author: SIMEONE, Presiding Judge.

text:
    Eileen LUSK, Plaintiff-Appellant, v. Cary E. LUSK, Defendant-Respondent.
    No. 36997.
    Missouri Court of Appeals, St. Louis District, Division Three.
    June 1, 1976.

      Harold L. Volkmer, Hannibal, for plaintiff-appellant.
    Rendlen, Rendlen & Ahrens, Charles E. Rendlen, Jr., Hannibal, for defendant-respondent.
   SIMEONE, Presiding Judge.

This is an appeal by plaintiff-appellant, Eileen Lusk, from an order of the Hannibal Court of Common Pleas, entered on January 6,1975, quashing an execution and garnishment issued to the employer of the husband-defendant, Cary E. Lusk, the Burlington-Northern Railroad. The appeal involves the interpretation of a modification order entered in a “divorce” action by the Hannibal court on April 20, 1965, which reduced the amount of child support to $150.00 a month.

The facts follow. Eileen Lusk and Cary E. Lusk were married in April, 1951. They lived together as husband and wife until 1964. Two children were born of the marriage — Michelle Diane and Michael Kevin. On October 20, 1964, the Hannibal Court of Common Pleas entered its decree dissolving the marriage and ordered the husband, inter alia, “to pay Child Support in the sum of $200.00 (Two Hundred Dollars) per month, or One Hundred Dollars ($100.00) for each of the two children.” At this time, the children were nine and six years of age respectively. The decree was entered by a judge who has since retired from the bench.

On April 7, 1965, Mr. Lusk filed his motion to modify the 1964 decree alleging a change of circumstances and that the amounts awarded for support and maintenance were excessive and unreasonable. On April 20, 1965, the court found that the husband’s income had decreased from what it was between January and October, 1964, and found that Mrs. Lusk was then [April, 1965] employed. The court therefore ordered:

“that the [1964] decree as to child support be modified to the extent that beginning May, 1965, the child support payments will be $150.00 per month in lieu of the $200.00 per month as provided in the original decree.”

From what we can gather from the record, Mr. Lusk paid $150.00 per month under the modified decree from 1965 until December, 1973.

In the latter part of October, 1973, or early November, the older child, Michelle, went to Quincy, Illinois, to care for her grandmother, and on January 2, 1974, she married and became emancipated.

After Michelle left home, Mr. Lusk discussed the question of Michelle’s support with Mrs. Lusk. He indicated that he desired to withdraw $75.00 of support money and had a stipulation drawn up in December, 1973, or January, 1974, “withdrawing her from the child support.” Mrs. Lusk requested more than $75.00 per month and never agreed “with Mr. Lusk that he was to pay . . . One Hundred Dollars ($100.00) a month.” Although a stipulation was drawn up which provided for payments of $100.00 per month, Mrs. Lusk never signed the stipulation and, according to her, never agreed to the stipulation.

But, beginning in January, 1974, Mr. Lusk paid to the clerk of the court for the benefit of Mrs. Lusk $100.00 per month. He continued such payments from January, 1974, through September, 1974. While Mr. Lusk testified that there was an agreement to pay $100.00 a month, Mrs. Lusk was emphatic that no such agreement took place and that she never agreed to accept less than $150.00 per month. She admitted that Mr. Lusk delivered the stipulation to her but that she wanted her brother, who lived in Iowa, and her attorney to examine the stipulation. The stipulation was in fact never signed by Mrs. Lusk.

Sometime between January, 1974, and “election day,” Mrs. Lusk personally attempted to have execution issued on the decree for the balance ($50.00) of the support order which ordered Mr. Lusk to pay $150.00 per month. Eventually, and on October 16, 1974, execution issued for child support against Mr. Lusk in the amount of $453.30 ($50.00 per month from January through September, 1974, plus $3.30 costs). Summons was issued to Mr. Lusk’s employer, the Burlington-Northern Railroad Company, in support of the execution.

On November 8, 1974, Mr. Lusk filed his “motion to quash execution in garnishment” alleging (1) that the court issued its modification order “calling for child support” of $150.00 “per month for two children,” (2) that on January 1, 1974, one of the children was married and became emancipated, thereby relieving him “from paying said” $150.00 “per month for the two children, and [he] has paid more than” $75.00 per month, “the prorata share of said child support since that time,” (3) that Mrs. Lusk has “for many months” accepted $100.00 “as a settlement of the payment for the amount due for the support of said child remaining in the custody of the plaintiff,” and that because she accepted that sum of $100.00 and because Mr. Lusk “has acted upon an oral agreement which has never been executed,” Mrs. Lusk is “estopped” from denying that an agreement was made to pay $100.00 per month. Mr. Lusk therefore prayed that garnishment be quashed.

The motion to quash was heard by the incumbent circuit judge on December 17, 1974, at which both Cary and Eileen Lusk testified. After the hearing and on January 6,1975, the court quashed the execution and garnishment and released the levy. Mrs. Lusk filed her motion for new trial or in the alternative to enter judgment for her. The motion was overruled on April 4, 1975. At the hearing on the motion for new trial, the court made the following statement:

“The Court feels that it should give reasons, and the appellate court should know why the Court did what it did. . I don’t believe a circuit judge ought to hide behind — so that the appellate court would have to guess why the Court ruled as it did. So, the Court specifically finds that there was no agreement between the parties to reduce the child support. In fact, the evidence was to the contrary. .
“Now, the matter of estoppel. There is more evidence that there is an estoppel here by far than there is of a contract, but the Court is not making its decision . based upon the estoppel theory. “. . . [The Court considered Gordon v. Ary, 358 S.W.2d 81 (Mo.App.1962), and Meyer v. Meyer, 493 S.W.2d 42 (Mo.App.1973), but believed the modification decree entered in 1965 can be distinguished from the judgments entered in those cases.]
“. . .In [the original judge’s order in 1964] he said the defendant, Cary E. Lusk, is ordered to pay child support in the sum of Two Hundred Dollars ($200.00) per month or One Hundred Dollars ($100.00) for each of two children. Now, [the judge] only modified the first part of that [original decree]. He reduced that to One Hundred Fifty Dollars ($150.00). The Court has reviewed the file and finds that there is no evidence that there was a need for a greater amount per child, so the Court believes that [the original judge’s] One Hundred Dollars ($100.00) for each of the children is controlling in this case; and for that reason, the Court is going to deny [the] Motion for a New Trial. However, the Court believes that the present amount owed under the decree in 1964 is One Hundred Dollars ($100.00) a month and not Seventy-five Dollars ($75.00) per month. If you read [the] modification order [of 1965], this Court interprets that to mean that [the judge] felt that the man’s income did not at that time justify Two Hundred Dollars ($200.00) a month child support, but [the judge] certainly didn’t change his view or in his order that the respondent should be required to pay One Hundred Dollars ($100.00) per child.
U »

Hence, the trial court held: (1) that there was no agreement between the parties to reduce the child support — a contract was prepared, but Mrs. Lusk did not agree to it; (2) that while there is some evidence of estoppel, the court did not base its decision on that legal theory; (3) that the judge in 1965 only modified the first portion of the 1964 decree and reduced the amount to $150.00; and (4) that the portion of the original decree ordering payments to each child in the amount of $100.00 was not modified.

Mrs. Lusk duly appealed the order of January 6, 1975, quashing the execution and garnishment. In this court, Mrs. Lusk contends that the trial court erred in quashing the garnishment and in finding that the modification order of April 20, 1965, required Mr. Lusk to pay $100.00 per child. She contends that the 1965 decree was a “single” or “lump sum” support order of $150.00, whether there were one or two children remaining in the home, and hence the court erred in quashing the garnishment. In effect, Mrs. Lusk contends that the 1965 order required Mr. Lusk to pay $150.00 child support whether or not one child was emancipated or the decree was not otherwise modified. She argues that the order of payment of $150.00 per month for child support is a “single monthly sum” and that Mr. Lusk was required to make the payment of the entire amount of $150.00 per month, even though Michelle was emancipated, and until the younger child, Michael, reached majority or the decree was otherwise prospectively modified. She relies on Gordon v. Ary, supra, and Meyer v. Meyer, supra. Hence, she argues that by only paying $100.00 per month from January through September, 1974, Mr. Lusk was in arrears for child support in the amount of $50.00 per month, or a total of $450.00 plus costs; hence, the court erred in quashing the execution and garnishment.

Respondent on the other hand contends that the court did not err because (1) the modification decree was not changed to require the payment of $100.00 per child as long as one child remained in the custody of Mrs. Lusk, (2) the authorities relied upon by Mrs. Lusk are no longer authority under the new dissolution law, § 452.370(3), RSMo (Supp.1973), (3) the court in the modification order of 1965 did not make an order of “a single sum support payment” but provided for a specific amount, $100.00, if one child remained in the custody of Mrs. Lusk, and (4) the parties entered into an agreement for child support in the sum of $100.00 per month and Mrs. Lusk accepted that amount for several months; hence, she is “estopped” from asserting her claim to $150.00 per month for nine months.

This is a court-tried case. In such a case, we are bound by certain principles relating to such hearings. In such instance, we review both the law and the evidence, and due regard is given to the opportunity of the trial court to judge the credibility of the witnesses. Rule 73.01(3). Although there has been some confusion as to our scope of review since the revision of Rule 73.01(3), as amended January 1,1975, deleting the phrase in former Rule 73.01(d), “clearly erroneous,” this confusion has now been put to rest. Murphy v. Carron, 536 S.W.2d 30, 31 (Mo. banc, 1976). In that case, our Supreme Court stated that appellate review

“. . .is construed to mean that the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. . . . ” 536 S.W.2d at 32.

Under these principles, we affirm the judgment of the trial court.

Since the trial court found no agreement to accept $100.00 per month and did not hinge its decision on estoppel, the critical question presented in this case, as we perceive it, is whether the April 20, 1965 order modifying the 1964 decree constituted an order for a single sum support payment for the two children, Michelle and Michael, or whether the 1965 order modifying “child support” reducing the child support payments to $150.00 per month left intact that portion of the 1964 order requiring Mr. Lusk to pay $100.00 “for each of the two children.” Or, stated another way — did the 1965 modification decree reducing child support from $200.00 to $150.00 per month modify those provisions of the 1964 decree ordering Mr. Lusk to pay $100.00 “for each of the two children”?

If the 1965 modification decree is to be construed as a “single sum” support order for the two children, it is clear under our authorities that Mr. Lusk is obligated to pay $150.00 per month until the younger child attains majority or until the decree is modified by court order.

“[A] divorce decree, . . . which fixes a single monthly sum to be paid for the benefit of two or more children is deemed by the courts to require payment of the entire sum until the youngest living child attains majority, or until the decree is otherwise prospectively modified by a court order. . . .” Gordon v. Ary, supra, 358 S.W.2d at 83.

If the 1965 decree is to be so construed, then the trial court was in error in quashing the garnishment.

If, however, the 1965 modification order was not a “single sum support order” for both children but was in reality a decree reducing the total amount of child support to $150.00 per month but at the same time leaving intact the 1964 order requiring the respondent to pay $100.00 per month for each of the two children, then the trial court, in sustaining the motion to quash, was not erroneous.

The primary issue, therefore, is the interpretation of the 1965 modification decree and its impact on the 1964 order. Various interpretations of the 1965 decree are possible. First, the 1965 decree is a single lump sum support order for $150.00 per month for the two children. This interpretation would entitle the appellant to $150.00 per month from January through September, 1974, even though Michelle married in January, 1974, and left home. Since the younger child, Michael, was still in Mrs. Lusk’s custody, under this interpretation Mrs. Lusk would be entitled to the sum of $150.00 per month for Michael. Second, the 1965 order reducing the child support from $200.00 to $150.00 per month by implication necessarily reduced the child support from $100.00 “for each of the two children” to $75.00 per month. By this interpretation, Mrs. Lusk could not complain, since she received more than that amount for the period January through September, 1974. A third interpretation is also possible. That interpretation is that the 1965 modification order reducing the child support payments from $200.00 to $150.00 per month left intact that portion of the 1964 order requiring Mr. Lusk to pay $100.00 per month for each of the two children and that each child was entitled to the sum of $100.00 per month for support while such child remained in the custody of the mother. That is, although the amount of child support was reduced to $150.00 by the 1965 modification, this did not modify that part of the 1964 order requiring Mr. Lusk to pay $100.00 for each child after one was married or emancipated. This was the interpretation found by the trial court:

“. . .If you read [the 1965] modification order, . . . the man’s income did not at that time justify ($200.00) a month child support, but he [the judge who entered both the 1964 and 1965 orders] certainly didn’t change his view or his order that the respondent should be required to pay ($100.00) per child.”

We believe that this interpretation by the trial court of the 1965 decree was not erroneous and should not be disturbed on appeal. We believe that the interpretation of the 1965 modification order was reasonable, and we decline to interfere with the ruling of the trial court. Hence, we are disposed to affirm the judgment.

The 1965 decree explicitly stated that:

. . the [1964] decree as to child support be modified to the extent that . the child support payments will be $150.00 per month in lieu of the $200.00 per month as provided in the original decree.” (Emphasis added.)

The 1965 order modified the 1964 order only “to the extent” that the support payments be reduced to $150.00 per month and ordered payments in the amount of $150.00 “in lieu” of $200.00 per month. The specific language of this modification order was limited and qualified. It was not a single sum support payment for two children. Hence, the interpretation of the trial court leaving intact that portion of the 1964 order relating to $100.00 per month for each of the two children cannot be said to be unreasonable. It is to be noted that the 1965 modification order did not specifically, explicitly and unequivocally order a “single sum support payment” of $150.00 for the two children. The order did not state that “child support payments shall be $150.00 per month,” but rather decreed that the 1964 decree as to child support be modified “to the extent” that the payments be $150.00 “in lieu” of $200.00. Hence, the 1965 decree was not a single sum support order as contended by the appellant so as to be governed by the authorities relied upon, but was in reality an order reducing the total amount of child support, leaving intact the provisions of the 1964 order relating to $100.00 per month “for each of the two children.” We believe, as did the trial court, that the 1965 modification order can be construed to mean that, although the income of Mr. Lusk at the time did not justify payments of $200.00 child support and payments were accordingly reduced to $150.00, still the needs of the respective children were and continued to be such that support payments in the amount of $100.00 per month were necessary and should not be terminated or proportionately reduced after one of the children married or became emancipated. Hence, the 1965 decree can be construed to retain the provisions of the 1964 decree requiring child support in the amount of $100.00 per month for each child during the time one remained in the custody of the mother, Mrs. Lusk, and after one of the children married or otherwise was emancipated.

When, therefore, Michelle married in January, 1974, Mrs. Lusk was entitled to $100.00 per month in accordance with the 1964 decree for the support of Michael from January through September, 1974. This was the monthly amount Mr. Lusk was legally obligated to pay. This was the monthly amount he actually paid. Therefore, the trial court did not err in quashing the execution.

While the trial court’s interpretation, which we approve, may, at first blush, seem strained and mathematically inconsistent, yet, when analyzed, it is in reality beneficial to each of the children of the marriage and is consistent with the purposes and policies underlying child support orders.

This interpretation takes into account both the needs of the individual child and the ability of the father to pay, and comports with the general rules regarding construction of judgments and decrees. After Michelle married, if the respondent, Mr. Lusk, had attempted to reduce the child support payments pro-rata to $75.00 per month, Mrs. Lusk would have been entitled to have execution for the additional $25.00 per month.

In a sense, this situation is the converse of Gordon v. Ary, supra. In Gordon v. Ary, the court dealt with a single sum support order; here we deal with a support order for an individual child.

In Gordon v. Ary, supra, it was held that a single sum support payment should not be construed as intended to be impliedly prorated equally among its beneficiaries for the reason that requirements of the individual child vary widely depending on the age, sex, health, and other circumstances. So, here, too, a decree which is modified “to the extent” that the total amount of child support is reduced should not be construed so as to reduce the amount for the support of each child.

The interpretation given by the trial court that the 1965 decree reducing the total amount of child support to $150.00 did not thereby modify the 1964 order as to the amount due “for each of the two children” did not erroneously declare or apply the law. Hence, we should not interfere and reverse that interpretation. We cannot, therefore, conclude that the order of the trial court quashing the garnishment was erroneous. Hence, the order should be affirmed.

The judgment is affirmed.

KELLY and GUNN, JJ., concur.

      . On December 17, 1974, Mr. Lusk also filed a “motion for modification” to reduce child support to $75.00 per month beginning January, 1974. There is nothing in the record to indicate that this motion was disposed of.

      . We commend the trial court for stating in concise form the reasons why it reached its decision. This is a commendable practice and is of great aid to an appellate court. Most often, we are left to grope for the reasons a trial court reached a particular decision.

      . § 452.370, subsection 3: “Unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a child are terminated by emancipation of the child.” See also § 452.415.

      . There is a conflict of authority on this issue. See cases collected in 24 Am.Jur.2d § 854, pp. 969-980 (1966); Annot., 2 A.L.R.3d 596, 611-613 (1965); Annot., 58 A.L.R.2d 355, 358-359 (1958). Some authorities hold that where the support order is for the support of two or more children and one child is emancipated or marries, the order abates proportionately. Ditmar v. Ditmar, 48 Wash.2d 373, 293 P.2d 759 (1956); Codorniz v. Codorniz, 34 Cal.2d 811, 215 P.2d 32 (banc 1950). Other authorities are of the view that a decree which fixes a single monthly sum to be paid for the benefit of two or more children requires payment of the entire amount until the youngest child attains majority or until the decree is otherwise prospectively modified by order of court. Cooper v. Matheny, 220 Or. 390, 349 P.2d 812, 813 (1960); Estes v. Estes, 192 Ga. 100, 14 S.E.2d 680, 681 (1941); Schrader v. Schrader, 148 Neb. 162, 26 N.W.2d 617, 621 (1947); Warren v. Warren, 92 N.J.Eq. 334, 112 A. 729 (1921).
      The issue involved in this proceeding is not whether marriage of a child terminates an order for the support of the child. As a general rule, an order for support of a minor child entered in an action of divorce terminates automatically when the child marries and leaves home. Specking v. Specking, 528 S.W.2d 448, 451 (Mo.App.1975), and cases cited therein; Meyer v. Meyer, supra, 493 S.W.2d at 46.

      . See 46 Am.Jur.2d, Judgments, §§ 72-76, pp. 362-365 (1969); 49 C.J.S. Judgments § 436, pp. 862-869 (Í947).


source: Caselaw Access Project

author: TITUS, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Joseph VELAS, Defendant-Appellant.
    No. 10066.
    Missouri Court of Appeals, Springfield District.
    June 3, 1976.

      Wayne K. Rieschel, Pros. Atty., Buffalo, for plaintiff-respondent.
    J. Douglas Cassity, Greene, Cassity, Ferguson, Carnahan & Freeman, Springfield, for defendant-appellant.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   TITUS, Judge.

The two-count information charged defendant with resisting arrest by the sheriff (§ 557.210, V.A.M.S.) and disturbing the peace of the county assessor. § 562.240, V.A.M.S. A jury found him innocent of peace disturbance but guilty of resisting arrest and fixed his punishment at a fine of '$15.

On the day in question, defendant paid one of many visits to the assessor in the latter’s office at the courthouse in Dallas County. The purpose of the visit, as with all others, was to express umbrage over a $2.43 tax levied because of defendant’s ownership of a $50 “unbroke” horse. In the light most favorable to the verdict [State v. Patterson, 534 S.W.2d 847, 850[5] (Mo.App.1976)], this is what happened: Defendant “was real mad” when he entered the assessor’s office. “He was loud [and] just kept getting louder and louder” in proclaiming “he had a horse on the assessment list, and he didn’t aim to pay the taxes on it.” The sheriff, in his office “two doors” away, and the janitor in his courthouse office, variously heard “quite a disturbance hollering and cussing” emanating from the assessor’s office. Defendant ignored the assessor’s repeated warnings that the sheriff would be beckoned if departure was not posthaste and raised his cane to emphasize “I ain’t going” before the assessor left to summon the sheriff’s aid to effect defendant’s eviction. Responding to the call, and accompanied by the janitor and the assessor, the sheriff entered the assessor’s office. The janitor recalled the defendant was “in there swinging a cane” exclaiming, “This S.O.B. is trying to kick me out of this office.” Putting his arm around defendant’s shoulder the sheriff entreated, “Joe, come on, let’s get out of here. Just cool it.” In response, defendant shoved the sheriff “backwards, shoved me loose, and said ‘I’m not going to go anywhere.’ ” Thereupon the sheriff enounced, “Joe, you are under arrest for disturbing the peace.” When defendant started to strike the sheriff with his cane, the sheriff slapped defendant “a pretty good lick . . . with my open hand.” Defendant “went backwards against the wall . . . and set down [on the floor] and [the sheriff] said ‘Joe, get up and come on. Let’s go.’ And he said he wasn’t getting up. So I reach down and got him by his shirt collar and the arm, and I got him up. I started out the room with him, and as he got to the door ... he grabbed the door, both hands, and wasn’t going to go through it. And I had to get my hands under his arms, behind his neck, to get him on out of there.”

The points relied on by defendant in this appeal are: “I. The verdict of the jury is inconsistent in its finding that appellant did not disturb the peace, but did resist arrest. A. The arrest of appellant was unlawful in that the arresting officer acted beyond the scope of his authority in making the arrest. B. A finding of guilt for resisting an unlawful arrest is incongruous and inconsistent. II. The court erred in allowing the prosecutor to amend the information in regard to resisting arrest in that the original information did not charge that [defendant] resisted arrest and that to amend said information to contain such a charge was error and was prejudicial to appellant. A. The original information did not constitute a valid charge of resisting arrest. B. The court erred in allowing the amendment of the information to include a charge of resisting arrest and to allow such amendment was prejudicial to appellant.”

These so-called points clearly violate the mandatory requirements of Civil Rule 84.04(d), V.A.M.R., which is made applicable to criminal cases by Criminal Rule 28.18, V.A.M.R. State v. Warren, 469 S.W.2d 662, 663 (Mo.App.1971). Point I does not undertake to say “why” a verdict of not guilty for peace disturbance and a verdict of guilty for resisting arrest are inconsistent. Neither are we advised “wherein” and “why” the arrest was allegedly unlawful or “wherein” or “why” it is claimed the arresting officer acted beyond the scope of his authority in making the arrest. As to Point II, appellant-defendant does not seek to enlighten us as to “wherein” and “why” the original information did not charge or constitute a valid charge of resisting arrest or “wherein” or “why” permitting the amendment was prejudicial to him. Purported points in a brief which amount to nothing more than conclusions, abstractions of supposed facts and abstract statements of law preserve nothing for review on appeal. Kansas City v. Garza, 493 S.W.2d 659 (Mo.App.1973). Points relied on should precisely isolate the issues and facts relative thereto [State v. Dennison, 428 S.W.2d 573, 579[8] (Mo.1968)] for an appellate court owes no duty to resort to a search of the transcript on appeal or the argument portion of the brief to ascertain the meaning of points penned in abstract and conclusionary fashion. State v. Freeman, 489 S.W.2d 749, 752[2] (Mo.App.1973). Thus, at this juncture the appeal herein should be summarily dispatched. State v. Yearwood, 510 S.W.2d 43, 44 (Mo.App.1974). Nevertheless, and beyond the requirements of duty, we have gone to the transcript and argument part of the defendant’s brief to enable us to consider defendant’s insufficient points on their merits.

Sheriffs, by virtue of § 57.110, V.A.M.S., are conservators of the peace and possess the right and duty to make war-rantless arrests for disturbances of the peace when that misdemeanor is committed in their presence [State v. Caffey, 436 S.W.2d 1, 2[1] (Mo.1969)], and the offense is committed in the presence or view of the sheriff when he hears the disturbance, proceeds to the scene and the offense is continuing upon arrival. State v. Peters, 242 S.W. 894, 896[2] (Mo.1922). A sheriff may /lawfully arrest a person for disturbance of the peace (a misdemeanor) if the actions committed in his presence and the circumstances observed by him would lead a reasonable person to believe he was witnessing the commission of a misdemeanor by the person arrested. State v. Sampson, 408 S.W.2d 84, 87[4] (Mo.1966); 6A C.J.S. Arrest § 20, at p. 47. The determination of whether the arrest is valid does not turn on whether the charge is subsequently sustained but on the existence of probable x cause in relation to it. Daly v. United States, 324 F.2d 658, 660[4] (8th Cir.1963). Moreover, probable cause is not dependent upon absolute certainty that an offense has been committed. State v. Perry, 499 S.W.2d 473, 476[8] (Mo.1973).

Even if the arrestee be actually innocent of the crime for which he is arrested, it is his duty to submit peaceably to a lawful arrest. 38 U.M.K.C. Law Review, Criminal Procedure Outline 1, Sec. VI B, p. 187. One who resists a lawful arrest, though he be innocent of the arresting charge or albeit the statute under which he is arrested proves to be unconstitutional, is subject to criminal prosecution for resisting. State v. Briggs, 435 S.W.2d 361, 365[5] (Mo.1968).

When the facts in the instant case are compared with those presented in State v. Sturges, 48 Mo.App. 263 (1892), we do not hesitate to hold that the sheriff had probable cause to believe that a disturbance of the peace was being committed by the defendant in his presence and that his arrest of the defendant therefor was lawful. Consequently, it may not be successfully urged, as defendant has tried, that defendant had the right to resist the arrest or that a finding that defendant was innocent of the crime of disturbing the peace was inconsistent with a verdict finding him guilty of resisting arrest.

Count I of the original information charged that defendant did “wilfully, intentionally . . . obstruct, resist and oppose Jerry Cox, Sheriff of Dallas County, [in the performance of his, the said Jerry Cox’s lawful duties].” The bracketed words were deleted in the amended information and the following words were added in lieu thereof: “while Jerry Cox was attempting to place Joe Velas under lawful arrest, the said Joe Velas knowing Jerry Cox to be the Sherrif [sic] of Dallas County.”

Sec. 557.210, supra n. 1, denounces resistance to an officer in making an arrest “in the discharge of any other duty in any case,” which covers arrests for misdemeanors without warrants in proper circumstances. State v. Browers, 356 Mo. 1195, 1202, 205 S.W.2d 721, 725 (1947); State v. Nolan, 354 Mo. 980, 988, 192 S.W.2d 1016, 1020 (1946); 2 Alexander, The Law of Arrest, § 596, pp. 1621-1623; 38 U.M.K.C. Law Review, supra, at p. 187. The original information alleged a crime in the language or substantially in the language of the statute. This was sufficient [Patrick v. State, 460 S.W.2d 693, 699[9] (Mo.1970)], especially in view of the law “that informations are construed more liberally and with less regard to technicality in misdemeanors than in felonies.” State v. Graham, 322 S.W.2d 188, 194[12] (Mo.App.1959). Contrary to defendant’s contention, the amended information did not charge a new offense. It simply served to inform defendant of the particulars of the offense. This could not have been prejudicial.

The judgment is affirmed.

All concur.

      . Sec. 557.210 — “If any person . . . shall knowingly and willfully resist any sheriff ... in the discharge of any other duty in any case, civil or criminal, other than felony . . . every person so offending shall, on conviction, be adjudged guilty of a misdemeanor.”

      . Sec. 562.240 — “If any person . . shall willfully disturb the peace ... of any person, by loud and unusual noise or by offensive or indecent conversation, . . . every person so offending shall, upon conviction, be adjudged guilty of a misdemeanor.”


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. George Franklin MORRIS, Appellant.
    No. 10374.
    Missouri Court of Appeals, Springfield District.
    June 4, 1976.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Timothy F. Ruddy, Cape Girardeau, for appellant.
   PER CURIAM:

We have no jurisdiction to entertain this appeal because appellant’s notice of appeal fails to comply with the time requirements of Rules 28.03 and 81.04 [State v. Hulsey, 534 S.W.2d 809 (Mo.App.1976)]. Judgment and sentence were entered March 1, 1976, and the docket fee waived on May 17, 1976. The notice. of appeal was untimely filed. State v. Worl, 531 S.W.2d 294 (Mo.App.1975).

All concur, except FLANIGAN, J., not participating.


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Billy Jim BARNETT, Defendant-Appellant.
    No. 10093.
    Missouri Court of Appeals, Springfield District.
    June 7, 1976.
    Addendum on Denial of Rehearing June 15, 1976.
    John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Fred Charles Moon, Springfield, for defendant-appellant.
   BILLINGS, Chief Judge.

Defendant Billy Jim Barnett seeks reversal of his conviction for first-degree robbery by means of a dangerous and deadly weapon, contending his in-court identification by the victim was tainted by impermissible and suggestive pre-trial procedures. We affirm.

A jury found the defendant guilty of the midnight armed robbery of the clerk of a Springfield market and fixed his punishment at 15 years in prison. Prior to the trial the defendant’s motion to suppress his identification by the clerk was denied. At trial, the clerk, without objection, identified the defendant as the armed man who had robbed him. Extensive cross-examination of the clerk by defendant’s counsel failed to shake the clerk’s positive identification of the defendant.

Defendant’s alibi defense, was rejected by the jury and its verdict was returned June 9, 1975. Motion for new trial was filed June 30,1975, and the record does not show any application for or extension of time for filing the motion.

The motion for new trial was untimely, is a nullity, and preserves nothing for appellate review. Rule 27.20, V.A.M.R.; State v. White, 439 S.W.2d 752 (Mo.1969); State v. Stevens, 529 S.W.2d 670 (Mo.App.1975).

We have reviewed the matters required by Rule 28.02, V.A.M.R. and find no error.

Judgment affirmed.

All concur.

ADDENDUM

Attached as exhibits to defendant’s motion for rehearing are certified copies of the trial judge’s docket sheets which show, contrary to the approved transcript, defendant was in fact granted until June 30, 1975, to file his motion for new trial. Pursuant to Rule 81.12(c) the transcript is ordered corrected to show defendant’s motion for new trial was timely filed.

In light of the foregoing we have again reviewed the record concerning the defendant’s complaint of his in-court identification by the store clerk. Defendant failed to preserve this point by timely and appropriate trial objection. State v. Brownridge, 459 S.W.2d 317 (Mo.1970); State v. McFadden, 530 S.W.2d 440 (Mo.App.1975). Further, the clerk’s viewing of the defendant during the course of the robbery afforded him an independent basis for the in-court identification and any alleged improper pretrial identification procedures do not render the admission of the identification testimony a miscarriage of justice or plain error. State v. Tidwell, 500 S.W.2d 329 (Mo.App.1973).

The motion for rehearing is denied.


author: GUNN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Paul Edward HODGES, Defendant-Appellant.
    No. 36756.
    Missouri Court of Appeals, St. Louis District, Division Three.
    June 1, 1976.

      Robert C. Babione, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.
    Preston Dean, Asst. Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for plaintiff-respondent.
   GUNN, Judge.

On his appeal, the defendant contends that at trial there was insufficient evidence to support his conviction for robbery first degree. We disagree with his contention.

The evidence viewed in the light most favorable to the verdict is that a robbery victim was accosted by the defendant who was brandishing a pearl handled knife. The defendant, who was known by the victim during their grade school days, demanded the victim’s money. Mindful of the adage that discretion is the better part of valor, the victim readily relinquished his money to the defendant, who promptly left the scene. Shortly thereafter the victim reported the robbery at the nearest police station — three blocks away. Defendant submits that the victim’s story is apocryphal, in that the victim would logically report the robbery at the nearest place of business rather than going three blocks to a police station. The defendant also points to certain inconsistencies in the victim’s rendition of the events relating to the robbery— specifically whether the knife was displayed in the defendant’s right or left hand and whether the knife was flashed while the defendant was approaching the victim or only after the defendant spoke to the victim.

Inconsistencies in testimony are questions for jury resolution. State v. Berry, 526 S.W.2d 92 (Mo.App.1975). So, too, is it the jury’s function to determine the credibility of a witness’s testimony. State v. Andrade, 534 S.W.2d 595 (Mo.App.1976); State v. Kramer, 534 S.W.2d 281 (Mo.App.1976). We determine only whether there was substantial evidence which, if believed by the jury, would sustain the verdict. State v. Thomas, 530 S.W.2d 265 (Mo.App.1975). We find that there was substantial evidence in this case to support the verdict.

We have reviewed the record before us and find no error. The judgment is affirmed.

SIMEONE, P. J., and KELLY, J., concur.


author: FONES, Chief Justice.

text:
    C. R. DORRIER et al., Appellants, v. James O. DARK, Appellee.
    Supreme Court of Tennessee.
    Feb. 17, 1976.

      James H. Harris, III, Metropolitan Atty., Dept, of Law of Metropolitan Government of Nashville and Davidson County, Nashville, William F. Howard, Metropolitan Atty., Dept, of Law of Metropolitan Government of Nashville and Davidson County, Nashville, for appellants.
    Charles H. Warfield, Farris, Evans & Warfield, William L. Small, Farris, Evans & Warfield, Nashville, for appellee.
   OPINION

FONES, Chief Justice.

Written charges of neglect of duty and conduct unbecoming a teacher were preferred against James O. Dark, a tenured teacher, by the Director of Schools. He requested and was granted a hearing before the Metropolitan Board of Education, in accordance with the provisions of T.C.A. § 49-1416, which resulted in a judgment terminating him as a teacher.

Dark sought judicial review of that decision in the Chancery Court of Davidson County pursuant to T.C.A. § 49-1417. In addition to assailing the School Board’s decision for lack of merit to the charges, Dark asserted that the Board’s action was void because it was “formulated” in a closed session in violation of T.C.A. § 8-4401 et seq., the Open Meetings Act.

Upon a motion by defendants, the nature of which does not appear in the record, the learned Chancellor held that the decision made by the Metropolitan Board of Education at the hearing conducted pursuant to T.C.A. § 49-1416 was void because the “meeting” was in violation of T.C.A. § 8-4401. The order recited that, (1) “upon stipulation of counsel for defendants the Court finds that the Metropolitan Board of Education is ‘a governing body’ as defined in T.C.A. § 8-4402 and (2) that the Metropolitan Board of Education did meet in executive session to consider testimony concerning plaintiff and reach a decision on plaintiff’s termination.”

This was in effect a final determination although the Chancellor retained jurisdiction over the Board and the subject matter, for compliance supervision as authorized in T.C.A. § 8-4406(d).

It is necessary that we waive compliance with Rules 14 and 15 of this Court in order to adjudicate the contentions of the Board on the merits. Having exercised our discretion to do so, the issue raised by the appellant Board is that the entire Open Meetings Act is unconstitutional for one or more of the following reasons: (1) the Act is void for vagueness; (2) the Act abridges free speech; (8) the Act is broader than its caption; and (4) the Act is unreasonable and arbitrary for failure to allow closed meetings under any circumstances. Appellant concludes by urging that elision of a part or parts of the Act cannot save it from the stamp of total unconstitutionality.

Appellant calls our attention to the fact that this Court has heretofore decided only one issue involving the Open Meetings Act. In Memphis Publishing Company v. City of Memphis, 513 S.W.2d 511 (Tenn.1974), we held that the phrase “adequate public notice” as used in T.C.A. § 8-4403 was not unconstitutionally vague.

In asserting that the Act is void for vagueness, appellant’s brief contends that the Open Meetings Act is replete with undefined terms, that men of common intelligence must necessarily guess at their meaning and differ as to their application. More specifically it is stated that “governing body” and “public body” are imprecise terms, subject to conjecture and will be interpreted differently by the courts of this State until these ambiguous terms are either defined or the Act declared void by this Court. In the meantime, it is asserted, all government action is cast in doubt by the stringent sanction of nullification provided in T.C.A. § 8 — 4405.

Parenthetically, we detect a strong implication that as a result of this appeal we are expected to provide a definition of every term in the Act and give an advisory opinion as to the precise scope and coverage with respect to every conceivable body in existence in the State. We have neither constitutional authority nor inherent power to give advisory opinions. This is a court of appeals and errors, and we are limited in authority to the adjudication of issues that are presented and decided in the trial courts, and a record thereof preserved as prescribed in the statutes and Rules of this Court; and finally, as presented here on proper assignments of error and brief in compliance with the Rules of this Court.

In further argument, appellant asks what are government bodies, governing bodies, governmental bodies and public bodies? Our attention is not directed to any particular body whose status is said to be uncertain and undetermined under the terms of the Act. It is vaguely suggested that there is such confusion rampant across the State resulting from the failure of the Legislature to precisely define these- and other terms that members of many bodies do not know whether or not they are covered by the Open Meetings Act.

Appellant is not such a body. We note that the terms are sufficiently clear to enable appellant to stipulate that it is a governing body as defined in T.C.A. § 8-4402. Having no specific issue involving the disputed coverage of a body or bodies we must deal with the application of the Act in the abstract.

Appellant relies upon Connally v. General Construction Company, 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). Connally was the Commissioner of Labor for the State of Oklahoma, and the construction company had a number of contracts with the State involving the construction of bridges. The construction company brought a suit to enjoin the commissioner and certain county officers of the State of Oklahoma from enforcing the provisions of a statute on the ground that its was unconstitutionally vague. The statute provided, among other things, that persons employed by contractors performing work for the State must pay, “. . . not less than the current rate of per diem wages in the locality where the work is performed . . . ” 269 U.S. at 388, 46 S.Ct. at 126. The penalty imposed for violation was a fine of not less than fifty nor more than five hundred dollars or imprisonment for not less than three nor more than six months. Each day that a violation continued was declared to be a separate offense. Specifically, the Commissioner of Labor claimed that the rate of wages paid by the construction company to laborers was $3.20 a day whereas the current rate in the locality where the work was being done was $3.60 per day. According to the proof, the construction company was paying its laborers various rates ranging from $8.20 a day to as high as $6.50 per day. There was proof that representative employers in the area were paying varying rates from as low as $100 per month to $4.05 per hour. Throughout the areas of Oklahoma where the construction company was performing work, the proof showed that employers of construction labor based the wages paid an individual worker upon a variety of factors, such as the class and kind of work performed and the efficiency of the workmen.

The constitutional attack was predicated on the statutory phrase “the current wage in any locality” — that no one could determine that figure with any degree of certainty. Further the term “locality” itself was fatally vague and uncertain. The United States Supreme Court agreed, pointing out that the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it, what conduct on their part will render them liable to its penalty,

“. . . and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” (citations omitted). 269 U.S. at 391, 46 S.Ct. at 127.

It is apparent that the decision in Conn ally rested upon a factual showing that a sum certain representing a current prevailing wage for construction workers was a nonexistent figure both for lack of uniformity in the practice of employers and the uncertainty of determining the boundaries of “locality.”

We are not impressed that any analogy exists between Connally and the instant case.

We do not have before us a penal statute. The Legislature has imposed no fine or imprisonment against the members of a body who may be in violation of the Open Meetings Act. The sanction is nullification of action taken in violation of the Act and injunction against repeated violations. As this Court pointed out in Memphis Publishing Company v. City of Memphis, supra, we are dealing with a remedial statute where the requirements of specificity are less stringent.

We do not find Connally, or any of the other cases relied upon by appellant to be persuasive on the issue of vagueness.

When a constitutional attack is levied on a statute, we are required to indulge every presumption in favor of its validity and resolve any doubt in favor of, rather than against, the constitutionality of the Act. Memphis Publishing Company v. City of Memphis, supra; Black v. Wilson, 182 Tenn. 623, 188 S.W.2d 609 (1945) and Corn, et a 1. v. Fort, 170 Tenn. 377, 95 S.W.2d 620 (1936).

The failure to define “public body” as used in the definition of “governing body” is criticized, but the question we must decide is not whether a precise definition of public body would have been desirable or why, but simply whether it was necessary in the context of the Act in order to escape unconstitutional vagueness.

The definition of a “governing body” is contained in T.C.A. § 8-4402:

“ ‘Governing body’ means the members of any public body which consists of two or more members, with the authority to make decisions for or recommendations to a public body on policy or administration.”

In studying the legislative history of the Open Meetings Act, we observe that at several stages the term “public body” was defined by enumerating the boards, commissions, agencies, authorities, etc. to be included in the coverage of the Act.

By amendment, enumerations of the boards, commissions, agencies, authorities, etc. intended to be covered was deleted and the present definition of “governing body” adopted. It is clear from the journal entries and recordings of the debate that both proponents and opponents of the Act assumed the amendment adopted to be more comprehensive than the definition of “public body” that it replaced.

In the construction of a statute we must seek to ascertain the intention of the Legislature as it is expressed in the words of the statute and should look to the entire Act and give consideration to the purpose, objective and spirit behind the legislation. The caption of the act and the policy statement in T.C.A. § 8-4401(a) provide the objective and spirit of the Act. The caption is as follows:

“AN ACT to require that meetings of state, city and county government bodies be open to the public in accordance with Article I, Section 19, of the Tennessee Constitution.”

The policy statement is:

“8-4401. Policy — Construction.—(a) The general assembly hereby declares it to be the policy of this state that the formation of public policy and decisions is public business and shall not be conducted in secret.

We cannot say that “public body” as used in the context of this Act, without definition, is so uncertain that men of common intelligence must necessarily guess as to its meaning and differ as to its application.

It is clear that for the purpose of this Act, the Legislature intended to include any board, commission, committee, agency, authority or any other body, by whatever name, whose origin and authority may be traced to State, City or County legislative action and whose members have authority to make decisions or recommendations on policy or administration affecting the conduct of the business of the people in the governmental sector.

Appellant says that the abridgment of free speech by the Open Meetings Act is a novel but nonetheless genuine issue. We have given thoughtful consideration to the argument advanced and the cases cited, and we are of the opinion that the position of the appellant is without merit.

Article 1, Section 19 of the Constitution of Tennessee provides, inter alia:

“Sec. 19. Freedom of speech and press. — That the printing presses shall be free to every person to examine the proceedings of the Legislature; or of any branch or officer of the government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions, is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty.”

Thus, in the first two sentences of the section, the Constitution provides freedom of the press, open government and freedom of speech. Clearly, the Open Meetings Act implements the constitutional requirement of open government. If it touches a freedom of speech issue, it is at most a subjective matter with the individual member of a covered body and is limited to a chilling effect upon free expression. The only legitimate “chilling effect upon free expression” (appellant’s phrase) that a member of a covered body could entertain is that deliberation in open meeting of a particular matter would be detrimental to the public interest. The people, speaking through the Legislature, have determined that they are willing to assume those detriments to secure the benefits of open government as prescribed in the Act. We are not impressed by the argument that a citizen-member of a governing body suffers an infringement of his right to free speech by the requirement that any deliberation toward an official decision must be conducted openly.

It is obvious that the phrase “impose penalties” in T.C.A. § 8-4406(a) is limited to citation for contempt for violation of an injunction issued after a finding of failure to comply with the requirements of the Act. Our Act is distinguishable from the acts of some states that prescribe fines, and/or removal from office for violation of the Open Meetings Act. We concede that in states providing such penalties, both freedom of speech and vagueness are more substantial issues.

Appellant relies upon Keyishian v. Board of Regents of U. of St. of N. Y., 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967). The appellants were professors in a state university and had refused to sign certificates declaring whether or not they were members of the communist party. At issue was the constitutionality of statutes and regulations, the purpose and objective of which was to prevent the appointment or retention of “subversive” persons in the educational system. Definitions and lack of definitions of treasonable or seditious words or acts and criminal anarchy were at issue. In our opinion, the case has no relevance or persuasive force on the issue that appellant urges here.

The same is true of the case of Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469 (1966), where the United States Supreme Court declared unconstitutional a Kentucky statute proscribing the offense of criminal libel.

One of the arguments used in support of this issue is directed to the alleged vagueness of the phrase “to deliberate toward a decision” found in the definition of “meeting”, T.C.A. § 8-4402. The definition is as follows:

“ ‘Meeting’ means the convening of a governing body of a public body for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter. Meeting does not include any on site inspection of any project or program.”

Appellant insists that the failure of the Legislature to define what it means “to deliberate” will lead to differing opinions among men of common intelligence and will result in an abridgment of the right of free speech. We disagree. Most of what we have said with respect to the failure to define public body is an adequate response to appellant’s contention. In addition, it is our opinion that members of public bodies will face very few situations, if any, in which they cannot be aware of the existence or non-existence of a quorum and whether or not they are in the course of deliberation toward a decision on policy or administration affecting the conduct of the business of the people. The probability that individuals or courts may disagree on the application of a statute in close factual situations, is wholly insufficient to support a charge of unconstitutional vagueness. Most Legislative Acts present problems involving borderline application.

Appellant insists that the body of the Act is broader than its caption in violation of Article 2, Section 17, Constitution of Tennessee. Appellant argues that the caption gives no indication that public notice of meetings will be required, or that actions in violation of the Act will be voided; that the caption refers to “government bodies,” but the body of the Act includes “public,” “governmental,” and “governing bodies.”

In Truss v. The State, 81 Tenn. 311 (1884), it was said:

“Whatever is of sufficient import to direct the mind to the subject of proposed legislation meets the object of the Constitution.” 81 Tenn. at 312.

In Kizer v. State, 140 Tenn. 582, 205 S.W. 423 (1918), this Court quoted with approval the following from the United States Supreme Court case of Montclair v. Ramsdell, 107 U.S. 147, 2 S.Ct. 391, 27 L.Ed. 431 (1883):

“ ‘It is not intended to prohibit the uniting in one bill of any number of provisions having one general object fairly indicated by its title. The unity of the object must be sought in the end which the legislative act proposes to accomplish.’
The unity of the subject is to be looked for in the ultimate object of the statute; it cannot with reason be held that each step towards the accomplishment of an end or object should be embodied in a separate act, and so long as the steps are of the same general nature and legitimately parts of one system, end, or object, the act is constitutional.” (citations omitted). 140 Tenn. at 590, 205 S.W. at 425.

In Memphis Street Railway Company v. Byrne, 119 Tenn. 278, 104 S.W. 460 (1907), the rule applicable to the issue before us in this case was stated succinctly:

“When a statute has but one general object or purpose, the subject is single, however multitudinous may be the means or instrumentalities provided for effecting that purpose.” (citations omitted). 119 Tenn. at 299, 300, 104 S.W. at 465.

Also relevant to the present inquiry is the following from Davis v. Hailey, 143 Tenn. 247, 227 S.W. 1021 (1920), Chief Justice Green, writing for the Court said:

“So far as section 17, article 2, is concerned, if the various provisions of an act are directed toward a common purpose, and that purpose is expressed in the title, it would make no difference if the several provisions of the act involved all powers of the Legislature. This section of the Constitution regulates the syntax of statutes. It imposes no restriction upon the powers exerted, nor upon the commingling of such powers, so long as the provisions of the statute are not incongruous and are germane to the subject expressed in the caption.” 143 Tenn. at 252, 227 S.W. at 1022.

We agree with the observation of Mr. Justice Burnett in Cosmopolitan Life Insurance Company v. Northington, 201 Tenn. 541, 300 S.W.2d 911 (1957), that:

“We gather from reading the many authorities under this Section of the Constitution that if the subject is properly set out in the caption that it is not necessary to give details. If the body of the Act deals with the matter which is germane to the subject expressed in the caption then the Act is constitutional.” 201 Tenn. at 550, 300 S.W.2d at 915.

It is evident to this Court that all of the details of the Act are germane to the object expressed in the caption and are germane to one another. We have no difficulty in deciding that the terms “public,” “governmental” and “governing bodies” included in the Act fall within the broader term government bodies in the caption. See Witt v. McCanless, 200 Tenn. 360, 292 S.W.2d 392 (1956).

Raton Public Service Company v. Hobbes, 76 N.M. 535, 417 P.2d 32 (1966) provides some support for the view we take upon the issues of vagueness and alleged deficiencies in the caption.

The Raton Public Service Company was a corporation organized under the general incorporation laws of New Mexico to operate the electric utility system in the City of Raton. The stock was in the name of three trustees who held it for the sole benefit of the City. The company was governed by a five (5) man Board of Directors, three (3) of whom were elected by the trustees, and the other two (2) were the Mayor of Raton and one City Commissioner elected by the City Commission. A city ordinance required that all income and revenue from the operation of the system above the expenses of operation and maintenance should be paid to the city treasury every month.

It was the position of the Public Service Company that it was not covered by the Open Meetings Act, but that if it was found to be, then the Act was unconstitutional because the body of the Act was broader than the caption, and because the language of the Act was described as indefinite, vague and uncertain.

The caption of the New Mexico Act, relevant to the issue in said case, reads: “An act relating to public meetings of all governing bodies of the state which are supported by public funds . . . ” 417 P.2d at 33.

The language of Section 1 embraced the governing bodies of all municipalities, boards of county commissioners, boards of public instruction and all other governmental boards and commissions of the State or its subdivisions.

The Supreme Court of New Mexico rejected the contention of the utility that it was not a governing body. That Court found from the object and spirit of the entire Act that the utility was a governmental board of a subdivision of the State.

The argument was advanced that the body was broader than the caption in that the caption did not include governing bodies of local subdivisions of the State. That issue was disposed of by the Supreme Court of New Mexico by simply interpreting the language used in the caption, to-wit: “governing bodies of the State” as meaning “governing bodies within the State” rather than “State governing bodies.”

Applying the same fundamental principles of statutory construction which we have alluded to heretofore, the Supreme Court of New Mexico had no difficulty in concluding that its Open Meetings Act was not vulnerable to the attack made against it on the ground that it was so vague, indefinite and uncertain as to deny due process of law.

Finally, appellant contends that the Legislature’s failure to allow closed meetings under any circumstances renders the law unreasonable and arbitrary.

In support of this issue, appellant insists there are some matters which ought not to be discussed and decided in open meetings. Its list includes the discussion of security measures or means of quelling civil disorders, matters within the attorney-client privilege, collective bargaining negotiations, prospective land purchases by public agencies, the hiring-firing and discipline of public employees, School Board disciplinary actions and a School Board hearing conducted pursuant to the authority of T.C.A. § 49-1417 involving tenured teachers such as Dark.

After stating that, appellant does not suggest it is for this Court to determine which of these matters or others ought to be decided in closed session, it is urged that “. . . failure to recognize the need for some matters to be decided in closed meetings is Legislative overkill sufficient to render the law unreasonable and arbitrary.”

Appellant cites in support of this proposition, City of Miami Beach v. Berns, 245 So.2d 38 (Florida 1971). Florida is one of two states other than Tennessee whose Open Meetings Act provides no exceptions under which closed meetings may be held. The Florida Supreme Court has express jurisdiction to pass on questions certified to it. In Berns the question certified was whether or not under the Florida Open Meetings Act, city councils could hold informal executive sessions for the discussion of condemnation matters, personnel matters, pending litigation or any other matter relating to city government. Appellants rely on the single sentence from Berns that: “In this area of regulating, the statute may push beyond debatable limits in order to block evasive techniques.” 245 So.2d at 41.

To place the sentence in context, we quote the two paragraphs that precede it:

“The Legislature did not intend to muzzle lawmakers and administrative boards to an unreasonable degree. It would be contrary to reason and violate the right of free speech to construe the law to prohibit any discussion whatever by public officials between meetings. The practice of discussing politics and government is part of our American heritage enjoyed by public officials and private citizens. The evil of closed door operation of government without permitting public scrutiny and participation is what the law seeks to prohibit. If a public official is unable to know whether by any convening of two or more officials he is violating the law, he should leave the meeting forthwith.
It is the law’s intent that any meeting, relating to any matter on which foreseeable action will be taken, occur openly and publicly.” 245 So.2d at 41.

We find nothing in the Berns case that persuades us that the Tennessee Act has pushed beyond debatable limits to block evasive techniques.

Appellant compares the hearing provided for a tenured teacher to a jury trial. We are not impressed with the analogy. A tenured teacher is entitled to judicial review of the action of the Board.

We are aware that the Open Meetings Act has far reaching implications, and that there are many well informed persons in addition to appellant who insist that in certain respects it is detrimental to the public interest that closed meetings cannot be held for certain deliberations and decisions.

If experience should prove that the public interest is adversely affected by open meetings involving pending or prospective litigation, disciplinary hearings, promotion and demotion decisions, prospective land purchases, labor negotiations, etc., it is the Legislature, not the Judiciary, that must balance the benefits and detriments and make such changes as will serve the people and express their will. In our role as guardians of the Constitution, we find the Act free of defect of constitutional proportions.

The decree of the Chancery Court is affirmed. Costs are adjudged against the appellant.

HENRY and BROCK, JJ., and McCANLESS and PARROTT, Special Judges, concur.


author: HARBISON, Justice. HENRY, Justice

text:
    CAPRI ADULT CINEMA et al., Petitioners, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    March 22, 1976.

      Frierson M. Graves, Jr., and Michael F. Pleasants, Memphis, for petitioners; Heis-kell, Donelson, Adams, Williams & Kirsch, Memphis, of counsel.
    R. A. Ashley, Jr., Atty. Gen., William C. Koch, Jr., Asst. Atty. Gen., Noel R. Bag-well, Dist. Atty. Gen., for respondent.
   OPINION

HARBISON, Justice.

Petitioners, together with a codefendant Earl L. Heath, were named in seven indictments, returned on February 21, 1973, charging them with violation of T.C.A. §§ 39-3003 et seq., a portion of the then obscenity laws of the state.

After plea bargaining, petitioners entered a plea of guilty to one of the indictments and expressly agreed for the trial court to fix the sentence. Sentence was imposed under this indictment, fixing separate fines upon the corporation and the individual petitioners. The latter also received a jail sentence, which was suspended.

As the result of the plea bargaining, a nolle prosequi was entered as to a codefend-ant of the petitioners, Earl L. Heath. All of the films which were the subject of the indictments in all of the seven cases were “released to the Sheriff’s Department to be destroyed by the said department,” according to the final judgment in the record before us. The other six indictments against the petitioners and their codefend-ant were dismissed as the result of the agreement reached between the parties.

The final judgment referred to was entered on January 8, 1974. No motion for a new trial was filed and no appellate review sought, and at the end of thirty days the judgment became “final”, in the parlance of state practice and procedure. Only a technical record has been filed before this Court, but it is stated in briefs of counsel that the fine imposed in the final judgment was immediately paid. The one-year probation provided for the individual petitioners in connection with their suspended sentence has expired, so that the sentence imposed upon the petitioners has been fully executed according to its terms.

On December 20, 1973, more than two weeks prior to the entry of the guilty plea, petitioners had filed a motion for a continuance, alleging that the constitutionality of the obscenity statute under which they were indicted was then under consideration in the Tennessee Supreme Court, in another case, the style of which was cited in the motion. The record reveals that this motion for continuance was overruled on December 26, 1973. On December 28, 1973 petitioners filed a second motion for a continuance, again referring to the constitutional question pending in this Court. In the alternative petitioners asked the trial court to respond to a series of questions as to the test for obscenity which would be applied in their trial, which was set on January 8, 1974. No order in response to this motion appears in the brief technical record filed before us, but we assume that this supplemental motion was also denied, since on January 8, 1974 an order was entered, signed by the petitioners individually and by their counsel, as follows:

“After being advised of all rights regarding the Court fixing a fine in excess of $50.00, the Defendants expressly waive all constitutional provisions and agree for the Court to fix a fine in excess of $50.00.”

On the same date the final judgment previously referred to was entered.

Some forty-two days later, on February 19, 1974, this Court rendered an opinion in the case which had been referred to in the motion for continuance, Art Theater Guild, Inc. v. State ex rel. Rhodes, 510 S.W.2d 258 (Tenn.1974), holding the statute under which petitioners were indicted to be unconstitutionally vague and overbroad. Responding to a petition to rehear, the Court filed a supplemental opinion on May 6,1974, in which the Court indicated that its ruling should be applied retrospectively as well as prospectively. Thereafter, petitioners in the present case took no action in the trial court.

On January 6,1975, two days prior to the anniversary date of the guilty plea, petitioners filed a petition for writ of error in the Court of Criminal Appeals, seeking reversal of their guilty plea and the vacation of their sentence, together with restitution of the fines paid, in reliance upon the ruling of this Court in the Art Theater Guild case.

The Court of Criminal Appeals denied the petition, holding that there had been an implicit waiver of the right to appellate review in the plea bargaining process and the resulting guilty plea. We granted cer-tiorari to give further consideration to this question.

It is suggested in the brief for petitioners that the guilty plea entered in the case was not entirely “voluntary”, but there is a complete absence of any eviden-tiary record to sustain any such suggestion. Of course, it is elementary that if a guilty plea is entered through coercion, fraud, duress or mistake, appropriate relief, may be obtained. The only argument advanced suggesting that the plea was involuntary, however, in the present case is that the petitioners were facing trial with the possibility of much larger fines or greater terms of imprisonment than were actually imposed. This, of course, is present in almost every plea bargaining situation with a resulting guilty plea, and, in itself, is wholly insufficient to sustain any suggestion that the guilty plea was “involuntary” as that term has been used in cases granting relief from such a plea.

As previously stated, no evidentiary record of any sort was filed in support of the petition for writ of error, nor are there any affidavits or other material upon which a finding of involuntariness could be predicated.

Stripped of any issue as to the voluntary nature of the guilty plea, therefore, the question which remains for consideration is whether or not appellate review can be sought of this guilty plea, when the sentence imposed thereunder has been fully and finally executed, upon the sole ground that the criminal statute upon which the indictment was based was subsequently declared unconstitutional.

We are of the opinion that the Court of Criminal Appeals was correct when it determined that there was an implied waiver of the right of appellate review by the proceedings reflected in this record. The guilty plea was entered at a time when it was known by all parties that the statute upon which the indictments rested was being challenged. The statute had been sustained by the Court of Criminal Appeals, and had originally been upheld by this Court. On appeal, however, the United States Supreme Court had remanded the case for reconsideration in light of its decision in the case of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). The case had been re-argued in this Court. The decision was pending at the time when the guilty plea in the instant case was entered.

It thus appears that the petitioners deliberately and knowingly dealt with the State on the strength of a statute whose constitutionality was being challenged, and accepted the benefits of their plea bargaining, including the dismissal of six of seven indictments as to all of them and the complete dismissal of the charges as to their codefendant, suspended jail sentences, and fines much less than those with which they were faced had they stood trial.

Petitioners concede that ordinarily there can be no appeal from a plea of guilty. This principle has been stated in a number of cases in this state. See Ray v. State, 224 Tenn. 164, 451 S.W.2d 854 (1970); Mclnturff v. State, 207 Tenn. 102, 338 S.W.2d 561 (1960); Washington v. Tollett, 4 Tenn.Cr.App. 296, 470 S.W.2d 841 (1971).

Petitioners insist, however, that none of these eases involved a constitutional issue, and it is their insistence that when an underlying criminal statute is declared unconstitutional, subsequent to a guilty plea, then appellate review may be sought to vacate the guilty plea and resulting sentence, without any resort to the trial court whatever.

Some authority for recovery of fines in such situations is cited in the brief of petitioners, principally federal cases resting upon the Tucker Act, 28 U.S.C.A. § 1346, although all of these differ procedurally from the present case.

We have already noted that the judgment in the present ease became final, and not subject to the ordinary method of appellate review in criminal cases, which is an appeal in the nature of writ of error. Since no steps were taken within thirty days after the entry of the judgment on the guilty plea, this method of appellate review was no longer available to the petitioners.

Tennessee still preserves the older writ of error as a method of appellate review, T.C.A. §§ 27-601 et seq. This method of review is available in criminal cases. T.C.A. § 40-3402. Under it, appellate review may be sought as late as two years from and after the final judgment in the trial court. T.C.A. § 27-605. This does not mean, however, that judgments in either civil or criminal cases remain open or unsettled for any such length of time, and separate application must be made to the appellate court in order to supersede any judgment of a trial court which has become final by passage of time and is no longer subject to the regular methods of review by appeal or by appeal in the nature of writ of error. No supersedeas was obtained in this case.

Although the constitutional issue upon which petitioners now seek to vacate their judgment was known to them, they did not present it for determination to the trial judge, but instead plea bargained with the State upon the basis of the existence of the criminal statute in question and agreed to the imposition of penalties thereunder. This case is therefore not analogous to cases in which a criminal defendant has unsuccessfully litigated a constitutional issue and has been convicted upon the basis of a statute which is subsequently declared unconstitutional. We do not consider such cases controlling here.

The principle is well settled in civil litigation that when parties have dealt with each other at arms’ length upon the basis of an unconstitutional statute, they are bound by the results of their actions. Thus in the Case of Roberts v. Roane County, 160 Tenn. 109, 123, 23 S.W.2d 239, 243 (1929), after citing a number of cases, the Court said:

“The authorities cited do not question the general rule, that an unconstitutional statute is not a law, does not of itself confer any rights, duties or obligations, and is ‘in legal contemplation, as inoperative as though it had never been passed.’ . But it is recognized that parties may so deal with each other upon the faith of such a statute that neither may invoke the aid of the courts to undo what they themselves have done.”

See also State v. Hobbs, 194 Tenn. 323, 333, 250 S.W.2d 549 (1952).

In the case of Moore v. Lawrence County, 190 Tenn. 451, 230 S.W.2d 666 (1950), the same principles were applied in a case involving a criminal fine. There the appellant had pled guilty in a criminal proceeding in a general sessions court, and had paid his fine. Subsequently, over two years later, he filed a separate suit in the chancery court to recover the fine, claiming that the general sessions court was without constitutional- authority to levy the fine in question. Both the trial court and this Court concurred in dismissing the suit. The Court said:

“If the settlement of the case in the General Sessions Court was illegal (we do not find it necessary to decide that it was, or was not), the Complainant was a willing party to the illegality, and so is not entitled to relief in equity since he has enjoyed the fruit of his wrongdoing; and if, on the other hand, the settlement was legal, it was final and binding on the Complainant.” 190 Tenn. at 454, 230 S.W.2d at 668.

A similar result was reached by the United States Supreme Court in the case of U. S. v. Gettinger, 272 U.S. 734, 47 S.Ct. 276, 71 L.Ed. 499 (1927), where, at the time of paying a fine under a plea of nolo conten-dere, the defendants expressly sought to reserve the question of the constitutionality of the statute under which the fine was imposed. In a subsequent proceeding to recover the fine, relief was denied by the Court. Although this case has been cited and efforts made to distinguish it in decisions of federal district and intermediate appellate courts, our research does not indicate that it has ever been overruled or modified by the United States Supreme Court itself. The subsequent decisions turn on the language or provisions of the Tucker Act, supra, other than those cited by the United States Supreme Court in its opinion.

As previously stated, the Court of Criminal Appeals concluded from such facts as appear from the technical record in this case that petitioners waived their right to seek appellate review of their guilty plea. Our review of the record leads us to the same conclusion. Indeed, the regular method of review on appeal was precluded by the passage of time before the constitutional issue on which the present appeal is predicated had ever matured, since the petitioners themselves deliberately refrained from presenting it to the trial judge by the procedure followed. No supersedeas was ever sought or obtained in connection with the petition for writ of error, which was timely filed, so that the judgment of the trial court, including the probationary period for the suspended sentence, became fully executed by payment of the fine and by lapse of time.

We are cognizant of statements found in the cases of this and other states that an unconstitutional criminal statute is “void from the date of its enactment”, and that there can be no valid conviction thereunder. See State v. Dixon, 530 S.W.2d 73, 74 (Tenn.1975); State v. Collins, 528 S.W.2d 814, 817-818 (Tenn.1975). We further recognize that as a general rule, constitutional issues may be raised for the first time on appeal. Veach v. State, 491 S.W.2d 81 (Tenn.1973).

Since we have concluded that there was an implicit waiver of the right of appeal by the conduct of petitioners, however, and since the petitioners took no action in the trial court to seek relief from the judgment there before it was fully executed, we do not consider that the principles of those cases mandate the granting of relief in the present case.

We do not mean to suggest that persons situated as petitioners would necessarily be without a remedy in the trial court in every case. Recovery of a fine voluntarily paid is seldom allowed even if the fine is illegally assessed, 36A C.J.S. Fines § 17, absent a specific statutory provision authorizing it. Relief is more readily obtainable for an unexpired jail or prison sentence, if application is made prior to full execution of the sentence.

Ordinarily, in either civil or criminal litigation, relief is obtained by application to the trial court when the occasion for relief arises or is discovered after the time for regular appellate review has elapsed. Rule 60 of the Rules of Civil Procedure provides for such relief in civil cases under the circumstances therein set out. T.C.A. § 40-3802 provides for post-conviction relief on constitutional issues in criminal cases prior to completion of a sentence and after the expiration of the time for perfecting an appeal in the nature of a writ of error. T.C.A. § 40-3411 permits the filing of a petition for writ of error coram nobis in criminal cases within one year after judgment and includes as ground for relief “errors dehors the record and . . . matters that were not or could not have been litigated on the trial of the case, on a motion for new trial, on appeal in the nature of a writ of error, on writ of error, or in a habeas corpus proceeding.”

We note that in each of the cases cited by the petitioners in their brief, where recovery of a fine was permitted following a guilty plea and subsequent determination of the unconstitutionality of the criminal statute, post-conviction proceedings were instituted in the trial court, in the nature of a petition for writ of error coram nobis or by motion to withdraw the guilty plea, terminate probation and obtain remission of the fine. Coram nobis procedures were used in the federal cases cited by petitioners, and a motion was used in the case of People v. Weintraub, 20 Ill.App.3d 1090, 313 N.E.2d 606 (1974).

Tennessee statutes permit “courts in which a cause is finally adjudged” to release defendants from fines “either before or after final judgment, for good cause . . . .” T.C.A. § 40-3202.

Whether any of the foregoing remedies in the trial court would have been available to these petitioners under the circumstances of this case is a matter we do not decide, because petitioners never utilized any of them. We merely hold that the relief sought cannot be obtained upon writ of error, under the facts shown in this record.

The judgment of the Court of Criminal Appeals is affirmed at the cost of petitioners.

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

HENRY, J., dissents.

HENRY, Justice

(dissenting).

I respectfully dissent.

I.

The Tennessee obscenity statutes incorporated in Section 39-3001, T.C.A., et seq., as they existed at the time the indictment was returned in this case, were declared unconstitutional and void by this Court in 1974 in Art Theater Guild, Inc. v. State ex rel. Rhodes, 510 S.W.2d 258 (Tenn.1974). In plain terms this decision was given both retroactive and prospective application.

Since the convictions in these eases were obtained pursuant to guilty pleas while the old obscenity law was in effect, first consideration must be directed to the validity of a conviction under an act subsequently declared unconstitutional. I regard this as the threshold issue and one of controlling significance. This issue was not addressed by the Court of Criminal Appeals, and the opinion of my colleagues only gives it a broad brush treatment.

It is a general rule of law that “an unconstitutional statute is not a law, does not of itself confer any rights, duties, or obligations, and is ‘in legal contemplation, as inoperative as though it had never been passed.’ ” State for Use and Benefit of Lawrence County v. Hobbs, 194 Tenn. 323, 250 S.W.2d 549 (1952) quoted with approval in O’Brien v. Rutherford County, 199 Tenn. 642, 288 S.W.2d 708, 710 (1956).

The late Justice Chambliss, speaking for the Court in Henry County v. Standard Oil Co., 167 Tenn. 485, 71 S.W.2d 683 (1934) declared:

It is well settled that an unconstitutional act is not a law, and imposes no obligations and confers no right of recovery. It is “inoperative as though it had never been passed.” 167 Tenn. at 486, 71 S.W.2d at 684.

In 16 Am.Jur.2d, Constitutional Law, Section 177 (1964) the rule is stated thusly:

The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it, an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.

In In re Boyd, 189 F.Supp. 113 (M.D.Tenn.1959) Judge Miller, now serving on the Sixth Circuit bench, held that where a “statute itself is void it must necessarily follow that all proceedings under the statute are also void, including the indictment, the conviction, and the sentence imposed by the court.” 189 F.Supp. at 116.

I would hold that the convictions of the petitioners were void ab initio and that the resulting punishments were invalid as a matter of law.

II.

I next address the insistence of the State, and the holding of the Court of Criminal Appeals, that there may be no appeal from a plea of guilty. With this general proposition of law I find no fault.

It is undoubtedly the law that a plea of guilty, understandingly and voluntarily entered into on the advice of counsel, constitutes an admission of all facts alleged and a waiver of all non-jurisdictional and procedural defects and constitutional infirmities, in any prior state of the proceeding. Shepard v. Henderson, 1 Tenn.Cr.App. 694, 449 S.W.2d 726 (1969).

But this general rule of law cannot operate to validate a guilty-plea conviction under an unconstitutional act.

In 21 Am.Jur.2d, Criminal Law, Section 495 (1965), it is said:

An accused, by pleading guilty, waives all defenses other than that the accusatory pleading charges no offense, that is, he admits only the acts well-pleaded in the charge, and is not precluded from claiming that such facts do not constitute a crime. (Emphasis supplied).

Nor is it an unyielding rule that a plea of guilty precludes an appeal.

For the general proposition that “no appeal lies from a plea of guilty”, the majority opinion cites McInturff v. State, 207 Tenn. 102, 338 S.W.2d 561 (1960). We agree that this case stands as authority for the proposition that “no one can appeal either in a criminal or a civil case from a verdict on a plea of guilty or a judgment based upon confession of liability.” 338 S.W.2d at 563. But this rule presupposes a valid conviction.

Also cited is Ray v. State, 224 Tenn. 164, 451 S.W.2d 854 (1970). There the court was dealing only with the right to a new trial after a voluntary, knowledgeable and competently-counselled guilty plea and where there was no question as to the constitutional basis for defendant’s conviction.

Lastly, reliance was placed upon Washington v. Tollett, 4 Tenn.Crim.App. 296, 470 S.W.2d 841 (1971), a juvenile case which, in my view, has no relevance to this controversy-

These cases simply do not address the precise issue under consideration. We are cited to no Tennessee case having a direct bearing. Many reiterate the proposition that a plea of guilty, understandingly and voluntarily made, on the advice of counsel, constitutes an admission of all facts alleged and a waiver of all non-jurisdictional and procedural defects and constitutional infirmities, if any, in any prior stage of the proceeding. See, e. g., State v. Cook, 479 S.W.2d 823 (Tenn.Crim.App.1972). That this is a sound rule of law there can be no doubt; however, a conviction under an unconstitutional penal statute is neither “non-jurisdictional” nor “procedural” nor is it a “constitutional infirmit[y] ... in any prior stage of the proceeding.”

I agree that federal authorities, for the most part, are not appropriate since many of them arise under the Tucker Act, 28 U.S.C. Section 1346(a)(1), which specifically authorizes repayment of a “penalty claimed to have been collected without authority . under the internal-revenue laws.” See, e. g., DeCecco v. United States, 485 F.2d 372 (1st Cir. 1973). Federal cases, however, are pertinent to the extent of their rationale and reasoning.

In United States v. Puncsak, 146 F.Supp. 523, 16 Alaska 527 (1956), it is asserted that the general rule is that a defendant’s plea of guilty does not preclude him from later asserting that the admitted facts do not constitute a crime.

We are cited to Aired v. Henderson, 406 F.2d 743 (6th Cir. 1969) for the proposition that there can be no appeal from a guilty-plea conviction. There the court was deal-mg with a defendant who voluntarily pleaded guilty to murder in return for a ninety-nine (99) year sentence in order to escape the electric chair. The question of the constitutionality of the statute under; which he was indicted was not at issue.

I would hold that a plea of guilty, knowingly and voluntarily made, constitutes an admission of all facts alleged in the indictment and is a waiver of all non-jurisdictional and procedural defects and constitutional infirmities in any prior stage of the proceeding; but that such a plea does not preclude a subsequent insistence that such facts do not constitute a crime or that the statutory predicate of the indictment is unconstitutional and void; nor does a plea of guilty preclude an appeal under such circumstances. A conviction under an unconstitutional act is wholly void and it may be challenged at any stage of the proceeding and is subject to appellate review.

III.

Lastly there remains for consideration the matter of the remission of the fine. Since (1) petitioners were convicted under a void statute, after their motion for a continuance was improvidently overruled and at a time when all concerned knew of the impending decision as to the constitutionality of the statute; (2) their conviction was void ab initio and the resulting punishments were invalid; and (3) they had the right to seek appellate review, it follows as a matter of fundamental fairness that they are entitled to be made whole financially.

In this connection, we point out that this is the only avenue of relief open to them. Direct suit does not lie against the State under the present status of our law relating to sovereign immunity.

In disposing of a case involving an analogous factual situation, i. e., applicable statute subsequently held unconstitutional, the Illinois Court of Appeals, in the recent case of People v. Weintraub, 20 Ill.App.3d 1090, 313 N.E.2d 606 (1974) said:

Holding that a law is unconstitutional is quite different from holding that a defendant has not received constitutional treatment under a law. In the latter case the law is still there. He may be guilty, though certain of his rights may have been overridden. But, if the law is unconstitutional, there is no law and there can be no question about proper procedures for protecting his rights under the law because in theory his rights have never been threatened or affected, and he should be placed in the position he occupied before he was arrested. 313 N.E.2d at 608.

We are impressed with the reasoning of the court in United States v. Lewis, 342 F.Supp. 833 (E.D.La.1972) which involved the remission of a fine paid under an unconstitutional law. The court said:

The Fifth Amendment prohibition against the taking of one’s property without due process of law demands no less then the full restitution of a fine that was levied pursuant to a conviction based on an unconstitutional law. Fairness and equity compel this result, and a citizen has the right to expect as much from his government, notwithstanding the fact that the government and the court were proceeding in good faith at the time of prosecution. 342 F.Supp. at 836.

This Court has broad and inherent equitable powers. Among the considerations this Court must keep foremost in mind in exercising its appellate function are:

To give a healthy tone to the practice of the lower courts, and the general jurisprudence of the State.
sfc * * * * #
[and to make] our jurisprudence . more consonant to the essential requirements of perfect justice. Section 1377, note 17, Gibson’s Suits in Chancery (5th ed.)

Perfect justice, a healthy tone to our jurisprudence, and basic concepts of equity and fairness demand that we remedy the manifest injustice of acquiescing in a retention of a fine in a case wherein this very court has determined the statutory basis to be wholly and utterly void.

The State owes an obligation to “tote square”. The conclusion the majority reaches sacrifices justice upon the altar of procedural technicalities, and condones unjust enrichment under a void law, contrary to the dignity of the state and to the detriment of the essential requirements of perfect justice.

      . Pasha v. U. S., 484 F.2d 630 (7th Cir. 1973); U. S. v. Lewis, 342 F.Supp. 833 (E.D.La.1972), aff'd 478 F.2d 835 (5th Cir. 1973); DeCecco v. U. s., 485 F.2d 372 (1st Cir. 1973); U. S. v. Summa, 362 F.Supp. 1177 (D.Conn.1972).

      . See cases cited in footnote 1, supra.

      . Actually this case only struck down § 39-3007, T.C.A., but since this section contained the definition of obscene materials a declaration of its unconstitutionality left the remaining sections bereft of any criteria, and, therefore, this effectively invalidated the entire act. Sections 39-3001 to 39-3008 were repealed by Ch. 510 of the Public Acts of 1974 and were replaced by § 39-3010 — 39-3022 (Ch. 510, Tenn. Public Acts 1974; Adj.S.).

      . As a general rule a constitutional question may be raised at any time. Veach v. State, 491 S.W.2d 81 (Tenn.1973).