text:
    Jewel JOHNSON, Appellant, v. Beatrice W. HEWITT, Appellee.
    No. 16724.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    July 29, 1976.
    Jonathan L. Le Bleu, Houston, for appellant.

      C. C. Divine, Houston, for appellee.
   COLEMAN, Chief Justice.

This is a probate matter. The District Court of Harris County in an appeal from a bill of review filed in the Probate Court entered a judgment, after a trial to the court without a jury, setting aside the probate of the will of Viola Nathan Smith dated March 9, 1966, and ordered the probate of a previous will dated November 9, 1964. The judgment of the District Court was based on his conclusion of law that the will was a conditional one, and his finding of fact that the devisee in the will had failed to comply with a condition precedent.

On June 23, 1970, Mrs. Jewel Johnson filed for probate a purported last will and testament of the deceased, Viola Nathan Smith. This will was duly admitted to probate. On August 6, 1971, a bill of review was filed in the Probate Court on behalf of Beatrice W. Hewitt, legatee under a previous will dated November 9, 1964. In the petition for review it was alleged that the testator was non compos mentis at the time of the execution of the 1966 will, and that this will never became effective as such because of the failure of the beneficiary therein to perform a condition precedent.

The 1966 will begins:

“KNOW ALL MEN BY THESE PRESENTS:
“That I, Viola Smith, of the County of Harris and State of Texas, being of sound and disposing mind and memory, and desiring to so provide for the disposition of my estate that there may be no confusion concerning the same after my death, do hereby make, declare and publish this, my last will and testament, hereby revoking all wills and codicils by me at any time heretofore made.”

By the first paragraph of this will the testator directed that at the time of her death she be given a Christian funeral, “suitable to my circumstances and station in life,” and that her debts be paid “by my executrix hereinafter appointed,” as soon after her death as conveniently could be done without unnecessary sacrifice of any of the properties of her estate.

In the second paragraph of the will the testator gave her “beloved friend, Jewel Johnson, all property, real, personal and mixed, which I may own or have any interest in at the time of my death, in fee simple, forever, provided that my beloved friend, Jewel Johnson look after me and keep me in her home or with her for the balance of my life and not cause or suffer me to be put in an old folks home.”

In the third paragraph of the will the testator appointed Jewel Johnson the independent executrix of her estate and directed that no bond be required of her.

By judgment entered on July 15, 1971, the Probate Court ordered that Ruby Campbell, as agent for Beatrice Hewitt, “do have and recover nothing by her suit in the nature of a Bill of review . . . ”

Ruby Campbell gave a timely notice of appeal to the District Court of Harris County, Texas, and on December 15, 1971, filed in this cause a pleading entitled “MOTION FOR DECLARATORY JUDGMENT” in which it was alleged that the subject matter of the suit was the construction of a will and the mental capacity of the testatrix “which has all been before the County Court of Harris County, Texas Probate Division No. 1 and was appealed to the District Court on the issue of construction.” The petitioner prayed that the court construe the terms of the will and find the same to be a conditional will with the conditions being precedent. She prayed that the 1966 will be withdrawn from probate and that the will dated November 9, 1964, be admitted to probate.

In the petition particular reference is made to the provisions of the Declaratory Judgment Act giving the district court jurisdiction to construe wills. It appears that the petitioner was attempting, in the appeal from the Probate Court’s judgment, to seek a construction of the will under the Declaratory Judgment Act.

The Declaratory Judgment Act cannot be invoked to determine rights in a pending suit. The issues raised in the petition for declaratory judgment are the same as those raised in the probate court. Texas Liquor Control Board v. Canyon Creek Land Corporation, 456 S.W.2d 891 (Tex.1970); Dub Shaw Ford, Inc. v. Comptroller of Public Accounts, 479 S.W.2d 403 (Tex.Civ.App.—Austin, 1973, no writ history).

In 1971 when this case was tried in the Probate Court, and when the appeal was perfected to the District Court, the Probate Court had no jurisdiction to construe wills. Its authority was limited to the determination of the issue as to whether the 1966 will was a valid instrument entitled to probate, and whether, in the event the 1966 will was found to be invalid, the 1964 will should be admitted to probate. Since the Probate Court had no jurisdiction to construe the will, the District Court on appeal had none. Huston v. Cole, 139 Tex. 150, 162 S.W.2d 404 (1942); Pullen v. Russ, 209 S.W.2d 630 (Tex.Civ.App.—Amarillo, 1948, writ ref’d n. r. e.). Two questions were presented in the Probate Court. The first was whether or not the testatrix had testamentary capacity, and no evidence was presented on this issue in the District Court. The second question was whether or not the will was a contingent or a conditional will intended by the testatrix to take effect only on the happening of the contingency. If the will was to be effective only upon the happening of a contingency, and the contingency fails, the will-never becomes effective and is not entitled to probate. Ferguson v. Ferguson, 121 Tex. 119, 45 S.W.2d 1096 (1932).

The issue whether the will as a whole was contingent was properly before the trial court. The trial court did not determine that the will as a whole was a contingent will or was to become effective on the happening of a contingent event. He found that the language of paragraph II of said will was a valid condition precedent “to the vesting of the estate of Viola Nathan Smith in Jewel Johnson.” He further concluded that the provision stated was a condition precedent to be performed by the beneficiary to “validate the will.” He then proceeded to determine issues concerning- waiver, impossibility of performance, and substantial performance.

The trial court’s conclusion that the language of paragraph II of the will constituted a condition precedent to be performed by the beneficiary to validate the will is an incorrect conclusion of law. A distinction must be drawn between a condition precedent applicable to a particular bequest, and a condition precedent, the nonperformance of which would defeat the will.

An instrument of testamentary nature and properly executed is a will if it appoints an executor, and it should be admitted to probate when the required proof is made, even though it makes no devise or bequest or no effective devise or bequest of the testator’s property. Boyles v. Gresham, 153 Tex. 106, 263 S.W.2d 935 (1954).

None of the language found in the will indicates that the testatrix intended the will to become effective only if she were cared for by Mrs. Johnson. The devise to Mrs. Johnson was subject to a condition precedent. The effectiveness of this devise was not properly before the Probate Court or the District Court, and is not before this court. The question of the validity of the bequest to Jewel Johnson may be raised in a subsequent action in the Probate Court. Ragland v. Wagener, 142 Tex. 651, 180 S.W.2d 435 (1944). The question here is whether the Probate Court erred in admitting the 1966 will to probate, and whether the District Court erred in ordering its removal from probate. The Probate Court and the District Court on appeal did not have jurisdiction, in this suit to contest the validity of a will, to determine what property did or did not pass under the will. Robinson v. Compton, 313 S.W.2d 550 (Tex.Civ.App.—Eastland, 1958, no writ history).

The burden of proof in the action to set aside the probate of the will in the District Court was on Beatrice Hewitt. Since there is no evidence to support the action of the district judge in ordering the 1966 will removed from probate, the judgment must be reversed. Cravens v. Chick, 524 S.W.2d 425 (Tex.Civ.App.—Fort Worth, 1975, writ ref’d n. r. e. 531 S.W.2d 319 [Tex.1975]); Pullen v. Russ, 209 S.W.2d 630 (Tex.Civ.App.—Amarillo, 1948, writ ref’d n. r. e.).

The judgment of the District Court ordering the 1966 will removed from probate and ordering the 1964 will admitted to probate is reversed, and judgment is rendered that Beatrice Hewitt be denied all relief.


source: Caselaw Access Project

author: MASSEY, Chief Justice.

license: Public Domain

text:
    L. D. HOPKINS et al., Appellants, v. Shirley Ann HOPKINS, Appellee.
    No. 17742.
    Court of Civil Appeals of Texas, Fort Worth.
    July 1, 1976.
    Rehearing Denied Aug. 6, 1976.

      Bailey, Williams, Westfall, Lee & Fowler, and G. David Westfall, C. Edward Fowler, Jr., and William Dixon Wiles, Dallas, for appellant L. D. Hopkins.
    Brown, Herman, Scott, Dean & Miles, and J. Shelby Sharpe, and Morton L. Herman, Fort Worth, for appellant Bell Helicopter International, Inc.
    Rohne & Hoodenpyle, and Jerry R. Hood-enpyle, Arlington, for appellee.
   OPINION

MASSEY, Chief Justice.

The appeal is by L. D. Hopkins from a judgment granting his wife, Shirley Ann Hopkins, a divorce. Therein he complains of property settlement upon divorce, and of the amount and extent of child support payments provided to be paid by him in the future. Furthermore, he attempts to present his appeal from the provisions of the judgment for the alimony and child support which had been directed to be paid by him or for his credit by antecedent order of the court entered some months before the hearing upon the merits of the divorce proceeding, but we have concluded that in such respect the complaint is immaterial.

The appeal is also by Bell Helicopter International, Inc., at all material times the employer of L. D. Hopkins. It was brought into the suit by the wife, Shirley Ann Hopkins. At a preliminary hearing some months before the trial of the divorce case there was entry of an order of the court, in the nature of a temporary mandatory injunction, providing that pending final hearing Bell Helicopter withhold from the pay of its employee, the husband involved, the sum of $900.00 per month. Apparent from the order was the court’s purpose that $500.00 thereof would be for alimony pen-dente lite, and $400.00 for the support of the parties’ three children. Bell Helicopter, though having thereafter withheld the amount of $900.00 per month from the pay due the husband as his wages, had not paid it as it had accrued, as ordered, but had preserved it as a fund.

There was no appeal from the order which was of temporary character. There was nothing done by anyone to seek enforcement of any temporary order for alimony pendente lite or for child support. There was no attempt by the husband to present any complaint against Bell Helicopter for wrongful withholding of wages. There was no attempt by Bell Helicopter to assert any affirmative right against either the wife or husband for attorney’s fees, etc. By having withheld a part of the husband’s wages there was accumulated a fund in the possession of Bell Helicopter as of the time of the judgment from which appeal has been taken.

In this state of affairs the parties appeared and participated upon the occasion of trial of the merits of the divorce.

The court held the decision in abeyance for a time, and judgment was rendered on August 20, 1975, some months subsequent to the date the divorce case was tried. By such judgment the wife, Shirley Ann Hopkins, was granted a divorce from her husband and custody of the parties’ three children. Of this portion of the judgment there is no complaint. There was division of community property between the parties of which there was no complaint and it will not be further noticed. The judgment granted to the wife the total fund accumulated in the hands of Bell Helicopter International, Inc., to August 20, 1975. The judgment decreed that future child support be paid by the father from date of judgment at the rate of $450.00 per month until the youngest of them should attain the age of 18 years. The judgment granted personal judgment to the wife against her husband for an attorney’s fee of $900.00.

By such judgment, in addition to the court’s necessarily implied in rem adjudication that the fund accumulated and withheld by Bell Helicopter International, Inc., should from date of its rendition stand as the individual personal property of Shirley Ann Hopkins, it was ordered that such corporation deliver the same to her. From and after the date of judgment the court directed that said corporation withhold the amount of $450.00 per month from the pay of L. D. Hopkins and pay it — in behalf of said husband and father — to the children’s mother through the Tarrant County Child Support Office. There was provision that its duty so to do should continue so long as Hopkins continued as its employee.

In explanation of at least part of the court’s action L. D. Hopkins is employed by Bell Helicopter International, Inc., in Iran, a foreign country. The court justifiably concluded from evidence that he would not voluntarily discharge obligations imposed by the judgment.

Action of this Court

We affirm that portion of the trial court’s judgment in the case as between Shirley Ann Hopkins and Bell Helicopter International, Inc., which was in rem, in that it adjudicated the title to the accumulated fund, and directed that the fund accumulated and held as of August 20, 1975, be delivered to her as a part of the community property of the parties to the divorce action.

We reverse, as void, that portion of the trial court’s judgment in the case as between Shirley Ann Hopkins and Bell Helicopter International, Inc., purporting to decree liability of said defendant to accrue (as any portion of the future wages of L. D. Hopkins) after August 20,1975. We render our own decree that from and after said date Bell Helicopter’s obligation to L. D. Hopkins is not in any way affected by the judgment rendered by the trial court.

We reverse that portion of the judgment as between Shirley Ann Hopkins and L. D. Hopkins which awarded an amount as attorney’s fees to the former; and we sever and remand that portion of the cause, as a separate cause, for a new trial.

We reform that portion of the judgment as between Shirley Ann Hopkins and L. D. Hopkins relating to the duty of the latter to pay child support, by deletion of the provision therein that the payments ordered to be paid to or in behalf of Shirley Ann Hopkins by L. D. Hopkins as support for minor children be administered by Bell Helicopter International, Inc., as his agent; and by our reformation cause the judgment in said respect to provide as follows, to wit:

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that L. D. Hopkins pay child support payments in the amount of $450.00 per month with the first payment of $450.00 being due to be paid on the 1st day of September, 1975, and a like amount of $450.00 on the 1st day of each month thereafter until the youngest of said children reaches eighteen (18) years of age or until further order of the Domestic Relations Court Number Four of Tarrant County, Texas, said payments to be paid by L. D. Hopkins to the Tarrant County Child Support Office, Fort Worth, Texas.

As so reformed the judgment obtained by Shirley Ann Hopkins as against L. D. Hopkins is affirmed; save and except for attorney’s fees which part is remanded for trial as a severed case.

Explanation of holdings affecting Bell Helicopter International, Inc.

What we hold in this divorce case is that since the husband’s employer, without legal obligation to withhold part of his wages and thereby create a fund (because the trial court order directing that such be done was a void order under the law), did actually withhold the same and did create such a fund, such fund stood as community property; that for purposes of this case Bell Helicopter is deemed to have become a voluntary stakeholder of such community property; that as a party to the divorce suit Bell Helicopter stood before the court at time of final judgment exactly as would have been the case had it been a bank holding a deposit of community funds of the employee-husband and his wife; that the fund, regardless of whether there was propriety in the manner of its creation, was community property of the parties divorced, to which the court was obliged to determine entitlement, and of which determination Bell Helicopter would be deemed to have proper notice as a party to the suit.

Chronology of events

29 October, 1974, L. D. Hopkins, husband, sued his wife for divorce in the Domestic Relations Court, Tarrant County, Texas. Though stating the names and birth dates of the three minor children of the parties, there was nothing stated in said husband’s petition concerning their custody.

6 November, 1974, Shirley Ann Hopkins, the wife, filed her answer by general denial, coupled with her own cross-action for divorce. She prayed for relief including custody of the parties’ minor children, for provision to be made for their support by payments to be made by L. D. Hopkins in the amount of $400.00 per month, for attorney’s fees in an amount to be determined by the court, and for temporary alimony for her own support by payments to be made by her husband in the amount of $500.00 per month pending final hearing.

5 February, 1975, an order granted the writs of temporary injunction to the wife, pursuant to amendments of her original pleadings and joinder in the suit of Bell Helicopter International, Inc., as a party cross-defendant to her cross-action for divorce. Thereby, to be effective until the time of final hearing of the divorce proceeding, there was purported merger of an earlier temporary restraining order into the temporary injunction (although the effectiveness of said antecedent order ceased January 15, 1975). The temporary injunction decree provided for pendente lite payments and liability for payments — to be made to the wife by Bell Helicopter, by withholding from the husband’s pay a portion sufficient for the purpose, — at the rate of $900.00 per month for alimony and child support. The decree did not provide for individual obligation of the husband though he was to be given credit for the performance of the duty (in his behalf) by Bell Helicopter. Though it is immaterial by our view of the case that there was provision therefor made by temporary orders, they did direct that Bell Helicopter withhold these monthly sums from the salary of the husband and make payments thereof, beginning 15 December, 1974, to the wife, for the account of the husband, through the Tarrant County Child Support Office.

20 August, 1975, final decree of divorce of Shirley Ann Hopkins from L. D. Hopkins. The divorce was granted the wife upon her cross-action; — with partition of the community estate of the parties, including an award to the wife of the total fund accumulated to date of judgment in the hands of Bell Helicopter; — with the grant to the wife of custody (the position of managing conservator) of the three minor children, coupled with decree that from date of the judgment the husband and father, L. D. Hopkins, be responsible to make payments for their support at the rate of $450.00 per month (with the first payment of $450.00 due on 1 August, 1975, and like amounts paid each month thereafter until the youngest child should attain the age of eighteen); • — and with judgment in the amount of $900.00 attorney’s fee granted the wife against her husband.

Included among the provisions of the judgment was the order that the husband and father should set aside in advance, from his entitlements as applied to his future salary, the aforesaid $450.00 per month to be administered by Bell Helicopter International, Inc., so long as he continued to be employed by that company. Further, as by a decree of mandatory injunction, Bell Helicopter was ordered to administer and pay said sums so set aside to the Tarrant County Child Support Office, monthly as accrued, to satisfy the obligation of the husband for future child support. The duty prescribed was to continue so long as it employed L. D. Hopkins.

Opinion

To be initially noticed is that there is contention that the trial court lacked jurisdiction over Bell Helicopter. We hold that the trial court was authorized to join and hold said corporation as a party. V.A.T.S., Title 43, “Domestic Relations Courts”, Art. 2338-15c, “Court of Domestic Relations No. 4 for Tarrant County” (having relation to the court from which the case of appeal is presented) provides in Sec. 3 thereof the grant of jurisdiction to the court of justicia-ble controversies between spouses, or between these and third persons, corporations, etc., within the jurisdiction of the court. Points of error raising the question of the trial court’s jurisdiction are overruled.

Additionally noticed is that there is contention that the proceedings against Bell Helicopter amounted to improper garnishment and/or mandatory injunction. The wife never at any time tendered, nor was she required by the trial court so to provide, bond or bonds of any character. Since Bell Helicopter was a third-party defendant, the provisions of law entitling the trial court to waive requirement of bond in connection with injunctions deemed necessary as applied to petitioners and respondents in divorce cases are without application. If the case be viewed as one where funds in the hands of a third party are attempted to be subjected to garnishment, an order for the attachment of the funds without compliance with the provisions of law relative to bond would be void. If the case be viewed as one where an injunction was sought against Bell Helicopter as a third party, any injunction decree rendered without protection afforded by the bond required in injunction cases would be inhibited by the provisions of law. We have no doubt that what was done, or attempted, was to decree a mandatory injunction affecting Bell Helicopter. The decree of injunction was void because of the failure to supply bond. Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303 (1956). Despite the ineffectiveness to bind it and charge it with any duty, retention of Bell Helicopter was nevertheless proper. That corporation might be held as a party to the suit that it would be on notice of all that occurred and of the provisions of the judgment in the case. By the judgment Bell Helicopter was officially apprised of the adjudication of title to the fund retained by it and from the time of the judgment was on notice that the fund belonged to Shirley Ann Hopkins. The provisions of T.R.C.P. 693a, “Bond in Divorce Case” are without application to a third party drawn into divorce proceedings as a party.

Although as applied to the interest of Bell Helicopter, the temporary and permanent injunctions were void, and as applied to the interest of the husband they might be held voidable (or might upon a proper presentment in a case have been decreed void), it would be pointless to concern ourselves with speculation upon propriety of trial court action in this case. If there was any error involved it would only be error with which we would not be concerned on the instant appeal.

In our view the manner by which the fund (which constituted community property of the husband and wife) happened to come into being and existed at the time of divorce is of no importance. As community property, rights of the husband and wife therein were appropriate for in rem adjudication. Such an adjudication has properly been made. If not spelled out in the words of the judgment it is apparent therein by necessary implication.

In the in rem adjudication relative to the fund in the hands of Bell Helicopter we see no occasion for distinction to be made relative to the part thereof which represents the accumulation at $500.00 per month for the support of the wife from the part thereof which represents the accumulated amount at $400.00 per month for the support of the parties’ minor children.

The only matter of importance is the fund existed and its amount at date of final judgment on August 20, 1975. There is no question but that it constituted community property of the husband and wife.

Essentially, what we have attempted to say is that despite impropriety in the ineffective imposition of the duty to withhold funds upon Bell Helicopter, and despite the fact that said corporation would have incurred no liability had it refused to obey the court’s order so to do, it did in fact withhold them and thereby created a fund. As a result Bell Helicopter stood charged with the duties of a trustee upon the rendition of the court’s valid decree that the wife had title to the fund.

The wife’s community interest therein was capable of being ascertained on date of the divorce. Upon granting one of the parties a divorce, by authorization of the law, the trial court was entitled to grant all of the fund to the wife, to be her part of the community of herself and husband, if to do so would not constitute an abuse of discretion. This the court did. In so doing the court did not abuse its discretion.

From this point the case lacks novelty. It is the ordinary appeal following divorce wherein the party aggrieved complains of the property distribution and apportionment made, and/or of the award of custody of the parties’ minor children and the amount specified for their support, and/or of the award of attorney’s fees to the prevailing party.

The husband does not complain of the award of custody of the parties’ children to the wife, but does complain of the amount of child support awarded and of the fact that the court awarded the same amount as decreed necessary for the support of all three of his children until the youngest of them attains the age of eighteen years. He also complains of the $900.00 attorney’s fee awarded his wife as having been granted without evidence as to amount and as to necessity of expenditure.

In other points, he complains that he was prejudiced by the presence of Bell Helicopter as a party to the divorce suit.

Among points presented by the husband were No. 7, relative to the provision of the judgment for future administration of payments of child support by Bell Helicopter, which would merely occasion necessity for reformation, and others to which we have given special attention, to wit: Nos. 11, 12, 13, 14, 15, 23, 24, 33, 38 and 39.

We hold that the husband, though perhaps prejudiced antecedent to rendition of the judgment by the presence of Bell Helicopter as a party, is not to be deemed prejudiced thereby as of time of the judgment from which he has appealed. Actually the antecedent prejudice to the husband was not in the fact of Bell Helicopter’s presence as a party but by Bell Helicopter’s withholding part of his salary in obedience to a void court order. We have earlier held that presence of said corporation as a party was not error.

The complaint relative to the obligation to pay child support is that the evidence does not show the husband had the ability to pay child support in the amount awarded. By our review of the evidence that complaint is without merit. Likewise without merit is the contention that the court’s finding that he was able to pay the amount awarded was contrary to the great weight and preponderance of the evidence. The evidence shows that he made a substantial salary, in addition to substantial allowances, from which he should be able to provide his children an excellent living standard. There was nothing indicating that his earnings from his employment might become diminished within the near future.

The husband complains of impropriety because by the temporary order of February 5, 1975, he was obliged, pending trial of the divorce case, to pay $400.00 (of the $900.00 ordered) for the support of his children. The complaint is not reviewable on the instant appeal. Under the circumstances of the case, said $400.00 is deemed as either conclusively owing or to have been paid in the discharge of the obligation for payment. Of course it actually was not paid, being part of the moneys held by Bell Helicopter. In any event the husband was never cited for contempt because of its nonpayment. Only if the husband had been cited and held in contempt and jailed until he had purged himself could there have been a review of the propriety of the adjudication to pay said amount for support of his children pending the hearing on the merits of the divorce suit. Such review would have been available as a part of habeas corpus proceedings in a Court of Civil Appeals or in the Supreme Court. This is not that character of proceeding but is the ordinary appeal from a final judgment of divorce in which the entire question was obviated by the in rem adjudication upon the fund which represented community property of the parties, and which fund included the amount which should have been earlier paid as child support.

There is one aspect of the case relative to the liability of the husband and father for child support concerning which the law is not well settled, and there are several points of error by which complaint is made. The final decree of August 20, 1975, provided for the amount awarded for support of the three children of the parties to continue at the same rate per month during the minority of any of them—after the two eldest are no longer minors—until the youngest of them reaches the age of eighteen years.

To support the contention that the judgment to such effect constituted error the husband cites the opinion in Brooks v. Brooks, 480 S.W.2d 463, 466 (Tex.Civ.App., Eastland, 1972, no writ hist.), in which the following appears: “The intent of the statute (speaking of V.A.T.S. 4639a, “Further provision as to children, petition, judgment”) is that payments be made for the support of a child until that child reaches 18 years.” Provisions to the same effect are now to be found in V.A.T.S. Family Code, Sec. 14.05, “Support of Child”. Actually we see no distinction to be made for our purposes.

We have examined the opinion and have concluded that the quoted sentence constitutes dictum. The case was one in which not only was a very high standard of living shown to have existed but also a great amount was provided to be continued as child support, undiminished until the youngest of several children had attained the age of eighteen years. Viewing the amounts, it was unreasonable that the amount of child support should have been ordered continued during the minority of only the youngest child. We agree with the holding of the Eastland Court of Civil Appeals that there was abuse of discretion of the trial court in the amount of child support allowed thereby, and with the action of the appellate court in the reduction of the amount provided therefor by the trial court’s judgment. The question of abuse of discretion in allowing excessive amounts as child support existed as an issue raised on appeal. The same is not true in the instant ease. We have tested presentation by points of error and found raised only illegality in the order, along with complaint of lack of evidence of the father’s ability to pay. Not raised is any contention that allowance to any child exceeds her need.

Undoubtedly the trial court was lodged with jurisdiction to continue the obligation of the husband to contribute a single amount to be paid each month for the support of child or children, without reduction in amount as any child attained the age of eighteen, and even without reduction in amount during the period in which only one of his children might be under that age. Ex parte Slavin, 412 S.W.2d 43 (Tex.Sup., 1967); Garza v. Fleming, 323 S.W.2d 152 (Tex.Civ.App., San Antonio, 1959, writ ref., n. r. e.); Ex parte Lindeman, 492 S.W.2d 599 (Tex.Civ.App., Fort Worth, 1973, no writ hist.). We find nothing in the Family Code that alters the law or holdings in antecedent authorities. Under the points of complaint presented by the appeal we hold there was not an abuse of the discretion lodged in the trial court by its judgment awarding child support.

There is complaint of the award of $900.00 to the wife as attorney’s fees. The record reflects the necessity for the wife to obtain the services of an attorney for purposes of the divorce action, and the number of hours of work of her attorney in the defense of the husband’s action against her and her own cross-action against him. There was no segregation enabling consideration of the time spent in the prosecution of the wife’s action against Bell Helicopter to be deducted from the total number of hours shown to have been spent by the attorney. There was no evidence of the amount in money which represented the reasonable value of the wife’s attorney’s services.

Under these circumstances there is reversible error. We must reverse, at least as applied to that portion of the wife’s judgment for attorney’s fees. The question then arises whether there should be rendition of judgment by this Court deleting any allowance for attorney’s fee, or a severance of the issue from the remainder of the ease, and remand to the trial court for proof enabling a proper judgment for attorney’s fees. On this question we find answer by which we have concluded the propriety of a remand in the case of Great American Reserve Insurance Co. v. Britton, 406 S.W.2d 901, 907 (Tex.Sup., 1966) and cases following, including our own holding in Uhl v. Uhl, 524 S.W.2d 534, 538 (Tex.Civ.App., Fort Worth, 1975, no writ hist.) wherein we reviewed other cases.

Each point of error of the husband has been separately considered, and, with the sole exception of those by which there is complaint of attorney’s fees, they are all overruled.

We reverse the judgment of the trial court insofar as it awards an amount as attorney’s fees, and sever the issues thereupon from all other aspects of the case; and as a severed case remand the same to the trial court for a new trial.

We reform that portion of the judgment as between Shirley Ann Hopkins and L. D. Hopkins relating to the duty of the latter to pay child support by deleting therefrom the provision that the payments ordered paid to or in behalf of Shirley Ann Hopkins by L. D. Hopkins as support of the children of the parties be administered by Bell Helicopter International, Inc., as his agent; and by our reformation cause the judgment in said respect to provide as follows, to wit:

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that L. D. Hopkins pay child support payments in the amount of $450.00 per month with the first payment of $450.00 being due to be paid on the 1st day of September, 1975, and a like amount of $450.00 on the 1st day of each month thereafter until the youngest of said children reaches eighteen (18) years of age or until further order of the Domestic Relations Court Number Four of Tarrant County, Texas, said payments to be paid by L. D. Hopkins to the Tarrant County Child Support Office, Fort Worth, Texas.

As so reformed the judgment obtained by Shirley Ann Hopkins as against L. D. Hopkins is affirmed; save and except for attorney’s fees which part is remanded for trial as a severed case.

We affirm that portion of the trial court’s judgment in the case as between Shirley Ann Hopkins and Bell Helicopter International, Inc., which was in rem, in that it adjudicated the title to the accumulated fund and directed that the fund accumulated and held as of August 20, 1975, be delivered to her as a part of the community property of the parties to the divorce action.

We reverse as void that portion of the trial court’s judgment in the case as between Shirley Ann Hopkins and Bell Helicopter International, Inc., purporting to decree liability of said cross-defendant to accrue after August 20,1975. We render our own decree that from and after said date the obligation of Bell Helicopter International, Inc., to L. D. Hopkins is not in any way affected by the judgment of the trial court.

All costs of this proceeding are taxed against L. D. Hopkins.


author: STERNBERG, Justice. STEPHENSON, Justice

text:
    Forrest PATRICK et al., Appellants, v. CITY OF FRANKFORT, Kentucky, Appellee.
    Supreme Court of Kentucky.
    May 28, 1976.
    Joseph J. Leary, William M. Johnson, Frankfort, for appellants.
    Allen Prewitt, Jr., Frankfort, for appel-lee.
    C. Gibson Downing, Bennett Clark, Stoll, Keenon & Park, Lexington, amicus curiae.
   STERNBERG, Justice.

This is an action by employees of the United States of America challenging the validity of the Frankfort, Kentucky, occupational tax ordinance (Frankfort Ordinance No. 23, 1971 Series, Sec. 2(a)). The questioned ordinance provides as follows:

“5.04.020 Occupational License Fee.
(a) Every person, association, firm, corporation or other entity in any occupation, business, trade, profession or other activity in the city shall pay unto the city treasury for the purposes of the general budget an annual occupational and business license fee for the privilege of engaging in said activities, which license fee shall be measured by one per cent of the net annual salaries or wages earned by any licensee so compensated for work done or services performed or rendered within the city and the net profits, per annum, of all licensees who are engaged in business from that portion of such business conducted in the city.” (Emphasis added).

There are two issues presented by appellants, which are (1) does the ordinance levy an income tax in contravention of Section 181 of the Kentucky Constitution, and (2) does the ordinance impose a fee on the privilege of being employed by the United States of America?

The sources from whence cometh the authority of the City of Frankfort to levy an occupational tax are Section 181 of the Kentucky Constitution and KRS 92.281.

Appellants allege that the subject tax is in truth and fact an income tax, that an income tax is an excise tax, and that Section 181 of the Kentucky Constitution forbids the levy of such an excise tax by the city. They thus conclude that the tax is in violation of Section 181 of the Kentucky Constitution and therefore void. On the other hand, the city contends that the tax is a license tax levy against the privilege to engage in occupations, trades, professions, and businesses within the city limits of Frankfort and that a license tax is a permissible form of excise tax levy, the amount of tax being determined by applying the rate against the net salary or wages.

The issues are not new or novel, but do require a review and analysis of what has heretofore been written. As early as 1948 this court had occasion to consider the constitutionality of an ordinance of the City of Louisville, Kentucky, which applied the tax rate against the net profits in arriving at the amount of tax. In City of Louisville v. Sebree, 308 Ky. 420, 214 S.W.2d 248, the Court of Appeals had before it an ordinance which imposed an annual tax or license fee for the privilege of engaging in any business, occupation, calling, profession, or labor within the city. In the course of the opinion, it is stated:

“The major attack upon the ordinance stems from the fact that the measure of the tax is the earnings from the exercise of the privileges of engaging in the various activities, being one percent thereof. The validity of the ordinance is principally questioned upon the ground that it imposes an income tax in fact although it designates the tax as a license fee. But other important questions of constitutional and statutory validity are also raised.”
‡ * * * * *
“Since a municipality’s power to tax is only that which the legislature has granted it, and the legislature in granting the power must conform to constitutional limitations, we must first look to the authority of the Board of Aldermen for the particular action taken here.
Section 181 of the Constitution provides that the General Assembly may ‘delegate the power to * * * cities * * * to impose and collect license fees on * * * franchises, trades, occupations and professions.’ ”

KRS 92.281 authorized cities of all classes to levy and collect any and all taxes provided for in Section 181 of the Kentucky Constitution. In City of Louisville v. Sebree, supra, the court went on to say:

“The principal storm center of the controversy, as we have said, is whether or not this ordinance imposes an income tax, the taxpayers’ argument being that the city has no authority to levy such a tax. We need not pass upon the question of the existence or absence of that power.
Confusion in the case may arise from placing so much emphasis on the measure of the tax as to subordinate or lose sight of its true character. * *
* * ⅜ * * *
“It is true the scheme of taxation embodies features characteristic of the familiar income taxes; particularly in the exaction of a percentage of the monetary proceeds of labor, services or business and in its administrative provisions. * * ”

In analyzing the type of tax presented in the Louisville ordinance, the court said:

“ * * * The definition or classification may be a matter of approach or point of view. Sometimes one may not see the woods for the nearby trees. The psychological impact loses force when emphasis is placed on what is made subject to taxation rather than on the measure of the tax and the basis of computation. Or if the word ‘receipts’, which, in truth, is the more appropriate term, be used instead of ‘income.’ If graduated stated sums had been provided instead of a per centum of receipts or net profits, the source of such sums would in all probability have been the same. And that way of fixing the tax could scarcely be regarded as illegal. * * * ”

After its analysis, the court concluded:

“We, therefore, hold the tax is not an income tax and that its imposition is within the powers of the city of Louisville.”

In City of Lexington v. Motel Developers, Inc., Ky., 465 S.W.2d 253, the Court of Appeals was faced with a controversy involving the constitutionality of an ordinance of the City of Lexington enacted February 5, 1970, imposing upon hotel and motel owners, and others similarly engaged, what purports to be a “license” tax fixed at 5% of the rental charged for the occupancy of rooms. Therein, as here, it was contended that the tax in question was not truly a license tax but an excise tax of the kind a city may not levy. In the course of the opinion the court said:

“ * * * Specifying the source of income does not necessarily convert a tax upon a business enterprise into a tax upon the transactions involved.”

In determining the issue and defining the nature of the tax, the court wrote:

“ * * * Though the constitutionality of the Act involved was vigorously attacked, no contention was made that the tax was invalid as an ‘excise’ rather than a ‘license’ tax. While this avenue of attack may have been inadvertently overlooked, we are inclined to believe the question was not presented because it was lacking in merit, which comports with our view. We conclude the tax here under consideration properly may be characterized a permissible license tax which the City of Lexington could impose upon a business enterprise and is not an excise tax of the kind which cities under section 181 of the Kentucky Constitution are not empowered to levy.”

In Sims v. Board of Education of Jefferson County, Ky., 290 S.W.2d 491, the Court of Appeals had before it House Bill 404 of the regular session of the 1956 General Assembly, which authorized a Board of Education containing a city of the first class to impose occupational license fees not exceeding one-half of one percent on wages, salaries, and other earnings of individuals and on net profits of businesses. Objection was made that the Act violated Section 181 of our Kentucky Constitution in that it authorized cities to levy income taxes. In the course of the opinion the court said:

“ * * * While it is true that the amount of the license fee each individual and each company must pay is measured by the income earned by those taxpayers and, therefore, the tax has some of the attributes of an income tax, the question is no longer an open one. * * * ”

It will be noted that the ordinance under attack in the instant case is substantially the same as those that have heretofore come before the Court of Appeals and which were discussed in City of Louisville v. Sebree, supra; City of Lexington v. Motel Developers, Inc., supra; and Sims v. Board of Education of Jefferson County, Ky., supra. The genius of the times will not permit this court to do other than to affirm the holdings in those cases.

Next, we turn our attention to the second issue raised by appellants, and that is that the ordinance attempts to impose a fee for the privilege of being employed by the United States of America.

In Howard v. Commissioners of the Sinking Fund, 344 U.S. 624, 73 S.Ct. 465, 97 L.Ed. 617, the Supreme Court of the United States had before it the identical question now presented. The City of Louisville, Kentucky, sought to collect from United States employees a license tax for the privilege of working in the city, measured by one percent of all salaries, wages, and commissions earned in the city. Constitutional objection was made by the employees. It is charged herein that the Buck Act, although permitting the levy of income tax on federal employees such as appellants, does not permit the levy of a license fee for the privilege of working for the United States Government. Further, the appellants charge that the appellee cannot, on the one hand, contend that the levy is a license fee and, on the other hand, as it affects federal employees, contend that the levy is an income tax. In other words, appellants charge the appellee with blowing hot and cold at the same time. Not so. The question rightly stated is whether the tax is an income tax within the meaning of the Buck Act. 4 U.S.C., Sections 106(a) and 110(c) of the Buck Act are applicable to the case at bar, and are as follows:

“§ 106. Same; income tax.
(a) No person shall be relieved from liability for any income tax levied by any State, or by any duly constituted taxing authority therein, having jurisdiction to levy such a tax, by reason of his residing within a Federal area or receiving income from transactions occurring or services performed in such area; and such State or taxing authority shall have full jurisdiction and power to levy and collect such tax in any Federal area within such State to the same extent and with the same effect as though such area was not a Federal area.”
“§ 110. Same; definitions.
******
(c) The term ‘income tax’ means any tax levied on, with respect to, or measured by, net income, gross income, or gross receipts.” (Emphasis added).

In Howard v. Commissioners of the Sinking Fund, supra, Justice Minton, speaking for the Supreme Court of the United States, said:

“ * * * In other words, Kentucky was free to tax earnings just as if the Federal Government were not there.”
******
“Was this tax an ‘income tax’ within the meaning of the Buck Act? In a prior case, Kentucky had held this tax was not an ‘income tax’ within the meaning of the Constitution of Kentucky but was a tax upon the privilege of working within the City of Louisville. Louisville v. Sebree, 308 Ky. 420, 429-431, 214 S.W.2d 248, 253-254. But the right to tax earnings within the area was not given Kentucky in accordance with the Kentucky law as to what is an income tax. The grant was given within the definition of the Buck Act, and this was for any tax measured by net income, gross income, or gross receipts. In the instant case, the Kentucky Court of Appeals correctly stated that the question was whether the tax was an income tax within the meaning of the federal law. We hold that the tax authorized by this ordinance was an income tax within the meaning of the Buck Act. The City, it is conceded, can levy such a tax within its boundaries outside the federal area. By virtue of the Buck Act, the tax can be levied and collected within the federal area, just as if it were not a federal area.”

Howard v. Commissioners of the Sinking Fund, supra, is dispositive of the other issue raised on this appeal.

We hold that the challenged Frankfort, Kentucky, ordinance is a levy of such a license fee that is not prohibited by the Kentucky Constitution. Further, we hold that the appellants are subject to the tax the same as if they were not federal employees.

The judgment is affirmed.

Full court sitting, except REED, C. J., and PALMORE, J., who disqualified in this case. Special Justices L. T. GRANT and FREDERICK M. WARREN sat by designation of the Governor, pursuant to Section 110(3) of the Kentucky Constitution.

All concur, except STEPHENSON, J., who concurs in result only and files a separate concurring opinion, in which JONES, J., joins.

STEPHENSON, Justice

(concurring).

My concurrence in the result reached in the opinion is for different reasons. I admire the intellectual clarity of the trial court in the statement that the occupational tax is not unconstitutional “only because the Court of Appeals has said so.” In my view, the occupational tax, despite the semantic legerdemain in prior opinions, is an income tax and clearly contravenes Section 181 of the Kentucky Constitution.

The Sebree case represents expediency for laudable reasons. I would not have voted for the opinion. However, I am painfully aware of the fiscal chaos which would result in municipalities, great and small, throughout the Commonwealth if we should invalidate those occupational tax ordinances now in effect. I would say, we should not in the future depart from the plain provisions of Section 181.

JONES, J., joins in this concurring opinion.


author: STEPHENSON, Justice. CLAYTON, Justice

text:
    Jerry G. ENGLISH, Appellant, v. James R. ENGLISH, Appellee.
    Supreme Court of Kentucky.
    May 28, 1976.
    Martin W. Johnson, Lovett, Lewis, Johnson & Shapiro, Benton, Robert H. Rice, Wallace, Rice & Gordinier, William T. Warner, Wood, Goldberg, Pedley & Stansburg, Louisville, for appellant.
    Pal G. Howard, Marshall County Atty., George E. Long, II, Cunningham & Long, Benton, for appellee.
   STEPHENSON, Justice.

This appeal presents the question whether Section 99 of the Kentucky Constitution violates the Constitution of the United States.

The appellant, sheriff of Marshall County, tendered to the appellee, county court clerk of Marshall County, notification and declaration papers (KRS 118.125) for nomination on the 1977 Marshall County primary election ballot as a candidate for sheriff of Marshall County, for the term commencing in January 1978. Appellee rejected the notification and declaration papers on the ground that Section 99 of the Kentucky Constitution prohibited appellant from running for re-election.

Appellant then filed suit in the Marshall Circuit Court seeking a mandatory injunction to compel appellee to accept and file appellant’s notification and declaration papers on the ground that Section 99 of the Kentucky Constitution violates substantial and fundamental rights of appellant, as well as of the citizens and voters of Marshall County, guaranteed by the First, Fifth and Fourteenth Amendments to the Constitution of the United States. The trial court entered judgment denying injunctive relief and dismissed the complaint. We affirm.

Appellant’s principal argument for reversal is based on three grounds: (1) a fundamental right of candidacy to succeed himself in office, the denial of which shifts a burden on the Commonwealth to demonstrate a compelling state interest; (2) a due process right to be a candidate without the bar of an irrational, exclusionary classification; and (3) a right to candidacy free from invidiously selective and discriminatory operation of Section 99, which prohibits the sheriff, but no other county officer, from succeeding himself.

Assuming arguendo a fundamental right to candidacy for the office of sheriff, it does not follow that the sheriff has a fundamental right to run for re-election as many times as he wishes. We are of the opinion in this case there is no burden on the Commonwealth to demonstrate a compelling state interest in the enforcement of the provisions of Section 99 of the Kentucky Constitution which prohibit a sheriff from seeking re-election. The compelling state interest test formulated by the United States Supreme Court has proven to be a handy vehicle for invalidating state statutes and provisions of state constitutions. We are of the opinion, however, that the test has no application to the situation presented here. We view the prohibition in Section 99 of the Kentucky Constitution as being unrelated to the areas subject to the application of compelling state interest.

We are of the further opinion that the provision of Section 99 under attack is not an irrational exclusionary classification, nor is it invidiously selective and discriminatory so as to violate the provisions of the Fourteenth Amendment to the United States Constitution.

We note in passing that in 1956 and 1972 the electorate of this Commonwealth had the opportunity to amend the Kentucky Constitution to allow the sheriff to run for re-election, and in each instance voted against the amendment.

We do not comment on appellant’s less than serious argument relative to the First and Fifth Amendments to the United States Constitution, which has even less validity.

We hold that Section 99 of the Kentucky Constitution does not violate the provisions of the United States Constitution in any respect.

The judgment is affirmed.

REED, C. J., and JONES, LUKOWSKY, PALMORE, STEPHENSON and STERN-BERG, JJ., concur.

CLAYTON, J., dissents.

CLAYTON, Justice

(dissenting).

I respectfully dissent from the majority opinion.

It is my plain and simple belief that an incumbent sheriff should be permitted to succeed himself. The reasons for this prohibition set out in Section 99 of the Kentucky Constitution are grounded in history and the thinking of those early times. Most of those reasons are no longer reality and have been eroded by time. The present-day sheriff does not have the power and authority he once had.

I believe the rising crime rate would be reduced if this prohibition were removed. This would be a reality especially in the rural areas where the sheriff is the chief and most effective law enforcement officer. Surely a sheriff with four years’ experience could do a better job if allowed to continue in office until the voters thought otherwise. About the time a sheriff learns his job he is required to quit and seek other employment. In my opinion this is a waste of taxpayers’ money. A sheriff who does not do a good job or abuses his power can be voted out of office the same as a county judge, county court clerk or other county officials who can and are allowed to succeed themselves.

It is well settled that this court has the authority to invalidate a provision of the Kentucky Constitution which it finds to be contrary or repugnant to the Constitution of the United States. See Miller v. Johnson, 92 Ky. 589, 18 S.W. 522 (1892); Constitution of the United States, Article 6, Clause 2.

The fact that of all the county officials only the sheriff is singled out and prohibited by Section 99 of the Kentucky Constitution from seeking reelection, in my opinion, brings Section 99 into direct conflict with the rights of due process and equal protection guaranteed by the Fourteenth Amendment of the Constitution of the United States.

In preference to this higher law, I would therefore hold that the judgment of the Marshall Circuit Court be reversed with directions to enter judgment in favor of appellant granting the injunctive relief sought.


author: STERNBERG, Justice.

text:
    CITY OF BOWLING GREEN, Kentucky, et al., Appellants, v. GASOLINE MARKETERS, INC., etc., et al., Appellees.
    Supreme Court of Kentucky.
    May 28, 1976.
    Rehearing Denied July 30, 1976.
    See also, Ky., 514 S.W.2d 685.

      Whayne C. Priest, Jr., English, Lucas, Priest & Owsley, Bowling Green, for appellants.
    John David Cole, Cole, Harned & Broder-ick, Bowling Green, for appellees Gasoline Marketers, Inc. etc. and Pilot Oil Corp.
    John D. Darnell, Frankfort, for appellee Kentucky Alcoholic Beverage Control Bd.
   STERNBERG, Justice.

The City of Bowling Green, Kentucky, in its efforts to control trafficking in beer, enacted Ordinance No. 73-56, which prohibits the issuance or renewal of a beer license,

“ * * * for any premises used as, in whole or in part, or in connection with the operation of any business or enterprise which has had more than 50% of its gross receipts for either the immediate past month or immediate past twelve months from the sale of gasoline and lubrication oil.”

Gasoline Marketers, Inc., and Pilot Oil Corporation, appellees herein, applied to the City of Bowling Green for a 1974-1975 beer license. Both applications were refused by the city’s alcoholic beverage control administrator because the premises of both applicants were gasoline service stations prohibited from having a beer license by reason of the city’s ordinance. Each of the applicants appealed to the Kentucky Alcoholic Beverage Control Board, which granted licenses to both applicants over the city’s objection. Thereupon, the City of Bowling Green appealed both decisions to the Franklin Circuit Court. The appeals were there consolidated, and on July 16, 1975, the trial court dismissed both of the appeals. That court held:

“The power to grant or deny the right to sell beer in gasoline stations lies within the express jurisdiction of the Alcoholic Beverage Control Board as the law is now written, and the City of Bowling Green may not by ordinance appropriate that authority. Bowling Green Ordinance No. 73-56 is void, since the municipality lacks authority to legislate with respect to the sale of beer by gasoline stations. Bickett v. Palmer-Ball, Ky., 470 S.W.2d 341 (1971); Boyle v. Campbell, Ky., 450 S.W.2d 265 (1970).”

On this appeal of the consolidated cases, the only issue presented is whether the City of Bowling Green, a city of the second class, has the authority to enact an ordinance prohibiting the issuance or renewal of retail beer licenses to gasoline stations. Counsel for appellants contend that the city does have this authority; on the other hand, counsel for appellees argue vigorously to the contrary.

While these two actions were making their way through the administrative agencies and the courts, there was pending in the Court of Appeals of Kentucky an action between appellee Gasoline Marketers, Inc., and the City of Bowling Green over the city’s refusal to issue a city license for the sale of beer. (City of Bowling Green v. Gasoline Marketers, Inc., Ky., 514 S.W.2d 685.) The same ordinance was there under attack as is now under attack in the subject action. However, the Kentucky Alcoholic Beverage Control Board was not a party to that action, nor was it in privity with any of the parties to the action. The effect of City of Bowling Green v. Gasoline Marketers, supra, was merely to recognize that as between the city and the applicant there was no constitutional question presented and in the absence of a successful constitutional challenge, the ordinance will have to be recognized in considering renewals or the issuance of new licenses to sell beer.

In the subject action we are faced squarely with a challenge by the Kentucky Alcoholic Beverage Control Board of the authority of the city to enact and to enforce the subject ordinance. The answer to this question is not crystal clear. The control of the sale of intoxicating beverages in Kentucky is primarily regulated by KRS Chapters 241, 242, 243 and 244. The Kentucky Alcoholic Beverage Control Board is vested by statute with authority to supervise and control the sale and trafficking of alcoholic beverages, which include beer. To sell beer at retail a dealer must have the kind of license delineated in KRS 243.040. In addition, KRS 243.070 provides:

“The city legislative body of any city in which traffic in alcoholic beverages is not prohibited under KRS chapter 242 may impose license fees for the privilege of manufacturing and trafficking in alcoholic beverages. * * * ”

Appellees’ attack is twofold. First, appellees contend that the City of Bowling Green is without authority to enact such an ordinance and, second, they contend that the ordinance is not enforceable because it has not been submitted to and approved by the Kentucky Alcoholic Beverage Control Board. As to the latter attack, appellees argue that KRS 241.190 supports their position. The City of Bowling Green has, pursuant to the authority of KRS 241.160, created the office of city alcoholic beverage control administrator and the appellant, Ar-lie Sadler, fills that office. The city administrator is empowered to make reasonable regulations which, to be effective, must be submitted to the Kentucky Alcoholic Beverage Control Board for approval. (KRS 241.190). That statute applies to regulations, not ordinances regularly adopted by the city legislative body. The legislative body of the City of Bowling Green enacted the challenged ordinance. It has not been adopted by the city alcoholic beverage control administrator as a regulation.

In City of Newport v. Tye, Ky., 335 S.W.2d 340, a similar contention was made, and in disposing of that argument, the Court of Appeals said:

“ * * * Appellee takes the peculiar position that the city cannot regulate hours except with the approval of the State Board of Alcoholic Beverage Control. The argument is that KRS 241.160 authorizes a city to create the office of City Alcoholic Beverage Control Administrator and KRS 241.190 provides that no regulation of the administrator shall become effective until approved by the State Board. We are at a loss to understand what possible relationship the statutes pertaining to the administrator have to do with this controversy. We are not confronted with a regulation of an administrator. We are dealing with a city ordinance.”

The limitation on the issuance of licenses to appellees is by ordinance and not by regulation of the city alcoholic beverage control administrator. The contention that the ordinance is not enforceable because it was not approved by the State Alcoholic Beverage Control Board, pursuant to the provisions of KRS 241.190, is without merit.

Appellees argue that the ordinance would effectively prohibit the retail sale of beer at gasoline service stations because more than 50% of its gross receipts would be from the sale of gasoline and lubricating oil. No regulation having the same or similar effect and no regulation prohibiting such limitation has been adopted by the Kentucky Alcoholic Beverage Control Board. The Kentucky General Assembly has indirectly spoken on the subject. KRS 243.230(5) provides:

“No retail package or drink license for the sale of distilled spirits or wine shall be issued for any premises used as or in connection with the operation of any business in which a substantial part of the commercial transaction consists of selling at retail staple groceries or gasoline and lubricating oil. (2554b-129, 2554b-154: amend. Act 1944, ch. 154, § 33; 1972, ch. 96, § 3.)”

The limitation of KRS 243.230(5) is only applicable to distilled spirits or wine. It does not purport to regulate the sale of malt beverages. Had the General Assembly desired to so regulate the sale of malt beverages, it could have, at this point, very conveniently included malt beverages with distilled spirits and wine. We construe the action of the General Assembly in failing to include malt beverages as intentionally leaving this subject to the city legislative body.

Before discussing the opinions of this court relative to the subject matter, we need to keep in mind that as to the subject regulation we have neither statute nor state regulation undertaking to similarly control the sale of beer at retail. We have a city ordinance regulating its sale at a gasoline service station, and the city alcoholic beverage control administrator has not adopted the ordinance as a regulation. It is not necessary for its validity that it be adopted as a regulation.

In Deckert v. Levy, 308 Ky. 67, 213 S.W.2d 431, the question presented was whether the City of Newport, a city of the second class, had authority by ordinance to limit the number of retail beer licenses in the absence of regulations by the State Alcoholic Beverage Control Board and where the office of city alcoholic beverage control administrator had not been created. The City of Newport, by ordinance, had limited the retail beer licenses to 110. The state had issued a license to Levy for the retail sale of beer. The city denied the application because its quota had already been reached. Levy filed suit in the Campbell Circuit Court contending, successfully, that since the office of city alcoholic beverage control administrator had never been created and since the state board had never fixed a limit on the number of retail beer licenses in the City of Newport, the city was unauthorized to restrict the number of licenses for the sale of beer at retail. The question presented was whether there was any conflict between the state, on the one hand, and the city, on the other hand. The Court of Appeals held that the state had not acted and, in the absence of guidelines, its refusal to recognize the limits fixed by the city ordinance and its issuance of a license was arbitrary and unlawful. The difference between the facts in the Deckert case and the subject action is really a difference without a distinction. In the subject action the city alcoholic beverage control administrator had been appointed but had not taken any action toward adopting as his regulation the city ordinance. Consequently, the city administrator was not attempting to enforce any of his regulations. In the Deckert case there was no city administrator. Again, this is a difference without a distinction.

There is no conflict between the subject ordinance and any regulation of the Kentucky Alcoholic Beverage Control Board. The city has spoken on the subject; the state has not preempted the subject. A municipal corporation possesses no powers except those expressly granted or those essential to the accomplishment of its declared objectives and purposes. Courts have no control over a city council as long as it acts within the scope of its express or necessarily implied powers, but if the council enacts ordinances without authority or contrary to the controlling laws in such matters or they are unreasonable, arbitrary, or oppressive, the courts may declare such ordinances invalid. City of Somerset v. Newton, 259 Ky. 195, 82 S.W.2d 306.

In the case at bar the city legislative body of a second class city has been given specific authority by KRS 243.070 to impose license fees for the privilege of trafficking in alcoholic beverages, and that privilege is broad enough to include the right to regulate the nature of the premises from which beer can be sold.

The judgment is reversed for proceedings consistent with this opinion.

All concur.


text:
    Glen Allen RILEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    June 11, 1976.
    Glen Allen Riley, pro se.
    Robert F. Stephens, Atty. Gen., Frankfort, for appellee.
   STERNBERG, Justice.

This is an appeal from an order of the Lyon Circuit Court denying a petition for a writ of habeas corpus.

Appellant had been regularly indicted by the Grand Jury of Graves County, Kentucky, for the offense of breaking and entering, and at the December 1974 term of the Graves Circuit Court he was convicted and sentenced to five years' imprisonment.

On February 14, 1976, appellant filed his petition for writ of habeas corpus in the Lyon Circuit Court, and on February 23, 1976, the trial judge granted the Commonwealth’s motion to dismiss. Thereupon, an order denying the petition and dismissing the action was entered. This appeal is from that order.

For the purpose of testing the propriety of the questioned order, we accept as unde-nied appellant’s contention that he was kid-naped from the State of Michigan by Graves County authorities without any sort of extradition papers and returned to the Commonwealth of Kentucky to stand trial in the Graves Circuit Court.

The question presented is whether a writ of habeas corpus will lie to challenge the conviction and imprisonment of one who was brought by unlawful means into a jurisdiction where he was convicted. This is a case of first impression in Kentucky. It has, however, been decided in many state courts and by the Supreme Court of the United States, with apparent universal acceptance of the proposition, that where a person accused of a crime is found within the territorial jurisdiction wherein he is so charged and is held under process legally issued from a court of that jurisdiction, neither the jurisdiction of the court nor the right to put him on trial for the offense charged is impaired by the manner in which he was brought from another jurisdiction, whether by kidnaping, illegal arrest, abduction, or irregular extradition proceedings. 165 A.L.R. 948, Note Ha. See 165 A.L.R. 958, Note Ilia.

Appellant’s contention that his due process rights under the Constitution of the United States were violated is without merit. “The trial of a person brought into a state by forcible abduction is not a violation of the provisions of the Federal Constitution prohibiting the deprivation of life, liberty, or property without due process of law. Ker v. Illinois (1886), 119 U.S. 436, 30 L.Ed. 421, 7 S.Ct. 225, * * *" 165 A.L.R. 953.

The landmark case of Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952), has been regularly followed by the United States courts and courts of last resort of other states.

In Lyons v. Thomas, Ky., 378 S.W.2d 798 (1964), a convict who had escaped from the LaGrange Reformatory was denied the right to challenge, by a writ of habeas corpus, the method by which he was returned to the Commonwealth of Kentucky. In doing so, the court said:

“As an escaped convict, petitioner was a fugitive from justice. Gray v. Connors, 285 Ky. 229, 147 S.W.2d 384. His status is less favorable than that of the petitioner in Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541, who had been returned by force to Michigan from Illinois for trial. In denying habeas corpus in an attack on his conviction, the Court held:
‘There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.’ ”

Lyons, supra, differs from the instant case only in that Lyons was an escaped convict. In the case at bar appellant was under indictment but had not been convicted at the time he was brought back to the state to stand trial. This is a difference without a distinction.

We hold that a writ of habeas corpus will not lie to challenge the conviction or imprisonment of one who was brought by unlawful means into the jurisdiction where he was convicted. The lower court so found, and we agree.

The judgment is affirmed.

All concur.


author: PER CURIAM.

text:
    SOUTHEASTERN KENTUCKY BAPTIST HOSPITAL, INC., et al., Appellants, v. Gladys BRUCE, Appellee.
    Supreme Court of Kentucky.
    June 11, 1976.

      Robert L. Milby, Hamm, Taylor, Milby & Farmer, London, for appellants.
    Coleman D. Moberly, Charles R. Luker, London, for appellee.
   PER CURIAM.

This malpractice proceeding arises out of a classic case of mistaken identity. On March 29, 1971, Gladys Bruce was admitted to the Southeastern Kentucky Baptist Hospital as a patient for Dr. Catron who was to perform a conization of the cervix on March 30. On March 27, 1971, Mrs. Jessie Smith was admitted as a patient of Dr. Hamilton who was to perform a thyroidectomy on her on March 30. On the day of reckoning Dr. Hamilton performed a thyroidectomy on another patient, and when it had been completed, the anesthesiologist, Frances R. Bryant, directed the surgical technician, Ruby Wyatt, to bring Mrs. Jessie Smith to the operating room for her surgery. By reason of an almost inexplicable error, Ruby Wyatt mistook Gladys Bruce for the patient, Mrs. Jessie Smith, and removed her to the operating room. Dr. Hamilton, without making any effort to establish the identity of his surgical patient, proceeded with the thyroidectomy. Within a short time Dr. Hamilton was informed that he had the wrong patient on the operating table, and surgery was immediately terminated. The thyroidectomy was not completed, and such incisions as had been made were sutured and repaired.

After Gladys had recovered sufficiently, she filed an action against a number of employees of the hospital, the hospital, and some of the doctors. However, by the time the trial date arrived, the only defendants were the hospital, Frances Bryant, Ruby Wyatt, and Dr. Hamilton. The case was tried before a jury which returned a verdict in favor of Gladys in the amount of $100,-000 — $10,000 against the doctor and $90,000 against the hospital, Bryant, and Wyatt. The doctor satisfied his portion of the judgment while the hospital, Bryant, and Wyatt prosecute this appeal.

The appellants insist that Gladys was remiss in her duties, in that for some unaccountable reason she answered to the name of Smith. However, this court does not consider this to be the neglect of a duty required of Gladys. After all, she was being removed to the operating room for surgery and at the best would have been in a somewhat confused condition. An even more critical duty was placed upon the doctor, Bryant, and Wyatt in establishing with absolute certainty the identity of a surgical patient.

Gladys had an identification bracelet affixed to her wrist which gave her age, floor of the hospital, the name of the doctor, date of her admission, and a number. It was admitted by all these parties that it was their duty to determine the identity of the patient by examining the identification bracelet. However, in this instance, all of the parties admit that they did not check the identity of the patient against the name on the bracelet. The doctor sought to excuse his failure by merely saying that he generally relied upon the nurses to properly identify his patients before surgery. The impact of this entire comedy of errors, if it could be called such, falls directly upon the shoulders of the two nurses and the surgeon. Their failure to do that which was required of them cannot be brushed off lightly by asserting that a patient under the stress of pending surgery answered to an erroneous name.

There is a rather extensive argument throughout the briefs concerning a defect in the jury verdict, it being claimed that the eleven-man verdict was signed only by the foreman of the jury and not by all of those who agreed. An examination of the original verdict discloses that the trial court, in giving its instructions, tendered three form verdicts. The one that the jury adopted was located at the bottom of a page. As there was not sufficient room for the eleven to sign the verdict, the foreman signed it and then the foreman, together with the ten other jurors, dropped back on a preceding page and signed. Interestingly enough, this is the page which required that the verdict be signed by all jurors agreeing, where the verdict is by less than twelve men. There is also filed a supplement to the record, being the affidavit of Charles R. Luker, which explains the events surrounding the return of this verdict. When all is considered, it is evident that the parties and their counsel were fully aware of the eleven-man verdict and also that the signatures of the eleven jurors had been placed on a page other than the one setting out the form verdict adopted. Without conceding that the procedure used was erroneous, it is necessary only to state that the parties now objecting made no effort to preserve for appellate review those errors that they now assert.

Finally, appellants assert that the verdict was excessive when viewed in the light of the extent of injuries sustained by Gladys. The record indicates that an incision some four inches long was made along her neck and that it later became infected. As a result of medication given her, she developed a rather severe rash. There was evidence that cosmetic surgery will be required. There was substantial evidence that Gladys’ experience was so shocking that it aroused various mental problems. While it is not claimed that all these problems were the result of the surgery, there was a plenitude of evidence which indicated that at the least her traumatic experience substantially contributed to what may have been pre-existing mental problems. The jury observed the witnesses and heard all of the testimony and, in its wisdom, returned the $90,000 verdict. This court is of the opinion that there was substantial evidence to support this verdict and therefore is not inclined to disturb it or in any way seek to substitute its opinion for that of the jury.

The judgment is affirmed.

All concur except JONES, J., who did not sit or participate in the consideration of this case.


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    A. E. BIGGE et al., Appellants. v. Miller TALLENT et al., Appellees.
    Supreme Court of Kentucky.
    June 11, 1976.

      Thomas E. Utley, Jr., Smith & Blackburn, Somerset, for appellants.
    Thomas E. Carroll, Lovelace & Carroll, Albany, for appellees.
   PER CURIAM.

Miller Tallent was the owner of the surface only of a tract of land. The oil, gas, and minerals underlying the tract had been conveyed to and were the property of Bigge and Eagleston, each of them having acquired an undivided one-half interest by conveyance from a predecessor in title to Tallent. The oil and gas underlying the tract were encumbered by a lease owned by Jarvis Drilling, Inc. It had drilled and equipped oil wells on the property. Tallent filed an action against Bigge, Eagleston, and Jarvis Drilling which, after detailing the ownership of surface and minerals, asserted that the defendants had failed to develop the property for oil and gas and that by reason of such failure their interest in the minerals, the lease, and the equipment in the wells should be forfeited to Tallent. A motion to dismiss for failure to state cause of action was overruled by the trial court, and a subsequent attempt by defendants, who were nonresidents, to file an answer was overruled. Upon submission, the court found that as there had been no production of oil and gas on the premises for more than two years the lease had been forfeited, that the mineral rights and equipment had been abandoned, and that oil was not a mineral. It thereupon adjudged that the title of any of the defendants, Bigge, Eagleston, and Jarvis Drilling, in the minerals was terminated and forfeited to Tallent. The judgment also cancelled the lease and forfeited all of the equipment on the leasehold estate to Tallent on the ground that the property had been abandoned.

There is and has been for many years a clear and concise line drawn between the ownership of minerals and mineral rights and a separate ownership of the surface or surface rights. This court has consistently held that the ownership of either constituted a separate estate. Going further, this court adheres to the rule that one owning or holding the surface to a tract overlying a separate mineral estate holds the minerals as a trustee for their owners. The mere fact that the owner does not use the mineral estate or develop it does not work a forfeiture of the estate. His title to the minerals can only be defeated by acts which actually take minerals out of his possession. This court has consistently held that oil is a mineral, and its ownership is subject to the same rights, privileges, and liabilities incident to the ownership of any other mineral. The consequences of the body of law governing ownership of mineral estates and surface estates clearly mandate that the nondevelopment of a mineral estate by the holder of a lease on the minerals does not work a forfeiture for the benefit of an owner of the surface estate. There was absolutely no legal justification for the action of the trial court in forfeiting the mineral estate involved in this proceeding to one whose ownership was limited to that of a surface estate only. Cf. KRS 381.430; Piney Oil & Gas Company v. Scott, 258 Ky. 51, 79 S.W.2d 394 (1934); Curtis-Jordan Oil and Gas Company v. Mullins, 269 Ky. 514, 106 S.W.2d 979 (1936).

It might be well to note also that the owner of the surface estate is without standing to bring and prosecute any action which would culminate in the cancellation of an oil and gas lease executed by the owners of the mineral estate or in the forfeiture of equipment in abandoned oil and gas wells to the owner of the surface estate upon the ground that such equipment had been abandoned.

The judgment is reversed.

All concur.


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    Steven James MARSHALL, Appellant, v. C. Leslie DAWSON, Secretary for Human Resources, Appellee.
    Supreme Court of Kentucky.
    June 25, 1976.
    Louis V. Mangrum, Mayfield, for appellant.
    Forest Smith, Dept, for Human Resources, Frankfort, for appellee.
   PER CURIAM.

The primary issues presented by this appeal concern the refusal of the Department for Human Resources to supply Steven James Marshall certain medication under the Medical Assistance Program and whether such refusal was a violation of his constitutional right of equal protection.

As a result of an automobile accident, Marshall was permanently and totally disabled in that he was paralyzed from his neck down. He was approved for aid to the totally and permanently disabled and thereby became eligible to participate in the state Medical Assistance Program. Many of the medicines prescribed for Marshall’s treatment were not included on the Medical Assistance drug lists as adopted by the department. Consequently, payment for such drugs was refused. Marshall contended before the board that such drugs were essential to the maintenance of life, and for this reason they should either be furnished him under the Medical Assistance Program or the amount of his award increased to a sum sufficient to pay for the drugs. The board administratively denied coverage which decision was approved by its hearing officer, the appeal board, and by the Graves Circuit Court. Upon this appeal, Marshall reasserts his claim of entitlement to the drugs required by his ailment.

The scope of medical care is required to be designated and limited by regulations promulgated by the department pursuant to pertinent statutory provisions. One of such provisions required the preparation of a medical drug list. This list was duly prepared and adopted and designates medication available to participants in the Medical Assistance Program. The list is rather comprehensive and covers numerous areas in the health field. However, it is admitted that some of the medication required by Marshall is not on the approved list. Yet, it is also evident that Marshall’s condition is not one that is generally found and that a program tailored to fit the needs of a majority of the public would not necessarily be required to include the type medication now sought by Marshall. Medical care benefit standards as to quality and quantity and the method of determining the cost within each category of public assistance and recipients are required to be uniform throughout the state, and the department is required to adopt regulations to effect these standards. KRS 205.560.

The record clearly indicates that the department, acting by and through its duly designated officials and within the scope of its statutory authority, promulgated and adopted a medical assistance program together with the included medical drug list. Of necessity the drug list was required to be of a general nature and was not intended to reach into each nook and cranny of the medical field and thus provide for all drugs required by those benefiting from the system.

This court is of the opinion that the adoption of the rules as promulgated, including the medical drug list, was carried out within the scope of the statutory authority and upon consideration of the overall Medical Assistance Program and is not arbitrary.

Marshall claims that the omission of drugs necessary for his well being violated his constitutional rights and particularly the equal protection clause. There is no merit in such claim. The classification, as adopted by the department, had a reasonable basis and therefore does not offend the equal protection clause merely because it is not made with mathematical niceties or because in practice it results in some inequality. It is unfortunate that drugs required by Marshall are not on the list. However, the classification is of such a nature that it could not be construed as a denial of Marshall’s constitutional rights.

The judgment is affirmed.

All concur.


author: CLAYTON, Justice.

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    James Riley SCRIVENER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    June 25, 1976.

      Geoffrey P. Morris, Staff Atty., Jefferson District Public Defender, Louisville, for appellant.
    Ed W. Hancock, Atty. Gen., Robert W. Riley, Asst. Atty. Gen., Frankfort, for ap-pellee.
   CLAYTON, Justice.

This is an appeal from a judgment of conviction entered March 14,1975, on a jury verdict which found appellant guilty on charges of burglary and of being an habitual criminal under KRS 431.190.

Appellant raises this meritorious question: Did the trial court err by failing to grant a defense motion requesting a continuance, so that appellant could be tried in street clothing rather than identifiable prison clothing?

In the recent case of Estelle, Corrections Director v. Williams, — U.S. —, 96 S.Ct. 1691, 48 L.Ed.2d 126 (decided May 3, 1976), the Supreme Court of the United States held that an accused may not be compelled to stand trial before a jury while dressed in identifiable prison clothing, provided such is objected to and timely brought to the attention of the trial court. Appellant’s motion for a continuance in the instant case was sufficient to meet this requirement.

In Williams, supra, Chief Justice Burger, speaking for the majority, stated:

“The potential effects of presenting an accused before the jury in prison attire need not, however, be measured in the abstract. Courts have, with few exceptions, determined that an accused should not be compelled to go to trial in prison or jail clothing because of the possible impairment of the presumption so basic to the adversary system. . . . ”
******
“Similarly troubling is the fact that compelling the accused to stand trial in jail garb operates usually against only those who cannot post bail prior to trial. Persons who can secure release are not subjected to this condition. To impose the condition on one category of defendants, over objection, would be repugnant to the concept of equal justice embodied in the Fourteenth Amendment. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956).”

A review of the record in the instant case shows overwhelming evidence of appellant’s guilt on the principal charge. Nonetheless, the judgment must be reversed in accordance with the dictates of the Supreme Court of the United States.

Other issues raised in this appeal will not be discussed in this opinion, but upon retrial of the case the prosecuting attorney should not bring to the attention of the jury any filed away or dismissed charges against the appellant.

The judgment is reversed with directions that appellant be granted a new trial.

All concur.


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    KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION, Appellant, v. Geneva R. MURPHY, Appellee.
    Supreme Court of Kentucky.
    June 25, 1976.
    Kenneth A. Howe, Jr., Gen. Counsel, Paul M. Cupp, Dept, for Human Resources, Frankfort, for appellant.
    Douglas Carter, Tompkinsville, for appel-lee.
   PER CURIAM.

Geneva Murphy worked as a waitress for Stanford Moore at his restaurant in Tomp-kinsville for a period of approximately four years. During all of that time her attire for work had been a dress, a uniform, or skirt and blouse. On October 3,1974, Geneva came to work in a “pants suit.” At the close of the day, Moore told her not to come back to work wearing a pants suit. He did not discharge her.

Considering the requirements of Moore unreasonable, Geneva quit work rather than comply. She then filed a claim for unemployment compensation, asserting that the unreasonable demand left her no alternative other than to terminate her employment, thereby causing it to be involuntary. The referee denied benefits on the basis that Geneva had voluntarily left her position without good cause. KRS 341.-370(2)(c). This ruling was affirmed by the commission.

The trial court reversed the order denying benefits, concluding that the dress code was unreasonable because pants suits had become a proper mode of dress for females in all types of employment.

The record before the trial court does not support this ruling. The only supportive facts introduced by Geneva were that sometimes it was a little bit cool in the restaurant and that her job caused her to stoop over from time to time, thereby possibly improperly exposing herself. On the contrary, the evidence of her refusal to return to work is conclusive. The requirement that she not wear a pants suit was her only barrier between employment and unemployment; the choice was solely hers.

It is clearly within an employer’s rights to set standards of dress which become guidelines for his employees. Good cause for voluntarily quitting work exists only when the worker is faced with circumstances so compelling as to leave no reasonable alternative but loss of employment. However, the enforcement of a reasonable dress code is a well-recognized prerogative of an employer, particularly in restaurants and other institutions of similar nature and has none of the aspects of unreasonableness or arbitrariness.

The evidence conclusively demonstrates that Geneva was not discharged. The fact that Geneva terminated her employment constitutes her leaving work voluntarily and without good cause, thereby disqualifying her upon a claim for unemployment compensation.

Finally, the trial court’s review is limited to the record made before the Kentucky Unemployment Insurance Commission, and the findings of fact of that commission will not be disturbed in those instances where it has found against a claimant unless the evidence is so persuasive that one would have no choice but to find for the claimant. Such was not the case in this proceeding.

The judgment is reversed.

All concur.


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    KENTUCKY BAR ASSOCIATION, Complainant, v. D. Gene DILLMAN, Respondent.
    Supreme Court of Kentucky.
    June 25, 1976.
    Leslie G. Whitmer, Director, Kentucky Bar Ass’n, Frankfort, for complainant.
   PER CURIAM.

In this disciplinary proceeding the Kentucky Bar Association charged D. Gene Dill-man, a member thereof, with unethical and unprofessional conduct calculated to bring the bench and bar into disrepute.

A more detailed account of the charges is contained in the following two counts alleged by the Inquiry Tribunal of the Kentucky Bar Association:

Count 1. On or about March 3, 1975, respondent was retained by Edgar Ward to file a bankruptcy petition in his behalf. On or about March 10,1975, Ward paid respondent $75 to file the petition. Thereafter Ward moved from Kentucky to Myrtle Beach, South Carolina, and heard nothing from respondent. When he tried to contact respondent, respondent did not reply. As a result of respondent’s neglect of this matter, Ward’s house was foreclosed upon and all property which he owned in Kentucky was lost. Respondent never filed the petition in bankruptcy in behalf of Ward.

Count 2. On or about June 1969, Ewell Hamblin of Clairfield, Tennessee, sought representation for himself and his minor daughter, Melissa Kay Hamblin, employing respondent to file suit for alleged damages caused in an explosion in Williamsburg, Kentucky, on June 11, 1969. Hamblin alleged part of the medical expenses in behalf of his minor daughter was in excess of $10,000. From the time of employment until December 1974, respondent gave Hamb-lin repeated assurances that the legal steps necessary to protect the interests of Hamb-lin and his daughter had been taken. The assurances by respondent were misrepresentations, as Hamblin learned in December 1974 that respondent had neglected to file any suit in state or federal court. Respondent’s concealment of his failure to file suit and his neglect of his clients’ interests resulted in the claim being barred by the statute of limitations. From January 1975 to June 1975 respondent refused to cooperate with Hamblin’s new counsel of Knoxville, Tennessee, by failing to respond to letters and phone calls and by making appointments with them and then not being present without any notice of cancellation.

The respondent had notice of the charges filed against him by the Inquiry Tribunal but made no response. The Board of Governors reviewed this matter and on March 19,1976 found respondent guilty as charged and recommended to this court that respondent be suspended from the practice of law for one year. A rule was issued on April 2, 1976, from this court commanding the sheriff of Bell County to summon the respondent to appear and show cause why he should not be adjudged guilty of the charges. Respondent was served by the sheriff of Bell County on April 30,1976, but he has failed to file any kind of answer. RAP 3.410 states, in part:

“Promptly upon the filing of the order as provided in RCA 3.370 (now RAP 3.370), the clerk shall advance the case on the docket and shall forthwith issue a rule against the respondent returnable within twenty days after service of the rule, requiring the respondent to show cause why he should not be adjudged guilty of unprofessional conduct and disciplined therefor. ... If response is not filed when due the court shall enter judgment against the respondent, adjudging him guilty of unprofessional conduct and disciplining him. . . .”

It is the opinion of this court that the respondent is guilty of the unethical and unprofessional conduct alleged and that the recommendation of the Board of Governors of the Kentucky Bar Association should be adopted.

It is therefore the judgment of this court that respondent, D. Gene Dillman, be and he is hereby suspended from the practice of law in Kentucky for a period of one year and required to pay the costs of this proceeding.

All concur.