text:
    Jane Ellen Boggess HURST, Movant, v. FIRST KENTUCKY TRUST COMPANY and Lucy Kavanaugh Beam et al., Respondents.
    Supreme Court of Kentucky.
    Jan. 10, 1978.

      Marvin J. Hirm, Greenebaum, Doll, Matthews & Boone, Louisville, for movant.
    John P. Sandidge, Woodward, Hobson & Fulton, Louisville, for respondents.
   PER CURIAM.

T. Jeremiah Beam died testate on May 2, 1977. The First Kentucky Trust Company and Lucy Kavanaugh Beam, his surviving spouse, were designated and qualified as co-executors of the estate pursuant to the terms of his last will and testament.

Jane Ellen Boggess Hurst, a niece of T. Jeremiah Beam, is a contingent beneficiary under his will in the event of the failure of Lucy Beam to exercise a power of appointment granted to her in the will. The contingent interest of Hurst, absent exercise of the power of appointment, consists of a fractional interest in what remains after the death of Lucy Beam, of the corpus of a trust created for her benefit during her lifetime. For this reason, the primary interest of Hurst concerns the method used in selecting assets to be allocated by the co-executors to the widow and to the trust in satisfaction of the bequests for these purposes.

Item IV of the will of T. Jeremiah Beam and the first literary paragraph of Item V of the will provide:

“Item IV. If my wife, LUCY BEAM, shall survive me, I bequeath and devise to her in fee simple absolute an amount equal to the difference between (a) one-half (½) of the value of my adjusted gross estate as determined for Federal Estate purposes and (b) the value of all property interests (included in my estate for Federal Estate Tax purposes) which pass or have passed to my wife under any other article of this will or otherwise in such manner as to qualify for the marital deduction under the Federal Internal Revenue Code.
“Whenever used in this article, the words ‘adjusted gross estate,’ ‘marital deduction’ and ‘pass’ shall have the same meaning as same words have under the provisions of the Federal Internal Revenue Code applicable to my estate.
“Only assets which qualify for the marital deduction shall be allotted to such fractional share. However, the Executor is authorized to satisfy such gift in money or in kind, or partly in money and partly in kind; and if wholly or partly in kind, to select, transfer and convey to said Trustee the specific assets or asset so selected, provided, that any assets transferred in kind to satisfy said gift shall be valued for that purpose at the respective values thereof as finally determined for Federal Estate Tax purposes. Subject to the foregoing, the decision of the Executor as to which assets shall be binding and conclusive on all persons, and this gift shall carry with it (as income and not as corpus) its proportionate part of the income of the estate from the date of my death.
“ITEM V. All the rest and residue of my estate, after the payment of the specific bequests made herein and the devises and bequests set forth to my wife, I give, devise and bequeath to THE KENTUCKY TRUST COMPANY of Louisville, Kentucky, in trust, for the following uses: * *

Hurst asserts that these provisions of the T. Jeremiah Beam will require that assets set over to the widow or to the trust must be distributed with reference to the value for federal tax purposes and without reference to their value at the date of distribution of the value on that date differs from the value for federal estate tax purposes.

The co-executors contend that even though the assets ultimately allocated to Lucy Beam outright and to the trust are of equal value for federal estate tax purposes these assets must also be of equal value when eventually distributed.

The trial court entered a judgment, supported by adequate findings of fact and conclusions of law, directing that the co-executors distribute estate assets in satisfaction of the bequests under Item IV and Item V of the T. Jeremiah Beam will in a fair, impartial, and equitable manner so that all. distributions, including cash, shall be fairly representative of appreciation or depreciation in the value of all property, including cash, available for distribution.

The Court of Appeals affirmed. We granted Hurst’s motion for discretionary review and now affirm the decision of the Court of Appeals and affirm the judgment of the Jefferson Circuit Court.

A resolution of the issues advanced by the parties to this proceeding requires a reexamination of the duties and obligations of a fiduciary (the eo-executors) in dealing with the various beneficiaries named in the will of T. Jeremiah Beam. Of necessity, this requires an analysis of the pertinent clauses of the will correlated with the exercise of the duties of the fiduciary within the context and meaning of Item IV and Item V of the will.

The courts have consistently refused to restrict the right of a testator to decide who will be his beneficiaries and what part of his estate each will receive. However, when a fiduciary, in the exercise of his discretion, is vested with the authority to distribute the assets of an estate, he is required to exercise his discretion fairly.

It has been the duty of fiduciaries for centuries to deal fairly and impartially with all beneficiaries. This basic concept and rule is stated in Restatement of Trusts, 2d, Section 183, as follows:

“Where there are two or more beneficiaries of a trust, the trustee is under a duty to deal impartially with them.”

The will of T. Jeremiah Beam clearly establishes his intent to give his widow, Lucy Beam, one half of the “adjusted gross estate,” the amount necessary to get the maximum “marital deduction” for the federal estate tax. Internal Revenue Code, Sec. 2056. Cf. Lincoln Bank & Trust Company v. Huber, Ky., 240 S.W.2d 89 (1951).

At first glance, it would be presumed that a clause simply leaving one half of “my estate” to the testator’s spouse would be sufficient. However, assets such as life insurance and jointly owned property are not parts of the probate estate. As a result of these differences, so-called “formula clauses” were worked out to be sure that the spouse received the full marital deduction and no more. This procedure was followed so as not to make the marital deduction portion any larger than what is needed to save the maximum taxes at the death of the testator, since that part will be subject to death taxes at the date of the death of his spouse.

The ultimate result of Hurst’s argument would permit a fiduciary to favor one beneficiary to the detriment of the other. For example, the value of two particular items for federal estate tax purposes might be equal. Yet, upon ultimate distribution, one of these items may have become completely worthless, while the value of the other may have appreciated tenfold.

Thus, a distribution of the worthless item to Lucy Beam would not only completely frustrate the obvious intent of the testator but would clearly constitute an abuse of the discretion vested in the fiduciary. After all, T. Jeremiah Beam wanted Lucy Beam to receive a total of one half of his estate, and this purpose can only be accomplished by taking into consideration the appreciated value and depreciated value of all assets at the time of distribution.

The co-executors of the T. Jeremiah Beam estate are required by Kentucky law of long standing to obtain for beneficiaries that which the testator wished them to have. Nothing less will satisfy the law’s requirements.

In Cromie v. Bull, 81 Ky. 646 (1884), the court, in delineating the duties of a fiduciary, said:

“That courts of equity can and will interfere to prevent the improper exercise of a discretionary power is a doctrine well understood.
“It is difficult, in fact, to create a trust where the trustee has such unlimited power over the trust property as to preclude the chancellor from controlling his actions, when his conduct is such as to indicate a palpable or fraudulent abuse of his power to the injury of the parties in interest.”

The discretionary grant of authority at issue in McFerran v. Fidelity Trust Company, 140 Ky. 536, 131 S.W. 393 (1910), provided:

“I have vested in him the largest and uncontrolled discretion and I insist that by discretion I mean his own uncontrolled notion and conclusion of what he thinks best.”

However, the court did not hesitate to intervene and, in so doing, said:

“The trustee is given by the will a broad discretion; still it is not an arbitrary discretion, but is a sound discretion. The trustee must not violate the terms of the trust, or so act as to defeat its purposes. A court of equity will interfere at the instance of the parties in interest for the benefit of the trust estate, and prevent the trustee from doing that which is calculated to defeat the purposes of the trust.”

Finally, the magnitude of a court’s authority to intervene and act is clearly stated in Carlick v. Keiler, Ky., 375 S.W.2d 397 (1964), in these words:

“The Court’s jurisdiction to enforce trusts should and does include the power to vary details of administration which the set-tlor has prescribed in order to secure the most important result, namely, to obtain for the beneficiaries the advantages which the settlor stated he wished them to have.”

See also Alexander v. Hicks, Ky., 488 S.W.2d 336 (1972); Russell v. Princeton Laboratories, Inc., 50 N.J. 30, 231 A.2d 800 (1967).

The United States Tax Court, in the case of Hamelsky, 58 T.C. 741 (1972), had before it a will in which the marital deduction clause read in part as follows: “The payment of this amount may be made wholly or partly in cash or property as selected by him, provided, however, that all such property so selected shall be valued at the value finally determined for Federal Estate Tax purposes in my estate . . . . The exercise of the foregoing power and discretion by the Executor shall not be subject to question by any beneficiary . . . .”

Of this clause the court said:

“Section 2.02 of Rev.Proc. 64-19 recognizes that where the executor has imposed upon him either by the instrument or by State law, the duty to distribute assets, including cash, fairly representative of appreciation or depreciation in the value of all property available for distribution, the marital deduction is determinable. Under the laws of the State of New Jersey, the executor is restrained in the exercise of any discretionary powers invested in him. Russell v. Princeton Laboratories, Inc., 50 N.J. 30, 231 A.2d 800 (1967). This Court is of the opinion that New Jersey law clearly imposes upon the executor the duties enumerated by Rev.Proc. 64-19.”

The co-executors of the will of T. Jeremiah Beam are required to divide the appreciated or depreciated assets in satisfaction of Item IY and Item V of the will fairly, impartially, and equitably so that all distributions in satisfaction of the bequests under Item IV and Item V of the last will and testament of T. Jeremiah Beam will be fairly representative of appreciation or depreciation in the value of all property available for distribution.

The decision of the Court of Appeals is affirmed, and the judgment of the Jefferson Circuit Court is affirmed.'

All concur.


source: Caselaw Access Project

author: LESTER, Judge.

license: Public Domain

text:
    Johnny DELAY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 27, 1977.
    Rehearing Denied Sept. 23, 1977.
    Discretionary Review Denied Feb. 13, 1978.

      Jack Emory Farley, Public Defender, Kevin McNally, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Mark F. Armstrong, Asst. Atty. Gen., Frankfort, for appellee.
    Before HOGGE, LESTER and WHITE, JJ.
   LESTER, Judge.

This appeal arises out of appellant’s indictments for burglary in the third degree and theft by unlawful taking of a value in excess of one hundred dollars which resulted in convictions and a two year sentence.

Six assignments of error are argued by the defendant below, some of which can be disposed of summarily.

Subsequent to the selection of the jury but prior to their being sworn, the trial judge recessed the proceedings without rendering the usual admonition required by RCr 9.70 but there is no suggestion or showing of prejudice to appellant so this technical omission was harmless error. RCr 9.24; Daniels v. Commonwealth, Ky., 404 S.W.2d 446, 447 (1966).

The Commonwealth elicited upon direct examination of a deputy sheriff the comments made to that officer by several people which implicated the defendant and this is urged upon us as grounds for reversal. Objection was sustained and the jury admonished concerning the deputy’s relating what one Bobby Rogers said while the other individuals did appear to testify and were cross-examined. Where there is no objection made to testimony which may be erroneous, then it is not the proper subject for appellate review, Patrick v. Commonwealth, Ky., 436 S.W.2d 69 (1968). Moreover, we do not believe the officer’s evidence was prejudicial since the witnesses related essentially the same stories on the stand and were subject to cross-examination, Barnes v. Commonwealth, Ky., 459 S.W.2d 607 (1970). Any slight deviations between the deputy sheriff's version and those of the witnesses were favorable to the defendant.

We reject the almost thirteen pages of appellant’s several briefs devoted to a critical analysis of trial defense counsel’s ineffectiveness because in the first place, we do not find him to be inept and secondly, as we have so often stated before, unless the appellant makes known to the trial court his complaint of ineffective legal assistance, either during the proceedings below or as a ground for a motion for a new trial, then that argument is not preserved for appellate review. RCr 9.22. The Supreme Court enunciated this principle in Foster v. Commonwealth, Ky., 507 S.W.2d 443, 445 (1974) and this court did likewise in Jennings v. Commonwealth, Ky.App. (1977).

The most difficult issue presented for our determination is the question of whether Delay should have been granted a hearing to determine his competency to stand trial. On September 25, 1975, an order was entered upon the arraignment designating the Hon. H. K. Spear as “court appointed legal counsel for arraignment only.” Moreover, the printed form of order also contained the following hand written entry: “The defendant Johnny Delay stated that he had been in hospital while in service for a head injury. That his memory was impaired.” After the Commonwealth had rested, the defendant took the stand and attempted to introduce testimony as to a head injury and the resultant condition, namely, amnesia and blackouts as well as medical reports in support thereof. The prosecution objected upon the basis that the written notice of the defense of insanity required by KRS 504.050 had not been served which objection was sustained. The oral and documentary evidence appears in the record by way of avowal. The diagnosis of Delay’s condition as of November 4, 1974, was “Demintia (sic), depression, organic psychosis, chronic recurrent headaches and syncopy (sic) secondary to skull fracture and concussion” which amounted to alleged amnesia and blackouts. We note that the trial was held in 1976. Appellant argues that in spite of the fact that no motion was made, the court should have conducted a separate hearing to determine defendant’s competency to stand trial as soon as it became aware that he might be unable to do so as is provided in RCr 8.06. Appellant makes no effort to employ insanity as a defense and therefore, contends that KRS 504.050 is not involved. On the other hand, the defendant below takes the position that he is entitled to the procedures provided for in the rule.

Via v. Commonwealth, Ky., 522 S.W.2d 848 (1975) instructs that if facts known to the trial court raise a substantial doubt of the defendant’s mental capacity, RCr 8.06 demands that the proceeding be postponed until a hearing be held to determine whether the defendant comprehends the nature and consequences of the proceedings against him and can participate rationally in his defense. Under these circumstances, failure to move for a hearing does not constitute a waiver. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). Although the appellant apprised the trial court that he had spells of amnesia as a result of a head injury in 1974, this, by itself, would not be sufficient to raise a substantial doubt of the appellant’s competency to stand trial in 1976. In our opinion, it would be improvident to extend Via, supra, to the case at bar. In Via, the defendant had little contact with present reality. She thought a group which included her psychiatrist conspired to kill her. Of course, this information provided the trial court with reasonable grounds to believe the defendant lacked the necessary mental capacity for trial and its failure to hold an evidentiary hearing on this question denied the defendant due process of law. Nothing we have seen here amounts to reasonable grounds to believe the appellant incapable of understanding the nature and the consequences of the charges against him and participating rationally in his defense.

The judgment is affirmed.

All concur.


author: HAYES, Judge.

text:
    Eugene ADAMS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 17, 1977.
    Rehearing Denied Sept. 30, 1977.
    Rehearing En Banc Denied Oct. 7, 1977.
    Discretionary Review Denied Feb. 13, 1978.

      Jack Emory Farley, Public Defender, Commonwealth of Kentucky by Edward C. Monahan, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen. by B. F. Radmacher, .III, Asst. Atty. Gen., Frankfort, for appellee.
    Before HAYES, HOWARD and WIN-TERSHEIMER, JJ.
   HAYES, Judge.

Eugene Adams appeals from a judgment entered on a verdict finding him guilty of the crime of Robbery in the Second Degree (KRS 515.030) and fixing his punishment at the minimum of five (5) years in prison.

Adams contends:

(1) The trial court erred in instructing the jury.

(2) There was not sufficient evidence to support a conviction.

(3) The jury also convicted the defendant of theft, which is a lesser included offense of robbery, and it is not permissible to convict on both robbery and theft.

(4) The trial court failed to follow the presentencing procedures required by KRS 532.050 and KRS 533.010.

The only witness for the commonwealth was the victim, C. M. Reynolds. The defendant presented himself and seven (7) other witnesses, all of whom testified as to an alibi for Adams. Reynolds testified several times that Adams was one of his assailants and on cross-examination, Reynolds stated that Adams even told him his true name before the robbery. In holding that the uncorroborated testimony of the victim of the robbery was sufficient to sustain a conviction, the Court of Appeals in LaVigne v. Commonwealth, Ky., 353 S.W.2d 376, 378 (1962) stated:

It is the general rule that neither the trial judge, nor this court in its review of the case on appeal, may pass upon the credibility of the witnesses or determine the weight to be given their testimony. That is to say, the trial judge may not take from the jury a controverted question of a material fact, and this court may not reverse the judgment merely because the proof is inconsistent, even though either court, if it had sat as a jury in that particular case, would have acquitted the defendant. (Emphasis Ours)

We hold that it was the prerogative of the jury to believe Reynolds’s testimony rather than Adams and his seven (7) witnesses. We know of no law requiring an equal number of witnesses in order to lend credibility to one side or the other. Nor can we state that Reynolds’s testimony was insufficient to support a conviction of Adams.

Adams’s contention that the instruction on Second Degree Robbery was erroneous has not been preserved for review by this court since appellant’s counsel did not comply with RCr 9.54(2). The instruction was taken almost verbatim from Palmore, Kentucky Instructions to Juries, Sect. 4.21 (1975). The instruction as written by Pal-more is erroneous in that it does not follow KRS 515.030 and contain the phrase “with intent to accomplish the theft”.

The appellant was entitled to an instruction on Robbery in the Second Degree only and not to an instruction on theft as given by the trial court. Adams’s defense was an alibi, denying he had ever seen the victim before. Reynolds testified as to the force used by his assailants. It was error to instruct the jury on theft and was error for the jury to convict on theft and robbery, when theft is a lesser included offense of robbery. However, since the appellant wasn’t entitled to an instruction on theft in any case, and the trial court later dismissed the theft conviction, we fail to see how the appellant was prejudiced. We are unwilling to say that the giving of the theft instruction and the resulting guilty verdict were so prejudicial to Adams’s substantial rights as to compel the reversal of the judgment, for it is apparent that the same verdict on the robbery charge, the proper charge, would have been returned in any case.

We cannot find in the record any compliance with the mandatory statutory provision clearly set forth in KRS 532.050 and KRS 533.010. See also Brewer v. Commonwealth, Ky., 550 S.W.2d 474 (1977), 24 K.L.S. 1, Pg. 3. Therefore, the judgment will have to be vacated and the case remanded to Lincoln Circuit Court for resen-tencing after there has been a compliance with the above mentioned statutes.

All concur.


text:
    Eric BRYAN, a minor, by his mother and next friend, Delores Jean Bryan, and Dolores Jean Bryan, Appellants, v. Matt BEAR, Appellee.
    Court of Appeals of Kentucky.
    Sept. 9, 1977.
    Discretionary Review Denied Feb. 13, 1978.

      Stanley R. Hogg, Creech, Hogg & Williams, Ashland, for appellants.
    Charles M. Daniels, Greenup, for appellee.
    Before HOGGE, HOWARD and LESTER, JJ.
   LESTER, Judge.

The trial court sustained appellee’s motion for summary judgment and although not required to do so, CR 52.01, the court made findings of fact and conclusions of law.

On July 15, 1971, Walter Bear, a youth under the age of eighteen, had a one day job assisting his neighbor, Robert Logan, in digging a ditch, and during the course of the work, it became necessary for Walter to go to his home to get a shovel. The young man took Logan’s truck and in performing the errand, he struck and injured appellant, Eric Bryan. The record discloses that Logan has liability insurance on his vehicle and that the appellee, as father of Walter, had signed the application for his son’s driver’s license pursuant to KRS 186.470. Appellants filed their complaint against Walter Bear, Logan and appellee with Matt being made a party defendant under the allegation that he was jointly and severally liable along with his son under the provisions of KRS 186.590(1). Matt denied the allegations. Logan’s insurance carrier, on behalf of their insured and Walter, settled with plaintiffs but said agreement, as approved by the court, reserved all claims as against Matt. Depositions were taken wherein we learn, among other facts, that both Logan and the elder Bear carried insurance on their respective vehicles. Appel-lee then filed motion for summary judgment and as a basis therefore, recites KRS 186.590(2) which states:

(2) If a minor deposits or there is deposited in his behalf, a proof of financial responsibility in form and amounts required by KRS Chapter 187, the person who signed the application shall not, while such proof is maintained, be subject to the liability imposed by subsection (1). If the minor is the owner of a motor vehicle, the proof of financial responsibility shall be with respect to the operation of that motor vehicle; if not an owner, then with respect to the operation of any motor vehicle.

Argument was heard upon the motion resulting in its being sustained but the record does not contain what points were made before the court below.

Compliance with the statute recited above is accomplished by filing with the appropriate agency a form designated as SR 21 which has the effect of relieving the party who signed the minor’s application for an operator’s license from liability as provided by subsection one of the statute. We do not believe that the major purpose of the statute is the filing of a form but rather the acquisition and maintenance of a policy of insurance covering the minor at all times while operating a motor vehicle. What matters is the ability to respond in damages for liability and notice of that ability is a secondary consideration. Appellants contend that the failure of appellee to place in the record a copy of the SR 21 would have the effect of prohibiting the circuit court from granting summary judgment to defendant below thus causing Matt to be liable for Walter’s damages. As noted above, we do not have the benefit of the arguments to the trial court but Judge Sam-mons made very definite findings of fact on this matter upon which he based his conclusion of law which we quote in their entirety:

I
That the Defendant, Matt Bear, signed the Application of the Defendant, Walter Bear, to obtain a license to operate a motor vehicle pursuant to KRS 486.470[186.470] prior to July 15,1971, the date of the automobile accident alleged in the Plaintiff’s Complaint, and that at the time of said collision, said Walter Bear was operating a motor vehicle, which was the property of the Defendant, Robert Logan, upon which there was liability insurance, and that a SR 21 has been filed by Kentucky Farm Bureau Insurance Company on behalf of said Walter Bear under the Policy of the said Robert Logan.
No genuine issue exists as to any material facts concerning this question.
CONCLUSION OF LAW
That the Defendant, Matt Bear, is not subject to the liability imposed by Subsec-, tion 1, KRS 186.590, since proof of financial responsibility required by KRS Chapter 187 was filed on behalf of Walter Bear by Kentucky Farm Bureau Insurance Company, liability carrier of Robert Logan.

Appellants urge that proof of financial responsibility must be deposited prior to any accident in order to relieve the signer of the application but proof of financial responsibility means proof of ability to respond in damages for liability and in the present case, what better proof could be had than the fact that Walter did respond in damages. We think the only reasonable interpretation of the language “on account of accidents, occurring, subsequent to the effective date of said proof” contained in KRS 187.290(10) to mean the effective date of the insurance policy and not the date some form may have been filed. Moreover, KRS 186.590(2) does not make it mandatory that the person signing the license application file proof of responsibility for it says “(i)f a minor deposits or there is deposited in his behalf . . ” which we do not translate into requiring the party signatory as being required to make the deposit even though that act relieves him or her of liability.

Even though the Greenup Circuit Court was not required to make findings of fact and conclusions of law when motion was made pursuant to CR 56.02, nevertheless, it did after the submission of depositions and oral argument. In such a situation, we are not constrained by the “clearly erroneous” test set forth in CR 52.01 but we can see no reason to disturb the conclusions reached especially in light of what we have said in this opinion.

We are not unsympathetic with the injuries sustained by Eric Bryan but we do not believe that the theories of law presented permit recovery from the insurance carriers of both Logan and Bear.

The judgment of the Greenup Circuit Court is affirmed.

All concur.


text:
    Marion COLLINS, Appellant, v. CASTLETON FARMS, INC. and Travelers Indemnity Company and Kentucky Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Sept. 16, 1977.
    Discretionary Review Denied Feb. 13, 1978.
    Robert S. Walker, III, Brown, Sledd & McCann, P.S.C., Lexington, for appellant.
    Thomas M. Cooper, Landrum, Patterson & Dickey, Lexington, for appellees.
    Before GANT, HAYES, and HOWER-TON, JJ.
   HAYES, Judge.

In an opinion and award dated February 9, 1976, the Workmen’s Compensation Board held that appellant, Marion Collins, is 100% disabled and awarded him $50.60 per week for so long as he is disabled. This decision was appealed to the Fayette Circuit Court where it was reversed and remanded to the Board with directions to dismiss. On appeal to this court, appellant contends that there was substantial evidence to support the Board’s award, and therefore, the order of the Circuit Court was in error. This court, however, does not agree and affirms that decision.

On December 18, 1973, appellant allegedly slipped and fell while working for the appellee, Castleton Farms, Inc. Appellant testified that he fell upon a concrete foundation and injured his back. Eventually, appellant was hospitalized with a severe sprain but was later released with permission to return to work. Appellant, however, returned to work for only four hours. Thereafter, appellant filed this claim with the Board.

The proof for appellant consisted of his testimony and that of three physicians. Appellant’s treating physician stated that appellant had sustained a severe sprain but concluded that appellant had no permanent injury. The other two doctors testified as to possible neurological and psychological injuries although their determinations were based primarily upon statements made by appellant. To rebut this evidence, appellee, Castleton Farms, introduced testimony that appellant had done heavy labor during the time he stated he was disabled. In addition, there was testimony of two witnesses that appellant had planned his accident as a scheme to make money. This proof was uncontradicted.

In its opinion, the Board chose not to believe these two witnesses, although no reasoning was given. The Circuit Court in reversing this opinion, was impressed with the fact that this evidence was uncontra-dicted. The court concluded that this un-contradicted evidence and the evidence of heavy labor by appellant were sufficient to deny appellant’s claim.

The sole issue on appeal is whether there was substantial evidence to support the decision of the Board. KRS 342.285(3) and Armco Steel Corporation v. Mullins, Ky., 501 S.W.2d 261 (1973). Appellant contends that the Circuit Court violated these guidelines by weighing the evidence and substituting its judgment for that of the Board.

When the Circuit Court placed emphasis upon the evidence put forward by the appellee, it was not weighing the evidence but merely determining the legal effect of this uncontradicted proof. In 3 A. Larson, Workmen’s Compensation Law § 80.20 (9th ed. 1976) the author states the following:

The Commission may even refuse to follow the uncontradicted evidence in the record, but when it does so, its reasons for rejecting the only evidence in the record should appear — e.g., that the testimony was inherently improbable, or so inconsistent as to be incredible, that the witness was interested, or that his testimony on the point at issue was impeached by falsity in his statements on other matters. Unless some explanation is furnished for the disregard of all uncontra-dicted testimony in the record, the Commission may find its award reversed as arbitrary and unsupported.

The Board in this case did not state its reasons for rejecting the uncontradicted evidence put forward by appellee. The Circuit Court, therefore, applied the law of this state as regards uncontradicted evidence—American Bridge Co. v. Reit, 303 Ky. 795, 199 S.W.2d 447 (1947). This court can find no error in this determination.

Nevertheless, appellant states "that he should have been given notice that ap-pellee, Castleton Farms, intended to present an affirmative defense. This court, however, does not consider the evidence presented to be in the nature of an affirmative defense. Even if it were an affirmative defense, the issue was tried by implied consent of parties since appellant failed to object to the evidence presented by appellee. CR 15.02 and Warren County Airport Board v. Long, Ky., 364 S.W.2d 167 (1962). Judgment affirmed.

All concur.


author: VANCE, Judge:

text:
    Betty ROTH et al., Appellants, v. INVESTMENT PROPERTIES OF LEXINGTON, INC., Appellee.
    Court of Appeals of Kentucky.
    Jan. 6, 1978.

      H. Lawson Walker, II, Riggs & Riggs, Erlanger, for appellants.
    R. David Clark, Boehl, Stopher, Graves & Deindoerfer, Lexington, for appellee.
    Before HAYES, REYNOLDS and VANCE, JJ.
   VANCE, Judge:

Appellants’ room at the Campbell House Inn in Lexington, Kentucky, owned and operated by appellee, was burglarized and money, credit cards, identification papers and other valuables were stolen. This action was instituted to recover the value of the stolen property. Appellee counterclaimed for the amount of the hotel bill.

Appellee posted in each of its guest rooms, including the room occupied by appellants, a printed notice that the Inn would not be responsible for loss of money, jewelry, or other valuables unless they were deposited in the hotel office and a receipt obtained therefor. There was likewise posted in each room a printed copy of former Kentucky Statutes, Section 2176, which exempted an innkeeper from liability for loss of a guest’s property provided the innkeeper maintained a safe or vault for safekeeping and posted copies of the statute in the various public and private rooms of the Inn.

The registration cards of the Inn also contained a printed notice that the Inn would not be responsible for loss of money, jewels and other valuables not deposited in the safe in the office.

Summary judgment was granted to ap-pellee on appellants’ claim on the basis of KRS 306.020(1) which exempts an innkeeper from liability for loss of a guest’s valuables if the innkeeper provides a safe for the safekeeping of the valuables and further posts a copy of the statute in a conspicuous place in the public rooms and office of the Inn notifying guests that a safe is provided in which their valuables may be deposited.

The appellee did not strictly comply with the statute. It did not post notice in the office and public rooms of the Inn, but posted the notice on the doors of each private room instead. It did not post a copy of the statute, but did post a copy of a previous statute, the import of which was almost identical.

Appellants contend that at common law an innkeeper was practically an insurer of the property of his guest and that because KRS 306.020 is a statute in derogation of the common law it must be strictly construed. Although strict construction of statutes in derogation of the common law is a widely used principle of law, appellants cite no authority that it is the rule in Kentucky. KRS 446.080(1) provides as follows:

All statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature, and the rule that statutes in derogation of the common law are to be strictly construed shall not apply to the statutes of this state.

We conclude that the intent of the legislature was to exempt an innkeeper from liability for loss of the property of a guest if the innkeeper provides a place for safekeeping which the guest does not utilize and provided further that the innkeeper gives reasonable notice to the guests of the availability of the place of safekeeping and the fact that the statute exempts the innkeeper from liability if the guests fail to use the safekeeping facilities.

We think that the trial judge correctly held, as a matter of law, that the notice posted by appellee in each room offered more assurance that it would be seen than would a notice posted in the lobby or office. The appellee sufficiently complied with the intent of KRS 306.020(1) and is entitled to claim its protection as a defense. KRS 306.020 has been held constitutional in Milner Hotels, Inc. v. Lyon, 302 Ky. 717, 196 S.W.2d 364 (1946).

The summary judgment in favor of ap-pellee for the hotel bill is not attacked on this appeal.

The judgment is affirmed.

All concur.


author: GANT, Judge.

text:
    Charles H. MUSSER, Appellant, v. LEON COAL PROCESSING CO., INC., City of Ashland Building Inspector, Kenneth Staten, Ashland Board of Zoning Adjustment, Charles Frasure, Paul W. Miller, John Artis, Jr., Homer Adams, and Karl Bradley, members, Appellees. Charles H. MUSSER, Appellant, v. KENTUCKY HIGHLANDS RIVER COAL COMPANY, INC., Leon Coal Processing Company, Inc., City of Ashland, Kentucky, James J. Webb, Mayor, William Mordica, Jerry Clark, Myron Bates, Donald Wade, Kenneth Staten, respectively the Board of Commissioners and Building Inspector, City of Ashland, the Ashland Planning Commission, Ashland, Kentucky, Board of Zoning Adjustment, Ashland, Kentucky, Mr. and Mrs. George Arrington and Mr. and Mrs. Sam Picklesimer, Appellees.
    Court of Appeals of Kentucky.
    Jan. 6, 1978.

      C. B. Creech, Creech, Hogg & Williams, Ashland, for appellant.
    Michael D. Johnson, Ashland Corporate Counsel, Ashland, Vanantwerp, Hughes, Monge & Jones, Ashland, White, Peck & Carrington, Mount Sterling, for appellees.
    Before GANT, HOWERTON and WHITE, JJ.
   GANT, Judge.

Appellee, Leon Coal Processing Co., through an agent applied to the City of Ashland Planning Commission to rezone a tract of land in that city from 1-1 (light industrial) to 1-2 (heavy industrial) in order to construct a coal loading facility. This application was duly advertised, complying with the public notice requirements of Chapter 424 of the Kentucky Revised Statutes, giving notice that a hearing on the application would be held on May 21, 1974. At that hearing the application was considered and no one appeared in opposition to the application. The agent presented the application, the accompanying plats indicating that the contiguous property was already zoned 1-2. The minutes of the hearing further reflect that the failure to previously so zone the tract in question was an oversight, as other areas in the vicinity had been changed. The application was unanimously approved.

On May 23, 1974, the Planning Commission notified the Mayor and Board of Commissioners of their action and that group adopted Ordinance 17-1974 rezoning the property and directing that the zoning map be changed accordingly. This ordinance was enacted May 28, 1974, again with no one appearing in opposition. In December, 1974, and April, 1975, appellee Leon Coal Processing Co. received building permits to construct its coal loading facility, at which time appellant went before the Board of Zoning Adjustment to complain, which body denied relief, finding that the permits were proper under the 1-2 classification.

Appellant brought these two actions in May of 1975, urging (1) that the land use change was made without adjudicative hearing and thus void; and (2) that no building permit should be issued under a void ordinance. Appellees rely on KRS 100.347 as a bar to (1) and further state that the statutes requiring hearing and findings were substantially complied with. KRS 100.347 states as follows:

Appeals from commission or board of adjustment. — Any appeal from commission action may be taken in the following manner:
(1) Any person or entity claiming to be injured or aggrieved by any final action of the planning commission or board of adjustments may appeal from the action to the circuit court of the county in which the land lies. Such appeal shall be taken within thirty (30) days after the final action of the commission or board. Final action shall not include commission’s recommendations made to other governmental bodies.
(2) All appeals shall be taken in the appropriate circuit court within thirty (30) days after the action or decision of the planning commission or board of adjustments and all decisions which have not been appealed within thirty (30) days shall become final. After the appeal is taken the procedure shall be governed by the Rules of Civil Procedure. When an appeal has been filed, the clerk of the circuit court shall issue a summons to all parties, including the planning commission in all eases, and shall cause it to be delivered for service as in any other law action.

It is clear from this statute that the “final action” set out in the statute is the passing of the ordinance effecting the change by the legislative body as the statute excludes “recommendations.” Only the legislative body is empowered to implement its decision in the case of a map amendment and final action results only when the may- or and commissioners approve the recommendation of the Commission. See Tarlock, Kentucky Planning and Land Use Control Enabling Legislation: An Analysis of the 1966 Revision of KRS Chapter 100, 56 Ky. L.J. 556, 624. Final action was taken on May 28, 1974, and the action questioning its validity was not filed until May 5, 1975, almost one year later and far past the 30 days provided by KRS 100.347. The court has previously held in Oeth v. Felty, Ky., 421 S.W.2d 860 (1967) that four months was too late.

The action filed to complain of the building permits is nothing but a collateral attack. Quoting from Rathkopf, The Law of Zoning and Planning, Chapter 63, § 3, “Where the time to bring a proceeding to review has expired, the person aggrieved by the decision cannot secure to himself an additional period by bringing a collateral attack upon the decision . . . ”

For the reasons set out herein, judgment in each case is affirmed.

All concur.


author: HOWARD, Judge.

text:
    Edward S. THOMAS, Jr., Appellant, v. Stanton FERGUSON, Jr., Appellee.
    Court of Appeals of Kentucky.
    Jan. 13, 1978.
    Richard D. Heideman, Thomas A. Dock-ter, Louisville, for appellant.
    Ronald V. Simpson, Louisville, for appel-lee.
    Before HOWARD, REYNOLDS and WILHOIT, JJ.
   HOWARD, Judge.

This case involves a cause of action asserted under the Motor Vehicle Reparations Act by the driver of an uninsured automobile as against the adverse driver. The trial court granted summary judgment in favor of appellee, the adverse driver.

Appellant, Edward S. Thomas, Jr., is uninsured in violation of KRS 304.39-010. All persons who register, operate, maintain or use a motor vehicle on the public roadways of this Commonwealth are deemed to have accepted the provisions of the act. KRS 304.39-060(1). The constitutionality of the act was upheld in Farm v. McGuffey, Ky., 534 S.W.2d 770 (1975).

Tort liability with respect to accidents occurring in this Commonwealth arising from the ownership, maintenance, or use of a motor vehicle is abolished, with exceptions which were not proven in the present case, for damages because of bodily injury to the extent that basic reparation benefits provided by the act are payable therefor. KRS 304.39-060(2)(a)(b).

KRS 304.39-310(2) provides that an owner who fails to have security as required under KRS 304.39-110 has the rights and obligations of a reparation obligor. However, the rest of that statute provides for the subrogation of any other reparation ob-ligor to the rights of the injured person against such owner. KRS 304.39-070(2) provides that a reparation obligor shall not be subrogated to a secured person. Here appellee is such a secured person. KRS 304.39-310(2), in our minds, contemplates the injured person not being the uninsured motorist. Even assuming that is not so, KRS 304.39-070(2) precludes appellant from subrogating himself against appellee.

KRS 304.39-050(1) provides that the security covering the vehicles occupied by the injured party is primary, and further that:

(2) If there is no security covering the vehicle, any contract of basic reparation insurance under which the injured person is a basic reparation insured shall apply.

In the present case, the appellant cannot be found to be a basic reparation insured of any policy.

By reason of KRS 304.39-160(4), appellant is precluded from participating in the assigned claims plan.

We do not feel that the public policy of the Commonwealth of Kentucky allows us to give this uninsured motorist a cause of action for personal injuries ,as against the adverse driver, an insured motorist. We are reminded of Justice Palmore’s comment, on page 777, of Fann v. McGuffey, supra:

The compulsory insurance aspect, about which there seems to be no legal question, is likely to rip off more skin than the limitation of tort rights.

The judgment of the trial court is affirmed.

All concur.


author: RENDLEN, Judge. SEILER, Judge,

text:
    MISSOURI CHURCH OF SCIENTOLOGY, Plaintiff-Appellant, v. STATE TAX COMMISSION of Missouri, J. E. Riney, Don G. Williams, Robert F. Love, Commissioners of State Tax Commission of Missouri, John K. Travers, Collector of Revenue, City of St. Louis, and Glenn J. McBrady, Assessor, City of St. Louis, Defendants-Respondents.
    No. 59551.
    Supreme Court of Missouri, En Banc.
    Dec. 19, 1977.
    Rehearing Denied Feb. 8, 1978.

      Alan C. Kohn, Thomas J. Frawley, St. Louis, for plaintiff-appellant.
    James J. Wilson, Associate City Counsel- or, St. Louis, for defendants-respondents.
   RENDLEN, Judge.

This proceeding arose with the addition of appellant’s tangible personal property to the tax rolls for the year 1974 by the St. Louis City Assessor. Obtaining no relief by successive appeals to the Board of Equalization and the State Tax Commission, appellant sought judicial review claiming exemption from ad valorem taxation under Mo. Const. Art. X, § 6, and § 137.100, on the ground its property was “used exclusively for religious worship”. No challenge is made to the assessed valuation of appellant’s property but only to the denial of the claimed exemption.

Generally the scope of judicial review for administrative agency decisions is limited to a determination of whether the order is supported by “competent and substantial evidence upon the whole record” as provided in § 536.140-2(3). However, this case does not involve the exercise by the agency of administrative discretion in the light of the facts under § 536.140-2, but only the application by the agency of the law to the facts, accordingly the court may weigh the evidence for itself giving due weight to the opportunity of the agency to observe the witnesses and to the expertise and experience of the Commission, § 536.-140-3. It is by this standard we examine appellant’s contentions of error.

In the hearing before the Commission twenty-two proposed exhibits had been marked and identified during testimony of the appellant’s sole witness though they were neither offered nor accepted as evidence by the Commission. Urging their consideration by this court, appellant cites Hilke v. Firemen’s Retirement System of St. Louis, 441 S.W.2d 730, 733 (Mo.App.1969) as authority for such consideration, however, we perceive factual differences distinguishing Hilke from the case at bar. There, in a claim for disability benefits, certain medical reports had not been properly offered before the Firemen’s Retirement System Board. On appeal the court stated: “Although the record does not show the reports were offered in evidence in ritualistic language, we hold that the method of putting them before the Board for its consideration fully met the less formal procedural requirements of an administrative hearing.” [l.c. 733] The items so considered, despite lack of formal offer, were medical reports prepared pursuant to the provisions of § 87.160.2, for the express purpose of informing the Board of the facts and the conclusions and recommendations of the medical examiners. It is clear the statute requiring the examining physicians to “report in writing to the board,” contemplated that the reports be available to assist the Board in its deliberation and equally important the Board and the parties intended the use of those reports as evidence. Those facts, not present here, were determinative of the issue. Though counsel for the Tax Commission stated to the trial court and to this court in oral argument he would not have objected to the introduction of the exhibits had they been offered, the fact remains they were not and no stipulation waiving objection to their consideration has been presented. The Commission had before it no offer of evidence nor objections thereto on which to rule, neither was the Commission apprised of counsel’s later announced attitude on the matter. Although technical rules of evidence are not controlling in administrative hearings, fundamental rules of evidence are applicable. State ex rel. Bond v. Simmons, 299 S.W.2d 540 (Mo.App.1957). Consistent with these holdings, § 536.070 provides in subsection 2 that “each party” in an administrative hearing “shall have the right ... to introduce exhibits.” (Emphasis ours.) No mention is made of other procedures for admission of exhibits as a part of the record in such proceedings except subsection 5 which provides that “Records and documents of the agency [which also must be offered in evidence] . . . may be considered as a part of the record by reference thereto when so offered,” (Emphasis ours). No provision is made that records of any other type may be received in this manner. While we do not suggest that parties may not stipulate for the admission of such proposed evidence and waive objection thereto, no authority appears for the course contended by appellant. The exhibits will not be considered a part of the record for review.

The Commission (whose extensive findings and conclusions are set out in the attached appendix) properly found the office equipment and furniture in question were “used in the promotion of the organization including such purposes as record keeping and providing mailings to the membership.” As to the religious nature of appellant, the Commission concluded that “while the appellant has some of the trappings and accouterments of an organized religion, it appears to be more an applied philosophy which has a certain religious connotation, but which falls short of being devoted to the worship of the Supreme Being, which this Commission concludes is necessary for the property owner to have its property considered exclusively for religious worship.” (Emphasis ours.) Further that “an applied religious philosophy” is not identical for purposes of exemption “with an organized religion devoted to religious worship.” The Commission then held: “The personal property of the appellant has not, therefore been shown to be used exclusively for reli‘gious or charitable purposes and therefore cannot be exempted from ad valorem taxation.”' Considering the findings and conclusions in their entirety and particularly those immediately above cited, it appears the order rests not on the lack of exclusivity or extent of use, but on the failure to show the character of the use as “for religious worship.” The Commission determined the statutory and constitutional phrases “used exclusively for religious worship” postulate more than an “applied philosophy which has a certain religious connotation”. It found the statute and constitution instead require a belief in and devotion to a Supreme Being. For reasons hereinafter discussed we affirm.

The term religious worship in the commonly accepted sense includes as a necessary minimum a belief in the Supreme Being of the universe. Generally religious worship is expressed by prayers, reverence, homage and adoration paid to a deity and include the seeking out by prayer and otherwise the will of the deity for divine guidance. Webster’s New World Dictionary of the American Language, Second College Edition, copyrighted in 1974, defines religion as “belief in a divine or superhuman power or powers to be obeyed and worshiped as the ereator[s] and ruler[s] of the universe; b) expression of such a belief in conduct and ritual.” “Worship” is defined as “reverence or devotion for a deity; religious homage or veneration; b) a church service or other right showing this.” In Webster’s Third New International Dictionary, copyrighted 1976, religion is defined as “the personal commitment to and serving of God or a God with worshipful devotion, conduct in accord with divine commands esp. as found in accepted sacred writings or declared by authoritative teachers, a way of life recognized as incumbent upon true believers, and typically the relating of oneself to an organized body of believers.” Another definition suggested is “a personal awareness or conviction of the existence of a supreme being or supernatural powers or influences controlling one’s own, humanity’s, or all nature’s destiny.” In this authority worship is defined as “the reverence or veneration tendered a divine being or supernatural power; also: an act, process, or instance of expressing such veneration by performing or taking part in religious exercises or ritual.” Other dictionaries consulted provide similar definitions.

In 1890 the United States Supreme Court' stated “The term ‘religion’ has references to one’s view of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will.” Davis v. Beason, 138 U.S. 333, 342, 10 S.Ct. 299, 300, 33 L.Ed. 637 (1890). Similarly the Oklahoma Court of Criminal Appeals in McMasters v. State, 21 Okl.Cr. 318, 207 P. 566 (1922) defined religion as “all forms of belief in the existence of superior beings, exercising power over human beings by volition, imposing rules of conduct with future rewards and punishments.” Justice Hammer in Nikulnikoff v. Archbishop and Consistory of Russian Orthodox Greek Catholic Church, et al., 142 Misc. 894, 255 N.Y.S. 653 (1962) described the term as “a bond uniting man to God and a virtue whose purpose is to render God the worship due him as the source of all being and the principle of all government of things.” Mr. Justice Hughes in his dissent in United States v. Macintosh, 283 U.S. 605, 633, 51 S.Ct. 570, 578, 75 L.Ed. 1302 (1931) (the dissent involved another issue) stated: “The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation.” Joining in this dissent were Holmes, Stone and Brandéis. Hughes’ isolation and identification of the indispensable ingredient of religion remains a basic guide in this area of the law. When considering the exemption provisions of the Selective Training and Service Act of 1940 for those conscientiously opposed to participation in war “by reason of religious training and belief” the 9th Circuit in Berman v. United States, 156 F.2d 377 (9th Cir. 1946) after citing the above quoted phrase on the essence of religion from Macintosh stated: [l.c. 380]

“It is our opinion that the expression, ‘by reason of religious training and belief’ is plain language, and was written into the statute for the specific purpose of distinguishing between a conscientious social belief, or a sincere devotion to a high moralistic philosophy, and one based upon an individual’s belief in his responsibility to an authority higher and beyond any worldly one. . . .We are not saying that man’s comprehension of religion is static and remains today the same as a short hundred and fifty odd years ago in the area of our constitution-making. . . . Nature and God seem so close to Oneness that some thinkers blend them inseparately.”

Commenting on the nature of religion the court stated, it “involves a process of vital and reciprocal interplay .‘between the human and the supernatural.’ ” More recently the Supreme Court of Kansas in Board of Trustees of the Kansas East Conference of the United Methodist Church v. Cogswell, 205 Kan. at page 847, 473 P.2d at page 1 (1970), adopted and applied the definition of religion enunciated in Davis v. Beason, supra, as that intended by the Kansas constitutional and statutory provisions permitting tax exemption for “all property used exclusively for religious purposes.”

The Supreme Court in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965), (urged as authority for reversal by appellant) interpreting the Universal Military Training and Service Act and claimed exemptions by conscientious objectors under § 6-J, when reversing the convictions, addressed the meaning of the expression “religious training and belief” as used in the Act. The Act exempted those who opposed participation in war by reason of their “religious training and belief” and the court pointed out that the Act defined that phrase as “an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but [not including] essentially political, sociological, or philosophical views or a merely personal moral code.” [l.c. 165, 85 S.Ct. 853] The court observed that Congress had adopted by this definition the language of Chief Justice Hughes in United States v. Macintosh, supra, but substituted the phrase “Supreme Being” for the “Appellation God”. The Seeger court, however, construed this substitution of terms as license to extend the Congressional intent to include a definition of “belief in a Supreme Being” as follows: “It is essentially an objective one, namely, does the claimed belief occupy the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption.”

Though announcing this diluted version as the intended legislative meaning of “religious . . . belief”, the court nevertheless acknowledged that Congress had referred in the Act to “this higher authority”, [l.c. 175, 85 S.Ct. 850] The Seeger definition is not one of constitutional construction but of statutory interpretation neither controlling nor persuasive here for a number of reasons. Contrary to this appellant’s argument that the Court in effect excised the concept of a Supreme Being from “religion” it can reasonably be said that when the court spoke of “claimed belief” as occupying “the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption,” (Emphasis ours), the term necessarily includes God or Supreme Being. This because the “claimed belief” must equate qualitatively and quantitatively with the place God holds in the life of one clearly qualified for exemption (e. g., a devout member of the Society of Friends) and such would require a devotion to God (or an equivalent) accompanied by a divinely inspired rejection of violence in the form of war. It is against this or a similar orthodox standard of another “clearly qualified for exemption” that an objector’s “claimed belief” must measure. In the alternative, Seeger may be said to mean that the “claimed belief” occupies the same place in the life of the objector as that which an orthodox belief in God holds in the lives of others clearly exempted, but the objector may choose not to use the word “God” or “Supreme Being”. In that sense Seeger’s interpretation of the Act seems more a matter of semantics than substance, but in no sense can that case be considered as declaring a constitutional standard circumscribing state action in the field of tax exemption.

Appellant directs our attention to other authority, the most notable, a decision of the California court of appeals in Fellowship of Humanity v. County of Alameda, 153 Cal.App.2d 673, 315 P.2d 394 (1957), which considered a claimed exemption from city and county property tax on the ground that the property was used “solely and exclusively for religious worship” within the meaning of the California Constitution. When defining the term religion the court held it is improper to include in the concept a belief in God or a Supreme Being. The court stated “the belief or nonbelief in a Supreme Being is a false factor,” and went on to say “This simply means that ‘religion’ fills a void that exists in the lives of most men. Regardless of why a particular belief suffices, as long as it serves this purpose, it must be accorded the same status of an orthodox religious belief. . . . [T]he proper interpretation of the terms ‘religion’ or ‘religious’ in tax exemption laws should not include any reference to whether the beliefs involved are theistic or nontheistic. Religion simply includes: [1] a belief, not necessarily referring to supernatural powers; [2] a cult, involving a gregarious association openly expressing the belief; [3] a system of moral practice directly resulting from an adherence to the belief; and [4] an organization within the cult designed to observe the tenets of belief. The content of the belief is of no moment.” Under this loose concept it is readily apparent any organization espousing moral principles, without theistic foundation, to which the membership openly express belief might opt for the exempt status. We are unwilling to ascribe such meaning to the expression “religious worship” in Missouri’s tax law. Instead we conclude that the constitutional and statutory term religious worship of Art. X, § 6 and § 137.100 embody as a minimum requirement a belief in the Supreme Being.

Though appellant contends that worship of a Supreme Being is not indispensable to a definition of “religious worship”, it argues nevertheless that Scientology “acknowledges the existence of God and recognizes and espouses devotion to a Supreme Being” establishing its entitlement to the exemption. It further argues no evidence supports the Commission’s conclusion that Scientology “appears to be more an applied philosophy which has a certain religious connotation, but which falls short of being devoted to the worship of the Supreme Being.” This brings us to the questions of credibility and burden of proof.

An administrative agency may base its decision solely on a finding of lack of credible testimony, though such testimony is uncontradicted or unimpeached. Koplar v. State Tax Commission, 321 S.W.2d 686 (Mo.1959). Veal v. Leimkuehler, 249 S.W.2d 491 (Mo.App.1952); State ex rel. Kahler v. State Tax Commission, 393 S.W.2d 460 (Mo.1965); and Scott v. Wheelock Bros., 357 Mo. 480, 209 S.W.2d 149 (1948). However, the Commission may not arbitrarily disregard or ignore undisputed testimony of a witness not shown to have been impeached or disbelieved by the Commission. Such was the case of the county assessor in Koplar, supra. Unlike Koplar, the Commission here made the following findings as to credibility of the witness: “We find the testimony of the Reverend Frederick M. Rock generally not to be credible and worthy of belief in particular in respect to his description and categorization of the activities of the organization, its alleged religious services, its financial structure and the nature of the so-called donations which are made to the organization. The Commission finds that there is no sufficient credible evidence presented by the appellant to satisfy the burden placed upon one claiming exemption from taxation.” The Commission then concluded “that with the lack of credibility found by this Commission in the testimony of the witness Rock and the lack of corroboration by any independent authority on contemporary religions .that the property owner has not satisfied the burden placed on him.” While the Commission findings are not insulated from review, the court must “give due weight to the opportunity of the agency to observe the witnesses.” The Commission had ample opportunity to observe the demeanor as well as the words of the witness and make a determination of credibility from its point of vantage. It recognized testimonial inconsistencies and those things petitioner failed to establish, finding that “appellant has some of the trappings and accouterments of an organized religion, it appears to be more an applied philosophy which has a certain religious connotation, but which falls short of being devoted to the worship of a Supreme Being.” The Commission could properly consider the financial interest of the witness in the outcome of the proceeding and the absence of corroborating testimony. Giving due weight to the opportunity of the Commission to observe the witness and the factors noted we find nothing sufficient to disturb its finding that the witness was not credible.

The law places a substantial burden on those claiming exemptions under the referenced constitutional and statutory provisions to establish that their property falls within an exempted class. City of St. Louis v. State Tax Commission, 524 S.W.2d 839 (Mo.banc 1975). It is firmly engrained that taxation is the rule and exemption therefrom the exception, Midwest Bible and Missionary Institute v. Sestric, 364 Mo. 167, 260 S.W.2d 25, 29-30 (1953), and such claims are not favored in the law. Community Memorial Hospital v. City of Moberly, 422 S.W.2d 290 (Mo.1967). The extent of this burden has been characterized as requiring proof beyond a reasonable doubt. Fitterer v. Crawford, 157 Mo. 51, 57 S.W. 532 (1900).

Weighing the evidence in light of the appellant’s sole witness’ want of credibility and against the substantial burden of proof required, we find the record supports the Commission findings.

The judgment is affirmed.

MORGAN, C. J„ and BARDGETT, HENLEY, FINCH and DONNELLY, JJ., concur.

SEILER, J., concurs in result in separate opinion filed.

APPENDIX

MISSOURI STATE TAX COMMISSION

Findings of Fact

1.The Missouri Church of Scientology was organized in 1969 and is a not-for-profit corporation. The earliest incorporation of the Church of Scientology elsewhere in the United States was in 1954.

2. The property in question was used in its headquarters at 4221 Lindell on January 1, 1974.

3. There are ceremonies or services conducted on Sunday afternoons at the headquarters. These are the only regular services (Tr. 14).

4. These services are presided over by ministers.

5. The founder of the Church is L. Ron Hubbard who is still living.

6. There is literature which is disseminated which encourages other persons to join and there are other efforts made to achieve the same purpose.

7. The Missouri Church of Scientology also engages in public affairs such as conducting a drug counseling program.

8. The property in question consisting of office equipment and furniture is used in the promotion of the organization including keeping its records, providing mailings to the membership.

9. The Church of Scientology does not have formal seminaries but requires that prospective ministers go through counseling courses which are conducted in their headquarter buildings.

10. There is no formal membership roll for the Church of Scientology.

11. The Church of Scientology is an applied religious philosophy having as its members persons who belong to other formal religions such as members of the Catholic and Lutheran churches and including Catholic priests and Jewish rabbis (Tr. 23). Membership in other religious faiths does not preclude membership in the Church of Scientology.

12. There was no corroborative evidence from any independent witness presented to the effect that the Missouri Church of Scientology is recognized by any other religious faiths as being a bona fide religion.

13. We find the testimony of the Reverend Frederick M. Rock generally not to be credible and worthy of belief in particular in respect to his description and categorization of the activities of the organization, its alleged religious services, its financial structure and the nature of the so-called donations which are made to the organization.

14. The Commission finds that there is no sufficient credible evidence presented by the appellant to satisfy the burden placed upon one claiming exemption from taxation.

Conclusions of Law

1. Under Article X, Section 6 of the Missouri Constitution and Section 137.100 R.S.Mo. all property used exclusively for religious worship is exempt from taxation.

2. This Commission has jurisdiction of this proceeding and the parties hereto, and is the sole judge of the credibility of the witnesses appearing before it.

3. It is the function of the Commission to determine the credibility of witnesses and to judge what probative weight or value to give to their testimony.

4. As to claims for exemption from taxation the burden is on the owner claiming his property to be exempt to establish that his property falls within the exempted class. National Cemetery Ass’n. of Missouri v. Benson, 344 Mo. 784, 129 S.W.2d 842 (1939).

5. Exhibits which were marked and identified but which were never offered into evidence cannot be considered as such by this Commission in its capacity as the trier of fact.

6. Claims for exemption from taxation are not favored in the law and provisions for exemption are strictly construed against one who claims to be exempt.

7. It is concluded that with the lack of credibility found by this Commission in the testimony of the witness Rock and the lack of corroboration by any independent authority on contemporary religions that the property owner has not satisfied the burden placed upon him.

8. While the appellant has some of the trappings and accoutrements of an organized religion, it appears to be more an applied philosophy which has a certain religious connotation, but which falls short of being devoted to the worship of the Supreme Being, which this Commission concludes is necessary for the property owner to have its property considered exclusively for religious worship. The Commission does not believe that an applied religious philosophy is identical for purposes of exemption with an organized religion devoted to religious worship.

9. The personal property of the appellant has not, therefore, been shown to be used exclusively for religious worship or charitable purposes and therefore cannot be exempted from ad valorem taxation.

10. The decision of the Board of Equalization placing an assessment of $5,000.00 upon the personal property of the Missouri Church of Scientology for the year 1974 is herewith affirmed.

SEILER, Judge,

concurring in result.

As I understand the situation, the only evidence offered by appellant before the commission was a witness whom the commission found not credible with respect to his testimony bearing on the issues. We are not going to disturb that finding. Beyond question, then, appellant has not carried the burden of establishing an exemption from taxation. In my opinion, this disposes of the appeal.

We should be careful not to do anything to restrict religious freedom and I am sure the principal opinion has no intention to do otherwise, but if it is necessary to define religious worship or religion, I do not believe we should restrict the definition to conventional orthodox religions, which it seems to me is what the principal opinion does. History shows that what is orthodoxy today was once heresy. I therefore concur in result only.

      . All statutory references are to RSMo 1969.

      . Mo.Const. Art. X, § 6 provides in pertinent part: “[A]ll property, real and personal, . not held for private or corporate profit and used exclusively for religious worship, . may be exempted from taxation by general law.” (Emphasis ours.) Pursuant to this authority, the legislature by § 137.100(5), RSMo 1969 exempted from state, county and local taxation, “All property, real and personal, actually and regularly used exclusively for religious worship, for schools and colleges, or for purposes purely charitable and not held for private or corporate profit, . (Emphasis ours.)

      . These exhibits consist, among others, of the appellant’s Articles of Incorporation and amendments thereto, bylaws, letters of commendation for charitable work done, a bound volume entitled “The Background and Ceremonies of the Church of Scientology of California, Worldwide” which appellant’s witness, Rev. Rock, identified as “the ceremonies book that we use at Sunday services and we use this as a standard format for our other ceremonies: weddings, christenings, funerals. And it is also background information which relate to philosophical roots of the church to other religions, Buddhism, Hinduism and early Christianity.” Another book entitled “Scientology: A World Religion Emerges in the Space Age” was described as a recently published work containing background information concerning the philosophy and ceremonies of the “Church of Scientology”.

      . The court in Hilke at 733 states: “Early in the hearing plaintiffs counsel referred to plaintiff’s injury report lodged in one of the Board’s two files and said, ‘I imagine it is part of this official document that we have introduced in evidence here.’ Defendant’s counsel agreed and thereupon the Board’s files were marked as Exhibits 1 and 2. Later, plaintiff’s counsel formally offered other documents in evidence, but in speaking of documents already in Exhibits 1 and 2 he referred to them as 'part of the file.’ Near the end of the Board hearing, defendant’s counsel wished to introduce City Ordinance 50707 as Exhibit 3; he stated he wanted the record to show that the ordinance was introduced as an exhibit ‘with the others.’ . . ” (Emphasis ours.)

      . Appellant contends that requiring devotion to worship of the Supreme Being as a sine qua non to classification as religion and entitlement to exemption from ad valorem taxation would be in direct contravention of the First Amendment citing United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965), Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961), and Everson v. Board of Education of the Township of Ewing, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947). Appellant gives little explanation how these cases support its position and the cases do not justify the contention made. Seeger, discussed at length above, involves an interpretation of the Selective Service Act, with its main thrust defining the statutory terms religious belief and Supreme Being. Torcaso does not define religion, holding only that a state may not require an oath declaring a belief in God as a prerequisite for holding public office but indicated nothing that would limit a legislative grant of tax exempt status to religious organizations. Ever-son dealt with the constitutionality of the states (Maryland) providing bus service to parochial school students. It did not suggest principles pertinent to the issues here.

      . The Church of Scientology presented one witness, Frederick M. Rock, a recently ordained twenty-six year old minister of the church who detailed the beliefs, activities, functions and history of the church. He testified the church teaches the existence of God; that man has a spirit analogous to a soul; that religious services are conducted each Sunday which include a sermon and prayers; ministers of the church can perform marriage services, funerals, and christenings; the church has a creed and worship services similar to those of other religions; a code or doctrine and religious tenets which preach: (1) man is good but must struggle to survive, (2) man has a spiritual nature which gives him inalienable rights, and (3) each person is responsible for and to the world; that the church is active in charitable works; a training program for ministers which was not characterized as a seminary; the church is an applied religious philosophy because it teaches a way of life relating to the spirit and to God; and finally that all the property in question is used to further the functions of the church. However, this picture was clouded by admitted atypical features. For example, Rev. Rock testified members of the Church of Scientology can actively practice and belong to other religious faiths (i. e., Catholic priests and Jewish rabbis belong and actively pursue the worship of the Church of Scientology); the church raises its funds by accepting “donations” for counseling services to members and non-members alike for which a fixed schedule sets the charges, in either servi'ce or cash, however about ten percent of the counseling sessions are gratuitous; the church has no structured seminary but offers courses in which the student sets his learning pace and at the end of which he may be ordained as a minister; theirs is an applied religious philosophy teaching methodology and the church keeps no formal membership rolls. As to the interest of the witness he was in the employ of the church receiving about $3,000.00 annually from monies raised in the St. Louis area. No attempt was made to corroborate Rock’s testimony with that of church officials, parishioners, or others familiar with appellant and its system of beliefs. No income or expense statements were introduced and the sources of income and use of funds were ambiguous at best.


author: RENDLEN, Judge. BARDGETT, Judge,

text:
    CITY OF RAYTOWN, Missouri, Respondent, v. John C. DANFORTH, Attorney General, Missouri Department of Social Services, Kansas City Ambulance Association, Inc., Ralph L. Martin, Prosecuting Attorney, Mid-America Regional Council, Emergency Rescue, Inc., Appellants.
    No. 59734.
    Supreme Court of Missouri, En Banc.
    Dec. 19, 1977.
    Rehearing Denied Feb. 8, 1978.
    Harvey M. Tettlebaum, John D. Ashcroft, Atty. Gen., Jefferson City, Billy S. Sparks, Kansas City, for appellants.
    Joseph E. Stevens, Jr., Kansas City, for respondent.
   RENDLEN, Judge.

Appeal from the trial court’s judgment declaring that provisions of Missouri’s ambulance licensing law, §§ 190.100 to 190.195, RSMo Supp.1975, do not require that plaintiff City secure a license from the Missouri Division of Health prior to operation of an ambulance service. The judgment also enjoined the threatened enforcement of the licensing law as to plaintiff. The cause was transferred from the Missouri Court of Appeals, Kansas City district prior to opinion, pursuant to civil rule 83.06.

During 1975 Raytown, a city of the fourth class, negotiated unsuccessfully with defendant Kansas City Ambulance Association, Inc., to obtain ambulance service for its residents. Resolving to provide its own community ambulance, Raytown in January of 1976 applied to the Missouri Division of Health for an ambulance license under the recently enacted Licensing Law. Because the City had not previously operated such a service and did not qualify under the “grandfather” provision implicit in the Act, its application was processed in the same manner as others entering the field following the effective date of the Act. A hearing required by § 190.125.2(1) was conducted in which it was determined the public convenience and necessity did not “require the proposed ambulance service” and accordingly Raytown’s license application was denied. Apparently unwilling to avail itself of the appeal afforded by § 190.170.7, the City purchased a vehicle and commenced operating an ambulance service in 1976, sans the required state license.

Not long thereafter Raytown was notified by the Attorney General and then by the Prosecuting Attorney of Jackson County that it was in violation of the Licensing Law. These notices prompted plaintiff’s action in the circuit court, culminating in the judgment declaring the City was authorized to continue under the provisions of § 67.300, RSMo 1969, free from constraints of the Licensing Law and restraining defendants from their threatened enforcement actions.

Defendants allege the trial court erred: (1) in declaring plaintiff City had authority to operate an unlicensed ambulance service, and (2) by enjoining the threatened enforcement of the penalty provisions of the Act. We reverse.

Urging affirmance, plaintiff contends that because § 67.300, RSMo 1969, authorizes municipal ambulance services, the Licensing Law should not be construed as a limitation of that authority. Section 67.300 is an enabling Act granting authority for activities not previously permitted cities of the fourth class, namely, operation of ambulance services; however the authority conferred may not be extended beyond the legislative intendment. “A municipal corporation such as [plaintiff] is a creature of the legislature, possessing only those powers expressly granted, or those necessarily or fairly implied in or incidental to express grants, or those essential to the declared objects of the municipality. Any reasonable doubt as to whether a power has been delegated to a municipality is resolved in favor of nondelegation.” Anderson v. City of Olivette, 518 S.W.2d 34, 39 (Mo.1976).

Measuring the powers granted municipalities under § 67.300 against the terms of the Licensing Law, we have concluded the legislature did not intend that cities operating ambulance services may do so without regard to the hearing requirements of §§ 190.100 to 190.195. This is not to say that § 67.300 and the Licensing Law are in conflict, instead the latter provides regulations relative to the general grant of the former and the general authority under § 67.300 is qualified by the subsequent special legislation on the subject. Statutes relating to the same subject must be read together and if possible in harmony, and provisions of one having special application to a particular subject will be deemed a qualification to another statute general in its terms. Flarsheim v. Twenty Five Thirty Two Broadway Corporation, 432 S.W.2d 245 (Mo.1968); Eagleton v. Murphy, 348 Mo. 949, 156 S.W.2d 683 (1941); State ex rel. McKittrick v. Carolene Products Co., 346 Mo. 1049, 144 S.W.2d 153 (banc 1940). Section 67.300 deals with the general grant of power to cities for the operation of ambulance services and subsection 2 permits formulation of rules for the use of equipment and the fixing of fees. However, the statute makes no provision for licensing, minimum equipment requirements, personnel qualifications, training requirements or related operational standards found in §§ 190.100 to 190.195. Moreover, as §§ 190.100 to 190.195 were enacted almost seven years after § 67.300, the later statute prevails if inconsistencies appear between them, thus the chronology of the legislation reinforces defendant’s contention that the City’s authority to provide ambulance service has been made subject to the requirements of the Licensing Law. State ex rel. McNary v. Stussie, 518 S.W.2d 630, 635[2] (Mo.banc 1974); City of Kirkwood v. Allen, 399 S.W.2d 30, 34[1] (Mo.banc 1966).

Plaintiff, vigorously maintaining the Licensing Law has no application to municipal ambulance services and that the legislative policy allowing local control over ambulance services by municipalities was not undercut by the Act, points to 190.105.4 which states: “The issuance of a license under the provisions of sections 190.100 to 190.195 shall not be construed so as to authorize any person, firm, corporation, or association to provide ambulance services or to operate any ambulances without a franchise in any county, municipality or political subdivision which has enacted an ordinance making it unlawful to do so.” (Emphasis added.) This, plaintiff argues, authorizes municipal prohibition of ambulance operations “within their limits by the entities referred to” and because cities have the power to withhold such a franchise it must perforce be exempt from the licensing requirement of the Act. We do not agree. More properly it should be said that the legislature intended a state ambulance license is required for all ambulances operating in the state, but the political subdivision in which the service is rendered may also require a local franchise for such operations. We see an analogy in the state motor vehicle license requirements vis-a-vis that of a city license for resident owners’ automobiles. Though the city in the ambulance license field may require a franchise for those operating in its bounds, this does not authorize a municipality to franchise its own operation and thereby circumvent the state licensing requirement. Such would run contrary to the provisions of § 190.105.1 that no person shall be engaged in the ambulance business “unless he holds a currently valid license” from the Division of Health, and would constitute municipal legislative action in conflict with the Act of the sort proscribed by § 190.105.-5.

Numerous provisions of the Act demonstrate a legislative intent that municipal ambulance operations are among those within the purview of the statute. The following are examples: Section 190.105 mandates that “no person” shall operate an ambulance service upon any public way of the State of Missouri, unless holding an ambulance license under the Act. Person is defined by § 190.100(10) as “any . organization of any kind, including any government agency other than the United States or the State of Missouri.” (Emphasis added.) In this context the term “governmental agency” appears intended to broadly include all governmental entities, for the legislature concluded the section by removing or excepting the United States and the State of Missouri from its terms. Neither cities, towns nor villages are so excepted and therefore are deemed within its purview.

Subsection 190.100(1), defines an ambulance as “any privately or publicly owned motor vehicle” (Emphasis added.) designed and equipped to be used for the transportation of patients “including dual purpose police patrol cars.” The inclusion of “publicly owned” vehicles among those defined as ambulances, refers to those owned by any political subdivision of the state, demonstrating a legislative intent that any city owned and operated ambulance must be licensed under the Act. Similarly, “dual purpose police patrol cars” typically owned by cities or counties are numbered among vehicles considered ambulances for purposes of the Act and perceiving this relevancy the legislature in 1975 enacted § 190.095 exempting the transportation of the sick, injured or incapacitated by police officers in emergency situations while in the exercise of their duties, from the prohibitions of §§ 190.100 to 190.195. The legislature, however, did not choose to exempt all “publicly owned motor vehicles” used as ambulances, but only dual purpose police cars in emergency situations.

Another example demonstrating the Act’s application to municipalities appears in § 190.110.2 which requires an annual $20.00 license fee for operators, but excludes ambulances “owned or operated by a political subdivision of the state.” This presupposes that cities (political subdivisions) may in certain instances offer ambulance service and are subject to the Act but they, in contrast to private operators, are relieved from payment of the fee. Again, if the legislature had intended the Act not to apply to municipalities the exception described in 190.110.2 would be unnecessary. Similarly § 190.170.6 requires that rates charged for ambulance services “be filed with the board of health and the reasonableness thereof determined by the board of health,” but makes this requirement applicable only to “privately owned” ambulance services. The distinction thus drawn would, like those above, be superfluous if the Licensing Law were not otherwise intended to apply to municipalities.

Finally, sections 190.125.2 and 190.170.4 provide that an ambulance license shall issue upon a determination that the public convenience and necessity require the proposed service and prescribe a hearing for that purpose. From this we perceive the qualitative improvement of ambulance service emerging as a major purpose of the Act. If plaintiff’s interpretation were accepted and the judgment not reversed, the thrust of the Licensing Law toward control of destructive competition and improvement of service could be effectively thwarted.

We hold §§ 190.100 to 190.195, RSMo Supp.1975 are applicable to cities, towns, villages and counties when engaging or seeking to engage in an ambulance service operation and the declaratory judgment will be reversed and the injunction ordered dissolved. Accordingly, we need not reach defendant’s other allegations of error.

The judgment is reversed and the cause remanded so that judgment may be entered consistent with the views expressed herein.

HENLEY, FINCH, DONNELLY and SEILER, JJ., and STEWART, Special Judge, concur.

BARDGETT, J., concurs in part and dissents in part in separate opinion filed.

MORGAN, C. J., not sitting.

BARDGETT, Judge,

concurring in part and dissenting in part.

I concur in the result reached in this case because I agree that ambulances operated by a municipality are, in the main, subject to the many provisions of the Missouri ambulance licensing law. I do not agree that a municipality which is otherwise authorized by law to operate a municipal ambulance service is subject to the convenience and necessity requirements of the act. Municipalities that operate power plants are not subject to a determination of convenience and necessity by the Public Service Commission or anyone else. And this is so even though the municipally-operated plant competes with a privately-owned utility.

In my opinion, the decision of the governing body of a municipality, which is legally authorized to operate an ambulance service, is final on that point. I agree that the regulatory provisions of the act with respect to equipment, inspection, etc., apply to municipalities because the state has a legitimate interest in the safety of the people transported in the equipment.

I do not believe the legislature intended to deprive the citizens of a municipality of not-for-profit ambulance service where those citizens, through their elected representatives, desire to subsidize the service with their local taxes, in order that a private ambulance service can make a profit. Furthermore, if a franchise from the city is necessary by reason of a city ordinance, then it is apparent that the city could prevent another from operating an ambulance service in the city and operate one of its own. I can think of no other instance where a municipality that has the statutory authority to do an act is nevertheless subject to a convenience and necessity decision by someone else and I don’t believe it was intended in the instant case.

I concur in the result because, as indicated, I agree that the municipality is subject to other provisions of the law.

      . The statutory sections, 190.100 to 190.195, regulating “ambulances, ambulance personnel and emergency treatment,” shall be referred to as the “Licensing Law” or the “Act”.

      . Defendants so enjoined are the Attorney General of Missouri; the Jackson County Prosecuting Attorney; the Missouri Department of Social Services and its Director. Other defendants are the Mid-America Regional Council, Emergency Rescue, Inc. and the Kansas City Ambulance Association, Inc., a Missouri not-for-profit corporation organized for the purpose of providing ambulance service on a contract basis in the Kansas City area. By its order the court directed that defendants “are hereby preliminarily restrained and enjoined from taking any action which would require or which would be designed to require or have the effect of requiring plaintiff to secure a license from the State of Missouri to operate an ambulance service and from bringing any charges, either civil or criminal, against plaintiff or its officers, agents or employees charging plaintiff or any of its officers with a violation of Section 190.100 et seq., R.S.Mo., until the further order of this Court.
      This is a final and appealable order.”

      . See our recent decision, State ex rel. Safety Ambulance Service, Inc. v. Kinder, 557 S.W.2d 242 (Mo.banc 1977), for a discussion of the implied “grandfather” provision which relieves those ambulance services in operation prior to July 1, 1974 (the effective date of the Act), from the requirements of a hearing and determination of the public convenience and necessity.

      . Section 67.300 (effective June, 1967) is as follows:
      “1. Any county, city, town or village may provide a general ambulance service for the purpose of transporting sick or injured persons to a hospital, clinic, sanatorium or other place for treatment of the illness or injury, and for that purpose may (1) Acquire by gift or purchase one or more motor vehicles suitable for such purpose and may supply and equip the same with such materials and facilities as are necessary for emergency treatment, and may operate, maintain, repair and replace such vehicles, supplies and equipment; (2) Contract with one or more individuals, municipalities, counties, associations or other organizations for the operation, maintenance and repair of such vehicles and for the furnishing of emergency treatment; (3) Employ any combination of the methods authorized in subdivisions (1) and (2) of this section.
      2. The municipality or county shall formulate rules and regulations for the use of the equipment and may fix a schedule of fees or charges to be paid by persons requesting the use of the facilities and provide for the collection thereof.
      3. The municipality or county may purchase insurance indemnifying against liability of the county or city and the driver and attendants of the ambulance for the negligent operation of the ambulance or other equipment or supplies or in rendering services incidental to the furnishing of the ambulance service.”

      . Section 190.105.5 states: “Sections 190.100 to 190.195 shall not preclude the adoption of any law, ordinance or regulation not in confíict with this statute by any county, municipality or political subdivision.” (Emphasis added.)