author: BISSETT, Justice. NYE, Chief Justice

text:
    A. J. MOORE, Appellant, v. CITY OF CORPUS CHRISTI et al., Appellees.
    No. 1165.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 14, 1976.
    Rehearing Denied Nov. 4, 1976.

      Harry L. Hoag, Corpus Christi, for appellant.
    J. Bruce Aycock, City Atty., Gerald L. Benadum, Asst. Dist. Atty., Corpus Christi, for appellees.
    Hobby H. McCall, Paul B. Horton of McCall, Parkhurst & Horton, Dallas, W. James Murdaugh, Jr., Asst. Atty. Gen., Austin, amicus curiae.
   OPINION

BISSETT, Justice.

This is a bond election contest case. A. J. Moore, a resident of Corpus Christi, Texas, hereinafter called “contestant”, brought suit against the City of Corpus Christi, its City Secretary, and the Attorney General of the State of Texas, to contest a bond election called for and held by the City on June 26, 1976. The results of the election were canvassed on June 30,1976. The electorate, by a small majority of the votes cast, authorized the issuance of the bonds ($14,400,-000.00). The contest was filed on July 30, 1976. The suit against the Attorney General was dismissed on jurisdictional grounds. Following a trial before the court without a jury, judgment was rendered on August 12, 1976, which held that the election was valid. The contestant has duly and timely perfected an appeal from that judgment to this Court.

At said election, the following proposition, insofar as this appeal is concerned, was submitted:

“Shall the City Council of said City be authorized to issue the bonds of said City to be sold at such prices and bear interest at such rates as shall be determined within the discretion of the City Council, for the purpose of making permanent public improvements, to-wit: A COMMUNITY-CONVENTION FACILITY INCLUDING AN EXHIBIT HALL, MEETING ROOMS, BANQUET HALL, ADDITIONAL AUDITORIUM IMPROVEMENTS, AND FURTHER ACQUISITION AND DEVELOPMENT OF THE SITE, AT THE BAYFRONT CENTER FOR THE ARTS AND SCIENCES ...”

The contestant, in his first point, contends that the trial court erred in upholding the validity of the election because the proposition submitted to the voters presented two separate and distinct propositions to be voted upon: 1) a community-convention facility and 2) additional auditorium improvements.

Any person intending to contest an election must comply with the provisions of Tex. Election Code Ann. art. 9.03 (1967). The statute requires that the contestant:

“. . . shall, within thirty (30) days after the return day of election, give him a notice thereof in writing and deliver to him, his agent or attorney, a written statement of the ground on which such contestant relies to sustain such contest. By the ‘return day’ is meant the day on which the votes cast in said election are counted and the official result thereof declared.”

The two-fold notice required by the statute, being jurisdictional, is mandatory, cannot be waived, and must be served on the contestee within thirty days after the official result of the election is declared. Moore v. Edna Hospital District, 449 S.W.2d 508 (Tex.Civ.App.—Corpus Christi 1969, writ ref’d n. r. e.); Walker v. Thetford, 418 S.W.2d 276 (Tex.Civ.App.—Austin 1967, writ ref’d n. r. e.); Landrum v. Centennial Rural High School Dist. No. 2, 134 S.W.2d 353 (Tex.Civ.App.—Austin 1939, writ dism’d jdgmt. cor.).

In the case at bar, the time within which to comply with the requirements of Article 9.03 of the Election Code with respect to notice expired on July 30, 1976 at midnight. The contestant claims that the writings, dated July 5, 1976 and July 28, 1976, signed by him and by his attorney, and hand-delivered to the contestees, met the requirements of the statute. We do not agree. There is no proof in the record that either of the writings were personally served on any of the contestees on or prior to July 30, 1976. The statement in each of the writings to the effect that the respective writing was “hand-delivered” to each of the contestees is not proof that they were delivered on the date thereof, or on any other date, and certainly not on or before July 30, 1976 at midnight. We cannot presume that the writings were delivered to the contestee within the time limited by Article 9.03 of the Election Code. Moreover, the writings do not set out as grounds for the election contest any of the grounds asserted by the contestant in the points of error brought forward in this appeal. The only grounds set out in the writings are asserted irregularities in the conduct of the election. They are not before us in this appeal.

Contestant’s original petition was filed on July 30,1976 at 9:30 a. m., and was served on the contestees at 4:30 p. m. that same day. The only grounds of contest alleged therein were: 1) the election was invalid because the election notice did not prescribe the rate of interest in accordance with the requirements of Tex.Rev.Civ.Stat. Ann. art. 703 (1964); and 2) the election was void because of certain violations of the Texas Election Code in the manner in which the election was conducted. The service of the petition on the contestees was made on the thirtieth day following the return date of the contested election. Since it was served after the contest was filed and within the statutorily prescribed time, it met the requirements of Article 9.03 both as to notice of intention to contest the election and as to notice of the grounds to be relied on by the contestant in the contest. Thus, the district court acquired jurisdiction of the election contest insofar as the grounds set out in the original petition are concerned, and no more. See McCasland v. Steele, 496 S.W.2d 937 (Tex.Civ.App.—Waco 1973, no writ).

The contestant, by an amended petition that was filed on August 5, 1976, alleged that the election was void upon the additional ground that the proposition included two separate and distinct propositions, which prevented the electorate from voting separately on each proposition. The contestees were not served with written notice of that ground of attack upon the election until August 5,1976. Since written notice of the additional ground of contest was not given to the contestees within thirty days after the official result of the election was declared, there was no compliance with Article 9.03 of the Election Code as to that ground. In that state of the record, the district court did not acquire jurisdiction of the election contest with respect to the ground of invalidity set out in the amended petition.

The first point of error, under the record here presented, cannot be considered in this appeal. The point is overruled.

The contestant, in his second point of error (his remaining point), contends that the trial court erred in holding that the election was valid because the proposition to be submitted to the electorate and the ballot did not specify an exact rate of interest which the bonds would bear. He claims that it was mandatory under the express provisions of Tex.Rev.Civ.Stat.Ann. art. 703 (1964) that the proposition and the ballot specify an exact rate of interest, the omission of which rendered the election void. We do not agree.

The statute, Article 703, which was last amended in 1921, provides, in part:

“The proposition to be submitted shall distinctly specify:
3. The rate of interest.”

There is no statutory requirement that the ballot in a municipal bond election shall specify “the rate of interest”. All that is required is that the ballot substantially submit the proposition to be voted on with such definiteness and certainty that the voters will not be misled. England v. McCoy, 269 S.W.2d 813 (Tex.Civ.App.—Texarkana 1954, writ dism’d); Turner v. Lewie, 201 S.W.2d 86 (Tex.Civ.App.—Ft. Worth 1947, writ dism’d). The character, features and purposes of the proposed bond election are to be set out in sufficient detail in the proposition, so that the voters will be familiar with the proposal when they cast their ballots. Railroad Commission v. Sterling Oil & Refining Co., 147 Tex. 547, 218 S.W.2d 415 (1949). It is presumed that all persons eligible to vote in a bond election will familiarize themselves with the contents of and the statements made in the proposition before casting their ballots; otherwise the legislature would have required a verbatim copy of the proposition on the ballot. Whiteside v. Brown, 214 S.W.2d 844 (Tex.Civ.App.—Austin 1948, writ dism’d). In this case, the election was not invalid on the ground that the ballot did not specify an exact rate of interest which the bonds would bear, or that it did not properly inform the voters of the amount of debt being created by approval of the bond issue, as argued by the contestant in his brief.

With respect to municipal bond elections, Article 703 has been construed by the appellate courts of this State on two occasions. It was held in each instance that the aforesaid statute did not require that an exact rate of interest be specified in the proposition, but that there was a substantial compliance with the statutory requirement where the proposition specified only a maximum rate of interest. Amstater v. Andreas, 273 S.W.2d 95 (Tex.Civ.App.—El Paso 1954, writ ref’d n. r. e.); Cameron v. City of Waco, 8 S.W.2d 249, 254 (Tex.Civ. App.—Waco 1928, no writ).

In deciding whether a statute is mandatory or not, the legislative intent is determined from a consideration of the entire act, its nature, its object, and the consequences that follow from the construction thereof. State v. Fox, 133 S.W.2d 987 (Tex. Civ.App.—Austin 1939, writ ref’d); Nichols v. Aldine Independent School District, 356 S.W.2d 182 (Tex.Civ.App.—Houston 1962, no writ). “There is no absolute test by which it may be determined whether a statutory provision is mandatory or directory . although the word ‘shall’ is generally construed to be mandatory, it may be and frequently is held to be merely directory”. Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943 (1956).

In the instant case, the proposition within the notice calling the election specifically stated that the bonds would “bear interest at such rates as shall be determined within the discretion of the City Council”. That language is plain and unmistakably clear. The character, purposes, and chief features of the proposed bond election were set out in sufficient detail in the proposition to inform and acquaint the voters with all aspects of the proposal. No person who had previously read the proposition prior to the election could have been misled, deceived or confused with respect to the rate of interest that was specified therein. The voters knew that the bonds must bear some rate of interest, and that the City Council could provide for the bonds to bear interest at the highest rate allowed by law. The voters also knew that the City Council could, and presumably would, fix the lowest rate at which the bonds could be sold, considering the economic conditions existing at the time of the sale. The electorate was put on notice that the voters were being asked to authorize some interest rate not exactly known on election day, but which would be determined in the future by the City Council, within its discretion and the limits of the law. The voters of the City of Corpus Christi had a clear choice in the matter. They made that choice, and expressly authorized the City Council to set the exact rate of interest in the manner clearly specified in the proposition. We see nothing inherently wrong in the calling and holding of an election which plainly permits the voters to allow the exact rate of interest which the proposed bonds will bear to be set by the persons whom the people have chosen to represent them, and in their discretion and good judgment.

The discretion of a City Council in the performance of public duties is subject to review by the courts. The word “discretion” means what is just and proper under the circumstances, and is not a word for arbitrary will or inconsiderate action. Cowden v. Broderick & Calvert, 131 Tex. 434, 114 S.W.2d 1166 (1938). The governing body of a municipality is constrained in the exercise of its discretion by legal limits, and the discretionary setting of the rate of interest on a public bond issue must be exercised according to honest judgment and within the proscription of the bond market at the time the bonds are sold. See Barrington v. Cokinos, 161 Tex. 136, 338 S.W.2d 133 (1960); Scruggs v. Wheeler, 4 S.W.2d 616 (Tex.Civ.App.—Amarillo 1927, writ ref’d).

It is a matter of common knowledge that interest rates fluctuate according to economic conditions. There has been a very substantial increase in the last few years in the rates of interest required of municipal bonds if the bonds are to be sold. Without the sale of bonds, few, if any, substantial improvements could be constructed by public agencies. The 61st Legislature, in enacting Tex.Rev.Civ.Stat.Ann. art. 717k-2 (Supp.1976), effective September 11, 1969, removed all existing limitations on the net effective interest rate on public securities to be issued and sold from and after the effective date of the Act, and recognized the fact that “many public agencies are presently unable to issue and sell public securities because of legal restrictions on the rate of interest that such public securities may bear, which makes it impossible to finance urgently needed public improvements. . . . ”

The statute, Article 717k — 2, provides, in part:

“Sec. 2. Any public agency is hereby authorized to issue and sell any issue or series of its public securities at any price or prices and bearing interest at any rate or rates, as shall be determined within the discretion of the governing body of the public agency, subject to the exceptions hereinafter provided. . . . ”
“Sec. 3. The provisions of this Act concerning sale price and the maximum rates of interest which public securities may bear shall apply to all public securities notwithstanding the provisions or restrictions of any general or special law or charter to the contrary, but shall not apply to any public securities whose maximum rate of interest or maximum net effective interest rate is, at the time of issuance thereof, otherwise specifically fixed by the Constitution.”

The exceptions mentioned in the statute do not apply to the case at bar.

There is no suggestion in this case that there was any fraud in the choice of the words used in the proposition. It is apparent that the language contained therein followed the mandate of Article 717k-2 concerning the fixing of the exact rate of interest after the bonds had been voted. There is no evidence of any attempt to mislead the voters, or that they were misled. The Courts justly consider the obtaining of a fair election and the voters’ free choice and are anxious to sustain the will of the people as expressed by the result of the election, regardless of the size of the majority vote.

The Legislature, at the time of the passage of Article 717k-2 was cognizant of paragraph 3 of Article 703, and it is obvious that it considered that Article 703 did not require the proposition to state an exact rate of interest. Any other construction would, in many instances, prevent a solution of the problem that Article 717k-2 was designed to solve.

We hold that Tex.Rev.Civ.Stat. Ann. art. 703 (1964) does not make it mandatory that the proposition specify an exact rate of interest which the bonds will bear. The statement regarding the rate of interest in the proposition that was submitted to the voters of Corpus Christi was in substantial compliance with the statute. We refuse to give the statute the technical construction asserted by the contestant, which, if done, would render the bond issue, otherwise valid, invalid. The second point of error is overruled.

The judgment of the trial court is AFFIRMED.

NYE, Chief Justice

(dissenting).

I respectfully dissent. When the City of Corpus Christi was attempting to sell to its citizens improvements to be made to the Bayfront Center, it was required by law to submit the proposition to its qualified voters. The law says that the City “shall distinctly specify” five (5) separate things in calling for the proposition to be voted on. These five (5) requirements are:

“1. The purpose for which the bonds are to be issued;

2. The amount thereof;

3. The rate of interest;

4. The levy of taxes sufficient to pay the annual interest and provide a sinking fund to pay the bonds at maturity;

5. The maturity date, or that the bonds may be issued to mature serially within any given number of years not to exceed forty.” Art. 703, Y.A.C.S.

Four (4) of these five (5) requirements were met. They were distinctly specified as herein set out below. Number 3, the requirement as to “interest”, was not.

1. The law says “distinctly specify the purpose”: The City’s call for the election stated, “. . . making permanent public improvements to-wit: A COMMUNITY-CONVENTION FACILITY, INCLUDING AN EXHIBIT HALL, MEETING ROOMS, BANQUET HALL, ADDITIONAL AUDITORIUM IMPROVEMENTS, AND FURTHER ACQUISITION AND DEVELOPMENT OF THE SITE, AT THE BAY-FRONT CENTER FOR THE ARTS AND SCIENCES: . . .”

2. The law says “distinctly specify the amount thereof”: The City’s call for the election stated, “. . .in the aggregate principal amount of $14,400,000.”

3. The law says “distinctly specify the rate of interest”: the City’s call for the election stated: “. . . interest at such rates as shall be determined within the discretion of the City Council.” (Emphasis supplied.)

4. The law says “distinctly specify the levy”: the City’s call for the election stated: “. . . to levy and cause to be assessed and collected annual ad valorem taxes in an amount sufficient to pay the annual interest on said bonds and provide a sinking fund to pay said bonds at maturity.”

5. The law says “distinctly specify the maturity date”: the City’s call for the election stated: . .to mature serially within not to exceed twenty-five years from their date.”

In these “truth in lending” days in which we live, the law requires of everyone that the rate of interest to be charged a person must be spelled out in exact terms and in advance. This is so the person who is expected to pay the interest ultimately will know the total amount of his obligation. This law makes a vast improvement within our society. It prevents hidden charges and deceptive practices. See Art. 5069.14-01, et seq. (Supp.1976).

The bond election results were very close. There is no way that any court could determine the reason some people voted “for” or “against” the proposition. If the rate of interest had been distinctly set out as the law requires, the election result undoubtedly would have been different. It might have been more in favor of the proposed expenditure, or on the other hand, the bond election may have failed. We have no way of knowing or inquiring into the mental process of the voters.

In a case where the grant of authority is to levy and collect a certain rate of taxes on the taxpayer’s property, for a given purpose, the voters not only grant such authority to levy and collect such taxes (not to exceed a stated rate), but also give a mandate to levy and collect that rate of taxes. The voters are the sole beneficiaries of the levy, and they authorize the same because they are of the opinion that such action will subserve their best interests. They are interested in fixing the maximum rate, for in voting for the proposition to issue the bonds they give their consent to be taxed at a rate not to exceed that authorized by their vote. See Cameron v. City of Waco, 8 S.W.2d 249 (Tex.Civ.App.—Waco 1928, no writ).

It is undisputed that the City did not “distinctly specify” the rate of interest in either of its two descriptions of the proposition given to the voters. This, I believe was a serious omission on the part of the City. Article 703’s requirement that the rate of interest be distinctly specified is to inform the public the maximum amount they will be charged on the bond obligation.

The rate of interest on $14,400,000.00 over a twenty-five year period is very important. If an outside limit was not set at the time the proposition was voted on, delay in the issuance of such bonds could conceivably require a much higher interest rate resulting in a much higher tax rate than that anticipated at the time the voting public gave authority to issue bonds. By setting the maximum rate and by receiving authority for such amount, a governing body would of necessity have to go forward almost immediately with the sale of the bonds at the best possible rate (not to exceed the rate authorized by the voters) rather than by waiting and taking a chance that the bond market would make the bonds unmarketable and a new election inevitable. On the other hand, if a City could dispose of the bonds at a lesser rate of interest than that authorized by the voters, then the benefit would enure to the taxpayers of the City who granted permission for their issuance in the first place. No harm would result. This is the holding of the two cases cited by the majority as the sole authority to permit a governing body to set any rate that they may see fit in their discretion. See also Amstater v. Andreas, 273 S.W.2d 95 (Tex.Civ.App.—El Paso 1954, writ ref’d n. r. e.); Cameron v. City of Waco, 8 S.W.2d 249 (Tex.Civ.App.—Waco 1928, no writ).

The majority states that the notice calling for the election is “plain and unmistakably clear”. This is true, but it violates the specific statute which authorizes the calling for the election. The majority states further that the voters knew that the bonds must bear some rate of interest and that the City Council could provide for the bonds to bear interest at the highest rate allowed by law, and this, in effect, would be setting the maximum rate. If the highest rate that a bond could be sold for is 10%, (Article 16, Section 11, Texas Constitution), then I doubt seriously if the present bond election would have carried had the proposition stated “. . .at any rate of interest to be set by the City Council not to exceed 10%”. This is the implication that goes with such majority holding.

The majority also states that the word “shall” in Article 703 is permissive because the legislature in enacting Article 717k-2, V.A.C.S. removed all existing limitations on the net effective rate of interest on bonds to be issued and sold by the governing agency. This is not true. The legislature does not and did not repeal this statute by implication. The word “shall” is ordinarily imperative and operates to impose a duty which may be enforced as in this case. The word must be given that effect which is necessary to carry out the intention of the legislature as determined by ordinary rules of construction. The deliberate refusal of the legislature to insert the word “may” (in setting out the requirement as to the rate of interest) in place of the word “shall”, shows an intent on the part of the legislature to use the latter word as mandatory. Surely, had the legislature intended that this word “shall” be permissive or that this article was to be repealed, it would have so stated. Where a statute clearly indicates that the word “shall” was intended to be mandatory and it would be clearly inconsistent with the overall legislative intent for it to be otherwise — it is mandatory! 82 C.J.S. Statutes § 380, pp. 877-882.

It is true as the majority has so stated that all that is required to be put on the ballot itself, as opposed to the notice calling the election, is just enough to make sure that the voters will not be misled. It would have been sufficient, for instance, for the City to have to put on the ballot “Proposition: Bonds for convention facility” — “For” —or “Against”.

However, in this case, the proposition that was actually placed on the ballot informed the voters of the total amount of the bonds, and the purposes of its expenditure in detail, but then made no reference whatsoever to the rate of interest. Although the publicly published notice to the voters generally is a sufficient compliance with the law, it is possible that the voters were misled in this election by the inclusion of the purpose in detail and the specific amount of the bonds, and then by leaving out the discretionary rate of interest to be set by the City Council after the election was over.

It is my opinion that the City of Corpus Christi acted improvidently. The City was under a statutory duty to set out a maximum rate of interest in the call of the election (the public notice) and also should have included on the ballot itself a short description of the maximum interest rate. The latter is especially important where the City attempted to go into exacting detail on the ballot as to the amount of the bonds and the purpose of the bonds. It follows that the City should also have given in detail the maximum rate of interest to be charged.

The majority by its decision would allow any city, any school district or any other governmental agency to call for a bond election and completely disregard the legislative mandate that the rate of interest “shall” be distinctly specified. The majority relies on two old cases, each of them only holding that if the call of the election sets out a specified maximum amount of interest to be charged (4% in one case and 5% in the other) such specified interest is a sufficient compliance with the law. Art. 703 (V.A.C.S.). The majority goes further than the two cases which it cites. The majority goes further than any other court in this State by holding that any governmental agency may completely disregard the mandatory effect of the statute so long as they inferentially state that they will not charge more than the maximum legal rate of interest. The voters would “know” this maximum rate of interest, not because the agency specifically informed them as required by Art. 703, but because of the legal presumption that all citizens are charged with knowledge of the law. If the legislature had wished to give the City of Corpus Christi absolute discretion in setting the rate of interest on bonds to be submitted to the voters, it would have so stated. The legislature did this in authorizing the City to sell bonds under Art. 717k — 2, V.A.C.S. But the legislature did not authorize the City to do this under Article 703, V.A.C.S. because I believe the legislature intended for the voters to “know” in advance the outside limit of the bond obligation.

It is just as important for the City to be required to set out a specified rate of interest on bonds to be approved by the voters as it is to set out the specified total amount of bonds that are to be voted on. Both requirements set in concrete the total maximum obligation. How can you require one requirement to be specific and not the other while they are all covered in the same statute?

The incongruity of the majority holding is quite evident by its reasoning. It overrules appellant’s first point of error saying that the statute which says that the contestant “shall” give notice within 30 days, etc., is a mandatory requirement. Since the appellant did not follow the statute in the first instance, its contest on this point cannot be considered. Using a different standard for the City, the majority says that “shall” in the other statute is not mandatory — the City “may” comply or not comply as it wishes.

Although it is unfortunate that courts are required to set aside an election from time to time, it is far more important that the cities be required to follow the statutory law in matters of such importance.


source: Caselaw Access Project

author: BARROW, Chief Justice.

license: Public Domain

text:
    Milton J. HOENEKE, Appellant, v. Jerry LEHMAN, Appellee.
    No. 15663.
    Court of Civil Appeals of Texas, San Antonio.
    Oct. 20, 1976.

      Maynard F. Robinson, San Antonio, for appellant.
    A. J. Hohman, Jr., Hope, Henderson, Hohman & Georges, San Antonio, for appel-lee.
   BARROW, Chief Justice.

Appellant has perfected his appeal from a judgment awarding appellee the sum of $1,598.80 in liquidated damages together with reasonable attorney’s fees because of appellant’s failure to timely file a campaign expense statement as required by Art. 14.-08, Tex. Election Code Ann. (1967). The trial court granted appellee an instructed verdict as to appellant's liability for liquidated damages and submitted the question of reasonable attorney’s fees to the jury. The jury found that a reasonable attorney’s fee for services rendered the appellee in the trial court would be $1,000.00, and that $600.00 and $500.00, respectively, would be reasonable fees in the event of an appeal to the Court of Civil Appeals and the Supreme Court.

Appellant asserts four points of error: 1. Art. 14.08, and particularly the penalty provision thereof, is unconstitutional. 2. The directed verdict was improper in that the judgment includes, as contributions, the amount of money personally paid by appellant on campaign expenses. 3. The trial court erred in granting an instructed verdict in that a fact issue was raised that appellant had substantially complied with the statute. 4. There is no evidence to support the jury verdict on attorney’s fees.

Appellant and appellee were candidates for mayor in the municipal election held in the City of Kirby on April 5, 1975. This was not a new experience for them in that appellant had defeated appellee in 1971, and appellee had defeated appellant in 1973. Prior to the 1973 amendment of Art. 14.08, a candidate was required to file two sworn statements of his contributions and expenditures. The first report was required to be filed not less than seven days nor more than ten days prior to the election, and a supplemental statement was required to be filed not more than ten days after the election. The 1973 amendment required three reports; the first not earlier than the 40th day and not later than the 31st day before the date of an election; the second not earlier than the 10th day and not later than the 7th day before the election; and the final report to be filed not later than the 31st day after the election.

Appellant testified that his neighbor, J. E. Patton, was his campaign manager and was to see that all required reports were filed. The first report was filed by appellant on March 5. Mr. Patton testified that the City Secretary told him at that time that the second report was required to be filed in thirty days. On April 4, Mr. Patton learned from the City Secretary that this report was actually due before April 1. Mr. Patton immediately prepared, signed, and filed the second report on the morning of April 4. This report shows expenditures of $399.70. The contributions list a contribution of $236.25 by Edgar Von Scheele in payment for signs and three contributions by appellant in payment of bills for a total of $163.45.

We have serious doubts that appellant’s first point merits consideration in that he does not point out wherein the statute is unconstitutional. See Texas National Guard Armory Board v. McCraw, 132 Tex. 613, 126 S.W.2d 627 (1939). However, it is seen from his argument under this point that he apparently challenges the authority of the Legislature to provide for liquidated damages. Such a contention is without merit. It is settled that the imposition of penalties is within the police power of the Legislature. First Texas Prudential Ins. Co. v. Smallwood, 242 S.W. 498 (Tex. Civ.App.—Beaumont 1922, no writ); Missouri, K. & T. Ry. Co. of Texas v. Letot, 135 S.W. 656 (Tex.Civ.App.—1911, writ dism’d); 45 Tex.Jur.2d Penalties, § 4 (1963). Appellant’s first point is overruled.

Art. 14.08(c) provides in part that the statements filed by a candidate shall list all contributions received and all expenditures made by the candidate, his campaign manager, and his assistant campaign managers. While a bill paid by the candidate is clearly an expenditure, and thus required to be reported, it is not a contribution received by the candidate. The trial court erred in considering the amount of $163.45 paid by appellant on bills as a contribution, and thus erred in granting an instructed verdict which included this $163.45 as both a contribution and an expenditure.

Appellant urges by his third point that a fact question is raised that appellant had substantially complied with the statute by filing the report prior to the election, albeit five days late. A somewhat similar provision was considered in State v. Crawford, 269 S.W.2d 536 (Tex.Civ.App.—El Paso 1954, no writ). Crawford’s report was filed one day late and a quo warranto suit was brought to knock him off the ballot in accordance with one of the penalties provided by Art. 14.08 and 14.09. After a full review of the authorities, it was held that the filing of the statement is mandatory, but the time when it shall be filed is directory. A candidate is required to reasonably and substantially comply with the provisions of the statute as to the time of filing the statement. It was held that there had been substantial compliance by Crawford.

A candidate’s failure to timely file his statement of contributions and expenditures was again considered in Gray v. State, 406 S.W.2d 934 (Tex.Civ.App.—Fort Worth 1966, writ dism’d). Gray did not file his second report until the sixth day after the election. The Court quoted with approval from State v. Crawford, wherein the opinion had been expressed that the legislative purpose of requiring expense statements to be filed was to serve the electorate in that such would be open for public inspection so that the voters might determine what persons were influencing the election by contributing money or credit or other substantial aid to the candidate. From this viewpoint it was held that a report filed six days after the election was not a substantial compliance. Nevertheless, the candidate’s name was not stricken from the ballot in that the record established a complete absence of culpability on the part of the candidate or anyone else in connection with his delay in filing the statement. It was pointed out that the statement was of no voter consequence in that it showed expenditures of $122.00, and contributions of only $10.50. The Court expressly adopted the Crawford construction of the statute that the requirement of filing is mandatory while the time of filing is directory.

It is significant that although the Legislature has amended the Election Code since this construction was adopted in State v. Crawford, and followed in State v. Gray, no change has been made in the language of this part of the statute. Thus, the Legislature is presumed to have adopted this construction. Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182 (Tex.1968).

Here the uncontroverted testimony of appellant and his campaign manager shows an unintentional mistake in the late filing of this report. The report was filed prior to the election and was seen almost immediately by appellee. Some justification for appellant’s mistake is seen in that the statute was changed after appellant’s 1973 campaign. The City Secretary testified that the candidates relied on him for the necessary forms to comply with election laws. We hold that the trial court erred in granting an instructed verdict in that this record at least raises a fact issue of substantial compliance. This error requires a reversal of the judgment and remand of the case. It is therefore unnecessary to consider appellant’s fourth point regarding the reasonableness of the attorney’s fees.

The judgment of the trial court is reversed and the cause remanded for trial on the merits.

      . Art. 14.08 was amended by Acts 1973, 63rd Leg., p. 1106, ch. 423, § 9. This article was subsequently amended and renumbered Art. 14.07 by Acts 1975, 64th Leg., p. 2263, ch. 711, § 9. Subsection (J) of the 1975 Act is substantially the same as Subsection (j) of the 1973 Act.

      . These statutes, although subsequently amended, were In substantially the same language in 1975.


author: BREWSTER, Justice.

text:
    Roy C. CHANDLER, Appellant, v. James L. NEWLAND, Appellee.
    No. 17766.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 22, 1976.

      Poster & Garrett, Jenks Garrett, Arlington, for appellant.
    Charles Evans, Bedford, Touchstone, Bernays & Johnston and Tom J. Stollenwerck, Dallas, for appellee.
   OPINION

BREWSTER, Justice.

This is a suit for damages for personal injuries and for damage to personal property which damages were allegedly sustained by the plaintiff, Roy C. Chandler, when the defendant, James L. Newland, drove his automobile into the rear end of the plaintiff’s car. The case was tried to a jury, and upon receipt of a verdict the trial court rendered judgment denying the plaintiff a recovery. He has appealed.

We reverse and remand.

The plaintiff’s second point of error is to the effect that the trial court erred in overruling his motion for new trial in that the jury’s answers to special issue No. 1, A through D, are so against the great weight and preponderance of the evidence as to be manifestly unjust.

We sustain that point of error.

Special issue No. 1 and its subdivisions A through D were as follows: “Do you find from a preponderance of the evidence that on the occasion in question the Defendant: (A) Failed to keep a proper lookout? (B) Failed to make timely application of brakes on his automobile? (C) Operated his automobile at an excessive rate of speed? (D) Was following the vehicle operated by Plaintiff closer than an ordinary prudent person in the exercise of ordinary care would have followed?”

The answer of the jury to each of the subdivisions A through D of special issue No. 1 was “No.”

In answer to issue No. 3 of the charge the jury found that the market value of plaintiff’s car immediately prior to the wreck was $500.00 and its value immediately after the wreck was $25.00.

In answer to issue No. 4 the jury found that the reasonable expenses for necessary medical and hospital care received by plaintiff in the past for treatment of his injuries as a direct and proximate result of the collision was $515.00.

The law that controls our consideration and determination of the questions of whether or not the jury’s answers to issue No. 1, A through D, are so against the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust is set out in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, at page 661 (1951). In speaking of the question raised by the point we are considering the Court said: “The latter is one of fact. It is not infrequently described as a question of ‘sufficiency’ of the evidence. . . . The question requires the Court of Civil Appeals, in the exercise of its peculiar powers under the constitution and Texas Rules of Civil Procedure Nos. 451, 453, and 455, to' consider and weigh all of the evidence in the case and to set aside the verdict and remand the cause for a new trial, if it thus concludes that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust — this, regardless of whether the record contains some ‘evidence of probative force’ in support of the verdict. See cases cited, supra. The evidence supporting the verdict is to be weighed along with the other evidence in the case, including that which is contrary to the verdict.”

In Watson v. Prewitt, 159 Tex. 305, 320 S.W.2d 815 (1959) the Supreme Court rean-nounced the rule it had laid down in the King case, supra.

During the trial three witnesses testified as to how the wreck occurred. They were the plaintiff, Chandler, the defendant, Newland, and Clifton L. Pannell, whose truck was immediately in front of plaintiff’s car at the time of the wreck.

Chandler testified: when the wreck occurred it was cloudy, daylight, and dry; it happened in Fort Worth on the East-West freeway which has three east-bound and three west-bound lanes of traffic; at the time he was on his way home from work at General Dynamics; he was traveling east in the center lane; three cars were involved in the wreck, namely, his, the defendant’s and Mr. Pannell’s; defendant’s car struck plaintiff’s car in the rear at a time when plaintiff’s car was stopped; the collision crumpled plaintiff’s four-door car so that the doors were jammed and plaintiff was trapped inside; plaintiff’s car was knocked into Mr. Pannell’s pickup which was stopped in the line of traffic immediately in front of plaintiff’s car; on this occasion Mr. Pannell’s pickup stopped and plaintiff pulled up behind it and stopped; they stopped because all the traffic in front of them had stopped; after being stopped for a few seconds, plaintiff glanced into his rear view mirror and saw defendant’s car coming fast toward him; the impact was severe and terrifying; his car was squashed, being shortened by the wreck by 3 or 4 feet; and plaintiff was not in the act of stopping when the collision occurred.

The witness, Clifton Lee Pannell, testified as follows: he was also employed at General Dynamics at date of the wreck and was involved in the wreck; he was then driving a pickup with a camper on it; Chandler’s car was knocked into his pickup; he saw Chandler’s car pull up behind his pickup and stop before the collision; this was through his rear view mirrors; Chandler’s car had been stopped for 15 to 20 seconds before it was struck from the rear; he also saw defendant’s car through his rear view mirrors; he saw it when it was sliding and the back end “kinda” turned sideways and then straightened up before it hit Chandler’s car; his car had been stopped for 25 seconds before the wreck occurred; he stopped because the car in front of him stopped; the stop was not a sudden one; and the line of traffic in front of him extended from 500 to 700 yards.

The testimony of the defendant, James L. Newland, that related to the wreck was as follows: there were three lines of traffic going east with the cars in front slowing down and stopping; he was traveling with the line of traffic; he glanced away for a second and when he looked back the line of traffic was slowing; he did not get stopped, and he hit the Chandler car that was in front of him; he was traveling behind Chandler’s car at about three car lengths and when he looked back Chandler’s car was in the process of stopping; he does not know if Chandler had completely stopped; he saw Chandler’s brake lights; defendant was traveling at about 45 miles per hour at the time of the impact; the damage done to his car caused it to be a total loss; Chandler’s car was knocked by his car into the pickup in front of Chandler’s car; on this occasion when he glanced away it was for just a second, and when he glanced back the car appeared to be coming to a sudden stop; he tried to hit his brakes, but does not know if he was able to do so or not.

We have considered all of the evidence in the case and after applying the test laid down in the cases of In re King’s Estate, supra, and Watson v. Prewitt, supra, to the facts of this case, we hold that each of the answers given by the jury to Subdivisions A through D of special issue No. 1 were so against the great weight and preponderance of the evidence as to be manifestly unjust and clearly wrong.

Cases that support our holding are: Fisher v. Franke, 321 S.W.2d 903 (Tex.Civ.App., Texarkana, 1959, no writ hist.); Carrico v. Busby, 325 S.W.2d 413 (Tex.Civ.App., Houston, 1959, writ ref., n. r. e.); and Campbell v. McKinney, 402 S.W.2d 262 (Tex.Civ.App., Houston, 1966, writ ref., n. r. e.).

In this case the jury’s answers to issues 3 and 4 establish that plaintiff sustained damages in the wreck.

We have considered all of the appellant’s remaining points of error and overrule each of them. We do not discuss them because our ruling on appellant’s second point of error controls our decision of this appeal.

Reversed and remanded.


text:
    Robert BENJAMIN et ux., Appellant, v. Marvin SAWYER, d/b/a Sawyer Construction Co., et al., Appellees.
    No. 15654.
    Court of Civil Appeals of Texas, San Antonio.
    Oct. 13, 1976.
    John D. Wennermark, San Antonio, for appellant
   BARROW, Chief Justice.

Appellants, Robert Benjamin and wife, Dorothy Mary Benjamin, have timely perfected their appeal by writ of error after a default judgment was granted appellee, Marvin Sawyer, d/b/a Sawyer Construction Company, on the cross-action filed against appellants.

Appellants filed suit against appel-lee seeking damages and to restrain appel-lee from selling or taking possession of three lots under a deed of trust lien executed by appellants in favor of appellee to secure a note given for construction of premises on the lots. It was alleged that the consideration for the note had failed because of improper construction. Appellee filed a cross-action against appellants seeking a judgment for the balance owed on the note and for foreclosure of the deed of trust lien. On November 10,1975, the trial court, after an ex parte hearing, granted appellee a default judgment on his cross-action and severed the cross-action from appellants’ cause of action.

Appellants urge by a single point of error that the trial court erred in granting a default judgment on appellee’s cross-action based on appellants’ alleged failure to answer to the cross-action. Appellee has not filed a reply brief.

Rule 81, Tex.R.Civ.P., provides in part that when the defendant sets up a counter-claim, the plaintiff may plead thereto. It is settled law that a general denial is not necessary when the counterclaim arises out of the same transactions or occurrences alleged in the petition. In Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428 (1959), the Supreme Court said that the cases are legion supporting the proposition that the law of this State does not authorize a defendant to take a default judgment on his cross-action which adjudicates against the plaintiff on the merits of his suit. See also, Pure Milk and Ice Cream Co. v. Tomlinson, 529 S.W.2d 115 (Tex.Civ. App., Austin 1975, writ dism’d); Prince v. Peurifoy, 396 S.W.2d 913 (Tex.Civ.App., Dallas 1965, no writ); Kemp v. Westbrook, 358 S.W.2d 889 (Tex.Civ.App., Dallas 1962, writ ref’d n.r.e.); 2 McDonald, Texas Civil Practice § 8.02(A)(1) (1970).

Here the cause of action asserted by appellee in his cross-action not only grows out of the same transaction asserted by appellants in their original action, but in fact, involves the same disputed issues. Since appellants were not required to file a general denial to appellee’s cross-action, the trial court erred in granting the default judgment.

The judgment of the trial court is reversed and the cause remanded for further proceedings not inconsistent herewith. The costs of this appeal are taxed against appel-lee.

      . Appellants were represented by an attorney of record who should have been notified of the hearing.


author: JAMES, Justice.

text:
    A. & M. CONSOLIDATED INDEPENDENT SCHOOL DISTRICT, Appellant, v. Raymond FICKEY d/b/a F. & F. Vending Services, Appellee.
    No. 5575.
    Court of Civil Appeals of Texas, Waco.
    Oct. 14, 1976.
    Rehearing Denied Nov. 4, 1976.

      John L. Sandstedt, Bryan, for appellant.
    Elmer McVey, Bryan, for appellee.
   OPINION

JAMES, Justice.

This is a suit for the collection of delinquent ad valorem taxes on tangible personal property. Plaintiff-Appellant A. & M. Consolidated Independent School District brought this suit against Defendant-Appel-lee Raymond Fickey d/b/a F. & F. Vending Service for delinquent ad valorem taxes on tangible personal property belonging to Ap-pellee Fickey for the years 1969 through 1974 inclusive. The personal property owned by Fickey and sought to be taxed by the School District consisted of coin-operated vending machines, including pinball machines, cigarette machines, jukeboxes, and electronic game machines.

Trial was before the court without a jury, after which judgment was entered that Plaintiff-Appellant School District take nothing, with the costs of suit being taxed against the School District.

Appellant School District asserts two points of error, to wit, that the trial court erred (1) in assessing the court costs against Appellant, and (2) in holding that Appellee Fickey was not liable for the taxes for which he was sued. We sustain Appellant’s first point and overrule the second point, and thereby affirm the trial court’s judgment with the reformation shown hereinbe-low.

We revert to Appellant’s first point. The School District is exempt from payment of any court costs in a suit to recover taxes. Arts. 7343 and 7297, Vernon’s Annotated Texas Statutes; Electra Independent School District v. W. T. Waggoner Estate (Com.App.1943) 140 Tex. 483, 168 S.W.2d 645, opinion adopted by our Supreme Court; Nacogdoches Independent School District v. McKinney (Tex.1974) 513 S.W.2d 5. However, Appellee Fickey as the winning taxpayer is liable for the court costs incurred by him. Rule 127, Texas Rules of Civil Procedure; Nacogdoches supra. Therefore, the trial court’s judgment is hereby reformed so as to hold that all court costs incurred by Defendant-Appellee Fickey in the trial court and on appeal are adjudged against him, and no costs in the trial court or on appeal are adjudged against Plaintiff-Appellant A. & M. Consolidated Independent School District.

As stated, Appellant’s second point asserts the trial court erred in holding that Appellee Fickey was not liable for the taxes sued for. Appellant School District takes the position that the personal property in question had acquired a tax situs within the A. & M. Consolidated School District for the years in question, and therefore that Appel-lee as owner thereof is liable for the school taxes sued for. We do not agree.

The trial court made findings and conclusions by way of recitals in its judgment as follows: The court “found that the property sought to be taxed by Plaintiff is personal property, and is movable; that all of such property is rendered together; that approximately 10% of such property is, from time to time, located within the boundaries of Plaintiff School District, and approximately 90% of such property is located outside the boundaries of such school district; that such property is moved from time to time and has acquired no permanent, fixed situs; the court further finds that Defendant’s warehouse, where such property is brought from time to time for repairs and for storage, is located in Bryan, Brazos County, Texas, and that Defendant’s place of residence is in Bryan, Brazos County, Texas, neither the warehouse nor his place of residence is located within the boundaries of Plaintiff’s school district.”

It is the basic rule of taxation in Texas that personal property of every description is taxable at the domicile of the owner. Great Southern Life Ins. Co. v. City of Austin (Tex.1922) 112 Tex. 1, 243 S.W. 778. Also see City of Fort Worth v. Southland Greyhound Lines, Inc. (Fort Worth CA 1931) 123 Tex. 13, 67 S.W.2d 354, certified questions answered by the Com.App. in 123 Tex. 13, 67 S.W.2d 361 in which opinion the Court of Civil Appeals opinion was approved, opinion adopted by the Supreme Court; Sanford Independent School District v. H. B. Zachry Co. (Amarillo CA 1965) 393 S.W .2d 402, Tex.Civ.App., NRE; City of Houston v. Alamo Barge Lines (Tex.Civ. App. Houston 1st CA 1969) 437 S.W.2d 579, reversed on other grounds 453 S.W.2d 132; Dennis v. City of Waco (Tex.Civ.App., Waco CA 1969) 445 S.W.2d 56, no writ; City of Bryan v. Texas Services, Inc. (Tex.Civ.App., Waco CA 1973) 499 S.W.2d 750, NRE; Claborn Corporation v. Waxahachie Independent School District, 540 S.W.2d 544 (Tex. Civ.App., Waco CA 1976) opinion dated July 29, 1976.

An exception to this rule is that where the personal property is tangible and has acquired an actual situs of its own in a place other than where the owner is domiciled, the property is taxable where it has acquired an actual situs of its own. State v. Crown Central Petroleum Corporation (Tex.Civ.App., San Antonio CA 1951) 242 S.W.2d 457, writ refused.

In the case at bar, Defendant-Appellee Fickey’s domicile as well as his office and warehouse was located in Bryan, Texas, outside the boundaries of Appellant School District; Fickey owned and operated coin vending machines including pinball machines, cigarette machines, jukeboxes, and electronic games out of his warehouse at Bryan, Texas; that he placed these machines upon the premises of various business houses in a nine county area, about 10% of which machines were at any given time within Appellant School District and 90% of which were at any given time in places outside of Appellant School District; that when the machines had to be repaired (except for very minor repairs) they were customarily taken back to Fickey’s warehouse in Bryan, Texas, and immediately replaced with another machine; that the machines were constantly being changed from location to location both within and without Appellant School District; that the pinball machines on the average were changed in location three to five times a year; the electronic game machines were moved anywhere from two to five times a year; the jukeboxes were moved on an average of once a year, while the cigarette machines were changed in location every one or two years. Fickey testified, and it was not controverted, as follows: “We move machines in and out so many times that by the time the girls get the lists prepared, it may be three or four weeks late.” Also: “We move machines continuously. I have a truck and two men. That’s practically all they do, is move machines. And the machines are brought into my warehouse in Bryan. And that’s where all the repair work is done, except minor little things.” Also: “None of my machines are located permanently any place.” Also: “If that machine breaks down and I can’t fix it, I have to move it and put in another one. It happens all the time.”

The School District as Plaintiff herein had the burden of proof to establish that the personal property in question had established an actual situs for taxation purposes within the Plaintiff School District, a place other than that of the owner’s domicile. As stated, the trial court failed to so find but on the contrary expressly found that the property had acquired no permanent, fixed situs of its own. Therefore, Appellant by its second point of error in effect is asserting that the evidence establishes as a matter of law that Fickey’s machines had acquired an actual situs in Appellant School District for taxation purposes. The evidence does not show as a matter of law that the property acquired a tax situs of its own in Appellant School District. On the contrary, the evidence is abundant to support the trial court’s finding and conclusion that the property had acquired no tax situs apart from Fickey’s domicile. In this state of the record, the basic rule applies, to wit, that the property is taxable at the domicile of the owner. See City of Houston v. Western Equipment Rentals, Inc. (Tex.Civ.App., Waco CA 1966) 410 S.W.2d 805, no writ. Appellant’s second point is therefore overruled.

Judgment of the trial court is hereby reformed so as to tax Appellee Fickey with the costs by him incurred, and to tax no costs against Appellant School District; and as reformed, said judgment is affirmed.

REFORMED AND AFFIRMED.


author: PALMORE, Justice.

text:
    B & B CONSTRUCTION COMPANY OF OHIO, INC., Appellant, v. Massar R. RADFORD et al., Appellees.
    Supreme Court of Kentucky.
    Oct. 29, 1976.
    Armer H. Mahan, Davis & Mahan, Louisville, for appellant.
    John Frith Stewart, Segal, Isenberg, Sales, Stewart & Nutt, Louisville, for appel-'ees-
   PALMORE, Justice.

The appellee, Radford, filed a workmen’s compensation claim on May 16, 1972. On February 13,1974, after the proof had been submitted for decision but before the Board had acted upon it, he sought unsuccessfully to have the order of submission withdrawn so that he might introduce proof of what he alleged to be a change of condition. The Board awarded compensation against the employer alone (dismissing the claim as against the Special Fund), based on a 25% permanent partial disability. Both the claimant and the employer appealed to the circuit court, which on October 24, 1974, entered a judgment reversing the action of the Board and ordering it to reopen the case for further proof and to apportion liability between the employer and the Special Fund.

By an unpublished opinion handed down on June 18, 1975, this court reversed and directed the circuit court to enter a new judgment upholding the action of the Board. The mandate following this opinion was issued on July 22, 1975, and the circuit court complied with it on September 8, 1975.

Meanwhile, on August 29, 1975, the claimant filed with the Board a motion to reopen based essentially on the same change of condition mentioned in his previous motion of February 13, 1974, which motion, as indicated above, had been denied by the Board. Over the employer’s objection that the Board had no jurisdiction to entertain the motion because it had been filed before the circuit court had acted on the mandate of this court, the Board on September 22, 1975, reopened the case for the purpose of hearing evidence on the merits of the motion.

The employer’s appeal from the reopening order was dismissed by the circuit court and the employer again appeals to this court, relying solely on the theory that the Board did not have jurisdiction of the proceeding on August 29, 1975, when the most recent motion to reopen was filed.

We are inclined to think that this position is hypertechnical. Conceding, as held in Jerry’s Drive In, Inc., v. Young, Ky., 335 S.W.2d 323 (1960), that while an appeal is pending the Board has no authority to reopen, that the appeal was “pending” until the circuit court complied with the mandate of this court, and that the motion to reopen therefore was premature when filed, there can be no doubt that on September 22,1975, when the Board acted, it did have jurisdiction of the proceeding. We are not disposed to say that its order was unauthorized for the simple reason that the motion had been prematurely lodged. Though we affirm the judgment of the circuit court on other grounds, we express this view in order to forestall another appeal on the same ground should the employer be aggrieved by the outcome of the reopening proceeding.

In dismissing the appeal the trial court relied on the policy against piecemeal appeals expressed in Seidl v. Willen, Ky., 411 S.W.2d 29, 31 (1967). The precise point made in the instant case was decided adversely to the appellant’s position in North American Refractories Co. v. Day, 284 Ky. 458, 145 S.W.2d 75, 77 (1940), holding that although the denial of a motion to reopen is a final and appealable order, the granting of such a motion is not. See also Huber & Huber Motor Frgt. Co. v. Workmen’s Comp. Bd., Ky., 371 S.W.2d 481, 482 (1963). There has been no change in the law as announced in these opinions.

The judgment is affirmed.

All concur.


author: SEILER, Chief Justice. HOLMAN, Judge

text:
    In re Jack B. SCHIFF, Respondent.
    No. 59011.
    Supreme Court of Missouri, En Banc.
    Nov. 8, 1976.
    Norman A. Seiner, Clayton, for informants.
    Daniel J. McAuliffe, Clayton, for respondent.
   SEILER, Chief Justice.

This is a disciplinary proceeding instituted by the Circuit Bar Committee of the 21st Judicial Circuit against a St. Louis County lawyer. After a formal hearing by the bar committee and the finding of probable cause, an information was filed in this court to which respondent filed an answer. A hearing was held before special master, Honorable Richard C. Jensen, a former circuit judge of the 16th judicial circuit, now retired. The special master, upon findings of fact and conclusions of law, recommended suspension of respondent Jack B. Schiff from the practice of law for two years. Mr. Schiff is 68 years of age and has practiced for approximately 38 years. His practice is largely in the magistrate courts. He files approximately 100 suits per week.

The matter is before us on respondent’s exceptions to the findings of the special master, together with the evidence taken before the circuit bar committee and the special master. The case involves the charge that respondent is guilty of certain sharp practices in his dealings with fellow lawyers and certain individual defendants. Respondent appeared before the special master and testified, in effect, that in some instances he could not recall the facts, in other instances the facts were not as other witnesses presented them, and that the agreements upon which some of the violations were based did not in fact exist. Moreover, he maintained that any hardship worked upon the clients of opposing counsel was due to counsel’s own negligence.

The findings and conclusions of the special master are these:

1. In the case of Ivan L. Mullenix v. Karen Fischer, Ellsworth Cundiff, Jr., entered his appearance as attorney for the defendant. Respondent was sent a memorandum of Mr. Cundiff’s appearance, and the two men discussed possible defenses in the case. Subsequently, Mr. Cundiff requested a jury trial and both attorneys were notified that the case would be set on the docket for the week of June 5, 1972, with the docket call to be held June 2. A week prior to June 2, respondent told Mr. Cundiff that he (Schiff) would appear at the docket call and inform Mr. Cundiff of the date and time of trial, and therefore, Mr. Cundiff would not have to appear. Consequently, Mr. Cundiff did not appear. Respondent obtained a setting for June 8, but did not inform Mr. Cundiff of the date, contrary to their agreement. When Mr. Cundiff did not appear on June 8 for trial, respondent took a default judgment against Mr. Cundiff’s client and did not notify Mr. Cundiff that a default judgment had been taken.

The special master concluded that by failing to notify defendant’s attorney either prior to or subsequent to the taking of the default, respondent violated Rule 4 and DR 7-106(C)(5) by failing “. . .to comply with known local customs of courtesy or practice of the bar . . . .” In this case, the local custom, as found by the special master, required notice to opposing counsel that a default would be taken and/or notice after the default judgment that a default had been taken.

The special master found further that respondent’s failure to honor his agreement to notify opposing counsel in advance of the date and time of the court setting in this contested case amounted to deceit in violation of DR 1-102(A)(4) which provides that a lawyer shall not “. . . engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Also, the special master concluded that respondent’s failure to give notice of the default after the fact demonstrated a malicious intent to prevent a disputed case from being heard on the merits in violation of DR 7-102(A)(l) which prohibits actions taken to “. . . harass or maliciously injure another.” The special master found, moreover, that these events perverted the adversary system, prevented the court from performing its proper function, and weakened public confidence in the administration of justice in violation of DR 1-102(A)(5).

2. In the case of Ivan Mullenix v. John D. Downes and Carol Lynn Downes, Harry Ritchey entered his appearance as attorney for the defendants on June 10, 1971. On that same date, a memorandum of Mr. Rit-chey’s appearance was placed in the court file. Subsequently, respondent and Mr. Rit-chey discussed possible defenses. Mr. Rit-chey requested that the case be continued at the next setting on June 24, 1971, because he would be unable to attend court. Respondent led Mr. Ritchey to believe that the case would be continued on June 24, but respondent appeared and took a default judgment against Mr. Ritchey’s clients. Respondent did not inform Mr. Ritchey that a default had been taken. The special master found respondent’s behavior violated the above mentioned disciplinary rules.

3. In the case of Ira E. Berry, Inc. v. Fred P. and Shirley J. Snyder, E. A. O’Rourke entered his appearance as attorney for the defendant Shirley Snyder and obtained a change of venue to St. Charles, Missouri. The court gave all attorneys notice that the case was set on the docket of March 30, 1973. Respondent by letter dated March 29 gave notice to Mr. O’Rourke that the case had been continued until April

4.Mr. O’Rourke then requested a jury trial and the case was set for trial on April 24. Respondent appeared at the setting of April 4 and when he learned of the request for a jury trial, he prevailed upon the judge to enter a default judgment. Even though he had further correspondence with Mr. O’Rourke, respondent did not notify Mr. O’Rourke of the default. Again, the special master found this conduct to be in violation of the above named disciplinary rules.

4. In the case of Woodson Holding Company, Inc. v. Ken Strelow, the defendant was served with pleadings stating that rent was due for August and September 1973. Mr. Strelow met with respondent on the morning of the setting of the case to discuss complaints Mr. Strelow had about the premises. Furthermore, Mr. Strelow informed respondent that the August rent had been paid by check. Mr. Strelow also gave respondent a check for the September rent which respondent forwarded to his client. Respondent then had the case continued for one week until October 4, 1973. Respondent told Mr. Strelow that in the meantime he would determine if the August rent had been paid and if it had, the case would be dismissed. In fact, Mr. Stre-low had paid his August rent by a check dated August 10 which was cleared by his bank on September 12. On October 4, knowing Mr. Strelow maintained that his rent payments were not due until the fifteenth of each month and that the plaintiff had demanded the rent payments by the tenth of each month, respondent took a default judgment against Mr. Strelow for October’s rent plus attorney’s fees and did not notify Mr. Strelow of the default judgment.

The special master found that by this conduct respondent knowingly allowed Mr. Strelow, a layman, to rely upon his misrepresentations as to settlement and kept his client’s cause of action alive until he was able to increase the amount claimed and procure a judgment for additional money without notice to Mr. Strelow of any intention to do so. Therefore, concluded the master, respondent engaged in deceit and misrepresentation prejudicial to the administration of justice reflecting on his fitness to practice law in violation of DR 1 — 102(A) generally and DR 1-102(A)(4), (5), and (6) and gave advice to a person not represented by a lawyer where the interests of such person might conflict with the interests of his client in violation of DR 7-104(A)(2).

5. Subsequent to the above mentioned default judgment in Woodson Holding Company, Inc. v. Ken Strelow, respondent requested an execution and garnishment directed to the First National Bank of St. Peters, Missouri, as garnishee in that case. The bank made its return by forwarding to respondent its cashier’s check number 18002 payable to the magistrate court. In the meantime, Mr. Strelow obtained the services of an attorney, Michael Turken, who filed motions to set aside judgment and to quash the execution and garnishment. A copy of the motions and notice of a hearing on them were mailed to respondent. On December 6, 1973, Mr. Turken filed an amended motion to quash and on that same date he, respondent, and Judge O’Neil discussed the pending motions which were continued for argument until December 20. It was also agreed and made a court order that no disposition would be made of the proceeds of the garnishment pending the outcome of the motions. Later the motions were continued again until January 17, 1974. On January 17, 1974, Mr. Turken presented to the court a copy of the First National Bank of St. Peters cashier’s check number 18002 which bore the stamped endorsements “Magistrate Court First District” and of Woodson Holding Company. The check was paid by the First National Bank of St. Peters on January 3,1974. The court stamp on the check was one used to stamp the court’s library books. Neither the judge nor court personnel gave respondent permission to place the stamped endorsement on the check pending the outcome of the motions, and regardless of who placed the endorsement on the check, it was done at a time when respondent knew of the pendency of the motions.

Additionally, by a letter dated December 12,1973, respondent wrote the First National Bank of St. Peters acknowledging receipt of its cashier’s check number 18002 and requesting an additional $19.95 to cover the costs of suit and garnishment. By its letter dated January 1, 1974, the bank forwarded to respondent its cashier’s check number 18387 payable to the magistrate court. This check, too, was endorsed with the court’s book stamp and further endorsed by respondent. Again, neither the judge nor court personnel authorized respondent to place or to have placed the court’s endorsement on the check.

The special master found that on both these occasions, respondent without consent or permission used a court stamp to endorse checks payable to the court and deposited them in favor of his client. In the first instance, the special master found respondent in violation of an express agreement that the funds should be held by the court pending the outcome of motions challenging the collection procedure. Respondent knew that his right to collect these funds was being challenged, but he proceeded to turn the funds over to his client in a manner to avoid the knowledge of the court and opposing counsel, and according to the special master thereby usurped the identity of the court and engaged in improper conduct against both the court and his adversary in violation of DR 1-102(A)(4), prejudiced the administration of justice in violation of DR 1-102(A)(5) by using the offices of the court as an instrument of unfair gain for his client, and ignored a ruling of the court with disdain for its authority and dignity in violation of DR 7-106(A).

6. In the case of The Village Green Apartments v. Robert A. Bilzing, Mark S. Seigel as attorney for the defendant filed an answer and counterclaim. Respondent then obtained a change of venue. Notice of the setting of the case was mailed to both attorneys, but Mr. Seigel did not receive his copy. On December 4, 1973, respondent took a default judgment and dismissed the defendant’s counterclaim for failure to prosecute. Respondent did not inform the judge of either Mr. Seigel’s entry in the case or his counterclaim. The judge did not read respondent’s default memorandum pri- or to approving it, and respondent made no attempt to notify Mr. Seigel that he was going to take a default and dismiss the counterclaim. Respondent did not notify Mr. Seigel that a default had been taken or that the counterclaim had been dismissed.

The special master concluded that respondent violated DR 1-102(A)(4), (5), and (6) by failing to apprise the court of the nature of the business he was presenting and DR 7 — 106(C)(5) by failing to notify Mr. Seigel of the default and dismissal.

7. In the case of Whispering Hills Development Co. v. Sanford J. Bassin, a summons issued and was returned non-est. Respondent then requested an alias summons and an attachment. The writ of attachment was executed October 1,1971, by seizing property of the defendant. The writ was returnable October 21. On October 21, respondent had the matter continued until October 28 when he presented to the clerk for her signature an affidavit in attachment dated October 1.

The special master found that respondent created evidence he knew was false in violation of DR 7-102(A)(6) when he added to the court file an affidavit dated back one month to the issuance of the order of attachment in order to preserve the magistrate court’s jurisdiction and that either the affidavit was false or it was not timely filed.

In disciplinary proceedings we have held many times that the findings and conclusions of a commissioner or special master are advisory, not binding; that it is our duty to review the evidence. “The credibility, weight, and value of the witnesses and the determination of all fact issues necessary to a decision in the case are for this court . . . .” In re Gamblin, 458 S.W.2d 321, 323 (Mo.banc 1970). This continues to be the basis on which we hear and determine disciplinary proceedings.

In the case before us, the evidence is largely oral testimony. If the facts are as testified to by the witnesses for the informants, respondent should be disciplined. If the facts are as testified to by respondent, he should not be disciplined. The special master found the former, but we agree that we should not leave the credibility of the witnesses to his sole discretion, although his neutrality is unquestioned and his findings are persuasive and amply supported by the evidence.

In making our own review of the record we find it significant that not one but three reputable practicing lawyers testified that respondent had obtained a default judgment by violating the understandings reached as to a pending case; that respondent was too quick to take a default judgment against the layman, Mr. Strelow, for the October 1973 rent under the circumstances; that it is highly unlikely that the court clerks in the garnishment case would have used the court’s library book stamp to endorse the cashier’s checks which respondent cashed; that respondent failed to apprise the court of the full significance of the default memorandum in the case where defendant’s counterclaim was shown dismissed for failure to prosecute and judgment by default was taken by plaintiff on its claim; that in the attachment case, respondent’s explanation that the attachment affidavit was absent from the court file because he had taken it to the sheriff’s office for service is not convincing, as there is no reason why the sheriff’s office would need the attachment affidavit and the normal situation would be for the attachment affidavit to be filed with the magistrate clerk before the writ of attachment was issued and to remain in the magistrate court file.

We, therefore, adopt as our own the findings of the special master and we are in accord with his conclusions with two exceptions.

We cannot agree with the special master’s conclusion that respondent violated DR 7-106(C)(5) by failing “. . . to comply with known local customs of courtesy or practice of the bar . . . .” Several attorneys practicing in the relevant judicial circuit testified to the practice of notifying opposing counsel either of an impending default judgment or after a default had been taken. The most that can be said for this testimony is that it is equivocal. The informant has failed to establish a local custom regarding the taking of default judgments. Due to this failure of proof, the special master’s conclusion regarding respondent’s violation of DR 7— 106(C)(5) is not warranted.

Likewise, based upon the evidence, we cannot agree that respondent violated DR 7~104(A)(2) by giving advice to a person not represented by a lawyer where the interests of such person might conflict with the interests of his client. Although respondent told Mr. Strelow that the case would be dismissed if it was determined that the rent had been paid, the conclusion that respondent violated DR 7 — 104(A)(2) is not warranted.

Notwithstanding our disagreement with the special master’s findings and conclusions in these two respects, we believe disciplinary action is required, but we believe the recommended suspension of two years is too harsh unless respondent fails to discontinue the sharp practices for which he has now been brought to task. Respondent Jack B. Schiff is hereby publicly reprimanded by the publication of this opinion, ordered to pay the costs of this proceeding, and placed on probation for two years from the date of this opinion under the following conditions:

1. He shall at all times conduct himself in an ethical and professional manner.

2. He shall report in writing once a month for a period of two years, commencing the first day of November, 1976, to the 21st judicial circuit bar committee certifying (a) in his first report that he has read and understands the code of professional responsibility including the canons of ethics, the ethical considerations, and disciplinary rules, and (b) in his subsequent reports that he has complied with the code of professional responsibility during the period of practice covered by each report.

We reserve jurisdiction to reconsider suspension or disbarment upon either our own motion or that of the circuit bar committee during the period of respondent’s probation.

MORGAN, BARDGETT and DONNELLY, JJ., concur.

HOLMAN, J., dissents in separate dissenting opinion filed.

HENLEY, J., dissents and concurs in separate dissenting opinion of HOLMAN, J.

FINCH, J., dissents.

HOLMAN, Judge

(dissenting).

I respectfully dissent. While I doubt the advisability of inaugurating the use of probation into our bar disciplinary proceedings I do not base my dissent on that ground. I dissent because I believe that the conduct of respondent as disclosed by the majority opinion is sufficient to require that he be disciplined at least to the extent recommended by the special master. I would accordingly order respondent suspended indefinitely from the practice of law with leave to apply for reinstatement after the expiration of two years from the date of this decision.


author: HOLMAN, Judge.

text:
    KANSAS CITY, Missouri, a Missouri Corporation, Appellant, v. ROSEHILL GARDENS, INC., Respondent.
    No. 59449.
    Supreme Court of Missouri, En Banc.
    Nov. 8, 1976.
    George L. DeBitetto, Asst. City Atty., Kansas City, for appellant.
    Charles E. Patterson, Kansas City, for respondent.
   HOLMAN, Judge.

Plaintiff instituted this action in an effort to collect the balance alleged to be due from defendant for occupation license taxes for the years 1966 to 1970 inclusive. The ordinance provides for a tax of $1.00 for each $1,000 of gross receipts for a nursery. The total amount sought was $1,516.61 tax and $379.14 penalties. Upon trial the court found that most of the sales upon which plaintiff contended a tax was due were exempt. The judgment for plaintiff was for $47.96. Plaintiff duly appealed. We have appellate jurisdiction because the case involves “the construction of the revenue laws of this state.” Art. V, Sec. 3, Mo. Const.

There is no controversy about the fact that the “hard goods” sold by defendant, i. e., fertilizer, pesticides, redwood tubs, etc., were subject to the license tax. The question presented upon this appeal is whether the items sold by defendant which it had grown were exempt from such tax by reason of Section 150.030, Y.A.M.S. which reads as follows: “Any farmer residing in this state who shall grow or process any article of farm produce or farm products on his farm is hereby authorized and permitted to vend, retail or wholesale said products, free from license, fee, or taxation from any county or municipality, in any quantity he may choose, and by doing so shall not be considered a merchant; provided he does not have a regular stand or place of business away from his farm; and provided further, that any such produce or products shall not be exempted from such health or police regulations as any community may require.”

Defendant is a family corporation owned by Everett Asjes, Jr., his wife, and two sons. Most of the land operated by the corporation is owned by Everett Asjes, Jr., and leased to the corporation. The principal office and salesroom of the defendant is located upon a seven acre tract at 9300 Holmes Street, in Kansas City. There are twenty-two parking places at that location. In addition to hard goods there are sales from the Holmes Street location of flowers, shrubs, ornamentals and various bedding plants. Much of the nursery goods sold at the Holmes Street location is produced on that seven acre tract, but there is a considerable amount that is brought in from the other three locations of the company and sold at that place.

The defendant also operates a seventy-seven acre tract located at 116th and Blue River Road in Kansas City. It also operates a two-hundred acre tract near Belton, Missouri, and a four-hundred eighty-one acre tract at Freeman, Missouri. Some farm products, such as corn and alfalfa are grown on the large tracts in Cass County at Belton and Freeman, but a considerable volume of trees and other nursery products are also produced on those two tracts. Some of the nursery products grown on the two Cass County tracts and at the 116th Street location are sold at the particular tract where they are produced. Also, some of those products are sold and shipped directly from those points to other states. However, a considerable volume of nursery products are transferred from the three other tracts to the Holmes Street location for sale there.

The trial court found that defendant should be classified as a farmer within the meaning of Section 150.030 and that all of the products grown by it should be excluded in the computation of gross sales and that only the hard goods should be included in computing the license tax.

In this court the defendant, of course, seeks to uphold the findings and judgment of the trial court. Plaintiff, on the other hand, maintains that in the sale of nursery products and bedding plants defendant is a merchant and is not to be exempted as a farmer.

We have concluded that defendant is a “farmer” and a producer of “farm products” in growing products classified both as horticultural and floracultural as well as bedding plants. We see no logical reason why a definition of farm products should be limited to products that can be consumed by either human beings or animals. In the growing of shrubs, ornamental trees and flowers the process of planting seed, cultivation and other care is used the same as in producing corn, wheat and other nutritional products. While most of the products here involved are not nutritional they are considered desirable and beneficial to mankind. We are supported in the foregoing conclusion by the cases of Boehm v. Burleigh County, 130 N.W.2d 170[7] (N.D.1964), Hagenburger v. City of Los Angeles, 51 Cal. App.2d 161, 124 P.2d 345[3] (1942), Orendorf v. H. Weber & Sons Company, 216 Md. 423, 140 A.2d 641[1] (1958), Township of Marple v. Lynam, 151 Pa.Super. 288, 30 A.2d 208[4] (1943), Dye v. McIntyre, 176 Tenn. 527, 144 S.W.2d 752 (1940), and In Re Bronxville Nurseries, 258 App.Div. 1019, 17 N.Y.S.2d 95 (App.Div.1940).

The cases cited by plaintiff in support of a contrary view are largely inapplicable or distinguishable. The one case that tends to support plaintiff’s contention (although somewhat distinguishable) is City of Amarillo v. Love, Tex.Civ.App., 356 S.W.2d 325 (Tex.App.1962). In that case the nursery stock sold by defendant was purchased from nursery farms located in other areas. When received by defendant the plants were replanted and were watered, fertilized and kept alive until sold. In ruling the case the court stated that, “In our view, nursery stock here involved is not included in the constitutional exemption of ‘farm products.’ The trees and bushes were started by grafting and budding on large nursery farms and transferred to appellee who conducted its retail and wholesale business on several city lots within the City of Amarillo. Ap-pellee is not a farmer but a merchant conducting a retail, and to some extent wholesale, business. This nursery stock has all of the characteristics of a stock of merchandise as that term is ordinarily used among both business men and the general public. Appellee’s care and treatment of this nursery stock during its ‘second growth stage’ was incidental to its selling the stock to the ultimate consumer.”

As we have said the facts in Love are not precisely the same as in the case at bar. However, to the extent that Love supports the view that nursery stocks are not farm products we do not choose to follow it.

It should be noted, however, that Section 150.030 does not exempt farm products sold by a farmer at a “regular stand or place of business away from his farm.” We agree, therefore, with plaintiff’s alternative contention that the products sold at the sales office at 9300 Holmes Street which were grown at the other three locations are not exempt. The defendant is not operating one farm but is operating four. It cannot channel the products from three of the farms through the 9300 Holmes Street place of business without losing the exemption on those products. It is, of course, entitled to exclude from the computation the products grown at 9300 Holmes Street and sold at that location.

The auditor for plaintiff in his examination of defendant’s books and records was apparently unable to satisfactorily separate the sales of products grown at 9300 Holmes Street from those grown elsewhere. The parties agree that the burden was on defendant to prove facts which would entitle it to an exemption under Section 150.030. Therefore, the burden was on defendant to show the portion of its total sales of nursery products that came from products grown on the seven acre tract at 9300 Holmes Street. Defendant failed to carry that burden.

Plaintiff contends that since defendant failed to carry its burden we should enter judgment for the total amount shown by its audit to be due, i. e., the amount claimed in its petition herein. We do not agree. This is a case of first impression in this state. The law and procedure had not been established at the time of trial. We have concluded that the judgment should be reversed and the cause remanded with directions to the trial court to hold a hearing to determine the amount of the exemption defendant is entitled to and to then enter a judgment for plaintiff for the amount of license tax due based on the amount of the remaining sales.

Defendant has briefed the point that plaintiff’s brief does not comply with Rule 84.04(d) and hence does not preserve anything for review. We rule this point against defendant.

The judgment is reversed and the cause remanded for further proceedings in accordance with the views expressed in this opinion.

All concur.


text:
    BOARD OF EDUCATION, MT. VERNON SCHOOLS, MT. VERNON, Missouri, Appellant, v. Marybelle SHANK, Respondent.
    No. 59650.
    Supreme Court of Missouri, En Banc.
    Nov. 8, 1976.

      Andrew J. Hager, Jr., Mt. Vernon, Almon H. Maus, Monett, for appellant.
    Joseph J. Russell, Cape Girardeau, for amicus curiae.
    William A. R. Dalton, Springfield, for respondent.
   HOLMAN, Judge.

In this ease the appellant, Board of Education, after due notice and hearing terminated the indefinite contract of respondent, Marybelle Shank, a permanent teacher. The action was taken pursuant to § 168.-114(4) for willful and persistent violations of the published regulations of the board relating to corporal punishment.

In accordance with the provisions of § 168.120 Mrs. Shank appealed from the decision of the board to the circuit court. That court reversed the decision, restored respondent to her position as a permanent teacher and ordered that she receive compensation during the time she was suspended from work.

The board duly appealed to the court of appeals, Springfield district. That court adopted an opinion (with one judge dissenting) which affirmed the judgment of the trial court. Upon petition of the board we ordered the case transferred to this court. It will be decided here the same as if it had been originally appealed to this court. Art. V, Sec. 10, Mo.Const. We granted transfer because we were convinced that the majority opinion did not properly follow the rules governing review of an administrative decision. We reverse and remand.

The procedure for terminating the contract of a permanent teacher is specified in detail in §§ 168.114, 168.116, 168.118 and 168.120. At this point we are particularly interested in the fact that § 168.120(2) provides that the appeal from the decision of the board shall be governed by the provisions of Chapter 536, which relates to administrative review. Section 536.140 details the scope of judicial review in such cases.

It is not disputed that Mrs. Shank had knowledge of the published regulation which provides that: “Corporal punishment shall be used only as a last resort after other corrective measures have been used without success. The following should be observed when administering corporal punishment:

“1. The punishment shall be administered by the principal or a teacher designated by the principal.

“2. The punishment shall be witnessed by at least one additional adult.

“3. The punishment shall be reasonable as to nature and amount, and shall not be of such nature as to leave permanent marks or permanent ill effects.”

Mrs. Shank was charged with violating the regulation in the following instances. In January, 1972, she struck Mark Freeman about his face; in February, 1973, she struck Stanley Harris, Charles Gibson, and Douglas Wilks about their heads and shoulders; and in December, 1973, she struck John Patton about his buttocks.

Respondent had been a teacher for 17 years and had taught grade school music in the Mt. Vernon schools for 11 years. The formal charges filed in this case were signed by the superintendent of schools. A formal hearing was held before the board at which both sides were represented by counsel. Considerable testimony was taken as indicated by the transcript of almost 200 pages.

We need not state the evidence in detail. However, a summary of the facts and developments as indicated by the testimony of the witnesses produced by the superintendent is as follows: In January, 1972, respondent grabbed Mark Freeman and slapped him in the face. Paul Maple, the elementary principal thereafter discussed with her the board’s policy and the importance of observing it. He advised her that neither he nor the board would tolerate such conduct. Mrs. Shank slapped the faces of Stanley Harris, Charles Gibson and Douglas Wilks in February, 1973. Shortly thereafter a conference was held which was attended by Principal Maple, some of the parents, Superintendent Ford and Mrs. Shank at which there was a discussion of the slapping incident involving the three boys mentioned. Mr. Maple again advised respondent of “the importance of observing the printed rules and regulations.” On April 6, 1973, the superintendent wrote a letter to respondent telling her, among other things, that there was need for improvement from her in the area of “careful consideration of published policies.” About a month later the superintendent wrote a letter to respondent in which he said, “You should in every case seek the assistance of your principal where discipline cases involve physical contact with the student or any form of corporal punishment.”

On December 13, 1973, Mrs. Shank spanked John Patton, hitting him upon the buttocks four or five times. He had tears in his eyes when he went to the principal’s office and at that time was “in a hysterical condition.” At the same time Mrs. Shank struck Keven Dougherty. Thereafter, these incidents were discussed with respondent by then Principal Tipling and respondent stated to him that she thought the board’s policy was unjust and “I know that you would have done the same thing and I would do it again if I had to.”

The evidence indicated that no adult witnessed any of the above described incidents other than respondent, nor was there any testimony that respondent had been designated by the principal to administer the punishment.

Mrs. Shank testified in the case. She denied that she slapped Mark Freeman, Stanley Harris, Charles Gibson or Douglas Wilks. She admitted that she swatted Patton twice upon the buttocks but explained that she did that in order to hasten his removal from a position which she considered dangerous.

The decision of the board was unanimous. It made detailed findings of fact. We do not consider it necessary or advisable to incorporate those findings into this opinion. It is sufficient to state that the board made findings in accordance with the testimony produced by the superintendent. It specifically found that those witnesses were credible and were telling the truth. The findings further indicated that the board did not believe the testimony of respondent. The board concluded that respondent had willfully and persistently violated and failed to obey the published regulation of the board and that it was to the best interest of the school district that her contract be terminated which was accordingly ordered.

In a recent case similar to the one before us it was well stated that, “In reviewing an administrative decision on evi-dentiary grounds, the court considers all evidence before the board, but its inquiry is limited. The reviewing court may only determine whether the board could reasonably have made its findings and reached its result or whether the decision was clearly contrary to the overwhelming weight of the evidence. Blunt v. Parker, 495 S.W.2d 708, 712 (Mo.App.1973). The court may not substitute its judgment on the evidence and may not set aside the board’s decision unless it is not supported by competent and substantial evidence on the whole record. In addition, the evidence must be considered in a light most favorable to the board’s decision, together with all reasonable inferences which support it. Harrod v. Board of Education, City of St. Louis, 500 S.W.2d 1, 6 (Mo.App.1973). If evidence before an administrative body would warrant either of two opposed findings, the reviewing court is bound by the administrative determination, and it is irrelevant that there is supportive evidence for the contrary finding. Hanebrink v. Parker, 506 S.W.2d 455, 458 (Mo.App.1974). Also the determination of the credibility of the witnesses is a function of the administrative tribunal. Hanebrink v. Parker, supra, 458.” Merideth v. Board of Ed. of Rockwood R—6 Sch. Dist., 513 S.W.2d 740, 745 (Mo.App. 1974).

When the testimony before the board is considered in light of the principles stated in Merideth we think the conclusion is inescapable that the board could reasonably have made the indicated findings and reached the result it did.

Counsel for respondent have briefed two contentions which they say support the decision of the circuit court. The first is that the regulation when properly interpreted permits a teacher to administer reasonable corporal punishment “as a last resort after other corrective measures have been used without success.” They say the three prohibitions are directory only. It is true that the sentence preceding those prohibitions uses the word “should.” However, each of the three subdivisions of the regulation use the word “shall” in designating the manner in which the punishment should be administered When considered as a whole we think the regulation must be said to be mandatory. The case relied on by respondent, Lynch v. Webb City School District No. 92, 418 S.W.2d 608[7] (Mo.App.1967), has no application to the situation before us.

The second contention is that respondent’s conduct was not a willful and persistent violation of the regulation. In that connection it should be noted that the statute uses the words “willful or persistent violation of, or failure to obey the published regulations.” (emphasis ours). It would therefore seem that conduct which was either willful or persistent or a failure to obey would be sufficient to constitute a violation. Regardless of that, however, we have the view that respondent’s conduct in administering punishment in a manner prohibited by the regulation to five children on three different occasions over a period of two years was both willful and persistent.

“Willful” has been defined as “done deliberately; not accidental or without purpose; intentional” and “persistent” as “continuing in a course of action without regard to opposition.” Webster’s Third New International Dictionary. Certainly it may reasonably be concluded that respondent intended to do the acts heretofore recited and that such acts were not accidental. The board could also reasonably have concluded that the repeated incidents indicate a stubborn continuance of conduct which was in opposition both to the regulation itself and the admonitions of the principal and superintendent. The eases of Board of School Dir. of Cass Township, Schuykill Co., 151 Pa.Super. 543, 30 A.2d 628 (1943) and Oakdale Union School District v. Seaman, 28 Cal. App.3d 77, 104 Cal.Rptr. 64 (Cal.App.1972) cited by respondent do not support a contrary conclusion. For example, Oakdale simply holds that a single violation of the board’s rules did not constitute a persistent violation thereof.

As indicated by the foregoing we rule that the trial court erred in concluding that the decision of the board of education should be reversed.

Accordingly, the judgment of the trial court is reversed and the cause remanded with directions to enter a judgment affirming the decision and order of the appellant, Board of Education.

All concur.

      . All statutory references are to RSMo 1969, V.A.M.S. .