author: BEER, Judge. REDMANN, Judge STOULIG, Judge BEER, Judge.

text:
    Susan Hadley, wife of Percy BUTLER v. Glenice Hensley, wife of and Joseph HENSLEY.
    No. 7166.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.
    On Rehearing Granted March 16, 1976.
    On Rehearing May 3, 1976.
    Rehearing Denied May 18, 1976.
    Vial, Vial & Lemmon, Leon C. Vial, III, Hahnville, for plaintiff-appellee.
    Daniel E. Becnel, Jr., Reserve, for defendants-appellants.
    Before REDMANN, STOULIG and BEER, JJ.
   BEER, Judge.

Notwithstanding previous litigation between the parties to this appeal concerning use of the same tract of land that is here involved, the issue with which we are presently concerned is quite narrow: Preter-mitting any consideration of the validity of appellee’s recent acquisition of an undivided partial interest in the property in question which is conceded for this appeal, we only pass upon the correctness of the trial court’s judgment ordering the appellants to vacate the premises at the insistence of ap-pellee, the owner of a substantially greater undivided interest in the same property.

The trial court factually determined that Glenice Hensley, wife of and Joseph Hensley (defendants-appellants) “acquired a small undivided interest” in the subject property but concluded that such ownership did not constitute “the interest required by law” and ordered them evicted. The trial court also noted that Mr. and Mrs. Hensley were on the property as a result of a lease which had been confected “without the unanimous consent of all owners.”

The record signals the distinct possibility that Susan Hadley, wife of Percy Butler (plaintiff-appellee) is being ill-used by her co-owners who have very recently sold a small portion of their fractional undivided interest to appellants.

However, co-owners (which defendants-appellants are) do have the right to use and occupy common property and cannot ordinarily be divested of possession by an action to evict. See: La.C.C. Article 494, Coon v. Miller, 175 So.2d 385 (La.App.2nd Cir. 1965) writ refused, 247 La. 1089, 176 So.2d 145.

Thus, even though something less than complete good faith might properly describe the actions that ultimately led to the acquisition of defendants-appellants’ small fractional interest, we must question the trial court’s determination that such interest, solely by reason of its small fractional part of the whole, is not entitled to the same rights as the larger fractional interests.

However, the record shows that plaintiff-appellee was, at all times pertinent, exercising a degree of use and occupancy of the particular portion of the long, thin tract of land in question. She had fenced it in and was making use of it along with the immediately adjoining portion which she owned outright and on which she lived

Apparently the defendants-appellants cut the wire fence that was previously put up around the portion in question and, thereafter, set about making a new use of it as the site for the parking of their house trailer. Thus, defendants-appellants effectively evicted plaintiff-appellee from that portion without benefit of legal proceedings and, if all the various actions are put in proper perspective, the real issue here is whether plaintiff-appellee can be thus evicted. The cases which we have noted above indicate that she can not be. Thus, the result reached by the trial court is correct and the judgment is, accordingly, affirmed at defendants-appellants’ cost.

Affirmed.

REDMANN, J., concurs.

STOULIG, J., dissents.

REDMANN, Judge

(concurring).

Subscribing to the last two paragraphs of the majority opinion, I concur.

STOULIG, Judge

(dissenting).

I respectfully dissent.

The sole issue presented by this appeal is whether one coowner may maintain an eviction proceeding and legally eject another coowner from possession of the common property.

Plaintiff, as the owner of an undivided Vs interest, filed a petition for eviction alleging that the defendants were occupying part of the property without a lease or any vested interest in the realty. In their responsive pleadings, defendants pleaded their acquisition of an undivided Jlo interest of the undivided interest of plaintiff’s coowners and urged their rights as coown-ers in bar of plaintiffs action. The trial court granted the judgment of eviction and stated in part in its reasons for judgment:

“ * * * [A]nd despite the fact that defendant Glenice Hensley acquired a small undivided interest, defendants are occupying the property without the interest required by law. * * *” (Emphasis ours.)

I am in complete accord with that part of the majority opinion reaffirming the well-settled law of this State governing the rights of the parties under coownership. More particularly, the rights of coowners to the possession of common property are equal and coextensive and for this reason the remedy of eviction is not available for one coowner to divest another coowner of the possession of the common property. A coowner who is dissatisfied with the use to which the property is being put has his remedy by injunction if the character is being changed or the assets wasted and to the remedy of a partition if he is dissatisfied with the occupancy or possession exercised by his coowner.

I am also in accord with the conclusion of the majority opinion that the amount of the undivided interest of a coowner has no bearing or relationship on his right to coextensive possession of the common property. This view is consistent with the concept of the rights of coowners as expressed by the Supreme Court in the case of Gulf Refining Co. v. Carroll, 145 La. 299, 82 So. 277, 278 (1919), wherein it is stated:

“Co-owners are owners par mi et par tout, of part and of the whole. Neither of two co-owners has the exclusive right to any determinate part of the common property. * * *”

And later in the same case the court cites with approval the following comment of Carpentier and Du Saint, Rep. Droit Fran-cais, vo. Indivisión, p. 152, No. Ill:

“ ‘Inasmuch as the right of each one of the joint owners consists in an ideal quota and not in any specific entity, no one of them may without the consent of the others exercise on the totality of the common property, nor on any physically determinate part of it, any material or juridical acts involving the exercise of the actual and immediate right of ownership.’ ” 82 So. at 279.

I find no basis in statute or jurisprudence requiring the ownership of a specified pro rata or fractional interest in order for the rights of coownership to become executory and vest in a coowner. The jurisprudence noted above and the authorities cited therein clearly indicate otherwise.

I cannot subscribe to, and therefore dissent from, that portion of the original opinion which concludes that the defendant’s action in cutting the wire fence installed on the common property by the plaintiff constituted an eviction and therefore gave rise to a corresponding right to have the defendant evicted from the entire property. At the outset it must be noted that a coowner does not have the right to erect a fence around a part of the property in deprivation of another coowner’s equal and coextensive right to possession of the same area.

I seriously question that the action of the defendant in cutting the wire fence constituted an eviction. However, even assuming it did it could not confer on the plaintiff-coowner a right to which she is not entitled by either law or jurisprudence. In my opinion a judgment of eviction divesting a coowner of his right to possession of common property is invalid and cannot be legally enforced. If dissatisfied, the plaintiff’s remedy under the circumstances of this case is by an action in partition.

For the reasons herein expressed, I am of the opinion that the judgment of the trial court should be reversed.

ON APPLICATION FOR REHEARING

Before REDMANN, STOULIG and BEER, JJ.

PER CURIAM.

ON REHEARING

Before REDMANN, STOULIG and BEER, JJ.

BEER, Judge.

On January 13, 1976, we issued our original opinion affirming the trial court’s judgment in favor of plaintiff-appellee. Thereafter, on March 16, 1976, we granted a rehearing. We now reverse ourselves, and the trial court, and render judgment dismissing plaintiff’s suit.

We do this, reluctantly, for we believe, as did the trial judge, that there is much equity in support of plaintiff-appellee’s position.

Nevertheless, the parties to this litigation were, at all times pertinent to our deliberations here, co-owners — at least in the literal, legal sense. Thus, by operation of law, neither party is entitled to possession of the property in question to the exclusion of the other.

There is nothing in the record before us which effectively challenges the critical fact that the parties are co-owners even though, as we have previously observed, the recent sale of a small portion of a fractional undivided interest to appellants may have been with the calculated design to accomplish the result that we are now obliged to adjudicate. At any rate, plaintiff-appellee’s rights, if they are to be protected, are obliged to be enforced by a partition proceeding.

Accordingly, the judgment of the Twenty-Ninth Judicial District Court for the Parish of St. Charles is reversed, and plaintiff-appellee’s suit is dismissed without prejudice to her right to institute partition proceedings. Each party is to bear its own costs here and in the trial court.

REVERSED AND RENDERED.

      . The property, located in St. Charles Parish, is described as follows:
      “A certain tract of land situated in this Parish of St. Charles, on the west bank of the Mississippi River, about twenty-six miles above the City of New Orleans, measuring one-half of an arpent front on the South or rear line of the New Orleans, Mobile & Texas Railroad, and from thence a depth of about sixty arpents, between parallel lines, bounded above by the property of Widow Erambert Kinler, below by a small strip of land belonging to said vendor, on the front by the said Railroad and in the rear by the property of Alcest Lev-ergne.
      “Being the same property acquired by Susan Hadley Butler from, Josephine S. Dennis by act of sale passed before James P. Vial, Notary Public, dated February 22, 1949, and duly recorded in COB ‘MMM’, folio 487 St. Charles Parish, Louisiana.”

      . We acknowledge that there must be some mathematical point at which the fractional interest that has been conveyed, may, by its very insignificance, be presumed to be nothing more than a thinly veiled attempt to percipitate a “spiteful use of common property” as described in LeBlanc v. Scurto, 173 So.2d 322 (La.App.1st Cir. 1966) writ refused 247 La. 1017, 176 So.2d 302. But here there is no affirmative showing to that effect and the size of the fractional interest that has been conveyed (and the amount of consideration paid for it) does not, on its face, fall into such a category.

      . The evidence indicates plaintiff, Susan Butler, Evelina Markey and Caroline Hadley each owned an undivided % interest of an undivided % interest, or an undivided % interest each of the entire property.

      . See Coon v. Miller, 175 So.2d 885 (La.App. 2d Cir. 1965); LeBlanc v. Scurto, 173 So.2d 822 (La.App.1st Cir. 1965); Arcemont v. Arcemont, 162 So.2d 813 (La.App.4th Cir. 1964).

      . See Amerada Petroleum Corporation v. Reese, 195 La. 359, 196 So. 558 (1940).


source: Caselaw Access Project

author: WATSON, Judge

license: Public Domain

text:
    Doyle LUNEAU v. WALKER ROEMER DAIRIES, INC. and U. S. F. & G. Company.
    No. 5512.
    Court of Appeal of Louisiana, Third Circuit.
    April 19, 1976.
    Dissenting Opinion April 22, 1976.
    Gravel, Roy & Burnes by Chris J. Roy, Alexandria, for plaintiff-relator.
    Provosty & Sadler by William H. de-Launay, Alexandria, for defendant-respondent.
    Before HOOD, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge

(dissenting):

This application involves an automobile-truck collision case where plaintiff-relator was awarded $800,000 damages by a jury. A principal defense asserted was that the accident was “faked” and that the whole matter is a fraud. A new trial has been ordered by the trial judge for certain assigned reasons.

Relator makes the basic complaint that the trial judge, having granted a new trial, now proposes to have the testimony taken in the original eight-day trial read to a new jury and that this testimony includes that of a witness, one Patricia Lewis, who has since given a statement that her testimony that the accident was "faked” or “rigged” was false and perjured. The trial judge particularly stated that he intends to have the testimony of this witness read to the jury on new trial.

I would grant the writ for two reasons: (1) to review the action of the trial judge in ordering a new trial; and (2) if this court affirms the order granting a new trial, to give guidance to the trial judge with a view to avoiding error in the second trial.

NEW TRIAL

I recognize the proposition that a trial judge may order a new trial in a jury case in the sound exercise of his discretion on a simple finding that the verdict is clearly contrary to the law and the evidence. LSA-C.C.P. art. 1972. There is no such finding here. When, as here, the trial judge undertakes to assign particular reasons for ordering a new trial, I believe that these are subject to review. If, the assigned reasons are not a valid basis for the order of new trial, it should be reversed. In the instant case, the trial court assigned two reasons for ordering a new trial: (1) that a new witness had been discovered; and (2) that the award of damages was grossly excessive under the law and the evidence.

Obviously, the second reason is not valid in that if the award is grossly excessive in the opinion of the trial judge, then his correct procedure was to order a remittitur or, in the alternative, a new trial. Miller v. Chicago Insurance Company, 320 So.2d 134 (La.1975),

As to the discovery of the new witness, the information contained in the application for writs creates serious doubt as to whether the testimony of this witness is relevant and material and as to whether it is merely cumulative. I would grant writs in order that this court might review the testimony of the witness which was taken at the hearing on the motion for new trial.

PROCEDURE AT NEW TRIAL

There is a considerable divergence of views among judges of the appellate courts as to whether requiring parties to undertake multiple trials constitutes irreparable injury. I do not adhere to the position that in every instance the injury is irreparable, but there is no question in my mind that every effort should be extended by the courts on all levels to avoid repetitive trials and especially eight-day jury trials. Therefore, I respectfully suggest that this court should express some guidance to the trial court.

It appears to me that LSA-C.C.P. art. 1978, which provides for the reading of testimony taken at a first trial to the second jury without the calling of witnesses is an unconstitutional denial of due process of law. Perhaps the procedure is satisfactory in a judge trial. However, in a jury trial, the parties, both the plaintiff and the defendant, have the right to have a jury hear and see the witnesses in order to evaluate their sincerity, their demeanor, and their credibility. The trier of fact, the jury, has the initial responsibility of weighing the evidence and judging the credibility of witnesses. Wiley v. Travelers Insurance Company, 300 So.2d 555 (La.App. 3 Cir. 1974). In the absence of manifest error their decision is not to be reversed on appeal. Quaere: what is the standard for appellate review when the jury sees and hears none of the witnesses?

The jury’s seeing and hearing the witnesses is a process fundamental and essential to the impartial decision of a lawsuit. If a new trial is ordered in a judge case, the judge has had an opportunity to see and hear the witnesses and needs only to hear the additional witnesses if any. The distinguishing feature is that usually the same judge hears the new trial but a different jury.

I suggest that only if both sides stipulate as to the reading of certain testimony would the mere reading of portions of the transcript to a jury be proper. As to any testimony on which the parties cannot agree, I think the trial court should require them to call the witnesses as they desire. In a situation where witnesses give conflicting statements or withdraw their testimony between the first trial and the new trial, I think that the risk of error and prejudice to one party or the other is too great for the trial judge simply to order all previous testimony to be read to a new jury. I think the only safe procedure is to require the parties to call witnesses as to testimony they cannot agree should be read.

For these reasons, I respectfully dissent from the refusal to grant writs.

      . Witness the problems created by denial of writs in State Department of Highways v. Mims, 311 So.2d 914 (La.App. 3 Cir. 1975).


author: SUNDBERG, Justice. BOYD, Justice

text:
    The CANAL AUTHORITY of the State of Florida, a body corporate under the laws of the State of Florida, Appellant, v. OCALA MANUFACTURING, ICE AND PACKING COMPANY, a Florida Corporation, Appellee.
    No. 46551.
    Supreme Court of Florida.
    April 14, 1976.
    Rehearing Denied June 16, 1976.

      Ralph E. Elliott, Jr., Frank C. Decker, and Allan P. Clark of Caven & Clark, Jacksonville, for appellant.
    R. Lee Smith and C. Ray Greene, Jr. of Greene, Greene, Smith & Davenport, Jacksonville, for appellee.
   SUNDBERG, Justice.

This cause is before us on appeal from a decision of the District Court of Appeal, First District, reported at 301 So.2d 495. We have jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution, inasmuch as that appellate decision construed Article X, Section 6, Florida Constitution. By that opinion the trial court was reversed and was directed to enter a judgment for appellee for damages in the aggregate amount of $433,561.00.

Since the issues in this case are so interrelated with the much-litigated condemnation proceedings between these parties, we deem it advisable to summarize as briefly as possible the manner in which this matter has proceeded through the courts.

In 1969 appellant brought eminent domain proceedings in the Marion County Circuit Court (Case # 69-203) to condemn the fee simple title to approximately 3500 acres in Marion County owned by appellee Ocala Manufacturing (Ocala) for construction of the Cross-Florida Barge Canal. (The subject property consisted of five parcels, of which Parcel No. 1 was by far the largest.) Shortly after the Marion County suit was filed, appellee filed suit in Duval County (Case # 70-2880) to enjoin the expenditure of public funds by the Canal Authority for the purpose of obtaining title to Ocala’s lands. The Duval County Circuit Court dismissed the cause with prejudice, and Ocala appealed. The First District Court of Appeal reversed and remanded, holding that, even if the complaint were insufficient to state a cause for relief, where evidence advanced at hearings on pretrial motions indicated that Ocala might be entitled to relief, the complaint should not have been dismissed without giving the plaintiff an opportunity to amend. 249 So.2d 729 (1st D.C.A.Fla.1971).

We return to the Marion County eminent domain proceeding (Case # 69-203). There the trial judge refused to approve the condemnation of the fee simple title to all but approximately 500 acres; instead, in regard to Parcel No. 1, the court ruled that appellant could secure only a perpetual easement for the various necessary purposes. Having been informed by the U. S. Army Corps of Engineers that a perpetual easement would not suffice, the Canal Authority dismissed Parcel No. 1 from the condemnation proceedings. After trial regarding the remaining four parcels, the jury returned a verdict for appellee in the amount of $575,292.00 with no breakdown of elements which went into the award. The circuit court entered a final judgment in the amount fixed by the jury, vesting fee simple title in the Canal Authority with respect to Parcels Nos. 2 and 5 and perpetual easements as to Parcels Nos. 3 and 4; the judgment was silent as to Parcel No. I. After dismissal of its condemnation proceeding with respect to Parcel No. 1, the Canal Authority asked the U. S. Army Corps of Engineers to acquire that parcel by means of a federal eminent domain suit, with the understanding that the Authority would reimburse the United States for the cost of the condemned land. In October, 1969, such a condemnation suit was filed in the U.S. District Court for the Middle District of Florida, and in September, 1970, the Canal Authority entered an appearance in that case, claiming an interest in the property by virtue of the judgment in the Marion County action. Thereafter, the United States amended its complaint by naming the Canal Authority as a party in interest. In late 1970 a federal jury found the sum of $1,093,316.50 to be just compensation for the taking of Parcel No. 1, and judgment was entered in that amount. The federal judge held a non-jury apportionment trial and divided the award by granting $850,000.00 to Ocala Manufacturing and $243,316.50 to the Canal Authority. In 1971, after the denial of post-trial motions, all three parties — Ocala Manufacturing, Canal Authority and the United States —appealed.

The Fifth Circuit Court of Appeals reversed, holding that the State condemnation award which approved the Authority’s taking fee simple title to Parcels Nos. 2 and 5 and granting perpetual easements to Parcels Nos. 3 and 4 did not operate to vest the Canal Authority with such a right to flood Parcel No. 1 as to entitle it to be compensated where there was no way to determine what factors went into the state jury’s verdict since five elements of severance damages had been presented to the jury for its consideration and the compensation award fixed a whole sum only. The Fifth Circuit reversed with directions to grant to Ocala the entire award of $1,093,316.50 plus interest. See United States v. 2997.06 Acres of Land, 471 F.2d 320 (5th Cir. 1972).

Thereafter, in March, 1972, Ocala filed its second amended complaint against the Canal Authority in the Duval County case discussed above (Case # 70-2880). Its purpose was to recover damages resulting from the Canal Authority’s having abandoned its prior state action to condemn ap-pellee’s land and having prevailed upon the Federal Government to institute suit to condemn Parcel No. 1. In 1973 the Duval County Circuit Court entered a judgment adverse to Ocala but made a finding that appellee would be entitled to $400,000.00 as reasonable attorney’s fees and $33,561.00 as costs expended in the federal litigation in the event its judgment was subsequently reversed. On appeal, the First District Court of Appeal reversed and remanded, holding, based upon constitutional and statutory grounds, that where the Canal Authority, with power to condemn private property, abandoned its state proceeding and prevailed upon the U. S. Army Corps of Engineers to resort to federal condemnation, in which the landowner (Ocala Manufacturing) could not recover costs and attorney’s fees, the Canal Authority was liable to the landowner for damages measured by attorney’s fees and costs which would have been allowed in a state proceeding. In its decision the First District Court of Appeal also denied Ocala’s petition for attorney’s fees in the appellate court but charged the costs of the appeal to the Authority. It is this opinion, reported at 301 So.2d 495, which we have before, us for review.

In our consideration of the case we believe it relevant to note the compensation which was actually received by the appellee in connection with Parcel No. 1, the approximately 3000 acres situate in Marion County, Florida, which has engendered so much litigation. One of five parcels which were the subject of the suit, Parcel No. 1 was dismissed from the condemnation suit then pending in the Circuit Court for Marion County after the trial judge made a ruling which prevented appellant from acquiring fee simple title to the parcel. Notwithstanding the parcel’s dismissal from the suit, its severance damage was taken into consideration by the jury. Appellee’s high testimony of the aggregate value of Parcels Nos. 2, 3, 4, and 5 was $163,691.00. The jury verdict was $573,292.00. Although not pinpointed, some portion of the $309,601.00 difference was attributable to severance damage to Parcel No. 1. This was recognized by the United States Court of Appeals for the Fifth Circuit in United States v. 2997.06 Acres of Land, supra, wherein Judge Simpson stated at page 336:

“The Canal Authority’s arguments that it dismissed Parcel # 1 from its state condemnation action (with subsequent resort to the power of the United States to obtain fee simple title) to minimize delays in the completion of the canal undertaking and that the award of the entire federal condemnation judgment to the landowner would constitute an undeserved windfall are on their face persuasive. . . . The possibility that Ocala Manufacturing may receive double compensation for a portion of its interest in Tract 1201 [Parcel # 1] is the price the Canal Authority must bear for dragging the federal judiciary into this jurisprudential quagmire. No completely satisfactory result can be achieved. We adopt the least objectionable.”

In connection with the circuit court condemnation suit appellee was awarded $15,000.00 in attorney’s fees as to dismissed Parcel No. 1. This order was appealed to the District Court of Appeal, First District, where it was reversed. 253 So.2d 495. On remand, the circuit judge awarded appellee attorney’s fees in the sum of $58,750.00 attributable to Parcel No. 1. At the conclusion of the appellate proceedings in the United States Court of Appeals for the Fifth Circuit, the cause was remanded to the United States District Court with directions to enter judgment in favor of appellee in the amount of $1,093,316.50 plus interest as provided by law, as the award to appellee for condemnation of the fee simple title to Parcel No. 1. It should be noted that the rule with respect to payment of a landowner’s attorney’s fees and costs differs under Florida and federal condemnation law. Accordingly, the matter is treated differently in the instructions by the court to the jury. In a Florida state court suit, the jury is specifically directed not to consider the matter of the landowner’s costs and expenses, including attorney’s fees, in that the condemning agency is required to pay fees in addition to the jury award of just compensation. No such instruction is given in federal condemnation cases, a fact which makes it possible for a jury in such a case, presumably, to take such fees and costs into consideration in rendering its verdict.

In assessing the proposition, postulated by the District Court of Appeal in the opinion under review, that the appellant violated it statutory authority in seeking the aid of the United States in acquiring fee simple title to Parcel No. 1, we must consider a number of statutory provisions. Appellant, as local sponsor for the Cross-Florida Barge Canal project, was bound by federal law applicable to the project. United States v. 2997.06 Acres of Land, supra, at 322-324. As local sponsor, the Canal Authority was contractually bound to furnish, without cost to the United States, all land interests required by the Secretary of the Army (U. S. Army Corps of Engineers) for the project. See Section 104 of Public Law 86-645, July 14, 1960, 74 Stat. 480, 484-5. To comply with federally imposed conditions for local sponsorship, the Florida Legislature enacted Chapter 374, Florida Statutes, which created the Canal Authority and gave it the authority to function as local sponsor for the project. Section 374.051(1) (a), Florida Statutes, authorized the construction of the canal and stipulated, inter alia, that “. . . such canal shall be constructed along such route, and to be of such size, dimensions, specifications, kind or type as may be approved by the department of the army or other appropriate department or agency of the United States.” By subsection 374.051(1) (h), Florida Statutes, appellant was authorized "[i]o do any and all things necessary and incur and pay any and all expenditures necessary, convenient or proper in the acquisition, construction, operation and control of said canal . . .” (emphasis supplied). The authority of the appellant to contract was provided in Section 374.161, Florida Statutes, as follows:

“Contracts. The corporation shall have the power and authority to enter into any and all contracts necessary or convenient to the exercise of any or all of the powers herein and hereby granted, including contracts covering periods of time longer than the terms of office of the members of the board of directors making such contracts and shall also have the power and authority to contract with the United States or any appropriate department or agency thereof for the construction, operation or control of said canal or any portion thereof.” (Emphasis supplied)

Section 374.171, Florida Statutes, provides in pertinent part:

“In the event that the United States should decide to undertake the construction of said canal across Florida the board of directors of the corporation is authorized, upon such terms and in such manner as said board shall deem proper, to assign, transfer and convey to the United States, such assets, ... of the corporation, ... as may be necessary or desirable, in said board’s judgment, to accomplish such purposes.”

As a guide to the construction and interpretation of the above quoted authority the Legislature memorialized its intent in the following manner:

“374.181 Liberal construction of act. It is intended that the provisions of this act shall he liberally construed for accomplishing the work authorized and provided for or intended to be provided for by this act, and where strict construction would result in the defeat of the accomplishment of any part of the work authorized by this act, and a liberal construction would permit or assist in the accomplishment thereof, the liberal construction shall be chosen.” (Emphasis supplied)

In accord with the foregoing statutory mandate and authority, appellant entered into an agreement with the United States through the U. S. Army Corps of Engineers by which it accepted the obligations to provide without cost to the United States the lands, easements and rights-of-way required by the U. S. Army Corps of Engineers for the construction of the canal by the Corps. See United States v. 2997.06 Acres of Land, supra, at 322-24. It was under this contractual obligation that the U. S. Army Corps of Engineers required the Canal Authority to acquire the fee simple title to the lands comprising Parcel No. 1. When appellant was frustrated in this attempt by the trial court’s ruling in the Marion County condemnation proceedings, the U. S. Army Corps of Engineers was so advised but maintained its requirement for fee simple title to the parcel. As the Canal Authority was unable to perform its contractual obligation to furnish fee simple title to Parcel No. 1, the Attorney General of the United States, admittedly at the request of the appellant, invoked the provisions of Title 33 U.S.C. § 593 by filing a suit to condemn Parcel No. 1 in the United States District Court. Title 33 U.S.C. § 593 provides:

“Condemnation of land in aid of State or State agency.

“Whenever any State, or any reclamation, flood control or drainage district, or other public agency created by any State, shall undertake to secure any land or easement therein, needed in connection with a work of river and harbor improvement duly authorized by Congress, for the purpose of conveying the same to the United States free of cost, and shall be unable for any reason to obtain the same by purchase and acquire a valid title thereto, the Secretary of the Army may, in his discretion, cause proceedings to be instituted in the name of the United States for the acquirement by condemnation of said land or easement, and it shall be the duty of the Attorney General of the United States to institute and conduct such proceedings upon the request of the Secretary of the Army, Provided, That all expenses of said proceedings and any award that may be made thereunder shall be paid by such State, or reclamation, flood control or drainage district, or other public agency as aforesaid, to secure which payment the Secretary of the Army may require such State, or reclamation, flood control or drainage district, or other public agency as aforesaid, to execute a proper bond in such amount as he may deem necessary before said proceedings are commenced.” (Emphasis supplied)

It would appear, then, that the Canal Authority only sought the aid of condemnation by federal authorities when it found itself between the proverbial “rock and a hard place”. Mention is made in both United States v. 2997.06 Acres of Land, supra, and in the First District Court of Appeal opinion now before us that the Canal Authority failed to seek review of the circuit court’s ruling in the original condemnation proceeding and that this was somehow tantamount to a design to deprive the appellee of its “constitutionally protected” right to recover attorney’s fees and costs. However, the following passage from its opinion makes clear that the United States Court of Appeals for the Fifth Circuit recognized the probable cause for enlisting the assistance of the Federal Government in securing fee simple title to Parcel No. 1:

“. . . As noted at the beginning of this opinion, this unfortunate situation would not have arisen had the Canal Authority pursued its appellate remedies following the state court’s refusal to approve the taking of fee simple title to Parcel #1. The Canal Authority, probably to avoid the delays expected in the Florida appellate courts, or for some other reason, opted instead to enlist the assistance of the United States Army Corps of Engineers in securing fee simple title to the Eureka Pool property, Parcel #1. . . .” (Emphasis supplied)

One can just as rationally conclude that the Canal Authority acted via the federal condemnation suit in an attempt to comply expeditiously with the requirements of the Federal Government and thereby advance completion of the project. Such intent and action by a state agency are not altogether undesirable.

Accordingly, we conclude that the Canal Authority acted within the spirit and letter of the legislative mandate contained in Chapter 374, Florida Statutes. We do not perceive that Article X, Section 6 of the Constitution of Florida mandated that appellant proceed pursuant to the eminent domain authority conferred by Section 374.071, Florida Statutes, in acquiring property necessary to construct and complete the joint federal-state project. In our view Chapter 374, Florida Statutes, created no vested right in appellee to require the Canal Authority to acquire the land necessary to the accomplishment of its objective through proceedings established by Chapter 73, Florida Statutes.

Even assuming, arguendo, that appellant lacked the statutory authority to proceed as it did, this case still lacks the elements of a cause of action. The District Court of Appeal characterizes the instant case as “a cause of action for damages”. Certainly the second amended complaint does not state a cause of action for damages in contract. Therefore, it can only be assumed that the appellate court concluded that it was an action for damages in tort. The only allegations in the second amended complaint which would support such a cause of action are characterizations that the actions of the appellant in seeking the aid of the Federal Government were “illegal and unlawful, contrary to Florida Statutes 374.071 and 374.-501(1) (b)”; that the institution of the condemnation suit in the United States District Court in the name of the United States was “illegal and a subterfuge”; and that the appellant “prevailed” upon the United States of America to file the proceedings in the United States District Court. The only category of tort known to the writer which could fit within such allegations is that of fraud and deceit. As pleaded, it is doubtful that the allegations would satisfy the requirement that fraud be pleaded with particularity. See Rule 1.120(b), Fla.R.Civ.P.; West Virginia Hotel Corp. v. W. C. Foster Co., 101 Fla. 1147, 132 So. 842 (1931). Apart from the sufficiency of the allegations, the record in the instant case is devoid of that quality of evidence necessary to establish fraud on the part of appellant. It is rudimentary that proof of fraud must be by clear and convincing evidence. Middleton v. Plantation Homes, 71 So.2d 503 (Fla.1954); Graessle v. Schultz, 90 So.2d 37 (Fla.1956). Although the gravamen of the complaint appears to be that representatives of the appellant and the United States Government conspired to work a fraud upon the appellee, there is no evidence in the record of any such conspiracy. The Amended Final Judgment in the instant case makes a finding that appellant “prevailed” upon the United States of America to file a proceeding in eminent domain in the United States District Court, Middle District of Florida, Ocala Division, but such a finding is too ambiguous to satisfy the appellee’s burden of establishing misconduct by clear and convincing evidence.

Accordingly,

The decision of the District Court of Appeal is reversed, with instructions to remand to the trial court for reinstatment of the Amended Final Judgment.

It is so ordered.

OVERTON, C. J., and ENGLAND, J. and MOORE, Circuit Court Judge, concur.

BOYD, J., dissents with an opinion.

ROBERTS and ADKINS, JJ., dissent and concur with BOYD, J.

BOYD, Justice

(dissenting).

I respectfully. dissent and would adopt the decision of the District Court of Appeal, First District, herein reviewed. Under the circumstances, constitutional and statutory grounds referred to in the District Court decision require payment to appellee of a just amount expended for costs and attorneys’ fees. The Canal Authority achieved indirectly through Federal condemnation proceedings what it perceived it could not through State proceedings. Certainly the spirit and, in my opinion, the letter of the law stated in the District Court decision should require payment to appellee of its actual losses sustained in fees and costs resulting from the Canal Authority’s circuitous methods.

ROBERTS and'ADKINS, JJ., concur.

      . The circuit court also awarded various fees to the landowner in the proceedings, from which the Canal Authority appealed to the First District Court of Appeal. 253 So.2d 495 (1st D.C.A.Fla.1971), cert. denied Fla., 259 So.2d 715. The First District Court of Appeal affirmed in part and reversed in part, holding (1) that awards of a $5,000 fee for Ocala’s appraiser who did not testify and a $60,000 attorney’s fee in a case involving four parcels of land were proper; and (2) that, where attorneys spent 662 hours in confer-erences, research and court time regarding an eminent domain proceeding involving a parcel having benefit to Ocala in excess of $400,000 and where other attorneys testified that reasonable fees would have been $50,000, $52,650 and $63,600, the award of $15,000 attorney’s fee after the parcel was dismissed from the proceeding was grossly inadequate.

      . Art. X, § 6, Fla.Const.; Pla.Stat. §§ 374.071-.161.

      . Fla.Stat. § 73.091.


author: PER CURIAM.

text:
    Lloyd B. HUGUENOR, Jr., and Winifred B. Huguenor, Petitioners, v. OCEAN MILE GALLERIES, INC., and Joseph B. Sirgany, Jr., Respondents.
    No. 46970.
    Supreme Court of Florida.
    May 5, 1976.
    Philip Michael Cullen, III, of Fleming, O’Bryan & Fleming, Fort Lauderdale, for petitioners.
    Richard W. Riddle and John Daniel Nyce of Coleman, Leonard, Morrison & Riddle, Fort Lauderdale, for respondents.
   PER CURIAM.

By petition for writ of certiorari, we have for review a decision of the District Court of Appeal, Fourth District (305 So.2d 787), which allegedly conflicts with the decision in Aaron v. Rinaldi, 296 So.2d 632 (Fla.App.3d 1974). We have jurisdiction. Fla.Const. art. V, § 3(b)(3), F.S.A.

The specific question involved in this cause is whether a plaintiff must, as a predicate for a claim for punitive damages, introduce evidence of the defendant’s financial worth and ability to pay an award of punitive damages.

This Court has recently answered this question in the negative. Rinaldi v. Aaron, 314 So.2d 762 (Fla.1975). Upon this authority, we quash the decision of the District Court of Appeal, Fourth District, and remand same to the District Court of Appeal for further proceedings not inconsistent with the views herein expressed.

It is so ordered.

OVERTON, C. J., and ROBERTS, ADKINS, ENGLAND and SUNDBERG, JJ., concur.

BOYD, J., dissents.


author: BOYD, Justice.

text:
    Corrine FALK, as widow of Judge Jack A. Falk, Deceased, Petitioner, v. Robert KENNEDY, etc., et al., Respondents.
    No. 48,240.
    Supreme Court of Florida.
    May 5, 1976.

      Paul A. Louis and Paul Siegel, of Sinclair, Louis & Siegel, and Norman A. Sand, Miami, for petitioner.
    David V. Kerns, L. Keith Pafford, Edward E. Kuhnel and James M. Barclay, Tallahassee, for respondents.
    J. Lewis Hall, Tallahassee, for the Judicial Qualifications Commission, amicus curiae.
    Richard L. Lapidus and J. B. Spence, Miami, for Dade County Bar Assn, amicus curiae.
   BOYD, Justice.

Pursuant to a petition for mandamus this Court issued an alternative writ directing respondents, Director Kennedy, and Comptroller Lewis, to pay petitioner retirement benefits under Section 123.17, Florida Statutes, due her as the widow of the late Jack Falk, Circuit Judge, or to show cause why such benefits should not be paid. Respondent Lewis replies that the office of Comptroller will process such retirement benefits as are certified to it by the Division of Retirement, but that without such certification it has no authority to comply. Respondent Kennedy has raised objections to payment of retirement benefits under Section 123.17, Florida Statutes, because he believes petitioner is not entitled to them since Judge Falk transferred from the Judicial Retirement System in Chapter 123, Florida Statutes, to the Florida Retirement System in Chapter 121, Florida Statutes.

Section 123.17, subparagraphs (2) and (4) state:

“(2) A justice or judge retired by the commission for disability shall receive two-thirds of his then compensation if he has served for ten years or more. A justice or judge retired by the commission for disability who has served less than ten years shall receive one-third of his then compensation and in addition to said one-third shall receive an additional three and one-third percent of his compensation at time of retirement for each year served prior to his retirement.
“(4) Any justice or judge retired for disability shall have the right at any time prior to receipt of the first monthly installment of retirement compensation to elect to receive a reduced retirement compensation with the provision that the surviving spouse shall continue to draw such reduced retirement compensation so long as he or she shall live. The amount of such reduced retirement compensation shall be the actuarial equivalent of the amount of such retirement otherwise payable such justice or judge. In the event the disability of the justice or judge renders him incapable of making such election the commission may elect the plan most favorable under the circumstances of the particular case and include this election in its judgment.”

Jack A. Falk bcame a deputy commissioner for the Florida Industrial Commission on June 9, 1958 and served until December 27, 1960. He served as Judge of the Criminal Court of Record, Dade County, from December 28, 1960 to January 2, 1967. His service in these positions totaled 8.59 years in the State and County Officers and Employees Retirement System provided by Chapter 122, Florida Statutes.

Judge Falk became a circuit judge on January 3, 1967, and served as such until involuntary retirement by this Court on August 27, 1974. Upon becoming a circuit judge, Judge Falk elected to join the Judicial Retirement System provided by Chapter 123, Florida Statutes. Thereafter he elected to transfer to the elected state officers class of the Florida Retirement System established by Chapter 121, Florida Statutes. His ballot is not dated, but other records show the election was made effective on the July 1972 payroll. He had 7.66 years of creditable service in the Judicial Retirement System and in the elected state officers class of the Florida Retirement System.

In Re Falk, 300 So.2d 260 (Fla.1974), effective nunc pro tunc as of August 27, 1974 incorporated and approved the findings of fact and conclusions of law of the Judicial Qualifications Commission with respect to Judge Falk’s involuntary retirement and accordingly retired him from service as a circuit judge effective that date, his retirement being by reason of a physical disability of a permanent character and interfering with and preventing the performance of his duties. By a second opinion and order of this Court, In Re Falk, 323 So.2d 571 (1975), the opinion of August 27, 1974 was made permanent, “without prejudice to the rights of the widow of Judge Falk to institute and prosecute appropriate proceedings for the determination of the compensation she is entitled to receive under the applicable retirement laws of the State of Florida.”

Judge Falk died on November 5, 1974. The Petition for Writ of Mandamus was filed in October, 1975, praying that respondent be ordered to pay retirement benefits to Judge Falk’s widow under the provisions of Section 123.17(4), Florida Statutes, calculated on the basis of two-thirds of Judge Falk’s compensation at the time of his death, based upon his more than ten years of service as circuit judge or in an equivalent position. Petitioner further prayed that respondent be required to pay to Judge Falk’s estate the benefits which he should have received during his lifetime.

Alternative writ issued on January 9, 1976, requiring the respondent to show cause via return and brief on or before January 26, 1976, why peremptory writ of mandamus should not issue as prayed.

The question before this Court, then, is the following: whether the Director of the State Division of Retirement is subject to a duty to pay benefits according to Section 123.17, Florida Statutes, with respect to a judge who had elected to transfer from the Judicial Retirement System to the Elected State Officers Class of the Florida Retirement System and who is involuntarily retired by the Supreme Court pursuant to Article V, Section 12, Florida Constitution.

Respondent contends that when the late Judge Falk transferred to the Florida Retirement System his rights became governable exclusively by Chapter 121, Florida Statutes, through the operation of Section 121.046, Florida Statutes, subparagraph (3), which reads as follows:

“(3) The rights of members of the judicial retirement system established by chapter 123 shall not be impaired, nor shall their benefits be reduced, by virtue of any provision of this act or any provision of the Florida retirement system act, except that if a member of the judicial retirement system, otherwise eligible, elects, prior to June 30,1973, to transfer to the Florida retirement system, he shall be transferred to the Florida retirement system and, from the date his transfer becomes effective, shall be subject to the provisions of the Florida retirement system established by chapter 121, together with any relevant provisions of this act and shall have his benefits calculated accordingly.”

We disagree. It is our opinion that if a judge is involuntarily retired for disability under Article V, Section 12, Florida Constitution, he is entitled to the retirement benefits of Section 123.17, Florida Statutes, even if he has elected to transfer from the Judicial Retirement System to the Florida Retirement System.

The constitutional provision existing prior to January 1, 1973 relating to this question was Article V, Section 17A:

* * * * * *
“(3) Any justice or judge to whom this section applies may be disciplined by private reprimand or removed from office for willful or persistent failure to perform his duties or habitual intemperance or conduct unbecoming a member of the judiciary or he may be involuntarily retired for disability seriously interfering with the performance of his duties, which is, or is likely to become, permanent in nature. After such investigation as it deems necessary, the judicial qualifications commission may conduct a hearing concerning the removal, discipline or retirement of a justice or judge or request the supreme court to appoint three special referees, who shall be active or retired justices or judges of courts of record, to hear and take evidence in any such matter, and to report thereon to the commission. All hearings shall be held in the county in which the justice or judge involved resides. Testimony shall be under oath, administered by a member of the commission or a special referee, and subject to the penalties for perjury. If after hearing, or after considering the record and report of the referees, the commission finds good cause therefor, it shall recommend to the supreme court the removal, discipline or retirement of the justice or judge. The supreme court shall review the record of the proceedings on the law and facts and shall order removal, discipline or retirement, as it finds just and proper, or wholly reject the commission’s recommendation. Upon an order for involuntary retirement for disability, the justice or judge shall thereby be retired at retirement pay to be fixed by law which as to a justice of the supreme court, judge of a district court of appeal or circuit judge shall not be less than two thirds (2/3) of his then compensation if he has served for ten (10) years or more as justice or judge of such court or courts. . . .”

This evidenced the intent of the people that judicial officers of the Supreme Court, District Courts of Appeal and Circuit Courts should be paid retirement benefits after being involuntarily retired because of disability. The amounts were to be fixed by law, but not less than two-thirds of the current salary at time of retirement if the judge had served for 10 years or more. In ”1972 Article V, Florida Constitution, was revised and the constitutional provision controlling at the time of Judge Falk’s retirement by the Supreme Court is the present Article V, Section 12(f):

“(f) Upon recommendation of two-thirds of the members of the judicial qualifications commission, the supreme court may order that the justice or judge be disciplined by appropriate reprimand, or be removed from office with termination of compensation for willful or persistent failure to perform his duties or for other conduct unbecoming a member of the judiciary, or be involuntarily retired for any permanent disability that seriously interferes with the performance of his duties. After the filing of a formal proceeding and upon request of the commission, the supreme court may suspend the justice or judge from office, with or without compensation, pending final determination of the inquiry.”

Although there is no provision in the current Article V, Florida Constitution, requiring compensation for judges and justices retired for ill health, there is no constitutional prohibition against it. There is a long statutory history in Florida recognizing that judicial officers should be in a different category from other state employees who usually enter state service early in life and spend their active years in such service. Judicial officers usually enter the judiciary at personal economic sacrifice and later in life. In order that they may receive retirement benefits commensurate with their new status, the Legislature has made the benefits more attractive than to employees generally. The Legislature has done the same for elected state officers who retire after eight years of service once they have attained retirement age. It is inconceivable that the Legislature contemplated that any judge protected by Section 123.17(4) as to involuntary retirement for ill health would knowingly abandon that status for the benefits of Chapter 121, Florida Statutes.

We have carefully examined the briefs of the parties, and amicus briefs of the Dade County Bar Association and Judicial Qualifications Commission which strongly support petitioner’s position. Our view is that by permitting transfer from Chapter 123 relating only to judicial officers to Chapter 121 relating to employees generally, a merger was created as to the retirement rights of judicial officers with exception of Sections 123.17 through 123.21. As stated above, the Constitution provides for involuntary retirement of judicial officers by the Supreme Court for illness, but we find nothing directly relating to such involuntary court ordered retirement in Chapter 121. Involuntary retirement mentioned under Chapter 121 is ordered by the “Director” in said Chapter and not through the Judicial Qualifications Commission and the Supreme Court. The language seems to cover regular judicial retirement of justices and judges who voluntarily retire. We find Section 123.17, et seq., Florida Statutes, will not benefit those transferred from Chapter 123 to 121 except those involuntarily retired for disability reasons as in this case.

We hold that petitioner is entitled to receive all benefits payable under Section 123.17(2) and Section 123.17(4), Florida Statutes. Petitioner argues that she is entitled to receive two-thirds of Judge Falk’s compensation at the time of his retirement because he had served 10 years or more as a Circuit Judge, or in an equivalent position. There is nothing in Section 123.17, Florida Statutes, which indicates that the computation of the 10-year time period for the benefits to be “two-thirds of his then compensation” should include service in equivalent positions. The applicability of Section 123.17, Florida Statutes, is limited to Supreme Court Justices, the Judges of District Courts of Appeal and Circuit Court Judges. The benefits in this case under Section 123.17, Florida Statutes, are to be one-third of Judge Falk’s compensation when retired, plus three and one-third percent of his compensation at retirement for each year served as a Circuit Judge prior to his retirement.

In addition petitioner contends that Section 121.052(1), subparagraphs (c) and (d), are applicable to determining Judge Falk’s benefits. We cannot agree. Judge Falk’s rights were fixed at the time of his death, November 5, 1974. Subparagraphs (c) and (d) of Section 121.052(1), Florida Statutes, did not take effect until July 1, 1975.

Accordingly, the peremptory writ is issued directing respondents to comply with these findings.

It is so ordered.

OVERTON, C. J., and ROBERTS and ADKINS, JJ., concur.

SUNDBERG and HATCHETT, JJ., concur in judgment.

ENGLAND, J., dissents.


text:
    STATE of Florida, Appellant, v. Michael Patrick DWYER, Appellee.
    No. 48167.
    Supreme Court of Florida.
    May 5, 1976.

      Robert L. Shevin, Atty. Gen., and Mary Jo M. Gallay, Asst. Atty. Gen., for appellant.
    Kenton H. Haymans and Robert G. Jacobson, of Farr, Farr, Haymans, Moseley & Odom, Punta Gorda, for appellee.
   BOYD, Justice.

This is an appeal by the State of Florida seeking reversal of a decision of the Circuit Court dismissing charges against Ap-pellee for violating Section 843.01 of the Florida Statutes prohibiting resisting arrest with violence in connection with his arrest for violating Florida’s disorderly conduct statute 877.03. We have jurisdiction.

The trial court granted Appellants motion to dismiss, stating:

. . this court finds that under the law of the land by which' this court is bound, said Florida Statute 877.03 is unconstitutional and in violation of the Constitution of the United States and the arrest thereunder was without authority, it is thereupon ordered and adjudged that the information filed herein and the same is hereby dismissed.”

It was the reasoning of the lower court that, even though this Court in Bradshaw v. State, 286 So.2d 4 (Fla.1973), had held the statute in question valid, a decision by the United States Fifth Circuit Court of Appeals, Wiegand v. Seaver, 504 F.2d 303 (5th Cir. 1974), holding the statute in question invalid would control the issue as far as the Court was concerned.

Appellee argues that since the United States Supreme Court held unconstitutional a Gerogia statute prohibiting profane language in Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 and the Fifth Circuit in Wiegand, supra, relied upon Gooding, supra, to hold Section 877.03, Florida Statutes, unconstitutional that all Florida courts are bound to consider Florida’s disorderly conduct statute unconstitutional. Although Justice Boyd and Justice Ervin dissented to the majority opinions in Gonzales v. City of Belle Glade, 287 So.2d 669, Fla., and Bradshaw, supra, the Florida Supreme Court held said disorderly conduct statute constitutional. Up to this time the statute has not been held unconstitutional by the United States Supreme Court and this Court’s holding that the statute is constitutional is the present prevailing law of Florida.

Even though lower federal court rulings may be in some instances persuasive, such rulings are not binding on state courts. In Brown v. Jacksonville, 236 So.2d 141 (1st D.C.A.Fla.1970), the constitutionality of the vagrancy ordinance was at issue, and the Circuit Court exercising its appellate jurisdiction over a municipal court ruling stated:

“A decision of a Federal District Court, while persuasive if well reasoned, is not by any means binding on the courts of the state. The Supreme Court of Florida is the apex of the judicial system of the State of Florida, and its decisions are binding upon this court.”

Stare decisis is a fundamental principle of Florida law. It played an important part in the development of English common law and its importance has not diminished today. Where an issue has been decided in the Supreme Court of the state, the lower courts are bound to adhere to the Court’s ruling when considering similar issues, even though the court might believe that the law should be otherwise. In the cáse of Hoffman v. Jones, 280 So.2d 431 (Fla.1973), this Court set forth the principle that:

“. . . a District Court of Appeal does not have the authority to overrule a decision of the Supreme Court of Florida. In the event of a conflict between the decision of a District Court of Appeal and this Court, the decision of this Court shall prevail until overruled by a subsequent decision of this Court.”

Following Hoffman, supra, this principle was extended to the trial court level in State v. Lott, 286 So.2d 565 (Fla.1973). The Court said :

“The trial court is bound by the decisions of this Court just as the District Courts of Appeal follow controlling precedents set by the Florida Supreme Court.”

The principle was recognized by the Second District Court of Appeal in Hill v. State, 302 So.2d 785 (2nd D.C.A.1974).

“. . . whether we agree with the decision of the Supreme Court we must follow it. To quote our erstwhile brother, Judge Mann, in Johnson v. Johnson, Fla.App. [2nd Dist.] 1973, 284 So.2d 231, we receive the interpretation of the law ‘from our Supreme Court, agreeing with some, disagreeing with some, following all . . . . ’”

Therefore, in the case sub judice the rule of stare decisis dictates that the lower court should have followed the ruling of the Supreme Court of Florida in Bradshaw, supra, where Florida Statute 877.03, was held to be constitutional.

In any event, the constitutional objection raised against Florida Statute, Section 877.03 by Wiegand, supra, has been cured. Wiegand, noting that this Court had not made a narrowing construction of the statute to exclude from its operation speech protected by the First Amendment, found the statute to be facially overbroad and held it unconstitutional. We have recently made the necessary construction. White v. State, 330 So.2d 3, Fla., 1976.

Accordingly, the decision of the Circuit Court of Charlotte County under review is reversed and the cause is remanded for further proceedings not in conflict with this opinion.

It is so ordered.

OVERTON, C. J., and ROBERTS, ADKINS and SUNDBERG, JJ., concur.

ENGLAND and HATCHETT, JJ., concur with result only.

      . 843.01 Resisting officer with violence to Ms person. Whoever knowingly and willfully resists, obstructs or opposes any sheriff, deputy sheriff, officer of the Florida highway patrol, municipal police officer, beverage enforcement agent, officer of the game and fresh water fish commission, officer of the department of natural resources, any member of the Florida parole and probation commission or any administrative aide or supervisor employed by said commission, any county probation officer or any personnel or representative of the department of [criminal] law enforcement or other person legally authorized to execute process, in the execution of legal process or in the lawful execution of any legal duty, by offering or doing violence to the person of such officer or legally authorized person, shall be guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084.

      . 877.03 Breach of the peace; disorderly conduct. Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor of the second degree, punishable as provided in § 775.082 or § 775.083.

      . Article V, Section 3(b)(1), Florida Constitution.