phillip Taliaferro, as the Personnel Board, all of the Commonwealth of Kentucky, Appellees.
    Court of Appeals of Kentucky.
    Dec. 9, 1977.

      Arthur L. Brooks, Brooks, Sullivan & Saunders, Lexington, for appellant.
    Edward F. Prichard, Jr., Frankfort, Martin Glazer, Asst. Atty. Gen., Frankfort, for appellees.
    Before MARTIN, C. J., and PARK and WHITE, JJ.
   PARK, Judge.

This proceeding arises out of the termination of the employment of the plaintiff-appellant, James F. Thompson, as Chief Personnel Officer of the Department of Economic Security. Thompson’s appeal to the state personnel board was denied. Thompson subsequently instituted an action in the Franklin Circuit Court challenging the order of the state personnel board and seeking, monetary damages from the defendants-appellees, Gail Huecker and Cattie Lou Miller. At the time, Huecker was Commissioner of the Department of Economic Security, and Miller was Commissioner of the Department of Personnel. Thompson appeals from the judgment of the Franklin Circuit Court dismissing his complaint.

Two separate questions are presented by the appeal: (1) whether the circuit court erred in affirming the order of the state personnel board, and (2) whether the circuit court erred in sustaining a summary judgment dismissing Thompson’s claim for damages against the two commissioners.

FACTUAL BACKGROUND

On July 28, 1972, Thompson was the Chief Personnel Officer of the Department of Economic Security. Having been employed by the state for nearly eleven years, Thompson had acquired “status” and was entitled to all of the protections of the “merit system” provided by KRS 18.110 to KRS 18.840.

On July 28, 1972, Governor Ford signed an executive order approving the reorganization of the Department of Economic Security. On the same day, Huecker as Commissioner of the Department of Economic Security submitted a “layoff plan” to Miller as Commissioner of the Department of Personnel. The “layoff plan” reflected that the position of Chief Personnel Officer was being abolished and that Thompson would be “terminated by layoff.” Miller approved the layoff plan immediately. On July 28, 1972, Huecker also wrote Thompson a letter informing him of his “termination” from the position of Chief Personnel Officer effective at the close of business July 28, 1972. The letter stated:

The reason for this layoff is that the Department of Economic Security has been reorganized and the functions formerly performed by the position of Chief Personnel Officer have been absorbed, along with other duties, into the position of the Administrator of the Office of Staff Services. This material change in organization renders the position of Chief Personnel Officer in the Department of Economic Security an excess position which must accordingly be abolished.

The letter also informed Thompson of his right to appeal his termination to the personnel board.

Thompson did not receive the letter of termination until July 31, 1972. Thompson immediately sent Huecker a memorandum characterizing the effort to terminate his services as “a blatant political act.” Thompson also informed Huecker of his decision not to vacate the office of Chief Personnel Officer.

On August 3,1962, Thompson appealed to the personnel board by a letter to Commissioner Miller. In that letter, Thompson appealed the action terminating his services on the ground that it was “a blatant political maneuver to remove me from the employment of the department.”

On November 22 and December 8 of 1972, hearings were conducted by the personnel board. On December 18, 1972, following oral arguments by the attorneys, the personnel board rendered its written opinion and order sustaining the layoff of Thompson and denying his appeal. The personnel board also recommended that “a real effort” be made by Commissioner Huecker and others to find proper employment for Thompson.

On December 27, 1972, Miller placed Thompson on the reemployment list maintained by the Department of Personnel in accordance with the provisions of KRS 18.-110(15) and KRS 18.210 and the regulations thereunder. On December 27, 1972, Thompson made a formal written request to the Department of Personnel seeking reemployment by the state. On January 8, 1978, Thompson filed suit in the Franklin Circuit Court seeking to overturn the order of the personnel board and to recover damages from Huecker and Miller. Thompson was subsequently employed by the Kentucky Commission on Aging on March 13, 1973. His starting salary was less than he had been receiving as Chief Personnel Officer for the Department of Economic Security-

ORDER OF THE PERSONNEL BOARD

Findings of Fact

Under KRS 18.210(17), merit-system employees may be discharged “only for cause.” KRS 18.270 provides that any employee who was dismissed “for any political, religious, or ethnic reason” shall be reinstated with back pay. These two statutes were harmonized by the court in King v. Sermonis, Ky., 481 S.W.2d 652 (1972), the court stating:

Under this construction of the statute, the provisions with reference to a finding of political, religious or ethnic reasons for a discharge, and to “all other cases,” apply only where the board first had found the existence of a cause that would be a legal ground for discharge; the board may find that the discharge actually was for political, religious or ethnic reasons rather than for the technical cause found to exist; or the board may find that there are mitigating circumstances such as to warrant a recommendation for reinstatement even though legal cause for discharge exists.

Id. 481 S.W.2d at 655. Commissioner Huecker had the burden before the personnel board of proving that the reorganization plan resulting in Thompson’s dismissal was valid. Thompson had the burden of establishing that his discharge was politically motivated. Goss v. Personnel Board, Ky., 456 S.W.2d 824, 827 (1970). The findings of fact of the personnel board will be examined in light of principles laid down in the King and Goss cases.

In its order of December 18, 1972, the personnel board made the following findings of fact:

1. Appellant, James F. Thompson, was personally and politically unacceptable to the present Administration.
2. Prior to this reorganization a great many of Thompson’s duties were removed from him and reallocated.
3. The reorganization itself, however, was effected pursuant to the recommendations of a professional consulting firm, and the testimony of Mr. Patterson, who admitted that he “quarterbacked” the plan, established that he felt that the Department could function more efficiently if the position of Director of Personnel were abolished and the function absorbed into the Office of Staff Services.
4. Appellant was laid off as result of the recommendations emanating from this study and there was insufficient proof upon which to base a finding that the reorganization plan was designed or used specifically for getting rid of appellant.
5. There was nevertheless, little effort made to relocate Mr. Thompson in State government.

Thompson asserts that these findings of fact are erroneous because his layoff, in fact, was politically motivated.

There was substantial evidence to support the board’s findings of fact, and they will not be disturbed by this court on appeal. Wagner v. Dept of Education, Ky., 549 S.W.2d 300 (1977); Kentucky State Racing Commission v. Fuller, Ky., 481 S.W.2d 298 (1972). The reorganization plan was prepared by Jerry Lee Paterson, a management and computer systems consultant from Pennsylvania. Patterson had previously done similar consulting work for the State of Oklahoma and the State of Mississippi. Under the reorganization plan, the primary responsibilities of the Chief Personnel Officer were absorbed into the Office of Staff Services. However, the Deputy Commissioner for the Office of Staff Services would have other significant responsibilities not previously exercised by Thompson as Chief Personnel Officer. The personnel board was not compelled to find that the reorganization plan was implemented for the purpose of getting rid of Thompson.

We hold that there was substantial evidence to support the findings of fact of the personnel board.

Conclusions of Law

Based upon its findings of fact, the personnel board reached the following conclusions of law:

The layoff of appellant was in compliance with Chapter 12 of KRS and this Board’s rules pertaining to such actions providing for the abolishing of positions in a formal reorganization program, although it does illustrate somewhat of a “loophole” for the removal of personna non grata. There also was a failure to prove a political motivation in reorganizing for the particular purpose of terminating Thompson, and the layoff was, therefore, lawful.

Thompson asserts that the board’s conclusions of law are erroneous in light of the board’s finding that Thompson was personally and politically unacceptable to the current administration. KRS 18.270 contains a flat prohibition against dismissal of a merit-system employee for any political reason. Firing a merit-system employee for political reasons is prohibited even though a technical cause for dismissal might also exist. King v. Sermonis, supra. We also note that the dismissal of a government employee in a non-policy making position solely for partisan political reasons is unconstitutional under the 1st and 14th Amendments to the United States Constitution. Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). The fact that Thompson was “politically unacceptable” does not place him in a better position with respect to the reorganization plan than an employee who was politically neutral or acceptable. Thompson had the burden of proving that politics was a motivating factor in his dismissal under the reorganization plan. Even if Thompson sustained that burden of proof, Huecker and Miller were entitled to prove that the same decision respecting Thompson’s layoff under the reorganization plan would have been reached in the absence of his political unacceptability. Mt. Healthy City School District v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 575-76, 50 L.Ed.2d 471 (1977).

The board’s conclusions of law are supported by its findings of fact. There was substantial evidence to support the board’s conclusion that Thompson’s layoff was not politically motivated.

Failure to Place Thompson in Another Position

Thompson contends that his layoff was unlawful because it was not carried out in compliance with the personnel rules then governing such a layoff. When a merit-system employee’s position was abolished, Rule 13.2(c) of the personnel rules promulgated by the Department of Personnel (now 101 KAR 1:120, § 2) provided:

The appointing authority and the Department shall attempt to place the employee in another position for which the employee is qualified.

Because the personnel board found that little effort had been made to place Thompson in other employment, he argues that his layoff was invalid.

Thompson’s argument ignores other applicable regulations. Rule 9.6 of the personnel rules (now 101 KAR 1:080, § 6) provided in part:

Any employee with status, who has been placed in a lay-off category, shall have first priority for consideration in filling any vacancy in a covered position for which he is qualified in any department in any geographic area. A status employee in the lay-off category must indicate in writing to the Department of Personnel that he desires re-employment.

Rule 8.7 of the personnel rules (now 101 KAR 1:070, § 7) provided in part:

Any employee with status who has been laid off in accordance with Rule 13 shall be entitled to have his name on a re-employment list for the class of position from which laid off, provided he so requests in writing.

Construing all three rules together, we conclude that a reorganization plan which abolished merit positions could be implemented prior to finding other positions for the laid-off employees. Any other interpretation would stifle bona fide efforts to modernize state government. The interest of the laid-off employee can be protected by placing his name on the re-employment list, if he so requests in writing. If he is on the re-employment list, no vacancy can be filled without first giving him full consideration for employment. If, for political reasons, the employee is not offered another position for which he is qualified, the employee may seek redress before the personnel board. KRS 18.310(1); KRS 18.270; 101 KAR 1:130, § 1.

Thompson did not make a written request that his name be placed upon the re-employment list until December 27,1972. No request for employment in another position is contained in his memorandum of July 31, 1972 to Commissioner Huecker, or his appeal letter of August 3, 1972, to Commissioner Miller. Thompson took the position that he would not vacate his office and that the effort to terminate his position as Chief Personnel Officer was illegal. In the absence of a request for re-employment, Huecker and Miller were under no duty to attempt to find another position for Thompson.

Ruling

The circuit court did not err in affirming the order of the personnel board.

CLAIM FOR DAMAGES AGAINST COMMISSIONERS HUECKER AND MILLER

Miller’s counsel asserts that she violated no mandatory ministerial duty respecting Thompson’s re-employment. Huecker’s counsel contends that the doctrine of official immunity protects her from personal liability for the alleged damages suffered by Thompson. The defense of official immunity is based upon a line of federal eases.

In Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 (1896), the Supreme Court held:

We are of opinion that the same general considerations of public policy and convenience which demand for judges of courts of superior jurisdiction immunity from civil suits for damages arising from acts done -by them in the course of the performance of their judicial functions apply, to a large extent, to official communications made by heads of executive departments when engaged in the discharge of duties imposed upon them by law. The interests of the people require that due protection be accorded to them in respect of their official acts. As in the case of a judicial officer, we recognize a distinction between action taken by the head of a department in reference to matters which are manifestly or palpably beyond his authority, and action having more or less connection with the general matters committed by law to his control or supervision. ... In exercising the functions of his office, the head of an executive department, keeping within the limits of his authority, should not be under an apprehension that the motives that control his official conduct may at any time become the subject of inquiry in a civil suit for damages. It would seriously cripple the proper and effective administration of public affairs as intrusted to the executive branch of the government, if he were subjected to any such restraint. He may have legal authority to act, but he may have such large discretion in the premises that it will not always be his absolute duty to exercise the authority with which he is invested. But if he acts, having authority, his conduct cannot be made the foundation of a suit against him personally for damages, even if the circumstances show that he is not disagreeably impressed by the fact that his action injuriously affects the claims of particular individuals.

161 U.S. at 498-99, 16 S.Ct. at 637. In considering the application of the Spalding case,. it should be noted that Huecker and Miller were both heads of departments, and, as such, they were both members of the Governor’s cabinet. KRS 11.060 and KRS 12.020(II)(13) and (17).

In Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), the Supreme Court extended the absolute immunity or privilege announced in the Spalding case to lower echelon federal officers. The Supreme Court stated:

The complexities and magnitude of governmental activity have become so great that there must of necessity be a delegation and redelegation of authority as to many functions, and we cannot say that these functions become less important simply because they are exercised by officers of lower rank in the executive hierarchy.
To be sure, the occasions upon which the acts of the head of an executive department will be protected by the privilege are doubtless far broader than in the case of an officer with less sweeping functions. But that is because the higher the post, the broader the range of responsibilities and duties, and the wider the scope of discretion, it entails.

360 U.S. at 573, 79 S.Ct. at 1340. Despite the apparent breadth of official immunity provided by the Spalding and Barr cases, the Supreme Court has placed a definite limitation upon the doctrine of absolute official immunity.

In Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 26 L.Ed.2d 912 (1973), the Supreme Court held that the Public Printer and the Superintendent of Documents were not entitled to absolute official immunity under Barr v. Matteo, supra, for publishing and distributing a congressional report on the ■ District of Columbia’s school system. It is difficult to determine the exact basis for the Supreme Court’s decision. At one point, the Supreme Court indicates that the publication of the report did not involve the exercise of discretion. 412 U.S. at 323, 93 S.Ct. 2018. At another point, the Supreme Court indicated that the Public Printer and the Superintendent of Documents were entitled to absolute official immunity only if the reports served legitimate legislative needs of Congress. 412 U.S. at 324, 93 S.Ct. 2018. Rather than invoke a “fixed, invariable rule” of absolute official immunity, the Court stated that a determination must be made whether “the contributions of immunity to effective government in particular contexts outweigh the perhaps recurring harm to individual citizens.” 412 U.S. at 320, 93 S.Ct. at 2028.

In addition, a governor and other high state officers have no absolute official immunity from personal liability in an action under the Civil Rights Act of 1871 (42 U.S.C. § 1983). In such an action, the state officers have only a qualified immunity. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

In determining whether Commissioners Huecker and Miller possessed absolute official immunity, we are presented with a question of state law. Although the decisions of the Supreme Court of the United States in this area are entitled to great respect, they are not binding on questions of state law. Coleman v. Reamer’s Ex’r, 237 Ky. 603, 36 S.W.2d 22, 24 (1931). Barr v. Matteo, supra, has never been cited as authority by any Kentucky appellate court. The decision in Spalding v. Vilas, supra, has been cited with approval, but only in actions for defamation. Ranson v. West, 125 Ky. 457, 101 S.W. 885 (1907); Tanner v. Stevenson, 138 Ky. 578, 128 S.W. 878, 30 L.R.A.,N.S., 200 (1910); McAlister & Co. v. Jenkins, 214 Ky. 802, 284 S.W. 88 (1926); Begley v. Louisville Times Co., 272 Ky. 805, 115 S.W.2d 345 (1938).

There are a number of decisions in Kentucky holding that governmental officers may be personally liable for negligence or bad faith in performing ministerial duties. Cottongim v. Stewart, 283 Ky. 615, 142 S.W.2d 171 (1940); Whitt v. Reed, Ky., 239 S.W.2d 489, 32 A.L.R.2d 1160 (1951); Upchurch v. Clinton Co., 330 S.W.2d 428 (Ky.1959). Unfortunately, it is almost impossible to draw any clear and definite line between ministerial acts and discretionary acts. W. Prosser, The Law of Torts, at 990 (4th ed., 1971); compare the majority opinion with the dissenting opinion in Shearer v. Hall, Ky., 399 S.W.2d 701 (1965). If a governmental officer is not entitled to an absolute immunity from personal liability for his acts, he has been afforded a qualified immunity. In Spillman v. Beauchamp, Ky., 362 S.W.2d 33, 2 A.L.R.3d 814 (1962), the court held that an officer acting in good faith within the scope of his authority was not personally liable for damages sustained by a member of the public unless the officer acted negligently. See also Moores v. Fayette Co., Ky., 418 S.W.2d 412 (1967).

In no Kentucky appellate decision has there been an explicit recognition of the doctrine of absolute official immunity. However, in those cases holding officers liable for ministerial acts, there was implicit recognition that the officer would not be liable for the consequences of discretionary acts. In J. F. Schneider & Son v. Watt, Ky., 252 S.W.2d 898 (1952), the members of the Kentucky National Park Commission were held not liable for causing the United States to initiate an eminent domain proceeding against the plaintiff’s property. The eminent domain proceeding was subsequently abandoned because the commission did not have sufficient funds to pay for the property. In holding that the commission members were not liable for damages to the landowner, the court stated:

Having found that the appellees acted within the scope of their authority, we conclude that they also come within the general rule of law which absolves administrative agents of government of civil liability for their official acts.

Id. 252 S.W.2d at 901. No Kentucky case holds that a governmental officer can never be entitled to absolute immunity for acts performed within the scope of his official authority.

There can be no single test for determining whether a public officer is immune from tort liability because he is engaged in the exercise of a discretionary function. Consequently, we adopt the approach taken by the Restatement (Second) of Torts § 895D(3) (Tentative Draft No. 19, 1973). Under that section, the court must not only consider whether the particular activity should be characterized as a discretionary function, but the court must also determine the degree of immunity or privilege afforded the officer. If the officer is entitled to absolute immunity, he is not liable so long as he acts within the general scope of his authority. If the officer is entitled to only a limited or qualified immunity, the officer is not liable if he acts in good faith. Under other circumstances, the public officer is privileged so long as his actions are reasonable under the circumstances. See Comment e to § 895D.

Placing Thompson’s name on the re-employment list was a ministerial act, not involving a discretionary function. If Commissioner Miller had refused to place Thompson’s name on the re-employment list following a written request by Thompson, there would have been no immunity from tort liability. See Comment h to § 895D. However, Commissioner Miller placed Thompson’s name on the re-employment list prior to the time he made a written request. Consequently, there could be no liability to Thompson for breach of this ministerial duty.

The only other basis for liability would be the failure of Huecker to employ Thompson in another position within the Department of Economic Security under the reorganization plan. After considering the factors set forth in Comment f to § 895D, we conclude that re-employment of Thompson required the exercise of a discretionary function entitling Huecker to absolute immunity. Commissioner Huecker was operating at the highest level' of state government, exercising important policy-making functions. Thompson was an upper echelon officer who was required to exercise a discretionary function in carrying out policy. For a court to review Huecker’s decision not to appoint Thompson as Deputy Commissioner for the Office of Staff Services would require the court to pass judgment on conduct at the highest level of a coordinate branch of government. Another remedy was available to Thompson. He could have requested in writing that his name be placed upon the re-employment list upon receipt of the letter from Huecker terminating his employment as Chief Personnel Officer. Then, he could have appealed to the personnel board if he had been refused employment in an available position for which he was qualified. To impose tort liability would discourage public officers from undertaking plans to improve the efficiency of government. Also the decisions of the personnel board might be affected if the board believed that an adverse decision might subject the supervisory officer to personal tort liability. Cf. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 993, 47 L.Ed.2d 128 (1976).

The conflicting policies involved in granting absolute immunity to public officers were perhaps best expressed by Judge Learned Hand in Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir., 1949):

It does go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon other, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.

Judge Hand’s reasoning is applicable to the facts in this case.

Ruling

The circuit court did not err in dismissing Thompson’s complaint against Commissioners Huecker and Miller.

HOLDING

The judgment of the circuit is affirmed.

All concur.

      . The full text of the memorandum from Thompson to Huecker dated July 31, 1972, is as follows:
      This is to acknowledge receipt of your letter of July 28, received by me at 10:10 A.M., July 31, 1972, advising me of my dismissal (referred to as a layoff). I have reviewed your letter carefully and because of recent events, it is my decision not to vacate this office. The move to reorganize and accordingly terminate my services is a blatant political act and one to which I will not be a party by acceding to your demand.
      The customary two weeks notice, which any considerate, well intentioned employer would grant, is lacking in this instance. It places me in a distinct disadvantage in being unable to seek employment during the fourteen day period.
      I have in my eleven years of employment been a diligent, conscientious and hard working individual. I have devoted the better portion of my adult life to the Commonwealth of Kentucky and specifically to the Department of Economic Security. Your termination notice would deprive me of the maximum accrued sick leave and sixty-five hours of annual leave, for which I am permitted compensation. I can only assume, and I am sure correctly, that the sudden and swift swish of the ax has come about as a result of a law suit filed against you for violation of Chapter 18, Kentucky Revised Statutes. This action, which is part of a conspiracy to deprive me of gainful employment because of political opinion, contravenes Title 18, Section 601 of the U.S. Code.
      With proper respect to what you want, I decline to vacate this office.

      . The full text of the letter of appeal from Thompson to Miller dated August 3, 1972, is as follows:
      Ostensibly pursuant to provisions of Personnel Rule 13, I was advised by Ms. Gail Huecker, Dept, of Economic Security, of the termination of my services with the agency.
      This action occurred at 10:10 A.M., on July 31, 1972, and was retroactive to 4:30 P.M., July 28, 1972, shortly after I filed suit in Franklin Circuit Court, against her and members of the Democratic Executive Committee. As advised by Ms. Huecker, and consistent with provisions of Personnel Rule 14, I wish to appeal this prejudiced action to the State Personnel Board. The basis for my appeal is that the action taken by Ms. Huecker, is a blatant political maneuver to remove me from the employment of the department. Her actions contravenes [sic.] provisions of the Personnel Rule and Regulations and provisions of Chapter 18, Kentucky Revised Statutes.
      I have been scheduled to appear before the Personnel Board on Friday, August 11, to present evidence of political machination in the personnel management program in the department. I petition your consideration to schedule my appeal also at this time.
      In the absence of your favorable consideration I request my appeal to be scheduled before the entire board within thirty days. I recognize that hearing examiners are being used now, however, I believe the entire board should convene for this case because of the unusual circumstances and of the evidence to be presented.
      I further request you forward to me immediately appropriate forms to order the appearance of fifty witnesses, both within and without state government.

      . (3) A public officer acting within the general scope of his authority is not subject to tort liability for an administrative act or omission if
      (a)He is immune because engaged in the exercise of a discretionary function
      (b) He is privileged and does not exceed or abuse the privilege, or
      (c) He is not negligent because he acted as a reasonable prudent person in the exercise of his discretion.


author: GANT, Judge.

text:
    COMMONWEALTH of Kentucky ex rel. Ed W. HANCOCK, Attorney General of Kentucky, Appellant, v. William G. MARSHALL, Appellee.
    Court of Appeals of Kentucky.
    Dec. 9, 1977.

      William I. Markwell, Henderson, for appellant.
    Charles B. West, Henderson, for appellee.
    Before GANT, HOWERTON and WHITE, JJ.
   GANT, Judge.

The issue on appeal is whether the appel-lee, William G. Marshall, forfeited his elected office as a member on the Board of the Henderson City Independent School District because certain school employees or students made purchases of merchandise from a drugstore of which he was an officer, employee and majority stockholder.

The appellee was appointed to fulfill a vacancy on the Board of Education in May of 1968 and he was elected to the same office for a four-year term in November of that same year and was re-elected to another four-year term in 1972. During his tenure in office the appellee has been an officer, employee, and 58%-stockholder of a corporation which owns and operates the T & T Drugstore in Henderson.

When Marshall first assumed office as a school board member, he informed his drugstore employees not to make any sales of merchandise to any of the schools of the Henderson City Independent School District as long as he remained a member of the Board. In 1973 the appellee noticed an attempt by a school secretary to make a purchase of supplies for one of the elementary schools and he intervened to prevent the sale from occurring. Shortly thereafter the appellee again admonished the employees not to make any sales to any of the schools of the city school system.

Since Marshall took office in June of 1968, three of the five elementary schools, the middle school and the high school or class organizations therein, have purchased merchandise totalling $124.87 from the ap-pellee’s drugstore on at least fourteen separate occasions. The purchases were made in person or by telephone and all purchases were paid for by check on the schools’ internal accounts which were funded by student fees, picture sales, student activities’ fees, etc. Some of the merchandise purchased was delivered to the schools. These purchases have never been the subject of action or approval by the Board nor have the purchases been brought to the attention of the Board in any manner.

The accounting records of the T & T Drugstore are maintained by two employees and Marshall rarely reviews these records except when one of the bookkeepers calls his attention to a delinquent account or some unusual matter. The drugstore makes between 200 to 400 separate sales each day and sends out from 600 to 800 separate billing statements each month.

Marshall admits that the sales were made to the schools or to affiliated class organizations but denies that he personally made or had knowledge of any of the sales. The appellee is only one of three pharmacists who work at the drugstore and they alternate working assignments which result in each pharmacist being absent from the store while it is open for business. The area where the pharmacists work is remote from the main store area where the sales are made and they generally do not observe the customers and clerks transacting the business of the store.

The case came for trial and the jury was instructed to find for Marshall unless he (a) knowingly made one or more sales to any of the schools; or (b) took some affirmative action to cause one or more sales to any of the schools; or (c) knowingly permitted or encouraged any of the employees or officers to make one or more sales to any of the schools; or (d) acquiesced in the conduct of one or more employees in making one or more sales to any of the schools. The instruction further required that the purchases be made with “school funds” which were defined as any activity funds, internal accounts, or central funds, regardless of the source of such funds or the manner in which they were derived. The jury returned a verdict in favor of the defendant/appellee and this appeal followed.

This controversy centers around the interpretation of KRS 160.180 which provides in pertinent part:

(1) No person shall be eligible to membership on a board of education:
(e) Who, at the time of his election, is directly or indirectly interested in the sale to the board of books, stationery or any other property, materials, supplies, equipment or services for which school funds are expended; or
(2) If, after the election of any member of the board, he becomes interested in any contract with or claims against the board, of the kind mentioned in Paragraph (e) of subsection (1) of this section, . . his office shall without further action be vacant.

Basically, there are two questions presented in this appeal. They are:

(1) Is actual participation in and/or actual knowledge of sales of merchandise necessary in order to have a school board membership declared vacant pursuant to KRS 160.180?

(2) Is an action to declare a school board membership vacant pursuant to KRS 160.-180 triable by a jury as a matter of right?

The appellant devotes much of its brief to its contention that the president, employee, and majority stockholder of a company selling merchandise to the board comes within the purview of one “indirectly interested” as prohibited by KRS 160.180. The appellant further contends that a profit does not have to be made in order to constitute a violation of the statute and that it is immaterial whether the funds used to make the purchase were the result of an activity fund raised solely by the students. We agree. These principles were accepted by the highest court of this Commonwealth in Brooks v. Commonwealth, Ky., 286 S.W.2d 913 (1956); Douglas v. Pittman, 239 Ky. 548, 39 S.W.2d 979 (1931); Commonwealth v. Collins, Ky., 379 S.W.2d 436 (1964), respectively.

This Court has reviewed the cases cited by the appellant in support of its contention that actual participation or actual knowledge of the sale is not a necessary element of KRS 160.180. However, none of the cases come to grips with the legal question presented herein and we believe the factual circumstances involved in each differ substantially from the situation presently before us. In Douglas v. Pittman, supra, the board member was actually called upon to approve the payment for supplies purchased from the company of which he was president and one-third stockholder. The sole issue in Commonwealth v. Collins, supra, is whether activity funds are “school funds” as defined by the statute. The court does not discuss whether Collins had knowledge of the placing of the vending machines in the schools but the facts recited show that he was the sales manager of the company and-that the principals of the schools submitted a monthly report to the Board showing balances in the activity fund accounts and a detailed annual report reflecting income and expenditures from the activity fund was also required. The member of the board in Commonwealth v. Coatney, Ky., 396 S.W.2d 72 (1965) was placed in a position of having to approve a claim by his company against the Nicholas County Board of Education. The last case cited by the appellant, Brooks v. Commonwealth, supra, is likewise inapplicable since the board member himself sold commodities for the lunch room to the principal of the high school. Thus it is readily apparent that the question of the board member’s knowledge of or participation in the sale has never been an issue in any of the reported cases.

The Court of Appeals in Commonwealth ex rel. Vincent, Atty. Gen. v. Withers, 266 Ky. 29, 98 S.W.2d 24 (1936) defined the perimeters of self-interest in situations of this type as follows:

It is a salutary doctrine that he who is intrusted with the business of others cannot be allowed to make such business an object of profit to himself. This is based upon principles of reason, of morality, and of public policy. These are principles of the common law and of equity which have been supplemented and made more emphatic by the foregoing and other statutory enactments ... In their application and operation it is impossible to lay down any definite rules defining the nature of the interest of the officer, or indicating the line between that which is proper and that which is unlawful. However, the interest is not sufficient to disqualify the officer if the opportunity for self-benefit is a mere possibility or is so remote or collateral, such as being only a debtor, that it cannot be reasonably calculated to affect his judgment or conduct in the making of the contract or its performance. (Emphasis added.)

This principle leads us to the conclusion that a member without knowledge of a sale to the board or one not placed in the position of having to approve a contract or sale to the board does not violate the prohibitions or the spirit of the statute. As stated in Douglas v. Pittman, supra, the purpose of the statute is to prevent the members from being “ . influenced by selfish interests” and we do not believe that the imposition of the standards set forth herein lessen the effect of this safeguard.

The highest court of this Commonwealth has held that the separation still remains between jury actions and non-jury causes, and what was, before the adoption of the new Rules of Civil Procedure, an action at law is a “jury action” and what was a suit in equity is a “non-jury action.” Johnson v. Holbrook, Ky., 302 S.W.2d 608 (1957). In Richardson v. Commonwealth, 275 Ky. 486, 122 S.W.2d 156 (1938), the court stated that an injunction to restrain the alleged usurpers falls within the province of equity jurisdiction but that an action in the nature of quo warranto is one at law. The suit before us is generally an action under the statutory substitute for quo warranto and is not in the form of injunctive relief. Thus the issues requiring factual determination are triable at law as a “jury action.”

For the above stated reasons, the judgment of the lower court is affirmed.

All concur.


author: HOWERTON, Judge.

text:
    PENCE MORTGAGE COMPANY, Appellant, v. Kenneth G. STOKES and Shirley Stokes, his wife, and State Farm Fire and Casualty Company, Appellees.
    Court of Appeals of Kentucky.
    Dec. 9, 1977.

      John P. Kirkham, Hopkinsville, John S. Reed, Greenebaum, Doll, Matthews & Boone, Louisville, for appellant.
    J. D. Kemp, Turner & Dixon, Hopkins-ville, for appellee Stokes.
    J. Thomas Soyars, Trimble, Soyars, Breathitt & Foster, Hopkinsville, for appel-lee State Farm.
    Before HOWERTON, COOPER and REYNOLDS, JJ.
   HOWERTON, Judge.

This is an appeal from two Summary Judgments. The net result of one judgment was to award the appellees, Stokes, $4,948.00 against the appellant for a personal property loss caused by a fire in the Stokes’ home. The basis for the award was appellant’s failure to pay the insurance premium necessary to provide coverage. The second judgment released the appellee, State Farm Fire and Casualty Company, from liability on the ground that the insurance company had properly cancelled the previous insurance policy.

In January 1971, Kenneth and Shirley Stokes purchased a home in Hopkinsville, Kentucky. In so doing, they assumed an existing V.A. mortgage which was serviced by the appellant. The mortgaged property, together with household contents, was insured by the appellee, State Farm Fire and Casualty Company, and the policy was assigned to the new owners.

The mortgage provided that the mortgagors would promptly pay the principal and interest as evidenced by the promissory note:

2. Together with, and in addition to, the monthly payments of principal and interest payable under the terms of the note secured hereby, he will pay to the mortgagee, as trustee (under the terms of this trust as hereinafter stated) on the installment due-date of each month until said note is fully paid:
(a) a sum equal to . the taxes and special assessments next due . plus the premiums that will next become due and payable on policies of fire and other hazard insurance on the premises covered hereby (all as estimated by the mortgagee, and of which the mortgagor is notified), less all sums already paid therefor divided by the number of months to elapse before one month prior to the date when such . . . premium, taxes and assessments will become delinquent, such sums to be held by the mortgagee in trust to pay . . . premiums . . . before the same become delinquent.
(b) The aggregate of the amounts payable pursuant to sub-paragraph (a) and those payable on the note secured hereby shall be paid in a single payment each month, to be applied to the following items in the order stated:
(I) Ground rents, taxes, special assessments, fire and other hazard insurance premiums;
(II) Interest on the note secured hereby; and
(III) Amortization of the principal of said note.

Numerical paragraph ten (10) set forth an additional covenant as follows:

10. He will continuously maintain hazard insurance ... on the buildings and improvements . . . and except when payment for such premiums has heretofore been made under (a) of paragraph # 2 hereof, he will pay promptly when due when due any premiums therefor. Upon default thereof, mortgagee may pay the same.

The escrow account was used with this loan, and the monthly payments were sufficient to pay the principal and interest, and the anticipated taxes and insurance. The monthly payments were approximately $101.00, of which $14.11 was for taxes and insurance. The original policy covered the period from October 3, 1970 to October 3, 1971, for a premium of $33.00. Unknown to the appellant, Stokes requested the local insurance agent to increase the coverage which doubled the cost of the renewal premium when it was forwarded to the appellant.

Stokes made the required monthly payments from January through July 1971, but he paid nothing thereafter. On August 20, State Farm sent a premium notice to appellant for $66.00. Appellant finally determined that the bill was correct on or about October 1, 1971. The premium was due on October 3. The total escrow balance at that time was $46.52, and all other payments had long since been credited to principal and interest. There had been no payments since July to credit first to the payment of taxes and insurance.

On or about October 8, appellant initiated the process to pay the bill, but approximately one week later the bill had been rejected because of the insufficient funds in the escrow account. Appellant contacted the Veterans Administration to consider possible foreclosure and the payment of the insurance premium from the appellant’s own funds.

In late October, a decision was made to obtain the insurance at the expense of the appellant. On October 29, State Farm mailed a cancellation notice stating that the policy would be cancelled if the premium was not paid by November 16. The existing policy required ten days’ written notice to the mortgagee prior to cancellation. The notice was prepared by a computer in four copies. The local agent in Hopkinsville received his copy, but appellant denies receiving its copy. The time allowed seven days for delivery, in addition to the ten days’ notice as required.

Appellant finally issued its check on November 26, but a fire damaged the Stokes’ home and personal property on November 24. There is no dispute as to the amount of personal property loss.

Following the fire, appellant was required by the Veterans Administration to repair the property at a cost of $4,678.00. Subsequent to the repair, Mr. and Mrs. Stokes executed a deed to the Veterans Administration in lieu of foreclosure.

Kenneth and Shirley Stokes filed suit against appellant for the loss of their personal property. Appellant denied liability and counter-claimed for the repair costs of the mortgaged property. Appellant also filed a cross-claim against State Farm to compel payment under the old policy on the ground that it was never cancelled by giving the proper notice.

Depositions and interrogatories were added to the record. Both appellees separately moved for Summary Judgments which were granted as heretofore stated.

The trial court recited some but not all of the foregoing facts in its findings. It concluded that there were no genuine issues of any material facts concerning liability on damages, and determined that according to the holding in the case of First Federal Savings and Loan Association of Bowling Green v. Savage, Ky., 435 S.W.2d 67 (1968), appellant had “exercised its option to ‘ef-feet insurance’ ”, when it determined to advance the premium “on behalf of plaintiffs”. The trial court also concluded that appellant breached its duty to pay the premium in time and should therefore bear the loss.

As to the appellee, State Farm, the trial court found that the insurance company had cancelled the policy for good cause (non-payment of premium); “that notice of the cancellation had been mailed to the defendant, Pence Mortgage Company, and that it, as a matter of law, is deemed to have received it since Pence cannot and did not introduce sufficient evidence to establish the non-receipt of the cancellation notice; . . . .” On the basis of such facts, and the additional point that Pence had actual knowledge of the overdue premium, the insurance company was relieved of any liability.

Appellant naturally contends that the trial court committed error in granting each of the Summary Judgments. First, appellant claims error for the holding that Pence failed to perform its duty to “effect insurance” on behalf of the personal property of Stokes. Secondly, error is claimed for the determination that the policy issued by the appellee, State Farm, was properly can-celled. Appellant seeks to have the judgments reversed and the case remanded for a trial on appellant’s counter-claim against Stokes and its cross-claim against State Farm.

We agree with appellant’s first contention. We find a vast and definite difference between the facts in this case and the factual situation in First Federal Savings and Loan Association of Bowling Green v. Savage, Ky., 435 S.W.2d 67 (1968), which was relied upon by the trial court in granting the Summary Judgment in favor of the Appellees Stokes. The trial court’s findings of fact in the Stokes judgment were supported by the evidence and were correct as far as they went; but, the court totally neglected to consider that the said appellees had failed to make their required payments, and that there were insufficient funds in the escrow account to pay the required insurance premium. As a result, the trial court erroneously concluded that for Pence to decide to purchase insurance with its own funds for its own protection, Pence had elected to “effect insurance” on behalf of the appellees, thereby making it liable under the Savage holding.

We might add at this point that findings of fact are not necessary in summary judgments (7 W. Clay, Kentucky Practice, CR 56.03, Comment 8 (3rd ed. 1974)), and it was unnecessary for any party to request the trial court to consider the other essential facts as were omitted by the court (7 W. Clay supra, CR 52.04 and 52.01). Our concern is whether or not there were unresolved genuine issues of fact and whether or not the appellees were entitled to judgment as a matter of law. As to the judgment favoring the Stokes, we conclude that there were issues of fact and that they were not entitled to judgment as a matter of law.

In the Savage case, the mortgagor was notified by the insurance company that the insurance on his property would be can-celled. The mortgagee held an escrow account similar to the one in this case, and it was to make the premium payments when they became due. The mortgagor inquired of the mortgagee about the cancellation of the insurance, and was assured that it was still in effect. The mortgagor made all payments to the mortgagee for taxes, insurance, principal and interest, and when the mortgaged property was destroyed by fire and no insurance policy was in force to cover the loss, the court appropriately held that the Savings and Loan Association had taken it upon itself to “effect insurance”, and would have to bear the mortgagor’s loss.

The situation in this appeal presents nothing like the equities in the Savage case. Here we find the use of an escrow account, but we must not overlook the fact that the mortgage contract requires the mortgagor to make payments. It also places the primary responsibility for obtaining insurance on the mortgagor, and this would certainly come into being if the required mortgage payments were not made by the mortgagor. The fact that the appellant did “effect insurance” in the first instance could have created a continuing responsibility in a Savage type situation, but the facts here are completely distinguishable. Furthermore, the mortgage contract specifically gave the appellant the right to purchase insurance, if the mortgagor failed to provide insurance as required. Also, the only insurance required by the mortgage contract was to cover “buildings and improvements”. The fact that appellant’s decision was to purchase the State Farm policy as billed and which included personal property coverage is of no consequence. The appellees were not aware of the decision and could not have relied on it. Yet, the Summary Judgment required the appellant to pay the appellees, Stokes, $4,948.00 for a personal property loss.

Surely, if Kentucky courts required an escrow agent to continue “effecting insurance” at its own expense when the property owner provides no funds and is aware of the default, we would see an immediate discontinuance of all escrow accounts for insurance in this jurisdiction. There is no evidence of fraud, deceit or misrepresentation concerning the continuation of insurance by the appellant in this case.

The Summary Judgment in favor of Kenneth and Shirley Stokes, dated June 19, 1975, must therefore be reversed and set aside, and this part of the case must be remanded for further proceedings.

We find no merit in the appellees’ argument that they were necessary beneficiaries of appellant’s obligation to protect the Veterans Administration from any loss of the buildings and improvements. Appel-lees argue that the obligation required Pence to carry insurance and that the lapsed policy also provided protection for their personal property. The argument goes on to contend that the appellees should not have to purchase a separate policy for their personal property. As to this last point, we would agree only if the appellees paid the appellant for the type policy they expected or requested to have “effected” for them.

The question regarding the obligation of Pence to the V.A. does raise the unresolved issue of whether or not appellant may recover from the appellees, Stokes, the sum of $4,678.00, which it was required to expend to repair the appellees’ “buildings and improvements” to the satisfaction of the V.A. This issue was raised by appellant’s counterclaim, and the questions of rights, duties and negligence of both parties must therefore be remanded to the trial court for a resolution.

The primary remaining question is whether the trial court committed error in granting a Summary Judgment approving the cancellation of the insurance policy by the appellee, State Farm. On this issue, we agree with the trial court that no genuine issue of fact exists and that, as a matter of law, appellee was entitled to judgment.

The essential parts of the judgment read as follows:

. [T]he court finds that the defendant, State Farm, had for good cause (non-payment of premium) cancelled its fire insurance policy involved in this litigation prior to the fire; that notice of the cancellation had been mailed to the defendant, Pence Mortgage Company, and that it, as a matter of law, is deemed to have received it, since Pence can not and did not introduce sufficient evidence to establish the non-receipt of the cancellation notice; and further, that Pence had heretofore received actual notice from State Farm that the premium was unpaid and was preparing to pay said premium to State Farm at the time of the fire but failed to do so.

Both parties agree that notice of cancellation was required. Appellant argues that appellee was required to “give” appellant at least ten days’ written notice before cancellation, and that the requirement of “giving notice” makes receipt of the notice a condition precedent to any cancellation. The appellee, however, contends that the trial court was totally correct. There was adequate proof that the notice was mailed, that mailing creates a presumption of receipt, that the presumption was not rebutted, that proof of mailing without rebuttal of the presumption constitutes “giving” notice, all of which is further supported by the fact that appellant knew the premium was overdue and the policy was subject to cancellation for non-payment.

Our first stop in attempting to unravel the issue over notice is to review the provisions of the insurance policy pertaining to cancellation. The general cancellation clause did specifically provide for “giving” notice. The requirement appears to apply to a cancellation during the term of the policy, as the sentence on such cancellation refers to a return of excess premiums. The provision reads as follows: “This policy may be cancelled at any time by this Company by giving to the insured a five days’ written notice of cancellation with or without tender of the excess of paid premiums above the pro rata premium for the expired time. . . . ” The cancellation provision also provides that as to a mortgagee, “. . . [T]his policy may be cancelled by giving to such mortgagee a ten days’ written notice of cancellation.”

This policy also contained a “Standard Mortgage Clause” which provided for cancellation at any time “as provided by its terms, . . . .” This clause alone adds nothing to the previous quotations.

The policy was for a twelve month period, and it was to expire on October 3, 1971. The policy did contain, however, the following provision which was the real basis for any notice to appellant after the expiration date. The provision reads: “This policy will be renewed automatically for each succeeding policy period thereafter and is subject to termination by this Company only after ten (10) days’ written notice to insured and the mortgagee. The premium for succeeding policy periods will be computed at this Company’s rates then current.”

The cancellation requirements at renewal time do not use the term “giving” notice. The provision does not mention mailing, either, but some effort to communicate the notice in writing is nevertheless implicit in the stated terms. The question to be decided at this time is what notification of cancellation is actually required by the terms of this policy at the time of an automatic renewal when the premium has remained unpaid.

Contract terms such as “giving” and “mailing” notice are well established in insurance law. The two words have significant differences as to the requirements for proof of receipt by a mortgagee or an insured. (See 64 A.L.R.2d 982, et seq.) When the policy requires “giving notice” to effect a cancellation, the insurance company has a strict burden of proof of actual receipt of notice by the intended recipients, as a condition precedent to any cancellation. Kentucky has not yet resolved the question of required proof for “giving notice,” although generally, a presumption of receipt is recognized when mailing of a notice has been substantially proven. See, for example, O’Daniel v. Michigan Mutual Liability Company, 88 F.Supp. 339 (D.C.Ky.1950); Globe Indemnity Company v. Daviess, 251 Ky. 442, 65 S.W.2d 456 (1934); Haffler v. McKinney, 288 Ky. 782, 157 S.W.2d 92 (1942); and, Beauchamp v. Com. ex. rel, Kentucky Bd. of Veterinary Examiners, Ky., 243 S.W.2d 879 (1951).

The strict requirements of “giving notice” need not be applied in this action. When it is completely evident that an insurance company chooses to bind itself to a strict requirement of “giving notice” for cancellation of a policy during its term, the court should strictly enforce the terms of the policy. On the other hand, when the insurance contract does not use such a term for notice of cancellation at the expiration of the policy period, this court should not read into the policy the stricter requirements.

There have been several Kentucky decisions regarding notification of cancellation when the policy merely provided for “mailing” the notice. The O’Daniel case, supra, was one. Other cases include Woodard v. Calvert Fire Insurance Company, et al., Ky., 239 S.W.2d 267 (1951); American Fire and Casualty Company v. Combs, Ky., 273 S.W.2d 37 (1954); and, Goodin v. General Accident, Fire and Life Assurance Corporation, Ltd., Ky., 450 S.W.2d 252 (1970). In each of the aforenamed cases, the policies were sufficiently cancelled when mailing had been proven.

Appellant also contends that the proof for mailing was insufficient. In support of such argument, appellant cites the Goodin case, supra. Proof of mailing was satisfied in that case by showing compliance with business usage, provided the usage relied upon embodied sufficient evidentiary safeguards to satisfy the need for protection of the affected party. The requirements were a postal receipt, a recorded certification, a return address on the envelope, and use of first-class mail. It is true what we do not find all of the foregoing factors in the case on appeal. It therefore raises the question of whether or not the court’s finding that the cancellation notice was mailed is supported by substantial evidence. We conclude that the finding in this case is correct. The mailing occurred in the normal course of business and was accomplished by first-class mail. The notices of cancellation were prepared in quadruplicate by a computer and contained the correct addresses for both the appellant and the appellees, Stokes. The additional address of the Hopkinsville insurance agent was contained on the cancellation notice, and there is proof in the record that he received his copy of the cancellation notice.

The provision for cancellation at renewal time does not provide that mere mailing is sufficient to satisfy the requirement of “written notice,” but we do conclude that the trial court not only correctly found that the cancellation notice was mailed, but that it appropriately used the presumption of receipt, and then correctly found that the presumption was not rebutted by the appellant. If we are to presume receipt upon proof of mailing, we shall also presume that the notice would have been received within seven days after mailing, which would have allowed for the ten days’ requirement to be effective before the 16th of November.

For the foregoing reasons, the Summary Judgment dismissing the cross-claim against the appellee, State Farm, is affirmed. This ease is therefore affirmed in part, reversed in part and remanded for further action consistent with this opinion.

All concur.