text:
    William COOPER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 19, 1979.

      Joseph J. Wantland, Shepherdsville, for appellant.
    Robert F. Stephens, Atty. Gen., Frankfort, J. Gerald Henry, Asst. Atty. Gen., Frankfort, for appellee.
    Before HOWARD, HOWERTON and PARK, JJ.

       The decision of the panel was made prior to January 1, 1979, but the opinion was not rendered until this date.

   PARK, Judge.

William Cooper appeals from a judgment of the Bullitt Circuit Court entered on a jury verdict finding Cooper guilty of trafficking in cocaine and marijuana. On the cocaine conviction, Cooper received a sentence of ten years imprisonment and a fine of $5,000; on the marijuana conviction, he received a sentence of 12 months imprisonment in the county jail and a fine of $500.

On appeal, Cooper raises three issues: (1) whether his arrest for possession of marijuana was illegal because it was made without a warrant; (2) whether the trial court erred in overruling his motion to suppress evidence seized in a warrantless search of his automobile; and (3) whether the trial court erred in failing to make findings of fact on his motion to suppress evidence.

I

On November 23, 1976, William Cooper was operating a 1971 Cadillac northbound on Interstate 65 in Bullitt County when he was stopped by Kentucky State Trooper Lee Arnold. Trooper Arnold testified that he was making traffic radar checks on 1 — 65 at Lebanon Junction when he observed Cooper’s car traveling at 70 miles per hour in a 55 miles per hour zone.

After stopping Cooper’s car, the trooper approached Cooper and asked him to produce his driver’s license. When Cooper lowered the driver's window, the trooper smelled marijuana smoke emanating from Cooper’s car. Cooper’s car was parked partially on the main traveled part of the highway. In order to avoid the danger from the highway traffic, Trooper Arnold circled the vehicle and opened the door opposite the driver. According to Arnold, he told Cooper that he smelled marijuana smoke, and he announced his intention to search the vehicle. Arnold testified that Cooper became very excited and threw open his ashtray to reveal several marijuana “roaches” stating: “This is all I’ve got. You wouldn’t bust a man for having a few roaches of marijuana would you?” Cooper denied making the statement or opening the ashtray. The trooper ordered Cooper out of the car and placed him under arrest for possession of marijuana.

After placing Cooper in the rear of his police cruiser, Arnold returned to the automobile and seized the marijuana “roaches.” Believing that Cooper had more marijuana close at hand, Arnold searched the floor of the vehicle to “see if there was any more scattered in the car.” During his search, he discovered a black electric razor case underneath the front seat. The case was sealed with two-inch heavy duty adhesive tape. When he removed the tape and opened the case, Arnold discovered three bags of a white substance which later provided to be cocaine.

Arnold radioed requesting assistance, and a state narcotics agent who was in the area was sent to the scene. Arnold closed Cooper’s car doors and returned to his cruiser to await the arrival of the special agent. When Arnold returned to his cruiser, he discovered that Cooper had stuck a coat hanger through the cage mesh screen of the cruiser into the front seat area in an apparent attempt to escape. After handcuffing Cooper, Arnold searched him and the area in which he had been sitting in the cruiser. As a result of this search, the trooper discovered an additional packet of marijuana under the seat where Cooper had been sitting.

When the narcotics agent arrived, Arnold showed him the marijuana and cocaine he had discovered, and the agent left to obtain a search warrant to search the rest of the car. Cooper’s car was towed to a private garage in Lebanon Junction. The car was under police guard at all times. Shortly after the car reached the garage, the narcotics agent arrived with the search warrant, and he and Arnold proceeded to search the remainder of the car. A search of the trunk and a false panel on the dashboard uncovered additional marijuana and a weapon which has been made the subject of an independent and unrelated charge against the defendant.

II

Cooper argues that his arrest and the subsequent search were unlawful because he was arrested without a warrant on a misdemeanor charge which was not committed within the officer’s presence. KRS 431.005. Cooper asserts that Trooper Arnold did not see, hear, or smell him use marijuana at the time of their initial encounter; therefore, Arnold could only have had a suspicion that a misdemeanor had been committed. Cooper cites cases holding that the investigating officer at the scene of an automobile collision may not arrest the intoxicated operator of the vehicle for driving while intoxicated because the officer was not present when the offense was being committed. Cowan v. Commonwealth, 308 Ky. 842, 215 S.W.2d 989 (1948); Powell v. Commonwealth, 307 Ky. 545, 211 S.W.2d 850 (1948); D. Murrell, Kentucky Criminal Practice § 3.06 (1975).

Cooper’s argument fails for two reasons. First, Arnold was not arresting Cooper for “using” marijuana. In that case, Cooper could reasonably argue that the “use” did not occur in Arnold’s presence. Cooper was arrested for “possession” of marijuana, and there is ample evidence to support the conclusion that Arnold had probable cause to believe that Cooper was violating the law in his presence by being in possession of the marijuana. When he observed the speeding violation, Arnold had the right to stop Cooper’s car and demand to see his driver’s license. When Cooper lowered the driver’s window of his car, Arnold detected marijuana smoke which he recognized from past training and experience. The marijuana smoke reasonably caused Arnold to believe that Cooper was then illegally possessing marijuana.

It is a fundamental principle that a policeman may “observe” with any of his five senses for purposes of a misdemeanor arrest. D. Murrell, supra, § 3.06 (1975). As long ago as 1925, this state’s highest court held that a warrantless search could be based upon smelling illegal liquor. Commonwealth v. Johnson, 206 Ky. 701, 268 S.W. 345 (1925). The federal courts have also recognized a “plain smell” analogue to the “plain view” doctrine. See Chapman v. U. S., 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961); Johnson v. U. S., 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); U. S. v. Troise, 483 F.2d 615 (5th Cir. 1973), cert. denied, 414 U.S. 1066, 94 S.Ct. 574, 38 L.Ed.2d 471 (1973). Therefore, when Trooper Arnold approached the car and smelled marijuana smoke, he had probable cause to believe that a misdemeanor was being committed in his presence by Cooper, and the arrest without a warrant was proper. KRS 431.005.

Second, the validity of the search does not depend upon the legality of the arrest. The search is not justified as “incident” to Cooper’s arrest. The warrantless search of Cooper’s car is justified only if based upon “probable cause” plus “exigent circumstances.” The validity of Cooper’s arrest is not essential to the validity of the search.

Ill

Cooper claims that the warrantless search of his car was unreasonable and illegal under the Fourth and Fourteenth Amendments to the United States Constitution and Section 10 of the Kentucky Constitution. The cocaine conviction was the direct result of the warrantless seizure of the electric razor case in which the cocaine was found. The conviction of trafficking in marijuana was a result of the search pursuant to a warrant at the garage, but the warrant was based in large part upon the fruits of the earlier warrantless search. Both convictions rest, at least in part, on the validity of the warrantless search of the electric razor case.

All warrantless searches are unreasonable and thus illegal unless they fall within one of the limited exceptions to the general rule that a search must be based upon a valid warrant. There is no general automobile exception to the search and seizure provisions of the federal and state constitutions. However, when probable cause to search an automobile is accompanied by exigent circumstances, a warrant-less search may be justified. Neither “probable cause” nor “exigent circumstances” alone will justify a warrantless search; both factors must be present. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chambers v. Maro-ney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Middleton v. Commonwealth, Ky., 502 S.W.2d 517 (1973); Ison v. Commonwealth, Ky., 471 S.W.2d 712 (1971). Assuming that the search of Cooper’s car and seizure of the electric razor case was justified by probable cause and exigent circumstances, the further question is presented whether Trooper Arnold could lawfully open and search the taped razor case without obtaining a warrant.

Probable cause existed at every stage of the search. Arnold had a right to stop Cooper for the speeding violation. Likewise, he acted lawfully in approaching Cooper’s car where he smelled marijuana smoke emanating from the car. The smell of marijuana smoke from the car gave Arnold probable cause to open the car door and search the ashtray for contraband. See Commonwealth v. Hagan, Ky., 464 S.W.2d 261 (1971). Having seized the six “roaches” from the ashtray, Arnold had probable cause to believe that other contraband was in the car. As Arnold reasoned, it was probable that Cooper had a supply of marijuana within easy reach as he smoked while driving along the interstate highway. In fact, additional marijuana was later found behind the false panel in the dashboard. When Arnold found the heavily taped razor case under the front seat, he had probable cause to believe that it contained contraband rather than an electric razor. The discovery of the cocaine provided probable cause to believe that other contraband would be found in the car which justified the issuance of the search warrant. The serious question is whether the probable cause was accompanied by exigent circumstances justifying a warrantless search.

Cooper contends that there were no exigent circumstances which justified a war-rantless search. From the point in time when Cooper was arrested and placed in the cruiser, the police were in complete control of the Cooper car. The police later obtained a search warrant before making a search of the trunk and other portions of the car. Because the warrant was obtained to complete the search at the garage, Cooper argues that there was no necessity for Arnold to make the initial warrantless search. He cites Middleton v. Commonwealth, supra. The Middleton case relied upon the decision in Coolidge v. New Hampshire, supra, for the proposition that probable cause cannot justify a warrantless search of an automobile in the absence of exigent circumstances which make it impractical to obtain a warrant.

Both the Middleton and Coolidge cases are easily distinguished on their facts. In Middleton, the police obtained a warrant to search the defendant’s car which was parked in front of the defendant’s home, but the warrant was invalid because of the insufficiency of the affidavit upon which the warrant was based. In Coolidge, the police searched the defendant’s car which was parked in the driveway of his home. The search was pursuant to a warrant which was invalid because not issued by a neutral and detached magistrate. In both cases, the cars were unoccupied, and there was no danger that the cars would be moved.

In the present case, Cooper’s car was stopped on an interstate highway. Trooper Arnold had only a fleeting opportunity to search Cooper’s car. If Trooper Arnold had attempted to secure a search warrant before initiating any search of the car, Cooper could have fled the scene and disposed of the cocaine and marijuana in his car. Arnold had probable cause to search based upon his smelling the marijuana smoke as he stood beside the Cooper car. The trooper was faced with a “now or never” situation that justified an immediate warrant-less search. Chambers v. Maroney, supra, 399 U.S. at 50-51, 90 S.Ct. at 1980-81.

The six “roaches” in the ashtray were not in plain view before Arnold opened the door of Cooper’s car. Therefore, the six “roaches” were seized as a result of a warrantless search. Patrick v. Commonwealth, Ky., 535 S.W.2d 88 (1976); Nichols v. Commonwealth, Ky., 408 S.W.2d 189 (1966). However, the warrantless search was justified because based upon probable cause accompanied by exigent circumstances. Having found the six “roaches”, it was reasonable for Arnold to search under the front seat for additional contraband. It is true that the car was immobilized as soon as Cooper was arrested and placed in the rear of the police cruiser. However, the initial war-rantless search and immobilization of Cooper’s car was justified because based upon probable cause accompanied by exigent circumstances. Arnold was not required to suspend continuation of his search until a warrant could be obtained. Chambers v. Maroney, supra, 399 U.S. at 51-52, 90 S.Ct. 1975; Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975); Sullivan v. Commonwealth, Ky., 481 S.W.2d 49, 51-52 (1972); Ballard v. Commonwealth, Ky., 462 S.W.2d 905, 907-08 (1971). Arnold’s seizure of the electric razor case was legal. The question remains whether Arnold could open the taped case without a search warrant.

Cooper asserts that Arnold had no right to open the taped razor case without a warrant even if Arnold had been justified in conducting the warrantless search which led to his discovery of the case. Arnold had complete control over the razor case from the moment he removed it from beneath the driver’s seat. Cooper asserts that a search warrant was required before Arnold could open the razor case. Cooper relies upon the decision in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).

In the Chadwick case, the Supreme Court invalidated the warrantless search of a locked footlocker seized by Federal Narcotics Agents as it was placed in the trunk of an automobile in the departure area of the Boston railroad station. The federal agents had probable cause to believe that the footlocker contained contraband. The footlocker was taken to the federal building in Boston where a warrantless search of the footlocker revealed a large quantity of marijuana. The initial seizure of the footlocker was not questioned. The sole question before the Supreme Court was whether the government had a right to search the contents of the locked footlocker without a search warrant based solely upon probable cause. The government conceded that there was no exigency calling for an immediate search. Pointing out that the footlocker was under the “exclusive dominion” of the federal agents from the time it was seized at the railroad station until it was searched at the federal building, the Supreme Court held that a warrantless search could not be based solely upon the footlocker’s mobility alone.

In the Chadwick case, the government did not contend that the footlocker’s brief contact with the automobile brought the case within the scope of Chambers v. Maroney, supra. Therefore, the Supreme Court was not required to decide whether the scope of a lawful warrantless search of an automobile, based on probable cause and exigent circumstances, may be extended to include opening luggage or other closed containers found during the search. Nevertheless, the issue was discussed in the Chadwick case. In his dissenting opinion, Justice Blackmun referred to decisions of the federal courts of appeals upholding the search of briefcases, suitcases and footlockers as incident to a lawful warrantless automobile search. He suggested that the search in Chadwick would have been valid if the federal agents had postponed the arrest of the defendants until they “started to drive away.” 97 S.Ct. at 2489, fn. 4. On the other hand, in his concurring opinion, Justice Brennan questioned whether the war-rantless search of an automobile could be extended to “locked containers” found inside the automobile. 97 S.Ct. at 2486, fn. 1. In construing the Chadwick case, other courts have reached conflicting results.

In United States v. Stevie, 582 F.2d 1175 (8th Cir. 1978), federal agents conducted a warrantless search of a station wagon stopped in order to effect the arrest of the two defendants for trafficking in marijuana. During the course of the search of the station wagon, the federal agents opened a closed suitcase found on the rear floor of the vehicle. The Eighth Circuit Court of Appeals held that the federal agents could lawfully immobilize the station wagon and seize the suitcase without a warrant. However, the court held, on the basis of Chadwick, that the agents could not search the contents of the suitcase without a warrant.

The Supreme Court of Arkansas reached a similar result in a case involving the factual situation suggested by Justice Black-mun in his dissenting opinion in Chadwick. In Sanders v. State, 262 Ark. 595, 559 S.W.2d 704 (1977), the defendant was arrested and the suitcase was seized and searched as the defendant was leaving an airport terminal in a taxicab. The court held that the police had probable cause to search the suitcase for marijuana. Relying on the Chadwick case, the court then held that any necessity for a warrantless search ceased when the police stopped the taxicab and brought the suitcase under their exclusive control.

Other courts have placed a different construction on the Chadwick decision. In United States v. Finnegan, 568 F.2d 637 (9th Cir. 1977), the police conducted a war-rantless search of the defendant’s car after the defendant was stopped on the highway for speeding. During the course of the search, the police opened a suitcase found in the rear of the car. Based upon what he observed as he stood next to the car, the police officer had probable cause to search the suitcase. The Ninth Circuit Court of Appeals held that probable cause and exigent circumstances justified a warrantless search of the car including the contents of the suitcase. The court held that Chadwick did not limit the scope of a lawful warrant-less automobile search, stating:

Were we to rule that Chadwick applies here and renders the search of the suitcase illegal, inconsistent and contradictory results would follow. For instance, a police officer could search and seize a brick of marijuana lying inside the trunk of a car but not a brick of marijuana lying inside a suitcase in the trunk of a car.

568 F.2d at 641. Even though it construed Chadwick to limit the scope of warrantless automobile searches in the Sanders case, the Arkansas Supreme Court subsequently followed the Finnegan decision in Berry v. State, Ark., 565 S.W.2d 418 (1978). In Berry v. State, supra, the court upheld the search of a briefcase as a part of a warrant-less search of a car based on probable cause and exigent circumstances.

In United States v. Gaultney, 581 F.2d 1137 (5th Cir. 1978), the court upheld the warrantless search of a taped Scrabble box found inside a locked pickup truck. The Fifth Circuit Court of Appeals distinguished Chadwick on the grounds that it did not involve an automobile search under exigent circumstances. The court also pointed out that the defendant could have little expectation of privacy in the contents of the Scrabble box after he had exhibited the box outside the truck under circumstances which made it practically certain that it contained cocaine.

The perplexing conflict between the courts in interpreting the Chadwick case should be resolved in the near future. The Supreme Court has granted certiorari in the Sanders case. Arkansas v. Sanders - U.S. -, 99 S.Ct. 247, 58 L.Ed.2d 236 (1978). Pending the decision of the Supreme Court in the Sanders case, the court must make an educated guess concerning the effect of the Chadwick decision upon the scope of a warrantless automobile search justified under the Chambers case. In our judgment, Chambers cannot be construed to justify a warrantless search of all closed containers found during a warrant-less automobile search. Likewise, Chadwick should not be construed to prohibit any warrantless searches of closed containers discovered during warrantless automobile searches. Both the Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution prohibit only unreasonable searches. The question in every case must be whether it was unreasonable under the circumstances to open the sealed container.

If Trooper Arnold had first sought a warrant to search the razor case, he would have been faced with the problem of Cooper’s car. Arnold could not leave the car unguarded parked in the emergency lane while he drove into Lebanon Junction to obtain a warrant. Third persons might break into the unguarded car thereby defeating any further search of the car after examination of the contents of the razor case. Even if the car had been placed under guard while a warrant was being obtained, the car presented a hazard to traffic on 1-65 so long as it remained on the shoulder of the highway. See 603 KAR 5.025, § 3. Cooper could not be trusted to drive his car into Lebanon Junction because of the danger of escape or destruction of any contraband hidden in the car. Arnold’s only practical alternative would have been to have the car towed into Lebanon Junction by a wrecker.

Rather than seek a warrant, Arnold could open the razor case immediately as he did. If the case had not contained cocaine or other contraband, Arnold may have determined that a further search of the car was not required and that it was unnecessary to impound the car. At that point in time, Arnold had seized only the six “roach” butts found in the ash tray during his initial search of the car. Cooper had been charged only with possession of marijuana, a minor misdemeanor. KRS 218A.990(7); KRS 532.020(3). Cooper could have been consulted concerning the safeguarding of the car, and it may not have been necessary to incur the expense of removing the car by wrecker. See City of Danville v. Dawson, Ky., 528 S.W.2d 687 (1975).

Removing the car from the highway by wrecker and impounding it would have involved a substantial interference with Cooper’s privacy interest in the car. Only a brief period of time was required to open and examine the contents of the razor case. Arnold was not examining personal luggage which one might anticipate to contain numerous items requiring an extensive search. Giving consideration to all of the circumstances, we conclude that the brief examination of the contents of the razor case was less of an intrusion into Cooper’s privacy interests than would have been the case if Arnold had impounded the car and its contents by having it removed from the highway by a wrecker. Arnold did not act unreasonably when he opened the taped razor case without first securing a warrant. Exigent circumstances existed.

IV

In his last argument, Cooper asserts that the trial judge erred in failing to make findings of fact following the hearing on the motion to suppress the evidence secured by the warrantless search of the car. Citing Lee v. Commonwealth, Ky.App., 547 S.W.2d 792 (1977), Cooper contends that the trial judge was required to make a specific finding of fact on the issue whether Cooper voluntarily produced the “roaches” for Trooper Arnold.

There is no merit in Cooper’s argument. The case was tried on October 11, 1977, prior to the effective date of RCr 9.78 which now specifically requires findings on motions to suppress evidence. Nevertheless, the Lee decision makes clear that better practice dictates that the trial judge make specific findings of fact when ruling on a motion to suppress evidence. However, we note that Cooper made no request for findings at the time that the trial judge denied the motion to suppress and admitted the fruits of the search into evidence. See Blankenship v. Commonwealth, Ky.App., 554 S.W.2d 898, 903 (1977). No request for findings of fact was made until after Cooper had himself testified before the jury.

Even more important is the fact that the trial judge did make the crucial finding of fact that Trooper Arnold did smell marijuana smoke emanating from Cooper’s car. Therefore, Arnold had probable cause to search, and it is immaterial whether Cooper voluntarily produced the “roaches” after Arnold stated that he smelled marijuana. The record demonstrates that the trial judge gave careful consideration to the extensive arguments by counsel on the issues raised at the suppression hearing. The trial court did not commit prejudicial error by failing to make additional findings of fact.

The judgment of the circuit court is affirmed.

All concur.

      . Commonwealth v. Hagan, Ky., 464 S.W.2d 261 (1971), states:
      If, at that time, the officer believes that a misdemeanor has been committed in his presence on the basis of what he sees and hears, or if he believes that a felony has been committed and the person or persons whom he has stopped have committed it, he may place him or them under arrest and may forthwith proceed to search the automobile incident to arrest.
      This court cannot believe that the failure to include the sense of smell was a deliberate omission.

      . The decision to impound the car was not made until after the warrantless search. Therefore, we are not presented with the question whether a warrantless inventory search was valid. See Ewen v. Commonwealth, Ky. App.,-Ky.L.Summ.-(Dec. 22, 1978).


source: Caselaw Access Project

author: GANT, Judge.

license: Public Domain

text:
    James R. YOCOM, Commissioner of Labor and Custodian of the Special Fund, Appellant, v. Lucille DEVINE, City of Calvert City, Western Casualty and Surety Company, and the Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Jan. 19, 1979.

      Gemma M. Harding, Deputy Gen. Counsel for Appeals, Dept, of Labor, Louisville, Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, for Special Fund.
    James W. Owens, Owens & Pierce, Chartered, Paducah, for appellee, Lucille Devine.
    Jonathan Freed, Boehl, Stopher, Graves & Deindoerfer, Paducah, for appellees, City of Calvert City and Western Cas. and Sur. Co.
    Before GANT, HOGGE and HOWER-TON, JJ. '
   GANT, Judge.

This is an appeal from a judgment of the Marshall Circuit Court affirming an award of the Workmen’s Compensation Board of 100% temporary total benefits against the employer and 100% permanent total benefits against the Special Fund. Claimant worked as a deputy clerk for the City of Calvert. On July 29,1975, as she was leaving the building on her way to make deposits for the City of Calvert in the bank, she stepped on a piece of concrete block and twisted her knee. As all the medical testimony confirms, the resulting injury has rendered her totally disabled. Since the day of the injury she has been unable to work and has undergone a total knee ortho-plastic.

Two physicians testified before the Board in this case. Dr. Morehead, while feeling that claimant was totally disabled from any gainful employment, was not willing to make a determination of the propriety of apportionment. He felt that he was unable, considering her prior nondisabling arthritic condition, to determine how much of the disability would have been caused by the injury itself. Dr. Carson, the Board-appointed physician, felt that the entire disability was caused by the arousal of the nondisabling pre-existing condition. He felt that, although claimant might have suffered from a temporary disability because of the knee injury without the prior arthritic condition, it would not have caused a permanent disability. The medical testimony of the two physicians together supports the finding of the Board that claimant is 100% occupationally disabled and that all of the permanent disability is caused by the prior arthritic condition.

The Special Fund raises two issues on appeal. The first is whether claimant is barred from recovery for permanent total disability because her pre-existing arthritic condition is not a “dormant nondisabling” condition since she knew of it and received Vitamin B-12 injections occasionally. The Special Fund relies on Young v. Pugh, Ky., 463 S.W.2d 928 (1971), for this position. In Young v. Pugh at 929, the court states: “We conclude that a person who has a disease condition known to him and who is being treated medically for that condition does not have a dormant nondisabling disease condition.” In that case, claimant had diabetes for which he was required to take insulin daily, but the opinion of the court is silent on whether the pre-existing disease was disabling in any way. Regardless, this definition of “dormant nondisabling disease condition” was reversed by the Supreme Court in Yocom v. Loy, Ky., 573 S.W.2d 645 (1978). It was held in that case that whether a pre-existing disease or condition was dormant does not turn on the claimant’s knowledge of the condition or whether it was being treated medically prior to an injury, but that a condition is dormant if it was occupationally nondisabling prior to a subsequent injury. Haycraft v. Corhart Refractories Co., Ky., 544 S.W.2d 222 (1976), and Yocom v. Spalding, Ky., 547 S.W.2d 442 (1977), further support this position. Clearly, “dormant” means nondisabling and “active” means disabling with reference to claimant’s ability to work prior to the subsequent injury. Testimony in this case clearly shows that claimant’s arthritis did not affect her ability to work and would not have become disabling absent the causative element of the injury she received.

The next argument raised by the Special Fund is that it can bear no liability for the permanent disability without a finding that the injury of July 20, 1975, was a causative factor thereof. This argument ignores the fact that the Board found that the arousal of the pre-existing condition was caused by the injury. However, the medical evidence indicated that absent the pre-existing arthritic condition claimant’s injury would have caused no permanent disability whatsoever; that the entire permanent disability was a result of the arousal of the arthritic condition. Consistent with KRS 342.120, the Board therefore apportioned the award so that the employer is liable for 100% of the temporary disability resulting from the injury and the Special Fund is liable for 100% of the permanent disability resulting from the awakening of the pre-existing condition. Under the evidence presented, we find no error in this award.

The judgment of the Marshall Circuit Court is therefore affirmed.

All concur.


author: WHITE, Judge.

text:
    Edna Maydean JONES, Appellant, v. Jerry JONES, Appellee.
    Court of Appeals of Kentucky.
    Jan. 26, 1979.
    As Modified March 9, 1979.

      Joseph M. Whittle, Leitchfield, John W. Bland, Jr., Lewis, Bland & Preston, Eliza-bethtown, for appellant.
    Kenneth F. Smart, Leitchfield, for appel-lee.
    Before WHITE, HOGGE and VANCE, JJ.
   WHITE, Judge.

On March 31, 1978, the Grayson Circuit Court entered a decree which dissolved the parties’ marriage and provided for the custody of their minor child. The issues in the instant appeal center upon the decree’s custody provision, which recites that temporary custody is awarded to the appellee-fa-ther, father and child to reside with the paternal grandparents. Appellant, the child’s mother and respondent below, advances several substantive arguments to the effect that this provision constitutes an improper award of custody to a nonparent. The presumption in favor of natural parents, the sufficiency of the evidence, and the tender years presumption have all been assigned as the basis of error. Appellant also contends that reversal is warranted due to the lack of findings of fact below. To evaluate the soundness of these arguments the record must be examined to determine the applicable legal principles. Inasmuch as the judgment appealed from is dated March 31, 1978, only the evidence to that date will be considered. This Court may not consider any facts presented at the May 5 hearing as to the parties’ fitness. Bond v. Shepherd, Ky., 509 S.W.2d 528, 530 (1974).

At the date of dissolution the parties had been married two and one-half years and their only child, a son, was nineteen months old. It appears that appellant was first awarded temporary custody of the child by the court, although custody was requested by appellee in the original petition. At the January 25 hearing, however, custody was changed to appellee, the court finding that he was a fit and proper custodian. Appellant contends that since the lower court did not specifically find her to be unfit, the decision below is erroneous.

The applicable rule of law herein will depend upon whether the case is viewed as a parent/nonparent dispute or as a parent/parent dispute. When the choice of custodian is to be made between a natural parent and a nonparent, the parent will prevail if all else is equal. Bond v. Shepherd, supra; James v. James, Ky., 457 S.W.2d 261 (1970). The case of Killen v. Parker, Ky., 464 S.W.2d 815 (1971), indicates that where the only distinction is the degree of affluence, custody should be awarded to the parent. Chandler v. Chandler, Ky., 535 S.W.2d 71, 72 (1975), states that the rule means that it must be shown that the child’s welfare is better served by placement with the nonparent and also that the parent is unfit.

The tender years presumption, on the other hand, applies in disputes between the child’s natural parents. Often criticized, this doctrine expresses a preference for the mother as a custodian of young children. Moore v. Moore, Ky.App., 577 S.W.2d 613, 26 Ky.L.Summ. 1 (1979). The presumption applies only where both parents are equally fit to raise the child. Casale v. Casale, Ky., 549 S.W.2d 805 (1977). If the father is better suited as custodian, the presumption is not only inapplicable, but the father may be awarded custody even though the mother is not found to be unfit. Hamilton v. Hamilton, Ky., 458 S.W.2d 451, 452 (1970).

This appears to be a parent/parent dispute for several reasons. First, by express terms of the decree, the appellee-fa-ther was awarded custody. The mere fact that appellee resides with his parents does not alone mean that custody was actually awarded to the grandparents. Calhoun v. Calhoun, Ky., 559 S.W.2d 721 (1977). More importantly, however, it should be noted that the grandparents are not named as parties to this appeal. Given that fact, the mother’s argument seems to be that the trial court incorrectly considered the grandparents’ influence, situation in life, and ability to care for the child in assessing appellee’s suitability as custodian. However, it is clear that the trial court was quite correct in considering the above factors. See Calhoun v. Calhoun, supra; Perkins v. Perkins, 291 Ky. 571, 165 S.W.2d 152 (1942). KRS 403.270 requires that all factors affecting a child’s best interests be evaluated in determining custody.

Further, the fact that the trial court stated in the decree that appellee and the child were to live with the grandparents does not make this case a parent/nonparent dispute. Rather, the statement as to living arrangements does no more than expressly state the inherent power of the trial court. Since, as stated above, KRS 403.270 requires the trial court to evaluate all relevant factors surrounding the child, the court must, in part, base its decision on the existing living conditions. Should those conditions substantially change, the trial judge may order modification upon proper application. While it is questionable whether a trial court may condition a party’s custody on maintaining specific living arrangements (as opposed to standards), ap-pellee does not complain of this.

Viewing the case as a parent-to-parent dispute, the tender years presumption must be addressed. Simply put, the presumption is not applicable herein because all things are not equal between the parties. The record discloses that the appellant-mother was seventeen years old at the time of the decree, unemployed, and living with eight relatives in a four-room house. (Appellant’s mother did testify, however, that one room of this house was large enough to have been partitioned into three separate bedrooms.) The house lacks both running water and inside toilet facilities. The evidence also shows that appellant has moved three times since the parties’ separation in September of 1977 and that the child lost two pounds in one month while in appellant’s custody. It appears that at one point appellant and the child lived with appellant’s sister and her two children. Due to a large amount of visitors and noise, however, the landlady requested that appellant and her sister move.

Further testimony indicated that appellant had had sexual relations in the same room as the sleeping child, and that she was an untidy housekeeper. It was not shown, however, that this sexual relationship in any way affected the child. Evidence was also introduced showing that the child had contracted a rash, but that appellant had sought medical treatment.

Appellant testified that appellee drank excessively and paid little attention to the child during the parties’ marriage. However, it appears that appellee regularly visited the child after the parties’ separation and paid for some of his medical expenses. Appellee was twenty-two years old and employed by his father when the decree was entered, although it appears that he was periodically unemployed over the years. Appellee lives with his parents and apparently has done so since the parties’ separation.

Since both parties reside with their parents, the choice to be made is naturally influenced by the nature of such arrangement. The major difference between the two appears to be one of affluence, although appellant’s current inability to find work is also an important factor. While Killen v. Parker, supra, indicates that affluence alone is not sufficient as a basis for a decision, that case involved nondivorced parents who could provide more than minimal standards of care for their child. In any event,

[tjhough every effort must be made to exclude or offset the element of economic disadvantage, it cannot be completely ignored if the ultimate objective is the welfare of the child. Regrettably, it is a fact of life and there is no honest way to deny its relevance. Calhoun v. Calhoun, supra, at 723.

Coupling the appellant’s immaturity and unemployment with the crowded living conditions at her home, it appears that all things are not equal between the parties as affects the relationship with the child.

Although appellant complains of the trial judge’s failure to make a finding of fact as to her fitness, Hamilton v. Hamilton, supra, does not require the judge to do so. In any event, appellant did not request such a finding below, so CR 52.04 prohibits reversal or remand on this ground.

Custody questions are among the most difficult issues to resolve. In this case, we cannot say that the findings of the trial court are clearly erroneous. CR 54.01. Where the evidence presents no more than a doubt as to the propriety of the ruling below, we are bound to abide by it. Perkins v. Perkins, supra; Eviston v. Eviston, Ky., 507 S.W.2d 153 (1974). Should the relevant facts change, of course, appellant may seek modification under KRS 403.340.

For the reasons stated herein, the judgment of the trial court is affirmed.

All concur.

      . At this juncture, the March 17, 1978 amendment to KRS 403.270 should be noted. The statute now requires that each parent in a custody dispute be given equal consideration. This amendment, which appears to abrogate the tender years presumption, became effective June 17, 1978. However, the amendment is not applicable to the instant appeal because the decree herein was entered March 31, 1978.


author: MARTIN, Chief Judge.

text:
    Marcus Earl TAYLOR, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 26, 1979.

      Terrence R. Fitzgerald, Deputy Public Defender, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.
    Before MARTIN, C. J., and REYNOLDS and WILHOIT, JJ.
   MARTIN, Chief Judge.

This is an appeal of an armed robbery conviction in Jefferson Circuit Court where appellant was sentenced to the penitentiary for a period of fifteen years. The principal issue raised is the refusal of the trial court to exclude testimony of the arresting police officers regarding the recovery, during an illegal search, of a cash box and wallet taken during the robbery.

The Commonwealth proved very effectively that the armed robbery was committed by the appellant. However, rather than resting its case, the Commonwealth proceeded, over objection, to question the police officers about items recovered from the basement of the house where appellant was arrested. The refusal of the the trial court to exclude this testimony denied the appellant a fair trial under the United States Supreme Court guidelines and leaves us no alternative but to reverse the conviction and order that appellant be granted a new trial.

The proof of the Commonwealth established that on May 20, 1977, at approximately 8:45 A.M., an armed robbery occurred at the Restonic Sleep Products Company in Louisville. A single gunman took a cash box containing approximately $35 and a .wallet containing an undetermined amount of cash. William Friddle, an employee of Restonic, followed the robber out of the store. Friddle testified that he got into his car and watched the appellant walk down the street. Though losing sight of him for a moment, he later observed him entering a house on St. Louis Street with the cash box under his arm. Upon sighting a police car, Friddle stopped the car and told the officers that he had observed the robber of the Restonic Company office enter the house.

Louisville Police Officer Carolyn Farrago testified that she and her partner, Officer Hill, were responding to a radio call concerning the Restonic robbery when Friddle stopped their car. As she began her testimony, counsel for the appellant objected to any reference to the items that had been taken at the time of, and following, appellant’s arrest. The grounds given were that there was no probable cause for the search of the house nor was there a search warrant prior to the search of the house. The trial court overruled this motion, holding there to be probable cause to enter the house and conduct a search, including the basement.

Officer Farrago testified that after being stopped by Friddle, she called for additional police support. Two other cars arrived shortly thereafter and two officers went to the front door and knocked. Appellant answered the door and was immediately identified as the robber by Friddle. The appellant was questioned for a short period of time at the door, and then was placed under arrest by Officer Jamison of the Louisville Police Department.

The house in which the appellant was arrested was described as a shotgun type building, that is, it was long and narrow. The appellant was arrested in the front part of the house or on the front porch and was taken from there to a district police station. The area immediately surrounding appellant was searched by the arresting officers upon arrest. Shortly after this, however, additional officers arrived and began searching the house thoroughly. They proceeded from the area of the front of the house to the rear of the house where they discovered, by rolling back the floor covering, a trapdoor leading to the basement. Lifting the trapdoor, they found the cash box and wallet that Friddle had identified as having been taken in the robbery. ■

In the present case, the Commonwealth argues that the proof of guilt of appellant was so substantial that the testimony describing the property recovered was harmless error. We disagree.

The evidence for the prosecution clearly established that the stolen items were recovered in the back room of the house. However, the appellant was arrested by the front door, was detained in the front room for a while and then taken to police headquarters. No evidence was introduced at trial to suggest that appellant was in the back part of the house at any time after his arrest, and it is not even clear that he was present in the house when the evidence was discovered. There was no suggestion made by the arresting officers that they suspected any other person to have been involved in the robbery or to have been present in the house.

In Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the court emphasized that warrantless searches, whether or not incident to arrest, are the exception and not the rule. A search of the person of an accused, and of the area within his immediate control, is only justified where the exigency of the situation demands it. Thus, for example, a warrantless search is permissible where it is necessary to prevent harm to arresting officers, where there is the possibility that suspects will escape, or where evidence may be destroyed. See United States v. Shye, 473 F.2d 1061 (6th Cir. 1973).

Even when there is ample justification for permitting a limited warrantless search because of exigent circumstances, the Chimel court noted, at 89 S.Ct. 2040:

There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs —or, for that matter, for searching, through all the desk drawers or other closed or concealed areas in the room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant.

In Harris v. Commonwealth, Ky., 469 S.W.2d 68 (1971), the court held that, incident to a lawful arrest, police officers may seize evidence which is in plain view. The court also held that the seized evidence may not be searched, however, in order to discover the contents. Such a search clearly goes beyond the limitations imposed by the plain view doctrine. Furthermore, when an officer makes an arrest in a room, he has no right to search any other part of that room except that which is in the immediate control of the suspect. Cf. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); Nichols v. Common wealth, Ky., 408 S.W.2d 189 (1966). The plain view exception pertains solely to the inadvertent observation of the items seized where the initial intrusion brings the police within plain view of the article. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). In the present case, the items seized were clearly not within the plain view of the arresting officers.

In United States v. Hayes, 518 F.2d 675 (6th Cir. 1975), the defendants were arrested in their automobile and subsequently handcuffed. They were taken back to their motel and the police conducted a search. The court held that this warrant-less room search could not be validated as incident to a lawful arrest. The court reasoned that, since the arrests occurred in an area well outside the searched rooms, the warrantless search could not be justified. In United States v. Griffith, 537 F.2d 900 (7th Cir. 1976), the court held that, in a situation where there was no danger that the suspect could reach for a weapon, police officers could not conduct a search in any room other than that in which the arrest occurred. A search of other rooms is forbidden by Chimel, as is a search of closed or concealed areas in the room where the accused was arrested.

In United States v. Shye, supra, the court noted that, once the suspect is under the control of police officers, the area of permissible search is narrowed accordingly. See also United States v. Griffith, supra. This holding illustrates the balancing test required by Chimel. The exigent circumstances test balances the right of the individual to be free from unreasonable intrusions against the need of society to effectively investigate criminal offenses. See United States v. Hayes, supra; Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

We can see no alternative in this case other than to reverse the conviction of the appellant and return the case to the Jefferson Circuit Court for retrial. At the next trial, all reference to items taken in the illegal search should be excluded.

All concur.


author: WASSERSTROM, Judge.

text:
    MAIN LINE HAULING CO., INC., Respondent, v. PUBLIC SERVICE COMMISSION of the State of Missouri, Appellant, Orscheln Bros. Truck Lines, Inc., a corporation, Middlewest Freightways, Inc., a corporation, Anderson Motor Service, Inc., a corporation, and Churchill Truck Lines, Inc., a corporation, Intervenors-Appellants.
    Nos. KCD29486, KCD29501.
    Missouri Court of Appeals, Kansas City District.
    Aug. 28, 1978.
    Motion for Rehearing and/or Transfer Denied Oct. 10, 1978.
    Application to Transfer Denied Nov. 6, 1978.
    Thomas A. Hughes, Arthur L. Conover, Jefferson City, for appellant.
    Jeremiah D. Finnegan, Russell D. Jacobson, Kansas City, for respondent.
    John E. Burruss, Jr., Jefferson City, for intervenors-appellants.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Main Line Hauling Co., Inc., petitioned the Circuit Court for a judgment declaring its right to “tack” three separate approved routes so that Main Line could provide through service from the furthest extremity of each route to the furthest extremity of each of the other routes. The Circuit Court granted declaratory relief of the nature prayed and enjoined the Commission against seeking sanctions against Main Line for instituting the proposed service. The Public Service Commission and four intervening competitor truck lines appeal. We reverse.

Main Line holds a certificate of public convenience and necessity giving it a route to transport commodities between St. Louis, Missouri, and Hy-Point Industrial and Research Park near Rolla, Missouri, another route between Kansas City, Missouri, and the Park, and still a third route between Springfield, Missouri, and the Park. Main Line claims that it is entitled to tack or join one of these authorities to another so that for example it may haul commodities directly from St. Louis to Kansas City via Rolla. It concedes that the Commission could have limited the certificate by express provision so as to specifically prohibit such tacking, but Main Line contends that in the absence of such an express limitation it does have the right to tack unless and until the Commission undertakes to impose a prohibition after due notice and hearing.

The intervenors hold authorities for regular through service between Kansas City and St. Louis. They and the Commission oppose Main Line’s interpretation of its right to tack. Intervenors and the Commission say that under the statutes, a carrier can do only that which is specifically spelled out in its certificate, and absent a specific grant of authority to provide through service such authority does not exist. This constitutes their Point on Appeal as relates to the merits of the controversy in this case. They also present a preliminary point that the trial court erred in exercising jurisdiction in this matter at this time, because the doctrine of primary jurisdiction requires that the issue on the merits be presented to the Public Service Commission in the first instance.

I.

The Doctrine of Primary Jurisdiction

This doctrine is based on a judicial policy of self-restraint and calls upon a court to defer to and give an administrative agency the first right to consider and act upon a matter which calls for factual analysis or the employment of special expertise within the scope of the agency’s responsibility entrusted to it by the legislature. 2 Am.Jur.2d, Administrative Law, Sec. 788, p. 688 et seq.; 73 C.J.S. Public Administrative Bodies and Procedure § 40, p. 347; State ex rel. Cirese v. Ridge, 345 Mo. 1096, 138 S.W.2d 1012 (banc 1940). However, where there are no factual questions or issues requiring administrative expertise, but instead only questions of law which fall within the conventional competency of the courts, there is no reason for judicial deference to the administrative agency and the doctrine of primary jurisdiction has no application. 2 Am.Jur.2d, Administrative Law, Sec. 793, p. 696; 73 C.J.S. Public Administrative Bodies and Procedure, § 41, p. 351; Smith v. Thompson, 234 Mo.App. 1151, 137 S.W.2d 981 (1940). See also Klicker v. Northwest Airlines, Inc., 563 F.2d 1310 (9th Cir. 1977).

In the instant case, the substantive issue presently for consideration can be resolved as a pure question of law, as will be seen from Section II of this opinion. Therefore, the doctrine of primary jurisdiction did not preclude exercise of jurisdiction by the Circuit Court.

II.

The Right to Tack

Section 390.051-1 (all statutory references are to RSMo 1969) provides that “ * * * no person shall engage in the business of a common carrier in intrastate commerce on any public highway in this state unless there is in force with respect to such carrier a certificate issued by the commission authorizing such operations.” Section 390.051-7 provides that it shall be unlawful for any common carrier, except one having a certificate authorizing such service, to accept property for transportation between points on an authorized regular route. The Missouri Public Service Commission has construed those sections to mean that a carrier in this state holding authority for two separate routes running to a common point may not tack those authorities where no authority for such tacking has been specifically granted by the Commission’s certificate. Re Healzer, 5 Mo. P.S.C. (N.S.) 129 (1954). See also Anderson Motor Service Co., et al. v. Orscheln Bros., 21 Mo.P.S.C. 368 (1934), affirmed State ex rel. Orscheln Bros. Truck Lines, Inc. v. Public Service Commission, 232 Mo.App. 605, 110 S.W.2d 364 (1937).

The administrative agencies and courts of many states have reached the same result under comparable statutes. Most of these jurisdictions hold tacking may not be permitted except upon a hearing and a particularized finding in each individual case of public convenience and necessity for the joinder. As stated in McKenna v. Nigro, 150 Colo. 335, 372 P.2d 744, 747 (1962), “state courts have consistently held that before two or more separate authorities may be integrated into one authority providing an entirely new service, there must be a showing that public convenience and necessity demand the new integrated service.” In support: Enid Transfer & Storage Co. v. State, 201 Okl. 274, 190 P.2d 150 (1947); Application of Calhoun, 51 Wyo. 448, 68 P.2d 591 (1937); Pennsylvania R. Co. v. Public Utilities Comm., 116 Ohio 80, 155 N.E. 694 (1927); Eastridge v. Southeastern Greyhound Lines, 280 Ky. 392, 133 S.W.2d 95 (1939); Central Truck Lines v. Railroad Comm., 118 Fla. 555, 160 So. 26 (1935); Central Truck Lines v. Railroad Comm., 158 Fla. 68, 27 So.2d 658 (1946). See also Michigan Exp., Inc. v. Michigan Public Service Comm., 333 Mich. 101, 52 N.W.2d 616 (1952); Murphy Motor Freight Lines, Inc. v. Witte Transportation Co., 260 Minn. 440, 110 N.W.2d 296 (1961); Santa Fe Trail Transportation Co. v. State, 468 P.2d 791 (Okl.1970). A typical statement of the reason for this rule appears in Pennsylvania R. Co. v. Public Utilities Comm., supra, at l.c. 697:

“An application to convert a local service, operated under two separate certificates, into a through service, is in effect, an application for a certificate of convenience and necessity to operate a new route, it being in effect an application to change one of the termini of each of the existing certificates and to convert two separate routes into one.”

Some cases have countenanced a more liberal practice under which the administrative agency in its discretion may authorize tacking in a general category of cases on a blanket basis, without individual findings in each particular case; but these holdings likewise recognize that in the absence of the adoption of such a policy, there is no right to tack. Duff Truck Line, Inc. v. Public Utilities Commission, 46 Ohio 2d 186, 348 N.E.2d 127 (1976); Commercial Motor Freight, Inc. v. Public Utilities Commission, 46 Ohio 2d 195, 348 N.E.2d 132 (1976); Duff Truck Line, Inc. v. Public Utilities Commission, 51 Ohio 2d 4, 364 N.E.2d 856 (1977); Nebraska State Railway Commission v. Seward Motor Freight Inc., 188 Neb. 223, 196 N.W.2d 200, 203 (1972), cert. den., 409 U.S. 1028, 93 S.Ct. 464, 34 L.Ed.2d 321. The governing rule is stated in Seward as follows: “Except in instances where the right to tack has been specifically granted by the Commission, the right does not exist. It is not an implied right inherent in existing certificates.”

If the view be adopted that the Missouri statute bars tacking except when the Commission has made a specific finding of public convenience and necessity therefor, then, of course, Main Line has no right to tack its three routes in question because the Commission has made no such finding. Even if the more liberal view be accepted that the Commission in its discretion may allow tacking on a blanket basis in one or more categories of cases, the Missouri Commission has never adopted any such policy. To the contrary, the Missouri Public Service Commission in Healzer adopted and has ever since consistently followed the policy of not permitting tacking, unless the certificate specifically so provides.

Main Line argues, however, that the Federal rule with respect to interstate commerce is different and that the Interstate Commerce Commission has adopted the policy of recognizing a right to tack in every case where the certificate does not expressly so prohibit. Main Line argues that the Federal policy is persuasive and should be followed in lieu of the present Missouri policy, which it says is contrary to the interests of carrier efficiency and energy conservation. This matter of policy is highly debatable. The Interstate Commerce Commission itself came to doubt the wisdom of its permission of automatic tacking and has made a restudy of that policy. Thompson Van Lines, Inc. v. United States, 399 F.Supp. 1131, l.c. 1133 (D.D.C.1975). In any event and even assuming that the Missouri Public Service Commission does have a right under the Missouri statute to adopt a general policy permitting blanket tacking, any change in the existing Missouri policy is a matter requiring factual analysis and much administrative expertise which clearly would come within the doctrine placing primary jurisdiction in the administrative agency rather than in the court. Certainly the court should not intrude into that determination at least until the agency acts first, and then only to the extent of determining whether the administrative findings are reasonable and supported by a proper record.

Main Line also argues that blanket tacking should be permitted because of the opinion of this court in State ex rel. Philipp Transit Lines, Inc. v. Public Service Commission, 523 S.W.2d 353 (Mo.App.1975). In Philipp Transit this court held that statutory Section 390.116 authorized inter-lining between two carriers going to a common point and that Rule 35 by the Commission purporting to provide to the contrary was invalid as in contravention of the statute. There is at least one important difference between the problem of inter-lining as compared to the problem of tacking. In the case of inter-lining, there are two separate carriers; whereas in the case of tacking, there are two or more routes owned by a single carrier. It should be noted that if routes originally issued to two different carriers are thereafter consolidated in the hands of one carrier, the right of inter-lining no longer exists, and the situation is then covered not by Section 390.116, but rather by Section 390.111-2. Thus the legislature itself has recognized a sharp difference between multiple ownership of routes as against single ownership of more than one route. It should also be noted that this court in Philipp Transit took special pains to point out that the routes there were separately owned, with the result that Sec. 390.111-2 did not apply.

Other differences between the problems of inter-lining and tacking may exist. That again raises factual questions and issues requiring administrative expertise, all of which calls for the application of the doctrine of primary jurisdiction in favor of initial consideration by the administrative agency. If the decision in Philipp Transit so alters the regulatory problems so as to render a change advisable with respect to tacking, that must be taken up with and passed upon by the Commission in the first instance.

Main Line has no present right to tack the three routes in question, and the trial court erred in ruling to the contrary. The judgment is therefore reversed.

All concur.

      . The opinion of this court in Orscheln did not pass on the right of a carrier to tack per se, but rather placed the denial of the right of the carrier in that case to tack upon the ground that the carrier in its application to the Commission had made an affirmative representation that it was not seeking authority for through transportation and it expressly disclaimed the right to tack. The question suggests itself whether Main Line in the present case should be considered as having made an implied representation of a willingness to accept the three routes granted subject to the existing policy expressed in Healzer, thereby bringing this case within the rationale of the Orscheln Bros, decision. Certainly it must have been the Commission’s intention that Main Line’s route authorizations be subject to the Healzer condition against tacking. However it is not necessary to a decision in this case to explore and rule upon these propositions.


author: TURNAGE, Judge.

text:
    John GERMANN et al., Appellants, v. CITY OF KANSAS CITY, Missouri, a Municipal Corporation, et al., Respondents.
    No. KCD 29510.
    Missouri Court of Appeals, Kansas City District.
    Nov. 27, 1978.
    Motion for Rehearing and/or Transfer Denied Jan. 31, 1979.
    Lawrence F. Gepford, Kansas City, for appellants.
    Harry L. Browne, Kansas City, for respondents.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

John Germann, George P. Smith, William T. Pelletier and Local 42 of the International Association of Firefighters filed suit against the City of Kansas City for a declaration that Ordinance No. 46749 was void because it excluded battalion chiefs of the fire department from joining the same union as rank and file members of the fire department. The trial court found the ordinance to be valid and Germann and the other plaintiffs appeal. Affirmed.

The parties stipulated to the following facts. For a number of years all firefighters employed by the fire department of Kansas City have been members of Local 42 except for the fire chief. As of July 1, 1976, the fire department consisted of one fire chief, two deputy fire chiefs (3 authorized), 18 battalion chiefs (21 authorized), 153 captains (162 authorized) and 685 fire apparatus operators and firefighters. In addition, there was one chief fire prevention inspector who supervised 10 inspectors, one superintendent of garage who supervised 13 employees, and one supervisor of alarm who supervised 18 employees.

From 1966 until October, 1975, Local 42 engaged in six slowdowns or partial work stoppages. In these instances the union members refused to perform certain functions and in some instances called in sick rather than reporting for duty. In October, 1975, Local 42 voted to engage in a complete strike with all of its members refusing to perform any services. This left the City with only one professionally trained firefighter, the fire chief, on duty for a period of four days. During this time some deputy chiefs and battalion chiefs were individually requested to report for duty but refused.

After this complete work stoppage, the City and Local 42 entered into a memorandum of understanding whereby pay raises were provided and those employees designated as supervisors were prohibited from belonging to a labor organization which also admitted to membership employees they supervised. Deputy chiefs and battalion chiefs were included in the definition of supervisors. In July, 1976, the city council of Kansas City adopted Ordinance 46749 to implement the agreement between the City and Local 42. This suit was filed to challenge the validity of provisions of the ordinance prohibiting battalion chiefs, as supervisors, from joining the same union as rank and file employees of the department.

In their petition the Local and the three battalion chiefs alleged the ordinance denied the battalion chiefs their constitutional rights under the First, Ninth and Fourteenth Amendments of the United States Constitution and was, therefore, void because it prevented exercise of their right of freedom of association by unjustly and severely limiting their right to belong to the labor organization of their choice. The petition further alleged the ordinance was invalid because it impinged upon the right of the battalion chiefs to join the labor organization of their choice in contravention of § 105.510, RSMo 1969.

The trial court made the following findings of fact and conclusions of law: (1) governmental employers have the right to prevent supervisors from being a part of the union which represents the employees they are required to supervise; and (2) in view of the organization of the fire department, the organization and disciplinary rules of the International Association and Local 42, the history of labor-management controversies involving Local 42, and general management needs for the undivided loyalty of supervisors, there existed a governmental interest of sufficient importance to justify the limited and conditional restriction on freedom of association imposed on battalion chiefs by the ordinance. In its judgment the court relied on Elk Grove Firefighters Local No. 2340 v. Willis, 400 F.Supp. 1097 (N.D.Ill.1975) aff’d unpublished order 539 F.2d 714 (7th Cir. 1976).

On this appeal the chiefs and the Local continue their argument that the ordinance is void because it restricts the chief’s constitutional right of freedom of association and because under § 105.510 they have a right to form and join labor organizations. In support of these contentions some question is raised in their brief as to whether or not the chiefs should be classified as supervisors. However, no contention was made in the petition or presented to the trial court concerning the propriety of classifying battalion chiefs as supervisors. Hence, such question is not preserved for review on this appeal. Vineyard v. Vineyard, 409 S.W.2d 712, 718[6] (Mo.1966).

This court finds the decision in Elk Grove Firefighters, supra, persuasive to reject the contention that the ordinance denies the chiefs their constitutional rights by prohibiting their membership in the same union as firefighters under their supervision. In Elk Grove the court considered precisely this same issue concerning a village policy which prohibited fire department captains and lieutenants from belonging to the same union as rank and file firefighters. There also, the captains and lieutenants claimed this policy infringed upon their First Amendment freedom of association rights. The court noted that although the village policy undoubtedly affected the parties’ First Amendment rights, both as to membership in economic associations such as unions and in their capacity as public employees, such First Amendment rights are not without limit and the extent of such limits requires a balancing of the public interest which underlies the limitation. The court held at 400 F.Supp. 1100[6, 7]:

Where the state seeks to limit First Amendment freedoms it must show (1) that a substantial, legitimate state interest (2) will in fact be served, and (3) that the limit imposed on First Amendment activities is the least drastic restriction of constitutional rights which will accomplish the state’s purpose. Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960).

The village contended a conflict of interest would result if captains and lieutenants belonged to the same union as those they supervised, thus impairing the efficiency of the fire department and endangering the lives and property of the public. The court found that an efficient fire department is a legitimate and substantial state interest, particularly because firefighters must be available to act quickly and effectively to prevent the loss of life and property. The court, quoting from Beasley v. Food Fair of North Carolina, Inc., 416 U.S. 653, 660, 94 S.Ct. 2023, 2027, 40 L.Ed.2d 443 (1974), stated, “[mjanagement, like labor, must have faithful agents,” and then continued at 400 F.Supp. 1102:

To permit the officers to join and become subject to the discipline of a union in which they are outnumbered by firefighters by greater than a three-to-one ratio could deprive the Village of the undivided loyalty of the officers to which it is entitled.

The court then illustrated the inherent conflict of interest by hypothesizing a union position against involuntary overtime and a decision by a supervisory official that such overtime was necessary for efficient operation of the department. The court noted that the officer ordering the overtime, as a union member, would be caught in a clash between his duty to the department and his duty to pursue union ends. The court, explaining this was the type of conflict the village policy sought to prohibit, concluded by stating at 400 F.Supp. 1103[9]:

The Village cannot be told to wait and see whether any conflict develops in fact. The creation of a common union composed of rank and file firefighters and their superior officers poses a sufficiently serious threat of ineffective supervision based upon divided loyalties to warrant preventive action.

In holding the action of the village was the least restrictive means of serving the legitimate governmental purpose of maintaining an efficient fire department, the Elk Grove opinion noted that officers involved were not precluded from joining labor organizations which excluded rank and file firefighters.

In the case sub judice it was stipulated that Kansas City battalion chiefs were charged with responsibility for evaluation of employees under their supervision and under certain circumstances could make other work assignments and order employees under their direction to work overtime. Evaluation of employees is a significant responsibility because merit raises depend upon the results of such evaluations. It was further stipulated that in the absence of the chief of the fire department, a deputy chief acts as chief. In turn, in the absence of a deputy chief, including absence due to acting temporarily as fire chief, a battalion chief acts as deputy fire chief. In addition, during weekends and certain weekday hours, a battalion chief is the ranking officer on duty and is in charge of the fire department.

Clearly, the battalion chiefs occupy one of the most responsible positions in the Kansas City Fire Department and it is beyond question that an irreconcilable conflict of interest may well arise when they act as the officer in charge of the entire department and hold union membership with the firefighters. Decisions which must be made objectively for the best operation of the department may be in opposition to a position assumed by the union.

For the reasons fully explained in Elk Grove, this court holds the prohibition of battalion chiefs from holding membership in the same union as the firefighters they supervise serves a legitimate state interest and the restriction of their First Amendment rights is the least drastic restriction to accomplish this purpose.

The remaining contention, that battalion chiefs have a right to belong to the union under § 105.510, has been fully answered by this court in Golden Valley Memorial Hospital District v. Missouri State Board of Mediation, 559 S.W.2d 581 (Mo.App.1977), where this court held the term “employee,” as used in § 105.510, did not refer to every employee on the public payroll and that supervisors may be excluded from a labor bargaining unit representing public employees. Thus, assuming without deciding that § 105.510 applies to Kansas City, a constitutional charter city, such section does not prohibit the City from restricting supervisors from joining the same union as those they supervise.

The judgment is affirmed.

All concur.


author: DIXON, Judge.

text:
    Annetta SHEFTON, Plaintiff-Appellant, v. MISSOURI STATE DIVISION OF FAMILY SERVICES, Defendant-Respondent.
    No. KCD 29740.
    Missouri Court of Appeals, Kansas City District.
    Nov. 27, 1978.
    Motion for Rehearing and/or Transfer Denied Jan. 31, 1979.

      James M. Smith, Effie F. Day, Legal Aid of Western Missouri, Kansas City, for plaintiff-appellant.
    Robert R. Northeutt, Paul T. Keller, Div. of Family Services, Jefferson City, for defendant-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

In this case, claimant appeals from a circuit court decision affirming the denial of relief by the Director of the Missouri Division of Family Services which followed a hearing before a referee.

The sole issue to be determined is the validity of the Director’s order which found the claimant medically eligible for relief but required that she reapply for the benefits.

The record in the case is far from satisfactory, but most of the factual background is undisputed. When the claim was processed by the county agency, it was rejected because a “medical review” team deemed the claimant was “employable.” The appeal, as specifically stated by the referee appointed to hear the case, was on the ground that the medical evidence showed that the claimant did not “have a disability severe enough to prevent her from accepting some form of employment.” At the hearing, the claimant produced evidence of such a physical disability, based upon an examination made after the rejection of her claim. No evidence was produced to show the claimant ineligible on any other ground. As noted, the director, on the basis of the referee’s record, found the claimant medically eligible and directed that she reapply. Attached as a part of the record before the referee were exhibits which purport to be the caseworker’s file on the original claim. The director does not claim that these documents establish any disqualification except the contested issue of employability.

The claimant argues that it was the obligation of the director to make an award upon the record made before the referee, and that upon the record so made the claimant was entitled to an award of general relief. Claimant points out that the uncon-tradicted evidence shows unemployability for medical reasons, and the director so found.

The duty of the director is unquestionably to make an award based on the whole record before the referee, including facts and circumstances occurring after the rejection of the claim and before the hearing. Collins v. Division of Welfare, 364 Mo. 1032, 270 S.W.2d 817 (banc 1954). Wigand v. State Department of Health and Welfare, 454 S.W.2d 951 (Mo.App.1970).

Both Collins and Wigand presented factual situations where the record made before the referee supported the denial of claims, and thus no issue of retroactive benefits arose. In Marshall v. State Department of Public Health and Welfare, 485 S.W.2d 693 (Mo.App.1972), however, the court held that the director’s denial of retroactive benefits was improper where the record supported a finding of present eligibility. This case is squarely within the ruling of Marshall as evidenced by the following quotation from that case:

“The director can only decide the ultimate fact of eligibility on the basis of the record made before him. When he has done that favorably to the claimant, then Section 208.090 V.A.M.S. plainly requires that the award be made retroactively to the date of the denial of the application. The Director may not divide his decision, as here, asserting present eligibility but denying retroactive effect by making a finding as to a previous state of facts which he has no authority to make. His decision must be on the record made before him. Section 208.080(3) V.A.M.S.” Marshall, supra at 696.

The director virtually concedes that Marshall controls the issue in the brief filed here, but urges that the case be remanded to the director for a “redetermination” of the issues in accordance with § 208.100 RSMo 1969, which the director contends limits this court to such an order of remand. Implicit in that contention is that in welfare cases review is limited to the statutory grounds of “fair bearing” and a determination that the decision was not “arbitrary” and “unreasonable.” That position as to the scope of review is untenable since the decision in Hill v. State Department of Public Health and Welfare, 503 S.W.2d 6 (Mo. banc 1973), which held that welfare benefits conferred private rights under Article V, Section 22, Mo.Const.1945, and that the scope of review in such cases was within the purview of § 536.140(2) RSMo 1969, which requires among other determinations a decision whether the agency action is “unauthorized by law.”

The merry-go-round of administrative and judicial review must stop someplace. In the instant case, the circuit court, without notice of hearing, summarily denied the appeal. Within thirty days, the claimant filed a motion to set aside the judgment and filed suggestions citing Wi-gand and Marshall in support of the motion. This motion was summarily overruled by the circuit court the day it was filed. The statutes governing review of administrative action assume a meaningful review by the circuit court to eliminate eases from further review in which no real issue of interpretation or construction of statutory or decisional law is concerned. This is such a case. A denial of such meaningful review is not only a denial of a statutory right but also taxes an overburdened appellate system with unnecessary appeals.

The decision in Hill, supra, requires that a determination be made, first by the circuit court and then by this court, whether the agency action is authorized by law. The circuit court, in its judgment, failed to make that determination. The circuit court judgment is, therefore, reversed, and the cause is remanded to the circuit court with directions to set aside the order of the director and remand the cause to the director with directions to enter an order declaring the claimant eligible for general relief for the four-month period covered by the evidence of medical disability presented to the referee.

All concur.


author: CRIST, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Gregory WILLIAMS, Defendant-Appellant.
    No. 39731.
    Missouri Court of Appeals, St. Louis District, Division Pour.
    Dec. 12, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 16, 1979.
    Application to Transfer Denied March 13, 1979.

      Cynthia Holmes, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Joseph Warzycki, Asst. Public Defender, St. Louis, for plaintiff-respondent.
   CRIST, Judge.

Defendant Gregory Williams was found guilty by a jury of the offense of assault with intent to commit rape without malice aforethought, and was sentenced to imprisonment for a term of five years. Defendant appeals. We affirm.

Defendant complains: (1) the State made an illegal search of his room; (2) the court should have instructed on the lesser offense of common assault; and (3) he was prejudiced by a juror reading a newspaper during his trial.

Was it error for the court to admit evidence obtained, without a search warrant, in the search of defendant’s room? The court could have found the following facts: Just after the attempted rape, defendant was seen carrying a briefcase which briefcase was entered into evidence. With information obtained from the victim and another witness, the police went directly to a house owned by Ardeane Walker, the defendant’s aunt. The police informed her that defendant was implicated in an incident they were investigating and asked if she knew him. She replied that she did, and that he was sleeping in her son’s bedroom. When asked if they could enter and talk to the defendant she admitted them. Defendant was found in the bedroom. He was arrested and taken to the police station. The following morning Ms. Walker called the police department to report the finding of the briefcase in her son’s room. The police returned to the Walker residence to pick up the briefcase and, with Ms. Walker’s permission, searched the room. They obtained clothing from a closet which was later identified as the clothing worn at the time of the attempted rape and admitted into evidence. The police did not have a search warrant. The police came back later and Ms. Walker signed a consent to search and seize form.

The first question is whether or not the defendant had standing to object. The trial court properly found that the defendant did have standing to object for the reason that he had a right of privacy in and to the room. In re J. R. M., 487 S.W.2d 502 (Mo. banc 1972).

The next question is whether Ms. Walker had authority to consent to the search of the room. The evidence showed that Ms. Walker had full authority over the room, her minor son and in the privacy of such room. Ms. Walker on occasion used the room, and the defendant had no property interest in the house or the land, paid no rent, and lived there only by Ms. Walker’s consent. In the case of United States v. Wright, 564 F.2d 785 (8th Cir. 1977), the court held that the mother of the defendant therein, who had ownership and control of the entire premises could consent to the search of the premises, notwithstanding the fact that the defendant therein, his wife and child lived there and occasionally paid rent to the mother. State v. Stuart, 415 S.W.2d 766, 768 (Mo.1967) holds that “one who has equal authority over premises may authorize a search of them [citations omitted] and certainly such person may authorize an entry onto the premises contrary to the wishes of another who has far less authority.” See also State v. Howell, 524 S.W.2d 11 (Mo. banc 1975).

Defendant further complains that Ms. Walker’s consent was involuntarily given. In State v. Berry, 526 S.W.2d 92 (Mo. App.1975), the court indicated that volun-tariness must be determined by the totality of the circumstances. Factors to be considered by the court are the number of officers, the degree of authority expressed by them, whether weapons were displayed, and whether any fraud on the part of the officers was exerted. The evidence in our case shows that Ms. Walker completely cooperated with the police. She initiated the official contact. No more than two officers were present at any time. The officers did not threaten her in any manner. Accordingly, we hold that she had authority to consent, and did voluntarily consent, to the search of the room.

Defendant next complains that “[t]he trial court erred in refusing to give Defendant’s offered Instruction ‘A’ concerning the lesser included offense of common assault. . . .” The instruction given by the court essentially required a finding that the defendant assaulted his victim with intent to commit the offense of rape without malice aforethought. The instruction offered by the defendant essentially provided that he assaulted his victim by placing a pillow over her head and that if he did so intentionally the jury would find the defendant guilty of common assault. The failure to give this instruction was not error.

Defendant cites State v. Matsinger, 180 S.W. 856 (Mo.1915) for authority that his instruction was improperly refused. Mat-singer also involved an assault with intent to rape. The defendant therein had raised a child’s dress to place his private parts against hers. It was held that the court should also have given an instruction on common assault. However, in our case there was an express statement by the defendant that his purpose was to have sex.

From the only evidence offered concerning the intruder’s actions against the victim, it is clear that the defendant intended to rape her. The victim testified that when she awoke, she felt something between her legs and felt a man trying to have sex with her. The defendant’s pants were down and he had an erection at the time. The defendant stated that he wanted to have sex with her. An instruction for a lesser included offense will be given only when there is evidence to support it. No evidence was offered to show that the defendant was trying to do anything but rape the victim. Accordingly, the offered instruction of defendant was correctly refused by the trial court. State v. McCoy, 530 S.W.2d 8 (Mo. App.1975); State v. Sturgell, 530 S.W.2d 737 (Mo.App.1975); and State v. Lane, 537 S.W.2d 569 (Mo.App.1976).

Was the defendant prejudiced by a juror reading a newspaper during the trial and the return of such newspaper to the juror prior to deliberations? On both days of the trial, a woman juror was observed reading a newspaper during the giving of testimony. Following admonitions by the court through the deputy sheriff against such conduct, the paper was taken away. The newspaper was returned to the juror prior to the jury’s deliberations. Defendant complains that such conduct manifests a denial of his right to a fair and impartial trial by a jury of twelve.

The trial court has wide discretion to determine whether misconduct on the part of a juror requires a mistrial. The key consideration is the extent to which defendant’s right to a fair trial has been prejudiced. In this ease, the court was fully aware of the events complained of and was quick to take corrective action. It further provided an opportunity for additional evidence concerning the incidents at a post-trial hearing. Defendant offered no evidence to show that he was prejudiced by the jur- or’s conduct. The evidence that was presented did not show demonstrable prejudice. We cannot hold that the court erred in overruling the motion for a mistrial. State v. Edmondson, 461 S.W.2d 713 (Mo. 1971); State v. McQuerry, 406 S.W.2d 624 (Mo.1966); State v. Michaels, 543 S.W.2d 245 (Mo.App.1976); State v. Mullen, 528 S.W.2d 517 (Mo.App.1975).

The judgment is affirmed.

DOWD, P. J., and ALDEN A. STOCK-ARD, Special Judge, concur.


author: SOMERVILLE, Presiding Judge.

text:
    Velma SANDERS, Appellant, v. MISSOURI STATE DIVISION OF FAMILY SERVICES, Respondent.
    No. KCD 29997.
    Missouri Court of Appeals, Kansas City District.
    Dec. 27, 1978.
    Motion for Rehearing and/or Transfer Denied Jan. 31, 1979.
    Application to Transfer Denied March 13, 1979.

      James M. Smith, Effie F. Day, Legal Aid of Western Missouri, Kansas City, for appellant.
    Robert R. Northcutt, Paul T. Keller, Division of Family Services, Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   SOMERVILLE, Presiding Judge.

Velma Sanders (Sanders) appeals from the judgment of the Circuit Court of Jackson County, Missouri, dismissing her petition for judicial review of an administrative decision of the Director of the Division of Family Services (DDFS) authorizing the Jackson County Office of the Division of Family Services to “proceed” with “appropriate action” to collect overpayments of Aid to Dependent Children (ADC) benefits.

Facts leading up to Sanders’ appeal go back to March of 1975 when she applied and received approval for the payment of ADC benefits. In June of 1975 Sanders began receiving unemployment compensation benefits in addition to the ADC benefits which she was being paid. Upon learning of this additional income, the DDFS conducted a hearing on January 26, 1976, to determine whether Sanders remained eligible for ADC benefits. As a result of this hearing the DDFS determined that Sanders was no longer eligible for ADC benefits and payment of them was terminated on two grounds: (1) Sanders did not meet the statutory requisite of “need” under Section 208.010, RSMo Supp. 1975; and (2) Sanders’ children were not deprived of parental support within the meaning of Section 208.-040(2), RSMo Supp. 1975. The DDFS’s decision become final, as no appeal was taken.

In May of 1976 a “restitution summary” pertaining to the ADC benefits which had been paid to Sanders was prepared by a “caseworker” and submitted to the Claims and Restitution Unit of the Division of Family Services (CRU). The CRU in turn prevailed upon the Jackson County Office of the Division of Family Services to demand repayment of benefits received by Sanders during her period of ineligibility. Confronted with this demand, Sanders requested and was granted a hearing before the DDFS.

On January 11,1977, the hearing requested by Sanders culminated in the rendition of what was captioned “Decision and Order”. In a sense it was two-tiered as it included a separate “decision” portion and a separate “order” portion. The “decision” portion recited that “[a] demand for restitution of benefits unlawfully received has been made by the State . . . ” and concluded that “[i]n view of the above regulation [13 GSR 40-2.190] the County’s action is sustained.” The “order” portion, in its entirety, recited that “[t]he County is to procede (sic) with the appropiate (sic) action on the collection of the claim.” Sanders sought judicial review of this administrative decision in the Circuit Court of Jackson County, Missouri. The trial court dismissed her petition for review “for the reason that said decision and order does not represent an appealable agency determination.” The trial judge reasoned that the “order is not ripe for review for the reason that it does not in and of itself affect any of Petitioner’s rights and she is therefore not aggrieved.” Notwithstanding Sanders’ appeal, the judgment of the trial court dismissing her petition for review is affirmed.

Art. V, § 22, Constitution of Missouri, 1945, is the ultimate repository of answers to basic questions of judicial review of administrative decisions in this state. As construed in the landmark case of Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W.2d 647, 649 (banc 1946), the minimum scope of judicial review in eases in which a hearing is required by law, as spelled out in Art. V, § 22, supra, is “self-executing” while, on the other hand, the “method of review” is not self-executing but is dependent upon such procedural devices as may be provided by law. Construction of the fundamental provisions of Art. Y, § 22 ultimately went full circle in State v. Eversole, 332 S.W.2d 879, 882 (Mo. banc 1960), where it was held that what constitutes a final administrative decision for purposes of judicial review is such as may be provided by law.

Section 208.100.1, RSMo 1969, applicable to administrative decisions of the DDFS, limits judicial review to those denying “benefits” to an “applicant”. As the “Decision and Order” of the DDFS did not constitute a denial of benefits to Sanders it necessarily follows that no final administrative decision existed for purposes of judicial review. Sanders seeks to avoid this syllogistic conclusion by branding as false the major premise upon which it rests. She argues that the “Decision and Order” adjudicated the exact amount of the overpayments and conclusively foreclosed all cognizable defenses which might otherwise have been asserted in some future recovery proceeding. The final link in her argument is that application of the doctrine of “res judicata” would preclude her in any future recovery proceeding from contesting the exact amount of overpayments claimed and from asserting all cognizable defenses she might otherwise have had available. Sanders’ major premises is the one which lacks verity. Try as one may, the “Decision and Order” of the DDFS cannot be stretched far enough to encompass Sanders’ major premise that the exact amount of overpay-ments and all cognizable defenses which might defeat its recovery were finally adjudicated. Sanders’ imploration that this court read into the DDFS’s “Decision and Order” something which is not there is unsuccessful. It is immaterial whether the Jackson County Office of the Division of Family Services proceeds externally by way of a civil action (Section 208.210.2, RSMo 1969) or internally by way of setoff against future assistance benefits (13 CRS 40-2.190) for the collection of any alleged overpay-ments because in either event the exact amount of any overpayments and any cognizable defenses to defeat its recovery remain viable issues since neither were adjudicated by the “Decision and Order” rendered by the DDSF. Perforce, Sanders’ apprehension of prejudice associated with application of the doctrine of “res judicata” is unfounded. The trial judge was eminently correct when he reasoned that the “Decision and Order” rendered by the DDFS “is not ripe for review for the reasons that it does not in and of itself affect any of Petitioner’s.rights and she is therefore not aggrieved.”

Judgment affirmed.

All concur.