text:
    STATE of Louisiana v. Roger H. ALEXANDER, Jr.
    No. 6966,
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Rehearing Denied Nov. 11, 1975.
    Writ Refused Jan. 7, 1976.

      John H. Brooks, LaBorde & Brooks, New Orleans, for petitioner, Roger H. Alexander, Jr.
    Reed, Reed & D’Antonio, Floyd J. Reed, Trial Atty., Metairie, for complainant, Beverly Saltzman Alexander.
    John M. Mamoulides, Dist. Atty., Parish of Jefferson, Abbott J. Reeves, Director Research and Appeals Div., Gretna, Keith S. May, Research Atty., Research and Appeals Div., on behalf of the State of Louisiana, plaintiff-appellee.
    Before REDMANN, BOUTALL and MORIAL, JJ.
   BOUTALL, Judge.

This is an appeal from the Juvenile Court for the Parish of Jefferson. The defendant, Roger H. Alexander, Jr., was charged with the crime of criminal neglect of family under the provisions of LSA-R. S. 14:74. He pleaded guilty on May 9, 1973 and was condemned to pay $150.00 a month in alimony to begin August 1, 1973, pursuant to LSA-R.S. 14:75. At the time of the plea, Alexander was in the Alcoholic Treatment Center at Mandeville, but after release he was earning approximately $800.00 a month as a merchant seaman. A year and a half later, Alexander was injured in a work connected accident. The injury has kept him from doing any work at all and his income has been reduced to $56.00 a week in compensation payments. Because of this reduction in income Alexander brought a rule to show cause why the alimony payments should not be reduced. At the conclusion of the hearing, January 7, 1975, the court reduced the alimony and on February 10, 1975 rendered a written decree as follows:

“DECREED that the child support shall be reduced to $25.00 per week effective Jan. 10, 1975, and that the children shall receive one-half of all the net proceeds received from any settlement of the father’s maritime personal injury claim ;****”

Alexander appeals from that portion of the decree awarding the children one-half of the settlement of the claim. There is no issue here of the weekly support.

The only issue before this court is whether or not the Juvenile Court for the Parish of Jefferson has the jurisdiction to issue an order granting the children one-half of any proposed settlement. The trial judge informs us he would implement this order by later setting up a trust fund for the children.

Juvenile Courts by their nature are courts of special or limited jurisdiction, State v. Brockner, 207 La. 465, 21 So.2d 499 (S.Ct. 1945) and as such have only such authority as granted in constitutional and legislative enactments. The Juvenile Court for the Parish of Jefferson derives its jurisdictional limits from the Constitution of 1921. Article VII, § 52, and 54, setting out the Court’s authority in criminal neglect of family cases, and providing for that Particular Court. The Court is granted criminal jurisdiction that includes such crimes as criminal neglect of family (RS:14:74) and its related provisions at issue before us. Specifically, Article VII, § 54, LSA-R.S. 14:75 and 15:305 set out what a court may do in the way of establishing alimony provisions for the neglected children. Any order issued by a juvenile court setting alimony provisions for neglected families must come within the authority granted therein.

R.S. 14:75 is nearly identical with Art. VII, § 54 and continues in existence under the Constitution of 1974.

This statute is most plain in its language. The Court may set a certain sum of money to be paid in weekly installments or at other intervals. If the judge, as in this case, feels that the defendant will not pay the installments he can require the defendant to enter into a recognizance, in the manner the Court directs. Besides imposing a fine payable to the children in the initial hearing, on a rule for contempt, the judge may fine the defendant the total amount of due and unpaid alimony. The statute makes no other provisions and we shall not read any into it.

The Court in ordering defendant to pay one-half of his pending personal injury claim to his children has clearly gone outside the language of the statute. We are impressed with the high motives of the Court in this instance; the Court feeling this was the best method of protecting the children. However, due to the limited nature of the Juvenile Court jurisdiction, it is impossible to render such an order. If it be determined that the present juvenile law does not provide adequate remedies for the protection of neglected children, the legislature must furnish them.

For the above reasons we amend the judgment of the trial Court to delete that section decreeing: “and that the children shall receive one-half of all the net proceeds received from any settlement of the father’s maritime personal injury claim;” and as amended we affirm. All costs of this appeal are taxable to the State of Louisiana to the extent assessable.

Amended and affirmed.

      . This proceeding began before the effective date of the Constitution of 1974. See Art. 14, § 23 thereof. Old § 52 is now made statutory and § 54 is basically repealed in the statutes.


source: Caselaw Access Project

author: GULOTTA, Judge.

license: Public Domain

text:
    Captain Henry J. COOK, III v. Mrs. Jo Ann Milano COOK.
    No. 6965.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Rehearing Denied Nov. 11, 1975.
    Writ Refused Dec. 19, 1975.

      Andry & Andry, Edwin R. Pillault, Jr., New Orleans, for plaintiff-appellant.
    Phillip R. Riegel, Jr., New Orleans, for defendant-appellee.
    Before SAMUEL, GULOTTA and BEER, JJ.
   GULOTTA, Judge.

This is an appeal from a dismissal of plaintiff husband’s rule to reduce support payments in the sum of $400.00 per month and to terminate or reduce permanent alimony in the sum of $100.00 per month. Defendant in rule, wife, filed a motion to dismiss the appeal on the grounds that this appeal is moot because, pending the appeal, a subsequent reduction in support payments was ordered in the trial court.

The facts are that a judgment denying plaintiff husband’s motion to reduce the amount of support and alimony from $500.-00 per month was rendered on January 13, 1975. This appeal was filed on February 3, 1975, and the bond was perfected on February 18, 1975. On June 24, 1975, while the appeal was pending, on plaintiff husband’s motion, the trial judge suspended alimony payments and reduced the support to $350.00 per month, effective July 1, 1975. The June 24, 1975 degree further awarded judgment in favor of Mrs. Cook in the sum of $900.00 for unpaid accrued payments through June, 1975. It was stipulated in argument that any amount which had been due and owing to the wife under any existing alimony decree has been paid.

We find merit in the motion to dismiss. A matter is considered moot in a case when the rendition of the judgment can have no practical legal effect upon the existing controversy. See State v. Commitment (Jackson), 289 So.2d 565 (La.App., 3d Cir. 1974). It is well established that courts will not rule on questions which become moot since the decree will render no useful purpose and can give no practical relief. Ardoin v. Ardoin, 306 So.2d 476 (La.App., 3d Cir. 1975).

Under the circumstances in the instant case, we are unable to grant any relief to plaintiff husband (appellant) which would afford a practical remedy. In the event that this court reduces the trial court’s award, the wife is not obliged to return funds received and used by her for the support of herself and the children. See Heiman v. Heiman, 263 So.2d 69 (La.App., 4th Cir. 1972), writs refused, 262 La. 1089, 266 So.2d 220 (1972) and 262 La. 1091, 266 So.2d 221 (1972). In the event that the judgment is affirmed, since plaintiff husband is not in arrears at this time on any payments owed, he cannot, at a later date, be prejudiced by the rendition of an execu-tory judgment. Furthermore, any judgment rendered by this court in connection with the pending appeal can have no effect against the subsequently rendered judgment on the rule suspending the alimony payments and reducing the amount of support for the minor children. Relief from that subsequent decree can only be afforded by a timely and proper motion for appeal.

Accordingly, we conclude that a rendition of a decree by this court can serve no useful purpose and can afford no practical relief to the appellant. The appeal is dismissed.

Appeal dismissed.

      . Alimony after separation from bed and board.

      . Our record on appeal does not disclose whether or not the motion to reduce was filed in response to a rule for contempt.


author: REDMANN, Judge. SCHOTT, Judge

text:
    Succession of Miss Edna C. HAUSSER.
    No. 6956.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Rehearing Denied Nov. 11, 1975.
    Writ Refused Jan. 7, 1976.

      Guy B. Scoggin, Legier, McEnerny, Waguespack, Kuhner & Scoggin, New Orleans, for J. Clarence Hirsch.
    P. Fred Siegel, New Orleans, for Gerard Hausser.
    C. Ellis Henican, Jr., New Orleans, J. Wayne Mumphrey, Chalmette, for Margaret A. Chutz, Lavinia Alice Chutz, John Alvin Chutz, II and Gerard A. Chutz.
    Felicien Y. Lozes, New Orleans, for Allan Jaffe and E. Lorenz Borenstein.
    Before REDMANN, LEMMON, GU-LOTTA, BOUTALL and SCHOTT, JJ.
   REDMANN, Judge.

The legatees of the proceeds of testatrix’s immovable property appeal from the dismissal of their opposition to a private sale of decedent’s home in the New Orleans Vieux Carre proposed by the executor. The legatees oppose the proposed sale for $100,000 cash because $110,000 cash had been offered (about two weeks after the first offer). We sustain their opposition and reverse.

Testatrix died December 14, 1973. Her will named her “friend and long-time adviser, J. Clarence Hirsch,” her executor. The will provides: “I hereby instruct my executor to convert into cash, under the circumstances which, in his judgment, seem to be most appropriate, all my real estate, and the net proceeds therefrom, I give and bequeath” to opponents (70% to one and 6% to each of the others).

Execution of the will was delayed by an attack on its validity by a niece, who was left the same 6% portion of the immovable proceeds as great-nieces and great-nephews. While that attack was pending the executor received inquiries about the property from both offerors here involved (and other persons as well), but declined to negotiate because of the attack on the will. The attack was dismissed on joint motion with prejudice on October 9, 1974.

On October 23, 1974, the attorney for interests which owned an adjacent small hotel contacted Hirsch to reassert interest in purchasing. However, the attorney explained that a “hotel moratorium” required assurance from City and Vieux Carre Commission authorities that the property could be used as intended, and for this reason a firm offer could not immediately be made. Hirsch advised this prospective purchaser to “fish or cut bait” within the remaining two days of that week. On October 29, Hirsch received and accepted (subject to court approval) the $100,000 cash offer, which was an acceptable offer in his judgment as an experienced real estate agent. On November 11, the adjacent hotel owners made an unconditional offer of $110,-000 cash in the name of a newly-formed corporation (with other terms of the offer being identical to those of the $100,000 offer, including a 10% cash deposit immediately upon acceptance).

When the executor nevertheless sought court approval of the proposed $100,000 sale, this opposition by the legatees resulted.

We first note that, as legatees (affected by the sale), opponents are expressly authorized by law, C.C.P. 3283, to oppose the sale. Accordingly this case is not affected by Succession of Senkpiel, 1955, 227 La. 516, 79 So.2d 866, and Succession of Lustig, La.App.1959, 112 So.2d 760, which held third-party offerors unauthorized to oppose a private sale. Our executor cites especially Lustig’s reasoning that “the Courts would be forced to accept bids, through written oppositions, ad infinitum . . . causing great delay in expeditiously handling” the succession. As to that reasoning, we observe that in Senkpiel the opposition, although disallowed, in fact caused a higher bid by the original offeror, and that that higher bid was the price fixed by the court for the sale. Thus the supreme court in Senkpiel did not share Lustig’s apprehension over auction-by-opposition. See also Succession of Voland, La.App.1974, 296 So.2d 406, writ refused, La., 300 So.2d 184, indicating that the court can authorize the sale at a higher price than that advertised. On another possible effect of disallowed opposition, see In re Standard General Realty Co. Inc., La.App.1965, 173 So.2d 862, in which testimony on value by a dismissed opponent defeated the proposed sale.

We second note that opponents did not propose that a substitute sale be made, to the offeror of $110,000 (whose offer by its terms was irrevocable only through November; the trial court hearing was November 29, and judgment was December 19). However, if it be preferable for opponents whose opposition is based solely on a higher offer to ask the court not only to refuse approval of the lower offer but to grant approval for acceptance of the higher offer (as in Voland, thus avoiding Lustig’s concern over auction-by-opposition), we find no authority obliging opponents to do more than simply oppose on the basis of the higher offer. To the contrary, In re Standard General Realty Co. Inc., supra, rejected a proposed private sale because the price was too low, while also rejecting attempted oppositions from third parties who wanted to offer higher prices.

We therefore consider the question to be whether the sole legatees of property’s proceeds can successfully oppose a private sale at one price by showing only that a higher price has since been offered (although by the time of this appeal that offer has expired).

We deem it a basic and self-evident principle, founded on due process concepts, that interested heirs, legatees or creditors may not be forced to suffer a loss by a private sale of succession property by the succession representative for the lower of two prices offered on otherwise identical terms. This principle cannot be affected by the testatrix’s direction to her executor to sell “under the circumstances which, in his judgment, seem to be most appropriate.”

The executor’s interpretation of his testamentary authority to support the lower-priced sale is defeated by C.C. 1573:

“The custom of willing by testament, by the intervention of a commissary or attorney in fact is abolished.
“Thus the institution of heir and all other testamentary dispositions committed to the choice of a third person are null, even should that choice have been limited to a certain .number of persons designated by the testator.”

Because of art. 1573, a testator cannot directly authorize his executor to donate the testator’s property to undésignated persons ; and the testator cannot indirectly do so, by authorizing his executor to “sell” property (to undesignated persons) at whatever price pleased the executor, irrespective of market value. Such an authorization would allow the executor to select a donee of part of the value of that property, by “selling” at, say, 10% of value, by which device the executor would effectively donate 90% of value to the “purchaser” (or, selling for 90%, thus donating 10%)- (Compare Succession of Baldwin, La.App.1975, 309 So.2d 808, annulling a will’s provision that “checking account [and two savings and loan association certificates] be handled as [the executrix] sees fit.”)

In our case, the testatrix herself named several legatees to receive only 6% each of the cash proceeds of her property: if her instructions to the executor are interpreted to authorize him to sell for $100,000 [why not $75,000? or $50,000?] in the face of a $110,000 offer, then that authorization enables him to select a stranger to be a beneficiary of $10,000 of value from the succession ($110,000 of property for $100,000) — and that $10,000 is more than the 6% that some legatees named by the testatrix herself will receive from the property.

Therefore we reject the executor’s interpretation of the testamentary language as an authorization to him to sell for whatever price (or even whatever reasonable price) he wishes, and specifically for the lesser of two prices offered on otherwise identical terms.

The executor — himself a real estate broker by profession — expressed concern that he copld not consider a later offer after having accepted (subject to court approval) an earlier offer. In our view, that the succession representative had already conditionally accepted the first offer prior to receipt of the second is immaterial. He owes no obligation to the first offeror other than to present the offer to the court, and he owes this obligation only in his capacity of succession representative. The succession representative, unlike a broker, does not become the agent of both seller and buyer, but remains the representative of the succession exclusively, obliged only to the succession, and for the benefit of its creditors, heirs and legatees. “A succession representative is a fiduciary with respect to the succession . . . ,” C.C.P. 3191, who “cannot in his personal capacity or as representative of any other person make any contracts with the succession . . . ,” art. 3194 (emphasis added). Thus, even after conditionally accepting an offer, the succession representative cannot have any contractual relationship as the representative of the offeror. If, as in our case, a more advantageous offer is received after a first offer has been conditionally accepted, the succession representative has no obligation to the first offeror to reject the second offer. (One evident alternative, ordinarily, is to accept the second offer on the condition that the court both reject the first and approve the second offer.)

It could occur that a second offer should be rejected, because the second of-feror is irresponsible. Even if the higher offer promises a 10% cash deposit immediately on acceptance and the deposit is actually made, it is supposable that the succession could lose by accepting the higher offer. In our case, for example, the forfeit of an $11,000 deposit might not overcome áctual loss, if no other $100,000 offer could later be obtained and the property had ultimately to be sold for less than $89,-000. (But query, whether such a loss is of any concern to the executor, when the legatees are all competent and unanimously oppose the $100,000 offer.)

In fact our higher offer did come from an “irresponsible” offeror, in the sense that the offeror was a newly-formed corporation without assets of its own. However, the uncontradicted testimony of its agent was that he had a cashier’s check for the $11,000 deposit from his mother, the corporation’s sole shareholder, who was also prepared to provide the balance of the price. In the absence of a showing that the two offers of $100,000 and $110,000 were substantially above market — a showing of a likelihood that a later sale would bring a price of less than $89,000 — the fact that the corporation which would have deposited $11,000 was otherwise judgment-proof does not by itself suffice to authorize the executor (or the trial court) to reject the $110,000 offer.

Much less should the higher offer be rejected when all the interested legatees are legally competent and unanimously oppose the sale at the lower price, and no creditor’s interest is affected.

Although the $110,000 offer expired while the rule was under advisement in the trial court, the legatees by this appeal have unanimously persisted in their opposition to the $100,000 sale. They do run a risk of ultimate loss if they defeat this $100,-000 sale, and the property cannot later be sold for an equal or greater price. But it is their risk, and not the executor’s risk nor any creditor’s risk.

We may even assume that the trial court disbelieved the testimony of the corporate offeror’s agent that he had an $11,000 cashier’s check from the corporation’s sole shareholder. The same reasoning applies: the risk is that of the legatees.

There may be limits on legatees’ or heirs’ rights to defeat a proposed private sale by the succession representative. Presumably the existence of creditors entitled to prompt payment might require approval of a sale at a price the heirs deem low. Presumably a showing that the property had been advertised for a lengthy period and that no better offer had been made might similarly justify approval of a sale opposed by the heirs, in order ultimately to bring the succession proceeding to a reasonably prompt conclusion. Even the necessity to pay death taxes, if shown despite the available procedures of estimate and extensions, might overcome the heirs’ opposition. And, of course, lack of unanimity or competency among the heirs would eliminate entirely the argument that the heirs have the right to take the risk of losing a certain sale in the hope of a better sale.

None of these circumstances were shown to be present here. The legatees are competent and unanimous; death taxes were not shown to be pressing (although 12 months had passed since the death) j the property had been on the market only 20 days after termination of the will contest; there are no unpaid creditors (we do not decide how the will charges debts, to movables or immovables). We find no justification in our circumstances for rejecting these legatees’ unanimous opposition to this private sale.

We finally add that, despite argument on the point, we do not consider whether the executor is entitled to a real estate agent s commission (either in addition to, or in lieu or as a measure of, executor’s commission; see C.C.P. 3194, 3351 and 3353). The parties agreed on oral argument that this question would be decidable upon final account.

The judgment appealed from is reversed, and the opposition to the executor’s application for authority to sell under the October 29, 1974 agreement is sustained.

SCHOTT, J., dissenting with written reasons.

SCHOTT, Judge

(dissenting).

On December 18, 1973, these proceedings were initiated on a petition to probate decedent’s last will and testament and to qualify J. Clarence Hirsch as testamentary executor. Soon after he was appointed, the executor was met with a petition filed by one of the appellants, Lavinia Alice Chutz, attacking the validity of the will. These proceedings were terminated on October 9, 1974, by a joint motion of all parties and consent judgment dismissing the petition attacking the will.

In the meantime the executor had secured authority to manage the real estate included among the assets of the succession and he had secured homologation of a first tableau of distribution reflecting receipts of some $6,238 and disbursements of some $3,428, including some $1,881 in connection with decedent’s last illness and burial expenses. The executor was otherwise engaged in active litigation over the validity of the will, and until the termination of that litigation was prevented from administering the business of the succession in an orderly and expeditious manner.

The sworn descriptive list of the succession assets included the following:

Household furnishings and personal effects $585.00
Cash in Banks 3,012.71
Homestead accounts 24,711.63
Miscellaneous 1,057.44
Real Estate 228,400.00
Total $257,866.78

The real estate consisted of six pieces in the City of New Orleans, including the piece at 733 Toulouse Street valued at $75,-000.

On October 29, 1974, the executor accepted the offer to purchase the property on Toulouse Street and filed his application for court approval on October 31. This offer was opposed by appellants and its homo-logation is under attack in these proceedings.

When the executor accepted the responsibility as such he became a fiduciary with the duty of collecting, preserving and managing the property of the succession in accordance with law. He was to serve as a prudent administrator, personally responsible for all damages resulting from his failure so to act. LSA-C.C.P. Art. 3191. Other articles of the Code prescribe various penalties for his failure to follow the law. See comment (b) to Art. 3191. One of his duties is “to close the succession as soon as advisable.” C.C.P. Art. 3197. He also undertakes the obligation to pay federal estate tax, 26 U.S.C.A. § 2002, and becomes personally liable for the payment of such taxes. See Herson v. Mills, D.C.D.C. 1963, 221 F.Supp. 714.

It appears from the descriptive list that this succession will probably have some liability for federal estate tax. Assumption of executor’s responsibility carries with it not only liability for the payment but also the obligation to make the payment within nine months after the date of decedent’s death, subject to his right to request extensions of time in which to make such payment. 26 U.S.C.A. § 6075.

The will does not make perfectly clear who is liable for the debts of the decedent. It provides in part as follows:

“I hereby require that all my debrs be paid.
“I further require that each legatee, hereinafter named pay his or her share of State Inheritance Taxes, and his or her proportionate share of any Federal Estate Tax which may be due by my estate.
“After the payment of my debts, administration expenses, including Executor’s commission and attorney’s fees, I give and bequeath all the balance of my estate, except the real estate, as follows:
[The names of three religious institutions]
“I hereby instruct my Executor to convert into cash, under the circumstances which, in his judgment, seem to be most appropriate, all my real estate, and the net proceeds therefrom, I give and bequeath as follows:”

There follows the names and addresses of appellants herein.

It may be that the decedent intended for all of her debts and expenses of administration to be taken from her cash and movables with the residual therefrom going to the three religious institutions, but she may have intended instead that all debts and expenses of administration are to be apportioned among not only the religious houses but appellants as well. The executor cannot ignore this as a possible interpretation and a corresponding complication in the execution of the will. In any event, appellants are liable for perhaps considerable amounts, not only for federal estate taxes but also for state inheritance taxes.

Thus, when the executor filed his application to sell the property at private sale provoking appellants to oppose the application, there was a great deal to be done in the administration of the succession and in the execution of decedent’s will. The performance of these duties had already been delayed because of the litigation initiated by one of the appellants herein.

The executor had accepted an offer to sell the property for $100,000, he was holding a $10,000 cash deposit, and he had applied for the court’s approval to sell the property when the second offer was made. The delays incident to publication had run when appellants’ opposition came to trial. It is emphasized that by the time the judgment was signed, homologating the executor’s application, the offer championed by appellants had expired and there was no assurance that a deposit would be forthcoming if this now expired offer were accepted. The effect of the majority opinion is to tell the executor to give up on an agreement which will provide the succession with $100,000 secured by a $10,000 deposit in the hope that this unsecured second offer can be resurrected and processed with attendant delays and much uncertainty as to success in the end.

The majority’s willingness to permit this result is based primarily on the hypothesis that appellants are the only persons who have any real interest in the amount the property brings. If the second offer cannot be resurrected for any reason including irresponsibility on the part of the second offeror the majority holds that this is of no concern to the executor. This approach is dramatically demonstrated with the majority statement that even if the trial court attached no credibility to the testimony of the agent for the second offeror that he had a cashier’s check for $11,000 to serve as a deposit on the second offer, the court should have maintained the opposition anyway since the risk was exclusively on the opponents-appellants. Under this reasoning the executor had no right to function except as an agent for the appellants, a role not at all consistent with the provisions of the law which are cited above.

I believe that the testamentary executor had a real interest in seeing to it that the sale which he had entered into subject to court approval be carried out without any more delay and that the overall business of the succession be completed expeditiously.

Considering the great delays which have already been encountered in the administration of this succession, the length of time already passed since the executor assumed his responsibilities and his present ability to complete a sale without delay under the security of a substantial deposit, I believe the trial judge properly exercised his discretion in dismissing the opposition. I believe that homologation of the executor’s application was in the best interest of the succession and I would affirm the judgment of the trial court.

I respectfully dissent.

      . Evidently at some ultimate time the death tax collectors themselves might cause the sale of succession property to pay the taxes, despite any objection by the legatees, and arguably the executor’s obligation to pay the taxes might give him a derivative right to override the wishes of the legatees. But that ultimate time does not occur 20 days after the will contest ends. The tax collectors could not themselves have forced a sale so swift: and the executor cannot claim entitlement to do so in the name of paying taxes.

      . We note also that O.C.P. 3031 — 3033 entitle residuary legatees to be placed in possession even over the opposition of the executor. The term “residuary legatees” in the Code of Civil Procedure includes legatees under a universal title, C.C.P. 2826, and therefore includes legatees of all or a proportion of all of the immovables, C.C. 1612. Every legacy is “either universal, under a universal title, or under a particular title,” C.C. 1605, and since a legacy of the sale proceeds of all or a portion of all the immovables seems to be neither universal nor under a particular title, it appears to be a legacy under a universal title, as is the legacy of the immovables themselves. (Compare Succession of Meyer, 1941, 198 La. 53, 3 So.2d 273, concluding that a legacy of the disposable portion is one under a universal title.) Thus the legatees of the proceeds of all the immovables might be entitled on their joint demand to be placed in possession even over the opposition of the executor, under C.C.P. arts. 3031-3033 (if all residuary legatees accepted the succession unconditionally, art. 3031). (The executor’s entitlement to compensation is protected by art. 3033.) In such a case, the legatees might therefore have the right to prevent any sale at any price by demanding possession. This greater right would include the lesser right of preventing a proposed sale at a price they deem too low.
      We also observe that unanimous legatees might insist that they themselves be allowed to “buy” or take on the basis of the price proposed by the executor and — since the net price belongs to themselves — pay nothing but the allocable charges.


text:
    OPINION OF THE JUSTICES.
    No. 219.
    Supreme Court of Alabama.
    Oct. 1, 1975.
   To the Members of the House of Representatives

State Capitol

Montgomery, Alabama

Sirs and Madam:

We have your second request for an advisory opinion as to the constitutionality of Act No. 130 which was passed by the Legislature over the Governor’s veto on August 7, 1975. Your request for an opinion, H.R. 357, is dated September 16, 1975, more than a month after Act No. 130 became law.

Advisory opinions of the Justices are authorized by Tit. 13, § 34, Code of Alabama. The statute was passed in 1923, and provides :

“The governor by a request in writing, or either house of the legislature, by a resolution of such house, may obtain written opinion of the justices of the supreme court of Alabama, or a majority thereof, on important constitutional questions.”

The two questions asked in H.R. 357 are:

“(1) Does the act violate any provision of the Constitution?
“(2) Specifically, is that provision of the act which forbids the members of the first Ethics Commission from serving on the commission created by said Act No. 130 in violation of the Constitution?”

We respectfully decline to answer the questions for two reasons. The first reason is that the scope of inquiries for advisory opinions authorized by Section 34 of Title 13, does not authorize the Justices to give opinions to the Legislature as to the validity or constitutionality of Acts which have already passed the Legislature; and advisory opinions are not issued when requested by the Governor on Acts passed by the Legislature when no action of the Governor is dependent on our opinion. This is not new. It was stated in Opinion of the Justices, 264 Ala. 452, 88 So.2d 778 (1956); Opinion of the Justices, 267 Ala. 110, 100 So.2d 565 (1958); and Opinion of the Justices, 286 Ala. 156, 238 So.2d 326 (1970).

The reason for the rule is simple. After a law has been passed, it is presumed to be constitutional and is the law until the constitutionality of the law is contested in court in an adversary proceeding where the court can have the benefit of briefs and argument of counsel, and where time is not nearly so limited as it is on a request for an advisory opinion. There is an exception. Advisory opinions can be given to a Governor where the Governor is required to act on a law which raises constitutional issues.

The second reason is that the Justices have consistently restricted advisory opinions to questions on the constitutionality of legislation arising under a stated section or sections of the Constitution. Requests such as (1) here — “Does the act violate any provision of the Constitution?” — or “Is the act constitutional” are considered too broad, general and indefinite.

This rule also is not new. It was given as a reason for not answering questions in: Opinion of the Justices, 216 Ala. 469, 113 So. 584 (1927); Opinion of the Justices, 226 Ala. 18, 145 So. 481 (1933); Opinion of the Justices, 249 Ala. 511, 31 So.2d 721 (1947); Opinion of the Justices, 252 Ala. 527, 41 So.2d 775 (1949); Opinion of the Justices, 286 Ala. 156, 238 So.2d 326 (1970); Opinion of the Justices, 291 Ala. 128, 278 So.2d 711 (1973).

In the last-cited opinion, all the Justices approved a statement from a former opinion as follows:

“ * * * To leave to the Justices the search for all possible avenues of constitutional tests, imposes a task accompanied with such doubt and uncertainty that even those gifted with unusual ingenuity, would retreat from it.”

Question (2) of H.R. 357 is also too broad and indefinite because it asks if a certain provision of the Act is “in violation of the Constitution?” We are constrained to apply the same rule to question (2).

We note that H.R. 357 states that “it is deemed necessary that an advisory opinion is necessary for the guidance of the Governor and the Legislature in taking affirmative action as required by said act.”

As previously stated, the Legislature has already passed the Act and it has become law. No further affirmative action is required by the Legislature.

We know of no authority whereby the Legislature can ask for an advisory opinion for the guidance of the Governor, nor whereby the Governor could ask for an advisory opinion for the guidance of the Legislature. Under the separation of powers doctrine, the legislative and the executive branches are separate. Constitution of 1901, Section 42. One department of government is not authorized to ask for advisory opinions for the other; but the statute authorizes either the Governor to ask for an opinion or for “either house of the legislature” to ask for one.

Respectfully submitted,

PELHAM J. MERRILL,

JAMES N. BLOODWORTH,

HUGH MADDOX,

JAMES H. FAULKNER,

RENEAU P. ALMON,

JANIE L. SHORES,

ERIC EMBRY,

Associate Justices.


author: JONES, Justice. MERRILL, Justice JONES, Justice.

text:
    Cliff B. HARRIS v. The BOARD OF WATER AND SEWER COMMISSIONERS OF the CITY OF MOBILE, a Public Corporation.
    SC 851.
    Supreme Court of Alabama.
    July 10, 1975.
    As Corrected on Denial of Rehearing Oct. 2, 1975.

      Conrad & Hammond, Mobile, for appellant.
    Gaillard, Wilkins, Smith, Little & Dru-han, Mobile, for appellee.
   JONES, Justice.

This appeal results from the trial Court’s granting of The Board of Water and Sewer Commissioners of Mobile’s (defendant-appellee) motion to dismiss Cliff Harris’s (plaintiff-appellant) two-count amended complaint.

Harris, a resident and taxpayer of Mobile, owned and operated a motel and restaurant in Mobile County. The Board is a public corporation organized pursuant to Tit. 37, § 402(28-46), Code of Alabama 1940 (Recomp. 1958). By virtue of a contract with the City of Mobile, the Board is charged exclusively with the water and sewer system responsibilities for Mobile County. As part of its contractual obligation to the City, the Board is to provide fire hydrants and to maintain an adequate supply of water for the proper functioning of those hydrants.

On August 28, 1971, Harris’s motel and restaurant caught fire; and firemen, according to the complaint, were unable to extinguish the fire because the hydrants were dead (dry). Consequently, the motel and restaurant were totally destroyed.

Harris’s amended complaint, alleged, inter alia:

(1) The defendant had the exclusive contract for water distribution with the City of Mobile, who acts as an agent for all of its taxpaying citizens.
(2) In said contract, defendant agreed to provide water and fire protection and properly functioning fire hydrants.
(3) It breached this contract in that it caused or allowed an inadequate water supply to exist in the fire hydrant closest to plaintiff’s property, and, as a direct and proximate result of said breach, plaintiff’s motel and restaurant were needlessly destroyed by fire.
(4) The defendant negligently maintained the fire hydrant which caused the water failure in the hydrant; and, as a direct and proximate cause of this negligence, city firemen were unable to contain the blaze which resulted in the loss of plaintiff’s property.

Two issues confront us:

(1) Is there sufficient privity of contract between Harris and the Board to allow his cause of action to lie for breach of contract ?
(2) Whether the Board, a public corporation, enjoys the traditional defense of sovereign or governmental immunity, and thus incurs no liability for its failure to maintain an adequate water supply in the hydrants ?

We reverse the order of dismissal entered by the trial Court. We hold that the Board does not now enjoy such immunity and there is sufficient privity to allow the contract action. We remand this cause for further proceedings not inconsistent with this opinion.

I.

Count One: Breach of Contract

As to the existence vel non of privity of contract, this Court has twice held that the property owner cannot maintain an action against a water company for the loss of property proximately resulting from its failure to provide sufficient water or water pressure for fire purposes, as is required by its contract with the municipality —there being a want of privity between such property owner and the water company. Ellis v. Birmingham Water Works Company, 187 Ala. 552, 65 So. 805 (1914); Lovejoy v. Bessemer Waterworks Company, 146 Ala. 374, 41 So. 76 (1906).

At this point, we note that through the years there has been a substantial degree of confusion as to the distinction in these situations (if, indeed, such distinction exists) between the requirements that a party be in privity of contract or be a third party beneficiary to the contract. See Murray, Murray On Contracts, § 278 (1974). This distinction was clearly delineated by Justice Stone in La Mourea v. Rhude, 209 Minn. 53, 295 N.W. 304, 306 (1940):

“Many cases dealing with recovery by a third party beneficiary have also required and discussed the element of privity as prerequisite to recovery. Those dealing with promises to a public corporation for the benefit of its citizens have found that factor in the ‘obligation to protect its inhabitants’ resting on a governmental unit in making public contracts . . . Under the rule as we view it, such obligation is immaterial. Privity, in the law of contracts, is merely the name for a legal relation arising from right and obligation. For example, A, by contract, secures a promise from B. A may transfer his right of enforcement to C. C thereby succeeds to A’s right of action, and, in consequence, comes into the relationship with A and B which we call privity of contract. Instead of waiting to do it by assignment, A may, at the outset, exact from B the same promise in favor of C. It is enforceable by C, who thereby has come directly into the legal relationship with B. That illustrates the normal course of things resulting in privity of contract, which is but a descriptive term, designating effect rather than cause. In short, privity of contract is legal relationship to the contract or its parties. To affirm one’s right under a contract is therefore to affirm his privity with the party liable to him.
“That simple truth removes the difficulty arising from the complicated notions expressed by judges and text writers concerning privity of contract. The term has been much misused. In consequence, we have the process referred to by Judge Cardozo in Ultramares Corp. v. Touche, 255 N.Y. 170[180], 174 N.E. 441, 445, 74 A.L.R. 1139, when he said: ‘The assault upon the citadel of privity is proceeding in these days apace. How far the inroads shall extend is now a favorite subject of juridical discussion.’ Mr. Page, in respect to the right of a beneficiary of a contract, asserts that the true explanation is that no privity is necessary between beneficiary and prom-issor. 4 Page, Law of Contracts, 2d Ed. 1920, p. 4211, § 2388. It is said, concerning the right of a beneficiary to recover: ‘The very essence of the American rule is that such privity is not necessary.’ Annotation, 81 A.L.R. 1289. The truth is, says Mr. Williston, ‘that through this travail [of the conflicting notions of judges and text writers] the common law has given birth to a distinct, new principle of law which takes its own place in the family of legal principles, and gives not only to a donee beneficiary, but also to a creditor beneficiary, the right to enforce directly the promise from which he derives his interest.’ 2 Williston, Contracts, Rev.Ed., § 357, p. 1049.
“Our submission is that all such discussion (including this) has no more than academic value because, the beneficiary’s right to recover established, with the resulting obligation of the promissor in his favor, there arises the relation we call privity. Anyway, privity or no privity, the overwhelming weight of authority and the entire weight of all inherent factors of the problem speak for recovery by this beneficiary.”

Alabama law is clear to the effect that one for whose benefit a valid contract has been made, although that person is not a party thereto and does not furnish any consideration therefor, may maintain an action on the contract against the promis-sor. Anderson v. Howard Hall Company, 278 Ala. 491, 179 So.2d 71 (1965); Mutual Benefit Health & Accident Association of Omaha v. Bullard, 270 Ala. 558, 120 So.2d 714 (1960); Tennessee Coal, Iron & Railroad Co. v. Sizemore, 258 Ala. 344, 62 So.2d 459 (1952); Employers Ins. Co. of Alabama v. Rhodes, 240 Ala. 226, 198 So. 616 (1940); Employers Ins. Co. of Alabama v. Johnston, 238 Ala. 26, 189 So. 58 (1939); Barlowe v. Employers Ins. Co. of Alabama, 237 Ala. 665, 188 So. 896 (1939). The only condition being that the third person must have been intended to be directly and not incidentally benefited. Anderson v. Howard Hall Company, supra; Brown v. Fogarty, 221 Ala. 283, 128 So. 376 (1930).

The third party beneficiary rule has also been the basis of recovery under similar factual situations in other jurisdictions. Royal Indemnity Co. v. City of Erie, 326 F.Supp. 571 (W.D.Pa.1971); Doyle v. South Pittsburgh Water Company, 414 Pa. 199, 199 A.2d 875 (1964); Potter v. Carolina Water Company, 253 N.C. 112, 116 S. E,2d 374 (1960); Pineville Water Company v. Bradshaw, 266 S.W.2d 305 (Ky.1953).

In our present situation, how can it be said that Harris is not the very party for whose benefit the contract was made? We agree that the City itself enjoys some degree of direct benefit from their contract with the Board since its own property is protected. But, in the end, the most direct benefit inures to the people of the City, like Harris, who rely on these city-provided services for the protection of their property. This is not to say that the Board is an insurer against all fire losses, but it should be answerable to all those who are injured by its breach of the contract to supply water or its negligent maintenance of nonfunctioning fire hydrants where damage results proximately therefrom. We find that the facts alleged are sufficient to show that benefits of the contract in question flow to Harris, and thus make him a third-party beneficiary entitled to sue on the contract for its breach.

II.

Count Two: Negligent Maintenance

The negligence count, though based in tort rather than contract, is also an acceptable ground under which Harris may elect to sue the Board. As set forth in Tennessee Coal, Iron & Railroad Co. v. Sizemore, supra, 258 Ala. at 349, 62 So.2d at 463:

“A complaint for the breach of a contract in not performing the obligation there expressed, or not doing it in the way specified, is not in tort, and cannot be unless the non-performance is by reason of a failure to exercise the care required by law in attempting to perform. If defendant omits to enter upon the duty to perform, however negligent that might be, that is not a negligent performance and not a tort. But if he does undertake to perform, his performance may be negligent, giving rise to a tort. Sloss Sheffield Steel & Iron Co. v. Wilkes, 231 Ala. 511, 165 So. 764, 109 A.L.R. 385. So that the allegation merely that he breached his contract by failing to install a proper ventilating system, as the contract requires, does not show any negligence or failure to exercise the due care required by legal implication to install such system. Non constat, he did exercise due care to do so, but did not accomplish the task for some other reason.
“But even when the complaint shows that the breach of the contract was also a negligent failure to perform a duty which the law imposes by reason of such contract, the injured employee may sue either for the breach of the contract when he is a party to it, or it is made for his direct benefit, or may sue in tort for the breach of the duty imposed by law. Mobile [Life] Ins. Co. v. Randall, 74 Ala. 170, 177. So that, if we assume that the facts alleged show a duty on the part of defendant to exercise due care to furnish plaintiff a reasonably safe place to work by reason of his employment, as in effect stipulated in his contract, and that his negligent failure in that regard furnished ground for a tort action, Woodward Iron Co. v. Craig, 256 Ala. 37, 53 So.2d 586; Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530, it does not follow that defendant may not also be liable for a breach of its contract to do so.
“Under such circumstances, the injured employee, who is a party to the contract or one for whose direct benefit it was made, may sue for its breach in assumpsit, or may sue in tort for negligence in failing to perform a duty imposed by law. He has an election in that respect. Lambert v. Jefferson, 251 Ala. 5, 36 So.2d 594; Davis v. Ruple, 222 Ala. 52, 130 So. 772; Adler v. Miller, 218 Ala. 674, 120 So. 153; Knowles v. Dark, 211 Ala. 59, 99 So. 312; Mobile [Life] Ins. Co. v. Randall, 74 Ala. 170.”

See also Vines v. Crescent Transit Company, 264 Ala. 114, 85 So.2d 436 (1955).

There are two basic avenues by which tort liability might be found to exist in this case. First, the failure to act when there is a legal duty to do so is sufficient to support a cause of action in negligence. Moseley v. Alabama Power Co., 246 Ala. 416, 21 So.2d 305 (1945); Tennessee Coal, Iron & Railroad Co. v. Smith, 171 Ala. 251, 55 So. 170 (1911). Second, the well-established and long-followed tort liability doctrines espoused by Justice Cardozo in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916) are likewise sufficient to support a tort action.

In order for Harris to have a cause of action grounded in negligence, three essential elements must be found: (1) There must be a duty owed by the Board to Harris. (2) There must be a breach of that duty, either by omission or commission. (3) There must be an injury sustained by Harris in consequence of that breach. Sammons v. Garner, 284 Ala. 131, 222 So. 2d 717 (1969); Malone Freight Lines, Inc. v. McCardle, 277 Ala. 100, 167 So.2d 274 (1964).

As to whether there is a duty owed by a water works board to an individual citizen with respect to fire hydrants, the Pennsylvania Supreme Court, in Doyle v. South Pittsburgh, etc., Co., supra, dealt very skillfully with that precise issue. The holding in Doyle is to the effect that, even if the water company had no duty to provide the fire hydrants in the first place, once the hydrants were there, the water company did have an imperative duty to see that reasonable care was exercised in the maintenance and repair of the hydrants.

We adhere to that principle and here told that, given the fact that the hydrant was installed, the failure to use reasonable care in its maintenance, including the supplying of water thereto, is a sufficient breach of duty to provide a party with a cause of action under the theory of simple negligence.

In addition to the Pennsylvania case already cited, at least three other recent decisions have held there is a duty owed to the plaintiff in similar situations. Shannon v. City of Grand Coulee, 7 Wash.App. 919, 503 P.2d 760 (1972); Royal Indemnity Co. v. City of Erie, supra; Potter v. Carolina Water Co., supra.

Moreover, our decision is but a natural extension of Brown v. City of Fairhope, 265 Ala. 596, 93 So.2d 419 (1957), wherein we held that a property owner could maintain an action against a city water board for negligence in the maintenance of a sewer line. The only real difference in that case and the case at bar is one of degree. In Brown, the problem was “too much water”; here the problem is “not enough water.”

MacPherson discusses at least two possible ways a plaintiff in a situation such as this might recover under well-recognized principles of tort law. First, where one party to a contract assumes a duty to another party to that contract, and it is foreseeable that injury to a third party — -not a party to the contract — may occur upon a breach of that duty, the promissor owes that duty to all those within the foreseeable area of risk. Certainly, the facts in the instant case fall squarely within that rule. As to the doctrine of foreseeability, see Havard v. Palmer & Baker Engineers, Inc., 293 Ala. 301, 302 So.2d 228 (1974).

Second, although MacPherson speaks to a manufacturer’s liability, the rationale is equally applicable to a supplier, as here. The pleadings disclose no malfunctions in the operation of the fire hydrant in question, but they do indicate that the owner and supplier failed to have the hydrant ready for the only purpose it had —to provide water for a fire. Manufacturers’ tort liability applies in cases where there is no privity between the manufacturer and the ultimate user. While at this point in time it would be of academic curiosity merely, it is at least arguable that Alabama- has never required privity as a basis for tort liability; i. e., even in the pre-MacPherson era, privity between the parties was not a requisite for liability ex de-licto.

If the product in question, although not inherently or imminently dangerous in itself, becomes so when applied to its intended use in the usual and customary manner, and an injury is sustained as the natural and proximate result of the use of that article, then the manufacturer is liable to the user. Defore v. Bourjois, Inc., 268 Ala. 228, 105 So.2d 846 (1958). The fireplug was to be used in the usual and customary manner and the injury was sustained as the natural and proximate result of the inability to use- that article, according to Harris’s complaint. What can be more imminently dangerous that a fireplug that does not function when it is needed to fight a fire ?

The rhetorical questions posed by the Pennsylvania Supreme Court in Doyle v. South Pittsburgh Water Co., supra, clearly indicate the need for allowing liability to lie with the wrongdoer.

“Could the needs of domiciliary life require anything more vitally than proper fire protection? Could anything be more cruelly deceptive than fire hydrants which do not function? Could there be a greater lapse of care than to fail to properly inspect and maintain fire hydrants once they have been established and the community has accepted them as being live guardians and not mere painted cast iron ? ”

III.

Municipal Immunity

Whether our holding herein would have obtained had we accorded validity to the municipal immunity defense, we need not decide in view of our decision abolishing the application of this doctrine, this date released, in Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68. Because we are expressly overruling Ellis and Lovejoy, however, the policy reasons for quasi prospective application is equally valid here, i. e., relief is afforded to the instant plaintiff and to others similarly situated who incur injury or damage from this date hence.

Reversed and remanded.

FAULKNER, ALMON, SHORES and EMBRY, JJ., concur.

BLOODWORTH, J., concurs in the result.

HEFLIN, MERRILL and MADDOX, JJ., dissent.

MERRILL, Justice

(dissenting).

My reasons for dissenting are the same as those appearing in my dissent in Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68.

MADDOX, J., concurs.

ON REHEARING

JONES, Justice.

Opinion corrected and application for rehearing overruled.

BLOODWORTH, FAULKNER, AL-MON, SHORES and EMBRY, JJ., concur.

HEFLIN, C. J., and MERRILL and MADDOX, JJ., dissent.


author: JONES, Justice. EMBRY, Justice MERRILL, Justice JONES, Justice. BLOODWORTH, Justice

text:
    Ralph Camenron LORENCE v. HOSPITAL BOARD OF MORGAN COUNTY, Alabama, a public corporation, et al.
    SC 1137.
    Supreme Court of Alabama.
    July 10, 1975.
    As Corrected on Denial of Rehearing Oct. 2, 1975.

      Chenault & Chenault, Decatur, for appellant.
    Joe Calvin, Decatur, for appellees.
   JONES, Justice.

The principle issue presented by this appeal is whether governmental immunity is available to a County Hospital Board as a valid defense to an action ex delicto.

We reverse the trial Court’s order granting the motion to dismiss the tort counts. We hold that the trial Court did not err in granting the motion to dismiss the contract counts since the duty alleged is imposed solely by law and its alleged breach is tortious only. Accordingly, we affirm in part and reverse in part and remand for further proceedings not inconsistent with this opinion.

Inasmuch as this cause on remand is yet to be tried, the issue presented having reached this Court on the pleadings, we deem it inappropriate to discuss in detail the facts as alleged in the complaint. Suffice it to say, Ralph Camenron Lorence alleges that he suffered damages due to the negligence of an employee of the Hospital Board of Morgan County while acting within the line and scope of his employment.

Our consideration of this issue poses an almost overwhelming compulsion to review in depth the history — both legislative and judicial — as well as the philosophical evolution, of this legal precept. Because of the voluminous and exhaustive treatment previously accorded this entire field of law, however, such an in depth analysis is neither desirable nor necessary. Our decision this date released in Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68, abolishing the defense of sovereign immunity as to municipalities, compels the same result, founded on the same rationale, with respect to counties. Jackson held that municipal immunity, in actuality, was abolished by the legislature in 1907; and, since the “governmental/proprietary” distinction was court made, it was up to the courts to change the law to conform with the clear intent expressed by the legislature.

The bridge between Jackson (cities) and Lorence (counties) is necessarily dependent upon an affirmative reply to two questions. First, does the legal status of a municipality equate that of a county? Otherwise stated, do both fall equally within the legislative prerogative with respect to the right to sue and be sued? The answer is “yes.”

Neither is the creation of the Constitution; both are creatures of statute. The fact and nature of their respective existence, as well as the duties, powers, and limitations, are governed solely by legislative mandate. The only distinction between the two entities is wholly immaterial to our inquiry — the city is a voluntary political unit within the state while the county is an involuntary political subdivision of the state. Jones v. Jefferson County, 206 Ala. 13, 89 So. 174 (1921); Askew v. Hale County, 54 Ala. 639 (1875)..

The remaining question, then, is whether the legislature has exercised its prerogative with respect to county liability in like manner as to city liability? Here, again, as in Jackson, the answer is “yes.” The legislature has expressed its prerogative in this regard through its passage of the following statutes:

Tit. 12, § 3. “Every county is a body corporate, with power to sue or be sued in any court of record.”
Tit. 7, § 96. “Suit must not be brought against a county until the claim has been presented to the court of county commissioners or other similar governing body, and disallowed or reduced by the court, and the reduction refused by the claimant. The failure or refusal of such court or other similar governing body, to enter upon its minutes the disallowance or reduction of the claim for ninety days is a disallowance. Proof of the fact of presentation of such claim to such court of county commissioners or other similar governing body may be made by parol evidence.”
Tit. 12, § 115. “No claim against the county shall be passed upon or allowed by the court of county commissioners unless it is itemized and sworn to by the claimant, or some person in his behalf having personal knowledge of the facts; and all claims passed upon and allowed, according to this section, must be entered in the order in which they were allowed in a book kept for that purpose and filed for future reference, within two weeks after the term at which such allowances were made; and the testimony required in the allowance of a claim must show whether or not any part thereof has been previously paid. This section shall not apply to bonds and interest or interest coupons thereon, that have been lawfully issued by the county.”

As Justice Thomas observed in Calhoun County v. Brandon, 237 Ala. 537, 187 So. 868 (1939), in recognition of these legislative expressions, “A county is given the right to sue and be sued, as are individuals.”

Just as in the case of municipalities, the court, in spite of clear legislative language to the contrary, persisted in perpetuating the “King can do no wrong” thesis. Out of this jungle of court made law emerged the perverted interpretation that what the legislature really meant by the expression “with power to sue or be sued” was to subject the county to suits sounding in tort only when it was performing an act specifically authorized by the legislature and where liability was expressly imposed by the statute; and that a county was immune from suits in any case involving the exercise of their governmental functions. Garrett v. Escambia County Hospital Board, 266 Ala. 201, 94 So.2d 762 (1957); Laney v. Jefferson County, 249 Ala. 612, 32 So.2d 542 (1947).

While it is true that the legislature has not subsequently exercised its prerogative, with regard to counties, to expressly provide that they may be sued for the negligence of their agents, servants, and employees while acting within the scope of their authority, as it has done with regard to municipalities, the legislative equivalent was exercised with regard to counties in the establishment of county hospital boards. Tit. 22, § 204(24), Code of Alabama 1940 (Recomp. 1958), was passed by the legislature in 1949. It expressly provides that county hospital boards are empowered “to sue and be sued and to defend suits against it [and] to provide for such insurance as the corporation may deem advisable.”

We believe it is clear that the legislature had no intention to limit such suits to actions sounding in contract. Had it so intended, it could have so provided. This it did with regard to municipal hospitals by expressly providing that they are empowered “to sue others and to prosecute suits; to be sued by others in any form of litigation other than an action ex delicto.” (Emphasis supplied.) No such limitation appears in the legislative language contained in Tit. 22, § 204, which authorizes the creation and operation of county hospital boards.

We are not to be understood as saying that our holding would be different had the statute been silent as to the right of the county hospital board to be sued. Neither this question nor the question of the county’s general liability is before us. What is before us is the immunity question with respect to county hospital boards; and because the statute authorizing such corporate entity expressly provides for suits against them, Jackson, in its holding and rationale, compels a like conclusion.

We overrule Garrett v. Escambia County Hospital Board, supra, and Jenkins v. Houston County Hospital Board, 284 Ala. 180, 223 So.2d 583 (1969). We do not overrule old case law lightly or flippantly. But, where precedent can no longer be supported by reason and justice, we perceive it our duty to reexamine, and if need be, overrule court made law.

The quaint poetic lines of Sam Walter Foss put in perspective the philosophy of those courts which feel compelled to sacrifice their sense of reason and justice upon the altar of the Golden Calf of precedent.

One day through the primeval wood
A calf walked home, as good calves should;
But left a trail all bent askew,
A crooked trail, as all calves do.
Since then, three hundred years have fled,
And, I infer, the calf is dead.
But still he left behind this trail,
And thereby hangs my moral tale.
The trail was taken up next day
By a lone dog that passed that way;
And then a wise bell-wether sheep
Pursued the trail o’er vale and steep,
And drew the flock behind him, too,
As good bell-wethers always do.
So from that day, o’er hill and glade,
Through those old woods a path was made,
And many men wound in and out,
And bent and turned and dodged about,
And uttered words of righteous wrath,
Because ’twas such a crooked path;
But still they followed — do not laugh—
The first migrations of that calf,
And through this winding woodway stalked
Because he wabbled when he walked.
This forest path became a lane,
That bent and turned and turned again;
This crooked lane became a road,
Where many a poor horse, with his load,
Toiled on, beneath the burning sun,
And traveled some three miles in one.
And thus a century and a half
They trod the footsteps of that calf.
The years passed on with swiftness fleet,
The road became a village street,
And this, before men were aware,
A city’s crowded thoroughfare.
And soon the central street was this
Of a renowned metropolis.
And men two centuries and a half
Trod the footsteps of that calf.
Each day a hundred thousand rout
Followed the zigzag calf about;
And o’er his crooked journey went
The traffic of a continent.
A hundred thousand men were led
By one calf near three centuries dead.
They followed still his crooked way,
And lost one hundred years a day;
For thus such reverence is lent
To well-established precedent.
A moral lesson this might teach,
Were I ordained and called to preach.
For men are prone to go it blind
Along the calf-paths of the mind,
And toil away from sun to sun
To do what other men have done.
They follow in the beaten track,
And out and in, and forth and back,
And still their devious course pursue
To keep the path that others do.
But how the wise old wood-gods laugh,
Who saw the first primeval calf!
Ah! many things this tale might teach;
But I am not ordained to preach.

Also, consistent with our holding in Jackson and Harris v. Board of Water and Sewer Commissioners of City of Mobile, 294 Ala. 606, 320 So.2d 624 [this date released], we accord to our holding in this opinion quasi prospective application; i. e., relief is afforded the instant plaintiff and all others similarly situated who incur injury or damage from this date hence.

Affirmed in part, reversed in part, and remanded for further proceedings not inconsistent with this opinion.

FAULKNER and SHORES, JJ., concur.

BLOODWORTH and ALMON, JJ., concur in the result.

EMBRY, J., concurs in part and dissents in part.

HEFLIN, C. J., and MERRILL and MADDOX, JJ., dissent.

EMBRY, Justice

(concurring in part, dissenting in part):

I concur in the result to reverse in part and remand this case for further proceedings not inconsistent with the opinion of Justice Jones. I am compelled to disagree, in measure, with some of the reasons for reversing the trial court’s order granting the motion to dismiss the count sounding in tort. In totality, I am at odds with approving dismissal of the count based on contract.

The decision of this court in Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68, is both accurate and soundly reasoned. That decision analyzed and gave proper legislative intent to Code of Ala., Tit. 37, § 502.

My brother Jones accurately states that the legislature provided in Code of Ala., Tit. 12, § 3, that “Every county is a body corporate, with power to sue or be sued in any court of record.” It should be pointed out that this action is against “The Hospital Board of Morgan County, Alabama, A Public Corporation, et al.” Is this, then, an action against the County of Morgan or rather one against a public corporation organized by that county pursuant to authority of the legislature found in Code of Ala., Tit. 22, Article 5, §§ 204(18)-204(30) ? In my view it is the latter and therefore amenability to suit, ex contractu (express, implied by law or implied in fact) or ex delicto'is bottomed on proper interpretation of Code of Ala., Tit. 22, § 204(24). That amenability to suit is expressed clearly in the cited code section. No claim is necessary as a condition precedent to suit as required in an action against a county per Tit. 7, § 96. As a county enjoys no immunity from suit neither does this hospital board, but no claim is required in this instance.

Here I record my dissent with the opinion where it holds that the trial court did not err in granting the motion to dismiss the contract counts. The breach of duty imposed by law may be tortious or tortious breach of contract; express, implied by law or implied in fact, either of which is subject to proof and the remedy is a matter of election by the party complaining of the wrong which resulted in injury. Tennessee Coal, Iron & Railroad Co. v. Sizemore, 258 Ala. 344, 62 So.2d 459 (1952); Sellers v. Noah, 209 Ala. 103, 95 So. 167 (1923).

“Both express contracts and contracts implied in fact are based on consent. Evidently, in view of the fact that these are the contracts which are usually before the courts, it has been said that there is no contract without the consent of the parties. Clearly, however, such an observation must have been made without regard to the existence of certain legal duties which, though of a contractual nature, are not based on consent. These are sometimes spoken of as contracts implied in law, but are more properly called quasi-contracts or constructive contracts. They are contracts in the sense that they are remediable by the contractual remedy of assumpsit. In the case of such contracts, the promise is purely fictitious and is implied in order to fit the actual cause of action to the remedy. The liability exists from an implication of law that arises from the facts and circumstances independent of agreement or presumed intention. The intention of the parties in such case is entirely disregarded, while in cases of express contracts and contracts implied in fact the intention is of the essence of the transaction. As has been well said, in the case of actual contracts the agreement defines the duty, while in the case of quasi-contracts the duty defines the contract.” 66 Am.Jur.2d, Restitution and Implied Contracts, § 2, pp. 942-943; Broyles v. Brown Engineering Co., 275 Ala. 35, 151 So.2d 767 (1963); Cowan v. Martin & Huckaby, 246 Ala. 378, 20 So.2d 769 (1945).

MERRILL, Justice

(dissenting).

My reasons for dissenting are the same as those appearing in my dissent in Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68. That case did away with governmental immunity of a city in the performance of a governmental function. This case does the same insofar as counties are concerned. These decisions have changed the law that has been in effect in Alabama for over 100 years.

Ordinarily, taxpayers expect that taxes and governmental costs will originate in the Legislature, or their city and county governing bodies. But this court has stepped in, changed a long-existing policy, and abolished governmental immunity for towns, cities and counties while engaged in a governmental function. These decisions will probably extract more money from the pockets of taxpayers in Alabama, or diminish more services each receives, than any act raising new taxes which may be passed by the Legislature now in session.

The Legislature can restore that which has been taken away in these judicial decisions if it sees fit to do so. The taxpayers’ present remedy is with the legislative branch of government.

I would affirm the action of the trial court because I remain of the opinion that the question of governmental immunity in the performance of a governmental function is a legislative rather than a judicial matter, especially in view of the fact that most legislation affecting counties, cities and towns passed in the past 100 years has been enacted with the idea that that doctrine would continue to prevail.

I respectfully dissent.

MADDOX, J., concurs.

ON REHEARING

JONES, Justice.

The earnest contention of appellee’s able counsel that our reversal is grounded on an issue — sovereign immunity — not raised or argued in appellant’s brief deserves our response.

Plaintiff’s complaint contains two counts: one in tort and one in contract. Appellant assigns as error the trial Court’s order granting defendant’s motion for summary judgment as to both counts. Appellant’s fifteen-page brief, except for the final paragraph, is devoted entirely to the validity of the contract count. In view of the posture of our case law — permitting actions ex contractu under certain circumstances to circumvent the immunity defense — such priority of consideration is understandable. The last paragraph of appellant’s brief, however, reads:

“We respectfully submit to the Court that the Circuit Court of Morgan County, Alabama, was in error in granting the motion for summary judgment as to the Hospital Board of Morgan County and that this ruling should be reversed and the cause remanded. The time is at hand to clarify the air and to once and for all remove the fallacy of governmental immunity. There is no reason or logic for us to be bound by the theory that the King can do no wrong when we do not have Kings. The theory of governmental immunity has out lived usefulness two hundred years.”

The Court held the contract count invalid. Appellee now says in effect that, since he won on the issue made the central thrust of appellant’s argument, appellant should not be allowed to win on an issue, though properly preserved and assigned, that was so scantly contended for. We know of no such quantitative test. However scant this argument may be, it raised the issue to which the opinion addresses itself.

Opinion corrected and extended. Application for rehearing overruled.

FAULKNER, ALMON, SHORES and EMBRY, JJ., concur.

HEFLIN, C. J., and MERRILL, BLOODWORTH and MADDOX, JJ., dissent.

BLOODWORTH, Justice

(dissenting).

On original deliverance, I concurred in the result reached by the majority opinion (authored by Justice Jones). I now wish to change my vote and dissent for the following reason.

It is now clear to me that the only issue argued on this appeal by appellant is that governmental immunity was not available to the appellee in an action on implied contract. But, the majority have reversed this cause on another ground — holding that governmental immunity is not available as a defense in an action ex delicto.

Up to this day, this Court has always followed the rule that assignments of error not substantially argued, or not argued at all, in brief are deemed waived. See e. g., Lowery v. Stinson, 291 Ala. 415, 282 So.2d 244 (1973); Runge v. Mercantile Credit Corp., 285 Ala. 183, 230 So.2d 240 (1970); Renfroe v. Weaver, 285 Ala. 1, 228 So.2d 764 (1969); Appeal and Error ‘S=:>1078(1), Vol. 2A, Alabama Digest-, Supreme Court Rule 9, Revised Rules of Practice in the Supreme Court.

In this case only three relevant sentences (quoted from appellant’s brief) appear in the majority opinion on rehearing to justify consideration of the issue of tort immunity, viz:

“ * * * The time is at hand to clarify the air and to once and for all remove the fallacy of governmental immunity. There is no reason or logic for us to be bound by the theory that the King can do no wrong when we do not have Kings. The theory of governmental immunity has out lived usefulness two hundred years.”

In my judgment these statements constitute nothing more than mere opinions. Surely, they cannot be construed to be substantial arguments that the court erred in granting summary judgment because governmental immunity from tort ought to be abolished. No assignment of error is referred to. No authority is cited.

Under our cases, appellant’s argument is insufficient. Melton v. Jackson, 284 Ala. 253, 224 So.2d 611 (1969).

I therefore dissent as I would grant the rehearing and affirm the cause.

      . Notably among the textwriters, see Bor-chard, Government Liability In Tort, 34 Yale L.J. 1 (1924), and Copeland and Screws, Governmental Responsibility for Tort In Alabama, 13 Ala.L.Rev. 296 (1961).

      . Tit. 22, § 204 (41h).

      . Stevenson, The Home Book of Verse, Henry Holt & Co., N.Y., 7 ed., 1940, at p. 1896.


author: ALMON, Justice.

text:
    TRADERS & FARMERS BANK OF HALEYVILLE, Alabama, a corporation v. CENTRAL BANK OF ALABAMA, etc., et al.
    SC 1087, 1087-X.
    Supreme Court of Alabama.
    Oct. 2, 1975.

      Tweedy, Jackson & Beech, Jasper, for appellant.
    Harris, Harris, Shinn & Harris, Decatur, for appellee and cross-appellant.
   ALMON, Justice.

Plaintiff-appellant, Traders & Farmers Bank of Haleyville, is a state bank with its home office in Haleyville and branches at Double Springs and Addison. Application for the establishment of the branch at Addison was made on July 30, 1973, with both the State Superintendent of Banks and the Regional Office of FDIC in Atlanta, Georgia. Authority for the application was based on Act No. 606, Acts of Alabama, 1953. State approval was granted in September of 1973; FDIC approval in November of 1973. The Addison branch was opened for business on February 18, 1974.

Defendant-appellee, Central Bank of Alabama, is a national bank with its home office in Decatur with several branch offices, one of which is located in Winston County at Haleyville, and one of which is located in Cullman (near Addison). Ap-pellee filed an application with the Comptroller of Currency of the United States of America for authority to establish a branch in Addison. The application was approved on or about April 4, 1974, and appellee planned to establish a branch in Addison.

On April 20, 1974, appellant filed a complaint in the Circuit Court of Winston County against appellee. The complaint alleged that the defendant was seeking to establish a branch bank in Addison by virtue of the provisions of Act No. 435, Acts of Alabama, 1973, as codified, Appx., Art. 11A(14), § 14(lkl8a) (1973 Supp.), Code of Alabama 1940, Recompiled 1958. The complaint also alleged that Act No. 435 was a local law applying only to Winston County, which specified that it applied only to counties having a population of not less than 16,600 nor more than 16,950 according to the last or most recent federal decennial census. The complaint also alleged that Act No. 435 was unconstitutional because notice was not published as required by Section 106 of the Constitution, and because the population range specified in the Act was not substantial and was not reasonably related to the purpose of the act, and because there had been no compliance with amendment 255 to the Constitution of Alabama requiring the approval of the qualified voters of Winston County for the approval of local laws applicable to that county.

In paragraph 7 of the complaint the plaintiff alleged that it was presently conducting a branch bank in Addison and that it would be detrimental economically to appellant’s branch bank already established in Addison for appellee to open a branch there.

Appellee’s answer contained a counterclaim alleging that if Act No. 435 is invalid for any of the grounds set out in the original complaint, then Tit. 5, § 125, Code, supra, (restricting branch bank geographically to the parent bank’s “principal place of business”) and Amend. 255, Ala.Const., 1901, dictate that appellant also be permanently enjoined from further operating a branch bank in Addison.

Appellee later amended its answer and counterclaim to aver in the alternative that, if it was mistaken in its averments that the appellant had established its branch under the provisions of Act No. 435, then the appellant had established the same under the provisions of Act No. 606, Acts of Alabama, 1953, or Act No. 938, Acts of Alabama, 1961, and appellee averred that each of said Acts was unconstitutional for the reason that each of them violated Section 106 of the Constitution.

Appellant’s application for a preliminary injunction was heard on May 6, 1974, and a preliminary injunction was granted. The hearing on the merits was held on June 27, 1974, and a final decree was rendered on August 14, 1974, holding that there was no legislative authority for either appellant or appellee to operate a branch bank in Addison. The decree enjoined appellee from establishing its proposed branch and enjoined the plaintiff from continuing the operation of the branch which it had established at Addison.

There have been three statutes in the last quarter century which have purported to authorize branch banking in Winston County. The first one was Act No. 606, enacted in 1953 (this act was later repealed by Act No. 939 in 1961); the second one was Act No. 938, enacted in 1961; and the third one was Act No. 435, enacted in 1973. The trial court found that authority for the application for appellant’s existing bank had been based upon Act No. 606. However, Act No. 606 was expressly repealed by Act No. 939 in 1961 and was thus an inappropriate statute under which to make application. The court further found that neither Act No. 938 nor Act No. 435 provided any legislative authority for branch banking at Addison because both were local laws within the meaning of Art. 4, § 110, Ala.Const., 1901, and both failed to meet the requirements of Art. 4, § 106, as to notice and publication.

Appellant appealed from the decree to reverse the portion thereof enjoining it, and appellee cross-appealed assigning errors to reverse the decree enjoining it and to reverse the decree granting a preliminary injunction against it.

Appellant argues that it relied on Tit. 5, § 125(1), Code, supra, in establishing its branch in Addison. This section allows a bank such as appellant to branch in the county where it has its principal place of business if branching had been authorized by law on or before the effective date of the statute, which was June 21, 1955. Appellant submits that since Act No.'606 was passed some two years before Tit. 5, § 125(1) was passed, branch banking was authorized by law in Winston County at the time appellant opened its branch bank at Addison on February 18, 1974.

To sustain the validity of Act No. 606, appellant argues that the Act is valid on its face and that for the court to declare it unconstitutional the court would have to look to the House and Senate Journals to determine whether or not notice of the Act was given as required by ' Section 106 of the Constitution. This is precisely the procedure the court takes to determine whether the Journals affirmatively show, as the Constitution requires, that notice of a local law is given since the courts take judicial notice of the Journals. Moog v. Randolph, 77 Ala. 597 (1884).

Furthermore, if branch banking was authorized in Winston County at the time of the passage of Tit. 5, § 125(1), then by its express terms it was not applicable to Winston County. This court, in discussing this statute, pointed this out in Security Trust & Savings Bank v. Marion County Banking Co., 287 Ala. 507, 514, 253 So.2d 17, 22 (1971):

“If the provisions of Act No. 76 [Tit. 5, § 125(1)], prohibiting branch banking, are inapplicable . . . because branch banking is or has been authorized there, that would leave conditions in the same status as before the enactment of Act No. 76 — the Act having no application where branch banking is or has been authorized. If the Act has no application in the county, then the Act cannot reinstate or establish a right in the appellee Bank to branch bank in other counties. The Act does not undertake to authorize branch banking across county lines, because multi-county branch banking may, at one time, have been authorized in the county. The Act states that its provisions of prohibition against branch banking, do not apply if branch banking has been authorized in the county. Under such conditions, Act No. 76 neither gives the right nor takes it away. It is simply inapplicable.”

Appellant next argues that appel-lee has no standing to challenge the constitutionality of Act No. 606. Appellee counterclaimed in its answer, and it was admitted in appellant’s answer to the counterclaim, that appellant’s branch bank in Addison would compete with the business of appellee attributable to its Haleyville and Cullman branches. Clearly, the threat of competition is sufficient to provide standing to contest the legality of a competitor’s facility. Whitney National Bank v. Bank of New Orleans, 116 U.S.App.D.C. 285, 323 F.2d 290 (1963); Commercial Security Bank v. Saxon, 236 F.Supp. 457 (D.C.D.C.1964), aff’d, 385 U.S. 252, 87 S.Ct. 492, 17 L.Ed.2d 343 (1966).

Finally, appellant argues that ap-pellee is estopped from challenging appellant’s statutory authority to continue operating its branch bank in Addison. Appellant bases this argument upon statements made by appellee’s corporate officials in a hearing before the Comptroller of the Currency in 1973 to the effect that appellee had no objection to such an operation by appellant. Appellee does not deny that such a statement was made. However, ap-pellee asserts, and it was uncontroverted by appellant, that appellee gave appellant notice during a telephone conversation a few days after the hearing that it would contest the right of appellant to establish a branch in Addison if appellant opposed appellee’s efforts to do the same.

Reliance is an essential element of estop-pel. Hall v. Gulledge, 277 Ala. 580, 173 So.2d 571 (1965). We are of the opinion that there was sufficient evidence for the trial court to conclude that appellant did not rely upon any statement made by ap-pellee before the Comptroller of the Currency in establishing its branch bank in Addison.

Moreover, we are of the opinion that a position taken in a federal administrative hearing, where the issues are materially different, should not preclude a party in a state court from raising the constitutionality of a state act.

This is a classic example of a situation often referred to as a “Mexican standoff.” Both banks attempted to establish a branch at Addison; both banks were proceeding under unconstitutional statutes; both banks assert the unconstitutionality of the statute under which the other attempted to branch; and both banks assert estoppel against the other contending that the other is precluded from challenging the constitutionality of its statute. Result — no banks in Addison.

The judgment is due to be and is hereby

Affirmed.

HEFLIN, C. J., and MERRILL, MADDOX, FAULKNER, JONES, SHORES and EMBRY, JJ., concur.

BLOOD WORTH, J., recuses self.