text:
    CITY OF OAK RIDGE, Appellant, v. ROANE COUNTY, Appellee.
    Supreme Court of Tennessee.
    April 3, 1978.
    William E. Lantrip, Luther M. Reed, Oak Ridge, for appellant.
    Joe H. Walker, Harriman, for appellee.
   OPINION

FONES, Justice.

This suit was brought by Roane County to void an annexation ordinance adopted by City of Oak Ridge on September 17, 1975. The suit was filed April 14, 1976, well beyond thirty days after the operative date of the Oak Ridge ordinance.

By appropriate amendment Roane County asserted its standing to bring the action as an owner of property within the territory to be annexed, and its right to maintain the suit is not an issue before this Court. See State v. Mayor of Morristown, 222 Tenn. 21, 431 S.W.2d 827 (1968).

. Roane County alleged that the ordinance was void because (1) Oak Ridge failed to give the notice required by T.C.A. § 6-309 and (2) that the plan of municipal services proposed for the territory to be annexed was not submitted to the Roane County Regional Planning Commission as required by T.C.A. § 6-309. The remaining allegations of the complaint, being clearly barred by the failure to bring the suit within thirty days after September 17, 1975, will not be recited here.

The issues decided by the lower court and brought here are (1) whether the courts have jurisdiction to entertain an annexation suit brought more than thirty days after the operative date of an annexation ordinance, challenging a municipality’s alleged failure to give notice in accord with the requirements of T.C.A. § 6-309; and (2) whether the phrase “local planning commission” in T.C.A. § 6-309 means the planning commission of the municipality or the planning commission having jurisdiction over the territory to be annexed.

The Chancellor held that the thirty-day limitation applied only to suits brought on the issue of the reasonableness of the annexation ordinance as expressly authorized in T.C.A. § 6-310, and did not apply to a suit to void the ordinance for want of notice or failure to submit a plan of proposed municipal services to the proper local planning commission. He also held that the “local planning commission” as used in T.C.A. § 6-309 referred to that planning commission that had jurisdiction over the territory to be annexed, not the planning commission of the annexing municipality. We think the Chancellor was in error on both issues.

I.

At the time the General Assembly enacted Chapter 113, Public Acts of 1955, there was no aspect of the legislative power to extend or contract municipal boundaries that was subject to review by the courts, absent constitutional infirmity. In the early case of McCallie v. Mayor of Chattanooga, 40 Tenn. 317 (1859), this Court said:

“The extension of the corporate limits of Chattanooga was an exercise of governmental power of which the persons newly taken in could not be heard to complain; they had no voice in the matter, no power to resist, nor was any legal right of theirs infringed thereby.” 40 Tenn. at 321.

In Willett v. Corporation of Bellville, 79 Tenn. 1 (1883), the Court said:

“The boundaries of a municipal corporation as fixed by the Legislature in the charter can not be changed except by the Legislature, or in the mode specifically prescribed by the Legislature.” 79 Tenn. at 5.

In Town of Oneida v. Pearson Hardwood Flooring Co., 169 Tenn. 449, 88 S.W.2d 998 (1935), Mr. Justice Cook, speaking for the Court expressed the rule as follows:

“The Legislature, clothed with power to create municipal corporations, may at will alter their boundaries without the consent of the municipality or the inhabitants of its territory. That is a political power which, in the absence of a constitutional restraint, is not open to review or hindrance by the courts.” 169 Tenn. at 452, 88 S.W.2d at 999.

Perhaps the last case in which this rule was affirmed prior to the constitutional convention of 1953 was that of Bell v. Town of Pulaski, 182 Tenn. 136, 184 S.W.2d 384 (1945). An attack upon the constitutionality of a private act of 1941 enlarging the boundaries of Pulaski was subjected to constitutional attack upon several grounds. Chief Justice Green, writing for the Court, said:

“The unlimited power of the Legislature to change municipal boundaries has been declared by this Court so many times for so many years that there could have been no doubt in the legislative mind as to the validity of the Act of 1941 in that respect.” 182 Tenn. at 141, 184 S.W.2d at 386.

As a part of the amendments added to Article 11, Section 9, Constitution of Tennessee in 1953, the following sentence appears:

“The General Assembly shall by general law provide the exclusive methods by which municipalities may be created, merged, consolidated and dissolved and by which municipal boundaries may be altered.”

Responding to that amendment, the General Assembly enacted Chapter 113, Public Acts of 1955, providing two methods of altering municipal boundaries, the ordinance method as provided in T.C.A. § 6-309 and the referendum method codified as T.C.A. § 6-311 and § 6-312. In delegating to municipalities the political power to annex by ordinance, the Legislature for the first time in our judicial history granted jurisdiction to the courts to entertain a contest of a municipality’s annexation ordinance. That portion of Chapter 113 is codified as T.C.A. § 6-310.

Within the four corners of that statute lies the entire jurisdiction and authority of the Courts to review the actions of municipalities in enacting annexation ordinances. We reach that conclusion both because of the state of the law at the time it was adopted and from a careful reading and analysis of the statute itself.

The provisions of T.C.A. § 6-310 that are relevant here (1) authorize a suit by any owner of property in the territory to be annexed, if brought prior to the operative date of the annexation ordinance (thirty days after passage); (2) limit the issue that can be entertained by the court to whether the proposed annexation is reasonable, in consideration of the health, safety and welfare of the citizens and property owners of the territory proposed to be annexed and of the municipality as a whole; (3) authorize the trial court to vacate the ordinance if it finds it unreasonable; (4) declare that the ordinance becomes operative thirty-one days after judgment entered, if found reasonable by the trial court, unless appealed; (5) authorize the Court to vacate the ordinance if it is found invalid on appeal; (6) provided that, if found valid, “it shall become operative forthwith by court order and shall not be subject to contest or attack in legal or equitable proceeding for any cause or reason, the judgment of the appellate court being final.”

The General Assembly is presumed to have known that the political power it was delegating to municipal, corporations was not subject to review by the courts when Chapter 113, Public Acts 1955 and subsequent amendments thereto were enacted. See Hargrove v. Newsome, 225 Tenn. 462, 470 S.W.2d 348 (1971); McKinney v. Hardwick Clothes, Inc., 217 Tenn. 457, 398 S.W.2d 265 (1966).

Bearing in mind that no right to review the extension of municipal boundaries existed prior to Chapter 113, Public Acts 1955, absent constitutional infirmities, the rights that now exist are limited to those granted in Section 2(b) of that act, codified in T.C.A. § 6-310, grammatical paragraphs one, three, and four.

The statute expressly authorizes a court contest on only one ground — whether the annexation is reasonably necessary for the welfare of the residents and property owners of the affected territory and the municipality as a whole. The statute expressly authorizes the courts, trial and appellate, to “vacate” an annexation ordinance upon a finding of unreasonableness. That authorization is exclusive. The courts are not expressly or impliedly authorized to void a municipal ordinance for failure of the municipality to give notice, hold a public hearing, or submit a plan of services to the local planning commission.

It is apparent, however, that in a timely-filed suit, a city would be unable to carry the burden of proving that the annexation was reasonably necessary for the welfare of the residents and property owners of the affected territory and the municipality as a whole without a public hearing after the required notice.

Our conclusions with respect to the exclusiveness of the statute are in accord with the decision in City of Gallatin v. City of Hendersonville, 510 S.W.2d 507 (Tenn.1974), where it was held that standing to bring a suit contesting an annexation ordinance must be found in T.C.A. § 6-310. Gallatin brought suit alleging that, as the larger of the two cities, its annexation ordinance was entitled to priority over Hendersonville’s, pursuant to T.C.A. § 6-317. Hendersonville filed a cross-action alleging that Gallatin had not complied with T.C.A. § 6-309 or its own charter in adopting an annexation ordinance; that it had not adopted a plan of services or submitted it to its planning commission as required by said statute; and that T.C.A. § 6-317 was not applicable because it had annexed the territory in question before Gallatin’s attempted annexation.

Chief Justice Dyer, writing for the Court said:

“Under the common law neither Hender-sonville nor Gallatin had any authority to annex this territory by ordinance. The authority of both cities is contained solely in our statutes and the rights of Hender-sonville to contest such issues will have to be found in our statutes.” 510 S.W.2d at 509.

The Court found that Hendersonville was not an owner of property within the meaning of the statute and was without standing to contest the validity of Gallatin’s annexing ordinance.

In Brent v. Town of Greeneville, 203 Tenn. 60, 309 S.W.2d 121 (1957), the Court held the filing of suit within thirty days after the operative date of an annexation ordinance to be a condition precedent, essential in order to confer jurisdiction.

There the Court was faced with the question of whether or not T.C.A. § 28-106 gave the defendants the right to commence a new action to test the validity of an annexation ordinance within one year of the date of a voluntary nonsuit of a case timely-filed under T.C.A. § 6-310.

Mr. Justice Prewitt, writing for the Court, distinguished the thirty-day limitation in T.C.A. § 6-310 from general statutes of limitation, thus:

“[T]he different statutes of limitation limit the time within which the remedy for a violation of an existing right must be exercised, and if the remedy is not pursued in time the statutes of limitation bar the remedy, and if pursued in time, but dismissed for any reason not concluding the right of action the saving statute comes into play and gives the litigant additional time within which to pursue his remedy.
“The defendants, in this cause, were given a right by the statute, not a remedy, and were further given a limited time in which to exercise the right.” 203 Tenn. at 63, 65, 309 S.W.2d at 122.

We hold that the right to bring a suit pursuant to the authority of T.C.A. § 6-310 to review any issue arising out of the adoption of an annexation ordinance authorized in T.C.A. § 6-309 expires thirty days after the operative date of the ordinance, the courts have no jurisdiction of such suits thereafter.

II.

The requirements of T.C.A. § 6-309 that a plan of service be submitted to the “local planning commission” is ambiguous. On its face, it could refer to either the planning commission of the annexing municipality or the planning commission having jurisdiction over the territory to be annexed.

Where the interpretation of an ambiguous statute is before the courts, the debates in the General Assembly may be resorted to in seeking legislative intent. See Southern Railway v. Fowler, 497 S.W.2d 891 (Tenn.1978).

The requirement of submission to the local planning commission was added to T.C.A. § 6-309 by Chapter 320, Public Acts of 1961. When the bill was submitted for final reading in the Tennessee House of Representatives, the paragraph at issue read as follows:

“Provided, further, that before any such plan of service shall be adopted, it must have been submitted to the local planning commission for study and a written report, to be rendered within ninety (90) days after such submission, unless by resolution of the governing body a longer period is allowed. In the event that there is no local planning commission, the referral by the local governing body shall be to the State Planning Commission.”

The bill was changed to its present form by an amendment passed that day. In explaining the purpose of the amendment, Representative Barry, the bill’s sponsor, said the following:

“The original bill provided that the plan of services as prepared by the municipal authorities had to be submitted to the planning commission of the particular city, but in the event that no such planning commission existed, it should then be submitted to the State Planning Commission for their approval or rejection. “It is quite obvious, I think, to the House, that most of the cities and municipalities which do not have planning commissions are the smaller ones, and we feel that it would impose an unjust burden on them to delay their annexation procedures until such time as the various and scattered members of the State Planning Commission can be brought together for consideration of any plan that they might submit.” (Emphasis added.)

Representative Barry’s comments clearly show that the “local planning commission” to which the plan of services must be submitted is the planning commission of the annexing municipality. The bill was passed overwhelmingly by the Tennessee House of Representatives shortly after Representative Barry’s remarks above-quoted. In the records available to us, there is nothing to indicate that the legislature, or any member of it, placed a contradictory construction on the word “local.” We hold that “local planning commission” refers to the planning agency of the annexing municipality.

The decree of the trial court is reversed and this suit is dismissed. Costs are adjudged against Roane County.

HENRY, C. J., and COOPER, BROCK and HARBISON, JJ., concur.

      . Subsequent amendments of T.C.A. § 6-310 have added grammatical paragraphs two, five, and six. Grammatical paragraph two puts the burden of proof on municipalities. Grammatical paragraph five involves industrial plant development, if situated in the affected territory — neither of these are relevant to the issues in this case. The summary of the statute in the preceding paragraph of this opinion is of the original grammatical paragraphs, now one, three, and four, which have remained unchanged.


source: Caselaw Access Project

author: HARBISON, Justice.

license: Public Domain

text:
    Porter B. RECTOR, Appellant-Plaintiff, v. James GRIFFITH et al., Appellees-Defendants.
    Supreme Court of Tennessee.
    April 3, 1978.

      Cecil D. Branstetter, Nashville, for appellant-plaintiff; Robert T. Beaty, Oneida, of counsel.
    Jim G. Creecy, Asst. Atty. Gen., for ap-pellees-defendants; Brooks McLemore, Jr., Atty. Gen., Nashville, Ted Q. Wilson, Oneida, of counsel.
   OPINION

HARBISON, Justice.

This action was instituted by the incumbent Commissioners of Citizens Gas Utility District of Scott and Morgan Counties, challenging the constitutionality of Chapter 237 of the Public Acts of 1977. The Chancellor upheld the statute, and we affirm his decision.

The only constitutional infirmity asserted on appeal is an alleged violation of Article XI, § 8 of the Tennessee Constitution, requiring the enactment of general laws and forbidding invidious or discriminatory class legislation.

The 1977 statute which is challenged altered the number and the method of selection of the Board of Commissioners of the utility district. It named six individuals to serve as commissioners, in addition to three persons who were then incumbent, and provided that all nine persons should serve until the August 1978 general election. After that date, five persons are to serve as a Board of Trustees for specified staggered terms, the trustees to be elected by the subscribers of the district. The statute provides for annual elections to be held among all the membership “in the same way and manner as electric cooperatives.” It also requires the Board of Trustees to promulgate by-laws similar to those provided for electric cooperatives. The challenged statute also increases the attendance fee for members of the Board of Trustees.

The only evidence introduced upon the trial of the case was a brief stipulation. This stated that the utility district was properly organized under the provisions of the Utility District Law of 1937, as amended, T.C.A. §§ 6-2601 et seq. The district came into existence on March 15, 1958, and a copy of the decree by which it was incorporated was stipulated. It was also agreed that the original plaintiffs were the incumbent commissioners prior to the enactment of the statute in question, and that the six persons named as additional commissioners in the 1977 statute were joined as defendants (together with the Attorney General of the state).

A copy of the statute in question was stipulated, together with a copy of Chapter 225 of the Public Acts of 1959. The latter had expressly validated the organizational and subsequent proceedings with respect to the utility district, including certain bonds which it had issued. That statute also provided for an attendance fee to members of the Board of Commissioners.

By stipulation there was also filed a transcript of legislative proceedings incident to the adoption of the 1977 statute, including the remarks of a state senator as to the reasons for its passage.

No other evidence was submitted to the. Chancellor prior to his decision of the case. Subsequent thereto an affidavit was filed by one of the commissioners, in support of an application to continue in force a temporary injunction, pending appeal. The contents of this affidavit were not admitted or received into evidence upon the merits of the controversy.

We make this observation, because counsel for both parties, in their briefs, make factual assertions which were not covered by the stipulation and are not matters of which the Court may take judicial notice. For example, counsel for appellees make reference to increased production of natural gas in the area served by the utility district, while counsel for appellant refers to the financial condition and the administrative costs of the utility district. We have confined our consideration to those matters which were contained in the stipulation submitted to the Chancellor for purposes of trial.

There can be no question that a utility district such as that involved here is a public, municipal corporation. The authorizing statutes expressly so provide, T.C.A. § 6-2607, although they withhold any power of taxation from the district. It is given, however, numerous specific corporate powers, together with the right of eminent domain and general incidental powers necessary for the implementation of its purposes. T.C.A. §§ 6-2610 et seq.

Appellant concedes that the General Assembly has broad power to enact private or special legislation with respect to the corporate structure and functions of public corporations, but his primary insistence is that it may not adopt such special legislation in contravention of the general law or in such a manner as to confer discriminatory benefits and privileges upon certain individuals or groups of citizens.

Appellant insists that the Legislature has provided by general law for the method of selection of commissioners of utility districts, and that the 1977 statute under consideration attempts without a rational basis to provide a wholly different method, in contravention of the general statutes.

An examination of the Utility District Law of 1937, as amended, however, reveals that it authorizes many different and varied methods of selection of district commissioners. Prior to 1973, T.C.A. § 6-2614 contained a fairly general method, consisting of the filling of vacancies by the remaining incumbents. In the event of their inability to agree, provisions were made for the county judge to fill a vacancy. Subsequent amendments to that statute, however, provided for popular election of commissioners in certain of the larger counties of the state. The terms of office of the latter were entirely different from the terms provided under the prior general law.

This general system was modified substantially by the enactment of Chapter 249 of the Public Acts of 1973. Under that act, covering most types of districts, vacancies are to be filled by the county judge from a list of nominees submitted by the incumbent commissioners, with special provisions in the event of his failure to exercise the appointive power. Additional provisions are made for multi-county districts.

Expressly excepted from the 1973 legislation, however, were all natural gas utility districts operating in the state, where the older methods of filling vacancies by the remaining incumbents or by election were retained. There were additional exceptions contained in the 1973 act as to particular counties, and these, together with later amendments, now exempt counties in ten population brackets from the “general” method of selection provided by the 1973 act. See T.C.A. § 6-2638(a). Small water utility districts are also excepted. T.C.A. § 6-2638(d).

It is apparent that almost every conceivable method of selection of boards of commissioners of utility districts is authorized in one way or another, and to varying degrees, by the “general” statutes on the subject. Natural gas utility district boards generally remain under the pre-1973 statutory provisions, but the General Assembly has clearly authorized numerous methods of selection of similar officials in different parts of the state, apparently in response to local needs or demands. Uniformity in selection and tenure are not demonstrated statewide policies under the general statutes.

The 1977 statute at issue here makes reference to the Electric Cooperative Law, T.C.A. §§ 65-2501 et seq. The provisions of that act authorize five-member boards of trustees of electric cooperatives, who are popularly elected by their members. The duties and responsibilities of such trustees, including fiscal affairs and bonded indebtedness of the cooperatives, are prescribed by statute, T.C.A. §§ 65-2508, 2510. These do not differ so greatly from the duties and responsibilities of commissioners of utility districts as to indicate that popular election of the latter commissioners would be contrary to public policy or wholly inimical to the discharge of the duties of their offices. Appellant suggests, in his brief, that appointment by the incumbents is a method of filling vacancies superior to popular election. In the absence of testimony on the point, however, we are unable to conclude as a matter of law that the method chosen by the General Assembly for electric cooperatives is inherently unsuitable for utility district commissioners.

Relied upon by the Chancellor and by appellees is the case of Whedbee v. Godsey, 190 Tenn. 140, 228 S.W.2d 91 (1950), in which this Court upheld a private act providing for the creation of a sanitary utility district in Knox County, with different provisions from those contained in the general utility district law of 1937, including the popular election of its board of commissioners. In response to a contention similar to that advanced by appellants here, the Court said:

“As to the point made that Chapter 176, Private Acts of 1945, suspends a general law, it is to be observed that said Private Act, as amended, creates a public corporation, with governmental powers, and has nearly all the earmarks of a municipality. This being true, the Legislature has absolute control over such public corporations.” 190 Tenn. at 144, 228 S.W.2d at 93.

Further, the Court noted that the Utility District Law of 1937, which might apply to all parts of the state,

“. . . is not exclusive, as sanitary conditions may vary in different sections of the State.” 190 Tenn. at 148, 228 S.W.2d at 94 (emphasis added).

Also, in the case of Johnson City v. Allison, 50 Tenn.App. 532, 362 S.W.2d 813 (1962), there was upheld a private act authorizing selection of members of an electric power board in a manner different from that provided by the general state law governing such utilities, T.C.A. §§ 6-1501 et seq. Although a reasonable factual basis for the special provisions contained in that private act was shown in the record, the Court stressed the public and governmental nature of the utility and the almost plenary power of the general assembly with regard to such entities. It said:

“Complainant, by organizing its power board under the general act of 1935, did not acquire constitutional immunity from the future exercise by the Legislature of its power to change the composition of the Board whenever warranted by a change of conditions deemed to involve the health and economic wellbeing of the territory it serves.” 50 Tenn.App. at 538, 362 S.W.2d at 815.

The provisions of Article XI, § 8 of the Tennessee Constitution have been the subject of almost innumerable cases in this state, and we readily concede that it is difficult to reconcile all of the decisions on the many issues which have been the subject of litigation thereunder. Throughout the history of the state, the General Assembly has enacted thousands of private acts dealing with various aspects of local government, and the constitutional language has been discussed and construed at length in literally hundreds of cases arising under such local legislation.

In the recent case of Brentwood Liquors Corp. of Williamson County v. Fox, 496 S.W.2d 454 (Tenn.1973) (involving special local taxation), the Court discussed seemingly conflicting lines of previous cases. One of these was to the effect that the General Assembly has unlimited authority to enact private legislation affecting local units of government in their political or governmental capacities without violating Article XI, § 8. In other cases, however, it has been held that such authority of the Legislature may not be exercised so as to suspend a general law, mandatorily applicable statewide, unless there is some reasonable basis for classification or departure from such general statutes. The Court approved the latter cases as being more authoritative.

Appellants insist that no apparent classification has been demonstrated to justify the private legislation at issue here, and we are inclined to agree with that assertion. A single statement by a member of the General Assembly may occasionally assist a court in determining legislative intent in construing an ambiguous statute. The meager legislative history introduced in the present case fails, however, to establish any substantial basis for classification which alone would justify a different method of selection of commissioners for this particular utility district.

Nevertheless, where there is no general state law which is mandatorily applicable, the cases recognize that the General Assembly has almost unlimited discretion to enact private legislation affecting the structure and organization of local governmental units. Illustrative are the cases of Henry v. Abernathy, 175 Tenn. 512, 136 S.W.2d 51 (1940) and Townsend v. Ray, 174 Tenn. 634, 130 S.W.2d 96 (1939). In those cases, private acts creating special Boards of School Commissioners in particular counties were upheld, despite the fact that there were general statutes prescribing the makeup of local county school boards. Those general statutes, however, had never been considered to be mandatory, and, within themselves, provided for school boards of differing numbers and terms of office. See, e. g., T.C.A. § 49-208. There was not a general mandatory statute as to the membership and tenure of local school boards, indicating a uniform statewide system. Local legislation, departing from the general statutes, was upheld where it was not found to be merely a colorable device to remove particular individuals from office.

There is no contention in the present case that the private act under consideration is of the latter type, designed as a mere ruse or instrumentality to oust the incumbent commissioners.

We are of the opinion that the 1977 Private Act undertakes to deal with the utility district in its governmental or political capacity, materially altering the structure and selection of its governing body, and that it was not designed or intended to confer a special benefit or privilege upon citizens of this particular district within the purview of Article XI, § 8. Popular election, as distinguished from appointment or some other method of choosing a public official, has generally been considered to constitute a method of selection, rather than a personal benefit or privilege to a particular individual. In Townsend v. Ray, supra, private legislation authorized election of members of a school commission from local civil districts, rather than appointment by the quarterly county court as provided by general school statutes. See also Haggard v. Gallien, 157 Tenn. 269, 8 S.W.2d 364 (1928). In Whedbee v. Godsey, 190 Tenn. 140, 228 S.W.2d 91 (1950), officials of a local sanitary district were to be popularly elected, but that private legislation was upheld despite the fact that the Utility District Law of 1937 provided for a different method of selection.

We have already noted that in the Whed-bee case the Court construed the utility district statutes as being non-exclusive and as not precluding private legislation on the subject. We have also noted that the general statutes themselves authorize many different methods of selection of local commissioners.

We do not find that the present legislation offends any general law which is obligatory or that it violates any uniform state policy for the selection of local officials such as those involved here. Accordingly its enactment lay within the power of the General Assembly, and the attack upon its provisions cannot be sustained.

The judgment of the Chancellor is affirmed at the cost of appellant.

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

      . Such districts are not “municipalities” within the home rule provisions of the state constitution. Fountain City Sanitary District v. Knox County Election Comm’n, 203 Tenn. 26, 308 S.W.2d 482 (1957).

      . The 1973 legislation made many other important changes in the utility district laws, including rules and regulations regarding complaints and limited review of rates and services by the Public Service Commission.

      . Appointment by the Quarterly County Court was authorized in certain larger counties by Tenn.Pub.Acts 1977, c. 261, T.C.A. § 6-2614(c).

      . The General Assembly has stated its reasons for exempting gas utility districts from a number of general statutes applying to other types of districts. T.C.A. § 6-2638(c). These are that such districts purchase their requirements from interstate natural gas pipelines. The rates, services and supplies of the latter are federally regulated, as are all safety standards applicable to the transmission and distribution facilities of natural gas districts. Likewise, bonds issued for the construction or replacement of such facilities can only be issued after approval by federal regulatory agencies.


author: WALKER, Presiding Judge.

text:
    George DELAY and Samuel Johnson, Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Aug. 25, 1977.
    Certiorari Denied by Supreme Court Feb. 20, 1978.
    Rehearing Denied April 3, 1978.

      Roger E. Jenne, Cleveland, for Delay.
    Carter H. Schoolfield, Chattanooga, for Johnson.
    Brooks McLemore, Jr., Atty. Gen., Linda Ross Butts, Asst. Atty. Gen., Nashville, Richard A. Fisher, Dist. Atty. Gen., Cleveland, for appellee.
   OPINION

WALKER, Presiding Judge.

The appellant George Delay was convicted of concealing stolen property over $100 in value and sentenced to three to six years’ imprisonment. The appellant Samuel Johnson was convicted of receiving stolen property over $100 in value and given three to six years’ punishment. However, Johnson was then found guilty of being an habitual criminal and sentenced to life imprisonment.

Both appellants contend the court erred in overruling their pleas of former jeopardy.

The court dismissed an earlier indictment against appellants because the state was not ready for trial. When announcing the dismissal, the trial judge said, “Let a not guilty go down in these cases.” The appellants argue that they were thereby acquitted and that reprosecution violated the double jeopardy provision.

However, the appellants were never in jeopardy at the dismissal hearing. No jury was impaneled and sworn, nor was any evidence presented, hence jeopardy never attached. Therefore, the court was without authority to acquit appellants for double jeopardy purposes and any language of the judge to that effect was without consequence. United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977).

On November 3, 1973, officers observed Johnson and his brother drive a truck into a lot surrounding the business building of Delay’s auto salvage yard. The Johnsons unloaded a stolen truck cab from their truck and placed it on the lot near other vehicles. Delay then approached the Johnsons and the three talked. The truck bed matching the stolen cab was also on the lot. On the following day, the appellants were arrested and the cab seized.

Delay attacks the evidence, arguing that he neither unloaded the cab or owned the open lot. However, from the presence of salvaged vehicles on the lot, the jury could have concluded that Delay was using the lot for business purposes and had its possession. The jury could then infer possession of the cab from possession of the lot. Armstrong v. State, Tenn.Cr.App., 548 S.W.2d 334 (1976). It could find guilty knowledge from that possession. Turner v. State, Tenn., 541 S.W.2d 398 (1976). This evidence is sufficient.

Delay also argues that the seizure of the stolen cab from the open lot was illegal because the warrant inaccurately described the premises to be searched.

No warrant was necessary. The lot was an open area in which Delay exhibited no expectation of privacy. Indeed, Delay disclaimed any interest at trial by showing that the lot was owned by TVA. The public was not excluded from the premises and officers observed appellants’ activities from without the premises where they had a right to be. Consequently, the “open fields” exception to the Fourth Amendment sustains the seizure. Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924). See also G. M. Leasing Corporation v. United States, 429 U.S. 338, 97 S.Ct. 619, 50 L.Ed.2d 530 (1977).

Delay argues that the dismissal of the indictment and the subsequent reindictment violated his speedy trial rights. Dismissal was ordered November 26, 1975, reindictment was returned June 28, 1976, and trial held September 3, 1976. Delay contends the seven months’ delay between dismissal and reindictment resulted in a violation of his speedy trial right.

Stanford v. State, Tenn.Cr.App., 541 S.W.2d 805 (1976), involved a six-week interval between dismissal and indictment. It withstood constitutional attack. Although the case before us involves a seven-month interval, we hold that violated no speedy trial right. Delay did not raise this question at trial and has shown no prejudice during the interval.

Delay complains that an officer testified the appellants were engaged in a “stripping operation” when arrested. The trial judge’s prompt approval of his objection dissipated any prejudice. State v. Manning, Tenn., 490 S.W.2d 512 (1973).

The trial judge’s charge on the law was adequate and he did not err in refusing Delay’s special request.

Delay argues he should have been granted a severance so his eodefendant could exculpate him. The codefendant’s affidavit merely says that his evidence would “tend to exculpate” Delay. This conclusion, unsupported by any factual statements, is much too vague to have probative effect. Consequently, the denial of a severance was no abuse of discretion. Helton v. State, Tenn.Cr.App., 530 S.W.2d 781 (1975); United States v. Vaughan, 422 F.2d 812 (6th Cir. 1970).

Johnson complains that the court refused his offer of proof. During the habitual criminal trial, he sought to show by his wife his present good behavior. This was not error. The only issue at this trial was the validity of Johnson’s prior convictions.

Delay says the court permitted the jury to deliberate in open court. When the jury returned its verdict, it announced only a minimum but not a maximum sentence had been reached. The court then polled the jury to find the area of disagreement and promptly returned it to the jury room for further deliberations, whereupon a complete verdict was rendered. This procedure did not constitute jury deliberation in open court.

Johnson argues that his three prior “receiving and concealing” convictions are not infamous crimes and therefore cannot be considered as the basis for his habitual criminal conviction.

Infamous crimes, except petit larceny, are considered on an accusation of habitual criminality. TCA 40-2801. Of course, TCA 40-2712 makes receiving stolen property an infamous crime but is silent on concealing stolen property. In addition, receiving and concealing stolen property are separate crimes. Jones v. State, 219 Tenn. 228, 409 S.W.2d 169 (1966).

Johnson argues that he must be given the benefit of the doubt that the jury only convicted him of concealing stolen property. There is no doubt that Johnson received the car which resulted in his federal conviction in 1968 since he was also convicted of transporting that same car.

At the time Jones was decided, the receiving statute (TCA 39-4217) described the offense as either receiving or buying or concealing stolen property. Jones, supra, at 234, 409 S.W.2d 169. The disjunctive “or” suggests that receiving, buying or concealing were merely different descriptions of one offense, rather than separate offenses. This conclusion is consistent with O’Brien v. State, 205 Tenn. 405, 326 S.W.2d 759 (1959), which referred to “receiving and concealing” as one offense.

Against this background, the failure of TCA 40-2712 to provide separately for concealing as an infamous crime was not due to the determination that it should not be made infamous, but that receiving and concealing was one crime and that the listing of receiving was sufficient notice to defendants. Further listing would have been redundant. Thus, until Jones separated the offenses, the infamy statute covered the offense of receiving and concealing. Inasmuch as Johnson’s state convictions occurred prior to Jones, he cannot claim its benefits.

All assignments are overruled and the judgments are affirmed.

DWYER and TATUM, JJ., concur.


author: WALKER, Judge.

text:
    Ernest Eugene BRIGHT, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Nov. 22, 1977.
    Certiorari Denied by Supreme Court Feb. 6, 1978.

      Ray E. Cate, Knoxville, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Patricia J. Cottrell, Asst. Atty. Gen., Nashville, James R. Dedrick, William H. Crabtree, Asst. Dist. Attys. Gen., for appellee.
   OPINION

WALKER, Judge.

On his trial under a two-count indictment, Ernest Eugene Bright was acquitted of receiving but convicted of concealing stolen property over the value of $100 and sentenced to three to five years in the penitentiary. The property in question was a 1974 black Ford F100 pickup truck bearing public vehicle identification number F10YUT25405.

In his challenge to the sufficiency of the evidence, Bright argues that there is no evidence that the truck found in the possession of William Graves was the stolen truck and also that the court should have instructed the jury that Graves was an accomplice as a matter of law. He says that there was no corroboration of the accomplice and without Graves’ testimony the conviction cannot stand.

Bright did not testify or offer any evidence.

The truck involved was stolen from the Allen-Russell Ford lot in Knoxville on December 4 or 5, 1973. The business records of state witness Graves showed the cash purchase of a black truck on December 12. Graves testified that the appellant had called him to come look at a truck that Bright wanted to sell. Graves said that the purchased from the appellant a “pretty new” black truck for about $1400 plus a promise, never fulfilled, to do some electrical work for the appellant. Graves did not obtain title to the truck although his wife testified that she attempted to get a title but was told she needed more information.

About six months after the truck’s disappearance, an examination of the vehicle by officers revealed two public identification tags, one with the above serial number and another identified as that from a white Ford pickup truck. (Bright had sold a wrecked 1973 white Ford pickup truck to Graves shortly before Graves obtained the 1974 black Ford).

When Graves reported to Bright that officers had taken the truck from him, Bright instructed him to say that he had obtained it from one Carl Long and a salesman from another Ford agency. Graves said that instead of doing this he went to Knoxville police and reported what Bright had told him to say. Graves testified that Bright sold him the truck, and that he did not even know Long.

In a written statement to officers, Bright said that Long and another salesman tried to sell him the truck but that he refused to buy it; that Graves was there and purchased it from them for $1200. Bright agreed that he had sold Graves a wrecked 1973 white Ford pickup truck.

Harvey William Emmitt, a former employee of Graves, testified that, before Graves obtained the truck, he saw in Bright’s garage a late model black truck, appearing to be a Ford. Emmitt thought this was about Christmas, 1974, but he said he was not too good on dates.

The term “vehicle identification number” implies that the number serves to identify the vehicle. The number of the stolen vehicle matched that of the truck recovered from Graves. The other number was loosely riveted to it and belonged to a different vehicle. The jury was warranted in finding that the black 1974 Ford was the vehicle in question.

The evidence does not clearly establish whether or not Graves was an accomplice. His complicity was therefore properly for the jury. Ripley v. State, 189 Tenn. 681, 227 S.W.2d 26 (1950); Conner v. State, 531 S.W.2d 119 (Tenn.Crim.App.1975); Abbott v. State, 508 S.W.2d 801 (Tenn.Crim.App.1974).

At Bright’s request the court instructed the jury on accomplice testimony. Whether or not Graves was an accomplice, his testimony was corroborated by Emmitt, whose testimony established that the truck obtained by Graves was similar to the one he had seen at Bright’s home just before Graves acquired it. Only slight circumstances are needed to corroborate an accomplice’s testimony. Boaz v. State, 537 S.W.2d 716 (Tenn.Crim.App.1975).

These assignments are without merit. The evidence does not preponderate against the verdict.

Bright next complains of the court’s instructions about absent witnesses. After the main charge the court instructed the jury:

“(I)f from the proof you find that there was a material witness or witnesses, for either the State or the defendant, and such witness or witnesses is or are absent, and that such witness or witnesses was or were under the control of, or available to one or the other of the parties, to the exclusion of the other party, or that such witness possessed knowledge peculiar to one side, to the extent that such side should have called him, then there is a presumption that if such a witness had been called, his or their testimony would. have been unfavorable to the side that should have called or produced such a witness. Whether there was or was not such a witness in this case is for you to determine.”

Bright argues that this instruction could apply to only one of two persons, himself or Carl Long. The court had carefully instructed the jury that the appellant had the right not to testify and that it should draw no inference from the fact that he did not take the stand.

This instruction applied to both sides and there was no showing that Long or any other possible witness was available to one side and not to the other. The instruction was inapplicable to the evidence here but was harmless. TCA 27-117. See Conboy v. State, 2 Tenn.Crim.App. 535, 455 S.W.2d 605 (1970).

By his third assignment of error, Bright argues that he was prejudiced by the court’s refusal to direct a verdict in his favor on the receiving count. In view of both his acquittal on this charge and the corroboration of Graves’ testimony, we find no prejudice to him.

Finally, Bright argues he was improperly restricted in his cross-examination of FBI agent Robinson and Officer Cameron about the location of a confidential vehicle identification number on the truck. He says this prevented him from determining whether or not the confidential number matched the public number. The record reflects that Bright was not prevented from eliciting a comparison of the numbers, but that he was not allowed to ask for the precise location of the confidential number. In fact, he found that Robinson did not check the confidential number. Cameron did check it and testified that it was the same as the public number.

There was no abuse of discretion in the trial judge limiting interrogation on the exact location of the confidential number, Bright was not precluded from inquiring about the matter he claims prejudicial.

A11 assignments are overruled and the judgment ⅛ affirmed.

TATUM and BYERS, JJ., concur,


text:
    STATE of Tennessee, Appellant, v. Robert PATTY, Appellee.
    Court of Criminal Appeals of Tennessee.
    Dec. 29, 1977.
    Certiorari Denied by Supreme Court April 17, 1978.

      Brooks McLemore, Jr., Atty. Gen., Linda Ross Butts, Asst. Atty. Gen., Nashville, B. Rex McGee, Randall E. Nichols, Asst. Dist. Attys. Gen., Knoxville, for appellant.
    Ray E. Cate, Knoxville, for appellee.
   OPINION

WALKER, Judge.

The state appeals from the order of the trial judge overruling its motion for further psychiatric examination of the appellee, Robert Patty, and from the trial judge’s subsequent determination that Patty is incompetent to stand trial. The question presented by the sole assignment of error is whether or not the trial judge abused his discretion by refusing to order further examination by a private psychiatrist of the state’s choice after the staff of Central State Hospital had found the appellee incompetent to stand trial and in need of judicial hospitalization. We hold that he did not.

Following Patty’s arrest on May 11, 1976, for shooting five people, resulting in three deaths, his appointed counsel filed a motion for immediate psychiatric evaluation. This motion was granted, it being ordered in accordance with TCA 33-708(a) that Patty be examined by the authorities at the Helen Ross McNabb Center to determine his present mental condition and his mental capacity at the time of the alleged offenses. After Patty’s examination there, the state joined in the defense motion that the accused be hospitalized at Central State Hospital for further evaluation. This was granted on June 3, it appearing that two physicians at the Helen Ross McNabb Center had certified that Patty needed further evaluation and treatment. On July 2 Patty was indicted on three charges of first degree murder and two charges of felonious assault.

On September 13 the state filed a motion that the accused be transferred from Central State Hospital to the Knox County Jail for evaluation by independent psychiatric experts and for a hearing on his competency to stand trial. The appellee opposed the motion, asserting that there was no procedure or authority requiring him to submit to a mental examination by a psychiatrist hired by the district attorney general. He simultaneously petitioned for judicial hospitalization proceedings under TCA 33 — 708(b) and 33-604.

The court initially sustained the state’s motion for independent evaluation and set a hearing for December 16. It appears that the court selected the names of three psychiatrists, one name being stricken by the state and one by the accused. The remaining psychiatrist, who was to examine Patty, notified the state that he was unable to perform the examination. Then, on March 2, 1977, the state moved that the court order that the accused be examined by Dr. Kenneth B. Carpenter, a private psychiatrist who had examined him the day of the alleged offenses.

At the hearing of the motion on April 21, 1977, the court reversed its previous position and held that the state had no right to further independent evaluation. The court held that the district attorney general had no authority to designate a psychiatrist and that the court had fully complied with all the mandatory requirements of the statutes.

The court then heard the petition for judicial hospitalization. Dr. Prank Luton, assistant superintendent for clinical services at Central State Hospital, testified that in his opinion, drawn from various sources, Patty was incompetent to stand trial; he should be hospitalized in a locked ward and also compelled to take his prescribed medication. This opinion was based on the thorough and extensive examination of Patty by Dr. Luton and the staff at Central State Hospital over a period of about nine months.

The state introduced into evidence two letters, the first being one addressed to the district attorney general from Dr. Carpenter, whose opinion after a two-hour interview with Patty on May 11, 1976, was that he was capable of following his attorney’s advice and that he understood right from wrong then as well as at the time of the offenses. The second letter, dated May 26, 1976, was to the court from John Hutson, a clinical psychologist at Helen Ross McNabb Center, giving his opinion that Patty was probably competent to stand trial, but that Patty was seriously mentally disturbed and in need of examination and treatment at Central State Hospital.

In the record before the trial judge, there is also much correspondence between the accused and various governmental agencies reflecting his disturbed mental condition. Patty’s hospital and medical records are also included as exhibits. The evidence overwhelmingly supports the trial judge’s finding that Patty is incompetent to stand trial and needs judicial hospitalization.

The state does not dispute the sufficiency of the evidence to sustain the trial judge’s holding that Patty was incompetent to stand trial and should be hospitalized, but it insists that the trial judge abused his discretion in not allowing further evaluation by Dr. Carpenter, and that for this reason Patty’s competence to stand trial should be redetermined by the trial court with the aid of this further evaluation.

The precise question presented here has not been decided in this state. Our courts have considered the opposite situation where a defendant, often indigent, seeks private experts to testify in his behalf. Denying such a request in Graham v. State, 547 S.W.2d 531 (Tenn.1977), our Supreme Court pointed out that TCA 33-708 is discretionary and does not contemplate the employment of a private practitioner; there is no statutory sanction for the employment of a private psychiatrist at state expense. See also Crum v. State, 530 S.W.2d 103 (Tenn.Crim.App.1975); Collins v. State, 506 S.W.2d 179 (Tenn.Crim.App.1973).

The trial judge here correctly held that the state’s application for further evaluation by a private psychiatrist named by the state is unauthorized by statute and, under the facts presented in this record, he did not abuse his discretion by declining to appoint the private psychiatrist desired by the district attorney general.

Affirmed.

TATUM and BYERS, JJ„ concur.


author: RUSSELL, Judge.

text:
    Charles Hasque BISHOP, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Jan. 17, 1978.
    Certiorari Denied by Supreme Court April 10, 1978.

      Richard E. Hopson, Kingsport, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Patricia J. Cottrell, Asst. Atty. Gen., Carl K. Kirkpatrick, Jr., Dist. Atty. Gen., H. Greeley Wells, Asst. Dist. Atty. Gen., for ap-pellee.
   RUSSELL, Judge.

OPINION

Charles Hasque Bishop has appealed his conviction for first degree burglary and habitual criminality, carrying a mandatory sentence of life imprisonment. For reasons hereinafter stated, the judgment is in all particulars affirmed.

Two assignments of error are predicated upon the appellant’s assertion that the evidence is insufficient to support the jury’s verdict. This case involves the burglary of a trailer home. Larry Mike Bailey, the owner of the trailer park where the trailer home was situated, testified that on the night of the burglary he saw the appellant standing next to the trailer with a bundle of clothes in his arms. When Bailey stopped his car with the headlights shining directly on Bishop, Bishop fled. Mr. Bailey’s wife, who was in Mr. Bailey’s car at the time, also testified. She said she wrote down the license number of the car that was parked next to the burglarized trailer. It was later determined that the car was registered in the appellant’s name. In view of this evidence, we find that the jury’s verdict was supported by sufficient evidence.

Error is assigned on the basis of remarks in the District Attorney General’s closing argument concerning the appellant’s alibi defense. He commented as follows:

“Now the defense’s alibi is all family and you saw that defense fall apart when the mother testified. She tore the times all to pieces on it. It’s a put together piece of work. It’s easily seen through.”

As has been indicated, the record contains ample support for the D.A.’s arguments that the alibi testimonies were perjurious. We find no impropriety in his argument. State v. Beasley, 536 S.W.2d 328 (Tenn.1976); Christian v. State, 555 S.W.2d 863 (Tenn.1977). This assignment of error is without merit.

By his next assignment of error, the appellant alleges that after the jury found him guilty of first degree burglary he should have been allowed to qualify the jurors before they heard evidence on the habitual criminal charge. The record reflects no request for such a proceeding during the trial. This issue is not raised in the appellant’s written motion for a new trial. The record does not contain a transcript of the hearing on the motion for a new trial. Even though this assignment of error is not properly before this court, we note that the jurors had already been qualified before hearing the burglary evidence and find no merit to the appellant’s contention that they should be qualified again before hearing the habitual criminal evidence. The same jury is required to hear both facets of the bifurcated proceedings, and was found initially to be qualified. This assignment is overruled.

The appellant’s remaining assignments of error relate to the prior convictions that the State introduced into evidence to demonstrate that Bishop is an habitual criminal as defined in T.C.A. § 40-2801. The first of these challenges the admission into evidence of the appellant’s conviction for grand larceny in Scott County, Virginia, on July 19, 1962. Bishop’s argument is that this conviction is too remote to be considered in determining whether he falls within the definition of T.C.A. § 40-2801. There are no provisions in T.C.A. § 40-2801 et seq. for excluding convictions because of their remoteness in time. This assignment has no merit.

The appellant next challenges the introduction into evidence of a February 5, 1969, conviction for receiving stolen United States postal money orders. This conviction was in the U.S. District Court, Eastern District of Tennessee, Northeastern Division. Receiving stolen property, as an offense listed in T.C.A. § 40-2712, is incorporated by reference into T.C.A. § 40-2801. Evidence of this conviction was properly before the jury.

Bishop alleges that the jury should not have been allowed to consider his conviction for bringing stolen property into the State, in violation of T.C.A. § 39-4220. This conviction occurred in the Criminal Court of Sullivan County on April 26, 1973, and evidence of it was properly admitted by the trial court as evidence of a conviction for a non-specified felony under T.C.A. § 40-2801.

The final conviction that is challenged is one for felonious assault with intent to commit murder in the second degree. Bishop pleaded guilty to that offense in the Criminal Court of Sullivan County on October 2, 1973. This conviction is also one for a non-specified felony under T.C.A. § 40-2801 and was properly before the jury.

The appellant does not challenge evidence of his conviction for burglary on February 22, 1971, in the Criminal Court of Sullivan County.

Including the conviction for first degree burglary in the present case, this record contains evidence of six felony convictions. Four of those felonies are specified felonies under T.C.A. § 40-2801 and two are non-specified felonies under the statute. They are doubly sufficient to support the adjudication of habitual criminality.

The judgment of the trial court is affirmed.

DAUGHTREY and TATUM, JJ., concur.


author: BARROW, Justice.

text:
    COASTAL INDUSTRIAL WATER AUTHORITY, Plaintiff, v. TRINITY PORTLAND CEMENT DIVISION, GENERAL PORTLAND CEMENT COMPANY, Defendant.
    No. B-6839.
    Supreme Court of Texas.
    March 15, 1978.
    Rehearing Denied May 3, 1978.
    Fred Spence, Houston, for plaintiff.
    William H. White, Houston, for defendant.
   BARROW, Justice.

The question on this appeal is whether a statutory change in the rate of interest on judgments applies to a judgment rendered before the effective date of the change so as to make the judgment bear interest at the new rate from the date of the change.

Tex.Rev.Civ.Stat.Ann. Art. 5069-1.05 provides the rate of interest that judgments of the courts of this State shall bear. This statute was amended by the legislature in 1975 to increase the rate of interest from six percent to nine percent effective September 1, 1975. The amended statute provides:

All judgments of the courts of this State shall bear interest at the rate of nine percent per annum from and after the date of the judgment, except where the contract upon which the judgment is founded bears a specified interest greater than nine percent per annum, in which case the judgment shall bear the same rate of interest specified in such contract, but shall not exceed ten percent per an-num, from and after the date of such judgment. (Emphasis added)

On June 17, 1974, Trinity Portland Cement Division (Trinity) recovered judgment against Coastal Industrial Water Authority (CIWA) for the sum of $2,537,473.74 with interest thereon at the rate of six percent per annum from date of judgment. The mandate was issued on January 26, 1976, after the appeal had been exhausted. On February 12,1976, CIWA deposited into the registry of the trial court the sum of $2,789,830.72, which was the principal sum recovered by Trinity with interest thereon at the rate of six percent from date of judgment until that date. This amount was withdrawn by Trinity on February 17,1976. On June 4,1976, Trinity filed this suit seeking to recover from CIWA the sum of $34,-412.32 being an amount equal to the three percent difference between the six percent interest rate specified in the judgment and nine percent computed from September 1, 1975, until date of payment. The trial court granted CIWA’s motion for summary judgment and rendered a take-nothing judgment. The court of civil appeals reversed the judgment of the trial court and rendered judgment on Trinity’s motion for summary judgment that it recover the sum of $34,412.32. 551 S.W.2d 76. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

Under two early decisions, one by a court of civil appeals and the other by the United States Supreme Court involving an interpretation of Texas law, the parties’ rights and liabilities were deemed fixed at the time judgment was entered and subsequent changes in the statutory rate were held to have no effect on the interest rate as specified in the judgment. Missouri Pacific Railroad Co. v. Patton, 35 S.W. 477 (Tex.Civ.App.-1896, writ ref’d); Texas & Pacific R.R. Co. v. Anderson, 149 U.S. 237, 13 S.Ct. 843, 37 L.Ed. 717 (1893). In Herron v. Lackey, 556 S.W.2d 246 (Tex.1977) this Court, without discussion of the point, gave prospective application only to the amended statute by reforming the judgment of the court of civil appeals, which provided for nine percent interest, so as to permit recovery of interest from date of the trial court’s judgment at six percent, “being the effective rate before the recent amendment.”

The Texas cases to the contrary are distinguishable. In Watkins v. Junker, 90 Tex. 584, 40 S.W. 11 (1897), this Court held that where the statutory rate of prejudgment interest was changed during the pendency of suit, interest was properly computed on the amount of recovery at the rate in effect to the date of the change in the law and at the new rate thereafter. However, there the change in the law was made before the judgment was rendered by the trial court so that the case did not involve the question now before us. In Southwestern Bell Telephone Co. v. Hertz Equipment Rental Co., 533 S.W.2d 853 (Tex. Civ.App.-Fort Worth 1976, writ ref’d n. r. e.), and in Donahue v. Rattikin Title Co., 534 S.W.2d 156 (Tex.Civ.App.-Fort Worth 1976, no writ hist.), the trial courts denied all recovery in judgments rendered before September 1, 1975. The court of civil appeals reversed and rendered judgments for plaintiffs after September 1, 1975. The judgment in each of these cases as rendered by the court of civil appeals authorized interest at the rate of six percent before September 1, 1975, and at nine percent thereafter. There was no discussion in either case of the proper rate of interest, but the judgments as rendered by the court of civil appeals were correct in providing for interest at the rate of nine percent in that both judgments were rendered after the effective date of the change in the statutory rate.

There is a division of authority in other states as to the effect of a change in the statutory interest rate upon outstanding judgments. 4 A.L.R.2d 932 (1949); 45 Am. Jur.2d, Interest and Usury § 11 (1969). Some hold, as did Patton and Anderson, that the rights and liabilities of the parties were fixed by the judgment under the law as it then existed; when the judgment was rendered it became a certain and fixed demand that would not fluctuate with changes that might thereafter be made in the law, unless it clearly appeared that such laws were intended to have such a retroactive effect. See Sunray DX Oil Co. v. Great Lakes Carbon Corp., 476 P.2d 329 (Okl.1970); Bartlett v. Heersche, 209 Kan. 369, 496 P.2d 1314 (1972); State v. Ronaldson, 316 So.2d 898 (1st Cir.Ct. La.,1975); Meyering v. Russell, 53 Mich.App. 695, 220 N.W.2d 121 (1974); McKee v. Harris-Seybold Co., 118 N.J.Super. 480, App. 288 A.2d 585 (Div.1972); Brauer v. City of Portland, 35 Or. 471, 58 P. 861 (1899).

Others hold that interest on judgments is not a matter of contract, but is instead an obligation imposed by statute, and that the right to receive interest depends entirely upon what the legislature chooses to prescribe. Since no vested rights are involved, the new rate applies after the effective date of the amended statute. Noe v. City of Chicago, 56 Ill.2d 346, 307 N.E.2d 376 (1974); Swanson v. Flynn, 75 N.D. 597, 31 N.W.2d 320 (1948); Idaho Gold Dredging Corp. v. Boise Payette Lumber Co., 54 Idaho 765, 37 P.2d 407 (1934); Stanford v. Coram, 28 Mont. 288, 72 P. 655 (1903).

It is the law of this State, and the law generally, that, in the absence of any special indication or reason, a statute will not be applied retroactively, even when there is no constitutional impediment against it. Thus statutes will not be applied retroactively unless it appears by fair implication from the language used that it was the intention of the legislature to make it applicable to both past and future transactions. State v. Humble Oil & Refining Co., 141 Tex. 40, 169 S.W.2d 707 (1943); Hockley County Seed & Delinting, Inc. v. Southwestern Investment Co., 476 S.W.2d 38 (Tex.Civ.App.-Amarillo 1971, n. r. e.).

There is nothing in the language used in the amended statute which either plainly states or reasonably implies, that the legislature intended that the new rate of interest shall operate retroactively although it is apparent that the legislature could have easily so provided had this been their intention. To the contrary, the provision in the amended statute that judgments shall bear interest at the rate of nine percent “from and after the date of such judgment” plainly suggests that the rate shall be applied prospectively only. In fact, Trinity does not actually seek a literal retroactive construction. Rather it seeks to impose the new rate only from the effective date of the amendment. Nevertheless, this construction would result in a retroactive application of the new rate if applied to judgments which had already become final.

Here the amended rate was urged in a new suit filed by Trinity after the judgment had apparently been discharged by Trinity’s unqualified acceptance of payment of principal and interest in accordance with the express terms of the judgment. It is urged that this acceptance is not binding upon Trinity because it only accepted an uncontroverted sum which did not constitute the “entire judgment.” See Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (1950). Such a construction, however, would violate the principle of finality of judgments and cast doubt and- uncertainty upon many judgments and even judgment liens which have apparently been discharged.

Furthermore, the fact that the amended statute carries forward the same language considered by the Patton court indicates a legislative adoption of the construction theretofore given said statute. The rule is well settled that when a statute is re-enacted without material change, it is presumed that the legislature knew and adopted the interpretation placed on the original act and intended the new enactment to receive the same construction. Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515 (1930); In re Estates of Carrigan, 517 S.W.2d 817 (Tex.Civ.App.-Tyler 1974, no writ.)

We conclude that the 1975 amendment increasing the rate of interest on judgments should be applied only to judgments rendered after the effective date of the statute. The judgment of the court of civil appeals is therefore reversed and the judgment of the trial court is affirmed.


text:
    Darrell F. MANLEY et al., Petitioners, v. SAMMONS ENTERPRISES, INC., Respondents.
    No. B-6987.
    Supreme Court of Texas.
    March 15, 1978.
    Rehearing Denied May 3, 1978.
    Carrington, Coleman, Sloman, Johnson & Blumenthal, Robert L. Blumenthal, James E. Coleman, Jr. and William B. Dawson, Dallas, for petitioners.
    Strasburger, Price, Kelton, Martin & Unis, Royal H. Brin, Mark Martin and Mike Joplin, Dallas, for respondents.
   BARROW, Justice.

This is a companion case to our Cause No. B-6839, Coastal Industrial Water Authority v. Trinity Portland Cement Division, General Portland Cement Co., Tex., 563 S.W.2d 916. The cases were argued together in this Court because both turn on the pivotal question of whether a statutory change in the rate of interest on judgments applies to a judgment rendered before the effective date of the change so as to make the judgment bear interest at the new rate from the date of the change.

Manley and Conway Phillips recovered a judgment in the 162nd Judicial District Court of Dallas County against Sammons Enterprises, Inc. on April 28, 1975, for certain principal sums plus interest thereon from the date of the judgment at the rate of six percent per annum. This judgment was affirmed by the court of civil appeals and writ of error refused, no reversible error. Sammons Enterprises, Inc. v. Manley et al., 540 S.W.2d 751 (Tex.Civ.App.—Dallas 1976). The mandate was issued on April 28,1977, with no change in the rate of interest although Manley and Phillips had sought by motion filed in the court of civil appeals to increase the rate of interest on the judgment from six percent to nine percent after September 1, 1975. The District Clerk of Dallas County, pursuant to the request of Manley and Phillips, issued and placed in the hands of the Dallas County Sheriff a writ of execution which did provide for interest on the judgment at the rate of six percent per annum from April 28, 1976, until August 31, 1975, and thereafter at the rate of nine percent per annum. Sammons Enterprises filed this suit to enjoin levy of such writ of execution because execution permitted a different rate of interest than provided by the judgment. After a hearing, the trial court denied Sam-mons Enterprises’ application for temporary injunction.

The court of civil appeals, however, held that the judgment continues to bear interest at the old rate, and restrained the sheriff and district clerk, as well as Manley and Phillips, from levying execution on the judgment for an amount in excess of six percent per annum. 554 S.W.2d 205.

In the companion case of Coastal Industrial Water Authority v. Trinity Portland Cement Division, we held that the 1975 amendment increasing the rate of interest on judgments should be applied only to judgments entered after the effective date of the statute, September 1, 1975. Therefore, the court of civil appeals did not err in enjoining the sheriff and the district clerk, as well as the judgment holders, from levying execution on the judgment for an amount in excess of six percent per annum.

The judgment of the court of civil appeals is affirmed.

      . Art. 5069-1.05, Tex.Rev.Civ.Stat. was amended effective September 1, 1975, to increase the rate of interest on all judgments from six percent to nine percent per annum “from and after the date of such judgment.”


author: TOM G. DAVIS, Judge. ONION, Presiding Judge.

text:
    Larry Dwight IRVIN, Appellant, v. The STATE of Texas, Appellee.
    No. 53239.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 25, 1978.
    States Motion for Rehearing Denied April 12, 1978.
    States Second Motion for Rehearing Denied April 26, 1978.

      George R. Schilter, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and David Crump, Asst. Dist. At-tys., Houston, for the State.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for burglary with intent to commit theft. Punishment was assessed by the jury at ten years.

Appellant contends that the trial court “erred in admitting into evidence two blank pistols, keys, and ink pens over Appellant’s objection.” Appellant’s contention is grounded on the proposition that no probable cause existed for his arrest and thus any search incident to the arrest was unlawful.

James Brooks, parts manager for Knapp Chevrolet in Houston, testified that on March 17, 1974, at approximately 10:30 p. m., he was returning to his office when he noticed that a door glass to the used car office was broken and a man was inside. The man fled when Brooks drove up. Brooks called the police and waited for them to arrive. Brooks identified appellant as the man he saw in the used car office. He stated that “the office was tore up, yes, vandalism.”

Jacob Beaujon, assistant innkeeper for the Holiday Inn near Knapp Chevrolet, testified that he saw appellant the same night “hanging around in the lobby, in hallways, and also in our club.” The bartender called Beaujon’s attention to the fact that appellant was acting strangely, “standing next to different people he didn’t know.” Beaujon noticed that a pistol was sticking out of appellant’s pocket. Appellant wanted to go into the club and Beaujon removed the pistol first, stating to appellant, “Before we do anything else, we’ll just remove this and take it away, because nobody is going in my club with a gun sticking out of his pocket.” Beaujon did not call the police at that time, but called his security personnel, who were “tied up.” Beaujon had the police called about an hour-and-a-half later. Beaujon testified in response to defense counsel’s questions:

“Q. Mr. Beaujon, was Mr. Irvin creating a disturbance in the Holiday Inn, a breach of the peace, so to speak?
“A. Strong tendency to, sitting uninvit-edly at peoples’ tables that had not invited him to sit with them. We asked for identification, which he did not have. He only had some kind of club card from another club or something — to make sure that he was there legally, not under eighteen — and just hanging around, standing — his behavior — he did not really disturb the peace, but yet there were certain tendencies for us to doubt.
“Q. He did not commit a breach of the peace, in other words?
“A. Not yet.”
On redirect, Beaujon testified as follows:
“Q. You’ve been asked whether you saw a disturbance. Do you know of your own personal knowledge what happened when you weren’t looking?
“A. No.
“Q. All right. When the police were called, do you know whether or not there was a call about a disturbance?
“A. No, we called for assistance.”

Officer J. W. Connally testified that he investigated the burglary at Knapp Chevrolet and about two hours later got a call from the Holiday Inn. When he arrived, “the security man at that location had the defendant under arrest.” The security guard told Connally that appellant -“had been causing a disturbance inside the lounge,” that appellant “had been waving one of the pistols around inside the lounge.” Appellant was searched and Connally found one blank “starter” pistol, three sets of keys, and four Knapp Chevrolet ball-point pens on appellant. Until Connally discovered the items on appellant, he did not link appellant to the burglary. Connally and Beaujon testified that to their knowledge the security guard was not a peace officer.

John McConnell, used car manager for Knapp Chevrolet, identified the property as that stolen on March 17, 1974, from the used car office. McConnell stated that the premises were not open to the public after 5:00 p. m. on March 17, and that he did not give appellant or anyone else consent to enter his office. McConnell stated that he had hired appellant on March 12, 1974, and that appellant did not have access to the keys to the used car office.

Appellant did not testify and no evidence was presented in his behalf.

The State urges that the appellant failed to preserve this ground of error in the trial court and had presented it improperly to this Court. At the time that the items were offered into evidence, the appellant’s attorney made the following objection:

“MR. SCHILTER: Your Honor, we would object to the admission of any of those exhibits into evidence on the basis that there’s no proof that they were taken from the defendant while in custodial arrest. If that arrest was improper, we feel that the arrest was improper and object to it at this time.”

While the objection leaves something to be desired from the standpoint of clarity, we find it sufficient to apprise the trial court that the appellant was objecting because the evidence was the fruit of an illegal arrest.

The State further argues that the appellant’s brief failed to “state what specific evidence was admitted over specific objection.” We find the contention in appellant’s brief sufficient to satisfy the requirement of Art. 40.09, Sec. 9, V.A.C.C.P., which provides, in pertinent part:

. . and if the court, upon consideration of such ground of error in the light of the arguments made in the brief, can identify and understand such point of objection, the same shall be reviewed notwithstanding any generality, vagueness or any other technical defect that may exist in the language employed to set forth such ground of error.”

In order for evidence seized incident to arrest to be admissible, the State must show the existence of probable cause at the time the arrest or search was made. See Reed v. State, Tex.Cr.App., 522 S.W.2d 916; Washington v. State, Tex.Cr.App., 518 S.W.2d 240; Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969).

In determining whether the warrantless arrest was legal, we look to Arts. 14.01, 14.02, 14.03, and 14.04, V.A.C.C.P.

The record reflects that appellant did not commit an offense in the presence or within the view of Connally or a magistrate as required for an arrest under Arts. 14.01(b) and 14.02, supra. Further, according to Connally, the arrest was not based on appellant being found in a suspicious place under circumstances which reasonably showed he had committed a felony or breach of the peace. Cf. Art. 14.03, supra. Thus, appellant’s arrest can only be upheld if it meets the requirements of Art. 14.-01(a), supra, or Art. 14.04, supra.

Under Art. 14.04, supra, appellant’s arrest would have been proper had Connally been presented facts by a credible person that a felony had been committed by appellant and that appellant was about to escape. Connally’s testimony reveals that the only information he received regarding appellant was provided by the security officer. Assuming, arguendo, that the security officer was a credible person within the statutory provision, the record does not reveal that a felony was committed. V.T.C.A., Penal Code, Sec. 46.02, provides that it is a third-degree felony for a person to carry a handgun on his person on premises “licensed or issued a permit by this state for the sale or service of alcoholic beverages.” Nothing is presented which shows that the lounge was licensed or issued a permit to sell alcoholic beverages.

Article 14.01(a), supra, provides for an arrest by any person if a felony or an offense against the public peace is committed in his presence or within his view. As heretofore noted, the evidence was insufficient to show a felony was committed. However, Art. 14.01(a), supra, allows a citizen to make an arrest for a misdemeanor offense when it is a breach of the peace. See Heck v. State, Tex.Cr.App., 507 S.W.2d 737.

The security officer did not testify at trial. The only evidence before us concerning the basis for the security officer’s arrest of appellant was hearsay testimony of Con-nally.

Aside from the obvious problem that the security guard did not testify and the only testimony regarding the basis for the arrest is the hearsay testimony of Connally, the record does not reflect by either hearsay or direct evidence that the breach of peace occurred in the presence or view of the person making the arrest as required by Art. 14.01(a), supra. Connally was not informed that appellant had a pistol on his person.

The arrest being illegal, it follows that it was error to admit the fruits incident to such arrest into evidence. Art. 38.23, V.A. C.C.P.

In light of the fact that appellant did not testify or offer any evidence in his behalf and Brooks identified appellant as the man he saw committing the burglary, we have reviewed the record to determine whether the admission into evidence of items seized in the search of appellant could constitute harmless error. In Clay v. State, Tex.Cr.App., 518 S.W.2d 550, we held that where the rape victim’s identification of the defendant was unequivocal, detailed, and uncontested, and testimony of other witnesses corroborated victim’s testimony, the error in admitting fruits of an unlawful search into evidence was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824,17 L.Ed.2d 705 (1967); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Holcomb v. State, Tex.Cr.App., 484 S.W.2d 929. After Brooks had testified on cross examination that he had never seen appellant before and that his identification of appellant was based on the finding of items in his possession taken in the burglary, the record reflects that the following transpired on redirect examination by the State:

“Q. All right, sir. That’s what I was trying to get at. You saw him well enough to give a description?
“A. Right.
“Q. But not enough to identify him in court?
“A. No, sir.
“Q. All right. Except by a general description?
“A. Right.”

In light of such weak identification testimony, we cannot characterize the error in the admission of inculpatory evidence taken from appellant in an illegal search to be harmless beyond a reasonable doubt.

The judgment is reversed and the cause remanded.

OPINION ON STATE’S MOTION FOR REHEARING

ONION, Presiding Judge.

On original submission appellant’s conviction for burglary was reversed because of the improper admission of two blank pistols, keys, and ink pens over objection.

On rehearing the State contends the court overlooked or ignored uncontroverted evidence which would have been sufficient to sustain the conviction. The State argues that one of the blank pistols stolen in the robbery was taken from appellant with his consent by assistant innkeeper Beaujon before Beaujon would let the appellant enter the club room of the Holiday Inn and that therefore this pistol was not the result of the illegal arrest condemned by this Court’s opinion. The State argues that the pistol was admissible into evidence and would support appellant’s conviction.

While that particular blank pistol might have been admissible under the circumstances, there is no evidence that this particular pistol was one of the two pistols admitted into evidence. As a matter of fact, the arresting officer testified that when he arrived at the Holiday Inn appellant had been “arrested” by the motel security officer and that he took one of the blank pistols from appellant’s pocket and the other pistol was given to him by the security officer who stated that he had taken it from appellant’s hand. There is no evidence that the security officer obtained the “freely given” pistol from Beaujon. Here again we observe that the security officer was not called as a witness and what evidence was developed does not support the State’s argument.

Next, the State contends that it was the appellant who first proved that he was in possession of stolen property when arrested and that (1) this proof was sufficient to support a finding of guilty or (2) this proof along with the circumstantial evidence charge to the jury would render harmless any error in proof by the State as to the details of such possession.

The “proof” by the defense relied on by the State came during the cross and recross examination of James Brooks, the parts manager of the burglarized automobile agency. He testified that he came to the office during the evening when it was closed and saw a burglar in the office. He did not get a good look at the burglar, could only give a general description of him, and was able to identify appellant at the examining trial only because of “what he had in his possession.”

“Q. (By defense counsel): The last question I asked you on my cross examination was that the reason that you’ve identified Larry Irvin is because he was found later on with something that was taken in the burglary. Is that correct?
“A. He had it in his possession when the police arrested him. Yes, sir.
“Q. And that’s what you base your eye witness identification on. Is that correct?
I believe that was your answer the last time I asked the question.
“A. That’s all I could go on.” (S.F. 87).

The record is clear that Brooks was not present when appellant was arrested and searched and that his knowledge as to what appellant had in his possession when arrested was gained by his attending the examining trial and from what he was told by the police.

His testimony was therefore hearsay, without any probative value, and did not prove that appellant was in possession of stolen property when arrested. Thus the State’s argument is without merit.

The State’s motion for rehearing is overruled.

      . Article 14.01, V.A.C.C.P., provides as follows:
      “(a) A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.
      “(b) A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.”

      . Article 14.02, V.A.C.C.P., provides as follows:
      “A peace officer may arrest, without warrant, when a felony or breach of the peace has been committed in the presence or within the view of a magistrate, and such magistrate verbally orders the arrest of the offender.”

      . Article 14.03, V.A.C.C.P., provides as follows:
      “Any peace officer may arrest, without warrant, persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace, or threaten, or are about to commit some offense against the laws.”

      . Article 14.04, V.A.C.C.P., provides as follows:
      “Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.”

      . We note that a private security guard is not a peace officer within the definition of Art. 2.12, V.A.C.C.P.

      . See Kaser v. State, Tex.Cr.App., 505 S.W.2d 806; Rushing v. State, Tex.Cr.App., 500 S.W.2d 667.