author: WILHOIT, Judge. WHITE, Judge.

text:
    H. B. WALTERS, James E. Walters, and Barbara Walters, Appellants, v. KENTUCKY BOARD OF TAX APPEALS, the Woodford County Board of Supervisors, and Jim Owen Gaines, the Property Valuation Administrator of Woodford County, Appellees.
    Court of Appeals of Kentucky.
    Sept. 30, 1977.
    As Modified Oct. 18,1977.
    Rehearing Denied March 10, 1978.
    Discretionary Review Denied Sept. 12, 1978.
    Amos H. Eblen, Lexington, for appellants.
    Mark E. Gormley, Woodford County Atty., Versailles, for appellees.
    Before WHITE, WILHOIT and WIN-TERSHEIMER, JJ.
   WILHOIT, Judge.

This appeal is from an order of the Wood-ford Circuit Court affirming the assessment of the value of the appellants’ farm made by the Kentucky Board of Tax Appeals. The Board of Tax Appeals had set the value of the farm at $540,000.00 which was the same valuation set by the property valúation administrator and by the county board of supervisors.

Appellants owned a farm in Fayette County which the owners of an adjoining horse farm wanted to purchase. Appellants agreed to trade their property for an equivalent farm. The owner of the horse farm located property in Woodford County which was acceptable to the appellants. He purchased this property for $540,000.00 and conveyed it to appellants in exchange for their farm. The Woodford County farm consisted of 360 acres and was listed by the appellants with the property valuation administrator for 1974 tax purposes as having a fair market value of $360,000.00. The property valuation administrator raised this assessment to $540,000.00. Appellant James E. Walters told the administrator that the agricultural value of the property was less than $1,000.00 per acre though he would accept such a valuation. It is unclear from the record whether a specific request that the farm be assessed as agricultural or horticultural land was made. The administrator, however, stated that even had such a request been made he would have denied it because the Department of Revenue had not yet sent him regulations implementing KRS 132.450, the applicable statute.

The appellants appealed to the Woodford County Board of Supervisors which sustained the administrator's assessment. The Kentucky Board of Tax Appeals also sustained the assessment as did the Woodford Circuit Court.

The evidence introduced before the Board of Tax Appeals indicated that 12 farms somewhat comparable to that of the appellants were assessed for 1974 at an average of about 61 percent of what the administrator believed to be their fair market value. The administrator stated that he planned to raise these assessments for 1975. It was also shown that in 1975, after the appellants filed an application with the administrator as required by KRS 132.450, their farm was assessed by him at $362,000.00 for agricultural purposes.

Appellants present two grounds for reversal. The first of these is that the agricultural or horticultural value of their farm is less than its fair market value and the administrator should have been required to assess it for 1974 in accordance with the lesser value under Section 172A of the Kentucky Constitution and KRS 132.-450. Even accepting that the agricultural or horticultural value of their farm is less than its fair market value, the record does not indicate that appellants complied with the requirements of KRS 132.450(2)(a) by filing the necessary application for agricultural or horticultural valuation with the administrator on or before April 1, 1974. Even if we accept that a verbal request for such valuation was made and that a verbal request would be sufficient, the record is still silent as to whether it was made by the statutory deadline. We believe the Board of Tax Appeals correctly concluded that there was no showing of the filing of a timely application for agricultural valuation.

The second ground for reversal put forth by appellants is that the administrator should have been required to reduce the assessment of their farm to 61 percent of its fair market value since the evidence disclosed that 12 somewhat comparable farms in Woodford County and in the vicinity of their farm were shown to be assessed at only about 61 percent of their fair market value. In support of this, appellants cite Section 171 of the Kentucky Constitution and the following cases bearing on that section: Eminence Distillery Co. v. Henry County Board of Supervisors, 178 Ky. 811, 200 S.W. 347 (1918); Hillman Land & Iron Co. v. Commonwealth, 194 Ky. 599, 239 S.W. 1041 (1922), and Rogers v. Pike County Board of Supervisors, 288 Ky. 742, 157 S.W.2d 346 (1941).

We read these cases as standing for the general proposition that under Section 171 of our Constitution where all of the other similar property in a county or a particular district of a county has been uniformly or systematically assessed at only a proportion of its fair cash value, a taxpayer whose similar property in the county or district is assessed at full fair cash value may require that his assessment be reduced to the general level of assessment to ensure uniformity and equality of taxation.

The rationale upon which these cases and those following them rested was that in such cases the reduction of the complaining taxpayer’s assessment was the “only practical remedy” because the courts were without necessary power to increase the assessments of the other taxpayers. Eminence Distillery Company v. Henry County Board of Supervisors, supra, 200 S.W. at 351; Russman v. Luckett, Ky., 391 S.W.2d 694, 698 (1965). This lack of “necessary power” of the courts was explained in Luckett v. Tennessee Gas Transmission Co., Ky., 331 S.W.2d 879/882 (1960), as follows:

All the property owners were not before the court, hence it was necessary, in order to achieve equality for the taxpayer whose property had been appraised at full value, to reduce the assessment to the general level.

Unquestionably, as long as the courts held that all of the taxpayers whose property was under-assessed must be joined in an action in order to require the assessment of their property at fair cash value, the only practical remedy for attaining equality of assessment by an over-assessed taxpayer was to require that his assessment be reduced. The decisions in Russman v. Luck-ett, supra, and its companion cases, McDevitt v. Luckett, Ky., 391 S.W.2d 700 (1965), and Miller v. Layne, Ky., 391 S.W.2d 701 (1965), hot only recognize that our constitution and statutes require the assessment of all property at its full cash value, but they also recognize a practical remedy whereby an aggrieved taxpayer may require equality of assessment without the necessity of joining every affected taxpayer in an action.

The situation thought to exist when the Eminence Distillery Co. case and its progeny were decided thus no longer obtains and the rule adhered to in those eases would not appear to be any longer viable. We do not need to make such a determination, however, since we do not believe that the proof adduced in this case indicates that all of the property similar to that of appellants’ property located in Woodford County or in. the particular district of Woodford County in which appellants’ farm is located has been uniformly or systematically assessed at any certain proportion of its fair cash value. Rather, the proof indicates only that 12 similar farms in the general area of appellants’ farm were assessed on an average of about 61 percent of their fair cash value for 1974, the assessments ranging from approximately 39 percent to 71 percent of fair cash value. There are certainly more than 12 “similar” farms in that county and no showing is made of a uniform or systematic proportionate assessment of the farm land in the particular district in which appellants’ farm is located.

The judgment of the trial court is, therefore, affirmed.

All concur.

ORDER DENYING PETITION • FOR REHEARING

WHITE, Judge.

This Court having considered the Petition for Rehearing and being sufficiently advised, it is ORDERED that the same is hereby DENIED. However, the undersigned does hereby respectfully dissent for the following reasons.

After carefully reviewing the factual situation and the statutory and constitutional duties imposed upon those concerned, as well as the case law applicable herein, it appears to me that, as between two parties who are under legal responsibility to follow statutory requirements, the one who is an elected official as against a private citizen has the greater responsibility to see that the statutory requirement is followed. It simply follows that one who deals with the overall situation of assessing all property in a county, as the Property Valuation Administrator, is and ought to be more aware of what needs to be done and is under a duty to assist any citizen and taxpayer in the accomplishment of that end. The majority opinion seems to excuse the PVA from his official responsibility, while at the same time faulting the taxpayer for failing to strictly comply with a corresponding statutory duty. I do not believe the law is that weighted in favor of official actions over the acts required of the taxpayer-citizen; and, if it is, I hereby disagree with its being so.

I further respectfully dissent because I cannot conclude the holding of Russman v. Luckett, Ky., 391 S.W.2d 694 (1965) as changing the applicability of Eminence Distillery Co. v. Henry County Board of Supervisors, 178 Ky. 811, 200 S.W. 347 (1918) insofar as Section 171 of the Kentucky Constitution on uniformity of assessment is concerned.

      . See Louisville Ry. Co. v. Commonwealth, 105 Ky. 710, 49 S.W. 486 (1899), for the prior contrary rule.

      . These cases were decided before the adoption of Section 172A of the Constitution providing for agricultural or horticultural assessments.


source: Caselaw Access Project

author: PARK, Judge.

license: Public Domain

text:
    Margarete W. BRUNSON, Appellant, v. William A. BRUNSON, Appellee. William A. BRUNSON, Cross-Appellant, v. Margarete W. BRUNSON, Cross-Appellee.
    Court of Appeals of Kentucky.
    April 28, 1978.
    As Modified On Denial of Rehearing Aug. 4, 1978.

      John J. Chewning, Hopkinsville, for appellant.
    W. Douglas Myers, Keith & Myers, Hop-kinsville, for appellee.
    Before COOPER, GANT and PARK, JJ.
   PARK, Judge.

This is an appeal and cross-appeal from a decree of the Christian Circuit Court dissolving the marriage betwéen Margarete and William Brunson. Mrs. Brunson appeals asserting that the trial court erred in assigning the nonmarital property of the parties. Mrs. Brunson also contends that the trial court committed error in its division of the marital property. On his cross-appeal, Mr. Brunson attacks the trial court’s allowance of periodic maintenance to Mrs. Brunson.

The parties were married for 11½ years. No children were born to the marriage, but both parties had children by prior marriages. Mrs. Brunson is forty-nine years old, and she is currently employed as a real estate salesman.. Mr. Brunson is fifty-two years old and is a farmer.

The record in this case involves six volumes containing 817 pages. The ease was tried by deposition, with both parties submitting extensive trial briefs. The master commissioner filed a one page report which contained no findings of fact. The report did contain five recommendations: (1) that the marriage be dissolved; (2) that Mr. Brunson pay Mrs. Brunson the sum of $700.00 per month as maintenance; (3) that Mrs. Brunson be awarded all personalty then in her possession; (4) that Mr. Brun-son pay the costs of the action including the attorneys’ fees for both parties; and (5) that the court require one of the attorneys to draft a judgment in accordance with the commissioner’s recommendations.

The trial judge followed the commissioner’s recommendations and directed Mr. Brunson’s attorneys to prepare the judgment. The findings of fact, conclusions of law and a final decree drafted by Mr. Brun-son’s attorneys were adopted by the trial court with only one minor interlineation. The findings of fact adopted by the court contained eighteen numbered paragraphs. The conclusions of law contained nine numbered paragraphs.

Civil Rule 52.01 provides in part:

In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment . . (Emphasis added)

The practice by some trial courts of delegating the task of preparing findings of fact to the “winning attorney” has been universally disapproved. In Kentucky Milk Marketing & Anti-Monopoly Commission v. Borden Co., Ky., 456 S.W.2d 831, 834-35 (1970), the court stated:

We realize that it has become a custom because of overwork for the trial courts to permit attorneys to draft findings of fact and conclusions of law. Many times these are submitted to the court by both sides before the court has made a final adjudication of the ease. We do not condemn this practice in instances where the court is utilizing the services of the attorney only in order to complete the physical task of drafting the record. However, to the extent that the court delegates its power to make findings of fact and draw conclusions this is not good practice. . To permit counsel to clutter up the record by filing detailed, lengthy, contradictory findings of fact and conclusions of law, which, as in this case, are designed for no purpose other than an attempt to cover up mistakes that might have been made in the trial can serve no useful purpose but to unduly enlarge, confuse, compound and expand appellate records. This is a practice followed by a large number of ' courts and attorneys. It increases our burden and does not help their ease. What is said here is not meant as personal criticism of the judge or attorneys who tried this case. They were following a widespread practice which we hope to curtail.

In United States v. El Paso Natural Gas Co., 376 U.S. 651, at 656, 84 S.Ct. 1044, at 1047, 12 L.Ed.2d 12 (1964), the Supreme Court stated:

There was a trial, and after oral argument the judge announced from the bench that judgment would be for appel-lees and that he would not write an opinion. He told counsel for appellees “Prepare the findings and conclusions and judgment.” They obeyed, submitting 130 findings of fact and one conclusion of law, all of which, we are advised, the District Court adopted verbatim. Those findings, though not the product of the workings of the district judge’s mind, are formally his; they are not to be rejected out-of-hand, and they will stand if supported by evidence. . . Those drawn with the insight of a disinterested mind are, however, more helpful to the appellate court.

See also 9 Wright and Miller, Federal Practice and Procedure § 2578 (1971).

Before turning to the specific arguments presented by the parties, we note a few of the deficiencies in the findings of fact and conclusions of law prepared by Mr. Brun-son’s attorneys. Finding 15 recites that Mrs. Brunson has obtained a “college education” during the marriage. In fact, Mrs. Brunson has no college degree, having taken nine hours of courses at a local community college in order to obtain a real estate salesman’s license. Finding 14 recites that Mr. Brunson’s income is highly erratic and irregular and cannot be reasonably projected. On the other hand, finding 17 recites that Mrs. Brunson is “gainfully employed in appropriate employment.” An examination of the parties’ income tax returns for the last three years of the marriage reveals that Mr. Brunson had net income from farming operations ranging from a low of $23,260.67 to a high of $48,960.85. Mrs. Brunson’s net income as a real estate salesman ranged from a low of $1,018.73 to a high of $4,225.74. Although the conclusions of law recite that the parties acquired marital property, there are no findings respecting the extent or value of the marital property. With these considerations in mind, we shall examine the various contentions of the parties.

I

At the time of the marriage, Mrs. Brunson owned property having a net value of $34,336.00. She acknowledges that she made gifts totalling $10,000.00 to her children during the marriage. Mrs. Brunson argues that the difference between the value of the property which she brought to the marriage and the gifts to her children, $24,-336.00, constituted nonmarital property which should have been assigned to her under KRS 403.190(1). The trial court recognized that Mrs. Brunson brought property into the marriage. However, because she failed to trace any of that money or property into any specific assets which were owned by the parties at the time of the separation, the trial court concluded that it had no power to assign any property to Mrs. Brunson as nonmarital property. The record supports the trial court’s conclusion that Mrs. Brunson failed to trace the assets which she brought into the marriage into assets owned at the time of the separation. The trial court did not err in refusing to assign any amount to Mrs. Brunson as non-marital property. Farmer v. Farmer, Ky., 506 S.W.2d 109, 112 (1974).

Mrs. Brunson further asserts that the trial court erred in assigning to Mr. Brunson certain assets as nonmarital property. The trial court upheld all of Mr. Brunson’s contentions respecting what constituted his nonmarital property. At the time of the separation, Mr. Brunson was the owner of life estates in extensive farm lands in south Christian County. He acquired a life estate in two of the farms by deeds of gift from his father. He was devised a life estate in two other farms under the will of his father. He also was the owner of a residence which was a gift from his mother and father. The trial court correctly held that this real estate constituted nonmarital property under KRS 403.190(2)(a), to the extent that its value was not enhanced during the marriage by joint efforts of the parties.

At the time of separation, the sum of $40,000.00 was on deposit at the Hopkins-ville Savings and Loan Association. Mr. Brunson traced this amount to proceeds received by him from two life insurance policies following the death of his father. The trial court correctly held that this $40,-000.00 account constituted nonmarital property under KRS 403.190(2)(b).

The trial court also awarded Mr. Brunson as nonmarital property the sum of $5,000.00 received by him from another insurance policy on his father’s life. According to Mr. Brunson’s own testimony, this $5,000.00 was put in his farming business and “used for operating costs.” The trial court’s finding that this $5,000.00 could be traced to cash and personal property held by Mr. Brunson is not supported by the record, and that finding is clearly erroneous within the meaning of CR 52.01.

Mr. Brunson also received, as a gift from his father, farm machinery having a value of $10,165.26. The trial court’s finding that this machinery is traceable to farm machinery presently held by Mr. Brunson is not supported by the record. The husband’s brief on appeal concedes that Mr. Brunson did not trace each individual item of farm machinery into farm machinery which he owned at the date of separation. In fact, there was no effort to trace any of this farm machinery. According to the husband’s accountant, Mr. Brunson owned farm machinery having a value of $88,-930.44 on the date of separation. Assuming that Mr. Brunson still owned some of the farm machinery given to him by his father on January 1, 1969, there is no basis for assuming that it would have the same value on the date of the separation, July 6, 1976. The trial court erred in assigning any portion of the farm machinery to Mr. Brunson as nonmarital property.

Mr. Brunson also inherited ’ from his father personal property having a value of $46,260.58. The trial court found that this personalty was traceable to cash and personal property held by the husband at the time of the separation. This finding is clearly erroneous for two reasons. First, the record also established that the property received by Mr. Brunson from the estate of his father was subject to various liabilities. Mr. Brunson was required to pay $22,-650.10 on behalf of his father’s estate for funeral expenses, administrative expenses and debts and taxes owed by the estate of his father. These liabilities were a charge against the nonmarital property received by the husband from his father’s estate, and the value of those assets should have been reduced accordingly for the purposes of KRS 403.190(2). Even more important, the personalty inherited by the husband from his father was not traced into specific assets owned at the time of the separation. Mr. Brunson’s accountant prepared financial statements which indicated that the personal property inherited by the husband had been “co-mingled and included with subsequent assets accumulated.” It was clearly erroneous for the trial court to assign any amount to Mr. Brunson as nonmarital property, traceable to the personalty inherited from his father.

II

Mrs. Brunson claims that the trial court failed to make a just division of the marital property as required by KRS 403.190. As a division of marital property, the trial court awarded Mrs. Brunson a Lincoln Continental automobile and $7,300.00 paid by the husband to the wife prior to .the entry of the decree. Of this cash payment, $6,300.00 represented nine months of temporary maintenance at $700.00 per month. The balance of the cash represented a payment of $1,000.00 made by the husband to the wife for “bucket” calves. The automobile was valued at $3,625.00. Thus, the total award to the wife was only $10,925.00, which included temporary maintenance.

According to the husband’s accountant, Mr. Brunson had a net worth of $192,137.48 after excluding those items which he considered to be nonmarital property. In his appellate brief, Mr. Brunson suggests that this sum should be decreased by his net worth on the date of the marriage and increased by the amount by which his preexisting liabilities were reduced during the period of the marriage. The resulting figure, $156,845.21 would represent the increase in the husband’s net worth during the marriage by accumulations other than through gifts and inheritances. The husband asserts that only a portion of that increase in net worth represents marital property. Mr. Brunson claims that one-third of the increase in net worth during the marriage represents accumulated income from the farming operations attributable to the land which is nonmarital property. He argues that this accumulated income is nonmarital property. This argument is without merit. KRS 403.190 is based upon section 307 of the Uniform Marriage and Divorce Act. The commissioner’s note to that section of the uniform act states in part:

The phrase “increase in value” used in subsection (b)(5) is not intended to cover the income from property acquired prior to the marriage. Such income is marital property. Similarly, income from other nonmarital property acquired after the marriage is marital property.

See also Petrilli, Kentucky Family Law § 24.6 at 38-39 (1977 supp.). Any accumulation of income from the husband’s non-marital property constituted marital property to be divided by the court under KRS 403.190(1). Using the information supplied by the husband’s accountant, the marital property of the parties amounted to more than $150,000.00. According to the testimony offered on behalf of the wife, the value of the marital property was substantially greater. The trial court made no findings with respect to the extent and value of the marital property. Nevertheless, it is patent that an award to the wife of property and cash having a value of only $10,925.00 does not constitute a “just” division of the marital property.

Ill

On his cross-appeal, Mr. Brunson asserts that the trial court erred in its award to the wife of $700.00 per month as maintenance. Because the trial court must reconsider its division of the marital property, the trial court will be free to reconsider the question of maintenance in light of its revised division of marital property. Consequently, it would be inappropriate at this time to approve or disapprove the award of maintenance. Sharp v. Sharp, Ky., 491 S.W.2d 639, 645 (1973).

IV

On the appeal (CA-1219-MR), the judgment of the circuit court is reversed, and on the cross-appeal (CA-1579-MR) the case is remanded, with the following directions: (a) to reassign the nonmarital property in accordance with this opinion; (b) to divide the marital property in just proportions after making specific findings of fact and conclusions of law respecting the extent and value of the marital property; and (c) to reconsider the award of maintenance in the light of the new division of marital property.

All concur.

      . In that case, the Supreme Court approved the following remarks by Judge Wright:
      “Who shall prepare the findings? Rule 52 says the court shall prepare the findings. ‘The court shall find the facts specifically and state separately its conclusions of law.’ We all know what has happened. Many courts simply decide the case in favor of the plaintiff or the defendant, have him prepare the finding of fact and conclusions of law and sign them. This has been denounced by every court of appeals save one. This is an abandonment of the duty and trust that has been placed in the judge by these rules. It is a noncompliance with Rule 52 specifically and it betrays the primary purpose of Rule 52—the primary purpose being that the preparation of these findings by the judge shall assist in the adjudication of the lawsuit.
      “I suggest to you strongly that you avoid as far as you possibly can simply signing what some lawyer puts under your nose. These lawyers, and properly so, in their zeal and advocacy and their enthusiasm are going to state the case for their side in these findings as strongly as they possibly can. When these findings get to the courts of appeals they won’t be worth the paper they are written on as far as assisting the court of appeals in determining why the judge decided the case.” Seminars for Newly Appointed United States District Judges (1963), p. 166.


author: GANT, Judge.

text:
    Dorris Joe ROBINSON, Appellant, v. Ruthie Jane ROBINSON, Appellee.
    Court of Appeals of Kentucky.
    May 5, 1978.
    Rehearing Denied Aug. 11, 1978.

      Sam T. Jarvis, James Tardío, Jarvis, Pay-ton & Kinney, Greenville, for appellant.
    Harold M. Streets, Streets & Cisney, Greenville, for appellee.
    Before GANT, COOPER and PARK, JJ.
   GANT, Judge.

Appellant and appellee were married in 1968, had one child and petition for Dissolution of Marriage was filed in 1975. Each of the parties had owned an interest in a business prior to the marriage, the wife owning a one-half interest in a property known as the Apple House Market and the husband owning the Dairy Maid Drive-In, these businesses being about one-half block apart in Muhlenberg County. Additionally, the parties owned a home in that county. The case was previously appealed to this Court and remanded for specific findings as to value of the property, its status as marital and nonmarital, and for division in accordance therewith. It is from the effort at compliance with the directions of this Court that appellant appeals.

This case follows the regrettable pattern of many divorce cases involving division of property. Herein, only the evidence of the litigants was presented on the valuation of the property without showing that they are properly qualified. The law concerning the qualifications of lay witnesses to testify concerning the value of property has been extended to include the owner witness and has been adequately stated in the case of Commonwealth, Department of Highways v. Fister, Ky., 373 S.W.2d 720 (1963), as follows:

It has always been recognized that there “must be some basis for a knowledge of market values before a witness may express an opinion as to values.” Allen Co., Inc. v. Thoroughbred Motor Court, Ky., 272 S.W.2d 343, 344. With respect to other lay witnesses, it is required that they have “a knowledge of property values generally” (Commonwealth, Dept, of
Highways v. Tyree, Ky., 365 S.W.2d 472, 475), or be “acquainted with property values in the vicinity” (Himlar Coal Co. v. Kirk; 224 Ky. 383, 6 S.W.2d 480, 481).
We see no reason why an owner, before expressing his opinion concerning the market value of his real estate, should not have the initial minimum qualifications required of his neighbors. It follows that the qualifications of the owner witness, as other witnesses, must be affirmatively shown before his opinion of market values is expressed. Id. at 722-23.

Although this case involved the opinion evidence or property owners in condemnation cases, there is no reason that the same law should not apply. As the court stated in the case of Commonwealth v. Rankin, Ky., 346 S.W.2d 714 (1960), in another condemnation case:

. the qualifications of the witness and the facts given as the basis for the opinion are extremely important. The mere statement of opinion that property is worth a stated amount is worthless without a proper showing that such witness is qualified to know about which he is testifying and then demonstrates it by giving facts as a reasonable basis to support his opinion. Id. at 717.

The mere fact of ownership does not of itself qualify the parties to give a value. The appraisal of residential, commercial and industrial property has become a science in this day and time and should not be the subject of conjecture and speculation.

The only other evidence given in this case was an exhibit filed by the appellant purporting to list the assessed value of this property according to the Property Valuation Administrator. The PVA did not testify, did not give any basis for such valuation, was not subject to examination by the parties or the court, and was not subject to cross-examination. Basically, his evidence was without probative value. As stated in the case of Commonwealth v. Rankin, supra at 717, “[i]n determining the value of land . . . assessed value, though not conclusive, can be considered in connection with other evidence of value of property.” In this case there was no other evidence concerning the value of the property. The evidence offered by the appellant will just simply not suffice, and it was manifest error for the court to place a value on the property without more. If the attorneys practicing domestic relations law do not give the court adequate tools with which to work, they can hardly complain of inequitable results. The standards will hardly improve unless the trial bench demands it. There was simply no way in which the trial court in this action could accurately fix the value of the property which was the subject of the action with the total lack of evidence here. If the parties come to the end of their proof with grossly insufficient evidence on the value of the property involved, the trial court should either order this proof to be obtained, appoint his own experts to furnish this value, at the cost of the parties, or direct that the property be sold.

MARITAL AND NONMARITAL PROPERTY

APPLE HOUSE MARKET. The evidence disclosed that the appellee did, indeed, own a one-half interest in this business at the time of the marriage. The appellee, her brother, mother and other members of her family had run the business for several years with an unbroken record of failure. The debts of this business were in excess of $58,000. The appellant and appellee both worked and contributed to the operation of the business after they purchased the other one-half interest, paying off the appellee’s family and the creditors and reducing the indebtedness from $58,000 to $28,409.96.

DAIRY MAID DRIVE-IN. The evidence disclosed that the appellant had purchased this property prior to the marriage for $30,000, paying $10,000 down and an additional $9,000 before the marriage. There was a lien against this property for the remaining $11,000. Both parties contributed their joint efforts and funds to the operation of this business after marriage and paid off the remaining $11,000 prior to the time of separation.

HOME. It is uncontradicted that this property was marital property, having been purchased by the parties for $30,000 about four years prior to their separation.

As used in KRS 403.190 in referring to restoration of the property of each spouse, the word “property” means equity. If either spouse was the owner of property subject to indebtedness prior to the marriage, the equity in that property shall be considered nonmarital property at the time of separation in that proportion which this equity bore to the value of the property at the time of the marriage. The increase in equity after the marriage attributable to the joint efforts of the parties, including those efforts of the wife as housewife and mother, shall be treated as marital property. Of course, if the increase is not attributable to the team effort or team funds, the increase follows the property and must be restored to the party owning the property before the marriage. See Sharp v. Sharp, Ky., 491 S.W.2d 639 (1973). For example, the husband owns real estate valued at $40,000 at the time of the marriage. He has paid $20,000 toward the purchase price and has a mortgage of $20,000 at the time of marriage. After the marriage and through the joint efforts of the husband and wife, the remaining indebtedness is paid. The property is valued at $60,000 at the time of separation. ¾) or one-half of the value shall be nonmarital and the remaining one-half shall be considered marital property, so that $30,000 shall be set aside as the value of the nonmarital property of the husband and $30,000 shall be considered subject to division in just proportions. Conversely, if the property has declined in value and is worth only $30,000 at the time of separation, one-half or $15,000 shall be declared nonmarital and $15,000 shall be marital property.

Applying this to the instant case, the wife owned a one-half interest in the Apple House Market. The proof of the appellant indicated that there was no equity existing at the time of the marriage and the appellee did not refute this. The burden to establish value of nonmarital property is on the person claiming that it is non-marital and the wife having failed to sustain this burden, the court must assume that there was no equity existing at the time of the marriage. Through the efforts of both parties, the indebtedness on the Apple House Market was reduced from $58,000 to $28,409.96. After the value of this property is established, either by competent evidence or sale, the stipulated debts shall be subtracted and the remaining sum shall be considered marital property.

In the case of the Dairy Maid Drive-In, the husband had contributed $19,000 of the $30,000 purchase price prior to marriage. The balance of $11,000 was paid after the marriage and by the joint efforts of the parties. When the value of this property is properly established, 19/so of this value shall be set aside to the husband as nonmarital property and n/so shall be included as marital property.

Accordingly, the judgment herein is reversed and this case remanded to the lower court with the following instructions:

1. The court shall direct the parties to establish by competent evidence the value of the Apple House Market, the Dairy Maid Drive-In and the home or, if they fail to do so, shall direct that said property be sold.

2. All of the established value of the Apple House Market and all of the established value of the home shall be adjudged marital property.

3. n/3o of the established value of the Dairy Maid Drive-In shall be considered marital property and ⅛ thereof shall be considered the nonmarital property of the appellant.

4. The marital property and debts shall be divided in just proportions in accordance with KRS 403.190, it being the opinion of this Court that under the proof herein said division should be as nearly equal as possible.

All concur.


author: COOPER, Judge.

text:
    Betty B. BRUTON, Appellant, v. 0. Grant BRUTON, Appellee.
    Court of Appeals of Kentucky.
    July 14, 1978.
    Robert P. Hastings, Louisville, for appellant.
    Glen L. Schilling, Louisville, for appellee.
    Before COOPER, GANT and HOGGE, JJ.
   COOPER, Judge.

This is an appeal from a judgment entered in a divorce action and attendant property settlement.

Appellant contends that she is entitled to have the judgment of the trial court reversed insofar as the trial court declared a $29,000 debt owed to the First National Bank of Louisville to be a marital debt which should be paid from the proceeds of the sale of the parties’ residence in Indian Hills. Secondly, she contends that she is entitled to fifty percent (50%) of the net proceeds of the sale of the personal residence in Indian Hills. She was allocated forty percent (40%) of the sale proceeds. But, also, she was allocated responsibility for only forty percent (40%) liability on the $29,000 debt.

It is the appellant’s position on the debt issue that she should not be liable for any portion thereof because the husband borrowed the money using his separate property as collateral security. She argues that he could have, and should have, cashed in or spent his separate property rather than using it as collateral for the series of loans in question. Having borrowed money rather than spending his own money, he should now be held liable for the total amount of the indebtedness.

No case authority is advanced in support of appellant’s position. We cannot agree with her contention that equity demands such a result. The fact that appellee used his own property as loan security rather than borrowing at higher interest rates with less or no security should not be used to penalize him. Indeed, it is highly speculative whether the sums in question could have been obtained on an unsecured basis. Our result is reached in light of the undisputed fact that the loan proceeds were used for marital purposes generally and in certain instances to provide personal benefit to appellant. Having enjoyed the benefit of the loan proceeds, both directly and indirectly, appellant is not entitled to disclaim all liability therefor.

On the second point raised, in light of the overall property settlement and based on our review of the evidence adduced in accordance with KRS 403.190, pertaining to the contribution of the parties to the acquisition and accumulation of marital property, no clearly erroneous finding was made by the trial court. We may not disturb the findings of a chancellor in a divorce case unless they are clearly erroneous. CR 52.01; Adams v. Adams, Ky., 412 S.W.2d 857 (1967). Appellant’s total award of marital property exceeds forty percent (40%), and we find no basis for concluding that is unreasonable under the circumstances. Cf. Howard v. Howard, Ky., 412 S.W.2d 243 (1967).

We recognize that after assigning the nonmarital property, appellee’s estate was much larger than appellant’s and it is doubtful, to the point of being remote, that appellant’s earnings will ever approach ap-pellee’s. But, the disparity in size of estate coupled with some consideration for the style of living to which she had become accustomed must have been among the factors taken into account in awarding maintenance pursuant to KRS 403.200 in the amount of $700 per month for five years or until death or remarriage. The total potential exposure to appellee is $42,000.

We find no reversible error in this record. The judgment appealed from is affirmed.

All concur.


author: VANCE, Judge:

text:
    Verna ROBINSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    July 14, 1978.

      C. David Johnstone, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., J. Gerald Henry, Asst. Atty. Gen., Frankfort, for ap-pellee.
    Before COOPER, LESTER and VANCE, JJ.
   VANCE, Judge:

The question is whether evidence of mental retardation of the defendant is admissible in a prosecution for reckless homicide under KRS 507.050.

The appellant, age 18, was convicted of reckless homicide and punishment was fixed by a jury at confinement for four years. The prosecution was based upon the allegation that appellant caused the death of her infant child by her failure to feed the child properly and by her failure to secure medical attention for the infant.

The baby boy weighed six pounds ten and one-half ounces at birth. He lived approximately three months and medical testimony established that he normally would have weighed between eight and nine pounds at that age. His actual weight at the time of death was five pounds, five ounces.

Medical witnesses established the cause of death as failure to thrive and malnutrition. An autopsy was performed and the stomach and intestines contained only small amounts of matter. The body was dehydrated. The doctors testified that with normal feeding the child should not have dehydrated and the stomach and intestines should have contained much more evidence of feeding.

The appellant testified that she fed the baby as he appeared to need or want food but not on any regular schedule. She said she failed to keep an appointment for a six-weeks checkup due to lack of transportation and claimed she later took the baby to a hospital but was not able to get anybody to examine the child because she did not have an appointment. Her defense was that she did not think the child was seriously ill and that she fed the child in what she considered to be a proper manner.

No question is raised on this appeal as to the sufficiency of the evidence to sustain the conviction. The appeal rests solely upon the allegation that the court erred in refusing to admit the testimony of a clinical psychologist, an associate professor of psychiatry and behavioral sciences at the University of Louisville, and also the testimony of a registered nurse. The testimony of the psychologist, preserved by avowal, was to the effect that he had administered psychological tests to the appellant; that she had no significant mental illness but that she functioned at a very low level of intellectual ability and ranked in the lowest 7% of the general population; that she was well within the mentally retarded area; and that there were no tests in which she achieved a normal rating.

This evidence was excluded because the trial judge ruled that it would only be admissible to show absence of criminal intent and the crime charged did not require any specific criminal intent.

KRS 507.050 provides that a person is guilty of reckless homicide when, with recklessness, he causes the death of another person. KRS 501.020(4) provides:

“Recklessly” — A person acts recklessly-with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists.* The risk must be of such nature and degree that failure to perceive it constitutes a gross deviation from the
standard of care that a reasonable person would observe in the situation.

The gravamen of the offense is the failure to perceive a substantial and unjustified risk when such failure is a gross deviation from the standard of care that a reasonable person would observe in the situation.

It is obvious that no specific intent that the act or omission cause injury is required. Nor is there any requirement to show a subjective realization on the part of the actor that his conduct creates a substantial risk.

The Commonwealth interprets the statute to mean that if appellant’s failure to perceive the risk involved in her conduct amounted to a gross deviation from what a reasonable person would have perceived, then the offense has been established and it is not material as to whether her mental capacity was diminished to the point, where she could not perceive a risk which would be apparent to a normal person.

We do not read the statute so narrowly. The failure of a person to perceive a danger when he is mentally incapable of perceiving it cannot be the basis for criminal liability. We think the statute, in using the objective standard of the reasonable man, authorizes a conviction when a person fails to perceive a substantial danger in his conduct, but only if he should have perceived it under the circumstances which existed. If the argument of the Commonwealth were taken to its logical conclusion, total insanity would not be a defense in a case where the insane person failed to perceive a substantial risk and his failure amounts to a gross deviation from what a reasonable person would have perceived in the circumstances.

The clinical psychologist did not attempt to say that appellant’s mentality was such that she could not perceive a danger. It is questionable whether such testimony would even have been proper, but his testimony as to the degree of mental retardation was sufficient to permit a jury to conclude, but would not require it to conclude, that appellant was not mentally able to perceive the danger in her conduct. For that reason it was prejudicial error to exclude the testimony.

Appellant also complains of the rejection of the testimony of a registered nurse as to certain general statistical compilations concerning problems and stresses generally encountered by teenage mothers. We are not convinced that this general information, even if reliable, was shown to have any particular relevance. It was not shown that any of the general statistics had any specific relation to appellant and we conclude that the trial court correctly refused to admit the testimony.

We are not unaware of the provisions of KRS 504.050 relating to notice of a defense of mental illness or defect. Whether this statute is applicable to the circumstances of this case is a matter which we do not decide here. It was not raised or discussed in the briefs and consequently is not before us for decision.

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

All concur.


text:
    KENTUCKY HIGH SCHOOL ATHLETIC ASSOCIATION, Appellant, v. Kevin JACKSON, an infant, by his mother and next friend, Peggy Jackson Carter, Appellee.
    Court of Appeals of Kentucky.
    July 21, 1978.

      W. V. Alford, Jr., McDonald, Alford & Roszell, Lexington, for appellant.
    William L. Rose, Williamsburg, Cathy C. Lowe, Lexington, for appellee.
    Before PARK, WHITE and WILHOIT, JJ.
   PARK, Judge.

The defendant-appellant, Kentucky High School Athletic Association (KHSAA), appeals from a final judgment of the Whitley Circuit Court which permanently enjoined KHSAA from declaring the plain tiff-appel-lee, Kevin Jackson, ineligible to participate in interscholastic athletic events at the Wil-liamsburg High School during the 1977-78 school year. KHSAA had declared Jackson ineligible under section 1 of bylaw 6, Transfer of First Team Competitor, which is a part of the rules of the association agreed to by its member schools. The circuit court found that KHSAA’s application of this rule to Jackson was unfair, unjust and arbitrary.

The rule in question provides:

SEC. 1. TRANSFER OF FIRST TEAM COMPETITOR.
Any student who has represented a secondary school in a first team game in any sport and who changes schools with or without a corresponding change in the residence of this parents shall be ineligible for thirty-six school weeks. If there is a corresponding change in the residence of the parents, the commissioner may waive the penalty in any case where there is evident injustice.

The general validity of this rule was upheld by this court in Kentucky High School Athletic Assoc, v. Hopkins County Board of Education, Ky.App., 552 S.W.2d 685 (1977). Consequently, the only issue on appeal is whether KHSAA acted arbitrarily in applying this transfer rule to Jackson.

The record on appeal does not contain a transcript of the evidentiary hearings before the circuit court. Under these circumstances, the parties agree that the trial judge’s findings of fact must be accepted as correct on appeal.

Harold and Peggy Jackson were the parents of two children, Kevin and a younger sister Robin. All of the Jacksons lived at Rockholds in Whitley County until August 31,1974, when a joint petition for the dissolution of the marriage was filed. Attached to this joint petition was an executed settlement agreement which provided that Peggy Jackson was to have custody of both children. Mr. and Mrs. Jackson reconciled and continued to live together as man and wife until September 1976, at which time they separated for the last time. On November 16, 1976, the circuit court entered a final decree dissolving the marriage and incorporating the earlier settlement agreement giving Peggy Jackson custody of both children.

At the time of the final separation in September 1976, Kevin and Robin were both enrolled in the county school system. Following the separation, Mrs. Jackson moved to a trailer park located in the Highland Park section within the corporate limits of the city of Williamsburg. Not wanting to remove the two children from the county school system in mid-year, Mrs. Jackson entered into an oral agreement with Mr. Jackson that the two children would continue to live with him until the end of the school year. Kevin participated in a first team basketball game while enrolled at Whitley County High School during the 1976-77 school year.

Immediately following the close of the school year in the spring of 1977, Kevin and Robin went to live with their mother at her home in Williamsburg. On July 16, 1977, Peggy Jackson married Darrell Carter. Mr. and Mrs. Carter, Kevin and Robin moved together to the home of Mrs. Carter’s sister at Woodbine in Whitley County where they all resided until August 14, 1977. At that time, the four moved to their present residence on Ninth Street within the city limits of Williamsburg. Mrs. Carter enrolled Kevin and Robin in the Williamsburg city school system, and Kevin has attended Wil-liamsburg High School during the 1977-78 school year.

The trial judge found that there was no evidence of recruiting, gifts or other illegal inducements to cause Kevin to move from the county school district into the city school district. The trial judge also found that the move was involuntary on Kevin’s part and was the sole decision of his mother who had legal custody of Kevin under the circuit court decree. Nevertheless, KHSAA took the position that the transfer rule could not be waived because Kevin changed schools without a “corresponding change” in the residence of his custodial parent. Although acknowledging that Kevin and his mother both had moved from Rockholds to Williamsburg, KHSAA relies upon the fact that Kevin did not move at the same time as his mother. In effect, KHSAA would interpret the transfer rule to prohibit waiver of the rule unless the change of schools by the student was accompanied by a “corresponding and simultaneous change” of residence of the custodial parent.

As this court held in Kentucky High School Athletic Association v. Hopkins County Board of Education, supra, courts will not substitute their interpretation of an association’s bylaws for the interpretation placed upon those bylaws by the association itself. However, that rule is applicable only so long as the association’s interpretation is fair and reasonable. Applying the standards set forth in the Hopkins County Board of Education case, we conclude that it is unfair and unreasonable to require that the student’s change of school be simultaneous with the custodial parent’s change of residence.

The transfer rule is intended to eliminate the pernicious practice of recruiting high school athletes. When a student changes schools with a “corresponding change” in the residence of the custodial parent, there is an objective indication that the change of school was not the result of recruiting. The objective indication that recruiting was not the reason for the change of schools provides a basis for waiving the transfer rule in cases of “evident injustice.” When the custodial parent’s change of residence precedes, rather than coincides with, the change of schools, there is even less reason to suspect recruiting as the motive for the change of schools. KHSAA’s interpretation of the rule would encourage parents to pull their children out of school in the middle of the school year whenever the parents are changing residence. A reasonable interpretation of the rule would leave parents free to decide that their children’s education would be best served by avoiding a mid-year change of schools.

The facts of this case are easily distinguished from the facts in the Hopkins County Board of Education case in which the application of the transfer rule was upheld. In that case, there was a change of custody but no change of residence by either parent. Moreover, the change of custody was the result of the student’s own wishes so that his change of residence from one school district to another could not be said to have been involuntary. In this case, Kevin’s mother had legal custody of both children at all times after the final separation. As the custodial parent, it was her decision that both children follow her to Williamsburg at the end of the school year and that they move with her and her husband on two occasions during the summer of 1977. We agree with the judgment of the circuit judge that KHSAA acted arbitrarily when it applied the transfer rule to Kevin Jackson.

KHSAA argues that the complaint is fatally defective because it fails to allege that the actions of KHSAA were “arbitrary.” This argument is specious. The complaint does allege that the actions of KHSAA were “capricious.” Even more important, the complaint sets forth the basic facts of the case and the relief sought. The absence of the word “arbitrary” does not mean that the complaint does not allege arbitrary action on the part of KHSAA. Prewitt v. Clayton, 21 Ky. (5 T.B.Mon.) 4 (1827).

KHSAA argues that the decision in this case will open the floodgates to a torrent of litigation. We disagree. The officials of KHSAA are necessarily vested with substantial discretion in the administration of the interscholastic athletic programs within the State of Kentucky. The courts will not interfere with the exercise of such discretionary power in the absence of a showing that the association acted arbitrarily or denied the affected parties an opportunity to be heard. The record on this appeal fails to establish that any proceeding before the association provided a reasonable basis for declaring Kevin Jackson ineligible. In fact, the record reflects that there was no exercise of discretion. As the trial judge’s opinion states:

It seems strange that the Commissioner testified that in its entire history the K.H.S.A.A. has never waived the transfer rule although the Board of Control may have on two or three occasions. Why have a waiver provision in your by-laws if you are never going to exercise it?

Under these circumstances, the judgment of the circuit court did not constitute an unreasonable interference with the internal affairs of KHSAA.

We also note the passage of Senate Bill No. 60 at the last session of the legislature. 1978 Ky.Acts, ch. 60. Under the statute, the state board of elementary and secondary education is now vested with management and control of interscholastic athletics. However, the statute further provides:

The board may designate an organization or agency to manage interscholastic athletics in the common schools, provided that the rules, regulations and by-laws of any organization or agency designated shall be approved by the board, and provided further that the board shall adopt regulations providing for the appeal to the board of any decisions made by the designated managing organization or agency.

If a due process hearing will be afforded under this statute, the role of the courts will be extremely limited in matters involving interscholastic athletics. See American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Com’n, Ky., 379 S.W.2d 450 (1964); Morris v. City of Catlettsburg, Ky., 437 S.W.2d 753 (1969); City of Louisville v. McDonald, Ky., 470 S.W.2d 173 (1971).

The judgment of the circuit court is affirmed,

All concur.


author: HOWERTON, Judge.

text:
    James Edward MILLER, Appellant, v. JEFFERSON COUNTY POLICE DEPARTMENT, Members of the Fiscal Court, Louis J. Hollenbach III, Judge, Thomas C. Helm, Commissioner, Bob Kirchdorfer, Commissioner, Earl J. Hartlage, Commissioner, Larry Johnson and Gayle Fisher, Appellees.
    Court of Appeals of Kentucky.
    July 28, 1978.

      F. Thomas Conway, Robinson, Tackett, DeMoss & Conway, P. S. C., Louisville, for appellant.
    Donald F. Zeller, Asst. Jefferson County Atty., Louisville, for appellees, Jefferson County Police Dept., Members of the Fiscal Court, and Officer Gayle Fisher.
    Lawrence Elswit, Larry D. Beale, Legal Aid Society, Louisville, for appellee Johnson.
    Before GANT, HOWARD and HOWER-TON, JJ.
   HOWERTON, Judge.

Appellant, James Edward Miller (hereinafter referred to as Miller), was arrested on February 12,1976, on a warrant for wanton endangerment and harassment obtained on a complaint by the appellee, Larry Johnson (hereinafter referred to as Johnson). The charges were subsequently dismissed, and Miller brought this action, alleging false arrest or imprisonment and malicious prosecution.

Miller sued Johnson, who obtained the warrant, and Gayle Fisher, the police officer who investigated the offenses. Miller also sued the Jefferson County Police Department, the members of the Jefferson County Fiscal Court, and Officer Plyler who served the warrant and who is not a party to this appeal.

Through a series of three summary judgments in favor of the defendants, Miller’s complaint was totally dismissed. Unfortunately, the summary judgments gave no reasoning, but having reviewed the whole record, together with reading the briefs and hearing the arguments of counsel, we can conclude that the action was properly dismissed for several reasons. Sovereign immunity was available for the Jefferson County Police Department, and there was absolutely no cause of action, as a matter of law, against the individual members of the fiscal court or the officer who served the warrant. However, the judgments in favor of Johnson and Officer Gayle Fisher (hereinafter referred to as Officer Fisher) require more thorough and serious consideration.

The facts creating this problem need further elaboration. Miller sold his 1963 Dodge on January 5, 1976, and completed the transfer by recording the necessary documents in the Jefferson County Court Clerk’s Office. On February 10, 1976, someone driving the vehicle harassed Johnson during the day. That night, someone fired shots into Johnson’s dwelling, and a neighbor who witnessed the shooting described the 1963 Dodge as the vehicle from which the shots were fired.

Officer Fisher investigated the incident and called in the license number to the police department for an identification. He was given Miller’s name and address, which he wrote down and gave to Johnson. Johnson alleged in his cross-claim and in his deposition that Officer Fisher advised him to take a warrant for Miller. Officer Fisher was deposed and contended that he did not attempt to induce Johnson to take a warrant and that he made no statement regarding where or for what to obtain a warrant. Furthermore, Officer Fisher testified that he told Johnson he would watch his house through the night in order to determine who might be driving the vehicle because the driver might not be the registered owner.

The next morning, Johnson obtained a warrant from a Jefferson County official, and Miller’s problems began.

Miller’s complaint against Johnson was primarily for malicious prosecution. Two essential elements are lacking. There was no malice, and although the concept of probable cause may be stretched in this case, it nevertheless seems to be satisfied. See Mink v. Stratton, Ky., 499 S.W.2d 291 (1973), which is a somewhat analogous case. More evidence would be desirable for obtaining a warrant than merely such information as the name and address of the latest record owner of a vehicle. Even if Miller had been the owner of the vehicle at the time of the incident, the vehicle could have been driven by another person without Miller’s knowledge or at least without his knowledge of any crime.

Nevertheless, Johnson presented the information to an official who saw fit to issue the warrant. The issuing magistrate made the determination that there was probable cause for the warrant. Neither Johnson or Officer Fisher actually made that decision, and there is no evidence that Johnson added any false information to support his complaint for the warrant.

Even if we determined that there was no probable cause to obtain a warrant, we could not infer malice from the circumstances in this case. Certainly there was no actual malice. Johnson had been wronged, and he wanted justice for the offender. He did not know Miller, and in no way did Johnson act out of malice toward Miller. The summary judgment in favor of Johnson was proper. Malice may not be merely presumed. Cravens v. Long, Ky., 257 S.W.2d 548 (1953), and Hendrie v. Perkins, 240 Ky. 366, 42 S.W.2d 502 (1931).

There is a factual dispute as to what encouragement or inducement was given by Officer Fisher to Johnson, but this is not an issue of material fact requiring a reversal of the summary judgment and a remand for further proof. The warrant was issued on the basis of the affidavit filed by Johnson. The arrest of Miller was caused by the issuance of the warrant. Even if Officer Fisher suggested a warrant, it does not mean that a warrant would ever be issued, unless there was probable cause and the sworn facts justified a warrant.

Police officers are hamstrung enough in carrying out their duties of law enforcement without making them subject to a lawsuit for suggesting to a crime victim that he talk to a judge about getting a warrant. We might possibly have a different result in this action, however, if Officer Fisher had arrested Miller on the mere evidence of the vehicle registration record or if it was proven that the encouragement to obtain a warrant was because of actual malice. But, none of these facts are present, and the claim against Officer Fisher was properly dismissed.

The appellees raised an issue regarding Miller’s failure to respond to the motion for summary judgment, which was made on behalf of Johnson and Officer Fisher. In light of the decisions already made, we need not decide that issue.

What happened to the appellant is regrettable. He has obviously been injured, but he has no plausible remedy against these appellees.

The judgment of the trial court is affirmed.

All concur.


author: HOWARD, Judge.

text:
    Sergeant Donald PLAGEMAN, President, Lodge No. 1, Fraternal Order of Police, Appellant, v. BOARD OF COMMISSIONERS OF the CITY OF COVINGTON, Appellee.
    Court of Appeals of Kentucky.
    July 28, 1978.

      Stephen D. Wolnitzek, Taliaferro, Smith, Wolnitzek & Schachter, Covington, for appellant.
    Charles P. Wagner, Covington, for appel-lee.
    Before MARTIN, C. J., and HAYES and HOWARD, JJ.
   HOWARD, Judge.

This is an appeal from the Kenton Circuit Court wherein the complaint filed by plaintiff-appellant, Sergeant Donald Plageman, in his capacity as President of Lodge No. 1, Fraternal Order of Police (hereinafter referred to as Plageman), against defendant-appellee, the Board of Commissioners of the City of Covington (hereinafter referred to as the Board), was dismissed for failure to state a claim. Plageman sought to have the Board submit the question of a proposed ordinance, defining the scope of negotiations and conditions of employment of police officers, to the voters of the City of Covington. When the Board refused to place the proposed ordinance on the 1977 ballot, Plageman filed suit seeking injunc-tive relief and a writ of mandamus against the Board.

The trial court held that Plageman had not shown irreparable harm or damage, so no injunctive relief was given. The trial court further concluded that the proposed ordinance was administrative and not legislative in nature, and therefore not within the purview of KRS 89.610. Plageman states that those two findings by the trial court are erroneous, and that the complaint filed by him does state a claim for which relief can be granted.

The proposed ordinance, among other things, provides for collective bargaining, impasse procedures and binding arbitration concerning employment conditions of policemen. In some respects, the ordinance parallels the concepts of KRS Chapter 345, Collective Bargaining For Firemen.

KRS 89.610(1) provides, in pertinent part, as follows:

If a petition signed by a number of voters ., requesting the board of commissioners to pass an ordinance therein set forth, is presented to the board of commissioners, and if the ordinance therein requested to be passed is one (1) that the board has a legal right to pass, the board shall then either pass the proposed ordinance without alteration within ten (10) days after the petition is filed, or submit the question of its passage to the voters of the city at the next regular election.

Mandamus lies to compel submission of an initiative referendum, pursuant to KRS 89.610, where all mandatory legal steps have been taken and the trial court has determined the validity of the proposed ordinance. Utz v. City of Newport, Ky., 252 S.W.2d 434 (1952).

The initial question is whether the proposed ordinance, to be adopted according to the statutory initiative procedure, is administrative or legislative. Generally, initiative provisions, such as KRS 89.610, are applicable only to acts which are legislative in character, and not to acts dealing with administrative matters. 42 Am.Jur.2d Initiative and Referendum, § 11, page 659.

The rule in this Commonwealth for determining the nature of an ordinance is “if the power to be exercised prescribes a new policy or plan it is legislative, whereas if it merely pursues a plan already adopted by the legislative body or some power superior thereto it is administrative.” City of Newport v. Gugel, Ky., 342 S.W.2d 517, 519 (1960). Another form of the rule, as stated in City of Newport, supra, at page 519, is:

[A]n ordinance originating or enacting a permanent law or laying down a rule of conduct or course of policy for the guidance of citizens or their officers or agents is legislative, while an ordinance which simply puts into execution previously declared policies or previously enacted laws is administrative.

In City of Newport, supra, the ordinance in question fixed minimum salaries for police and fire department personnel, regulated working hours, vacations and days off without pay, and provided for the filling of certain minimum personnel in various positions, along with provisions for filling certain positions with police department personnel. That ordinance was held to be administrative in nature and the court in City of Newport, supra, at page 520, states:

While an overall, comprehensive plan or policy for personnel administration of the city government, giving consideration to such factors as the money resources available, the tax potential and its limitations, and the requirements of a unified budget, would be legislative in character, the same cannot be said of an ordinance that deals only with a segregated portion of the administrative personnel and with a part of the administrative problems, and merely prescribes details within the framework of a previously adopted general plan. Personnel administration is primarily an administrative matter, at least as far as concerns the details of management. To permit the electorate to initiate piece-meal measures affecting the fiscal affairs of the city without regard for the overall fiscal program, or measures not embodying a basic plan or policy for the entire area of government activity upon which the measure touches, could result in destruction of the efficient administration of the affairs of the city, and we do not believe the initiative statute so intends.

The proposed ordinance, in the instant ease, does not set out specific salaries, etc., as the ordinance did in City of Newport, supra, "so as to affect the fiscal policy of the City of Covington. It merely sets out, in general terms, procedures to be followed in the negotiation process between the Board and the Fraternal Order of Police regarding different aspects of employment of policemen.

The trial court, in the instant case, stated that the proposed ordinance was merely an addition to or refinement of the present collective bargaining agreement between the two parties, in that the element of binding arbitration was added. If this is so, then the proposed ordinance would be more administrative in nature, as pursuing a plan already adopted.

However, no proof was presented on this point in the record. The Board states that the trial court can take judicial notice of that which ought to be generally known within its jurisdiction and that the previous history of the negotiations between the Board and the Fraternal Order of Police falls within the scope of judicial notice.

We do not feel that the trial court can take judicial notice of a negotiation process of which it was not connected with or a part thereof, and a finding of fact, based on no evidence, is clearly erroneous. CR 52.01.

Should the proof develop that the ordinance in question is merely an addition to an already existing ordinance or agreement, then the proposed ordinance is administrative. However, if no such agreement or ordinance is in existence, we feel that the proposed ordinance would be legislative in nature as it would set a course of policy. “. . . Surely it is a tragedy that differences do arise between various elements of public service personnel. It might be far better if such differences could be resolved through a system of binding arbitration . .” Abney v. City of Winchester, Ky.App., 558 S.W.2d 622, 623 (1977). The voters in the City of Covington may feel that, as a matter of public policy, their policemen should be employed under conditions of collective bargaining and binding arbitration.

The judgment of the trial court dismissing Plageman’s complaint is reversed, with directions to take further proof in accordance with this opinion and any other necessary proof pertaining to the validity of the signatures in the petition.

All concur.


author: BARDGETT, Judge.

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, a corporation, Missouri Utilities Company, a corporation, Natural Gas Pipeline Company of America, a corporation, Missouri Pacific Railroad Company, a corporation and Mississippi River Transmission Corporation, a corporation, Appellants, v. Paul HOGG, Collector of Revenue, Respondent, Twin Rivers School District R-10, Neelyville School District R-4 and Poplar Bluff School District R-1, Intervenors.
    Nos. 60194-60198.
    Supreme Court of Missouri, En Banc.
    July 24, 1978.

      David E. Blanton, Blanton, Rice, Sickal, Gilmore & Winchester, Sikeston, Jack C. Lorenz, St. Louis, James E. Taylor, Kansas City, John W. Kelly, Judge, St. Louis, John L. Oliver, Jr., Oliver, Oliver & Jones, Richard D. Jones, Walter S. Drusch, Jr., Spra-dling, Drusch, Dillard & Spradling, Cape Girardeau, for appellants.
    G. H. Terando, N. E. Brown, Poplar Bluff, for respondent.
    Robert C. Hyde, Clinton Summers, Poplar Bluff, for intervenors.
   BARDGETT, Judge.

This is an appeal involving five consolidated Butler County Circuit Court suits, all of which were filed by certain utilities and a railroad to recover school district taxes paid under protest. The circuit found against plaintiffs-appellants and in favor of defendant-respondent Paul Hogg, collector of revenue of Butler County, and the school districts involved. This is the most recent of a number of cases we have had in the past few years involving the construction of sec. 137.073, RSMo 1969, a revenue law of Missouri. This court has jurisdiction. Art. 5, sec. 3, Mo.Const., as amended 1970.

The total assessed valuation of real property in Butler County, Missouri, for 1974 was $32,727,194. In 1975, by an order or series of orders of the county assessor and board of equalization of Butler County, and by action of the state tax commission, the certified total assessed valuation of real property in Butler County was $37,947,570, an increase of 15.67 percent over 1974. The rates of the respective school districts comprising the average school tax levy of $3.61 per $100 assessed valuation were all certified by each of the school districts to the county clerk after the date of the order or series of orders referred to above were made. The 3.61 average rate was certified to the county clerk in May 1975. By answer to an interrogatory, defendant Paul Hogg stated the assessed valuation of the county was finally determined on June 1, 1975. The trial court found the increase was effective January 1, 1975, a date prior to the time the school districts set their original levy in 1975. Subsequently, the school districts filed revised rates of levy which produced an average rate for the purpose of distributable property of 3.41 per $100 assessed valuation except that in R-l district the tax on Missouri Utilities Company was assessed at 4.10 per $100 assessed valuation with regard to its locally assessed property.

The school districts’ original estimate of their monetary needs from taxation totalled $2,481,217. This was to be produced by using an average rate of 3.61 per $100 assessed valuation as to distributable property and a certified rate as to locally assessed property in the particular school district. The $3.61 rate was, as noted above, reduced to $3.41. Although intervenors and defendant (respondents) orally argued the reduction from 3.61 to 3.41 was not because of the application of sec. 137.073 but rather the result of a redeterminatión of needs, they state in their brief that respondents “have acted in good faith and truly believe that they have substantially complied with sec. 137.073, even though the Trial Court found that such compliance was not necessary.”

The reduced rate of 3.41 as applied to distributable property and the certified rates as applied to individual real property in the school districts, plus locally assessed property, produced $2,569,021 which is approximately $90,893 more than the estimated need.

Thus, the 3.41 rate as to distributable property and the certified rate as to locally assessed property resulted in excess taxation on the whole of $90,893, and as to appellants an excess of $13,737.60.

The appellants contend an average rate of 3.32 per $100 assessed valuation should have been used which would have produced $2,483,906 or only $2,689 in excess of the estimated need. This, appellants argue, would be a sum that is substantially the same amount as previously estimated to be produced by the original levy as applied to the 1974 assessed valuation and satisfy the declared needs of the school districts.

The trial court held, inter alia, that sec. 137.073 was not applicable because the 11% blanket increase in all real property ordered by the state tax commission was effective January 1,1975, which was prior to the date or time in 1975 when the school districts set their original rate of levy. The trial court further found that the 11% increase was anticipated by the school districts when they set their original rate and “[i]n any event, the increase [in assessed valuation] was not made after the rate of levy was set and the provisions of Section 137.073 RSMo 1969 were never activated.”

The January 1, 1975, date referred to by the trial court as the effective date of the assessment increase is simply the date which controls as to who is liable for the 1975 taxes on real or tangible personal property. The owner of property on the first day of the year is liable for the taxes thereon during the same calendar year. Sec. 137.075, RSMo 1969. The first day of January is also the commencement of the property assessment procedure for that year, sec. 137.080, RSMo 1969, and the value finally arrived at during the assessment process relates back to the property owned by the taxpayer on the taxable date — January 1. The process of arriving at the final assessed valuation of property, however, may consume the better part of the year. Sec. 138.390, RSMo 1969, requires the state tax commission to equalize the valuation of real and tangible personal property between June 20 and the second Monday in July and sec. 138.400, RSMo 1969, requires the equalization order and report to be forwarded to the appropriate county officials on or before the second Monday in July. The state tax commission performed its equalization task between June 20 and July 27, 1975, with respect to all of the counties of Missouri, including Butler County. See Thirtieth Annual Report of the Proceedings and Decisions of Missouri State Tax Commission for year ending December 31, 1975, pp. 411-414 (hereinafter 30th Annual Report). This aggregate valuation of real estate, $37,947,770, became the assessed valuation for Butler County for 1975 as of the taxable date of January 1, 1975.

It is obvious that the event mentioned in sec. 137.073 — the assessed valuation of real or personal property within the county has been increased by ten percent or more — did not take place on January 1, as contended by respondents and found by the trial court. That event took place whenever the assessed valuation of the county was finally determined. Furthermore, if January 1 were determined to be the date of increased assessment for the purposes of sec. 137.073, then the legislature engaged in a completely futile act in enacting sec. 137.073 into law. This is so because the rate of levy will always be determined by a school district after January 1 of any given year.

Also we know the general assembly had no such intent because sec. 137.073 was adopted as an emergency measure by the 68th general assembly with an emergency clause that it become effective upon approval by the governor, which was done on July 14, 1955. Laws of Mo. 1955, p. 835, S.B. 286. The law was obviously intended to be applicable to tax levies and assessments for 1955 as there would have been no reason to enact an emergency provision if this were not so. It was first introduced in the Senate on February 28, 1955, and finally passed and sent to the governor on May 31, 1955. Senate Journal, 68th General assembly, Vol. 1 at 304, and Vol. 2 at 1443 (1955). If January 1 were the date of the increased assessed valuations, as found by the trial court, this law could not have been applicable to 1955 property taxes, the adoption of the emergency clause would have been a futile act, and, as noted supra, it could never be applied to cause a reduction in levies because all levies are determined after January 1 of any given year, which, according to the trial court, would be after the date of increased valuation, to wit, January 1.

The trial court was incorrect in holding that January 1 was the date of increased assessed valuations.

In Southwestern Bell Tel. Co. v. Feuer-stein, 529 S.W.2d 371 (Mo. 1975), the appellants school districts similarly contended the statute did not apply because the increased valuation was made prior to the time when the rates of levy were determined by the school districts saying the increases were “anticipated” by the districts when they set their rate of levy. In the instant case, the districts argued that the county assessor Paul Hogg knew about the upcoming increases and informed the districts which took the increases into account in setting their levies.

In Missouri Pacific R. Co. v. Campbell, 502 S.W.2d 354, 358 (Mo. 1973), the court rejected the districts’ contention noting that “[a]s required by law, the districts filed a written estimate with the county clerk stating the amount of money needed for the ensuing year and the tax rate (based upon the assessed valuation for the prior year) that would be levied to produce that amount.” The districts’ contention that the original estimate of need and levy was based upon their knowledge of anticipated increases was rejected, the court saying at 359: “The districts should not be permitted to repudiate the amount of their needs as stated in their official estimates and to now state that their estimates were intentionally incorrect and based upon information [anticipated increased assessments] not recognized by the various statutes involved. Such a procedure would not only be a violation of those statutes but would tend to emasculate the specific reduction provision of sec. 137.073 and place its enforcement on a tenuous and speculative basis.” (Emphasis added.)

A similar contention was rejected in Southwestern Bell Tel. Co. v. Feuerstein, supra, the court saying at 373: “Next, the appellant school districts contend that the increase in assessed valuation was made prior to the time when the rates of levy were determined, bringing into question that portion of Sec. 137.073 which required a revision of the rates of levy when . . such increase (in assessed valuation is) made after the rate of levy has been determined and levied by the school board . . Although the parties attempt to establish various pertinent dates to support their respective contentions, it is not necessary to determine the exact day on which the increase in assessed valuation was ‘made’ in this case. The intent oí Sec. 137.073 is clear: where the school boards determine a rate of levy calculated to meet their estimated revenue needs, and it is thereafter found that such rate of levy will produce more revenue than that estimated because of an increase of 10% or more in assessed valuation, the levies must be adjusted downwards to produce substantially the same amount as that originally estimated. In this case, the school districts involved would receive approximately $800,000 more in tax revenues than their estimated needs if their original rates of levy were allowed to be applied to the 1972 valuation, precisely the kind of windfall which Sec. 137.073 seeks to prevent. Appellants ought not to be heard saying that their rates of levy were determined ‘after’ the increase in valuation was made, when their original estimated needs were not based on the increased valuation.” (Emphasis added.)

In the instant case the school districts do not say what assessed valuation figure was used by them to arrive at the rate of levy but content themselves with merely saying that the increased assessed valuation occurred prior to the time the districts set their rates and on that basis seek affirmance of the trial court judgment.

We do not know the dates each district submitted its original annual estimate as required by sec. 164.011, RSMo Supp. 1975, except for the trial court finding, which is not contested, which stated they were submitted between May 15, 1975, and July 14, 1975, as required by statute; that the amount of money needed to be raised by taxation was $2,481,217 and the levies averaged $3.61 per $100 assessed valuation in the original estimates and by filings between August 14, and September 11, 1975, reduced the average rate to $3.41 per $100 assessed valuation. A rate of levy could not be mathematically computed however without a base figure (assessed valuation). As stated in the 30th Annual Report of the state tax commission at 30: “There are three factors in taxation (1) Assessed Valuation, (2) Amount of money necessary to be raised, (3) Rate of Levy. County Courts, City Councils and School Boards must have the assessed valuation and the aggregate amount of money to be raised before they can fix the rate of levy. The rate of levy is always the last factor to be determined, and to be obtained as a quotient, the assessed valuation being the divisor and the amount of taxes the dividend.”

The transcript contains the “Estimate of Required Local Taxes” for one of the school districts — Twin Rivers R-10 — dated May 12, 1975. The estimate used the figure of $8,012,556 for the assessed valuation of property within that district. The $8,012,-556 was the assessed valuation of property within Twin Rivers School District in Butler County for the year 1974, as per stipulation. The record also reflects that the revised estimate filed by Twin Rivers, pursuant to sec. 164.011, dated July 21,1975, also used the same 1974 assessed valuation figure (not the 1975 assessed valuation figure of $8,754,911) and reduced the rate from 3.30 to 3.10 per $100 assessed valuation. The revised rate of 3.10 would produce $248,389, the amount the district declared it needed if the 1974 valuation is used as the base; but if the increased valuation for 1975 is used, the same rate produces $271,-402 (87549.11 X 3.10 = 271,402) which is $23,013 (271,402 - 248,389 = 23,013) in excess of need. The $23,013 is approximately 9.26% in excess of needed taxes. The original rate of 3.30 per $100 applied to the stated 1974 valuation would have produced $264,414, the stated need in the original estimate but, as applied to the 1975 valuation, would have produced $288,912, some $24,498 in excess of the originally stated need and $40,523 in excess of the revised stated need. In any event, both estimates of required local taxes filed by Twin Rivers R-10 School District used the 1974 assessed valuation figures and not the “anticipated increase” or the actual increased valuation figures for 1975.

Although the court found that the involved school districts filed amended or revised estimates of need between August 14 and September 11, 1975, there is no finding or specific evidence or stipulation as to the figures used as assessed valuation factors in computing either the original or revised rates of levy. The facts with respect to Twin Rivers R-10 are known simply because copies of Twin Rivers’ estimates were filed in the cause by Twin Rivers School District.

But it seems clear that the other school districts did not compute their rate of levy based upon the 1975 assessed valuations in either their original or amended or revised estimates even though their amended or revised estimates were filed between August 14 and September 11, 1975.

Respondents assert that it is stipulated that the rates of the respective school districts were all certified by each of the school districts after the date of the order or series of orders which raised the assessed valuation of real property in Butler County to $37,947,570. Respondents contend that because the assessed valuation was raised before the rates of levy were submitted sec. 137.073 does not apply. It is, of course, correct that 137.073 provides that when the assessed valuation is increased by ten percent or more and the increase is made after the rate of levy has been determined the levying authority (school districts) must revise and lower the rate so as to produce substantially the same amount as originally estimated to be produced by the original levy. It seems obvious the legislature provided under sec. 137.073 that a reduction in the levy must be made if an increase in valuation occurs after the rate of levy is submitted on the assumption that if the increased valuation figures are finally determined before the rate of levy is finally determined the new increased valuation will be used rather than the previous year’s lower valuation.

In the instant case it is clear from the admitted facts that the school districts used the 1974 assessed valuation figures in arriving at their original rate of levy. Yet, the school districts seek to avoid the application of 137.073 saying, in effect, that even though we knew what the increased valuation figure was before we submitted our estimate in compliance with sec. 164.011, and even though we did not use the increased valuation to arrive at our rate of levy but instead used the previous year’s lower valuation, and as a direct consequence arrived at a rate of levy when applied to the new assessed valuation produces taxes well in excess of our declared needs, we, nevertheless, are not required to make any correction under the statute.

In Feuerstein supra at 373, the court held it was not necessary to determine the exact day on which the increase in assessed valuation was made, the intent of the statute being that where a school board determines a rate calculated to meet its estimated revenue needs and it is thereafter found that such rate will produce more money than estimated because valuations increased ten percent or more, the rate must be adjusted downward so as to produce substantially the same amount when applied to the increased valuation as was originally estimated.

Where, as here, the valuation is increased by ten percent or more but the valuation used by the school districts is the previous year’s lower valuation, the date of the increase becomes immaterial. Otherwise the whole purpose of sec. 137.073 would be easily circumvented by merely manipulating the date upon which the estimate of required local taxes is filed.

In the instant case, the school districts are unable to state the date they contend the increase valuation was determined. That is understandable because the process of arriving at a final assessed valuation for a county may continue on into September or October. In 1975 the 30th Annual Report of the tax commission shows an equalization order was entered July 27, 1975. That may have been the final valuation that year. In other years orders were made in August, September, and October affecting the aggregate assessed valuation of a county. E. g., 29th Annual Report of the tax commission at 413-419.

Here, as in Feuerstein, the purpose of the statute must be given effect. There was over $90,000 in excess of estimated need produced by taxes. This excess was the consequence of the assessed valuation of real property in Butler County increasing by more than ten percent and the failure of the school districts to lower their original rates in view of the increased valuation so as to produce tax revenue commensurate with their declared estimate of need.

The school districts argue that the excess —$90,000—was less than a four percent increase in the tax levy and, therefore, the total produced was substantially the same as the estimated revenue need and that the school districts made a “good faith” effort to comply with sec. 137.087. Appellants do not contend the school districts acted in bad faith but simply that they have not complied with sec. 137.073.

All that is required is for the school districts to make the mathematical computation using the known factors of revenue need and new increased valuation to arrive at the rate which will produce the needed revenue when applied to the assessed valuation. The result will not be the exact amount of estimated need from taxation but it can and should be very close to it.

In St. Louis-Southwestern R. Co. v. Cooper, 496 S.W.2d 836 (Mo. 1973), the court noted that “substantially the same” is synonymous with “practically”, “almost”, “essentially”, and “virtually” the same.

The court holds that the reduction made by the school districts in their rates of levy which produced $90,893 over estimated needs was not sufficient to comply with sec. 137.073 in that the amount produced was not substantially the same as previously estimated to be produced by the original levy.

The average rate suggested by appellants is 3.32 per $100 assessed valuation which would have produced revenue of $2,483,906 which is $2,689 over the original estimates filed by the school districts. The tax from appellants’ distributable property as a whole was $520,501.90 of which $13,737.60 was protested. In addition to the tax on appellant Missouri Utilities Company’s distributable property, there was a tax on its locally assessed property of $2,337.83 of which it paid $85.54 under protest. The total excess taxation on locally assessed property of the county was $90,893 and on distributable property $13,737 for a total excess of $104,630. The court rules that the rate suggested by appellants would have produced sufficient revenues to satisfy the estimated needs of the districts and would have met the requirements of sec. 137.073 and that appellants are entitled to a refund of taxes paid under protest in the following amounts:

Southwestern Bell Telephone Co. $7,015.35
Missouri Pacific Railroad Co. $1,702.06
Mississippi River Transmission Corp. $1,615.01
Natural Gas Pipeline Co. $2,825.74
Missouri Utilities Co. $ 664.98

Respondents contend the statute, sec.137.-073, was to protect the individual taxpayer and that appellants-utilities are not individual taxpayers within the meaning of the statute. Respondents also assert that a refund to appellants would harm the individual taxpayers because the time for protest by individual taxpayers who paid excess taxes has long since passed and, therefore, they cannot obtain a refund.

The reason individual taxpayers paid excess taxes was because the school districts did not reduce the rates as required by sec. 137.073. Had the districts reduced their rate of levy in accordance with sec. 137.073, no one would have been billed for excess taxes and that is what is expected of governmental entities having the power to set rates of levy.

The contention that utilities are not taxpayers within the meaning of see. 137.-073 is without merit.

The judgments are reversed and the causes remanded with directions to enter judgments for the amounts of taxes paid under protest as set forth supra.

MORGAN, C. J., FINCH, DONNELLY, RENDLEN and SEILER, JJ., and HOUSER, Special Judge, concur.

SIMEONE, J., not participating because not a member of the court when cause was submitted.

      . Missouri Pacific R. Co. v. Kuehie, 482 S.W.2d 505 (Mo.1972); St. Louis-Southwestern Ry. Co. v. Cooper, 496 S.W.2d 836 (Mo.1973); Missouri Pacific R. Co. v. Campbell, 502 S.W.2d 354 (Mo.1973); Southwestern Bell Tel. Co. v. Feuerstein, 529 S.W.2d 371 (Mo.1975); Missouri Pacific R. Co. v. Jones, 544 S.W.2d 541 (Mo. 1976).

      . “Whenever the assessed valuation of real or personal property within the county has been increased by ten per cent or more over the prior year’s valuation, either by an order of the state tax commission or by other action, and such increase is made after the rate of levy has been determined and levied by the county court, city council, school board, township board or other bodies legally authorized to make levies, and certified to the county clerk, then such taxing authorities shall immediately revise and lower the rates of levy to the extent necessary to produce from all taxable property substantially the same amount of taxes as previously estimated to be produced by the original levy. Where the taxing authority is a school district it shall only be required hereby to revise and lower the rates of levy to the extent necessary to produce from all taxable property substantially the same amount of taxes as previously estimated to be produced by the original levy, plus such additional amounts as may be necessary approximately to offset said district’s reduction in the apportionment of state school moneys due to its increased valuation. The lower rate of levy shall then be recertified to the county clerk and extended upon the tax books for the current year. The term ‘rate of levy’ as used herein shall include not only those rates the taxing authorities shall be authorized to levy without a vote, but also those rates which have been or may be authorized by elections for additional or special purposes. No levy for public schools or libraries shall be reduced below a point that would entitle them to participate in state funds.”