text:
    Joecephus WINSTON, Jr., Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 36864.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Feb. 10, 1976.

      James W. Huck, Huck, Hasten & LaBe-auxne, St. Louis, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for respondent.
   SIMEONE, Presiding Judge.

This is an appeal by movant-appellant, Joecephus Winston, Jr., from an order of the circuit court of the City of St. Louis entered May 7, 1974, overruling and denying without an evidentiary hearing his motion to vacate sentence pursuant to Supreme Court Rule 27.26.

On December 6, 1971, movant withdrew his plea of not guilty to murder in the second degree, § 559.020, RSMo 1969, and entered a plea of guilty to that offense. On the guilty plea, the trial court examined the movant, in the presence of his attorney, in great detail. After questioning the mov-ant, the trial court found that movant “knowingly, understanding^?, intelligently, and voluntarily” entered a plea of guilty, and the court found him to be guilty of the offense of murder in the second degree as charged. The state recommended a sentence of ten years, and after a pre-sentence investigation, movant was sentenced on January 20,1972, to ten years in the department of corrections, and given credit for “jail time.”

On May 7, 1974, movant filed his motion to vacate sentence contending that

“ ‘(a) The plea of guilty herein was the result of and predicated upon a plea bargaining session held by the trial judge [sic], the Circuit attorney, and movant’s attorney. Said plea bargaining session was held without the knowledge or consent of movant, and in his total absence.
‘(b) The plea of guilty herein was the exclusive result of the coercive tactics superimposed upon movant by his court appointed [attorney]; and therefore said plea was not voluntarily made after a full understanding of the nature of the charges against him.
‘(c) In accepting the plea of guilty aforesaid the trial judge did not make a competent determination that said plea was voluntarily made by movant.
‘(d) Contrary to the order of the Court, movant was not credited with all the time spent in jail.’ ”

On the same date the trial court overruled the motion because

“ . . . paragraph (a) is insufficient in law to warrant relief and is manifestly contravened on the record of the plea of guilty; that paragraph (b) is merely a conclusion of the movant and is contradicted by the record of the plea of guilty; that paragraph (c) is contradicted by the record of the plea of guilty, in addition to which the Court did make such a finding; that paragraph (d) is not a ground cognizable under Rule 27.26. . .”

Later and after two attorneys were appointed and were permitted to withdraw, the court on August 7,1974, appointed mov-ant’s present counsel for the purposes of appeal. On February 11,1975, counsel filed in this court a motion requesting additional time to file his notice of appeal. On February 25, 1975, this court granted appellant’s motion for leave to file a late notice of appeal and appellant was granted ten days to file his notice of appeal. Rule 81.07. Such a notice was filed on March 5, 1975.

Thereafter on March 13, 1975, movant filed with the trial court a motion to set aside the May 7, 1974 order of the trial court, contending that the motion was summarily denied “without an attorney being appointed to represent the Movant-Appel-lant and without the holding of an eviden-tiary hearing . . . .’’In this motion counsel requested that he be granted leave to file an amended motion on behalf of appellant. This motion was overruled.

Notwithstanding the order of the Chief Judge of this court granting movant additional time to file his notice of appeal, we are compelled to dismiss this appeal for the reasons that (1) the notice of appeal was not timely filed and (2) a special order of this court was not obtained within six months from the date of the final judgment. Rule 81.07.

A motion filed under Rule 27.26 is an independent civil action which is governed, so far as applicable, by the Rules of Civil Procedure, rather than by the Rules of Criminal Procedure. Rule 27.26(a); Lahmann v. State, 509 S.W.2d 791, 794 (Mo.App.1974); Brown v. State, 495 S.W.2d 690, 693 (Mo.App.1973). An order overruling a 27.26 motion is deemed a final judgment for purposes of appeal. Rule 27.26(j); State v. Gullett, 411 S.W.2d 227, 228 (Mo.1967). A judgment becomes final thirty days after its entry. Rule 81.05. A notice of appeal must be filed within ten days after the judgment or order becomes final. Rule 81.-04. However, “ a party seeking reversal of such final judgment may file a notice of appeal in the trial court, within 6 months from the date of such final judgment, if permitted to do so by a special order of the appropriate appellate court. .” Rule 81.07(a). The application made to this court requesting time to file a notice of appeal was not made until February 11, 1975, and the order granting such motion was not entered until February 25, long after the expiration of the six month period when the order overruling the motion became final. We hold that the governing Rule in motions to vacate sentence is Rule 81.07 and not Rule 28.07 and requires that the notice of appeal must be filed “within 6 months from the date of such final judgment . . ..”

The granting of the motion of appellant for leave to file a late notice of appeal by the Chief Judge on February 25, 1975 was therefore improvident. Our jurisdiction is limited to the period of six months after the judgment or order became final. Asher v. Thomas, 360 S.W.2d 957, 958 (Mo.App.1962).

Consequently, movant’s failure to file a timely notice of appeal and failure to obtain leave to file a notice of appeal out of time under Rule 81.07 requires us to dismiss the appeal. Gullett v. State, supra.

Ex gratia, we have reviewed the record of the guilty plea, the sentencing transcript, the motion to vacate, the briefs and authorities relied upon and the argument of appellant and find that the action of the trial court in overruling the motion was, on the merits, not “clearly erroneous.” Rule 27.-26(j).

The appellant in his brief contends that the court erred in (1) “summarily overruling the movant-appellant’s . . . motion to vacate . . . without first appointing counsel to assist the movant . thereon,” and (2) “denying the [movant’s] motion asking the court to set aside its previous ruling and to permit counsel to assist [him] in preparing an amended motion for relief.” He contends (1) that where “one’s freedom is in the balance and where an adverse ruling on matters before a Court will perpetuate the imprisonment of one seeking relief . . ., no action should be taken, absent a knowing and intelligent waiver, until competent counsel is provided for the party seeking relief . . ” and (2) that “[w]here there are clear indications of a need for legal assistance, a . . . 27.26 Motion filed pro se should not be acted upon until legal counsel has been appointed . . . and that counsel has had an opportunity to confer with the Mov-ant and to amend his Motion to include all grounds known for relief.”

In essence, appellant vigorously contends that (1) a trial court cannot take any action adverse to the movant on any 27.26 motion filed by a convicted defendant until counsel is appointed for the movant, and (2) when there is some indication for the need of a lawyer, any pro se 27.26 motion cannot be acted upon by the trial court until counsel is appointed and has had an opportunity to confer with the movant and to amend the motion.

In appellant’s argument, he states that the right to counsel has been recognized in several well-known decisions of the Supreme Court of the United States, and that these same decisions and “factors would be equally applicable where matters before the Court could result in the perpetuation of imprisonment of one seeking relief from that imprisonment.” Curiously, appellant cites no authority for this principle. He argues that when one’s freedom is “in the balance” no action should be taken until counsel is present to represent the person. “This is because the right to be heard is of little value if it is not a right to be heard in a meaningful manner.” If the movant is indigent then the court should “require that counsel be provided . . . .” In this cause it “should have been clear from the . Motion that he filed pro se that he does not possess any legal skill. . And, he faces the danger of continued imprisonment simply because he does not know how to establish his right to freedom.”

Appellant further, in the argument portion of his brief, contends that “[w]hile it will be conceded that the authority [sic] relied on would appear to support the position taken by the [trial] Court, it is contended here that the summary dismissal of the Motion was error.” He urges that where there are indications of a need for legal assistance a motion should not be acted upon until counsel is appointed. This position is urged because the way the present rule operates it deprives prisoners who are in need of legal assistance of that assistance, and limits appointment of counsel to those “situations in which the Movant has legitimate grounds for relief.” Such a system operates in a “discriminatory fashion against the less prolific but possibly equally deserving Movant.” And “[j]ust because this Movant has been unable to prepare a detailed dissertation is no reason to deny him the assistance of counsel or the right to be heard on his claims.”

Appellant’s contentions are in reality an attack on the wording and operation of Rule 27.26. As we understand his argument, he contends that, regardless of the contents of a 27.26 motion, the trial court should appoint counsel before acting or ruling upon the motion. Although the motion is pro se and regardless of the allegations, counsel must be appointed before action is taken by the trial court.

Under recent decisions, counsel must now be provided at a lineup, at a preliminary hearing in felony cases, at trial, on appeal, in misdemeanor cases, in some municipal violations, in juvenile cases, and at sentencing. And now appellant argues that counsel must be provided in all 27.26 motions because it discriminates against the “less prolific.”

The whole thrust of appellant’s brief is founded on the contention that the trial court must appoint counsel whether or not his motion alleged facts sufficient to entitle him to relief and must appoint counsel before making any ruling adverse to the mov-ant.

Appellant paints with much too broad a brush. We have not yet reached the point urged by the appellant. Rule 27.26 requires an evidentiary hearing “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief . . and requires the appointment of counsel only if “a motion presents questions of law or issues of fact . . ..” Rule 27.26(e) and (h).

The Well-settled rule in this state is that no evidentiary hearing is required, and hence counsel need not be appointed, where the motion does not plead facts which, if true, would entitle the movant to relief and the record of the guilty plea shows that the facts alleged are refuted by the record of the plea. Hogshooter v. State, 514 S.W.2d 109 (Mo.App.1974), and cases cited therein; Smith v. State, 513 S.W.2d 407 (Mo.banc 1974), cert. den. 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975); Lofiin v. State, 492 S.W.2d 770, 772-773 (Mo.banc 1973).

The rule determining whether an eviden-tiary hearing is required has been stated in Smith v. State, supra.

“A 27.26 movant, in order to be entitled to an evidentiary hearing, must plead facts, not conclusions, which, if true, would entitle him to relief and must show that such factual allegations are not refuted by facts elicited at the guilty plea hearing.” 513 S.W.2d at 411.

Neither is counsel required in every 27.26 motion. The Rule provides that “[i]f a motion presents questions of law or issues of fact, [then] the court shall appoint counsel immediately to assist the prisoner if he is an indigent person. . . .” Rule 27.26(h). The principle established in this state is that there is no right to counsel on a post conviction motion when (1) the contentions made in the motion have been adjudicated previously, or (2) the contentions could have been raised in a prior motion, or (3) the contentions are not cognizable under a 27.26 motion, or (4) where no evidentiary hearing is required. Smith v. State, supra; Duisen v. State, 504 S.W.2d 3, 5 (Mo.1974); Loflin v. State, supra, 492 S.W.2d at 773; State v. Miner, 498 S.W.2d 814, 816 (Mo.App.1973); Betts v. State, supra, 493 S.W.2d at 362; Perryman v. State, 506 S.W.2d 480, 483 (Mo.App.1974).

The Supreme Court of the United States has never held that the right to appointed counsel extends to post-conviction motions in all cases. Cf. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, 814 (1963).

We must conclude from all the authorities that where the record of the guilty plea is sufficient to show that a plea is made voluntarily with an understanding of the nature of the charge and the motion to vacate shows facts which are refuted by the plea, an evidentiary hearing is not required and the court is not required to appoint counsel. Loflin v. State, supra. We have not yet reached the point in our constitutional process where a post-conviction motion cannot be acted upon until legal counsel had been appointed for an indigent. There are still some matters in society which do not require the appointment of a lawyer.

Our review of the record persuades us that the files and records of the guilty plea were sufficient to conclusively show that the movant’s plea was made voluntarily with an understanding of the nature of the charge, and that movant is entitled to no relief by reason of his allegations in his motion to vacate.

Our review convinces us that the trial court was not clearly erroneous in (1) denying the motion to vacate without an evidentiary hearing and without appointing counsel and (2) in overruling the motion to set aside the order and to permit an amendment, after the appeal was taken, on the alleged ground that the motion was denied without an attorney being appointed.

However, because the notice of appeal was untimely filed and because the application for a special order of this court was not made and granted within six months after the judgment became final, the appeal is dismissed.

The appeal is dismissed.

KELLY and GUNN, Jr., JJ., concur.

      . The guilty plea transcript is indicative of the trial court’s compliance with Rule 25.04. At the time movant entered his plea of guilty, the trial court, prior to acceptance thereof and after the circuit attorney recited the facts, asked or informed the movant (a) whether he was under the influence of drugs or liquor; (b) whether he had been under medical care recently; (c) whether he was aware of his right to refuse to plead guilty; (d) whether he was aware of his right to a jury trial in which he would have the right to confront witnesses, the right to cross-examine witnesses and the right to refuse to testify without the state’s commenting on his refusal; (e) whether he understood the nature of the charge against him based on the facts which the state believed its evidence would show; (f) whether in fact he committed the offense; (g) whether his attorney had explained to him that the evidence might justify an instruction on a charge of manslaughter; (h) whether he was aware of the range of punishment for the charge for murder in the second degree; (i) whether anyone had threatened, intimidated, beaten or mistreated him as the result of which he was pleading guilty; (j) whether he knew that although there had been plea bargaining and although the court would carefully consider any recommendation made, the court was not bound by any recommendations and would feel free to impose a sentence which would be fair and reasonable under all the circumstances; (k) that the court did not authorize counsel to promise anything in the event that he pleaded guilty and a certain punishment would be imposed; (1) that the court had made no promises with respect to punishment, and whatever recommendations are made would not be binding on the court; (m) whether he was so nervous and apprehensive that he did not understand “what is going on today”; and (n) whether he understood that if, following a pre-sentence investigation, the court denied his application for probation, he could not use that as an excuse to withdraw his guilty plea.

      . Movant’s motion indicated that he had earlier filed a motion to vacate but because the earlier motion was prepared “by another inmate who apparently did not have the ability to adequately prepare said motion . . . the grounds herein was inadvertently ommitted (sic) from said motion.” The State admits that no earlier motion can be found.

      . Rule 28.07 authorizes an appeal to be filed out of time “within twelve months from the date of final judgment if a special order to do so has been first obtained from the appropriate appellate court.”

      . Cf. State v. Brookshire, 400 S.W.2d 61, 63 (Mo. 1966) —applied Civil Rule 82.07(a) [now Rule 81.07] to 27.26 proceeding; and State v. Warren, 344 S.W.2d 88, 90 (Mo.1961)—same.

      . Cf. Rule 73.01 Subsection 3, effective January 1, 1975.

      . This motion, of course, was made after the notice of appeal to this court was filed.

      . Where the record shows that the plea was made voluntarily and it shows that movant is not entitled to relief by reason of the matters alleged in the motion, an evidentia-ry hearing is not required, and it follows that the court is not required to appoint counsel. Loflin v. State, supra, 492 S.W.2d at 773.
      Where the files and records of the case conclusively show that petitioner is entitled to no relief as alleged in the motion, no evidentiary hearing is required. Betts v. State, 493 S.W.2d 361, 362 (Mo.App.1973).

      . “We are not here concerned with problems that might arise from the denial of counsel for the preparation of a petition for discretionary or mandatory review beyond the stage in the appellate process . We are dealing only with the first appeal, granted as a matter of right to rich and poor alike . ..” Douglas v. California, supra, 372 U.S. at 356, 83 S.Ct. at 816. (Emphasis original.)
      “It has not been held that there is any general obligation of the courts, state or federal, to appoint counsel for prisoners who indicate, without more, that they wish to seek post-conviction relief.” Johnson v. Avery, 393 U.S. 483, 488, 89 S.Ct. 747, 750, 21 L.Ed.2d 718 (1969).
      The constitutional requirement of counsel does not apply to a post-conviction motion. Juelich v. United States, 342 F.2d 29, 31-32 (5th Cir.1965); Ford v. United States, 363 F.2d 437, 437—438 (5th Cir. 1966); McCracken v. State, 518 P.2d 85, 90 (Alaska 1974); 21 Am.Jur.2d Criminal Law, supp., § 322 (1975).


source: Caselaw Access Project

author: DOWD, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Larry Dennis MURPHY, Defendant-Appellant.
    No. 36652.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 10, 1976.

      Joseph W. Warzycki, Asst. Public Defender, Charles D. Kitchin, Public Defender, James C. Jones, III, Robert O’Blennis, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Thomas C. Muldoon, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   DOWD, Judge.

Defendant appeals his conviction for assault with intent to kill with malice. § 559.180 RSMo 1969. He was sentenced by the trial court to 38 years imprisonment under the Second Offender Act. § 556.280 RSMo 1969. We affirm.

About 1:20 a. m. on October 18,1973, two men entered a liquor store in north St. Louis and asked a clerk for change for a one dollar bill. As the clerk prepared to give the change, one of the men pulled a revolver and shot and seriously wounded the clerk. The two men then fled.

On November 26, 1973, the victim viewed a police lineup and identified the defendant as the man who had shot him. At the trial the victim again identified defendant as his assailant.

The defendant’s alibi evidence was that he was playing cards with several other people at the time the shooting occurred.

Defendant’s first point on appeal concerns the following portion of the voir dire examination:

“DEFENSE COUNSEL: Would the fact you have a close friend who is a police officer hinder your ability to give a fair judgment in this case?
“VENIREMAN: No. But I do have a question. I have seen this young man around, so I’d rather not serve.
“THE COURT: You mean the prosecutor?
“VENIREMAN: No. This young man here.
“DEFENSE COUNSEL: You know the defendant?
“VENIREMAN: No, I don’t know him, but I’ve seen him around.
“DEFENSE COUNSEL: And because of this fact you don’t feel you could give a fair and impartial verdict?
“VENIREMAN: Right.”

Defense counsel moved for a mistrial or, in the alternative, for the venireman’s dismissal for cause. The court denied the motion for mistrial but did dismiss the venireman for cause.

The defendant contends the trial court erred in denying his motion for mistrial because the venireman’s statement “indicated to the entire jury panel by the manner in which it was stated that the defendant was an unsavory character. This so prejudiced and poisoned the entire jury panel that the defendant was prevented from receiving a fair trial from an impartial jury.”

The trial court has considerable discretion in ruling on challenges of jurors who are not disqualified as a matter of law. State v. Fields, 442 S.W.2d 30[7] (Mo.1969). In particular, the evaluation of the effect of a venireman’s comments upon the other prospective jurors, and the necessary remedies, are matters entrusted largely to the trial court’s discretion. State v. Turner, 462 S.W.2d 723[1] (Mo.1971).

Normally, the disqualification of an individual juror for an expression of an opinion, or for making remarks indicating bias, is not a sufficient ground for a challenge of the entire panel. State v. Turner, supra; State v. Taylor, 324 S.W.2d 643[9] (Mo.1959). In the instant case the venireman’s comments, on their face, do not necessarily reflect a personal disapproval of the defendant, but only the fact that he had seen the defendant before. The defendant maintains the venireman’s comments were uttered in such a manner as to indicate that he felt defendant was an unsavory character. The trial court, having heard both the venireman’s words and his tone of voice, was the best judge of any possible prejudicial impact on the jury.

The defendant contends the trial court should at least have instructed the jury panel to disregard the venireman’s remarks. This again was a matter for the trial court’s discretion after hearing the comments.

The trial court is in a much better position than this court to evaluate the effect upon others of a venireman’s voir dire comments, and the handling of the matter must be entrusted largely to its discretion. On the record before us, it has not been demonstrated that the trial court abused its discretion in refusing to grant a mistrial and in failing to admonish the jury panel. State v. Taylor, supra.

Defendant’s second point on appeal is that the trial court erred in denying his motion for acquittal at the close of the entire case because the state had failed to make a submissible case.

In determining whether a submissi-ble case was made, we must view the evidence most favorably to the state, consider the favorable inferences reasonably to be drawn therefrom, and reject evidence to the contrary. If there is substantial evidence to support the finding of the jury, it will not be disturbed on appeal. State v. Gamache, 519 S.W.2d 34[1] (Mo.App.1975).

In this case the defendant and his companion were in the liquor store for about four minutes before the shooting. During this time the victim viewed the two men. When the defendant approached the victim and asked for change, he was only about two feet from the victim, face-to-face. The victim had a clear view of the defendant’s face. The victim later positively identified the defendant as his assailant at a police lineup and at the trial.

These identifications convince us that a submissible ease was made for the jury, and the trial court did not err in denying defendant’s motion for acquittal at the end of the entire case.

Defendant’s final contention on appeal is that the trial court erred in failing to instruct the jury on the lesser included offense of assault with intent to kill without malice.

Defendant acknowledges this point has not been preserved for appeal by a timely objection or by inclusion in his motion for a new trial, but he asks us to review the point under the plain error doctrine. Rule 27.-20(c).

The plain error provision of Rule 27.20(c) is not available in matters relating to instructions unless the trial court has so misdirected or failed to instruct on the law of the case so as to cause manifest injustice. State v. Bridges, 491 S.W.2d 543[4] (Mo.1973); State v. Broomfield, 510 S.W.2d 843[1] (Mo.App.1974). Accordingly, we have carefully reviewed the trial record and considered the arguments asserted in defendant’s brief and we are convinced that the lack of an instruction on the lesser included offense did not result in manifest injustice.

The judgment is affirmed.

WEIER, P. J., and RENDLEN, J., concur.


author: HARBISON, Justice. HARBISON, Justice.

text:
    Mrs. La Nelle D. NORMAN, Petitioner, v. The TENNESSEE STATE BOARD OF CLAIMS, Respondent.
    Supreme Court of Tennessee.
    Dec. 15, 1975.
    Rehearing Denied Feb. 2, 1976.

      George R. Fleming, Marks & Fleming, Clarksville, for petitioner.
    Robert B. Miller, Asst. Atty. Gen., Secretary, Board of Claims, Robert B. Littleton, Asst. Atty. Gen., James M. Balthrop, Atty., Board of Claims, Nashville, for respondent; David M. Pack, Atty. Gen., Nashville, of counsel.
   OPINION

HARBISON, Justice.

This case involves an interpretation of a portion of the Tennessee Military Code of 1970, T.C.A. §§ 7-101 et seq. Also involved are some of the statutory provisions governing the Board of Claims, T.C.A. §§ 9-801 et seq.

Lieutenant Colonel Edward M. Norman, a member of the Tennessee National Guard, was killed in an automobile accident en route from his home to a scheduled military drill. He was survived by his widow, Mrs. La Nelle D. Norman, and two minor children. On behalf of these dependents, a claim was filed for statutory death benefits provided for members of the Tennessee National Guard, T.C.A. §§ 7-147, 9-808.

A board of military officers was duly convened, and they filed a report stating that the decedent met his death in line of duty. Their findings were approved and certified to the Tennessee Board of Claims by the State Adjutant General, as provided by T.C.A. § 7-147(3).

Upon recommendation of its staff attorney, the Board of Claims approved the claim and authorized payment to the family of decedent of the maximum benefits allowed by statute. As a condition precedent to the payment of the claim, however, the Board of Claims required that the petitioner execute in favor of the State of Tennessee a “Subrogation Agreement”, providing for reimbursement to the State of part of the amounts paid by it to the family of decedent, in the event a recovery was made from an alleged negligent third party.

Denying the authority of the Board of Claims to impose this condition upon its payment of her claim, petitioner executed the subrogation agreement under protest. She then appealed to the Court of Appeals, assigning as error the action of the State Board in requiring her to sign a subrogation agreement. Such an appeal is authorized by T.C.A. § 7-147(4).

In the Court of Appeals, counsel for the Board of Claims challenged the constitutionality of the statutory subsection just cited, upon the ground that it constitutes invidious class legislation, since National Guardsmen and their dependents are the only state employees or other claimants appearing before the Board of Claims for whom a statutory method of appeal is provided.

The Court of Appeals sustained the constitutional attack, held the appeal provisions of the Military Code of 1970 to be unconstitutional, and dismissed the appeal without discussion of the assignments of error made by the petitioner.

This Court granted certiorari. The issues here are the constitutionality of T.C.A. § 7-147(4) and the authority of the State Board of Claims to require the family of a guardsman to execute a subrogation agreement.

I. THE CONSTITUTIONAL ISSUES

The attack made by the Board of Claims and sustained by the Court of Appeals on the constitutionality of T.C.A. § 7-147(4) was predicated on the provisions of Article 11, Section 8, of the state constitution. This section prohibits the enactment of statutes for the benefit of individuals inconsistent with the general state law, and the passage of laws granting to individuals or groups any rights, privileges, immunities or exemptions “other than such as may be, by the same law extended to any member of the community, who may be able to bring himself within the provisions of such law.”

The Court of Appeals pointed out that the general statute governing decisions of the Board of Claims provides that the decision of the Board “upon any claim filed hereunder, shall be final.” T.C.A. § 9-814.

This statute, enacted in 1945, has been held to deny judicial review on the merits of decisions of the Board of Claims in cases falling within its jurisdiction. In Hill v. Beeler, 199 Tenn. 325, 286 S.W.2d 868 (1956), it was held that the courts of general jurisdiction could not entertain an action for declaratory judgment to determine whether or not a particular set of facts fell within the jurisdiction of the Board of Claims. In the case of Quinton v. Board of Claims, 165 Tenn. 201, 54 S.W.2d 958 (1932), construing earlier statutes governing the Board, it was held that the “statutory” writ of certiorari was not available to provide a de novo review of decisions of the Board of Claims in the circuit or chancery courts. (Williams Tenn.Code Ann., §§ 9008 et seq.; T.C.A. §§ 27-901 et seq.).

Contrary to the statement of the Court of Appeals in its opinion below, neither of these cases held, nor has any other case held, that actions of the State Board may not be reviewed under the “common law” writ of certiorari, T.C.A. §§ 27-801 et seq. Although the latter statutes provide only a very narrow review, based upon the record before an inferior tribunal, and only permit inquiry as to whether the action of an agency was arbitrary, illegal or beyond its jurisdiction, nevertheless the provisions thereof are quite broad. T.C.A. § 27-801 provides as follows:

“The writ of certiorari may be granted whenever authorized by law, and also in all cases where an inferior tribunal, board or officer exercising judicial functions has exceeded the jurisdiction conferred, or is acting illegally, when, in the judgment of the court, there is no other plain, speedy, or adequate remedy.”

We are not called upon in this case to decide whether decisions of the Board of Claims fall within the sweeping provisions of these statutes. On the surface at least, the Court perceives no reason why the decisions of the Board of Claims should be any more immune from limited judicial review under these statutes than the decisions of any other administrative agency of the State.

We recognize, of course, that in enacting the statutes governing the Board of Claims, the State, to the extent therein provided, modified its sovereign immunity. It subjected its treasury and assets to certain types of claims by its employees, to contract claims and to certain types of tort claims. We further recognize that the statutory provisions governing the Board of Claims have been strictly construed, in view of the fact that they do represent an encroachment upon the sovereign immunity and upon the assets of the State. Nevertheless, although the statutes purport to make the decisions of the Board final, no reason appears to us why judicial review should not be available to determine whether the Board did or did not in fact act within its jurisdiction, or whether it acted illegally or arbitrarily, under the very narrow review available from the decisions of boards and agencies under the “common law” writ of certiorari.

We further note that in the case of Daugherty v. S. & W. Construction Company, Inc., 196 Tenn. 357, 268 S.W.2d 94 (1954), a suit by taxpayers was sustained in the courts, successfully challenging the validity of a contract award made by the Board of Claims. Certain miscellaneous appropriations had been made by the General Assembly, subject to approval by the Board of Claims. In the case just cited, the Court held that a decision of the Board of Claims, construing a statute, was erroneous and subject to attack in the courts by taxpayers.

Accordingly, from our examination of the cases, decisions of the Board of Claims are not as completely immunized from judicial review as was indicated by the Court of Appeals in its opinion in the instant case. Certainly we agree that there are no general methods of judicial review on the merits provided by statute, but the Court of Appeals was in error in stating that this Court has in the past “held that the action of the Board is not even judicially reviewable by writ of certiorari.” (Opinion, p. 4).

The Tennessee Military Code now under consideration was enacted as Chapter 596 of the Public Acts of 1970. It is a comprehensive statute governing the military department of the state and deals with numerous aspects of the state National Guard, its organization, use and purposes.

The portions of the Military Code here under consideration are contained in T.C.A. § 7-147. These provide for compensation to members of the National Guard, or their dependents, in case of injury or death. The statutes direct, and not merely permit, the Board of Claims to pay benefits to National Guardsmen, or their families, when injury or death occurs in line of duty. They provide that no benefits shall be paid unless a board of military officers, after a full evi-dentiary hearing, finds that the deceased or injured guardsman was in line of duty at the time of the incident out of which a claim arises. The results of the findings of the Military Board are to be certified to the Board of Claims by the Adjutant General. If the guardsman was found by the Military Board to have been in line of duty, the only function of the Board of Claims is to determine any issue of dependency and the actual amount of compensation.

Subsection 4 of T.C.A. § 7-147 provides for review in the Court of Appeals of the action of the Board of Claims by any aggrieved guardsman or his beneficiary. The statute calls for a de novo review, based upon the record before the Board of Claims, and provisions are made as to the time for filing the request for review.

It was the opinion of the Court of Appeals that these special provisions for appellate review of decisions of the Board of Claims are unconstitutional, constituting invidious class legislation, on the ground that there is no reasonable basis for permitting judicial review of these particular claims, when all other claimants appearing before the Board are denied a general or broad appeal to the courts.

It is recognized in the brief of counsel for the Board of Claims that the Military Department of the State represents a classification upon which special statutory provisions may be based. The state constitution, Article 1, Sections 24 and 25, speaks of a “well regulated militia” and provides that no persons in the state shall be subjected to martial or military law “except such as are employed in the army of the United States, or militia in actual service . . .

The Military Code of 1970, including the appeal provisions here under consideration, is of general statewide application. National Guardsmen, of course, are subjected to special training, and they are subject to being called into service in various types of civil emergencies or natural disasters. There can be no question but that their status merits and affords a basis for special statutory classification, insofar as many aspects of their duties are concerned. They are afforded certain immunities from jury duty and service of process, not granted to the citizenry in general, and we do not believe that it could seriously be argued that these classifications are unreasonable.

While, of course, the General Assembly must have some reasonable basis for statutory classifications under the requirements of Article 11, Section 8, it enjoys great freedom and is afforded great liberality when dealing with remedies and procedures. Any survey of appellate procedure in this state will demonstrate that the General Assembly has provided many, varied and different procedures for the handling of different types of claims in the courts themselves. Under the provisions of T.C.A. § 16-408 the Legislature has provided for the handling of appellate review, in the first instance, of many types of civil cases in the Court of Appeals, while leaving other cases to be handled in this Court on direct appeal from the trial court. This statute, however, is by no means the only statute on the subject, and throughout the entire Code there are special provisions dealing with appeals in different kinds of cases. For example, in the recent Administrative Procedures Act, generally applicable to all State administrative agencies, provision is made for direct appeal to this Court from the trial court, even though many, if not most, of such cases would ordinarily fall within the general categories of T.C.A. § 16-408 and would be reviewed in the Court of Appeals. See T.C.A. § 4r-524. Similar provisions have been made for direct appeal to this Court in obscenity cases, decisions of beer boards, unemployment compensation cases, teacher tenure cases, licensing decisions of the welfare department, and others too numerous to cata-logue here.

Ordinarily, the allowance of a special method of review has been sustained against constitutional attack if there exists any plausible or reasonable legislative purpose for its enactment. A leading case on this subject is Kentucky-Tennessee Light & Power Company v. Dunlap, 181 Tenn. 105, 178 S.W.2d 636 (1944). Under consideration in that case was a statute which is now codified as T.C.A. § 65-487, providing for review of certain types of decisions of the Public Service Commission. This statute provides for initial review in the trial courts, with an appeal to the Court of Appeals. It then provides:

“and any appeal therefrom shall be perfected to the Supreme Court of Tennessee.”

In the Dunlap case, supra, it was contended that the latter statute, providing for a broad appeal to the Supreme Court from the Court of Appeals, contravened the general statutes of the state, which have long provided that the only method of review of a decision of the Court of Appeals in the Supreme Court is by petition for writ of certiorari. T.C.A. §§ 27-819 et seq.

This Court sustained the statutory provisions against an attack of invidious class legislation, finding the classification not to be arbitrary or unreasonable. 181 Tenn. at 116, 178 S.W.2d 636.

In the case of Chattanooga v. Keith, 115 Tenn. 588, 589, 94 S.W. 62, 63 (1905) the Court sustained a clause in a city charter denying appeals in certain types of small claims. It said:

“So, the authorities held that where the Constitution does not define the specific limits of appellate jurisdiction, this may be abridged or extended by the Legislature as public policy may require

In its opinion in the present case, the Court of Appeals relied heavily upon the unreported decision of this Court in the case of Shelton v. Olgiati, filed at Knoxville on November 16, 1954. There, a Private Act applicable only to the City of Chattanooga provided a special method of review of a local board of that city, contrary to the methods provided by the general law of the state. This Court held the statute unconstitutional. It contravened a general statute, which provided a different method of review for county or municipal employees under civil service. The Court found no reasonable basis for distinction in favor of the limited group of local employees.

We do not deem that case to be controlling here. As previously pointed out, the present statute applies to all National Guardsmen, or their dependents, in the entire state.

In the case of City of Chattanooga v. Harris, 223 Tenn. 51, 442 S.W.2d 602 (1969), this Court sustained a 1967 statute of statewide application, which provided special benefits for firemen and policemen, including requirements that local governments furnish counsel for the defense of damage suits brought against these persons and provide indemnification against judgments rendered in such cases.

The special hazards incident to these lines of employment, including unusual risks of liability, were noted, and the statutory provisions were deemed to represent a reasonable classification and to provide, in a sense, “fringe benefits” for persons in these hazardous pursuits.

It is, of course, true that other categories or groups of state employees may incur special hazards, or may require special training, not unlike National Guardsmen. It has seldom been held a basis for invalidating a statute, however, that its classifications embrace too few persons, or in effect represent under-classification, so long as there is a reasonable basis for the classification itself.

We are of the opinion that the General Assembly acted within the scope of its very broad authority in enacting the special procedural provisions applicable to National Guardsmen, here under consideration, and that the statute is not unconstitutional as representing invidious class legislation.

Although the matter has not been argued by the petitioner, this Court also entertains serious doubt as to the standing of the State Board of Claims to raise the issue. It is difficult for us to perceive any possible prejudice to the Board of Claims, either collectively or individually, in the allowance of an appeal from some of its decisions to the Court of Appeals.

There is a fundamental principle of constitutional law to the effect that persons attacking legislation on the premise of discriminatory classification must generally be within the class prejudiced by the enactment, or must have some other particular or special interest in the legislation not common to the general public. Generally, subordinate state officials or agencies are not free to question the constitutionality of acts of the General Assembly, unless those officials are in some way personally affected thereby, such as suffering loss of compensation or incurring possible personal liability by reason of acting under the statutory directive. It is very difficult for us to see how an inferior tribunal or court could possibly be prejudiced because some claimants appearing before it are allowed an appeal and others are not, or because some may be allowed a broad review and others a narrow one. So long as the agency or tribunal involved follows the procedural steps outlined in a statute, and so long as no individual member may be subjected to personal liability for doing so, his standing to challenge the classifications contained in such a statute is, to say the least, highly uncertain.

This Court has applied the principle of standing in cases involving procedural statutes. In the case of Kentucky-Tennessee Light and Power Company v. Dunlap, 181 Tenn. 105, 178 S.W.2d 636 (1944), as previously pointed out, complaint was made because a broad appeal was allowed to the Supreme Court from the Court of Appeals, rather than the usual remedy provided by petition for certiorari. The utility company, which was seeking review of a rate-making order of the then Railroad & Public Utilities Commission, argued that this procedural statute constituted vicious and unconstitutional class legislation. This Court held that it did not, but it further stated:

“If, however, we should concede that the Legislature, has made an unreasonable classification, the constitutional objection cannot be invoked in the instant case because the obligations, immunities, and privilege's of the act apply with equal force to both complainant and the defendant. In Volume 11 Am.Jur., Constitutional Law, Sec. Ill, it is said: ‘Before a law can be assailed by any person on the ground that it is unconstitutional, he must show that he has an interest in the question in that the enforcement of the law would be an infringement on his rights.’ We think the principle thus stated is applicable in the instant case and is supported not only by our own cases but by the great weight of authority. The complainant should not be heard to complain that an act is vicious class legislation where its benefits are equally available to it as they are to its adversary. As between the parties to this lawsuit, the law makes absolutely no distinction.” 181 Tenn. at 116-117, 178 S.W.2d at 640.

Similarly, in the case of Hancock v. Davidson County, 171 Tenn. 420, 104 S.W.2d 824 (1937), a special statute of the Legislature creating a general sessions court for Davidson County was challenged. Among the grounds of attack was the complaint that cost bonds were handled differently under the Davidson County statute from the manner in which they were generally handled under state law, resulting in invidious class legislation under Section 8, Article 11, of the Constitution. Responding to this contention, the Court said:

“In answer to this objection, it is sufficient to say that so far as his bill discloses the appellant here is in nowise affected by these provisions of the act of 1937. He is not a litigant in any case before the court of general sessions. He sues as a taxpayer of Davidson County to avoid the additional burden of taxation that he avers will be imposed upon him by the maintenance by said county of this court. These provisions as to civil suits will impose no burden upon the county and will impose no burden upon any taxpayer of the county.
“To justify an assault upon the validity of a statute under these sections of the Constitution, the assailant must show that he is adversely affected by the alleged discrimination.” 171 Tenn. at 433-434, 104 S.W.2d at 829.

As we have previously stated, the constitutional attack in this case is launched by the Board of Claims itself, through its counsel, upon the sole basis that some claimants appearing before it are afforded a different method of review from other claimants. We do not believe that the State Board has standing to assert any such proposition. It is created by the General Assembly, and it takes its direction from that body. No member of the Board of Claims will incur any personal liability or have his compensation affected by following the directive of T.C.A. § 7-147(4), nor are the members of the Board faced with conflicting statutory directives as to which they may need to seek the guidance of the courts.

In our opinion the Court of Appeals was in error in holding the statutory provision just cited unconstitutional at the instance of the State Board, and upon the grounds alleged by the Board. Its decision in this regard is accordingly reversed.

II. THE SUBROGATION AGREEMENT

Turning to the assignments of error made by the petitioner in the Court of Appeals and repeated here, to the effect that the State Board is without power to require a subrogation agreement in cases of this nature, we are of the opinion that the assignments of error are not well taken.

Under a general statute pertaining to the Board of Claims, which was apparently not repealed by the Military Code of 1970, members of the Tennessee “state guard” while on active duty or in training “shall be considered as employees of the state . . . .” T.C.A. § 9-808.

In the new Military Code, as previously pointed out, there are express provisions for the payment of benefits in case of death or injury to guardsmen in line of duty. With respect to death benefits, T.C.A. § 7-147(l)(b) provides:

“The death benefit so paid shall be the same as those as are now provided under the workmen’s compensation laws of this state or as said law shall be hereinafter amended . . . .”

With respect to injuries not resulting in death, the Board of Claims is directed to compensate a guardsman

“. . .in the same manner and to the same extent as now provided under the workmen’s compensation law of this state, or as said law shall hereinafter be amended . . . T.C.A. § 7-147(2).

Other employees of the state government and its departments are also entitled to benefits measured by the provisions of the state workmen’s compensation law, with certain exceptions not here pertinent. T.C.A. § 9-807.

It thus appears that the State is placed in the position of an employer of National Guardsmen and other State employees sustaining injury in line of duty, and, in effect, the State’s workmen’s compensation law and its benefits are made applicable to such personnel.

Any employer in the state operating under the Tennessee workmen’s compensation law is, by statute, given a right of subrogation, to the extent of compensation benefits paid or payable, against any third-party claim or right of action held by the employee or his dependents. T.C.A. § 50-914.

These provisions were in the original workmen’s compensation law enacted in 1919. Prior to 1949, however, an employee was required to elect between a third-party claim or workmen’s compensation benefits; he could not pursue both remedies. Wilson v. Chattanooga, 179 Tenn. 234, 165 S.W.2d 373 (1942); Keen v. Allison, 166 Tenn. 218, 60 S.W.2d 158 (1933).

Since a basic amendment contained in Chapter 277 of the Public Acts of 1949, the employee has been entitled to receive compensation and still pursue his remedy against a third party, subject to the right of subrogation as aforesaid. The details of the right of subrogation, including such matters as counsel fees for the employer and the employee, have been spelled out in some detail in the statute by amendments subsequent to 1949. T.C.A. § 50-914, containing the right of subrogation, has remained in its present form since 1963, without further amendment.

In addition to the statutory right of sub-rogation this Court has held that an employer or its insurer who pays medical or other benefits to or for an injured employee in excess of those required by the Workmen’s Compensation Act is entitled to recover those excess benefits, by way of sub-rogation, from a third-party tortfeasor. U.S.F. & G. Co. v. Elam, 198 Tenn. 194, 278 S.W.2d 693 (1955). The Court has also permitted the doctrine of equitable subrogation to be applied generally when one person discharges the debt or obligation of another. Castleman Constr. Co. v. Pennington, 222 Tenn. 82, 432 S.W.2d 669 (1968).

The State Board of Claims has adopted its Rule 13A, to the effect that no disbursements will be made to a State employee by the Board of Claims until a subrogation agreement has been executed by him, providing that the State will be reimbursed “to the extent of one-third of any sum he may receive from such third party, but only to the full amount expended if it should be less than one-third of the recovery.” The rule further provides that no part of the recovery due the State shall be diminished by any collection fees “or for any reason whatsoever.”

This rule is not strictly in accord with the provisions of T.C.A. § 50-914, governing workmen’s compensation proceedings generally. The subrogation or reimbursement rights of the employer are not limited to any particular percentage of the third-party recovery under the general statute, and there are provisions for diminishing the amount of the award to the employer by reasonable counsel fees. Nevertheless, the rule of the Board of Claims, on the whole, is far less stringent, insofar as the employee is concerned, than the general statute, and falls well within the confines and limits of T.C.A. § 50-914.

On behalf of the petitioner it is contended, with considerable force and logic, that the meaning and purpose of the statutes governing the Board of Claims, and those of the Military Code under consideration here, are simply that the benefit schedules contained in the workmen’s compensation law of the state shall be used to measure an award made to an injured or deceased employee. It is insisted that the subrogation features of the state workmen’s compensation law are not incorporated by reference either into the general statutes governing the Board of Claims or into the Military Code, and that the State Board has exceeded its authority in so interpreting these statutes and in requiring a subrogation agreement such as that involved here.

This, at best, is a matter of judgment and of the interpretation of the statutes. Rule 13a has been in force for a considerable period of time, and represents a reasonable interpretation of the statutes by the Board of Claims. The subrogation right and its accompanying statutory lien in favor of an employer have been integral parts of the Tennessee workmen’s compensation system since 1919. All workmen’s compensation awards in the state are governed by and are subject to the rights of the employer, when third-party claims are involved.

Since the State of Tennessee is placed in the role of an employer as to claimants such as those involved here, and since awards to state employees are governed by the terms and provisions of the Workmen’s Compensation Act, we do not consider that the conclusion reached by the State Board in the present case is an unreasonable one, to the effect that the State is entitled, as any other employer, to be subrogated when a third-party is or may be liable to the injured employee.

Accordingly we are of the opinion that the State Board has made an interpretation and construction of both the general statutes governing that Board and of the Military Code which is a reasonable one. If the Legislature has had in the past any contrary intention, it has not so indicated. If the interpretation made by the Board is not that intended by the Legislature, the latter body is, of course, free at any time to amend the statutes in question so as to delete the subrogation requirements imposed by the Board.

It results that the judgment of the Board of Claims is affirmed, and the cause is remanded to that Board for such further proceedings as may be appropriate. All costs incident to the appeal are taxed to the Board of Claims.

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

HENRY, J., not participating.

ORDER

HARBISON, Justice.

A careful and thoughtful petition for rehearing has been filed on behalf of the petitioner, addressed to that portion of the opinion of the Court dealing with the subro-gation agreement. After consideration of the petition for rehearing, we are of the opinion that the arguments advanced were dealt with in the original opinion and we adhere to thé conclusion stated therein.

The petition for rehearing is respectfully overruled.

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

HENRY, J., not participating.

      . T.C.A. § 39-3019.

      . T.C.A. § 57-209.

      . T.C.A. § 50-1325(1).

      . T.C.A. § 49-1417.

      . T.C.A. § 14-1412.

      .The scope of appellate review available also varies in many different categories and classes of actions. See, e. g., T.C.A. §§ 27-303, 306, 50-1Q18 and cases cited thereunder.

      . Porter v. City of Paris, 184 Tenn. 555, 559, 201 S.W.2d 688 (1947); Motor Transportation Co. v. Carden, 164 Tenn. 416, 423, 50 S.W.2d 230 (1932).

      . “Ministerial officers are not as a general rule permitted to question the validity of a statute or city ordinance.” Bricker v. Sims, 195 Tenn. 361, 368, 259 S.W.2d 661, 664 (1953).

      . See O’Brien v. Rutherford County, 199 Tenn. 642, 288 S.W.2d 708 (1956).

      . See Cummings v. Beeler, 189 Tenn. 151, 223 S.W.2d 913 (1949).


author: HENRY, Justice.

text:
    Eugene W. FOWINKLE, M.D., Commissioner, etc., et al., Appellants, v. SOUTHERN RAILWAY COMPANY, Appellee.
    Supreme Court of Tennessee.
    Feb. 2, 1976.
    R. A. Ashley, Jr., Atty. Gen., Alex B. Shipley, Jr., Asst. Atty. Gen., Nashville, for appellants.

      Charles W. Lusk, Hall, Haynes, Lusk & Foster, Chattanooga, William P. Stallsmith, Jr., Washington, D. C., for appellee.
   OPINION

HENRY, Justice.

This action arises under the Occupational Safety and Health Act of 1972 (OSHA) and presents the single question of its coverage of railroad employees.

I.

The appellants, the Commissioners of Public Health and Labor, acting pursuant to a written complaint and under the provisions of OSHA, as interpreted by them, sent representatives to the Chattanooga Diesel Shop, operated by Southern Railway for the purpose of conducting inspections. They were refused entry by the manager, acting upon the advice of counsel to the effect that these operations were exempt under § 50-504(d) T.C.A. This suit seeking in-junctive relief ensued. The Chancellor held that railroad employees are not covered by OSHA.

We agree.

II.

By § 50-504 certain employers and employees were excepted. These exceptions are:

(a) the federal government . . . ;
(b) employees whose safety and health are subject to protection under the Atomic Energy Act . . . ;
(c) employees whose safety and health are subject to protection under the Federal Coal Mine Health and Safety Act. . . ;
(d) railroad employees whose safety and health are subject to protection under the Federal Safety Appliances Act (U.S.C., tit. 45, §§ 1-50) or the Federal Railroad Safety Act of 1970 (U.S.C., tit. 45, §§ 431-441);
(e) domestic workers;
(f) employees covered by the Longshoremen’s and Harbor Workers’ Compensation Act . . . ;
(g) any employee engaged in agriculture who is employed on a farm each of the employees of which is related to the employer as spouse, child, parent, grandparent or grandchild. (Emphasis supplied)

It is evident that the legislature intended to exempt railroad employees whose safety and health are subject to protection under the specified acts. It recognized that the Congress of the United states had adopted specific legislation dealing with these employees and evidently considered it both unnecessary and unwise to superimpose upon the railroad industry additional investigations, inspections, administrative supervision and procedures.

The State argues that “since the employees of the appellee are not presently protected by any regulation under the Federal Railroad Safety Act of 1970 that the provisions of OSHA are fully applicable to the employees of the appellee.”

We are not impressed with this argument. The Legislature plainly pitched the exemption on the basis of the safety and health of these employees being subject to protection vis a vis protection. The actual promulgation of a protective regulation is immaterial to the issue. The Legislature presumed that federal regulations would be forthcoming and, given the historic propensity of the federal government to regulate corporate structures and virtually all other vital areas of our economic, political and social affairs, we cannot say that the Legislature did not exercise good judgment. We judicially note that American railroads have been subject to continuing governmental supervision and regulation.

Sec. 101 of the Federal Railroad Safety Act of 1970 (45 U.S.C. §§ 421-441) declares that a purpose of the act is “to promote safety in all areas of railroad operations.” § 202 requires that the Secretary of Transportation prescribe, as necessary, appropriate rules, regulations, orders and standards for all areas of railroad safety.

Sec. 205 provides:

The Congress declares that laws, rules, regulations, orders and standards relating to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force any law, rule, regulation, order, or standard relating to railroad safety until such time as the Secretary has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement. A State may adopt or continue in force an additional or more stringent law, rule, regulation, order, or standard relating to railroad safety when necessary to eliminate or reduce an essentially local safety hazard, and when not incompatible with any Federal law, rule, regulation, order, or standard, and when not creating an undue burden on interstate commerce.

It is evident from the foregoing that the several states are not precluded from adopting or continuing in force any law or regulation, pending the promulgation of regulations under the federal act. Nor is a state precluded thereafter from adopting or continuing in force “an additional or more stringent law” when not incompatible, not unduly burdensome on interstate commerce, and when necessary to eliminate or reduce an essentially local safety hazard.

The Legislature very properly did not elect to proceed under these exceptions. It is obvious, as a practical proposition, that the federal act precludes virtually all state legislation and in view of this preemption, interim and short-lived legislation was not in the public interest.

We hold that railroads and railroad employees are not covered by the Tennessee Occupational Safety and Health Act of 1972.

The judgment of the Chancellor is

Affirmed.

FONES, C. J., HARBISON, J., and HY-DER, Special Justice, concur.

BROCK, J., dissents.


author: DROWOTA, Judge.

text:
    William TRIGG et ux., Plaintiffs-Appellants, v. The MIDDLE TENNESSEE ELECTRIC MEMBERSHIP CORPORATION, Defendant-Appellee.
    Court of Appeals of Tennessee, Middle Section.
    Nov. 28, 1975.
    Certiorari Denied by Supreme Court, March 15, 1976.

      Scott Daniel, Murfreesboro, for plaintiffs-appellants.
    Marshall E. Duggin, Woodbury, for defendant-appellee.
   OPINION

DROWOTA, Judge.

This is an appeal from an order of the Rutherford County Circuit Court which granted the defendant’s motion for judgment on the pleadings and dismissed the plaintiffs’ complaint. Plaintiffs originally perfected an appeal to the Tennessee Supreme Court, however after an examination of the record by that Court and a determination by that Court that jurisdiction was in the Court of Appeals, this cause was transferred to this Court for disposition.

The plaintiffs, William and Ellen Trigg, are Rutherford County residents. Defendant, Middle Tennessee Electric Membership Corporation, is a Tennessee corporation engaged in the sale and distribution of electric energy in Rutherford County and vicinity and is subject to the Electric Cooperative Law of Tennessee as codified in Tennessee Code Annotated § 65-2501 et seq. In August, 1968, plaintiffs became members of defendant'cooperative whereby the defendant agreed to furnish electricity to the plaintiffs at their residence and the plaintiffs agreed to comply with the cooperative’s rules and regulations. In their complaint, plaintiffs allege that they received a bill from defendant on Friday, June 6,1969, for electricity used in the previous month. The bill stated that the net amount due was $15.53. If the net amount was not paid as of June 2, 1969, the gross amount of $17.04 was to be paid. Plaintiffs allege that immediately upon receiving this bill they wrote a check for the net amount, $15.53, and personally delivered the check to defendant’s business office on the next business day. Plaintiffs allegedly explained to defendant’s employee that they were paying only the net rates because the bill was not received until after the penalty date. Defendant accepted and cashed plaintiffs’ check. At the next billing period defendant mailed plaintiffs another bill that was received on June 23 and that reflected an arrearage of $1.51 (the difference between $17.04 and $15.53). On the same date plaintiffs sent defendant a check for the net amount omitting the $1.51. This check was likewise accepted and cashed by defendant. Defendant and plaintiffs then exchanged a series of letters in which the defendant insisted and the Triggs denied that the plaintiffs owed the additional $1.51.

In late July, 1969, the Triggs received a bill of $12.21, plus the $1.51 defendant insisted was still due. Plaintiff twice tendered the $12.21 and defendant twice refused to accept the tendered amount because it did not include the $1.51. Plaintiffs then allege that they left on August 9, 1969, for a vacation, that sometime on or about August 19, 1969, defendant sent plaintiffs another bill that showed a total amount due of $28.64 (this amount included the following: (1) the $1.51 in dispute; (2) the previous month’s bill, which defendant had refused to accept; (3) the present month’s bill), and that the most recent bill indicated that service would be discontinued if the total amount due was not paid by September 12, 1969. On August 19, 1969, an employee of defendant went to the Trigg residence for the purpose of disconnecting plaintiffs’ electricity. Finding the plaintiffs absent the employee left a notice on the plaintiffs’ door that stated that service would have been terminated if the plaintiffs had been at home. Defendant’s employee returned on August 26, and disconnected the electrical service.

When the Triggs returned on August 27, they allegedly found considerable damage. Subsequently the plaintiffs brought this action to recover for the injury that allegedly resulted from the termination of their electrical service. Defendant moved for and received a judgment on the pleadings and a dismissal of the plaintiffs’ complaint.

Our Rule of Civil Procedure 12.03 (Motion for Judgment on the Pleadings) and Federal Rule 12(c) are identical. The federal courts have held that in ruling upon a motion for judgment on the pleadings “[a]ll well pleaded allegations of the opposing party’s pleading are to be taken as true, and all allegations of the moving party which are denied are to be taken as false. Conclusions of law are not admitted nor should judgment on the pleadings be granted unless the moving party is clearly entitled to judgment.” John v. United States, 138 F.Supp. 89, 95 (D.C.Wis.1956); accord, Stanton v. Larsh, 239 F.2d 104 (C.A.Fla.1957). State courts have held that on an appeal from an order allowing a judgment on the pleadings, all well pleaded facts and all reasonable inferences drawn therefrom must be accepted as true. Block v. Zahour, 27 Ill.App.3d 487, 326 N.E.2d 506 (1975); see, Rodgers v. Rodgers, 53 Tenn. 489 (1871); Darwin v. Town of Cookeville, 170 Tenn. 508, 97 S.W.2d 838 (1936). We are in agreement with the interpretations given above on how the trial court should apply Rule 12.03. Thus, all facts alleged by the plaintiffs must be taken as true and the issue before us is whether upon those facts plaintiffs’ complaint states a cause of action when it alleges injury that resulted from the termination of their electrical service for failure to pay a disputed claim. No Tennessee law exactly on point can be found.

Defendant maintains that the Triggs fail to state a cause of action in their complaint because they admit the following: that they are members in the cooperative; that members are bound by the rules and regulations of the cooperative; that they did not pay the extra $1.51 when they paid their May, 1969, electric bill. The rules and regulations of the defendant cooperative provide that “failure to receive bill will not release customer from payment obligation” and that the cooperative may discontinue service for nonpayment. The Triggs argue, in essence, that these payment provisions do not give defendant the right to discontinue, without actual notice, a customer’s service for failure to pay a disputed sum, and that defendant is liable for any injury that results from such a termination.

A company supplying electricity to the public has the right to cut off service to a customer for nonpayment of a just service bill and the company may adopt a rule to that effect. Annot., 112 A.L.R. 237 (1938). An exception to the general rule exists when the customer has a bona fide dispute concerning the correctness of the bill. Steele v. Clinton Electric Light & Power Co., 123 Conn. 180, 193 A. 613, 615 (1937); Annot., 112 A.L.R. 237, 241 (1938); see also 43 Am.Jur., Public Utilities and Services, Sec. 65; Annot., 28 A.L.R. 475 (1924). If the public utility discontinues service for nonpayment of a disputed amount it does so at its peril and if the public utility was wrong (e. g., customer overcharged), it is liable for damages. Sims v. Alabama Water Co., 205 Ala. 378, 87 So. 688, 690, 28 A.L.R. 461 (1920). Ordinarily the question whether the dispute between the customer and the utility was bona fide is for the trier of fact. Utilities Operating Co. v. Pringle, 177 So.2d 684, 685 (Fla.App.1965).

We are aware that defendant’s rules and regulations, which plaintiffs agreed to obey, require payment whether or not a bill is received by the customer. In our view, however, this rule does not resolve the conflict that arises when a customer, who is willing to and does pay a certain portion of the bill, disputes the amount due. A public utility should not be able to coerce a customer to pay a disputed claim. If the plaintiffs in the instant case had claimed that they did not have to pay at all for their electrical service because they did not receive a bill, then defendant clearly would have been justified in terminating the service. The plaintiffs, however, were willing to pay, but they insisted on receiving the discount. It seems unreasonable to require the plaintiffs to pay the gross amount if they did not receive a bill, as we must assume, until after the discount date. Even if we agree that the difference between the net and gross amounts is not interest, Ferguson v. Electric Power Bd., 378 F.Supp. 787 (E.B.Tenn.1974), that amount is still extra and we do not feel that a public utility should be able to deprive a customer of the discount when the customer did not receive a bill in time to pay at the discount rates. The customer, however, must persuade the trier of fact that he had a bona fide dispute; thus in this case the plaintiffs must prove that they received their bill too late to pay at the discount rate.

Defendant argues that the Triggs must have known that the discount date usually fell on the second day of the month and therefore the plaintiffs should have paid before that date if they wanted to receive the discount. But nothing in defendant’s rules and regulations designates the second day of the month as the discount date; thus the Triggs could not know the discount date with certainty, nor could they know the amount owed, until they received the bill.

Moreover, we recognize that electric cooperatives in the state of Tennessee enjoy a monopolistic position that spawns certain rights and benefits. A concomitant of these rights and benefits is a duty to use a corresponding degree of care to protect the public. We hold that in Tennessee, a public utility, when terminating service to a customer, must act reasonably when the discontinuance of the service might present an obvious danger of damage to the property of the customer. See, Washington Gas Light v. Aetna Casualty & Sur. Co., 250 Md. 325, 242 A.2d 802 (1968).

In the instant case, accepting all facts alleged by plaintiffs as true, the defendant acted unreasonably and was negligent in terminating the plaintiffs’ service while they were on vacation. Even if we agree, arguendo, that plaintiffs were wrong in not paying the extra $1.51, the facts alleged, if true, would support a judgment against defendant for negligence in the manner in which it exercised its right to disconnect. Defendant’s employee was able to ascertain that the Triggs were not home the first time he stopped to disconnect the electrical service. When the employee stopped the second time, the notice from his first stop was still on the door and from all the circumstances the defendant’s employee should have known that the plaintiffs again were not at home. Obviously he observed the meter running when he terminated the service. This should have alerted him to the possibility that a freezer or refrigerator was running and that termination of service might well result in damage. We do not hold that a public utility can never terminate service when the customer is absent. Nor do we hold that actual notice is always necessary. Here, however, it appears from the pleadings that the dispute had gone on for several months and defendant’s action in terminating service without actual notice to the customer when no one was at home was unreasonable under the alleged circumstances in this case.

The judgment of the trial court in granting defendant’s motion for judgment on the pleadings and dismissal of complaint is accordingly reversed and the cause remanded for a trial on the merits, since we find that plaintiffs’ complaint does state a cause of action. The costs of this appeal are to be taxed against the appellee.

Reversed and remanded.

SHRIVER, P. J., and TODD, J., concur.

      . Specifically the plaintiffs allege that all the foodstuff in their refrigerator and freezer had spoiled and had drained out onto the floor and carpets creating a stench and odor of decay, that their refrigerator icemaker had run continuously, flooding the kitchen and dining room, and that all the furniture had to be replaced or treated as a result of the stench and flooding.

      . Plaintiff, William Trigg, on July 2, 1969, in a letter to the defendant specifically referred to thé possibility of refrigerator and deep freeze contents spoilage that could result if the electricity were disconnected.

      . For example, the customer may be absent over such an extended period that it would be unreasonable to expect the continuance of service, or an emergency may necessitate termination of service when the customer is not at home. See Employers Casualty Co. v. Moyston, 80 N.M. 796, 461 P.2d 929 (1969).

      .Plaintiff had paid the net May bill, which is in dispute, and defendant had accepted it. Plaintiff also paid and the defendant accepted the net June bill. The plaintiff had twice tendered the net July bill.