author: STEPHENSON, Justice. JONES, Justice,

text:
    RESERVE INSURANCE COMPANY, Movant, v. Kent RICHARDS et al., Respondents.
    Supreme Court of Kentucky.
    Oct. 31, 1978.
    Rehearing Denied March 20, 1979.
    Henry A. Triplett, Hogan, Taylor, Denzer & Bennett, Louisville, for movant.
    Robert L. Bertram, Jamestown, for respondents.
   STEPHENSON, Justice.

This appeal involves the question of timely notice in accordance with the provisions of a policy of insurance. The trial court determined the notice to be untimely and granted movant’s motion for summary judgment.

The Court of Appeals found the timely notice issue to be a question of fact and reversed the granting of summary judgment.

We granted discretionary review and reverse.

As background to this controversy, on July 1, 1970, an employee of the Russell County Schools filed an action against respondents here in the United States District Court for the Western District of Kentucky. The subject of the lawsuit was the mandatory maternity leave policy of the school board. The district court dismissed the action and was reversed by the Sixth Circuit Court of Appeals on June 1, 1972. Pursuant to the mandate of the Sixth Circuit Court of Appeals, the United States District Court entered judgment in the sum of $4,120 on December 1, 1972, against the school board.

On December 26, 1972, the respondents filed suit against the movant, Reserve, on a policy of liability insurance issued by Reserve to the Kentucky School Board Association. As members of that association, the respondents, the Russell County School Board and its members, were covered by the policy.

Respondents’ complaint alleged:
“That on August 19, 1968, the defendant executed and delivered to the plaintiffs, a General Liability Policy No. XGA 001020, insuring the plaintiffs against acts or omissions of the Board and its members arising out of the performance of their duties.”

Reserve answered, denying liability and pleading a lack of timely notice in accordance with the notice provisions of the policy which are as follows:

“(a) In the event of an occurrence, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to the company or any of its authorized agents as soon as practicable. The named insured shall promptly take at his expense all reasonable steps to prevent other bodily injury or property damage from arising out of the same or similar conditions, but such expense shall not be recoverable under this policy.
“(b) If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative.”

After answer Reserve propounded interrogatories to the respondents, in particular the following:

“When did you notify defendant or its agent, Kentucky School Board Association, about the claim which was the subject of Eliza Chapman Garner v. R. Brooks Bates, et al., United States District Court for the Western District of Kentucky, Bowling Green, No. 1444?
“The plaintiffs state that the Kentucky School Board Association was notified by Robert L. Bertram, Attorney for Russell County Board of Education on August 31, 1971.”

Prior to submission of the case on Reserve’s motion for summary judgment, respondents’ attorney filed an affidavit in opposition, in substance stating lack of prejudice to Reserve, that the Kentucky School Board actually knew of the United States District Court suit, although no written notice was given etc.

It is in this posture that the case was submitted to the trial court. Thus according to the record, the insurance policy had been delivered to respondents in 1968, there was no attempt to comply with the notice provisions of the policy until August 31, 1971, when the Kentucky School Board Association was notified some 13 months after suit was filed in United States District Court. The trial court then granted summary judgment in favor of Reserve.

On appeal to the Court of Appeals, respondents interjected a new issue into the case. All of a sudden before the Court of Appeals, respondents argued as a fact that they were unaware of the existence of this insurance policy and ipso facto there was a justiciable issue as to whether lack of knowledge excused them from compliance with the notice provisions of the policy. The Court of Appeals considered this issue, raised for the first time at the appellate level, and proceeded to find as a fact that respondents were unaware of the existence of the policy and reversed the trial court. We are of the opinion the Court of Appeals was in error in considering an issue raised for the first time at the appellate level. Movant argues the record before the trial court was devoid of any allegation or inference of this issue; and after examining the record, we also have failed to find any allegation or argument on this issue by the respondents. This issue was not presented to the trial court and cannot be considered on appeal.

Compliance with the notice provisions of an insurance policy is a condition precedent to recovery on the policy. The reasonableness and validity of such provisions in an insurance policy have been consistently recognized. It is not necessary for the insurer to prove actual prejudice from failing to give timely notice. Jefferson Realty Co. v. Employers’ Liability Assurance Corp., 149 Ky. 741, 149 S.W. 1011 (1912); Sun Indemnity Co. v. Dulaney, 264 Ky. 112, 89 S.W.2d 307 (1936); and Travelers Insurance Co. v. Boyd, 312 Ky. 527, 228 S.W.2d 421 (1950).

We are of the opinion that a period of 13 months from occurrence to notice is not “as soon as practicable” and is not timely notice so as to comply with a condition precedent to recovery. Southeastern Tel. Co. v. Fidelity & Casualty Co. of New York, 272 Ky. 82, 113 S.W.2d 871 (1938). For the purposes of this case we treat the date of filing action in United States District Court as the date of the occurrence although obviously claim was made to the school board before that date. Also for the purposes of this case, we treat the equivocal answer to the interrogatory above as the date of notice.

We would further point out that when timely notice is made an issue in a case, the insured carries the burden of proof that notice was timely. It is apparent the burden of proof was not satisfied here by respondents.

We are of the opinion the trial court properly granted summary judgment to Reserve.

The Court of Appeals is reversed.

PALMORE, C. J., and LUKOWSKY, STERNBERG, STEPHENSON and REED, JJ., concur.

JONES and CLAYTON, JJ., dissent.

JONES, Justice,

dissenting.

With due respect for the opinion of the majority of this Court, I feel constrained to dissent from the views expressed therein concerning the trial court’s granting Reserve’s motion for summary judgment.

The procedure for summary judgment under CR 56.01 is a handy tool for the bench and bar alike, but it is a drastic remedy because it deprives a party of a trial and results in a final judgment against him. The procedure should not be invoked where a genuine issue of a material fact is involved. CR 56.01; Conley v. Hall, Ky., 395 S.W.2d 575 (1965); Mooser v. Mason, Ky., 416 S.W.2d 355 (1967). Here, the issue of timely notice is a question of fact and should have been submitted to a jury.

The affidavit of Richards’ attorney filed in response to Reserve’s motion for summary judgment stated that the Kentucky School Board had knowledge of the action filed in the United States District Court on July 1, 1970.

I would affirm the judgment of the Court of Appeals, and respectfully register my dissent for reasons set out herein.

I am authorized to say that CLAYTON, J., joins in the dissent.


source: Caselaw Access Project

author: REYNOLDS, Judge.

license: Public Domain

text:
    Philip E. KIRK, M.D., Appellant, v. JEFFERSON COUNTY MEDICAL SOCIETY, Appellee.
    Court of Appeals of Kentucky.
    Oct. 6, 1978.
    Rehearing Denied Nov. 3, 1978.
    Discretionary Review Denied March 13, 1979.

      Henry J. Burt, Jr., Louisville, for appellant.
    Charles J. Cronan, IV, Carl L. Wedekind, Jr., Louisville, for appellee.
    Before MARTIN, C. J., and REYNOLDS and WILHOIT, JJ.
   REYNOLDS, Judge.

This is an appeal by Dr. Philip E. Kirk from summary judgment and orders of Jefferson Circuit Court which dismissed appellant’s action and temporary injunction against Jefferson County Medical Society, appellee.

The appellant, Philip E. Kirk, was a licensed and practicing physician in Louisville, Kentucky, and a member of Jefferson County Medical Society, a Kentucky corporation. Preliminarily, in February 1976 a member of the Society orally complained to the Society’s Judicial Council concerning appellant. On February 20,1976, the chairman of the Council advised appellant by letter of reported irregularities and directed an invitation for him to appear for an informal investigation. The appellant personally appeared at the informal hearing in March 1976, and thereafter on April 12, 1976, he was informed that the Council was not satisfied that the charges had been adequately answered. Additionally, appellant was also informed that he had the right, under the Society’s by-laws, to request a formal hearing, to be represented by counsel and to introduce evidence and produce witnesses. Additionally, appellant was told that in the event he did not elect to proceed with the formal hearing that the Judicial Council would recommend to the Society that he be expelled. Thereafter appellant requested a formal hearing, and he was advised on June 5, 1976, that he was charged with violating Sections 1, 3, 4, 7 and 10 of the Principles of Medical Ethics of the American Medical Association and Article D of the Jefferson County Medical Society By-Laws.

Section 1 states: The principal objective of the medical profession is to render service to humanity with full respect for the dignity of man. Physicians should merit the confidence of patients entrusted to their care, rendering to each a full measure of service and devotion.
Section 3 states: A physician should practice a method of healing founded on a scientific basis.
Section 4 states: The medical profession should safeguard the public and itself against physicians deficient in moral character or professional confidence. Physicians should observe all the laws, uphold the dignity and honor of the profession and accept its self-imposed disciplines.
Section 7 states: In the practice of medicine a physician should limit the source of his professional income to medical services actually rendered by him . Drugs, remedies or appliances may be dispensed or applied by the physician provided it is in the best interest of the patient.
Section 10 states: The honored ideals of the medical profession imply that the responsibilities of the physician extend not only to the individual, but also to society where these responsibilities deserve his interest and participation in activities which have the purpose of improving both the health and well-being of the individual and the community.

The specific conduct thought to have been in violation of the above ethical principles was set out in the letter of June 5 and is summarized as follows:

(a) That he did on numerous occasions during the year 1975 prescribe medications, unnecessary for medical treatment of patients, solely for his personal financial gain.
(b) That he did on numerous occasions during the year 1975 write and issue prescriptions which were either undated or postdated (citing specific examples).
(c) That the same person visited his office for diet medication on six occasions within a thirty day period, from December 11, 1975, to January 9, 1976, and that he wrote prescriptions for diet medications for this same person on December '11, 1975, under the patient name George Wilson; on January 5, 1976, under the patient name Laighton Cruise, and on January 9, 1976, under the patient name, John R. Wilson.
(d) That he did on numerous occasions during the year 1975 issue prescriptions to various patients in such dose succession as to reasonably indicate their use of such prescriptions r for other than medical purposes (citing examples).
(e) That he did during the year 1975 conduct his practice at 3408 Broadway in a manner which was detrimental both to the medical profession and to the general health and well-being of individuals in the community as a whole.

The formal hearing requested by appellant was scheduled and held on July 9,1976, at which time appellant and his attorney were advised by the chairman that they could offer any sort of documentary evidence and testimony and had the right to cross-examine any witness, that the proceedings were not governed by any formal rules of evidence, and that all objections would be noted of record. The proceedings were reported and transcribed. Appellee’s counsel introduced the testimony of two former patients and two police investigators. Appellant cross-examined these witnesses. Appellant testified in his own behalf and introduced two witnesses. Summarily, the evidence consisted of instances of how patients obtained or attempted to obtain drug prescriptions and such circumstances as were involved in the doctor’s office operation. Thereafter the Council recommended appellant’s expulsion, and he was so advised on July 15,1976. The record indicates that the appellee, at a general meeting on November 15, 1976, undertook action to expel the appellant from its organization, and this action was taken to restrain appellee from effectuating the action and expelling appellant from the Society-

Appellant raises two interrelated issues:
In expulsion proceedings must the Jefferson County Medical Society comply with its by-laws and due process?
Additionally, may the Jefferson County Medical Society vote to expel a member on an issue upon which there was no evidence entered into the record?

Appellant’s argument that the action of the Society’s Judicial Council was arbitrary and/or was not supported by competent evidence is a question reviewable by the courts. It has been held that Section 14 of the Kentucky Constitution provides that the court does have inherent power to scrutinize the acts of administrative tribunals, or in this instance, the appellee, wherein the person or property rights of an individual have been adjudicated. See McElhinney v. William Booth Memorial Hosp., Ky., 544 S.W.2d 216 (1976). However, we find from a review of the entire proceedings that the action of the Judicial Council was neither arbitrary nor capricious. While we might not be in total agreement with appellee’s final decision, we conclude that there was a sufficiency of evidence to support the action taken by the appellee. Herein it was appel-lee’s exclusive province to determine the weight to be given the evidence presented. We recognize that the Council was composed of a group of appellant’s peers, all being highly trained and possessing expertise as to matters of medical evidence and conduct. In such a situation the substantial evidence rule is correctly applicable. Kentucky State Racing Commission v. Fuller, Ky., 481 S.W.2d 298 (1972).

Appellant further maintains that there was a violation of the Medical Society’s By-Laws in that proceedings were improperly instituted; no written complaint filed; no certainty as to who was the complainant; no authority for Council to appoint itself as an investigating committee; no copy of the complaint furnished accused; and no right of cross-examination of the complainant, Dr. Severs, and of the Judicial Council. From a review of appellee's ByLaws and of the record we determine that appellant’s argument fails. The great weight of authority holds that a lack of technical formality in the expulsion proceedings is not in and of itself a basis for court review, wherein a club’s regulations or a society’s regulations were not strictly followed. We hold that absolute technical accuracy is not required. Moreover, the proceedings are not required to be as formal or technical as in a trial at law, and it is sufficient that the constitution and by-laws are substantially observed, notice given to accused with opportunity to be heard, and judgment pronounced from proper motives and in good faith. 70 C.J.S. Physicians and Surgeons § 80. Appellee’s Articles of Incorporation and By-Laws, Chapter 4, Article G, and the sections thereafter enumerated were correctly found by the trial court to be substantially, if not strictly, complied with.

Appellant has asserted that he was not accorded a due process hearing. From the record we have determined that appellant was given notice of all investigative and disciplinary proceedings, apprising him of the time, place and subject of inquiry, and of his right to appear with counsel, and, additionally, he was furnished the names of all witnesses and proposed evidentiary documents as well as a list of the factual allegations set forth in written form. We find no abridgement of due process, and appellant was afforded more than rudimentary due process. Duby v. American College of Surgeons, 468 F.2d 364 (7th Cir. 1972).

Appellant states that the Judicial Council erroneously failed to severally vote on the charges upon which it heard testimony. We hold this contention is without merit. CR 52.04.

Appellant further maintains that the Judicial Council voted only on one charge which was the matter of Ethics and that the record is absent evidence concerning this particular ground. This Court has previously noted that the Judicial Council was comprised entirely of physicians and surgeons, who we believe to have been eminently familiar with the ethical principles and charges set forth in the complaint and who heard evidence of factual events which concerned violations of such principles. A review of appellant’s depositions taken of the members comprising the Judicial Council reflects that appellee’s decision was not founded on evidence which was not presented at the formal hearing. Additionally, appellant has not shown that the trial court’s finding is clearly erroneous nor was there an objection made to the court’s finding upon these issues. We find a sufficiency of evidence to support the trial court’s finding. CR 52.01 and CR 52.03.

The judgment of the trial court is af- ' firmed.

All concur.


author:
LESTER, Judge.
      WILHQXT, Judge,

text:
    HART COUNTY BOARD OF EDUCATION, Obert Jaggers, Chairman of the Hart County Board of Education, and Brownie Rock, Chester Devine, Larry Perkins, and Steve Bowman, Members of the Hart County Board of Education, Appellants, v. Rennard BROADY, Appellee.
    Court of Appeals of Kentucky.
    Feb. 2, 1979.

      Robert B. Hensley, Hensley, Craddock, Talley & Dunn, Horse Cave, for appellants.
    H. Jefferson Herbert, Jr., Wilson, Herbert, Garmon & Sparks, Glasgow, for appel-lee.
    Before COOPER, LESTER and WIL-HOIT, JJ.
   LESTER, Judge.

The Hart County school authorities appeal from an adverse judgment of the court below which restored appellee to the position of principal after his demotion as such by the board of education. The circuit judge heard this cause without intervention of a jury pursuant to the provisions of KRS 161.765 and 161.790 and after making findings of fact and conclusions of law, rendered the judgment aforesaid.

Since KRS 161.765, the demotion statute, directs that appeals from a determination by a board of education “may be taken in the same manner and under the same provisions as an appeal from board action under KRS 161.790”, then the function of this court is set forth in CR 52.01, which limits us to a determination of whether the findings of the trial court are clearly erroneous. 7 W. Clay, Kentucky Practice, CR 52.01, Comment 8 (3rd ed. 1974), Harlan County Board of Education v. Stagnolia, Ky.App., 555 S.W.2d 828 (1977). This would be true despite appellants’ attempt to distinguish between a demotion case and a termination of contract type of litigation.

The record made before the appellant administrative body consists of 480 pages of testimony and on some 52 occasions there was applause, laughter, shouting and remarks from the spectators, caustic remarks between counsel, remarks between counsel and spectators and certain shouted denials from the audience as witnesses testified. One would not necessarily have had to be present at the hearing, but would only need to read the record, to be aware of the Roman circus type of atmosphere that prevailed during the five night sessions held in appellee’s case. It was this transcript that caused the trial judge to write in part:

The four resultant volumes of the transcript chronicle proceedings unique in the annals of jurisprudence. The chairman lost control of the situation; the attorneys directed their remarks to each other; the spectators broke into applause on numerous occasions; and certain of the spectators shouted denials as witnesses testified. Incompetent evidence flowed in a mighty stream.

It is this type of record that lends credence to the comment of Justice Palmore in Bell v. Board of Education of McCreary County, Ky., 450 S.W.2d 229, 232 (1970), that “[t]he prospect of a ‘fair trial’ at the board level is bound to be, in most instances, an illusion.”

Appellants’ superintendent, Leland Gregory, recommended appellee’s demotion through the medium of charges dated April 13, 1977, which detailed specified incidents dating as far back as February, 1976, but the record reveals that the inception of this action was actually found in the remark of appellant, Brownie Rock, a board member, who stated to a witness that “we are going to get rid of Mr. Broady” some two to three years prior to his evidence before the court given on April 5, 1978. The scheme continued to develop in August of 1976 when another witness was hired as a temporary secretary in appellee’s school. Before assuming her duties, she was engaged in a confidential conversation by Gregory, the substance of which was a request that she report appellee’s absences from the office, as a basis for charges, because “we want to get rid of Mr. Broady, but we can’t because he has tenure.”

The plan to “get Mr. Broady” gained assistance from four of the thirty-four teachers in appellee’s school, and was led by one of the four who not only agitated the faculty members against the principal but also discussed the affair with board member Rock. It was this teacher, a professional person holding two degrees in education, who in the presence of other staff members and “one little girl” called another teacher “a two-faced, fat-bodied bitch.” This elevating comment was made in the school during the period that the board was conducting its sessions, or more specifically on Friday, June 3, 1977.

At the conclusion of the board’s deliberations, Brownie Rock made the motion to demote Rennard Broady.

With this background in mind, we marvel at appellants’ language contained in their reply brief to the effect:

First, the Courts are not the proper agency to administer the school system. With all due respect, Judges simply lack the information and the expertise needed to sit in review of a School Board’s personnel decisions. A Court’s scope of review should be confined to the patently arbitrary or baseless demotions which must be invalidated.

The Hart Circuit Court must have agreed with the last quoted sentence when it ordered appellee reinstated, for it determined that the board’s decision was unreasonable, arbitrary and predetermined. We agree with the court and accordingly, we will affirm.

The circuit court denominated the charges against appellee to be of such “nitpicking, straw-grasping quality as to appear ludicrous on the face of them.” Let us briefly examine the superintendent’s indictment. Gregory pitches much of the grievances upon Broady’s failure to have custodians perform such duties as cleaning a drain on the faculty parking lot, washing windows and sweeping floors. The transcript reflects that the principal personally attempted to dean the drain (which task we do not perceive to be among Ms duties), and the other janitorial omissions can be laid at the doorstep of the board of education and its chief executive officer for failure to provide even the minimum custodial help recommended by the State Department of Education. Appellee is further accused of not seeing to it that the playground was adequately supervised. Gregory waited from April of 1976 until a year later to make this allegation, but when he did, it was completely refuted by the teachers who actually performed the supervision. In March, 1976, Broady made a statement while having lunch in the presence of three staff members that he was not happy with the lunch program and was going to do something about it. For this, they wanted to demote him. In the first place, we are unaware of any valid rule, regulation or statute that deprives a person of their First Amendment rights when they become a principal in our Kentucky schools. If the director of food services, who was responsible to the superintendent and not appellee, was not providing adequate breakfasts and lunches, then that person should be criticized. We note that Gregory waited from March 3, 1976, until April 13, 1977, to level this charge. In spite of his denial that he was charging Broady with dishonesty, Gregory says the principal made no accounting to the teachers for certain funds such as activity fees. There was no board policy requiring such an accounting, but from the testimony, it was abundantly clear that whenever a faculty member desired to know how much money was available for their specific purposes, they had to do nothing more than go to appellee’s office where they could obtain the information. This allegation appears to have its roots in the fact that Broady never went directly to Jane Simms and told her what sum she had at her disposal. On the other hand, she never made inquiry of Broady, for she said, “I don’t think we should have to go to him.” Gregory further accuses the principal with being absent from school for three half days during 1977, but appellee provided a more than satisfactory explanation for these occasions. There were several other charges which were either too general, without dates, or, to employ the language of the trial judge, so “ludicrous,” as not to require further elaboration.

Appellants cite Bell v. Board of Education of Harlan, Kentucky, Independent School District, Ky.App., 557 S.W.2d 433 (1977), as establishing a test for what is substantial evidence sufficient to support a finding of a board. We do not view Bell in the same light, for we believe that it merely spells out the duty of the trial court in this type of case. It first requires examination of the charges to determine if the notice was adequate and, “[h]aving been satisfied with the adequacy of the notice, [the trial court] must then determine if there is substantial evidence to support the conclusion reached by the Board.” Id. at 434. Bell does not stand for the proposition that the circuit court cannot make the determination that there was insufficient substantial evidence to sustain the charges. However, this facet of the appeal is of little significance since the prime basis for the court’s decision was the arbitrary and predetermined opinion of the board.

It is axiomatic that the fair trial concept is deeply engraved into the due process requirements. Moreover, it is well established that “a biased decisionmaker [is] constitutionally unacceptable [and] ‘our system of law has always endeavored to prevent even the probability of unfairness’.” Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975), quoting In re Murchison, 349 U.S. 133, 136, 99 L.Ed. 942, 75 S.Ct. 623 (1954). Hortonville Joint School District No. 1 v. Hortonville Education Association, 426 U.S. 482, 96 S.Ct. 2308, 49 L.Ed.2d 1 (1976), does not overturn the standards of Withrow, but merely distinguishes between incapability of one’s judg ing a particular controversy fairly on the basis of its own circumstances and mere familiarity with the facts of a case gained by an agency in the performance of its statutory role. In the present litigation, appellee has a distinct interest or stake in the matter, for a portion of his income and his competency as an administrator and professional responsibility are at stake. We believe that he was entitled to a completely unbiased tribunal to hear his case. Considering “a realistic appraisal of psychological tendencies and human weakness”, With-row, supra, we believe Brownie Rock’s participation in the hearing and decision making process before the board vitiated the due process requirements.

It has been urged that Rock’s comments were too remote in time and should have not been considered. We reject this contention, for

[t]he test as to remoteness is that if the offered evidence is so remote as to have no probative value it should be excluded but if it is relevant and has some degree of probative value, however small, it is admissible, and its weight is for the jury. Caton v. McGill, Ky., 488 S.W.2d 345, 346 (1972).

Moreover, “[r]emoteness is a matter of degree, a relative concept with no fixed standard, the determination of which is usually a discretionary matter for the trial court.” Mason v. Stengell, Ky., 441 S.W.2d 412, 415 (1969).

It should be noted that the Hart Circuit Court not only reviewed the record made before the board, but also heard additional evidence. It was at this second stage of the proceedings that the evidence concerning Rock’s efforts directed towards Broady was adduced. Unlike Burkett v. Board Of Education Of Pulaski County, Ky.App., 558 S.W.2d 626 (1977), where the circuit court specifically found nothing to suggest bias, this case presents far more than an “inference of arbitrariness,” Snapp v. Deskins, Ky., 450 S.W.2d 246 (1970), and this is why it is distinguishable from Harlan County Board of Education v. Stagnolia, Ky.App., 555 S.W.2d 828 (1977). In Stagnolia, the real basis for disciplinary action was political in nature, and consequently, only an inference of arbitrariness was necessary to void the board’s action, while in the present appeal there exists a series of circumstances consistent with a well designed plan to oust appellee from his principalship, which demonstrates outright prejudice against him. In this matter, more than an inference was necessary to void the board’s action. More than an inference was present and accordingly,

The judgment is affirmed.

COOPER, J., concurs.

WILHQXT, Judge,

concurring.

I concur in the result reached by the majority, although I cannot agree with the conclusion of the trial court that had all of the charges against the appellee been proven “it would not have been sufficient grounds to justify the demotion of a principal.” The statute requires that an administrator be given written notice of any recommendation for his demotion and, when contested, a specific statement of the grounds upon which the recommended demotion is based. Unfortunately, the statute gives us no guidance as to what grounds are sufficient upon which to demote administrative personnel. Appellants have argued that a principal has no tenure right to that position and hence grounds which are sufficient to support the dismissal of a nontenured teacher will suffice to demote a principal. It does not seem to me that the Legislature intended that the grounds necessary for demotion for an administrator be equal to those required to dismiss a tenured teacher. Perhaps the answer lies somewhere between these extremes. In any event, we need not reach this important question because the Superintendent chose the grounds upon which to base his recommendation and the trial court found those grounds to be without factual foundation. This factual finding of the court was not clearly erroneous and I therefore believe the result reached by the trial court should be affirmed.

Appellant’s complaint about the authority of the circuit court to hold the kind of hearing it held here is more properly addressed to the General Assembly than to this Court.


author: VANCE, Judge:

text:
    Dennis LYLE, Appellant, v. SWANKS AND MADISON STANDARD SERVICE STATION, Appellee.
    Court of Appeals of Kentucky.
    Feb. 2, 1979.

      Victor E. Tackett, Louisville, for appellant.
    Lee E. Sitlinger, Jr., Louisville, for appel-lee.
    Before HOGGE, VANCE and WHITE, JJ.
   VANCE, Judge:

This is an appeal from the order of the Jefferson Circuit Court dismissing appellant Dennis Lyle’s complaint for personal injuries on the basis that Lyle could not maintain such an action due to the limitations on his tort rights imposed by KRS 304.39-010 et seq. (The Motor VEhicle Reparations or No-Fault Insurance Act.)

The facts are not in dispute. Lyle was injured while attempting to have his automobile jump-started at appellee Swanks and Madison Standard Service Station. He had positioned himself between his car and the service station vehicle, and an employee of the station had attached the jumper cables and had started the station’s vehicle when, due to the station’s vehicle being left in gear, it lurched forward pinning Lyle between the two vehicles. Although later admitting that he had neither rejected no-fault limitations on his tort rights, nor met the thresholds prescribed by KRS 304.39-060(2)(b), Lyle filed suit for his personal injuries. The specific question decided in the negative by the trial court was whether a person otherwise subject to the limitations on his tort rights, and admittedly not having met any of the thresholds of KRS 304.39-060(2)(b), could still maintain a common law action for personal injuries solely because the accident causing injury occurred on private property.

On appeal, Lyle contends that the trial court’s dismissal of his complaint was error because the limitations on tort rights imposed by KRS 304.39-010 et seq. are not applicable when the action occurs on private property, and because such a ruling constitutes a denial of his rights to equal protection of the laws.

Lyle argues that the lack of reference to private property and the particular use and emphasis of the term “public roadways” in KRS 304.39-010 et seq. makes it clear that the legislature intended that the limitations only apply to accidents occurring on a public roadway. However, we believe that the term “public roadway” as used in KRS 304.39-060(1), the section of the no-fault law cited by Lyle in support of his interpretation, merely defines where a motor vehicle must be “operated, maintained, or used” in order for the law to imply one’s acceptance of the limitations on his tort rights. KRS 304.39-060(1) provides in part:

(1) Any person who registers, operates, maintains, or uses a motor vehicle on the public roadways of this commonwealth shall, as a condition of such registration, operation, maintenance or use of such motor vehicle and use of the public roadways, be deemed to have accepted the provisions of this subtitle, and in particular those provisions which are contained in this section.

The entire purpose of this provision is to state that as a consequence of the use of the public roadways of this Commonwealth one will be deemed to have accepted the Act’s provisions. No attempt is made to say where an accident must occur before the limitations on tort rights imposed by the Act will apply.

However, in KRS 304.39-030(1) and (2), where the conditions under which a person is entitled to basic reparations benefits are set forth, accidents and the place of their occurrence are specifically mentioned without distinguishing between public roadways and private property. KRS 304.39-030(1) provides for benefits unless tort limitations have been rejected in the event an “. . . accident causing injury occurs in this commonwealth . . . arising out of maintenance or use of a motor vehicle.” KRS 304.39-030(2) makes provisions for basic reparation benefits for certain persons or survivors, “[i]f the accident causing injury occurs outside this Commonwealth but within the United States, its territories and possessions, or Canada.” In our opinion, if the legislature had intended to restrict the limitation on tort rights to accidents occurring on specific types of roadways, it would have done so in these sections which draw the geographic boundary lines for entitlement to basic reparation benefits. In any event, the fallacy of Lyle’s argument is readily apparent by reference to his contention that the legislature intended the limitations to apply only to accidents occurring on public roadways in this Commonwealth, when in fact the statute clearly allows for accidents to occur well beyond the boundaries, not only of Kentucky, but also the United States.

Similarly untenable is his argument that the dismissal of his complaint constitutes a violation of his right to equal protection of the laws. Such an assertion was laid to rest in Fann v. McGuffey, Ky., 534 S.W.2d 770 (1975), based on the theory of implied consent.

The judgment is affirmed.

All concur.


author: HOGAN, Judge.

text:
    STATE of Missouri ex rel. Gerald BONHAM, Joan Collins, Glen Painter and Lorene Brill, Individually and as representatives of the class known as all teachers employed by the Springfield XII School District, Relators-Appellants, v. M. D. BONEBRAKE, Mrs. John B. Bentley, Jack O. Cole, Theodore C. Salveter IV and William V. Turner, as officers and members of the Springfield R-XII School District, Respondents-Respondents.
    No. 10524.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 5, 1979.
    Thomas D. Carver, Carver & Sotta, Joplin, for relators-appellants.
    Kenneth T. Walter, Mann, Walter, Bur-kart, Weathers & Warden, Springfield, for respondents-respondents.
   HOGAN, Judge.

In this mandamus action the relators sought construction and enforcement of § 163.031(9), RSMo (Supp.1973), which read in pertinent part as follows:

“[A] school district shall spend for teachers’ salaries each year at least eighty percent of the state school funds received under this section that year as provided by section 163.061 and as much of the revenue produced by local tax levies as was spent for teachers’ salaries the previous year . . .”

Contending that the respondent school district had improperly “commingled” funds received as school foundation money with funds representing local tax levies, the rela-tors presented proof tending to show that if their system of tracing funds were used, the district would owe them a large sum of money. Respondents’ proof tended to show that “commingling” was not prohibited, and they had testimony from the State Board of Education indicating they had fully complied with the 80 percent requirement of § 163.031(9). An alternative writ issued, but after hearing evidence, the trial court quashed the alternative writ and refused a peremptory writ. The relators appeal.

The appeal tenders the selfsame questions which were advanced and considered in State ex rel. Niess v. Junkins, 572 S.W.2d 468 (Mo.banc 1978). Construing the statute, the court held, 572 S.W.2d at 472[2, 3]:

“. . . § 163.031(9) does not . . . contemplate that the district must utilize [the accounting] system whereby it traces specific funds received from the state to disbursements for teachers’ salaries. Instead, the legislature has directed in § 165.011.1 that funds from various sources for use in paying teachers shall be commingled in the teachers’ fund account. . . [The 80 percent] requirement does not necessitate tracing of particular funds from receipt to disbursement. . . . Compliance [as] determined by the State Department of Education [meets] the requirements of § 163.-031(9).”

The ruling set out is controlling and dis-positive, and in this case original appellate jurisdiction is in this court. State ex rel. Niess v. Junkins, supra, required “construction” of a revenue law, but having construed the very statute in an identical context, the Supreme Court need not repeat itself. See Little River Drainage Dist. v. Jones, 234 Mo.App. 816, 826, 136 S.W.2d 440, 447 (Mo.App.1940). This court has only to “apply” the legal doctrine announced by the Supreme Court to the facts at hand. Cf. State v. Holley, 488 S.W.2d 925, 927[5] (Mo.App.1972). Application of the law as pronounced in State ex rel. Niess v. Junkins, supra, 572 S.W.2d at 472[2, 3] requires that the judgment of the trial court be affirmed. Pursuant to Rule 84.16(b), Y.A. M.R., it is so ordered.

BILLINGS, P. J., and MAUS, J., concur.


author: BILLINGS, Presiding Judge.

text:
    FIRST STATE BANK OF JOPLIN, Plaintiff-Respondent, v. Burnal BROWN, Defendant-Appellant.
    No. 10702.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 6, 1979.
    Karl W. Blanchard, Jr., Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for plaintiff-respondent.
    L. Thomas Elliston, Elliston & Webster, Webb City, for defendant-appellant.
   BILLINGS, Presiding Judge.

A Newton County jury found in favor of plaintiff First State Bank of Joplin in its suit on a guaranty agreement signed by defendant Burnal Brown. The agreement guaranteed payment of a note executed by Thomas Schroeder to plaintiff in connection with a loan made to Schroeder so he could purchase stock in a corporation in which defendant was a principal stockholder. Judgment was entered on the verdict for the balance due under the note, including interest, and for attorney’s fees. We affirm.

The only trial issue was whether defendant executed the guaranty in his individual capacity, or as president of the corporation. It was defendant’s theory that he signed the guaranty agreement in blank with the understanding it was to be a guaranty of the corporation. We have reviewed the trial testimony and exhibits bearing on this issue and conclude there was substantial evidence to support the jury’s verdict.

Defendant’s principal point on appeal is that the trial court erred in giving MAI 2.02 [Facts Not Assumed] as the first instruction after the close of the evidence, because it is required to be given as the next to the last instruction immediately before the Form of Verdict instruction. MAI 2.02 “Notes on Use.” In support of this assignment we are cited to Crystal Tire Co. v. Home Service Oil Co., 525 S.W.2d 317 (Mo. banc 1975). This case holds that the failure to give MAI 2.02 as stated by the “Notes on Use” is error, and presumptively prejudicial. However, Crystal Tire further recognizes that such deviation is not reversible error, if it is made clear that no prejudice resulted therefrom. We find no prejudice in the instant case. As stated above, the question for resolution was the capacity in which defendant signed the guaranty. The guaranty, showing on its face that it was signed by defendant, was an exhibit. A bank officer identified her signature as a witness to the guaranty. The former bank president testified he agreed to make Schroeder the loan only if defendant personally guaranteed the loan and the latter agreed to do so. Defendant stated he signed three or four guaranties in blank and they were to be corporate guaranties. The issue was simple, not complex. The change in order of giving MAI 2.02 could not, in our opinion, have confused or misled the jury and did not result in prejudicial error.

We have reviewed defendant’s remaining assignments. No error of law appears and they are ruled against defendant pursuant to Rule 84.16(b).

The judgment is affirmed.

HOGAN and MAUS, JJ., concur.


author: WILLIAM L. RAGLAND, Special Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jacquelin GUERNSEY, Defendant-Appellant.
    No. 10394.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 6, 1979.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Daniel P. Lyman, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
    Tyce S. Smith, Waynesville, for defendant-appellant.
   WILLIAM L. RAGLAND, Special Judge.

Defendant Jacquelin Guernsey appeals from her conviction by a jury of stealing a motor vehicle, § 560.156, RSMo 1969, and the resultant five year sentence.

In August 1975 defendant drove an automobile owned by one David Scott from Pulaski County, Missouri to Romoland, California. She remained in California for approximately four months before returning to Pulaski County where she was arrested, with the automobile in her possession, charged and subsequently convicted. Although admitting that she did not have the express permission of Scott to take the automobile to California, she defends on the grounds that she maintained contact with Scott, discussed the return of the automobile and at no time claimed ownership of the automobile. She therefore asserts that she did not intend to permanently deprive the owner of the use of his property, which is one of the essential elements of the State’s case. With this defense injected into the case and to properly dispose of her assignment of error, a more detailed statement of the facts is required.

Defendant, a native of Massachusetts, arrived in Pulaski County with her husband, a serviceman, in December 1973. She apparently experienced marital difficulties, separated from her husband in February 1975 and, without obtaining a dissolution, began residing with Scott, also a serviceman. During this adulterous relationship Scott assisted in her support although she was receiving welfare benefits for herself and her children. They lived as if they were husband and wife and it is presumed that Scott received the usual marital benefits while her reward was the full use of the automobile while Scott was on duty at Fort Leonard Wood. This relationship was scheduled to terminate in August 1975 when Scott was to be sent to duty overseas.

On August 5, 1975, defendant took Scott to Fort Leonard Wood, returned to their trailer, “packed a few things”, left him a note “explaining everything” and drove to Fort Worth, Texas where she remained overnight. Defendant then drove to El Paso, Texas where she remained for several days, then to Romoland, California where she obtained employment and remained until December 14,1975 when she returned to Pulaski County. The record in this case suggests that while in California the defendant gave birth to a child. Although not properly preserved for review, defendant unsuccessfully sought to prove that Scott was the father of this child. Considering the time element when the parties lived together, it must be observed that Scott certainly could have been the father of the child and in fact may have owed some duty to the defendant.

On August 19,1975, Scott reported to his insurance company and the Prosecuting Attorney of Pulaski County that his automobile had been stolen and obtained a warrant for the arrest of the defendant.

The defendant, although unsuccessful on numerous instances, did make frequent contacts with Scott after August 5, 1975 and most if not all were admitted by the State’s witnesses. On August 6, 1975 defendant called Scott from Fort Worth, Texas advising him of her location and destination. Defendant’s girlfriend in El Paso, Texas, later advised Scott that defendant was en route to California.

Upon her arrival in California, defendant, learning that Scott was no longer at Fort Leonard Wood, began calling for him at his parents’ home in Marshall, Missouri, finally talking to him on August 11, 1975. In this conversation Scott admits that he made no demand for the return of the automobile nor did he advise defendant that he had reported his automobile stolen and obtained a warrant for her arrest. Her suggestion to him that he fly to California to return the automobile was declined because of lack of finances, although he apparently experienced no difficulty in flying from Mannheim, Germany to prosecute his former lover.

Following this conversation, defendant wrote several letters to Scott in Germany and in November, defendant sent a telegram to Scott offering to pay his expenses for a return trip to the United States.

Of interest is the fact that Scott’s stepfather was the agent for the insurance company having theft coverage on the automobile and he processed the claim, resulting in a payment to Scott in the amount of three thousand seven hundred dollars ($3,700.00).

Curiously, the record fails to show any attempt by the authorities in Pulaski County to have the warrant executed in California although the defendant’s location was well known by the State’s principal witness, David Scott; nor does the record show any attempt by the insurance company to recover this automobile although its location was well known by their insured, David Scott.

Inasmuch as the point defendant raises on appeal was not raised in her motion for a new trial, we hold that the error claimed is not preserved for review. Rule 27.20(a), V.A.M.R., and State v. Gomillia, 529 S.W.2d 892 (Mo.App.1975). Recognizing this shortcoming, defendant seeks review under our “plain error” rule. Rule 27.20(c), V.A.M.R. This concession we will grant. State v. Stewart, 566 S.W.2d 264 (Mo.App.1978); State v. Beasley, 404 S.W.2d 689, 690 (Mo.1966).

Defendant raises only one point in her appeal. She complains that the prosecutor made a prejudicial argument by indicating to the jury that a prior misdemeanor theft conviction adduced into evidence for impeachment of the defendant’s credibility could be utilized by the jury to establish the mental intent which is an element of the charged offense. She contends that this argument is erroneous to an extent requiring the trial court to declare a mistrial sua sponte. We are constrained to agree with defendant.

The alleged prejudicial argument occurred in the rebuttal portion of the State’s summation when the prosecutor stated:

“I suggest to you that on the basis of that and on the inclination — the Court gives an instruction to that — there is a certain ring of truth to that ‘once a thief, always a thief.’ I think you can take that into consideration. If she can shoplift, she can take a car. I think common sense people would take that into consideration.”

It is a correct statement of the law that every error which might occur in the trial of a case does not necessarily require the granting of a mistrial, State v. Camper, 391 S.W.2d 926 (Mo.1965), and “The granting or refusal of a mistrial for improper argument lies largely within the discretion of the trial court.” State v. King, 334 S.W.2d 34, 40 (Mo.1960); State v. Smith, 431 S.W.2d 74, 83 (Mo.1968). The authority of a court to grant a mistrial “should be exercised only in extraordinary circumstances,” State v. James, 347 S.W.2d 211, 214 (Mo.1961), which is another way of saying that “a mistrial should be granted only when the incident is so grievous that the prejudicial effect can be removed no other way.” State v. Camper, supra, at 928.

We believe the argument in this case falls within the latter classification in that it overstepped the permissible bounds of legitimate argument and, as such, was “plain error” affecting substantial rights from which we should find that manifest injustice resulted. State v. Stewart, supra.

The law is well settled that the only legitimate purpose of an argument concerning prior conviction lies in its bearing upon the credibility of the defendant. State v. Jones, 221 S.W.2d 137 (Mo.1949); State v. Jones, 249 Mo. 80, 155 S.W. 33 (1913); State v. Jackson, 336 Mo. 1069, 83 S.W.2d 87, 103 A.L.R. 339 (1935); State v. Baber, 297 S.W.2d 439 (Mo.1956); State v. Reagan, 108 S.W.2d 391 (Mo.1937); State v. Mitchell, 86 S.W.2d 185 (Mo.1935); State v. Cook, 282 S.W.2d 533 (Mo.1955); State v. Wellman, 253 Mo. 302, 161 S.W. 795 (1913). It is improper to argue prior unconnected crimes as reflecting upon the defendant’s character or as a basis for conviction in the case on trial. See the cases just cited. State v. Mobley, 369 S.W.2d 576 (Mo.1963). Also in State v. Mobley, supra, at 581, the following language, quoted with approval in State v. Scott, 459 S.W.2d 321 (Mo.1970), is pertinent to the issues in this case:

“All lawyers and judges know that a jury’s knowledge of prior convictions is, in itself, a most damning thing in the trial of a criminal case. When used for legitimate purposes, the defendant must take his chances on this. But prosecutors should not seize upon such an opportunity to further prejudice the defendant by undue repetition and insinuations, or to convey the idea of guilt by reason of the prior offenses.” (emphasis ours)

The effect of prejudicial argument concerning prior convictions was further discussed in State v. Phelps, 478 S.W.2d 304, 307-308 (Mo.1972). In that case the prosecuting attorney made this statement to the jury: “ ‘In other words, was he [defendant] telling the truth when he took the stand, and you can consider his past convictions for the unlawful use of firearms in determining whether or not this man committed this crime; in determining whether or not this man came to Harley Simpson’s station.’ Defendant objected to the comment and requested the court ‘to instruct the jury to disregard that as being improper argument.’ The court sustained the objection and instructed the jury as follows: ‘ * * * you will disregard the statement that you can consider the fact that he had been committed or had been convicted of committing another crime in considering his guilt in this case.’ * * * The prosecutor immediately asked to be excused for misstating the rule, and he then correctly stated it.”

It therefore became necessary, in ruling defendant’s assertion that the argument constituted prejudicial error, for the court to answer two questions. The first being the meaning of what was said by the prosecutor and secondly, did the action of the trial court have a curative effect on the improper argument. In answering the first question, the court stated at 307:

“Section 491.050, RSMo 1969, V.A.M.S., provides that a person who has previously been convicted of a criminal offense is a competent witness, but the conviction may be proved to affect his credibility, that is, as affecting his worthiness of belief. In this case the prosecutor argued to the jury that it could consider defendant’s previous conviction of a crime in its determination of whether the defendant was telling the truth when he testified. That was not objectionable. However, it is improper to argue the existence of prior unconnected crimes as a basis for a conviction in the case on trial, State v. Mobley, Mo., 369 S.W.2d 576, 580, and it reasonably could be said, when considered alone, that the words of the prosecutor were to that effect when he said to the jury that it could consider previous conviction of crime ‘in determining whether or not this man committed the crime; in determining whether or not this man came to Harley Simpson’s station.’ But, when the total comment is considered in context it is equivocal and is at least subject to the argument that what the prosecutor said was that a previous conviction of a crime could be considered in determining whether the defendant was telling the truth when he testified that he did not commit the robbery and was not at the service station.”

The court in answer to the second question concluded “In view of the action taken, (emphasis ours) and the trial court’s ability and opportunity to view the incident in context, we find no abuse of discretion.” State v. Phelps, supra, at 308.

It seems clear that this decision was, therefore, based on a finding that not only was the argument complained of equivocal but also the action taken by the trial court was of importance. In other words, we believe the court held that to avoid the rule of Mobley, supra, some action must be taken to mitigate the poisonous effect of the improper argument. We find nothing of that nature in the instant case. The argument complained of was neither ambiguous nor equivocal nor was any action whatsoever taken by either defense counsel or the trial court.

The State contends that the prosecutor’s argument was not prejudicial in that it merely concerned defendant’s credibility and was therefore harmless error. On that, we cannot agree. The phrase “Once a thief, always a thief”, definitely would mean to the average person that once a person becomes a thief, he then adopts a lifetime career of stealing. It indicates a willingness and perpetual intent to engage in thievery. The sentence “If she can shoplift, she can take a car”, describes the person’s tendency and capability to commit the crime, which is declared to be improper in Mobley, supra.

The State further contends that the prosecutor’s argument, if improper, was merely in retaliation of closing argument of defendant. State v. Toney, 537 S.W.2d 586 (Mo.App.1976). Defendant’s counsel, in his closing argument, told the jury that the theft of an eighty cent ($.80) article several years earlier was no reason to send the defendant to jail and that “common sense” would tell the jury that defendant was a “girl in distress.” This argument, according to the State, “parade[s] the prior conviction as a virtual badge of [defendant’s] distress and therefore justifies retaliation. We fail to see the logic of the State’s contention. It seems obvious to us that defendant’s counsel was correctly telling the jury that the prior conviction was in itself insufficient to find her guilty. The distress referred to by counsel related to her marital difficulties, lack of finances, etc. We do not believe that counsel was telling the jury that the theft of an eighty cent ($.80) article six years prior resulted in her distress. We therefore find no cause for retaliation.

Having concluded that the argument of the prosecutor was improper, one further question remains; i. e. was the prejudicial error corrected by the instruction given pri- or to closing argument (MAI-CR 3.58) that prior convictions were for consideration only on the question of defendant’s credibility? One would have to be rather naive to believe, under the facts of this case, that it was. The prosecutor in his argument not only ignored the instruction; he, in fact, contradicted it. We have concluded that the prejudice created requires reversal for a new trial. State v. Scott, supra.

It should perhaps be noted here that in the instant case, with there being a span of six years between the present offense and the prior conviction, we are not concerned with any question of relevancy to show habit, design or criminal intent. State v. Stegall, 353 S.W.2d 656 (Mo.1962). State v. Scott, supra.

Accordingly, the judgment is reversed and the cause remanded.

BILLINGS, P. J., and HOGAN, J., concur.


author: PER CURIAM.

text:
    STATE of Missouri ex rel. Marvin ALFORD et al., Respondents, v. Claude BYBEE et al., Appellants.
    No. 10506.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 8, 1979.
    John M. Carnahan, III, Douglas W. Greene, Greene, Cassity, Ferguson, Carna-han & Freeman, Springfield, for respondents.
    William H. McDonald, Woolsey, Fisher, Whiteaker & Stenger, Springfield, for appellants.
    Before TITUS, P. J., and HOGAN and MAUS, JJ.
   PER CURIAM.

Appeal from mandamus proceedings in the Circuit Court of Hickory County wherein the Board of Directors of Hickory County R-l School District were ordered to conduct an election for change of school boundary lines pursuant to § 162.431, RSMo 1969. We affirm.

Hickory County R-l School District and Dallas County R-l School District are six-director school districts and petitions were submitted to them for a change of boundaries. Dallas County R-l School District submitted the proposed boundary changes to its voters in April, 1976, and the changes were approved. Hickory County R-l School District refused to submit the proposed boundary changes and this proceeding in mandamus followed. An alternative writ of mandamus issued, return was made thereto, and a hearing held. The court issued a preemptory writ ordering Hickory County R-l School District to conduct an election on the proposed boundary changes.

The Hickory County R-l School District board president testified the reason the board did not order an election was because “we didn’t think that the petitions was [sic] just exactly right on different things”, and “we had advice that they [sic] might be some difference in the boundary changes interlapping and some of it didn’t join and stuff like that.”

The board president acknowledged, on cross-examination, that in prior years the board had received numerous petitions seeking a change in boundaries and had never placed any of them on the ballot.

The petitions filed with the two school districts comply with § 162.431, RSMo 1969. The duties of the boards were simply ministerial, namely, to post the requisite notices and present the proposed boundary changes to the voters. Mandamus was the proper remedy upon Hickory County R-1 School District’s failure to do so. England v. Eckley, 330 S.W.2d 738 (Mo. banc 1959); State ex rel Kugler v. Tillatson, 312 S.W.2d 753 (Mo. banc 1958); State ex rel. Doyle v. Littrell, 531 S.W.2d 52 (Mo.App.1975); State ex rel. Fisher v. Fisher, 433 S.W.2d 63 (Mo.App.1968); State ex rel. McIntosh v. Rainey, 397 S.W.2d 344 (Mo.App.1965).

The judgment of the circuit court is affirmed and the cause is remanded to the court with directions to set a date for a special election at which time the voters of Hickory County R-l School District may vote upon the proposed change of boundaries, and to issue its supplemental writ of mandamus in preemptory form requiring appellants (and any successors in office) to take all necessary steps toward that end. State ex rel. Kugler v. Tillatson, supra.

It is so ordered.

All concur.


author: PER CURIAM. MATHERNE, Judge. BROCK, Justice,

text:
    Sam S. STALCUP, Individually and on behalf of others, similarly situated, Appellant, v. CITY OF GATLINBURG and David Beeler, Appellees.
    Supreme Court of Tennessee.
    Dec. 29, 1978.

      Stone & Hinds, Knoxville, for appellant.
    W. W. Kennerly, Knoxville, Ronald E. Sharp, Sevierville, for appellees.
   OPINION

PER CURIAM.

From our consideration of the record and . briefs of the parties, we have concluded that the Court of Appeals correctly decided the issues presented on appeal. Accordingly, the judgment of the Court of Appeals is affirmed.

The opinion of the Court of Appeals will be for publication as an appendix to this opinion. Mr. Justice Brock dissents and files a separate opinion in which Mr. Chief Justice Henry joins.

APPENDIX

MATHERNE, Judge.

The issue on appeal is the validity of Ordinance No. 190 of the City of Gatlin-burg, as amended, which levies a privilege tax of 1% upon the Gross Receipts of all businesses conducted within the city.

The ordinances were enacted under the authority of Chapter 328, Private Acts 1955, which authorized only the City of Gatlin-burg to levy the tax. Thereafter, the legislature enacted a general law, Chapter 387, Public Acts 1971 (T.C.A. § 67-5801, et seq.), known as the Business Tax Act. That statute levied a state tax in varying amounts, according to classification, equal to named fractional parts of 1% of gross receipts of businesses, the operation of which was therein declared to be a privilege. This general statute also authorized counties and municipalities to levy a similar tax on all such businesses “in an amount not to exceed the rate hereinafter fixed and provided.” T.C.A. § 67-5802.

The City of Gatlinburg has levied the privlige tax as allowed by the general statute and has also continued to levy the privilege tax of 1% on gross receipts as allowed by its ordinances.

Having paid under protest the tax levied under the municipal ordinances for the month of July 1976 the plaintiff filed this lawsuit to have the tax declared invalid and to recover on behalf of himself and others similarly situated all taxes illegally collected under the ordinances.

The trial judge sustained the defendants’ motion for summary judgment and dismissed the plaintiff’s lawsuit. The plaintiff appeals on the following grounds: (1) the trial judge erred in holding that Chapter 328, Private Acts 1955, did not constitute impermissible double taxation; (2) the trial judge erred in holding that Chapter 328, Private Acts 1955 was a reasonable classification as applied to Gatlinburg and was, therefore, constitutionally permissible; (3) the trial judge erred in failing to have a hearing on the motion for summary judgment prior to his decision thereon; and (4) the trial judge erred in failing to decide whether this lawsuit could be maintained as a class action.

I.

The plaintiff insists that summary judgment was entered against him without a hearing. On December 21, 1976, the defendants filed a motion for summary judgment accompanied by the affidavit of the City Manager. On January 19, 1977, the defendants answered certain interrogatories filed by the plaintiff. On February 10, 1977, the trial judge entered a memorandum opinion in which he granted the motion for summary judgment and dismissed this lawsuit. Judgment was entered on February 15, 1977. In the meantime, on January 31, 1977, the plaintiff had taken the discovery depositions of Richard Barton, City Manager, and David Beeler, City Finance Director. These depositions were filed on March 3, 1977, at which time the plaintiff filed a motion for the trial court to reconsider his opinion of February 10,1977, and to amend his judgment accordingly. Attached to this motion was the affidavit of R. Thomas Stinnett. On March 4, 1977, a supplementary affidavit of Richard Barton and the affidavit of David Beeler were filed by the defendants.

The motion to reconsider was heard by the trial judge on March 4, 1977, upon all the foregoing documents and argument of counsel. The trial judge affirmed his decision on February 10, 1977, and denied the motion to amend the judgment.

Whatever error as may have existed by the entry of the judgment on February 15, 1977, was corrected by the hearing held on March 4, 1977. At that hearing the affidavits, answers to interrogatories, depositions and oral argument of the plaintiff were fully presented and considered by the trial court. Based upon that hearing the trial judge affirmed his grant of summary judgment.

II.

The plaintiff argues that the Gatlin-burg Gross Receipts Tax is inconsistent with the Business Tax Act and, therefore, it is violative of Article 11, Section 8, Constitution of Tennessee. If a private act contravenes or is inconsistent with the general law on the subject, it is invalid only if no reasonable basis for the special classification can be found. Brentwood Liquors Corp. of Williamson County v. Fox (Tenn. 1973) 496 S.W.2d 454; Blackwell v. Miller (Tenn.1973) 493 S.W.2d 88.

The plaintiff relies heavily upon the Brentwood case. There a private act was passed in 1957 which authorized Williamson County to levy and collect a privilege tax of one-half of one per cent of the sales of retail liquor dealers in that county. The Court found that the private act was inconsistent with the Business Tax Act and declared the private act invalid, holding that “we [can] conceive of any reasonable basis why a particular business in Williamson County should be subject to a different and higher tax than are similar businesses in all the counties of the State.”

We agree with the plaintiff that the Brentwood decision controls the case at bar on the issue that the private act which authorized the Gatlinburg Gross Receipts Tax is inconsistent with the Business Tax Act because it imposes on the businesses of that city a “different and higher” tax.

It remains for determination, however, whether a reasonable basis for the special classification, which was lacking in Brentwood, can be found under the facts of this case. The legislature did not state in the 1955 private act any reason why the privilege of doing business in Gatlinburg should be taxed differently than that in other cities of the state. It is not necessary that the reasons for the classification appear in the face of the legislation. State ex rel. Melton v. Nolan (1930) 161 Tenn. 293,30 S.W.2d 601. If any possible reason can be conceived to justify the classification, it will be upheld and deemed reasonable. Knox-tenn Theatres v. McCanless (1941) 177 Tenn. 497, 151 S.W.2d 164. So long as the statute applies equally and consistently to all persons who are or may come into the like situation or circumstance, it is not objectionable as being based upon an unreasonable classification. Stratton v. Morris (1890) 89 Tenn. 497, 15 S.W. 87. There is no general rule by which to distinguish a reasonable from an unreasonable classification, the question being a practical one varying with the facts in each case. Dilworth v. State (1959) 204 Tenn. 522, 322 S.W.2d 219. Where the reasonableness of the classification is fairly debatable the courts will uphold the classification. Phillips v. State (1957) 202 Tenn. 402, 304 S.W.2d 614. The burden of showing that the classification does not rest upon a reasonable basis is upon the party attacking the statute. Estrin v. Moss (1968) 221 Tenn. 657, 430 S.W.2d 345.

The record reveals that the City of Gatlinburg, due to its proximity to the Great Smoky Mountains National Park, has a tourist-oriented economic base. The proof is that more than 50% of the assessed valuation of property in the City of Gatlin-burg for the year 1976 consisted of hotels, motels and tourist court accommodations. On the basis of accommodations for tourists, Gatlinburg ranks as the ninth largest city in the nation. With a population of approximately 2900 people, Gatlinburg receives an estimated three million visitors each year. We can appreciate the statement of the City Manager that this situation creates a greater service burden on the city than is normal for cities in Tennessee. It is stipulated that the Gross Receipts Tax brings in about $800,000 per year. To obtain this amount of revenue from property taxes the rate per $100 assessed valuation would have to be increased from the present 85 cents to about $3.14. Gatlinburg does not impose a sales tax, but Sevier County does impose that tax.

It is reasonable that the City of Gatlin-burg, due to its unique characteristics as herein noted, be authorized to impose a “different and higher” tax on those who exercise the privilege of doing business in that city. The tax is equally applicable to all persons who fall within the class, namely, those who operate businesses within the city. The demand for tax dollars for water, sewerage, roads and streets is caused in the main by the great influx of tourists into the city; the tax imposes the burden upon those who exercise the privilege of doing business with the tourists. Therefore, there is a direct, natural and acceptable relation between the classification made and the objective of the enactment.

We hold that Chapter 328, Private Acts 1955, authorizing the Gatlinburg Gross Receipts Tax rests upon a reasonable basis, and it does not violate Article 11, Section 8, Constitution of Tennessee.

III.

The plaintiff further argues that the levy and collection of both the local tax and the general tax constitutes impermissible double taxation in violation of Article 2, Section 28, Constitution of Tennessee.

The plaintiff insists that the Business Tax Act contains conflicting language wherein at Section 67-5801 the act states that “the taxes imposed by this chapter shall be in addition to all other privilege taxes,” while Section 67-5802 authorizes counties and municipalities to levy a similar privilege tax upon businesses operating within their boundaries “in amounts not to exceed the rates hereinafter fixed. . .” The plaintiff argues that a city or county can not levy a privilege tax under the Business Tax Act and also under some other act where the combined rate of the levy under both acts exceeds the rate allowed under the Business Tax Act.

We can not agree with that insistence. In construing statutes the words must be given their natural effect and import. We conclude that the clear meaning of the language of Sections 67-5801 and 5802 is that a city or county may levy a privilege tax under the Business Tax Act not in excess or the rates therein established, and a tax so levied shall be in addition to all other constitutionally permissible privilege taxes levied by that city or county under any other act.

It is established that double taxation within itself is not prohibited by the Constitution of Tennessee where it is plain that the legislature intended that result. E. & L. Transport Company v. Ellington (1963) 212 Tenn. 671, 371 S.W.2d 456; Williams v. Massachusetts Mutual Life Ins. Co. (1968) 221 Tenn. 508, 427 S.W.2d 845.

We conclude that the legislature clearly stated that the privilege tax authorized under the Business Tax Act “shall be in addition to all other privilege taxes,” and thereby expressed its intent to allow double taxation by those counties and municipalities which elected to tax under the Business Tax Act and under other constitutionally permissible acts. We hold that the City of Gatlinburg is, under the facts, enforcing permissible double taxation on the privilege of doing business in that city.

We will not consider the question of whether a lawsuit to recover taxes that were allegedly illegally collected may be maintained as a class action. That issue is moot in this lawsuit.

The judgment of the trial court is affirmed. The plaintiff-appellant is taxed with the cost in this Court for which execution may issue if necessary.

NEARN, J., and TATUM, Special Judge, concur.

BROCK, Justice,

dissenting.

I respectfully dissent from the opinion and decision of the majority upon two grounds.

First, in my opinion, Chapter 387 of the Public Acts of 1971, the Business Tax Act, repealed by implication Chapter 328 of the Private Acts of 1955 upon the authority of which the 1% Gatlinburg gross receipts tax is based. Both taxes are levied upon gross receipts from sales by retail businesses, so that, the private act is inconsistent with the later general act which provides that municipalities of the State “. . . may levy a privilege tax in an amount not to exceed the rates hereinafter fixed and provided.” If Gatlinburg is allowed to levy the 1% gross receipts tax, which was authorized under the private act prior to the enactment of the general statute, it obviously is levying a privilege tax in an amount which does exceed the rates authorized by the general statute. In my view, this is a classic case of an implied repeal of a private act by a later general act covering the same subject. Trotter v. City of Maryville, 191 Tenn. 510, 235 S.W.2d 13 (1950).

I am of the further opinion that since the enactment of the 1971 public act the private act of 1955 is in violation of Article XI, Section 8, of the Constitution of Tennessee, as construed and applied in the recent decision of this Court in Brentwood Liquors Corporation of Williamson County v. Fox, Tenn., 496 S.W.2d 454 (1973). It was held in Brentwood that an earlier private act, enacted in 1957, which authorized Williamson County to levy and collect a privilege tax on retail liquor dealers of the county was in conflict with the same general statute here involved, Chapter 387 of the Public Acts of 1971, the Business Tax Act, and thus violated the provisions of Article XI, Section 8, of the Constitution of Tennessee, even though the private act be considered to affect Williamson County in its “governmental” capacity, as opposed to a private act which primarily affects the individual citizens of a county in their “private” capacity. In an opinion by Chief Justice Dyer, the Court reviewed the pertinent decisions of this Court respecting the issue whether Article XI, Section 8, applies to special legislation which affects counties and municipalities in their “governmental” capacity only and concluded:

“We hold Article 11, Section 8 of the Constitution of Tennessee is applicable to private or special legislation affecting a county or municipality in the exercise of its governmental function, and where such legislation operates to suspend the general law on the same subject, the validity of such legislation is determined upon the issue of whether there is a reasonable basis for the discrimination.
“Chapter 276 of the Private Acts of 1957 recites no reasonable basis, nor can we conceive of any reasonable basis why a particular business in Williamson County should be subject to a different and higher tax than are similar businesses in all of the counties in the State.” Brentwood Liquors Corporation of Williamson County v. Fox, 496 S.W.2d at 457.

Applying the decision in the Brentwood case to the case at bar, I reach the same result reached by the Court in Brentwood. The Court of Appeals in the instant case agrees that Brentwood is controlling and that the Gatlinburg gross receipts tax authorized by the 1955 private act is inconsistent with the Business Tax Act, Chapter 387 of the Public Acts of 1971. Thus, the Court of Appeals states in its opinion that:

“We agree with the plaintiff that the Brentwood decision controls the case at bar on the issue that the private act which authorized the Gatlinburg gross receipts tax is inconsistent with the Business Tax Act because it imposes on the businesses of that city a ‘different and higher’ tax.”

However, the Court of Appeals upheld the validity of the private act upon the ground that the dominant business activity in Gat-linburg is that of tourist attractions and resort facilities and that this constituted “a reasonable basis for the discrimination.”

The private act itself does not recite any “reasonable basis for the discrimination” and, indeed, none was required at the time of its enactment because the Business Tax Act had not then been enacted. Moreover, I am aware of no fact which may be considered a reasonable basis for this discrimination in favor of the City of Gatlinburg. There is no evidence whatever that those means of taxation, to which all other cities in the state are restricted, are inadequate to furnish needed revenues to Gatlinburg. Instead, the record shows that the property tax rate per $100 assessed valuation is only $0.85 in Gatlinburg, a rate which certainly would be the envy of the great majority of other municipalities in this state. Moreover, Gatlinburg does not even impose a sales tax although the vast majority of Tennessee municipalities find it necessary to impose such a tax.

Accordingly, I would reverse the judgment of the Court of Appeals and that of the trial court and hold that Chapter 328 of the Private Acts of 1955 is invalid and that the ordinance enacted pursuant thereto is likewise of no effect.