author: RODGERS, Presiding Justice.

text:
    Hershel Ray AUSTIN v. STATE of Mississippi.
    No. 48824.
    Supreme Court of Mississippi.
    Dec. 22, 1975.
    Harry L. Kelley, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Caj oleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before RODGERS, INZER and SMITH, JJ.
   RODGERS, Presiding Justice.

The appellant, Hershel Ray Austin, was indicted by the Grand Jury of Alcorn County, Mississippi, for the crime of murder. He was tried, convicted and sentenced to a life term in the state penitentiary. He has appealed to this Court and complains that he did not get a fair trial in the Circuit Court of Alcorn County for the following reasons:

(1) The trial court erroneously permitted a medical doctor to give his opinion as to the position of the deceased’s arm and body at the time of the fatal shot.

(2) The court erroneously refused defendant an instruction on the right to carry a concealed weapon.

(3) The court should have granted a directed verdict in favor of defendant.

(4) The verdict of the jury was against the overwhelming weight of the testimony.

The defendant and Elsia Streetman had been “dating” for several months prior to January, 1974. They were going together “steady” since she was divorced from her husband. On the afternoon of January 27, 1974, the defendant and Elisa Streetman, in company with Mr. and Mrs. Jackie Nix, had been riding in defendant’s automobile. They stopped at a cafe to eat. Elisa Street-man called her father and requested that he come after her. On the way to his home, she told her father that she had decided not to marry defendant; that he carried a pistol and would likely come after her. Elisa was not living with her father, Charlie Ed Benjamin. She was living with her mother, Mrs. Bertha Benjamin in Wheeler Grove Community in another part of Corinth. Her mother and father were separated. Her father was living with his brother Claude Allen Benjamin, part-time' in a trailer and part-time in the home of Claude Allen Benjamin.

When Elisa, her brother Tony and father reached the home of Claude Allen Benjamin, her father called the sheriff of the' county on the telephone. In the meantime, the defendant — having discovered that his “date” Elisa had left the cafe — drove to the home of her father. He parked behind a truck near the trailer home of Charlie Ed Benjamin. In the meantime, Charlie Ed Benjamin had alerted his 24-year-old nephew, Anthony Wayne Benjamin, to secure a 30/30 rifle, and the two men went out into the front of the carport before the defendant drove his car into the driveway. When the defendant got out of his automobile, Anthony Wayne Benjamin commanded the defendant to “go away you are not welcome.” Elisa’s father said, “Go on and forget it. It is over with.” Then he told his nephew, “Let me talk to him.” Austin, the defendant, said: “I want to talk to Lisa. I want to get this settled.” Elisa’s father then turned to his nephew and said: “Let him come up here and talk, if she wants to talk to him.” Elisa said that she did want to talk to him. The defendant asked her, “What was the matter, why was she doing that.” While the defendant was engaged in conversation with Elisa and her father, her uncle, Claude Allen Benjamin, came out of his house and commanded the defendant to leave, and at the same time, he walked toward and around Elisa and her father. He went up to the defendant and began to push him. The defendant’s witnesses contend that the uncle slapped the defendant. In any case, Elisa’s father attempted to restrain his brother by holding to him and the defendant. At that point, Anthony Wayne Benjamin fired his rifle. He said he fired it in the air to scare the defendant. The proof clearly shows that Anthony Wayne and Mrs. Kathryn Benjamin started running down toward where Claude Allen Benjamin was. The testimony for the state contends that the defendant had already shot the deceased Claude Allen Benjamin. The defendant’s testimony is to the effect that Anthony Wayne Benjamin fired a second shot and hit the defendant in his left arm before he fired. In any case, Mrs. Kathryn Benjamin testified that “and he shot my husband and he never did quit firing. He just kept firing.” Elisa’s father testified that he called to his son to kill the defendant after the defendant ceased firing and had thrown his pistol at him. The sixteen-year-old son Tony began to fire a .22 rifle at the defendant. He says he did not know about the previous altercation. Anthony Wayne Benjamin and his mother testified that Anthony Wayne fired his second shot after he had been wounded in both shoulders at the time he was falling to the ground. Of course, the defendant’s testimony is that defendant had been wounded before he began to fire his pistol.

In any case, however, the testimony clearly shows that the defendant did not act in any manner hostile to any of the state witnesses until after he had been attacked by Claude Allen Benjamin; that he did not know Claude Allen Benjamin and had only seen Anthony Wayne one time. He had always been friendly toward Elisa’s father. He asked, and was granted, permission to talk to Elisa and while talking to her, Anthony Wayne shot to scare him and Claude Allen assaulted him.

This is the testimony offered by the state as having occurred at the scene of the homicide. To this testimony was added the opinion testimony of a pathologist as to the position of the right arm of the deceased at the time the fatal shot was fired, and the testimony of the sheriff that he found only one spent 30/30 cartridge shell and one live 30/30 cartridge; that he found no .22 caliber cartridge shells at the scene of the homicide.

The defendant offered the testimony of Elisa, who testified that her uncle slapped the defendant. Elisa’s mother testified that she talked with her former husband, Charlie-Ed Benjamin, and he told her that Elisa’s story was true; that Elisa had said her uncle had slapped the defendant and two shots were fired before the defendant began to fire.

The defendant testified that he was wounded in the left arm before he fired at the man with the rifle twice, and then at the man to his left [the man who had slapped him]. He said he did not know the people who attacked him except he had seen Anthony Wayne Benjamin one time. He said that the reason he shot the two Benjamins was because, “I was scared. They both had already attacked me.” He said that after Anthony Wayne went down, “He was still moving, as he went down, he started trying to rebreech his gun.”

Under this close resume of facts, the court permitted a pathologist to testify as an expert witness as to the position of the deceased’s right arm at the time the fatal shot was fired. The following colloquy occurred :

“Q. Now, Dr. Welch, I am going to ask you again, the position of the decedent Claude Allen Benjamin’s right arm, at the time when this wound was inflicted, explain that to the jury, please, sir.
BY MR. KELLEY: If it please, Your Honor, he is not qualified to testify as to what position Mr. Claude Allen Benjamin was in at the time of the fatal encounter: (1) That invades the province of the jury; it is a jury matter. (2) He is not qualified to answer.
BY JUDGE SENTER: Counsel, as I recall the doctor’s testimony, he elaborated, regarding the path of the projectile, as to the position the arm would have had to be in in order for the projectile to take a particular path. Therefore, [I] feel that he may testify. The objection is overruled.

BY MR. DAVIDSON:

Q. Dr. Welch, my question, what position would the right arm of the decedent, Mr. Claude Allen Benjamin, would have had to have been in for this wound to have been inflicted in the manner that it was?
A. It had to be placed across his chest, because the single wound involved, involved a projectile entering the arm on this surface of the arm, passing virtually straight through the arm and into the nipple. And I think it is fairly obvious that the only position that would satisfy this set of circumstances is with the arm across the chest in such a manner.
Q. Doctor, I will ask you further, could the arm have been extended, or out, or is it your testimony that it had to be up tight against his body?
.A. It is my opinion — •
BY MR. KELLEY: If the Court please, we would like to interpose, a continuing objection, if it may please Your Honor.
BY JUDGE SENTER: The record may note the objection. The objection is overruled.

BY THE WITNESS:

A. It is my opinion that the arm was placed next to the chest because of the fact that when the arm was placed, at autopsy, when the arm was placed across the decedent’s chest, when the wound of entry and the wound of exit on the interior portion of the arm and the wound of entrance at the nipple were all placed in direct alignment, the arm was in this position, touching the chest, and a probe could be passed through the wound, all the way through the arm, and touch the wound of entry in the nipple.”

The brief filed by the attorney general admits that the authorities show that it was an error to permit the introduction of this testimony, but contends that it was harmless, as follows: “Although the testimony was inadmissible, it did not preclude the jury from having reasonably considered appellant’s version, being that the deceased, regardless of the position of his arm, had a weapon in his hand and was advancing on appellant.”

Of course, the purpose of this testimony was to indicate that the deceased had his arm up on his chest and not down by his side “with .something ‘flashy’ ” in his hand.

This Court has condemned this type of testimony throughout its history. As early as 1893 in the case of Foster v. State, 70 Miss. 755, 12 So. 822 (1893), we pointed out in a lengthy opinion as shown by the first syllabus:

“On a murder trial it is error to permit experts to give opinions as to the range of the bullet which passed through deceased’s head, or the position of his hand and arm, when he was shot in the arm and body, where they are formed from proven facts, since it is for the jury to draw their own conclusions.” 12 So. at 822.

The Foster case was cited as authority by the Court of Appeals of Alabama in the case of Rigell v. State, 8 Ala.App. 46, 62 So. 977 (1913), in which the Court said:

“In the Encyclopedia of Evidence, vol. 5, p. 588, we find the following text: ‘According to the overwhelming weight of authority, the opinions of medical experts are not admissible to show the po-position of an injured person at the time the wound was received, or the position of the person who inflicted it, because, as has been said, surgeons are not presumed to be experts in the matter of giving or receiving wounds, and the jury are equally capable of drawing proper inferences from the facts proved.’ The long list of cases cited in the note fully sustain the text. See in connection, as of similar purport, the following cases: Foster v. State, 70 Miss. 755, 12 So. 822; McKee v. State, 82 Ala. 32, 2 So. 451; Dumas v. State, 159 Ala. 42, 44, 49 So. 224, 133 Am.St.Rep. 17.’' 8 Ala.App. at 55, 62 So. at 980.

See also Mathis v. State, 15 Ala.App. 245, 73 So. 122 (1916).

This evidence was also condemned in Cobb v. State, 226 Miss. 181, 83 So.2d 833 (1955) and Harris v. Pounds, 185 Miss. 688, 187 So. 891 (1939).

This rule seems to be universally accepted. See People v. Curtright, 258 Ill. 430, 101 N.E. 551 (1913); Keifer v. State, 199 Ind. 10, 154 N.E. 870 (1927); Manning v. State, 7 Okl.Cr. 367, 123 P. 1029 (1912); Roquemore v. State, 59 Tex.Cr. 568, 129 S.W. 1120 (1909).

The testimony of the pathologist as to the position of the deceased’s arms at the moment of the fatal shot was a serious error, because it added the opinion of an eminent medical doctor to the weight of the testimony of the Benjamin family as to how the homicide occurred when, in fact, the testimony on this point was outside the expertise of the doctor. It is within the province of the jury to determine whether one is shot twice or whether one bullet passed through the arm and body of the deceased and is not an issue for an expert to decide.

It is next contended that the trial court committed a reversible error in failing to give the defendant an instruction stating that if the life of the defendant had been threatened and he had good reason to apprehend a serious attack he had the right under the law to arm himself by carrying a concealed weapon, and was not required to temporarily disarm himself whenever he was in no apparent danger.

A similar instruction has been denied in several cases in this state. See Shannon v. State, 237 Miss. 550, 115 So.2d 293 (1959); Durham v. State, 158 Miss. 833, 131 So. 422 (1930); Molphus v. State, 124 Miss. 584, 87 So. 133 (1921).

Such an instruction has been permitted in Wood v. State, 165 Miss. 363, 144 So. 545 (1932); Echols v. State, 99 Miss. 683, 55 So. 485 (1911); Klyce v. State, 78 Miss. 450, 28 So. 827 (1900); and Smith v. State, 75 Miss. 542, 23 So. 260 (1898).

In Molphus v. State, 124 Miss. 584, 87 So. 133 (1920), the Court pointed out that an instruction granted the defendant on “carrying a concealed weapon was certainly all he could ask.” Another instruction on this subject was not warranted. The Court then said:

“The defendant was not on trial for carrying a concealed weapon, and the court was not required to instruct as to his right to carry a weapon. The court was here dealing with the use of the weapon and lawfulness of the use, and not with the lawfulness of its being carried. So we think there was not error in refusing the instruction No. 2 above set out which was refused by the court.” 124 Miss. at 597, 87 So. 135.

The foregoing statement was approved in Durham, supra.

Mrs. Kathryn Benjamin testified that she did not remember telling her husband and son to come back that “There isn’t any trouble out there.” Then, she said, “He come out there for it, or he wouldn’t have had a gun with him.” [Referring to the defendant].

On cross-examination of Elisa Street-man, she was asked by the prosecuting attorney: “Isn’t it a fact, Mrs. Streetman, that on that occasion [when her father came after her] you told you father, ‘Daddy, there is going to be trouble. He [speaking of defendant] has got a gun, and he might kill you and Tony, too.’ ” She answered, “No.”

“Q. You deny telling your father that?
A. I did not say he would kill nobody. I did say he had a gun.
Q. ‘And he might kill you and Tony, too.’
A. No. I didn’t say he was going to kill anybody.”

Mrs. Streetman was also asked if she did not tell the sheriff that, “I have known Ray Austin for about six months. I had been on a date with him today. Jackie Nix and his girlfriend were with us. We stopped at the K & K Truck Stop, and I called my father to come after me because I was afraid of Ray, because last Wednesday he said that he wasn’t going to live without me and that he would kill us both. He had taken his gun out and it went off and shot him in the leg.”

She admitted that she made such a statement, but said it was done with her father’s help.

The record in this case reveals that the state not only sought to prove a felonious homicide, but also that the homicide was caused as a result of the fact that the defendant was guilty of unlawfully carrying a concealed weapon.

The defendant testified that his life had been threatened and that the sheriff made him a deputy sheriff, and for that reason he carried a pistol. The sheriff was then permitted to construe Mississippi Code Annotated § 97-37-9 (1972) by testifying that although he made him a deputy, that gave him no right to carry a concealed weapon. This, of course, was error.

We hold under the peculiar facts in this case that the court should have given the jury an instruction on the right of one to carry a deadly weapon under the statute.

We are of the opinion that the testimony offered by the state was sufficient to withstand the motion made by the defendant for a directed verdict.

On the other hand, the testimony shows that the state’s witnesses were the aggressors and that the deceased Claude Allen Benjamin attacked the defendant at a time when he had permission of Elisa’s father to talk to her. If the testimony is sufficient to show an unlawful killing, it does not show murder. Since there was obviously no malice on the part of the defendant shown in the sudden attack admittedly made on him, the charge should have been limited to manslaughter.

Mississippi Code Annotated § 97-3-35 (1972) is in the following language:

“The killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter.”

We considered two of the manslaughter Code sections in Wells v. State, 305 So.2d 333 (Miss.1974). This was a case where the defendant did not know the deceased and cut him in a sudden affray. The deceased died from the wound. All the Supreme Court Justices agreed that the offense could rise no higher than manslaughter; but, since there was no other error in the trial record, a majority of the Court felt that the case should be reversed for sentence of manslaughter only.

In the instant case, however, there are several reversible errors in the trial of the case which may or may not change the verdict of the jury as to the guilt or innocence of the defendant as to manslaughter.

We, therefore, reverse the judgment of the trial court and direct that the case be retried before a new jury to accord with the foregoing opinion.

Reversed and remanded.

GILLESPIE, C. J., and PATTERSON, ROBERTSON, SUGG, WALKER and BROOM, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Gary Christopher WALKER and Jack Wilbanks v. ADAMS COUNTY BOARD OF ELECTION COMMISSIONERS.
    No. 49128.
    Supreme Court of Mississippi.
    Dec. 22, 1975.
    Rehearing Denied Jan. 19, 1976.
    Andalman, Bergmark & Adelman, Alison R. Steiner, Hattiesburg, Mark H. Shenfield, Jackson, for appellants.
    Hyde Rust Jenkins, II, Natchez, for ap-pellee.
   Affirmed.

All Justices concur.


author: BROOM, Justice, for the Court:

text:
    Joe E. WOOD v. STATE of Mississippi.
    No. 48672.
    Supreme Court of Mississippi.
    Dec. 15, 1975.
    Rehearing Denied Jan. 19, 1976.
    Cunningham, Smith & Ferrell, Boone-ville, for appellant.
    A. F. Summer, Atty. Gen., by Vera Ma-del Speakes, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and WALKER and BROOM, JJ.
   BROOM, Justice, for the Court:

Assault with intent to kill and murder was the charge for which appellant Wood was convicted in the Circuit Court of Ita-wamba County, Mississippi. He appeals from the conviction and ten year penitentiary sentence of which two and a half years were suspended. We affirm.

Only two issues are raised: (1) Was there sufficient evidence to withstand a motion for a directed verdict and peremptory instruction ? (2) Should the court have granted a mistrial on account of statements made by the district attorney in his closing argument ?

Facts established by testimony for the state showed that in the early morning of Sunday, September 2, 1973, Chief Martin (of the Fulton Police Department) and his partner were patrolling when they noticed that all the lights were out at Coleman’s Bar-b-cue restaurant. They turned in at the restaurant and saw a Pontiac station wagon which appeared to contain two male persons. As the station wagon left the premises (passing within a few feet of the patrol car), the law officers saw fire inside the restaurant. From the station wagon, as it made a left turn onto Highway 78 and proceeded toward Tupelo, two shots were fired, both of which hit the patrol car. A chase followed in which the officers pursued the wagon until it stopped some distance away where appellant was arrested.

I.

Careful perusal of the entire record reveals that the trial judge correctly refused Wood’s request for a directed verdict, and a peremptory instruction. The state's testimony showed that the wagon observed by the officers at Coleman’s was the same vehicle which they pursued and in which appellant was arrested when the chase ended. While it is true that no weapon was found in the possession of Wood or in his vehicle and no other person was found in the station wagon when the chase ended, it was for the jury to resolve the factual question of whether Wood was guilty or innocent. Based upon the testimony, the jury was justified in finding that Wood was in the station wagon when the shots were fired from it (at Coleman’s) and that he did not exit the vehicle until arrested. The jury heard testimony that the station wagon in which Wood was arrested was within the view and observation of the officers at all times after leaving Coleman’s until the arrest was made. We find that the evidence was sufficient for the case to go to the jury and that it adequately supported the guilty verdict.

II.

The only other proposition argued by Wood as grounds for reversal is his contention that the closing argument of the district attorney was improper and grounds for a mistrial. The controversial aspect of the district attorney’s argument was his assertion that Wood and his co-indictee “shot at them because they didn’t want to get caught back there burning Coleman’s Barb-cue.” Fairness requires consideration of the district attorney’s remarks together with testimony given by the law officers who during the trial testified about seeing a fire inside Coleman’s. The trial judge alertly understood the proposition at issue and stated in the record:

Counsel, on the defense’s case this was brought out in your argument. It’s a reasonable response to it, some inference perhaps seeking to draw from it. You may argue the evidence and there is some semblance of evidence although these defendants are not on trial for anything that happened to Coleman’s Bar-b-cue. The objection is overruled and the motion for mistrial is overruled.

The trial judge found that the district attorney’s argument was made in response to argument of defense counsel. Ransom v. State, 149 Miss. 262, 115 So. 208 (1928). Upon this record we cannot say that the argument constituted reversible error or that the judge abused his discretion in not declaring a mistrial on account of the closing argument of the prosecutor.

Our conclusion is that Wood (who admitted a prior homicide conviction) received a fair trial in which the verdict is strongly supported by the evidence.

Affirmed.

RODGERS, P. J., and PATTERSON, INZER, SMITH, ROBERTSON and SUGG, JJ., concur.


text:
    Allen GARDNER and Dewey Gardner v. JOE T. DEHMER DISTRIBUTORS, INC.
    No. 48444.
    Supreme Court of Mississippi.
    Dec. 15, 1975.
    Rehearing Denied Jan. 19, 1976.
    Merrida P. Coxwell, Jackson, for appellants.
    L. Breland Hilburn, Jackson, for appel-lee.
    Before GILLESPIE, C. J., and WALKER and BROOM, JJ.
   Reversed and remanded.

RODGERS, P. J., and PATTERSON, INZER, SMITH, ROBERTSON and SUGG, JJ., concur.


author: GILLESPIE, Chief Justice:

text:
    Evan DOSS, Jr. v. STATE of Mississippi.
    No. 48714.
    Supreme Court of Mississippi.
    Dec. 22, 1975.
    Firnist J. Alexander, Jr., Everett T. Sanders, Jackson, for appellant.

      A. F. Summer, Atty. Gen., by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and WALKER and BROOM, JJ.
   GILLESPIE, Chief Justice:

Appellant, Evan Doss, Jr., Tax Assessor and Collector, was held in contempt of the Circuit Court of Claiborne County for failure to obey a writ of mandamus and imprisoned for ninety days and fined $1,000. The dispositive question is whether the judgment is rendered invalid by Doss’ prejudgment offer to comply with the writ.

On November 1, 1973, the Circuit Court of Claiborne County entered an order for the issuance of a writ of mandamus requiring Doss to:

[I]n person or by deputy; (1) accept all applications for motor vehicle license tags tendered him, or his deputy, and assist those taxpayers applying for license tags who do not have application card in the preparation of their application cards; (2) process the same to determine the total amount of all taxes and receive the sum of such taxes due; issue receipts therefor and deliver the receipts and license tags to the motor vehicle owners or their agents.

Additionally, the order provided:

[T]his Mandamus as to the collection and receipt of taxes shall be understood to continue for the full term of office of the defendant and the defendant is assessed with all costs that have accrued in this proceeding, for which let execution issue. (Record, p. 13-B).

On October 31, 1974, the last day for the purchase of automobile tags, two members of the board of supervisors and the son of one of them went to the tax collector’s office to buy several private automobile tags. They had consulted the district attorney, and an intern, assigned to the district attorney, accompanied them. After waiting about an hour, the parties left without purchasing their tags. They were not refused service but were told several times to wait and they would be reached in a few minutes. The parties thought they were not waited on within a reasonable time, and that others who came in after them had purchased tags. Doss contends that he was busy waiting on people who came in ahead of the complaining parties and in processing about thirty prior applications. We pretermit further detailing of the disputed facts and assume without deciding that the trial court had sufficient evidence to justify a finding that Doss failed to obey the mandamus order.

After the complaining parties left the tax collector’s office, they had the district attorney prepare and sign a “Petition to Enforce Obedience to Writ of Mandamus.” The petition was brought pursuant to Mississippi Code Annotated section 11-41-11 (1972), and did not mention punishment but prayed for enforcement of the writ and for Doss “to answer his contempt by disobedience to the writ of mandamus.” The writ was issued and served on Doss, who was jailed until the hearing the next day. During the trial, counsel for Doss made several tenders in open court of the automobile tags to the complaining parties, but the court refused to accept the tender or dismiss the proceedings.

The writ of mandamus is one of the ancient, extraordinary writs designed to compel action by the defendant. It is not a punitive remedy. 52 Am.Jur.2d, Mandamus § 4 (1970).

The statute under which the present proceedings were brought is Mississippi Code Annotated section 11-41-11 (1972), which reads as follows:

Obedience to the judgment of the court may be enforced by attachment, issued in term time or in vacation by order of the judge of the court and directed to the sheriff, returnable forthwith, commanding him to take the body of the person in contempt by disobedience of the writ of mandamus, and to bring him before the court or judge to be punished for his disobedience. The court or judge shall commit such person to the county jail until he comply with the command of the writ, and make all such further orders as may be necessary to compel obedience thereto, and may enforce such orders by proper process.

Section 11-41-15 is further evidence of a legislative intent that the enforcement of obedience is the aim of the law — not punishment for failure to obey the writ. Section 11-41-11, supra, provides that in enforcing the writ of mandamus the judge “. . . shall commit such person to the county jail until he comply with the command of the writ, and make all such further orders as may be necessary to compel obedience thereto . * .

The statute limits the punishment for contempt for failure to obey a writ of mandamus. If this were a case where the defendant wilfully and deliberately disobeyed a writ for the purpose of impeding, embarrassing, obstructing, defeating, or corrupting the administration of justice, the court would have the inherent power to punish irrespective of the statute. Cf. Buskirk v. State, Miss., 321 So.2d 295, decided November 10, 1975. There is no such interference with the administration of justice in this case. The statute provides the limit of the court’s power to punish — i. e., commit to jail until compliance with the writ.

The proceedings should have been dismissed when compliance with the writ was tendered.

Reversed and defendant discharged.

RODGERS, P. J., and PATTERSON, INZER, SMITH, ROBERTSON and SUGG, JJ., concur.

      . Whether a general mandamus order effective in the future is valid is not raised. Hence this case shall not constitute a precedent in this regard. See Wood v. State, 169 Miss. 790, 142 So. 747 (1932).


author: SHORES, Justice. MADDOX, Justice

text:
    BOARD OF COM’RS OF the ALABAMA STATE BAR v. STATE ex rel. William J. BAXLEY, Attorney General, et al.
    SC 1207.
    Supreme Court of Alabama.
    Dec. 4, 1975.
    Rehearing Denied Jan. 9, 1976.

      M. R. Nachman, Jr., William H. Morrow, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Winston T. Lett, and Jerry L. Weidler, Asst. Attys. Gen., for the State, appellee.
   SHORES, Justice.

The attorney general filed a bill for declaratory judgment against the Board of Commissioners of the Alabama State Bar (hereinafter Board) for a. determination that Act No. 750, Acts of Alabama 1973, Regular Session, page 1123, approved August 30, 1973, is constitutional; that the Board be required to comply with the act; and that Rule IV(D) of the Rules Governing Admission to the Bar of Alabama is unconstitutional. Act No. 750 provides in part:

“Section 1. Any rule, regulation or law limiting the number of times that any person, otherwise qualified may apply for and stand the Alabama Bar Examination at any regular examination session is hereby prohibited. However, no applicant may take the examination more than three (3) times in any three (3) year period.”

Since 1934, the Board of Commissioners of the Alabama State Bar has followed the practice of limiting to three the number of times one may sit for the bar examination. Rule IV(D), as it now exists, was passed by the Commissioners on July 22, 1961, and provides:

“No applicant shall be permitted to take the examination, under these rules, more than three times unless subsequent applications by such applicant are approved by the Board of Commissioners of the Alabama State Bar.”

The complaint was dismissed for lack of an actual controversy of justiciable character and because of a lack of jurisdiction over the subject matter. Subsequently, two persons were allowed to intervene who had failed the bar examination three times and were not allowed to take it for a fourth time under the provisions of Act No. 750.

The trial court observed the long history of legislative enactments governing admission to the bar. and the lack of any standards adopted by the courts of Alabama and concluded that Act No. 750 was constitutional. From this judgment the Board appealed.

It is the contention of the Attorney General and intervenors that the legislature may exercise regulation over bar examinations if such regulation does not impair the judicial branch’s exercise of its inherent functions; that the legislature has done so for over fifty years; that the judiciary has acquiesced in such regulation; and that the Board is a legislatively created authority and not an arm of the Supreme Court.

The Board submits that Act No. 750 violates Sections 42 and 43 of the Alabama Constitution as an attempted exercise by the legislature of judicial functions and as an invasion of the inherent powers of the judiciary; that the legislature may establish only minimum standards for the practice of law; that the Board is an arm of the Supreme Court and its standards for admission are court-made rules. It also argues that Act No. 750 is unconstitutionally vague, uncertain, arbitrary, and capricious.

The single issue presented by this appeal is whether establishing rules governing admission to the bar is a judicial function and, if so, is the legislature, by Act No. 750, exercising a judicial function in violation of the admonitions and prohibitions contained in Sections 42 and 43 of the Constitution of 1901.

These sections of the Constitution provide in part:

“Section 42. The powers of the government of the State of Alabama shall be divided into three distinct departments . . . legislative executive . . . judicial . . .”
“Section 43. In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them..."

The Board of Commissioners of the Alabama State Bar was created by Act No. 133, General Acts of Alabama 1923, page 100, approved August 9, 1923 (Code of Alabama 1940, Title 46, § 21). This act was found by this court to be constitutional in Ex parte Thompson, 228 Ala. 113, 152 So. 229 (1933). In that case, this court looked to Section 139 of the Alabama Constitution, which provided:

“The judicial power of the state shall be vested in the senate sitting as a court of impeachment, a supreme court, circuit courts, chancery courts, courts of probate, such courts of law and equity inferior to the supreme court, and to consist of not more than five members, as the legislature from time to time may establish, and such persons as may he by law invested with powers of a judicial nature . . . ” (Emphasis added)

The court recognized that the powers conferred on the Board were judicial in character, but concluded that under Section 139 of the Constitution there was express authority for creating the Board and conferring on it judicial functions. However, the court noted that “ . . . the rules and regulations which may be formulated and adopted by the board shall not become effective until the same shall have received the approval of this court, and the right of this court to approve or disapprove all or any part of the rules so formulated and adopted by the board is fully reserved to this court. . . (Emphasis Added) Ex parte Thompson, supra, at 124-25, 152 So. at 238. And in this same opinion, at page 126, 52 So. at page 240, referring to this court’s power and responsibility to admit and disbar attorneys, the court said “ ‘. . . This inherent power of the court cannot be defeated by the legislative or executive department. . .

It is true that this court has recognized legislative power to prescribe minimum requirements for admission to the bar so long as they do not interfere with the inherent power of the court to determine who shall practice before it. Ex parte Dozier, 262 Ala. 197, 77 So.2d 903 (1955). But the fact that this court has not been as active in formulating rules governing admission to the bar (as it has in adopting rules governing the practice of law) but rather has left this function largely to the Board of Bar Commissioners, acting on its behalf, does not mean that it has abrogated its authority and responsibility to the legislature, if in fact such power is inherent to the judiciary. In fact, it cannot relinquish its authority to another branch of government under the express provisions of the constitution of this state.

The Supreme Court of Georgia, responding to a charge similar to the one made here, that judicial acquiescence in legislative activity in this area has diluted the court’s inherent power, said that judicial recognition of such legislative acts did “. . . not mean that this court intended to, or even could, relinquish this judicial responsibility to the legislature.” Wallace v. Wallace, 225 Ga. 102, 111-12, 166 S.E.2d 718, 724 (1969).

This brings us to the question of whether regulation of admission to the bar is an “inherent” power of the judiciary. It has been said that “What constitutes judicial power, within the meaning of the constitution, is to be determined in the light of the common law and of the history of our institutions as they existed anterior to and at the time of the adoption of the constitution.” State v. Harmon, 31 Ohio St. 250, 258 (1877).

A brief examination of the common-law history of regulating admissions to the bar and the practice of law reveals a division of responsibilities in the English legal profession. In the early days of the profession there was the “attorney,” who served as a substitute for the litigant and the “advocate” or “barrister” who supported one’s “. . . cause by his learning, ingenuity and zeal.” 2 W. Holdsworth, A History of English Law 311 (4th ed. 1936). In 1292, Edward I decreed that admissions to the profession should be regulated and delegated to his justices the task of appointing as attorneys those with sufficient learning and skill. Rolls of Parliament, i. 84, cited in Vol. I, F. Pollock & F. W. Maitland, The History of English Law 216, n. 2 (2d ed. 1898).

By 1403, the increasing number of attorneys forced Henry IV to order his justices to examine all attorneys and put on the roll only those with good character and sufficient learning. 4 Henry IV, c. 18. See also Lee, The Constitutional Power of the Courts Over Admission to the Bar, 13 Harv.L.Rev. 233 (1899). The courts also issued orders regulating the conduct of the profession as evidenced by orders issued in 1452. Praxis Utriusque Banci 26, cited in 2 W. Holdsworth, A History of English Law 505, n. 3 (4th ed. 1936). While Parliament legislated in this regard with respect to the numbers to be allowed admission as attorneys, Parliament did not attempt to determine the amount of learning or qualifications to be required of an attorney.

The barristers were also subject to court control, though some argue only indirectly. See Comment, Admission to the Bar and the Separation of Powers, 7 Utah L.Rev. 82 (1960-61). The barristers came from educational societies called the Inns of Court. The barrister’s call to the bar came from the Inns of Court; however, if the Inns refused to call a person to the bar, the remedy was an appeal to the judges. Lee, The Constitutional Powers of the Courts Over Admission to the Bar, supra, at 240.

Additionally, the judges regulated the number of students admissible to the Inns —and thus the number admissible to the bar — the course of study, and even morals and mode of dress. See Note, Legislative or Judicial Control of Attorneys, 8 Fordham L.Rev. 103, 104 (1939): Indeed, there is speculation that the Inns were developed through the efforts of judges and serjeants to improve the profession. Hold-sworth, supra, at 496.

It has been observed “The English courts from time to time, by virtue of their own rules, without any legislation, regulated the admission and disbarment of attorneys.” Lee, The Constitutional Power of the Courts Over Admission to the Bar, supra, at 244.

Various rules adopted from 1573 to 1704 can be found in Maugham on Attorneys, 15-20, App. XIV-XX (1825). Lee, supra, at 244. Parliament legislated upon the subject, but the legislation was to exclude the unfit. The statutes always recognized the admission of attorneys as a matter of judicial discretion. Lee, supra, quoting Maugham, Attorneys and Solicitors 9 (1825).

It thus appears that “. . . although the profession had. its origin and mature development in a country where constitutional divisions of government were unknown, its supervision and control at every stage were handed over to the judges, until by long continued use they came to constitute recognized prerogatives belonging to the judiciary. . . .” Green, The Courts’ Power Over Admission and Disbarment, 4 Tex.L.Rev. 1, 7 (1925).

It is clear, therefore, that for several centuries, the English considered the regulation of admission to practice before the courts to be a judicial function, exercisable only by the courts.

In this country, unlike England, it is a characteristic of both the national and state governments to divide governmental functions into three distinct, separate and equal branches. One cannot read The Federalist papers without being struck with the concern and attention which the framers of our constitution devoted to the principle of separation of powers. It was agreed by all “ . . . that the legislative, executive, and judiciary departments ought to be separate and distinct.” The Federalist No. 47 (J. Madison).

Thomas Jefferson believed that concentrating the powers of the three departments in the same hands was precisely the definition of despotic government.” (Notes on the State of Virginia, p. 195, quoted in The Federalist No. 48 (J. Madison). He said that that was not the form of government for which this country fought but rather “. . . one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others. For this reason, that convention which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive and judiciary departments should be separate and distinct . . .”

In commenting on Jefferson’s draft of a constitution for Virginia, which like Alabama’s, contains a provision for separation of powers, the author of The Federalist No. 49 (Hamilton or Madison) said:

“The plan [for three equal but separate branches of government] marks a turn of thinking, original, comprehensive, and accurate; and is the more worthy of attention as it equally displays a fervent attachment to republican government and an enlightened view of the dangerous propensities which it ought to be guarded. . . . ”

Unquestionably, the establishment of three separate but equal and independent branches of government was considered by the writers of the American Constitution as essential to a republican form of government, guaranteed to the states by Article IV, Section 4. One writer has said that there are four essential characteristics of a republican form of government.

1) The existence of the ultimate sovereignty in the body politic;
2) The expression of the popular will by the method of representation;
3) Subservience of the entire group to the will of the majority; and
4) The independency of the executive, legislative, and judicial departments of government. Ingham, Republic in Form, 34 Dickinson L.Rev. 193 (1930).

The framers of the Constitution of the United States believed that the real danger in disturbing the system of checks and balances provided for in the separation of the government into three equal branches was the danger of changing the form of government to something other than the republican form. This division of power, and the system of checks and balances inherent in it, is said to be America’s chief contribution to the science of government. State v. Fulton, 99 Ohio St. 168, 124 N.E. 172 (1919). The Supreme Court of the United States, speaking through Justice Miller in Kilbourn v. Thompson, 103 U.S. (13 Otto) 168, 190, 26 L.Ed. 377 (1880), said on the subj ect:

“It is believed to be one of the chief merits of the American system of written constitutional law, that all the powers intrusted to government, whether State or national, are divided into the three grand departments,, the executive, the legislative, and the judicial. ...”

Does regulation of admission to practice law fall within the judicial function? In Ex parte Secombe, 60 U.S. (19 How.) 9, 13, 15 L.Ed. 565 (1856), the Supreme Court found it to be “. . . well settled . that it rests exclusively with the court to determine who is qualified to become one of its officers, as an attorney and counsellor, and for what cause he ought to be removed. . . .”

In Ex parte Garland, 71 U.S. (4 Wall.) 333, 18 L.Ed. 366 (1866), the Supreme Court was careful to note that admission to the bar “. . . is not ... a mere ministerial power. It is the exercise of judicial power, and has been so held in numerous cases. . . .” (71 U.S. (4 Wall.) at 378-79).

“ ‘The practice of law is so intimately connected with the exercise of judicial power in the administration of justice that the right to define and regulate the practice naturally and logically belongs to the judicial department of state government.’ . . .” Rowen v. LeMars Mut. Ins. Co. of Iowa, 230 N.W.2d 905, 914 (Iowa 1975).

In every state of the union the judiciary exercises regulatory control in admissions to the bar.

Act No. 750, attempting as it does, to remove standards for admission to the bar established by the Board of Bar Commissioners of the Alabama State Bar, acting as an arm of this court, is an effort to perform a judicial function in contravention of Section 43 of the state constitution. This act, unlike Act No. 133 creating the Board of Bar Commissioners found constitutional by this court in Ex parte Thompson, supra, does not invest “persons” with “powers of a judicial nature” as permitted by Section 139 of the Constitution, but instead is an effort by the legislature itself to exercise powers of a judicial nature. This act is not, as the attorney general claims, merely “ . . . amendatory legislation to the statutes creating the Board to further define its regulatory and administrative duties.” The act is in direct conflict with Rule IV(D) promulgated by the Board in aid of this court and, as such, is a direct encroachment upon the undisputed inherent power of this court to determine who shall practice before it. Act No. 750 removes minimum standards established by the Board as an arm of this court.

We have repeatedly held, as recently as April 10, 1975, in Simpson v. Alabama State Bar, 294 Ala. 52, 311 So.2d 307, 309:

“ . . . The Board was created in aid of this court, which has the inherent jurisdiction to admit attorneys to the practice of law and to suspend or disbar them. . . . ”

Although the Board was created by the legislature, it was created as an arm to this court and any action by the Board is subject to review or approval by this court. The legislature has not created an entity which is not subject to control or regulation, the Board is subject to the control of this court. Act No. 750 would dilute that control, and hence invades the judicial sphere.

“ . . . Each department, in our beautiful system of government, has its own appropriate sphere, and so long as it confines itself to its own orbit the machinery of government moves without friction.” Petition of Splane, 123 Pa.St. 527, 540, 16 A. 481, 483 (1889).

This court is compelled, under our system of government, to guard against such encroachments by one branch of government into the sphere reserved to another equal branch. We hold, therefore, that Act No. 750 violates Sections 42 and 43 of the Constitution of 1901.

The intervenors and the attorney general point out, and it is not contested by the Board, that Rule IV(D) is not absolute, as it now stands, and provides for examinations in excess of three upon approval by the Board. The record shows that in the past ten years three applicants have been permitted to take the bar examination more than three times, upon a showing of “extraordinary, mitigating circumstances.” Of these three, only one applicant passed the examination. The intervenors complain of the absence of a specific written rule spelling out what constitutes “extraordinary, mitigating circumstances.”

Approximately two-thirds of the states in this country provide for a limited number of times which an applicant may stand for the bar examination. Many provide for three times, as does Alabama. Some of these states, in allowing an additional attempt, require approval of the various boards, some require approval of the Supreme Court, and some require the passage of time between the last permitted attempt and any subsequent one which may be allowed. Many require a showing of additional study as a condition to applying for permission to take the examination in excess of the times permitted.

We are in agreement with the in-tervenors that, whatever standards are used to determine whether an applicant should be allowed to take the examination in excess of three times, those standards must comport with equal protection and due process safeguards. The Supreme Court of the United States has said, “We recognize the importance of leaving States free to select their own bars, but it is equally important that the State not exercise this power in an arbitrary or discriminatory manner . . . ” Konigsberg v. State Bar of California, 353 U.S. 252, 273, 77 S.Ct. 722, 733, 1 L.Ed.2d 810 (1957).

However, these intervenors have not shown that the Board has acted arbitrarily or discriminatorily in denying them permission to take the bar examination in excess of three times, nor have they shown any extraordinary or mitigating circumstances which would bring them within the existing criteria, as general as it is. They base their application tO’ take the examination a fourth time squarely upon Act No. 750. That act is in violation of the Constitution of Alabama. Therefore, the inter-venors must, if they wish to persist in their efforts to gain permission to stand for the bar another time, show that some mitigating circumstances exist which are sufficient to persuade the Board, acting without capriciousness or discrimination, to permit them, or either of them, an additional examination.

The Board, should the intervenors or either of them apply for permission to take the bar examination another time, must determine upon the facts of each case, whether either or both intervenors have shown sufficient, extraordinary or mitigating circumstarices as to indicate that circumstances existed at the last three examinations as to make it unlikely that the applicant(s) has been fairly tested as to his competency to practice law in this state, or whether subsequently the applicant (s) has acquired additional training which would render him more likely to be successful in a fourth effort to meet the requirements for admission to the bar of this state, or other good and valid reasons.

The judgment appealed from is reversed and one is here rendered in favor of appellant.

Reversed and rendered.

HEFLIN, C. J., and MERRILL, BLOODWORTH, FAULKNER, JONES, ALMON and EMBRY, JJ., concur.

MADDOX, J., concurs specially.

MADDOX, Justice

(concurring specially.)

I concur specifically in that portion of the majority opinion which holds that this Court has the inherent power to govern admission to the Bar.

By concurring specially, however, I do not wish to be understood as saying that I believe that the policy expressed by the legislature of allowing an applicant to take the examination more than three times is necessarily unreasonable. The applicants here, however, do bottom their right to take the examination the fourth time solely on the provisions of Act 750, and the Act does, in fact, conflict with the Bar rule. Consequently, it is my opinion that this Court must ultimately determine whether the Bar rule, or its application, denies an applicant equal protection of the laws or due process.

If the majority opinion denied the applicants the right to continue to show themselves qualified to practice law, I would have to disagree with that conclusion. But since the applicants are given an opportunity to apply again to take the examination, the way is still open for them to test not only the rule, but also its application in their individual cases, and it is my own personal opinion that if they are rejected, they may then petition this Court to review the matter in the same manner in which we review disciplinary proceedings. Cf. Ex parte Weinberg, 281 Ala. 200, 201 So.2d 38 (1967).

Another reason why I concur specially is that I believe that the new Judicial Article, (Amendment 328, Constitution of Alabama, 1901, carried as Article VI in Vol. I of Michie’s Code of Alabama 1940, Recompiled 1958, 1973 Cumulative Supplement) is controlling. In other words, the new Judicial Article restructured the court system and redistributed the “judicial power” of this state, and I believe that this case and future cases must be governed by the Article’s provisions.

I also feel compelled to point out, gratuitously, I suppose, that I believe that these intervenors have certain inalienable rights and that one of these is the right to practice law, if they are qualified. Justice Collier, In Matter of Dorsey, 7 Porter 293, 381 (1838), discussed the free choice of a citizen to practice law if he so desires. He wrote:

“It may be again said, that there is no deprivation of life, liberty or property, consequent on a refusal to take the oath. I answer, that the law itself presumes the right to practice law, a valuable right, as it confers it as a boon, on those who can, and are willing to take the oath. Can it be seriously contended, that it is not a valuable right, and as deserving of protection as property? Suppose the right to practice law, was confined to a particular class or order of men, by law, would it not be esteemed a most valuable privilege? And if the right of entering this fraternity could be purchased with money, would it not command a high price? I think there can be no doubt of it; and if so, exclusion from it must be the privation of a valuable right; as worthy of the protection of the law, as property? I think, therefore, that in this view, the law in question, is contrary to the spirit, the plain intent, and meaning of that part of the tenth section of the bill of rights, which provides, that ‘no one shall be deprived of life, liberty, or property, but by due course of law.’
“I am also of opinion, that the act in question, so far as it prescribes an ex-purgatory oath, as a condition to the practice of law in this State, (though passed with the most laudable motives,) is contrary to the very scope and design of a free government. The most arbitrary and vexatious inventions of tyranny, are those regulations of law, which interfere with the domestic concerns of society, by preventing the citizen from the pursuit of happiness in his own mode. The ‘pursuit of happiness’ is asserted in the Declaration of Independence, to be an inherent right; and is promulgated as a self-evident truth. And certainly if that expression means anything, it must include the right to select which of the various avocations or pursuits in life, a young man will engage in; his future destiny, and his value to the State, as one of its members, demands the utmost freedom of choice; and it is, therefore, of the highest importance, in a free government, that this right of choice should not be impaired.

I agree with Justice Collier, that any law or rule must not unreasonably impair a citizen’s right to make his choice of a profession.

      . Section 139 of the Constitution of 1901 has now been superseded by Amendment 328 to the Constitution of 1901 — proclaimed ratified December 28, 1973. (See specifically Article VI, § 6.01(a) and (b).)

      . 1. Alabama — In re Sullivan, 283 Ala. 514, 219 So.2d 346 (1969) ;
      2. Alaska — Application of Houston, 378 P.2d 644 (Alas.1963) ;
      3. Arkansas — McKenzie v. Burris, 255 Ark. 330, 500 S.W.2d 357 (1973) ;
      4. Arizona — In re Bailey, 30 Ariz. 407, 248 P. 29 (1926) ;
      5. California — Brydonjack v. State Bar of California, 208 Cal. 439, 281 P. 1018 (1929) ;
      6. Colorado — In re Bar Association, 137 Colo. 357, 325 P.2d 932 (1958) ;
      7. Connecticut — Heiberger v. Clark, 148 Conn. 177, 169 A.2d 652 (1961) ;
      8. Delaware — In re Member of Bar, 257 A. 2d 382 (Del.Supr.1969) ;
      9. Florida — Fuller v. Watts, 74 So.2d 676 (Fla.1954) ;
      10. Georgia — Wallace v. Wallace, 225 Ga. 102, 166 S.E.2d 718 (1969) ;
      11. Hawaii — In re Integration of Bar of Hawaii, 50 Hawaii 107, 432 P.2d 887 (1967) ;
      12. Idaho — Application of Kaufman, 69 Idaho 297, 206 P.2d 528 (1949) ;
      13. Illinois — In re Anastaplo, 3 I11.2d 471, 121 N.E.2d 826 (1954) ;
      14. Indiana — State v. Moritz, 244 Ind. 156, 191 N.E.2d 21 (1963) ;
      15. Iowa — Rowen v. LeMars Mut. Ins. Co. of Iowa, 230 N.W.2d 905 (Iowa 1975) ;
      16. Kansas — State v. Schumacher, 214 Kan. 1, 519 P.2d 1116 (1974) ;
      17. Kentucky — Ky.Rev.Stat., Tit. 4, § 30.030;
      18. Louisiana — Ex parte Steckler, 179 La. 410, 154 So. 41 (1934) ;
      19. Maine — Application of Eeingold, 296 A.2d 492 (Maine 1972) ;
      20. Maryland — Public Serv. Commission v. Hahn Transportation, Inc., 253 Md. 571, 253 A.2d 845 (1969);
      21. Massachusetts — Collins v. Godfrey, 324 Mass. 574, 87 N.E.2d 838 (1949) ;
      22. Michigan — Ayres v. Hadaway, 303 Mich. 589, 6 N.W.2d 905 (1942) ;
      23. Minnesota — Sharood v. Hatfield, 296 Minn. 416, 210 N.W.2d 275 (1973) ;
      24. Mississippi — Mississippi State Bar v. Collins, 214 Miss. 782, 59 So.2d 351 (1952) ;

        25. Missouri — Ciarle v. Austin, 340 Mo. 467, 101 S.W.2d 977 (1936) ;
      26. Montana — In re Unification of Montana Bar Ass’n, 107 Mont. 559, 87 P.2d 172 (1939) ;
      27. Nebraska — State ex rel. Ralston v. Turner, 141 Neb. 556, 4 N.W.2d 302 (1942) ;
      28. Nevada — Petition of Batten, 83 Nev. 265, 428 P.2d 195 (1967) ;
      29. New Hampshire — Harrington's Case, 100 N.H. 243, 123 A.2d 396 (1956) ;
      30. New Jersey — New Jersey State Bar Ass’n v. Northern N. J. Mtg. Asso., 32 N.J. 430, 161 A.2d 257 (1960) ;
      31. New Mexico — Application of Sedillo, 66 N.M. 267, 347 P.2d 162 (1959) ;
      32. New York — N. Y. Const., Art. 3, § 531 (1938);
      33. North Carolina — Gen.Stat. of N.C., Tit. 84, § 84-23; § 84-36 (1975) ;
      34. North Dakota — N.D.Stat., Tit. 27, § 27-11-02 (1960) ;
      35. Ohio — Judd v. City Trust é Savings Bank, 133 Ohio St. 81, 12 N.E.2d 288 (1938) ;
      36. Oklahoma — Re Bledsoe, 186 Okl. 264, 97 P.2d 556 (1939) ;
      37. Oregon — In re Crum, 103 Or. 296, 204 P. 948 (1922) ;
      38. Pennsylvania — In re Olmsted, 292 Pa. 96, 140 A. 634 (1928) ;
      39. Rhode Island — Creditors’ Serv. Gorp. v. Cummings, 57 R.I. 291, 190 A. 2 (1937) ;
      40. South Carolina — Code of S.C., Tit. 56, § 56-96 (1972) ;
      41. South Dakota — In re Ilosford, 62 S.I). 374, 252 N.W. 843 (1934) ;
      42. Tennessee — Cantor v. Brading, 494 S. W.2d 139 (Tenn.1973) ;
      43. Texas — Burns v. State, 76 S.W.2d 172 (Tex.Civ.App.1934) ;
      44. Vermont — Taft v. Taft, 82 Yt. 64, 71 A. 831 (1909);
      45. Utah — Nelson v. Smith, 107 Utah 382, 154 P.2d 634 (1944) ;
      46. Virginia — Code of Va., Tit. 54, § 48 (1950) ;
      47. Washington — In re Bruen, 102 Wash. 472, 172 P. 1152 (1918) ;
      48. West Virginia — West Virginia State Bar v. Earley, 144 W.Va. 504, 109 S.E.2d 420 (1959) ; *
      49. Wisconsin — In re Cannon, 206 Wis. 374, 240 N.W. 441 (1932) ;
      50. Wyoming — Wyoming Stat., Tit. 33, § 40 (1997).


author: JONES, Justice.

text:
    Ellis L. BRUNER and Frances L. Bruner v. Clarence J. HINES and Laura Hines.
    SC 1121.
    Supreme Court of Alabama.
    Dec. 4, 1975.
    Rehearing Denied Jan. 9, 1976.

      Craig Miller, Montgomery, for appellants.
    James W. Garrett, Jr., Montgomery, for appellees.
   JONES, Justice.

This is an appeal from the denial of a purchaser’s suit for specific performance of a contract to convey land. We reverse and remand.

In 1973, Ellis and Frances Bruner began to negotiate with Clarence and Laura Hines for the sale of 15 acres of land fronting the Mobile Highway in Montgomery County commonly known as Swann Trailer Park. During these negotiations Hines, the seller, accompanied Bruner, the purchaser, to the site of the property. Bruner pointed out the property he wanted. Bruner later showed Hines a rough plat of the land which had been drawn from a tape measurement done by Bruner and his wife. The tape measurement showed 366 feet road frontage, but Bruner told Hines that was only an estimate and might vary by 10 feet either way.

In August, 1973, the Bruners and the Hines executed a written conract for sale of the IS acres. The contract included the “rough plat” done by Bruner and his wife, but the plat was understood by both parties not to be an exact description of the land. The contract provided that the purchaser would pay $15,000, of which $3,000 was a downpayment, furnish a survey of the land by a registered civil engineer, and install a fence along the surveyed line within 60 days. The parties agreed that the description of the 15 acres as furnished by the surveyor would constitute the 15 acres contracted to be purchased. Time was stipulated to be of the essence.

Shortly after the contract was signed, Bruner, the purchaser, employed a civil engineer named Mr. Cleghorn to survey the property. The Cleghorn survey was submitted to Hines’s attorney who rejected it because Cleghorn’s certification had expired.

The purchaser then hired a civil engineer named Mr. Garrett to survey the property. Because of a dispute about working conditions, the purchaser fired Garrett before his survey was complete..

Finally, the purchaser hired a civil engineer named Mr. Blalock. Blalock’s certification was in order and his survey was completed and submitted within the sixty-day period provided by the contract.

The fence required by the contract was originally installed along the Cleghorn survey, but was later moved slightly to comply with the Blalock survey. The final survey included 15.1 acres with 376.5 feet of road frontage. The purchaser offered the seller $500 for the additional 0.1 acre.

The seller refused to convey, claiming that the buyer’s survey did not comply with the contract. This refusal, says the seller, can be supported by the doctrine of constructive conditions of exchange. Since the contract required the buyer to furnish the survey before it required the seller to convey, the buyer’s survey was a condition precedent to the seller’s duty to convey. The seller contends further that the buyer failed to comply with the survey requirement before the sixty-day period expired; therefore, his duty to convey never became enforceable.

The validity of the seller’s arguments depend upon two issues. First, did the survey furnished by the buyer constitute a breach of his contractual obligations? Second, if the buyer did breach the contract, was his breach so material that it discharged the seller’s duty to convey ?

Our inquiry into these issues must begin with the contractual language relating to the survey. The contract identifies the 15-acre plot by a rough drawing which is attached to the contract, but it stipulates that the exact description will be provided by a survey which will be furnished several weeks after the formal agreement is consummated. The survey description is the description to be used in the deed and the purchase money mortgage. The contract does not include the normal words of approximation, such as, “15 acres more or less.”

Words of approximation have legal significance in Alabama. In the case of Hodges v. Denny, 86 Ala. 226, 5 So. 492 (1888), this Court classified contracts for the sale of land into two categories— sales of specific tracts and sales of specified quantities. Regarding specified quantity sales, such as the sale in the instant case, the Court said that the words “more or less” had the effect of qualifying the contractual description of the land to allow for small variances in quantity due to “errors in surveys or variations in instruments.” The words of approximation place the risk of such small errors on both parties in specific quantity sales and prevent either party from obtaining an adjustment in the purchase price.

The corollary of this rule is found in Bankhead v. Jackson, 257 Ala. 131, 57 So.2d 609 (1952), where the Court said: “A contract of sale by the acre is one wherein a specified quantity is material. Under such a sale, the purchaser does not take the risk of any deficiency and the vendor does not take the risk of any excess.”

Since the Hines-Bruner contract included no words of approximation, we must conclude, as the Bankhead Court did, that exact acreage is material. Thus, we interpret the survey provisions of the contract to require the buyer to return a survey for exactly 15 acres.- When the buyer furnished a survey for 15.1 acres, he partially breached the contract.

Our finding that the buyer partially breached his contract brings us to the second issue, which is whether the seller was thereby released from his duty to convey. To preclude the buyer from enforcing the seller’s promise to convey, the seller must establish that the buyer’s breach was material. Conversely stated, to enforce the seller’s promise, the buyer must prove that the survey he furnished substantially performed his contractual obligations. The test for materiality of a partial breach is set out in Western Union Telegraph Co. v. Tersheshee, 230 Ala. 239, 160 So. 233 (1935). In that case, the Court said:

“. . . where there is a breach of a dependent covenant, a condition precedent, which goes to the whole consideration of the contract, the injured party has a right to rescind dnd recover damages for a total breach. But a breach of an independent covenant which does not go to the whole consideration of a contract, but which is subordinate and incidental to the main purpose, does not constitute a breach of the entire contract or warrant its recission by the injured party, and his remedy for a breach is compensation for damages.”

The main purpose of the contract between Hines and Bruner is not to furnish a survey, it is to convey land. The survey is incidental to the conveyance. The pivotal question, therefore, is whether the survey which Bruner furnished was so inaccurate that it defeated the main purpose of the contract — the conveyance. We believe that the doctrine of substantial performance is applicable to this problem.

The doctrine of substantial performance, which is now most commonly associated with building construction contracts, was actually introduced in Anglo-American jurisprudence in a land-sale case, Boone v. Eyre, 1 H.B1. 273, 126 Eng.Rep. 160, Note (K.B.1777). This Court has said that “substantial performance does not contemplate a full or exact performance in every slight or unimportant detail, but performance of all important parts.” Miles v. Moore, 262 Ala. 441, 79 So.2d 432 (1955); Wilson v. Williams, 257 Ala. 445, 59 So.2d 616 (1952).

In order to decide whether Bru-ner’s survey constituted substantial performance of his contractual duties, it is necessary to analyze the policy considerations behind the doctrine. The doctrine arose to mitigate the harsh results that could flow from constructive conditions of exchange in those contracts which require one party to render performance before the other party’s reciprocal promise is enforceable. If constructive conditions had to be literally performed, the party whose duty is enforceable only after his promi-sor’s performance is rendered would have an absolute defense to an action on the contract whenever a trivial portion of his promisor’s performance is incomplete.

A good example of how the doctrine of substantial performance operates to prevent such injustice is found in the building construction situation. The doctrine is especially useful in building contracts because of the difficulty of reproducing on the construction site the precise specifications of blue print drawings. Often comparable materials of different brands will have to be substituted for specified but unobtainable brands, and foundation specifications on drawings will bend somewhat to the realities of pouring concrete. If the owner’s duty to pay were strictly conditioned upon literal compliance with the contract, construction contractors would rarely be paid because dissatisfied owners could usually point to some discrepancy between the contract specifications and the finished product. Under the substantial performance doctrine, the builder may be held liable in damages for any discrepancy, but if his performance substantially fulfills the main purpose of the contract, he can enforce the owner’s promise to pay.

There is an analogy between the building contract situation and the instant case. In the instant case, the seller rejected the buyer’s survey because it showed 10 feet more road frontage than the rough plat and contained 0.1 acre more area than the contract specified. A professional surveyor testified at the trial that no two surveys of the same land will be identical. He also testified that the cost of obtaining a survey which would absolutely comply with the contract’s specifications would be prohibitive, and that the custom in the surveying profession is to accept as accurate surveys which do not exactly meet prescribed acreage. When his testimony is considered in light of the facts that the rough plat’s road frontage was measured with a steel tape, not survey equipment, and its recital of IS acres was only the buyer’s best estimate, it is obvious that the seller’s promise to convey should not be strictly conditioned upon the buyer’s duty to furnish a survey identical to the rough plat.

If the enforceability of the seller’s promise were so conditioned, the seller could continue to point out discrepancies in the buyer’s survey and put the buyer to tremendous expense resurveying the land. The facts of this case indicate that the buyer under this contract, much like the builder under a construction contract, would be at an unfair disadvantage if he were required to fully and exactly perform all of his contractual duties before he. could enforce any of his contractual rights.

The question of substantial performance is determined with reference to the existing facts and circumstances of each case. Wilson v. Williams, supra; Gray v. Wood, 220 Ala. 587, 127 So. 148 (1930). In this case, since the survey was incidental to the main purpose of the contract, and since the surveying profession accepts as accurate surveys with small deviations, we hold that the buyer substantially performed his obligations under the contract when he furnished the Blalock survey. Thus, the seller’s promise to convey became enforceable within the' 60-day contract period and the seller is now in default.

The doctrine of substantial performance is a necessary inroad on the pure concept of freedom of contracts. The doctrine recognizes countervailing interests of private individuals and society; and, to some extent, it sacrifices the preciseness of the individual’s contractual expectations to society’s need for facilitating economic exchange. This is not to say that the rule of substantial performance constitutes a moral or ethical compromise; rather, the wisdom of its application adds legal efficacy to promises by enforcing the essential purposes of contracts and by eliminating trivial excuses for nonperformance.

Because both the individual and societal interests are vital coordinates in a private enterprise system, the compromise of full performance should be kept minimal, and compensation should be paid whenever a party’s bargained for exchange is not fulfilled. In this case, the seller bargained to sell fifteen acres — no more, no less. We have held that the buyer’s survey for 15.1 acres, although it breached the contract, so closely approximated the contract’s survey requirement that it constituted substantial performance. Such a holding, however, does not mean that the seller must now convey 15.1 acres with 376 feet of road frontage for the original price of $15,000. Substantial performance of the survey requirement must be distinguished from modification of the contract .to conform with the survey. The original terms of exchange remain in force.

On remand, the trial Court should reopen the case for a determination of the boundary lines of the property to be conveyed. If the trial Court finds that the buyer’s survey is as accurate a description of the property as practicable, the Court should determine the value of the additional 0.1 acre and assess that amount against the buyer as damages for partial breach. If the trial Court finds that the buyer’s survey is not as accurate as practicable, the Court should determine the most accurate description and enter a decree for specific performance upon that description along with any sums of money which may be necessary to compensate either party for deviations from 15.0 acres.

Reversed and remanded.

HEFLIN, C. J., and MERRILL, MADDOX and SHORES, JJ., concur.

      . See also 3A Corbin on Contracts, § 701 at 312 (1960), and Senick v. Lucas, 234 Md. 373, 199 A.2d 375 (1964), for other authority applying the substantial performance doctrine to land-sale cases.

      . gee generally, Calamari and Perillo, The Law of Contracts, § 157, at 248 (1970).

      . Jacob & Youngs v. Kent, 230 N.Y. 239, 129 N.E. 889, 23 A.L.R. 1429 (1970).

      . Kizziar v. Dollar, 268 F.2d 914 (10th Cir.1959).


text:
    Mary HUGHES v. W. G. NEWTON.
    SC 1323.
    Supreme Court of Alabama.
    Nov. 6, 1975.
    Rehearing Denied Jan. 9, 1976.

      Grover S. McLeod, Birmingham, for appellant.
    Lyman H. Harris, Birmingham, for ap-pellee.
   JONES, Justice.

In the absence of statutory authorization to intervene in a third-party action under Tit. 26, § 312, Code, does the trial judge’s order permitting intervention on behalf of the workmen’s compensation insurance carrier pursuant to Rule 24, ARCP, constitute an abuse of discretion? Within the narrow factual context giving rise to this pivotal issue, we hold that the overruling of the motion to strike the petition for intervention was reversible error. We reverse and remand.

The essential facts are not in dispute. For personal injury incurred while employed by Mountain Brook Cleaners, a corporation, Mary Hughes was paid $2,-982.56 in workmen’s compensation benefits by the employer’s insurance carrier, Employer’s Casualty Company. She then filed a third-party action against W. G. Newton, the principal executive officer of Mountain Brook Cleaners, claiming negligent operation of defective machinery. Employer’s, who was also Newton’s liability insurance carrier, petitioned to intervene as a party plaintiff.

The employee-plaintiff moved to strike the intervention on the ground that, absent statutory authority, the granting of intervention constituted an abuse of discretion in that Employer’s should not be permitted to sit on both sides of the counsel table. Central to this argument is the proposition that a party cannot sue himself. Hagood v. Goff, 208 Ala. 642, 95 So. 21 (1923).

Employer’s contention is basically twofold:

1. The 1947 amendment of § 312, eliminating the express right to intervene, did not have the effect of proscribing intervention.

2. Rule 24, ARCP, either permits intervention as a matter of right or vests in the trial court wide discretion in allowing intervention which has not here been abused.

As to the first contention, we agree that the 1947 amendment does not have the legal effect of prohibiting intervention; rather, § 312, as amended, expressly retaining the right of reimbursement and omitting any reference to intervention, merely recognizes that the right to be reimbursed is not dependent upon the right of intervention.

Since the compensation carrier’s right to intervene is neither statutorily authorized, nor statutorily prohibited, we look now to Rule 24.

Rule 24(a)(2)—Intervention of Right— permits a party to intervene “when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”

Rule 24(b)(2)—Permissive Intervention —permits a party to intervene “when an applicant’s claim or defense and the main action have a question of law or fact in common. ... In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.”

We believe there is a narrow field of operation under these two subsections of Rule 24 for discretionary permission to intervene in third party actions under § 312. Therefore, we shall return momentarily to a discussion of the guidelines for the exercise of this discretion applicable to the ordinary case.

The extraordinary facts of the present case, however, constrain us to hold that there is no field of operation for the discretionary allowance of intervention where the insurance company, as here, represents the third party defendant and is also seeking, through intervention, status as a party plaintiff. Such a patent conflict of interest exists as to bar the right of unencumbered intervention. The potential for collusion is so inherent as to preclude a showing to the contrary within the spirit of Rule 24.

The appellee relies on Varney v. Taylor, 71 N.M. 444, 379 P.2d 84 (1963), where the New Mexico Supreme Court reversed a lower court’s decision denying intervention in a workmen’s compensation case to an insurance company situated exactly as Employer’s Casualty is here. The reason given by the New Mexico Court was that under the New Mexico Workmen’s Compensation Act, the insurance company would forfeit its right to reimbursement if it were not made a party plaintiff. Even in that case, the Court limited the right of intervention by holding that “the intervention itself should not be made final until the main cause is ready for judgment, and, in the interim, that the insurance company is precluded from participating as a party plaintiff.”

Such a result (i. e., limited or encumbered intervention precluding participation as a party plaintiff) would have been proper in this case. Under present Alabama law, however, there is no compelling reason to allow the insurance company to intervene in order to be subrogated to the employee’s claim; and when, as in this case, it also insures the third party, unencumbered intervention should be denied. A similar result has been reached by several federal courts facing this problem. Gutowitz v. Pennsylvania R. Co., 7 F.R.D. 147 (E.D.Pa.1946); Christon v. United States, 8 F.R.D. 327 (E.D.Pa.1947); Greene v. Verven, 203 F.Supp. 607 (D.Conn.1962).

After disposing of the narrow issue involved here, we now return to a discussion of the guidelines for allowing intervention in the ordinary workmen’s compensation case brought under Tit. 26, § 312. Workmen’s compensation cases are unlike the normal Rule 24 situation. Ordinarily, Rule 24 anticipates potential future litigation brought by or involving the interve-nor. The purpose of allowing intervention in such cases is to discourage multiplicity of litigation and to relieve the intervenor from the possible prejudice of “stare deci-sis in later litigation involving the same questions of law and fact to which the unsuccessful applicant for intervention is finally a party.” Committee Comments, ARCP, Rule 24. In the ordinary case, Rule 24 is to be liberally construed to allow intervention. See Atlantis Development Corp. v. United States, 379 F.2d 818 (5th Cir. 1967).

In the § 312 situation, however, no future litigation is contemplated. The compensation carrier will be reimbursed from the employee’s judgment, if any, whether or not it intervenes. Since the employee is seeking exactly the same recovery as the insurer, the usual case will be resolved by the final clause of Rule 24(a)(2), “. the applicant’s interest is adequately represented by existing parties.”

Thus, in the § 312 case, the motives for liberally allowing intervention are absent and the right to intervene by the compensation carrier should be more restricted than in other Rule 24 cases. Before intervention should be allowed over the objection of the plaintiff in a § 312 third party action, the applicant must meet a burden of showing to the satisfaction of the trial court that he can make a substantial contribution toward a favorable outcome of the plaintiff-employee’s case.

A mere showing that the applicant is the employer or his compensation carrier and the extent of its right of reimbursement is insufficient to meet this burden. If, on the other hand, the applicant can demonstrate active participation in the preparation of the third party action; that it has in its possession significant information or data essential to the prosecution of the third party suit; or that the employee-plaintiff is inadequately represented or otherwise less likely to succeed in his effort to effect recovery without the intervenor’s active participation; then, in such event unencumbered intervention (i. e., full participation in the litigation) should be allowed.

This is not to say that a petition to intervene in a § 312 third party suit, over objection and absent such showing, cannot be granted conditionally in order that the intervention be made final at the time of judgment to protect the intervenor’s right of reimbursement. Likewise, nothing in this opinion is to be construed as preventing the interested parties from effecting reimbursement by agreement with or without active intervention. Moreover, we call attention to the fact that a nonparty can be protected by judgment under Rule 71, ARCP.

Reversed and remanded.

HEFLIN, C. J., and MERRILL, MADDOX and SHORES, JJ., concur.

      . See also Fidelity & Casualty Co. of New York v. Bedingfield, 60 So.2d 489 (Fla.1952) and Harrison v. Ford Motor Co., 370 Mich. 683, 122 N.W.2d 680 (1963).

      . The employer or the insurance carrier is permitted by § 312 to bring suit only in the event the employee does not file suit against the third party within the time allowed by law. See Liberty Mutual Insurance Co. v. Lockwood Green Engineering, Inc., 273 Ala. 403, 140 So.2d 821 (1962).


author: BRADLEY, Judge.

text:
    Mrs. Bernice Henson SCHELL v. Tom W. TURNER, as Probate Judge and as Chairman of the Washington County Commission, et al.
    Civ. 604.
    Court of Civil Appeals of Alabama.
    Dec. 17, 1975.
    Sidney H. Schell, Mobile, for appellant.
    Dennis Porter, Chatom, for appellees.
   BRADLEY, Judge.

This is an appeal from the denial of a writ of mandamus for salary directed to the County Commissioners of Washington County, Alabama, the appellees here. This case being an action at law for an amount less than $10,000, the Court of Civil Appeals is granted exclusive appellate jurisdiction under Title 13, Section 111(3), Code of Alabama 1940.

Appellant initiated this case by petitioning for mandamus in the Circuit Court of Washington County on September 10, 1974. The petition alleged that since June 1974 appellees had wrongfully withheld appellant’s salary for the office of Supernumerary Tax Assessor, and demanded that appellees be ordered to show cause why they should not be required to pay this salary. Plaintiff’s usual monthly salary had been approximately $416.66 and had a statutory maximum of $5,000 per year. Appellees filed their answer on October 14, 1974, denying appellant’s eligibility to hold the office, and counterclaiming for $3,750.02 in back salary already collected by appellant. On March 31, 1975 the evidence was submitted to the court on stipulation. On May 8, 1975 the trial court issued its order denying mandamus on the ground of appellant’s ineligibility for the office, and also denying appellee’s counterclaim. Appellant filed notice of appeal on June 5, 1975. There is no cross-appeal.

The stipulated evidence reveals the following :

Appellee was sixty-three years old as of October 19, 1973. On January 27, 1970, áfter more than twenty years of consecutive service as chief clerk to the County Tax Assessor, she took the oath and assumed the duties of Tax Assessor for Washington County. Petitioner never held any other countywide office. On October 19, 1973 the Governor issued appellant a commission as Supernumerary Tax Assessor, an office created by Act No. 755 of the 1967 Regular Session of the Alabama Legislature, and amended by Act No. 935 of the 1973 Regular Session.

Between October 1973 and June 1974 appellees paid appellant $3,750.02 for her services in the office. The monthly salary was stopped by the County Commissioners after the June 1974 payment, in reliance on an advisory opinion of the Attorney General to the effect that appellant was ineligible to hold the office. This opinion was rendered on July 5, 1974, pursuant to an audit of the Washington County Tax Assessor conducted by the Examiners of Public Accounts.

The discontinuation of salary prompted appellant to file her petition for mandamus.

We must first decide whether or not appellees appropriately raised the issue of appellant’s eligibility. There are numerous cases which state that right to office should not be tried in a collateral action, but can only be tested by quo warranto, Ex parte Register, 257 Ala. 408, 60 So.2d 41; Goodwyn v. Sherer, 145 Ala. 501, 40 So. 279; Taylor v. Kolb, 100 Ala. 603, 13 So. 779; State ex rel. Harmon v. Hamil, 97 Ala. 107, 11 So. 892; Ex parte Harris, 52 Ala. 87; Hill v. State, 1 Ala. 559; Coe v. City of Dothan, 19 Ala.App. 33, 94 So. 186. A careful reading of those authorities indicates that the principle espoused applies to the situation in which one of two rivals seeks to test a claim to office between them by mandamus addressed to a third party. In the present case there are no rivals engaging in a dispute which the mandamus would collaterally adjudicate. Eligibility here bears solely on the issue of appellant’s unilateral right to relief, Beasley v. McCorkle, 237 Ala. 4, 184 So. 904. By bringing this action appellant herself has placed her clear right to office in dispute, and appellee’s answer is a proper direct challenge, not a collateral attack, Goodwyn v. Sherer, supra. Eligibility is legitimate defensive matter.

A related problem is whether or not the Governor’s commission appointing appellant to office is conclusive evidence of her eligibility. It has been held that certification of election results by a responsible authority confers a -prima facie right to office which cannot be questioned in a collateral action, Day v. Andrews, 279 Ala. 563, 188 So.2d 523; Casey v. Bryce, 173 Ala. 129, 55 So. 810; Moulton v. Reid, 54 Ala. 320; Ex parte Harris, supra.

As we have discussed, the present action is a direct, not a collateral, challenge to petitioner’s right to her claimed office. However, even if this were not so, the facts of the instant case fall within a well-marked exception to the general rule regarding conclusiveness of certificates. A recital of the time of nomination appearing on the face of a certifying document is significant and must be viewed in light of relevant statutes; and if it plainly appears that the nomination is contrary to mandatory provisions of those statutes, the certificate is not conclusive, Kinney v. House, 243 Ala. 393, 10 So.2d 167. Such a recital cannot be rejected as surplusage, and where the recital discloses that the facts upon which an appointment must be based are untrue, the certificate destroys itself, is void, without force, and is not prima facie title to office, Plowman v. Thornton, 52 Ala. 559.

We come now to the merits of appellant’s cause of action. There is no conflict in the evidence: the sole issue is whether or not the trial court was correct in finding that under Act 935, Regular Session of 1973, appellant was ineligible to hold the office in question. We hold that the trial court’s decision was correct.

Appellant’s qualifications for office are determined by part (b) of Act 935, which requires that a general fifteen year period of service in countywide office and a specific ten year period as Tax Assessor both be fulfilled as a condition precedent to appointment as Supernumerary Tax Assessor. Appellant claims that the statute is ambiguous as to whether or not it allows credit for service as chief clerk in meeting the ten year requirement, and argues that the courts must defer to the construction in favor of appellant which was placed on the statute by the Governor. We disagree.

There is no ambiguity in this statute which needs resolution. The three offices to which the ten year requirement applies are specified by their proper title and are nowhere in subsection (b) referred to by the word “official.” On the other hand, the countywide position to which the fifteen year qualification applies is consistently referred to as an “official.” The meaning of the words in this statute are plain and obvious and an improbable or different meaning will not be imposed by construction. Department of Indus. Relations v. Little Mfg. Co., 253 Ala. 416, 44 So.2d 587.

Thus, a thorough reading of the text of Act 935 shows that the words “such official” used in the final sentence of the part (b) are identical in meaning to the words “county official for any county of Alabama” in which any applicant must generally serve fifteen years. The words in question do not refer to the office of Tax Assessor in which an applicant must specifically serve ten years. The statute allows appellant credit for her years of service as chief clerk in filling the general fifteen year requirement, but not the specific one of ten years. Appellant is ineligible for appointment as Supernumerary Tax Assessor because she did not serve the necessary ten years as County Tax Assessor.

There being no error below, the judgment of the trial court is affirmed.

Affirmed.

WRIGHT, P. J., and HOLMES, J., concur.


author: HOLMES, Judge.

text:
    William Clyde GIVENS v. GENERAL MOTORS ACCEPTANCE CORPORATION, a corporation.
    Civ. 679.
    Court of Civil Appeals of Alabama.
    Dec. 17, 1975.

      William D. Melton, Evergreen, for appellant.
    Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, and Edwin C. Page, Jr., Evergreen, for appellee.
   HOLMES, Judge.

This is an appeal from the Circuit Court of Conecuh County. The issue on this appeal is whether the trial court properly granted plaintiff-appellee’s motion for summary judgment denying defendant-appellant’s counterclaim.

The facts as revealed by the record are undisputed. Defendant-appellant William Clyde Givens purchased two trucks from a dealer in late 1972 and early 1973. The trucks were purchased under installment contracts, which contracts were then assigned to plaintiff-appellee General Motors Acceptance Corporation. At the time of purchase, Givens also obtained disability insurance with an insurance company, to insure payment on the trucks.

In March or April of 1973, Givens requested through the dealer that the disability insurance be cancelled. This was done, and in April of 1973 Givens was notified by appellee-corporation that it had received the premium refund and applied it to the balance of his account under the contracts. Givens took no action concerning this disposition of the refund until the filing of the counterclaim which is the basis of this appeal.

Givens later defaulted in his payments on the contracts, and was given an extension in order to bring his payments current. After further defaults by Givens, the corporation in November of 1974 filed two actions in detinue against him for the recovery of the two trucks, which suits were later consolidated. Givens filed an answer and counterclaim to both complaints. The counterclaims alleged that the corporation negligently failed to pay the disability insurance premiums, and also claimed that the corporation owed Givens for money had and received.

The corporation moved for summary judgment, which motion was submitted to the trial court on the complaint, answer and counterclaim, the deposition of Givens, and his answers to interrogatories propounded to him by the corporation. Givens submitted no counter-affidavits. Summary judgment was granted, resulting in this appeal.

The only aspect of the summary judgment on which error is predicated here is the trial court’s denial of Givens’ counterclaim. Able counsel for Givens argues that a genuine issue of fact was presented concerning the alleged negligent failure of the corporation to pay the insurance premium. Additionally, it is contended that the corporation should have remitted the premium refund directly to Givens, the corporation allegedly having no legal right to retain the monies and apply them to the debt owed it by Givens.

We initially note that Rule 56(c) ARCP provides that summary judgment shall be granted if the materials on file “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

As indicated above, the record shows that there is no dispute as to the facts. It clearly appears that Givens requested cancellation of the disability insurance and was notified of the same. There is no evidence indicating any negligence in this regard on the part of appellee-corporation. There being no evidence of negligence on the part of the corporation, the principle involving summary judgments most applicable in this instance is that where undisputed facts are such as would preclude recovery, the question on motion for summary judgment becomes one of law for determination by the court and a proper matter for disposition by summary judgment. McLaughlin v. McLaughlin, 53 Ala.App. 545, 302 So.2d 233; Greyhound Corp. v. Excess Insurance Co. of America, 5 Cir., 233 F.2d 630.

There being no factual dispute, the only issue remaining to be considered by this court is whether, under the facts of this case, Givens is as a matter of law entitled to receive the insurance premium refund.

Without reaching the propriety of the action taken by the corporation concerning the premium refund, we are of the opinion that Givens cannot recover as a matter of law on his counterclaim. Upon being notified that the corporation had applied the refund to his debt, after Givens had requested the insurance be cancelled, Givens made no protest and took no action whatsoever in that regard for over eighteen months. During that time, the evidence tends to show that he defaulted ten times on his contractual obligation and at least once was given an extension. His silence over so protracted a period of time, his failure to meet his payments, and his acceptance of an extension, all mandate against the conclusion that he now can withdraw from the corporation monies which already have been applied against his outstanding debt.

Assuming hypothetically that Givens was in fact legally entitled to receive the premium refund, we feel that the totality of circumstances in this case indicates that he has effectively waived any right he may once have had to that refund. While waiver is defined as the intentional relinquishment of a right, the intention is ascertained from the external acts manifesting the waiver. An intention to waive a right may be found where one’s course of conduct indicates the same or is inconsistent with any other intention. See 28 Am.Jur.2d Estoppel and Waiver §§ 158, 160. We feel that these principles are applicable here, and that Givens is barred by his waiver from successfully asserting his counterclaim.

Additionally, while appellee has cited us no authority in point and we can discover none, we are of the opinion that the instant counterclaim, considering the totality of the circumstances, cannot be sustained as a matter of law even if waiver were not applicable. The monies which Givens seeks to recover by his counterclaim have already been applied against his debt, so that the operative effect of the counterclaim will not be to in any way defeat or diminish plaintiff-appellee’s claim against him. As such, the monies having already been applied to his benefit, there is nothing upon which he can predicate his counterclaim. Paradoxically, were Givens to recover the amount he seeks by his counterclaim, i. e., the insurance premium received, he would apparently have to pay it to the corporation on his debt, which debt would be increased by the amount of the refund. The purpose of a counterclaim is to provide affirmative redress rather than meaningless circuity of action.

There being no error in the record, this case is due to be and is affirmed.

Affirmed.

WRIGHT, P. J., and BRADLEY, J., concur.