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Show In The Supreme Court of The also those things which are reasonably necessary and incidental thereto. The evidence affirmatively shows that the assigned duties of Mr. Reid included 3 It is so obvious as keeping the car in a safe and efficient running condition. to hardly be necessary to state that this encompasses all of its essential parts, including functioning shock absorbers. It therefore appears that there is a reasonable basis in the evidence to support the Commission's finding that in working on the car he was performing duties arising out of or within the scope of his employment. Plaintiff makes the further contention that in any event it should not be held responsible for more than 75 per cent of any award to which Mr. Reid is See Sec. 1. MONDAY, OCTOBER 7, 1974 INTERMOUNTAIN COMMERCIAL RECORD PAGE TEN : 35-1-4- 5, U. C. A. 1953. v. Ind. Comm. , 16 State of Utah 9, U. C. A. 1953, which provides that if It relies on Section any employee who has previously suffered a permanent incapacity, ". . . sustains an industrial injury . . . that results in permanent incapacity which is if he had not had the incapacity, substantially greater than combined of . . on the . the basis awarded be injuries, but shall compensation industrial injury the liability of the employer . . . shall be for the instant for in fund be of the out and provided shall the remainder special only, paid . . ." The proposition plaintiff asserts is subdivision (1) of Section that there is medical evidence that the applicant had a prior disability which could fairly be rated at 25 per cent. The obstacles to the plaintiff's position are (1), that the Commission expressly found that the injury complained of herein was the sole cause of Mr. Reid's disability for which this award was made; and (2), that there is also a xeasonable basis in the evidence to justify that finding. entitled. 35-1-6- ... 35-1-- pre-existi- 68 2. E'. g. , Bailey Utah 2d 208, 398 P. 2d 545 (driving car in connection with duties of operating service station); Moser v. Ind. Comm. , 21 Utah 2d 51, 440 P. 2d 23 (employee trying to start his own truck, even though at off hours, and not on assigned trip, but acting under direction of employer). 3. See Moser v. Ind. Comm., supra, and Stakonis v. United Advertising Co. , 110 Conn. 384, 148 A. 334, 82 A. L. R. 1252; 99 C. J. S. . Workmen's Compensa- that the Commission acted capriciously, arbitrarily excess of its authority. 4 Affirmed. No costs awarded. tion, pp. 4. 718-71- 9. FILED v. September 30, 1974 Richard Charles Geurts, Allan E. Mecham, Clerk Defendant and Appellant. See Kent v. Ind. Comm. , 89 Utah 281, 57 P. 2d 724. In the recent decision of State v. Archuletta, No. 13579, September as enacted by the Laws 1973, 17, 1974, this court held that Section Defendant's conviction was void, chapter 196, did not set forth a crime. since he was charged under a statute that did not set forth a crime. The 76-5-1- CALLISTER, Chief Justice: 03, judgment of the trial court is reversed. Defendant appeals from his conviction by a jury of the crime of U. C. A. 1953, as aggravated assault as provided in Section 76-5-1- 1974, Laws of Utah 1974, Chapter 32. 2. See State v. Harris, 30 Utah 2d 354, 517 P. 2d 1313 (1974). 03, amended, 1973. Barbara McRae and Sumner J. Hatch, Guardians Ad Litem for Kerrie McRae and Michael Bret Hatch, Minors, 'Plaintiffs and Respondents, The function of appellate courts, like that of courts genertheoretical ally, is not to give opinions on merely abstract or matters, but only to decide actual controversies injuriously has affecting the rights of some party to the litigation, and it or moot become have which cases been held that questions or academic are not a proper subject to review. v. Raymond A. Jackson, as Commissioner in the Department of Public Safety for the State of Utah, and Darrell are not persuaded or unreasonably, or in In accordance with what we have said herein, we The act 8 committed by defendant, which were alleged to constitute the crime of aggravated assault, occurred on January 15, 1974. He was .tried and convicted by jury on February 11, 1974. The trial court sentenced defendant to the Utah State Prison for the term provided by law for a felony of the third degree. No. 13671 The State of Utah, Plaintiff and Respondent, ng No. 13460 FILED H. Josie, Director of Drivers Education in the Board of Education, one of the subsidiary divisions of the Department of Public Safety for the State of Utah, October 1, 1974 Defendants and Appellants. Allan E. Mecham, Clerk CALLISTER, Chief Justice; Pursuant to the provisions of Section U. C. A. 1953, the Department of Public Safety, Raymond A. Jackson, Commissioner, adopted Rules and Regulations for Commercial and Private Driver Education Schools, effective July 1, 1967. Part E(l) thereof in effect prohibited commercial and private education to persons under the age of 17 years. However, a high school student may take a driver education course furnished by the school and receive a driver's license upon attaining the age of 16. 41-2-- 5, i Plaintiff minors, through their guardians ad litem, commenced an action in the nature of an extraordinary writ testing the validity of the Department's 1 regulation as it pertained to them. They petitioned the court for an order to show cause as to why they should not be permitted to take a private driver education course and become eligible to receive their driver's license upon the same terms and conditions applicable to those who availed themselves of the public -- sponsored instruction. However, there are many cases, to some of which the defendants have referred, to the effect that an appellate court may retain jurisdiction of an appeal, 4 even though the cause is moot, if the matter involved is one of public interest. The retention of such an appeal because of public interest herein is an exception to the general rule and the inclination of the courts is to refuse dismissal on this ground only under exceptional circumstances and where the public interest generally in the discretion of the appellate clearly appears. The matter rests 5 court in each particular case. The issues of which the courts frequently retain jurisdiction because of the public interest involved, although the immediate issues may have become moot, are class actions, questions of constitutional interpretation, issues as to the validity or construction of a statute, or the propriety of administrative rulings. Defendants place a good deal of reliance upon the case of Roe v. Wade.'' That case concerned the constitutionality of a Texas abortion statute. The Supreme Court held, among other things, that even if the matter had become moot because of the termination of plaintiff's pregnancy, nevertheless, the curt would retain jurisdiction of the appeal because there was an issue "capable of "8 repetition, yet evading review. It should be noted that the Roe case was a class action and involved a constitutional question. 9 In the instant case there is no class action and no cpnstitutional question presented. The trial court merely found that the regulation was invalid under a statute. Furthermore, the likelihood of repetition and evasion of review is not substantiated by the record. Here, there is no actual controversy between the litigants at this time. The plaintiffs have no practical interest in any disposition that could now be made by this court. This appeal presents simply an abstract question of law not rest upon existing facts or rights. Therefore, this court must, Defendants appealed this decision and have filed a brief in support thereof. which does in the exercise of its discretion, dismiss the appeal on the simple ground that The plaintiffs have not filed a brief but have advised the court, by letter, that a the case has become moot and is not of sufficient public interest, regardless brief is not necessary inasmuch as the case is moot they now having received of whether the trial court erred or not. 10 their driver's licenses. 2 a hearing, the trial court entered its judgment declaring regulations (Part E(l)) to be null and void as being contrary to the statutes of this state. After1 Our main concern is whether or not the case is moot and, if so whether this court should retain jurisdiction and entertain the appeal. 3 Although no Utah case precisely in point has been found, the general principle, to which we adhere, is stated in 5 Am. Jar. 2d. , Appeal and Error, 761 S ; This was not a class action. See plaintiffs' answers to interrogatories. It is not ascertainable from the record as to the circumstances under which they were issued the licenses. The defendants, in their brief make the statement that plaintiffs had reached the age of 17 at the time of the hearing. This 1. 2. is obviously in error. Appeal dismissed. 4. 5. 6. 7. 8. No costs awarded. 132 A. L. R. p. 1186. Id. at p. 1188 5 Am. Jur.2d, Appeal and Error, $768. 410 U.S. 113, 35 L. Ed. 2d 147, 93 S.Ct. 705 (1973). See Southern Pacific Terminal Co. v. ICC, 219 U.S. 498. 55 L.Ed. 310. 31 S.Ct. 279 (1911). 9. For an excellent discussion of the Roe and related questions see Justice Marshall's dissent in Richardson v. Ramirez, U.S. , 41 L. Ed. 2d 551, 94 S.Ct. (June 24, 1974). He wrote: "In each" instanceT the mere passage of time threatened to insulate a constitutional deprivation from judicial review, and it is that danger which served as the raison d'etre for rejecting suggestions By dicta, this court in Manwill v. Oyler, 11 Utah 2d 433, 361 P. 2d 177 (1961), of mootness. (Emphasis added. ) 10. A recent case which substantiates this held that an interlocutory appeal would not be entertained if the matter is moot; ruling is DeFunis v. Odegaard, 40 164, 94 S.Ct. Kellch v. Westland Minerals Corp. , 26 Utah 2d 42, 484 P. 2d 726 (1971). (April 23, 1974). See also Kellch v. WestlandMinerals Corp. , supra No. T; 3. 11 Reversed. Dennis Madsen, Plaintiff and Appellant, v. No. 13559 FILED Delmar L. "Swede" Larsen, Salt Lake County Sheriff, Defendant and Respondent. October 2, 1974 Plaintiff was indicted in California, whose Governor asked his extradition. He was picked up and charged as a fugitive from justice. Utah's Governor Rampton held a hearing. Apparently a transcript was prepared which is not in the record here. Also it would appear that by stipulation the transcript was admissible in the instant case, - all pursuant to Title 77-5- Allan E. Mecham, Clerk 6, Utah Code Annotated 1953. At the habeas corpus proceeding everyone conceded that the only issue was identification of the plaintiff, where ordinarily the plaintiff has the burden HENRIOD, Justice; of proof. Appeal from a dismissal of Madsen's petition for writ of habeas corpus. I Title 77-5- 6 Under the unusual circumstances of this case, however, where invites habeas corpus proceedings before extradition is effected, |
