author: ROBERTSON, Justice, for the Court: SMITH, Justice, specially GILLESPIE, Chief Justice,

text:
    Earl DANIELS v. STATE of Mississippi.
    No. 49271.
    Supreme Court of Mississippi.
    Jan. 26, 1977.

      Sullivan, Smith, Hunt & Vickery, Charles L. Sullivan, Luckett, Luckett, Luckett & Thompson, Walter W. Thompson, Clarks-dale, Andrew Baker, Charleston, for appellant.
    A. F. Summer, Atty. Gen., by Ben H. Walley and Karen Gilfoy, Asst. Attys. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   ROBERTSON, Justice, for the Court:

The Petition for Rehearing filed on behalf of appellant, Earl Daniels, is granted, and the opinion affirming the judgment against defendant Daniels, along with the two dissenting opinions, are withdrawn and the following opinion is substituted therefor:

Earl Daniels was indicted by the grand jury of the Circuit Court of Quitman County for the murder of Claude Jones on September 6, 1974. After a full trial, the jury returned a verdict of manslaughter, and the court sentenced Daniels to serve a term of ten years in the state penitentiary. Daniels appeals from the conviction and sentence. We reverse and remand for a new trial.

Prior to September 6, 1974, the date of the incident hereinafter related, defendant had rented a 160-acre tract of land from Mrs. Mable Gardner. Mrs. Gardner lived on the property in a house located about 250 feet east of a gravel road that runs north and south. Her house was reached by means of a gravel driveway. The defendant lived on a gravel road 428 feet north of the driveway leading to Mrs. Gardner’s home.

Prior to the date in question, Mrs. Gardner informed Daniels that she wanted to rent the farm on a cash basis rather than on a percentage basis. In the summer of 1974, she showed the place to prospective renters. On the morning of September 6, 1974, Daniels learned that Mrs. Gardner had leased the tract of land, for the coming year, to one Preston Bennett. Defendant went to see Mrs. Gardner and was angry that she had rented the land to someone else. He understood that Jones had advised Mrs. Gardner in connection with the Bennett lease, and stated to Mrs. Gardner at about 11:45 a.m.:

“That old sorry so and so down there has meddled in my business, and I’m going to get him if that’s the last thing I ever do.”

About 12:15 p.m., Daniels telephoned the Claude Jones residence. Jones’ wife answered the telephone and listened to the conversation on an extension while her husband talked to the defendant. Defendant told Jones, “I’m going to kill you if you cross me,” and then hung up.

Shortly before one o’clock, as Constable William B. Smith, defendant, and defendant’s brother, Boney, were talking around the dinner table, according to Smith, defendant said:

“A. Okay, he said, ‘Now, she better not cut that water off, because — ’ You know his water was supplied from her well. Earl says, ‘I’ll put a stick of dynamite in my line’, which if he blows up his water, it blows up hers too.”

About 2:30 p.m., Jones went to see Ben Caldwell, a former county prosecuting attorney, told him about Daniels’ threat, and sought his advice as to whether defendant should be placed under a peace bond. Jones then went to see Sheriff L. Q. Brunt and reported the threat to him. Both Caldwell and Brunt were allowed to testify as to their conversations with Jones, including the purported threats made by Daniels against Jones.

About 3:15 p.m., Jones was talking to Mrs. Gardner in her yard when Daniels drove up to a shed which he used in connection with feeding his cattle. Daniels looked in the direction of Mrs. Gardner and Jones for a few minutes, then left, and went back to his home without feeding his cattle.

Daniels testified that he did return to his home, prepared three steaks, put them on the outdoor grill to cook, told his son, Robert, to look after the steaks while he went to feed the cattle, and then started back to the cattle shed.

Mrs. Gardner testified that she saw Daniels driving south toward her driveway at the same time that Jones was driving out of her driveway toward the north-south gravel road. She saw Jones speed up and turn south on the gravel road in the direction of his home. Daniels followed Jones’ car past Mrs. Gardner’s driveway, and, according to Mrs. Gardner, defendant “whipped around him and cut in on him and hit Mr. Jones’ car.”

Daniels disputes Mrs. Gardner’s version. He testified that just before he reached Mrs. Gardner’s driveway this happened:

“But, I didn’t even see the car until I got to this — you know where — just before I made my turn, and just as I got to this, well, here he comes at me, and he was, he was traveling at a high speed. So, I just come right on down the road here, and he come, come out of here and stopped.
“Q. All right, sir, now, as he came up here, you, instead of turning in, you went on down this way?
“A. Yes, sir.
“Q. Did you stop down that road, sir?
“A. Yes, sir.
“Q. At the time you stopped your vehicle, was the vehicle of Mr. Jones behind you or in front of you or to the side of you?
“A. It was behind me.
“Q. At that point, Hook, had there been any impact or contact between your vehicle at that time and the Jones’ vehicle?
“A. No, sir.
“Q. What happened after you stopped, and then you saw the car of Mr. Jones stopped back behind you?
“A. He got out of his car with his pistol.
“Q. Did you say or do anything?
“A. I begged him not to shoot me.
“Q. Can you tell us what you said if you remember?
“A. I don’t remember exactly, except I know I said, ‘Mr. Jones, don’t do that’, or ‘Don’t you shoot me’.
“Q. What were you doing then, were you getting out of your truck or sitting in your truck, or what were you doing?
“A. Well, I could have had the door open, or something, I don’t know at just at that particular time.
“Q. What do you remember after that?
“A. Nothing.”

The physical facts indicate that Jones’ car stopped at a point 128 feet south of the Gardner driveway, and defendant’s pickup truck, a short distance south of the Jones car. Jones’ pistol was a .32 caliber Colt automatic holding nine cartridges. Eight .32-caliber cartridge hulls were found in the roadway between the front of Jones’ car and the rear of Daniels’ pickup truck, and one .32-caliber cartridge hull was found in the bed of the defendant’s pickup truck. It is apparent that Jones fired first and emptied his .32-caliber automatic. Two bullets fired by Jones struck the defendant. One entered the back of Daniels’ left leg and exited on the front of his leg; the other entered his stomach to the right and somewhat higher than his umbilicus.

Jones’ body was found 29V2 feet south of the place where defendant’s truck had stopped. Jones had been shot one time, the bullet entering the right armpit and exiting from the left armpit. A .25-caliber automatic pistol was found in Daniels’ truck with three live rounds still in it. Three .25-caliber hulls were found on the ground near the passenger’s side of defendant’s pickup truck. Three bullet holes were found in the interior of the door on the driver’s side of defendant’s truck; one bullet had exited from the exterior side of the door.

Robert Daniels, defendant’s 16-year-old son, testified that he looked up the road when he heard the shooting and saw his father shut the door to the truck and back up toward Mrs. Gardner’s driveway. He then stated:

“A. When he backed up, he scraped the front, or he scraped some part of the car, I remember it that, I don’t know what part it was, but it shook a little bit and uh—
“Q. —the car shook?
“A. Yes, sir, and then he backed into the driveway.
“Q. Which driveway was that?
“A. The one that goes out to Mrs. Gardner’s house.
“Q. And, then what did he do?
“A. Just came straight home.”

The ambulance attendants found defendant lying down in his front yard and took him to the hospital where he was immediately treated for his wounds. He remained in the hospital about 10 days.

Dr. Rubisoff, who received and treated Daniels at the hospital, testified:

“Q. Based on your clinical observation, did I understand you to say to the jury that the man didn’t know why he was at the hospital?
“A. Well, I can’t give you his exact words at this time, but my impression and my best recollection, provided I don’t have amnesia, is that the patient was sort of in a funk, he was sort of dazed. He wasn’t in gross — by that time he was not in gross physical shock, in other words, he had a fairly good blood pressure, pulse and so forth, but he looked rather confused, and I chose not to give him any details, . . . .”

Appellant admits that a jury issue was created by the conflicting testimony, but vigorously contends that he did not receive a fair trial because of prejudicial hearsay testimony admitted into evidence.

The trial court correctly excluded the testimony of Constable Smith as to Daniels’ saying that if Mrs. Gardner cut off the water to his home that he would “put a stick of dynamite in my line”. This remark was not a threat against anybody, and was in effect a retaliatory action that Daniels would take if Mrs. Gardner cut his water off.

Testimony was elicited from Sheriff Brunt as to Jones’ small size and Daniels’ huge size. This testimony should not have been admitted. There was no physical combat or contact between Jones and Daniels. The deadliness or the accuracy of a pistol does not depend upon the physical size of the one who pulls the trigger. A 150-pound man, or woman for that matter, can be just as accurate with a pistol as a 230-pound man.

The testimony of former county prosecuting attorney, Honorable Ben Caldwell, and the testimony of Sheriff Brunt as to Jones complaining to them of threats on his life by Earl Daniels should not have been admitted into evidence. It was hearsay testimony and was not part of the res gestae, as contended by the state.

Even if all the testimony of threats against Jones by Daniels and of Daniels running Jones off of the road, and that Jones was very much afraid of Daniels, were taken as true, still the action of Jones, in advancing upon Daniels as he sat in his truck and emptying his 9-shot .32-caliber Colt automatic pistol at Daniels and seriously wounding him, was not justified.

Even with the admission of this prejudicial testimony it took the jury nine hours to reach a verdict; this clearly indicated that it was a close and difficult ease to them. They were undoubtedly influenced by the improperly admitted evidence, and the admission of this prejudicial testimony constituted fatal error.

We reverse the judgment against Daniels and remand this case for a new trial.

REVERSED AND REMANDED.

PATTERSON and INZER, P. JJ., and SMITH, SUGG, BROOM and LEE, JJ., concur.

GILLESPIE, C. J., and WALKER, J., dissent.

SMITH, Justice, specially

concurring:

I concur in the reversal of Daniels’ conviction and in the reasons stated by Justice Robertson. However, in my humble judgment, there is no evidence in the record capable of supporting any reasonable conclusion other than that Jones was the aggressor from beginning to end in the encounter which resulted in his death and had made and was making a murderous attack upon Daniels at a time when he, Jones, was in no imminent danger, either real or apparent, of suffering death or great bodily harm at the hands of Daniels. Under principles long and well established in homicide cases in the jurisprudence of this State, Daniels is entitled to be discharged. Moreover, if Daniels should be retried and again convicted it is impossible to imagine that justice would not demand that the conviction again be reversed as against the overwhelming weight of the evidence.

PATTERSON and INZER, P. JJ., join in this opinion.

GILLESPIE, Chief Justice,

dissenting:

I dissent as to the two evidence questions decided by the majority.

I.

I think the testimony of Sheriff Brunt and former County Attorney Caldwell, that the deceased reported a threat on his life and inquired about placing the defendant under a peace bond and whether he could arm himself, is admissible to show the state of mind of Jones.

Generally, hearsay problems do not arise in cases where the defendant seeks to show that the victim had previously threatened him. Communicated threats made by the victim to the defendant are commonly admitted to show the effect the threat has on the state of mind of the defendant. When the defendant relies on self-defense, his state of mind is relevant in an inquiry of whether or not he acted reasonably. Eaton v. State, 200 Miss. 729, 28 So.2d 230 (1946). When offered for such purpose, its value, simply, is not dependent on whether or not the statement is true.

Where, however, testimony is elicited from a witness who was told by the homicide victim that the defendant had previously threatened him, a serious hearsay question arises, depending upon the purpose for which such testimony is offered. If the State were permitted to introduce such testimony to prove that a threat was made which would have the tendency to prove by inference that the defendant carried out his threat or to prove by inference the identity of the criminal agency, then the state of mind exception would be allowed to swallow the hearsay rule. See Commonwealth v. DelValle, 351 Mass. 489, 221 N.E.2d 922 (1966); Shepard v. United States, 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196 (1933); Contra People v. Merkouris, 52 Cal.2d 672, 344 P.2d 1 (1959) (Overruled by West’s Ann.Cal.Evid. Code § 1250[b]). If, however, the reported threats are offered to show merely the deceased’s state of mind, then that testimony is not objectionable hearsay. Such testimony is particularly relevant to an inquiry when it is needed to explain subsequent conduct by the decedent. See People v. Atchley, 53 Cal.2d 160, 346 P.2d 764 (1959); People v. Finch, 213 Cal.App.2d 752, 29 Cal.Rptr. 420 (1963); 6 Wigmore, Evidence § 1714, at 91, n. 1 (Chadbourn Rev.1976).

In the instant case, independent evidence establishing that a threat was made had been admitted prior to the testimony of Brunt and Caldwell. Mrs. Jones testified that she heard the defendant threaten her husband. Her testimony is direct proof that a threat was made by Daniels against Jones. Mrs. Gardner also testified that Daniels made a threat in her presence to kill Jones. Although the effect of the testimony by Brunt and Caldwell may bolster that of Mrs. Jones and Mrs. Gardner, that effect is merely incidental to the real purpose of their testimony, i. e., to show that Jones was in a state of mortal fear. Also, since there is no question as to whether or not Daniels fired the fatal shot, it is apparent that the testimony by Brunt and Caldwell was not used to infer the identity of the slayer.

It would have been appropriate under these circumstances for the jury to have been instructed to consider the testimony of Brunt and Caldwell only for the purpose of showing the deceased’s state of mind. However, the defense counsel did not request such an instruction, and I cannot say that the trial judge erred in not taking it upon himself to so instruct the jury. In 29 Am.Jur.2d Evidence §§ 262, 263, at 310-312 (1967), it is stated:

Evidence may be clearly incompetent for one purpose but be entirely proper for another purpose; such evidence is admissible for the latter purpose even though the jury may erroneously use it for other purposes, unless the risk of confusion by the jury is so great as to upset the balance of advantage of receiving it.
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Evidence which is incompetent as to one issue or party, but admissible as to another, cannot properly be considered for its bearing on the former issue or party. Such evidence should be offered by a party and received by the court only for the specific purpose for which it is competent. The court should limit its application by proper instructions, at least when requested to do so or when objection is made to the introduction of the evidence. There is authority to the effect that the opponent of the evidence must ask for the instruction, otherwise he will be held to have waived it as unnecessary for his protection.
Where evidence admissible only for a specific purpose is admitted generally and no request is made to have its effect limited, it is before the jury as evidence generally, and is a proper matter for comment by the trial judge. Evidence introduced without limitation of purpose is in for all purposes.

The fact that threats were made had been overwhelmingly proven by other evidence prior to the testimony of Brunt and Caldwell. There was no question over whether Daniels fired the shot that killed Jones. It is abundantly clear that any prejudicial sting that could have arisen from the Brunt-Caldwell testimony was negated by the previously proven facts. Certainly the risk of confusion on the part of the jury was minimal in nature. Daniels’ attorney made only a general objection to the Brunt-Caldwell testimony. From the briefs filed it is apparent, however, that his attorney did not feel that such testimony was within the permissible bounds of the res gestae exception to the hearsay rule. While I agree that such testimony would not have been admissible under res gestae, it was admissible to show the deceased’s state of mind. It is the duty of the attorney representing his client to make specific objections. If evidence should be limited for a specific purpose, it is the attorney’s duty to make such a request to the trial judge, otherwise it will be deemed waived.

II.

Smith testified that at about noon on the day of the fatal encounter, he had a conversation with the defendant. At that time the defendant knew that Mrs. Gardner had rented her land to another and during the conversation, defendant said, “Now she [Mrs. Gardner] better not cut that water off because I’ll put a stick of dynamite in my line which if it blows up my water, it blows up hers too.” An objection was made and the court heard the parties in chambers, after which the court stated to the jury, “Ladies and gentlemen of the jury, you will completely disregard the statement made by this witness about dynamiting the well of Mrs. Gardner. You are to completely disregard it. The statements will not enter into your verdict one way or the other — the motion for a mistrial is overruled.”

I am of the opinion that this evidence was admissible notwithstanding the State’s position on this question. And, in any event, the case should not be reversed because the court sustained the objection and carefully admonished the jury to disregard the statement of the witness. Obviously, if the testimony was admissible and the trial court erred in excluding it, no error was committed in overruling the motion for a new trial.

The rule given in 6 Wigmore, Evidence § 1732, at 158 (Chadbourn Rev.1976) is that “[statements before the act, asserting malice or hatred, are always received against an accused; except so far as the time of feeling is so remote as to make it irrelevant. . ” In 1 Wigmore, Evidence § 106 (3rd ed. Supp.1975), the cases involving generic threats are collected. The rule gathered from the following cases is that nonspecific threats, acts, conducts, and words of a party accused are admissible in all cases where they tend to show either a motive for the commission of the crime, or evince malice toward the party afterwards killed.

In Lambert v. State, 171 Miss. 474, 158 So. 139 (1934), this Court quoted the following statement from Johnson v. State, 85 Miss. 572, 37 So. 926 (1904):

“It is an elementary principle that the acts, conduct, and words of a party accused are admissible in all cases where they tend to show either a motive for the commission of the crime or evince malice towards the party afterwards killed.” 171 Miss. at 480, 158 So. at 141.

In Sandifer v. State, 192 So. 342 (Miss.1939), the Court held that in a murder prosecution, evidence of statements by the defendant three or four hours before the homicide that he was going to kill somebody was admissible as tending to show that the killing was with malice aforethought.

In Massey v. State, 19 So.2d 476 (Miss.1944), the Court said:

There is a well established exception to the general rule and this case comes within it. On the trial of an indictment a previous crime threatened or committed by defendant can be proved “(a) where it is connected with the one charged in the indictment, and sheds light upon the motive of defendant or (b) where it forms part of a chain of facts so intimately connected that the whole must be heard in order to interpret its several parts.” (Citations omitted). 19 So.2d at 476-477.

The authorities of other states are to similar effect. In Caddell v. State, 129 Ala. 57, 30 So. 76 (1901), the Court stated:

Mere threats, when directed to a particular person, are not evidence of malice or evil purpose towards another, nor can threats which are merely general be considered as menacing any particular person; but the threat in question was neither so restricted nor general. It comprehended those who might interfere with defendant’s relations with Mrs. Gardner; and if there was evidence indicating that defendant believed the deceased so interfered, and that he instigated her death, the threat was competent to be shown, and the question of whether the threat applied to her was for the jury. Ford v. State, 71 Ala. 385; Jordan v. State, 79 Ala. 9; Redd v. State, 68 Ala. 492. The threat against whoever might interfere with defendant and Mrs. Gardner, and likewise acts of undue intimacy between him and her, were admissible, as tending to show his infatuation for that woman, and consequently as disclosing a motive for inciting the crime. Johnson v. State, 94 Ala. 35, 10 So. 667. And as further evidence of motive, induced by an actual interference, it was proper to prove the prosecution for adultery, by introducing the affidavit and warrant in that case. Evidence of motive, whether proceeding from malice or other cause, is always admissible for the prosecution, as making a conspiracy probable. 30 So. at 78-79.

In Commonwealth v. Glover, 446 Pa. 492, 286 A.2d 349 (1972), the Court admitted testimony of threats against others than the person killed and stated as follows:

The evidence was properly admitted to demonstrate the existence of ill feeling and motive on the part of Glover directed against Miss McKinnon and her friends. It is well settled that “[ejvidence to prove motive, or intent, or plan, or design, or ill will, or malice is always admissible.” (Citations omitted).
The state of mind that will permit the admission of an unrelated crime is the state of mind at the time of the commission of the offense as shown by the acts or words of the defendant so close in time to the alleged offense as to have bearing upon his state of mind at that time. (Citations omitted).
While proof of ill will and prior acts of hostility in the context of a homicide usually demonstrate the state of mind of a defendant to the victim himself, under the circumstances of this case, the evidence of bad feelings towards Miss McKinnon and Milner was relevant to the Robinson homicide. 286 A.2d at 351.

In discussing an earlier ease, the Pennsylvania Court said:

The instant situation is not unlike that dealt with in Commonwealth v. Minoff, 363 Pa. 287, 69 A.2d 145 (1949), which involved a bitter quarrel between two disputing factions of a church congregation. The hostile acts and threats of violence of the defendant in that case against one member of the opposing faction was held admissible as evidence at his trial for the homicide of two other members of the same division. “Here, the evidence of the prior threats was admissible to show the quo animo of the defendant under like mental stimulus toward certain persons with respect to a particular subject.” Id. at 295, 69 A.2d at 149. In the case at bar, threats to Miss McKinnon and her male friends were most relevant to demonstrate Glover’s quo animo to other male friends of his former paramour, particularly since Mil-ner was present to act as the “mental stimulus” that precipitated the rage. 286 A.2d at 352.

And, in State v. Meidle, 202 S.W.2d 79 (Mo.1947), the Court admitted non-specific threats in a murder case, holding that the veiled threats of the defendant toward those who might trespass upon his land were relevant and admissible to prove the existence and design of the state of mind from which defendant’s acts of shooting proceeded and supports the inference of defendant’s criminal purpose or intent in firing the fatal shot.

Applying these principles to the ease at bar, I think the testimony of witness Smith was admissible under the circumstances. In this case, the controversy arose out of Mrs. Gardner’s leasing of the property to Bennett. There is no question that the defendant was angry at Jones and Mrs. Gardner, and that he had threatened Jones because of what Mrs. Gardner had done upon Jones’ advice. The testimony of the threats against Mrs. Gardner show the state of mind of the defendant which involved the same mental stimulus that generated the anger toward Jones. The jury should not have been denied the right to take this into consideration as revealing the defendant’s state of mind in determining who was aggressor in the fatal encounter. It is all intimately woven together.

WALKER, J., joins in this dissent.


source: Caselaw Access Project

author: BLOODWORTH, Justice. JONES, Justice

license: Public Domain

text:
    Joe REED v. The CITY OF MONTGOMERY, a Municipal Corporation, et al.
    SC 1662.
    Supreme Court of Alabama.
    Dec. 30, 1976.
    Gray, Seay & Langford, Montgomery, for appellant.

      Walter J. Knabe and Randall C. Morgan, Montgomery, for appellees.
   On Rehearing

BLOODWORTH, Justice.

The application for rehearing is granted and the original opinion in this cause is withdrawn and this opinion substituted for it.

This is an appeal from a judgment upholding the validity of a resolution which was passed by the Montgomery City Council. We consider the issues involved to be: First, must a resolution which is passed at the meeting at which it is introduced receive a unanimous vote for passage or is it sufficient that it receive unanimous consent for consideration? Second, was unanimous consent for consideration given?

I.

We hold that the following language from Alabama Act No. 618, § 3.15 (1973), means that no “ordinance of permanent operation” shall be passed at the meeting of the Montgomery City Council at which it was introduced unless unanimous consent has been given to take up the measure:

. .No ordinance of permanent operation shall be passed at the meeting at which it was introduced except by unanimous consent of all members of the council present, and such unanimous consent shall be shown by the yea and nay votes entered upon the minutes of said meeting . . . .”

A. “Unanimous consent” to take up measure does not mean “unanimous vote” for passage.

When taken in its context, the language quoted above clearly means that unanimous consent must be given to consideration for passage, not to passage itself. The remainder of the sentence quoted above says,

“. . . [Pjrovided, however, that if all members of the council present vote for the passage of the ordinance and their names are so entered of record as voting in favor thereof, it shall be construed as giving unanimous consent to the action upon such ordinance at the meeting which it is introduced. . .

This provision of § 3.15 does not change the rule stated elsewhere in § 3.15 that

. . the affirmative vote of a majority of those members present, shall be sufficient for the passage of any resolution, by-law, or ordinance . . .”

The utter fallacy of the dissent’s interpretation can readily be seen by restating the proviso quoted above and construing “unanimous consent” to mean “unanimous vote” as the dissent does:

“. . .if all members of the council present vote for passage of the ordinance . , it shall be construed as a unanimous vote in favor of passage of the ordinance. . . . ”

The dissent would have us believe that the legislature took this roundabout means to tell us that a unanimous vote should be construed as a unanimous vote!

The proviso makes sense only if it is read to say that unanimous consent to take “action upon such ordinance at the meeting at which it is introduced” is not required when the ordinance has been passed by a unanimous vote at that meeting. If the intent of the legislature was to distinguish between a voice vote and a formal roll-call vote (as the dissenters contend), the legislature would certainly have simply said so!

B. Resolution No. 678-75 was not an “ordinance of permanent operation.”

There is yet another reason why the dissenters are in error. Assuming, for the sake of argument, that § 3.15 does require unanimous vote, the. provisions of § 3.15 can apply only to “ordinances of permanent operation.” The dissenting opinion treats the term “ordinances of permanent operation” as if it includes all ordinances and resolutions. That conclusion is just plainly incorrect!

Three terms, “ordinances,” “resolutions,” and “by-laws,” are used in § 3.15, clearly indicating that the legislature recognized a distinction. When the legislature uses distinctive terms, it is not the province of this Court to ignore the distinctions simply because honoring them may create some difficulties.

Indeed, this Court has in previous cases honored the distinction between “ordinances of permanent operation” and other kinds of action which a city council might take.

In City of Prichard v. Moulton, 277 Ala. 231, 238, 168 So.2d 602, 609 (1964), this Court defined “ordinances of permanent operation” and distinguished them from ordinances and resolutions not of permanent operation:

“Ordinances or resolutions of permanent operation are those which continue in force until repealed. An ordinance providing for the creation of city offices such as a treasurer, tax collector, or clerk, is an example of an ordinance of a permanent nature. Michael v. State, 163 Ala. 425, 50 So. 929. In Pierce v. City of Huntsville, 185 Ala. 490, 64 So. 301, it was held that ordinances and resolutions relating to the calling for and acceptance of bids and fixing assessments, for paving of certain streets were not ordinances or resolutions of a permanent nature. . ."

In Moulton, this Court held that a resolution authorizing an agreement for the preparation of plans and estimates for a garbage disposal plant and a subsequent ordinance accepting those plans were not ordinances or resolutions of permanent operation.

Resolution No. 678-75, the resolution in question in the case at bar, approved a program for the construction of sewers in certain locations, for paving, and for other civic improvements and authorized the Mayor to apply to the federal government for a grant to finance the program. There is no significant difference between this resolution and the resolution in Moulton. Nevertheless, the dissent erroneously treats Resolution No. 678-75 as “an ordinance of permanent operation.” The dissent makes no attempt to explain how this resolution is “an ordinance of permanent operation.” In fact, the dissent ignores the distinction between “ordinances of permanent operation” and other ordinances and resolutions.

II.

We hold that the trial judge was correct in holding that “unanimous consent” to take up the resolution was given.

Although § 3.15 requires unanimous consent for consideration only of “ordinances of permanent operation” which are passed at the meeting at which they are first introduced, Montgomery Ordinance No. 77-75, § 17, sets forth a similar requirement for all ordinances and resolutions:

“All Ordinances and Resolutions submitted to the Council shall lie over until the next regular meeting; provided, that such Ordinances, or Resolutions may be considered earlier by unanimous consent of the Council; and provided further, that this rule shall not apply to the current expenses of or contracts previously made with, or regular salaries of officers of, or wages of employees of the City.”

The issue here is therefore whether there was unanimous consent to consideration of Resolution No. 678-75 at the November 25 meeting. In addition to holding that a unanimous vote is required, the dissent argues that there was no unanimous consent for consideration at the November 25 meeting.

The dissenters say the minutes do not reflect such unanimous consent was given. Our answer is the minutes do not reflect that unanimous consent was not given. The minutes appear to be silent on this issue. We don’t think you can imply from a silent record that no consent was given particularly in view of evidence presented by witnesses before the trial judge, and his finding, to the contrary.

The City claimed, and the trial court found, that the Council’s unanimous approval of the resolution of October 28, when considered in pari materia with intervening events culminating in Resolution No. 678-75, constituted unanimous consent as required by § 17. The court alternatively found that Mr. Reed had withdrawn his objection to consideration of Resolution No. 678-75 when he learned that the November 25 meeting was the last meeting at which the resolution could be considered.

In reviewing this case, this Court is bound by the rule limiting the scope of review of orders granting and denying in-junctive relief. The power of a trial court to grant or refuse injunctive relief rests in the sound discretion of the trial judge, under the facts and circumstances of the particular case. Odess v. Taylor, 282 Ala. 389, 211 So.2d 805 (1968). To establish an abuse of discretion, it must be shown that the trial court committed a clear or palpable error. Ex parte Jones, 246 Ala. 433, 20 So.2d 859 (1945). In order to decide whether the trial judge abused his discretion in this case, we must examine the testimony which was presented to him to determine whether the evidence justified denying Mr. Reed’s request for an injunction.

Mr. Reed’s first witness, City Clerk Alex R. Garrett, testified that, although Resolution No. 678-75 had not actually been introduced in any Council meeting prior to November 25, the subject matter had been introduced on October 28, through Resolution No. 616-75. Resolution No. 616-75, which was unanimously passed by the Council, reads:

“WHEREAS, Public Law 93-383 requires public meetings be held prior to the submission of Community Development Block Grant Applications, and that such meetings be advertised at least 15 days before the public meetings; and
“WHEREAS, neighborhood public hearings have been held as required by public law:
“NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL OF THE CITY OF MONTGOMERY, ALABAMA, will hold a public hearing on November 18, 1975, to receive Community Development Program recommendations from the Citizens’ Participation Group, and will approve the final Community Development Block Grant Programs on November 25, 1975;
“BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF MONTGOMERY, ALABAMA, that the advertisement for public hearings shall be placed in newspapers by the Planning and Development Department no later than Sunday, November 2, 1975.” [Emphasis supplied.]

The dissenting opinion completely ignores that part of this resolution which provided for final approval of the Community Development Block Grant Programs on November 25, 1975. All members of the City Council voted in favor of this resolution, knowing that approval of the final programs would necessitate passage of the resolution at the meeting at which it would be first introduced. Now, some of them seek an injunction against following the schedule which they voted for, and the dissenters, for some reason not supported by their opinion, say they should have been granted the injunction.

The minutes of the November 18 meeting indicate that the City Council followed Resolution No. 616-75 of October 28 when they reassembled to receive the recommendations of the Citizens’ Participation Group for the 1975-76 Community Development Program for Montgomery and to conduct a public hearing on those recommendations. Similarly, by considering Resolution No. 678-75, the subject of this litigation, the Council complied with the October 28 Resolution to “approve the final Community Development Block Grant Program” on November 25.

From this evidence, the trial judge concluded that Resolution No. 616-75 of October 28 established a schedule by which the Community Development Program would be adopted. That schedule was followed in the November 18 and the November 25 meetings. From this conclusion, the trial judge ruled that the unanimous consent for consideration of the budget on November 25 was actually given on October 28 when the Council agreed to adopt a budget on the later date; therefore, the trial judge denied Reed’s request for injunctive relief. Applying our rule for reviewing orders denying injunctive relief, we must find that the trial judge’s conclusion and ruling were not an unreasonable application of the evidence before him. We hold, therefore, that he did not abuse his discretion in denying the injunction.

Moreover, the record contains sufficient evidence to support the trial judge’s conclusion that Mr. Reed had withdrawn any objection to consideration of the resolution before the final vote was held. The evidence is found in the testimony of the City Council President, Emory Folmar. Mr. Fol-mar stated that Mr. Reed asked if it was necessary to act on the resolution on November 25. In response to Mr. Reed’s question, Mr. Arenstein [sic], head of the Planning and Development Department, told the Council that it was necessary to act upon the resolution that evening because of the public hearing and advertising regulations of Housing and Urban Development. If the Council delayed action, Mr. Arenstein reported, the final vote could probably not be held during the 1975 fiscal year, in which case Montgomery stood a chance to lose the federal grant. Following Mr. Arenstein’s report, Mr. Folmar stated that no further objection was presented to the consideration of the resolution.

The testimony also indicated that, before the final vote, Mr. Reed participated in the debate on Resolution No. 678-75 and Mr. Folmar made a ruling, which was sustained by the Council, that there had been no objection to consideration of the resolution.

Although Mr. Folmar’s testimony is challenged by Mr. Reed’s own account of his objection, it was within the trial judge’s discretion to find in favor of Mr. Folmar’s version. Because the trial judge based his denial of injunctive relief upon credible and competent evidence before him, he did not exceed his discretionary authority. Therefore, this Court should not disturb his order on this review but should affirm this cause.

APPLICATION FOR REHEARING GRANTED.

AFFIRMED.

MADDOX, ALMON, EMBRY and BEATTY, JJ., concur.

HEFLIN, C. J., and FAULKNER, JONES and SHORES, JJ., dissent.

JONES, Justice

(dissenting):

I respectfully dissent.

This case involves the validity of a resolution which was passed by the Montgomery City Council. The issues involved are twofold. First, must a resolution which is passed at the meeting at which it is introduced receive unanimous consent for consideration? If this is answered in the affirmative, then the second issue which arises is whether this resolution received unanimous consent for consideration. I would find that this resolution was not given the unanimous consent required, and I would reverse and remand.

This is an appeal from an order denying injunctive relief to Joe Reed, a member of the Montgomery City Council, challenging the validity of Resolution No. 678-75. This resolution concerned a budget program for the expenditure of funds appropriated to Montgomery by the Federal Housing and Community Development Act of 1975.

On October 28,1975, the City Council met in regular session and adopted Resolution 616-75, which provided for a public hearing on November 18, 1975, to receive recommendations to the City Council from a Citizens’ Participation Group regarding expenditure of these funds. These hearings were held, and on November 25, the City Council was presented with the resolution in question. As the minutes of the meeting reflect, there were two dissenting votes against the passage of the Resolution.

The Montgomery City Council is governed by Section 3.15 of Act No. 618, Vol. II, p. 889, of the Regular 1973 Session, which states in pertinent part:

“No Resolution, by-law or ordinance granting any franchise, appropriating any money for any purpose, providing for any public improvements, any regulation concerning the public health, or of any other general or permanent nature, except the proclamation of quarantine, shall be enacted except at a regular public meeting of said council or an adjournment thereof. Every ordinance introduced at any and every such meeting shall be in writing and read before any vote thereon shall be taken, and the yeas and nays thereon shall be recorded; provided that if the vote of all couneilmen present be unanimous, it may be so stated in the journal without recording the yeas and nays . . .No ordinance of permanent operation shall be passed at the meeting at which it was introduced except by unanimous consent of all members of the council present, and such unanimous consent shall be shown by the yea and nay votes entered upon the minutes of said meeting; provided however, that if all members of the council present vote for the passage of the ordinance and their names are so entered of record as voting in favor thereof, it shall be construed as giving unanimous consent to the action upon such ordinance at the meeting at which it is introduced.”

The City of Montgomery contends that the statute requires unanimous consent for ordinances only. It is urged that we adopt this argument based upon the fact that the statute specifically refers to resolutions in a preceding sentence but not in the sentence which states, “No ordinance of permanent operation shall be passed at the meeting at which it was introduced except by the unanimous consent of all of the members of the council present.”

To construe this statute in such a vein would defeat the purpose of that statute and strain its literal meaning. Also it is important to note that the City of Montgomery is governed by local requirements which are necessary for the passage of ordinances and resolutions. Section 17, Ordinance No. 77-75 provides:

“All Ordinances and Resolutions submitted to the Council shall lie over until the next regular meeting; provided, that such ordinances, or resolutions may be considered earlier by unanimous consent of the Council; and provided further, that this rule shall not apply to the current expenses of, or contracts previously made with, of regular salaries of officers, of, or wages of employees of the city.”

This ordinance, while not conflicting with the State’s statute, is more restrictive and requires both ordinances and resolutions to lie over until the next regular meeting unless unanimous consent has been given by the Council.

The main contention put forth by counsel for the City of Montgomery is that the statute and local Ordinance No. 77-75 do not require unanimous consent for passage of a resolution, but rather unanimous consent for consideration. The trial Court construed that the words “unanimous consent” referred to an “unanimous consent” for consideration.

If the trial Court’s construction is correct, then there would be two different times at which unanimous consent could be obtained: (1) by a vote on the motion bringing the proposed resolution before the Council for consideration; or (2) by an unanimous vote passing the resolution when the Council failed to vote on the issue.

It is clear that the .City Council failed to give unanimous consent either for consideration, or for passage. The minutes of the meeting, which are the best evidence, show that the Council never discussed whether this resolution should be considered.

The minutes do reflect that the Council passed Resolution No. 677-75, the resolution preceding the one in question, and then Councilman Folmar introduced the following resolution:

“A RESOLUTION 678-75
“WHEREAS, the City Council of the City of Montgomery has received the recommendations of the Citizens’ Participation Group; and
“WHEREAS, the Citizens’ Participation Group developed those recommendations after holding the appropriate public hearings; and
“WHEREAS, the City Council has reviewed and considered the recommendations of the Citizens’ Participation Group; and
“WHEREAS, the Community Development Program as prepared by the City Council on this date, is made a part of this resolution; and
“WHEREAS, the Community Development Program has been developed in accordance with relevant Department of Housing and Urban Development procedures published to date in the Federal Register:
“NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF MONTGOMERY, ALABAMA, that the City Council hereby approves the aforesaid budget and authorizes Jim Robinson, Mayor, to direct the Department of Planning and Development to prepare the Community Development Block Grant Application . .

The minutes then show a breakdown of the budget and how the money was to be spent. The crucial language of the minutes shows:

“Councilman Folmar moved the adoption of the foregoing resolution.
“The resolution was adopted by the following vote:
“AYES: Peak, Golson, Oliver, Harris, Dixon, Folmar, and Williamson.
“NAYS: Reed and Caswell.” [Emphasis added.]

Nowhere do the minutes reflect that the Council voted upon the consideration of the resolution. Therefore, assuming that the City of Montgomery’s contention is valid in construing these statutes, the essential requirements of unanimous consent were not satisfied.

I believe, however, that the City’s construction does not conform to the language nor the purpose of the statute; and I would hold that the words “unanimous consent” refer to the voting on the passage of the proposed resolution.

The pertinent part of the statute is indeed broken into two alternatives, each referring either to “shall be passed” or “passage” when unanimous consent is used. Nowhere is the term “consideration” used or alluded to in this statute.

A more logical interpretation would be that the statute allows two methods of recording the votes and determining whether passage was by unanimous consent: (1) by a voice vote, “All those in favor say aye; all those opposed say nay”; or (2) by a formal roll call vote with each vote recorded separately.

The statute states the first method for recording the vote as follows:

“No ordinance of permanent operation shall be passed at the meeting at which it was introduced except by unanimous consent of all members of the council present, and such unanimous consent shall be shown by the yea and nay votes entered upon the minutes of said meeting:” [Emphasis added.]

The second method is stated in the concluding parts of this same sentence:

“[Provided, however, that if all members of the council present vote for the passage of the ordinance and their names are so entered of record as voting in favor thereof, it shall be construed as giving unanimous consent to the action upon such ordinance at the meeting of which it is introduced.” [Emphasis added.]

The City of Montgomery further contends Resolution No. 678-75 met the requirements necessary for passage as set forth in Section 17, Ordinance No. 77-75 (cited above, of the City of Montgomery, because the vote for consideration was unanimous).

We are not called upon to rule on the validity of Montgomery Ordinance 77-75, Section 17, but the interpretation urged by the City of Montgomery is in conflict with the legislative act. To adopt the City of Montgomery’s interpretation would in ef-feet nullify a state law. A basic principle of our system of government is the superiority of state law. City of Mobile v. Garrett-Montgomery, Inc., 281 Ala. 204, 201 So.2d 42 (1967). A city does not have the power to, by ordinance, change its municipal charter as granted by the state legislature.

A review of the evidence clearly shows that the vote on the passage of the resolution was not by unanimous consent. This can be shown by a study of the minutes of the meeting of November 25, 1975, which were offered into evidence as plaintiff’s exhibit Number 5. It is shown that Reed and Caswell voted against Resolution No. 678-75. It is settled Alabama law that records of a municipal council are not only properly admissible in evidence to prove the facts stated therein but are the best evidence of such facts. Mayor and City Council of Anniston v. Davis, 98 Ala. 629, 13 So. 331 (1892); Alabama City, G. & A. Ry. Co. v. City of Gadsden, 185 Ala. 263, 64 So. 91 (1913). Such a record, when regular and complete on its face, may not be attacked in a collateral proceeding. Mayor and City Council of Anniston v. Davis, supra. Thus, on the record before us, it is clear that there was no unanimous consent and the resolution, in my opinion, is void.

While granting or refusing an injunction is largely discretionary with the trial Court, the term discretion implies sound judicial discretion which is reviewable on appeal. Cullman Property Co. v. H. H. Hitt Lumber Co., 201 Ala. 150, 77 So. 574 (1917). This discretion is based upon a study of the facts and the application of the law based upon those facts. Under the state of the evidence as disclosed by the record, I would hold that the trial Judge misapplied the law and thus erred in upholding the validity of Resolution No. 678-75. Therefore, I would hold that the trial Court’s order denying the injunction is not supported by competent evidence.

HEFLIN, C. J., and FAULKNER and SHORES, JJ., concur.

      . See Mayor and City Council of Anniston v. Davis, 98 Ala. 629, 13 So. 331 (1892); Alabama City, G. & A. Ry. Co. v. City of Gadsden, 185 Ala. 263, 64 So. 91 (1913).


author: MADDOX, Justice.

text:
    CITRONELLE-MOBILE GATHERING, INC., et al. v. Charles A. BOSWELL, Commissioner of Revenue, State of Alabama.
    SC 1659, SC 1659-X.
    Supreme Court of Alabama.
    Jan. 21, 1977.

      Dewitt Reams and James D. Brooks, Mobile, for appellants.
    Willard W. Livingston, Counsel, Dept, of Revenue, and Asst. Atty. Gen., and Philip C. Davis, Asst. Counsel, Dept, of Revenue, and Asst. Atty. Gen., for appellee.
   MADDOX, Justice.

This proceeding, here for the second time, first originated on March 31, 1972, in the Circuit Court of Mobile County, when the appellants, an oil gathering system, filed a bill of complaint against appellee Charles A. Boswell, as Commissioner of Revenue of the State of Alabama, seeking a declaratory judgment that certain funds held by them and claimed by the Commissioner were not subject to the provisions of Act No. 63, Acts of Alabama 1971, Vol. I, p. 101, approved April 27,1971, and listed in the 1958 Recompilation as Tit. 47, §§ 314-342, and commonly referred to as the Uniform Disposition of Unclaimed Property Act.

The funds generally represent money held for “unknown owners” of oil in the Citronelle field, to which title to the mineral interest had not been established. Previously, in Boswell v. Citronelle-Mobile Gathering, Inc., 292 Ala. 344, 294 So.2d 428 (1974), this Court held:

“ . . . [T]hat funds which have been in the hands of the appellees (Citro-nelle-Mobile Gathering, Inc.) for seven years or longer and are payable or distributable to unknown owners are, as a matter of law, subject to the provisions of our Uniform Disposition of Unclaimed Property Act. The Chancellor erred in decreeing otherwise, and in enjoining the Commissioner of Revenue of the State of Alabama from enforcing the provisions of said Act. In this aspect, this decree is reversed and remanded to the lower court for proceedings consonant with this opinion.” 292 Ala. at 350, 294 So.2d at 433.

Shortly thereafter, this cause was returned to the circuit court where the Commissioner filed a motion moving the trial court to enter an order declaring that the funds held by appellants were due and payable to the State of Alabama. The trial judge entered an order requiring appellants to make certain reports and to deliver the money in question to the Commissioner. Subsequently, the trial court withdrew its order. Appellants then filed a motion for leave to file an amended complaint, alleging that some of the original money had been distributed. The trial court denied the motion, and set the cause for hearing solely for the computation of the mathematical amounts. Appellants later sought leave to add a second amendment, claiming that this Court, in Boswell v. South Central Bell Tel. Co., 293 Ala. 189, 301 So.2d 65 (1974), held that claims for funds which were payable more than six years prior to the passage of the Uniform Disposition of Unclaimed Property Act were barred from enforcement by the six year statute of limitations and that the telephone company case was applicable to the funds it held. Appellants petitioned this Court for mandamus to require the trial court to allow it to file amendments. This Court ultimately granted the petition and required the trial court to permit the amendments.

Appellants filed their amendments and this ease was again heard by the trial court, and on December 12, 1975, the trial court entered its final decree, which reads, in relevant part:

“1. ‘Suspense Account’ debts which were owed for oil which was delivered to the Complainants and for which payment would have been made prior to April 27, 1965, if the title to the mineral interests to which said oil was attributable had been established, and if the owner had been known, are hereby declared to be subject to the six year statute of limitations, and not subject to the Uniform Disposition of Unclaimed Property Law.
“2. ‘Suspense Account’ debts which would have been paid or distributed more than 7 years ago to an owner if the title to the mineral interests to which they were attributable had then been established, and if the owner had then been known, and which are not barred by the statute of limitations by reason of having been payable prior to April 27, 1965, are hereby declared to be subject to the Uniform Disposition of Unclaimed Property Law, irregardless (sic) of whether or not the Complainants have been in communication with claimants to such mineral interests or whatever action has been taken by Complainants short of actually paying to the rightful owners thereof such ‘Suspense Account’ debts.
“3. The Respondent is entitled to have paid over to him as Commissioner of Revenue all ‘Suspense Account’ debts of the Complainants which are owed for oil which was delivered to the Complainants after April 27, 1965, and more than 7 years prior to the date of this decree.
“4. Complainants are hereby ordered to permit the agents of the Department of Revenue to conduct an audit of their books and records for the purpose of determining which ‘Suspense Account’ debts are subject to the Uniform Disposition of Unclaimed Property Law.
“5. The Respondent, Charles A. Boswell, his agents, servants or employees are hereby restrained and enjoined from attempting to collect those unclaimed ‘Suspense Account’ debts which were to be paid or distributed prior to April 27, 1965.
“6. The Complainants are permitted to continue to attempt to establish the title to ‘Suspense Account’ debts until this decree becomes final and the Respondent should not attempt to have the Complainants pay over to the Respondent any such debts which the Complainants pay, before this decree becomes final, to persons who are established to be the rightful owners of such ‘Suspense Account’ debts.”

Following the trial court’s decree, appellants filed notice of appeal and the Commissioner cross-appealed. We affirm on both the appeal and cross-appeal.

On appeal, appellants cite some nine issues to be considered by this Court. It is appellants’ position that Act No. 63 does not apply to funds in the possession of a Gathering System and therefore the Act is not applicable to a debt situation between a holder of funds and their customers. In effect, appellants maintain that the funds held by them merely represent a debt which is owed by them to the rightful owners of the mineral interest and that this debt does not become payable until title has been established to the oil in question. On the other hand, the Commissioner’s position is that the issues raised by appellants have been previously considered by this Court in Boswell v. Citronelle-Mobile Gathering, supra.

The Commissioner relies on Tit. 47, § 322, Code (Act No. 63, § 9) as authority for applying the Disposition of Unclaimed Property Act to the monies held by appellants for payment to the unknown owners of their proportional interests. This section reads:

“All tangible and intangible personal property, not otherwise covered by this Act, including but not limited to and by way of illustration, money, stocks, bonds, certificates of membership in corporations, income, amounts due and payable under the terms of insurance policies not covered by Section 3 hereof, pension trust agreements, profit-sharing plans, security deposits, refunds, funds deposited to redeem stocks, bonds, coupons and other securities, or to make a distribution thereof, together with any income, interest or increment thereon and deducting any lawful charges, that is held or owing in this state in the ordinary course of the holder’s business and has remained unclaimed by the owner for more than seven years after it became payable or distributable is presumed abandoned; provided, however, that unclaimed or unpaid wages and salaries which have remained unclaimed by the owner for more than one year after becoming payable are presumed abandoned.”

As stated previously, this Court, in Boswell v. Citronelle-Mobile Gathering, Inc., considered the above-quoted section along with other pertinent sections of Act No. 63 and concluded that the funds in the hands of appellants for seven years or longer and which are payable or distributable to unknown owners are, as a matter of law, subject to the provisions of Act No. 63. Having reconsidered the matter, we reaffirm our earlier decision. Accordingly, we sustain the trial court’s order of December 12, 1975, by holding that the Uniform Disposition of Unclaimed Property Act applies to the suspense funds held by appellants which belong to unknown, unidentified or lost persons or persons whose claims cannot be established at this time.

Without question, the funds now held by appellants are not payable or distributable until title to the oil is established by the furnishing of an attorney’s title opinion or indemnity agreement. The record reflects that the monies are not held in a special bank account but are kept in “suspense accounts.” The testimony and exhibits show that there are five categories of funds in dispute. A suspense summary introduced by appellants separates the five categories as follows:

“1. Paid to owners.
“2. Actively claimed by parties whose interests require title work, with whom Citronelle-Mobile Gathering, Inc., has had correspondence.
“3. Claimants who have acknowledged certified mail sent them whereby they were advised by Citronelle-Mo-bile Gathering, Inc., to have their own counsel furnish title information necessary to perfect their claim or request Citronelle-Mobile Gathering, Inc., to have the title work done, at the claimant’s expense, or require the claimant to give Citronelle-Mo-bile Gathering, Inc., an indemnity agreement.
“4. Known claimants or owners whom we have been unable to locate.
“5. Interests in tracts as to which title work has not progressed to the point of identifying the owners or claimants. Title work is continuing.”

Appellants concede that an “unknown owner” is an owner listed in category five, however, appellants maintain that persons listed in categories one, two, three and four are not unknown owners since appellants know their identities. We cannot agree. Of the funds involved in this controversy, the evidence is undisputed that where there is active pursuit by claimants of funds in suspense, such as where there is litigation with respect to such funds, as in a suit to quiet title, those funds have been omitted from the audit and the Commissioner makes no claim to those funds in suspense. However, where there is no active pursuit in cases of disputed title, or uncertain title, or where the owner is unknown, cannot be found or has given an incorrect address, we believe that these categories of suspense funds are subject to the provisions of Act No. 63.

According to the Commissioner, the trial court erred in holding that the unclaimed suspense account debts which were to be paid or distributed prior to April 27, 1965, are not subject to Act No. 63. We disagree with the Commissioner. In Boswell v. South Central Bell Tel. Co., 293 Ala. 189, 301 So.2d 65 (1974), we considered the question of whether Act No. 63, § 16, is to be applied retroactively. Section 16 reads as follows:

“The expiration of any period of time specified by statute or court order, during which an action or proceeding may be commenced or enforced to obtain payment of a claim for money or recovery of property, shall not prevent the money or property from being presumed abandoned property, nor affect any duty to file a report required by this Act or to pay or deliver abandoned property to the Commissioner of Revenue.”

In South Central Bell, supra, the telephone company sought a declaratory judgment against the Commissioner of Revenue over three categories of funds claimed by the Commissioner. Category I concerned funds and property payable, returnable or demandable by another prior to 1965. If Act No. 63 is not retroactive, these claims were barred by Tit. 7, § 21, Code. This Court, in considering whether Act No. 63 is prospective or retroactive chose to follow the decision of Douglas Aircraft Co. v. Cranston, 58 Cal.2d 462, 24 Cal.Rptr. 851, 374 P.2d 819 (1962). In Douglas Aircraft Co., the California Supreme Court expressly held a provision, almost identical to Section 16 of our Act, not applicable to claims barred by the statute of limitations prior to the effective date of the Act. This decision was followed in Country Mutual Insurance Co. v. Knight, 40 Ill.2d 423, 240 N.E.2d 612 (1968).

The Commissioner cites no case from any state which has held this section of the Uniform Disposition of Unclaimed Property Act to be retroactive. Furthermore, the Commissioner contends that the South Central Bell case is distinguishable from the instant case in that the appellants do not have a direct relationship to unknown owners whereas in South Central Bell, the telephone company had a contractual relationship with its subscribers. Whatever relationship South Central Bell had with its rate payers, that case stands for the proposition that the statute of limitations barred the recovery of any funds acquired prior to 1965. We hold that Act No. 63 is prospec-five and not retroactive. Moreover, we do not agree with the Commissioner’s position that this record shows that the appellants hold the money as a fiduciary for the owner, and so long as this trust relationship is recognized, the statute of limitations cannot run.

We are of the opinion that the trial court correctly ruled that the unclaimed suspense account debts which were owed for oil which was delivered by complainants and for which payment would have been made prior to April 27, 1965, are not subject to the provisions of Act No. 63. Section 16 contains no provision retroactively removing the bar of the statute if it had run before the effective date of the Act. Here the effective date of the Act was April 27, 1971. Therefore, claims for funds acquired prior to April 27, 1965, in absence of a showing that the statute is tolled (not shown by this record), are barred by the statute of limitations because they were demandable six years prior to the passage of Act No. 63.

AFFIRMED.

TORBERT, C. J., and FAULKNER, SHORES and BEATTY, JJ., concur.

      . “Limitation of six years. — The following must be commenced within six years:
      Actions for any trespass to person or liberty, such as false imprisonment, or assault and battery.
      Actions for any trespass to real or personal property.
      Actions for the detention or conversion of personal property.
      Actions founded on promises in writing not under seal.
      Actions for the recovery of money upon a loan, upon a stated or liquidated account, or for arrears of rent due upon a parol demise.
      Actions for the use and occupation of land.
      Motions and other actions against the sureties of any sheriff, coroner, constable, or any public officer, or actions against the sureties of executors, administrators, or guardians, for any nonfeasance, misfeasance, or malfeasance, whatsoever, of their principal, the time to be computed from the act done or omitted by their principal, which fixes the liability of the surety.
      Motions and other actions against attorneys at law, for failure to pay over money of their clients, or for neglect or omission of duty.
      Actions founded upon judgments obtained before justices of the peace of this state.
      Actions upon any simple contract or specialty, not herein specifically enumerated.”


text:
    John L. FISHER, Jr., et al. v. Alfred SMITH et al.
    SC 1709.
    Supreme Court of Alabama.
    Jan. 21, 1977.
    Arthur D. Shores, Birmingham, for appellants.
    Earl V. Johnson, Andalusia, for appellees.
   MADDOX, Justice.

This case has been here before. Many of the facts surrounding the dispute are set out in Rogers v. Smith, 287 Ala. 118, 248 So.2d 713, decided May 27, 1971, and will not be restated here.

After remandment, John, Joseph and Joyce Fisher, who were determined to be necessary parties to the reformation suit, in Rogers v. Smith, supra, filed an action of ejectment in October, 1973, against Alfred Smith, and others (Smith’s grantees and grantees’ mortgagee). The trial court, after hearing testimony, found, as follows:

“This Court does not ordinarily explain the reason for its ruling but in this cause, it is felt that an explanation of the ruling would be proper. As conceded by all parties to this proceeding a Plaintiff in Ejectment must recover on the strength of his own title and not on the weakness of the Defendant’s title. The Court has reviewed the proceedings in Case No. 6840 and Case No. 7356 on the Equity side of this Court relative to the title to the property involved in this litigation and upon a review of these records, the Court feels that in Case No. 7356 in accordance with the mandate of the Supreme Court case of Rogers vs. Smith [287 Ala. 118], 248 So.2d 713, the Court entered a decree setting aside the final decree in Case No. 6840 and the effect of that decree is that there is no adjudication in this Court relative to the title of the suit property prior to the death of Henry Rogers and there being no evidence of record title in Mack Rogers or Henry Rogers, there was no title to be vested pursuant to the will of Henry Rogers and there being no evidence of the probate of the will of Henry Rogers, it would have been ineffective to convey any title which descended from Mack Rogers to Henry Rogers, if in fact, there was not any record title in Mack Rogers.”

We have examined the record and it is apparent that the Court examined a file in the case of Henry Rogers v. Alfred Smith and others, and also a file in the case of Alfred Smith v. Henry Rogers. Both files were introduced into evidence by the appellants and were received into evidence, over objection of the appellee. Appellants’ counsel stated that the files were introduced to show “title in Henry Rogers.”

Exhibits 1-5 were as follows:

1. Henry Rogers’ Bill in the Nature of a Bill of Review (Case No. 7356).
2. Amendment to Complaint in Alfred Smith’s suit against Henry Rogers for reformation (Case No. 6840).
4. Affidavit of Alfred Smith in support of reformation suit.
5. Last Will and Testament of Henry Rogers (no showing on exhibit that it had been probated).

As pointed out by the trial judge, the plaintiffs had the burden of establishing title in them. See Ray v. Fowler, 265 Ala. 65, 89 So.2d 573 (1956). The trial judge found that plaintiffs failed to sustain their burden. We have examined the record and the testimony and we are convinced that the trial judge has not misapplied the law to the facts and neither has he made findings of fact which are clearly and palpably wrong.

Appellants argue that the trial court’s finding that the will of Henry Rogers had not been probated is plainly and palpably wrong. We disagree. There was a showing by probate court records that it had, in fact, been probated. Furthermore, in this case there was no showing what constituted, “any and all real property that I may own in Florala, Alabama,” the words used in the photocopy of the will we have before us. We affirm the trial court.

We would point out, however, that the original decree of reformation was set aside, and after two appeals to this Court, the record title has yet to be judicially established. Based on the record before us and before the trial court, however, we cannot determine what the respective interests are, especially in view of Alfred Smith’s initial claim that his deed from Henry Rogers should be reformed. We cannot tell from this record whether Smith has pressed, or intends to press, his reformation claim. All we hold here is that the trial judge did not err in finding and concluding that the plaintiffs did not sustain their burden in this action.

AFFIRMED.

TORBERT, C. J., and FAULKNER, SHORES and BEATTY, JJ., concur.


text:
    REDWING CARRIERS, INC., et al. v. FLOYD & BEASLEY TRANSFER COMPANY, INC.
    SC 1944.
    Supreme Court of Alabama.
    Jan. 21, 1977.

      J. Douglas Harris, Montgomery, for Redwing Carriers, Inc., North Alabama Express, Inc., AAA-Cooper Transportation.
    R. S. Richard, Montgomery, for Ross Neely Express, Inc.
    John B. Tally, Jr., Birmingham, for Bag-gett Transportation Co.
    Carl L. Evans, Montgomery, for Ala. Public Service Commission.
    John P. Carlton, Ronald L. Stichweh, Birmingham, for appellee.
   MADDOX, Justice.

Floyd & Beasley Transfer Company, Inc., appellee, filed an application with the Alabama Public Service Commission seeking approval to engage in dual operations, and issuance of a permit to operate, as a contract carrier by motor vehicle in intrastate commerce over irregular routes, in the transportation of:

(A) Paper and wood pulp,
Between the plantsite and warehouse facilities of Kimberly-Clark Corporation, Coosa River Newsprint Division, at or near Coosa Pines, Alabama, on the one hand, and, on the other, points in Alabama;
(B) Material, equipment and supplies used in the manufacture of paper and wood pulp,
Between points in Alabama, on the one hand, and, on the other, the plantsite and warehouse facilities of Kimberly-Clark Corporation, Coosa River Newsprint Division at or near Coosa Pines, Alabama.

A hearing on the application was held by the APSC on April 3, 1975, at which time Floyd & Beasley offered evidence in support of the application, including testimony of the supporting shipper, Kimberly-Clark, to the effect that it needed provision of a specialized “switching service” in order to reduce in-house handling and warehousing requirements, and the availability of a lower transportation rate in order to be able to effectively compete with a major competitor located in Tennessee. The applicant also introduced testimony that if it could not get the contract carrier service, it would institute private carriage operations of its own. Ross Neely Express, Inc., Redwing Carriers, Inc., North Alabama Express, Inc., AAA-Cooper Transportation, Hiller Truck Lines, Inc., and Baggett Transportation Company, all motor common carriers operating in intrastate commerce within the State of Alabama, offered evidence in opposition to the application. An examiner who heard the evidence issued his Report and Recommended Order on August 4, 1975, wherein he recommended denial of the application. He found that applicant Floyd & Beasley had failed to carry its burden of proving that the proposed service would be consistent with the public interest, and further, that Floyd & Beasley had not shown good cause for a finding that dual operations under the particular circumstances would be consistent with the public interest. Floyd & Beasley filed exceptions to the Examiner’s Report and Recommended Order. Replies to the exceptions were filed by Ross Neely and by Redwing, North Alabama, and AAA-Cooper. On November 24, 1975, the APSC issued the Report and Order of the Commission and adopted and incorporated the Examiner’s Report and Recommended Order. The APSC cited Section 301(12) of Title 48, Code of Alabama 1940 (Recompiled 1958), and found that no good cause had been shown to warrant a finding by the Commission that Floyd & Beasley may engage in dual operations consistently with the public interest. It denied Floyd & Beasley’s application.

Floyd & Beasley appealed the APSC order to the Circuit Court of Talladega County, Alabama. After briefs were filed by all parties, except Baggett, and oral argument was had, the circuit court entered a final judgment, in part, as follows:

“ * * * This the Court has done and has earlier found, and hereby holds, that the APSC erred to the prejudice of Floyd & Beasley’s substantial rights in its application of the law and the APSC’s order was based upon a finding of facts contrary to the substantial weight of the evidence.
“It is therefore, ORDERED, ADJUDGED and DECREED by the Court that the Order of the Alabama Public Service Commission, in its Docket No. 16957, dated at Montgomery, Alabama, on November 24, 1975, is reversed, and, further, this cause is remanded to the said Alabama Public Service Commission for issuance of a contract carrier permit authorizing operations as set out earlier herein to Floyd & Beasley Transfer Company, Inc. The APSC may impose restrictions upon such permit, or upon Floyd & Beasley’s presently held common carrier authority, if in its judgment such restrictions are necessary.”

Protestants-Appellants appealed to this Court.

We review the order of the trial court without any presumption that it is correct, because this Court is governed by the same rules in its review as was the circuit court, that is, as if the appeal from the APSC order had been taken primarily and directly to this Court. Alabama Public Service Com’n v. Consolidated Transp. Co., 286 Ala. 323, 239 So.2d 753 (1970).

The standards which govern the Commission involving an application for a permit to operate as a contract carrier are:

(1) that the applicant is fit, willing and able to properly perform the service of a contract carrier by motor vehicle and to conform to the provisions of the statute and the lawful requirements, rules and regulations of the Commission thereunder; and
(2) that the proposed operation to the extent authorized by the permit will be consistent with the public interest.
Alabama Public Service Com’n v. Consolidated Transp. Co., 286 Ala. at 325, 326, 239 So.2d at 755.

It is undisputed that the supporting shipper, Kimberly-Clark, went to Southeastern Leasing, Inc., a wholly owned subsidiary of Floyd & Beasley, for the purpose of arranging for trucks to be leased from Southeastern Leasing, in order that Kimberly-Clark could haul its own commodities. Floyd & Beasley proposed the contract carrier operation, the subject of the application to the APSC that is involved here. At the hearing, witnesses for the supporting shipper testified that it would go to private carriage if the Floyd & Beasley application was not granted.

Title 48, Section 301(11), Code of Alabama, 1940 (Recomp.1958), which deals with contract carrier regulation, provides, in part:

“ * * * Subject to section 301(12) of this title, a permit shall be issued to any qualified applicant therefor, authorizing in whole or in part the operations covered by the application, if, after public hearing of the application, it appears from the application and the evidence in support thereof or from any hearing held thereon that the applicant is fit, willing and able to properly perform the service of a contract carrier by motor vehicle and to conform to the provisions of this article and the lawful requirements, rules and regulations of the commission thereunder, and that the proposed operation, to the extent authorized by the permit will be consistent with the public interest, otherwise such application shall be denied. * * ” [Emphasis supplied]

It is apparent that the APSC was aware of the burden of proof in a contract carrier case, because the Examiner, in his Report, stated, in part, as follows:

“The Examiner is well aware of the distinction between the burden of proof required in a common carrier application versus a contract carrier application. An applicant in a common carrier application must establish that its proposed service is required by the public convenience and necessity. In the instant case, the applicant must establish that the proposed service would be consistent with the public interest. There is evidence of record in this case that the granting of the .permit sought by the applicant will have a serious adverse effect upon various of the protesting carriers. While it is true that the quantum of adversity contemplated by each of the protestants would be comparatively small in dollar volume, the actual results could apparently be quite harmful to the involved carriers and, therefore, perhaps to the public served by those carriers and the employees of those carriers. Apparently, the outbound movement of paper and woodpulp is much more important than the inbound movement of equipment, material and supplies used in the manufacture of paper and woodpulp. In fact, the supporting shipper states that it would be willing to consummate its contract with Floyd & Beasley if the Commission saw fit to deny the inbound portion of the application and to grant the outbound portion. The supporting shipper states that it would not propose to pay the contract carrier rate to Floyd & Beasley to have a truck sent to Mobile to pick up a 1,000 pound shipment for delivery to the supporting shipper. The supporting shipper would primarily utilize the applicant as a truckload carrier of outbound commodities. The existing motor common carriers would be expected to lose the more valuable truckload traffic but would be expected to stand ready to render the less profitable LTL service. The loss of the truckload traffic would have further adverse effect upon the continuation of the less profitable LTL service by the protestants. Any action taken by this Commission which can be contemplated to have an adverse effect upon the ability of existing motor common carriers to continue to render adequate LTL service would certainly not be consistent with the public interest.”

The question of dual operations was of particular concern to the Examiner and to the protestants. The Examiner, in his report, said as follows:

“The dual operations problem presented by the instant application is particularly troublesome to the Examiner. Floyd & Beasley proposes in the instant case to dedicate a particular truck and driver to the exclusive use of Kimberly-Clark from Kimberly-Clark’s Coosa River newsprint facility near Coosa Pines, Alabama, to any destination point in Alabama at which time said truck and driver somehow automatically leave the exclusive service oí- Kimberly-Clark and become available to the general public of Alabama authorized to be served by Floyd & Beasley within the confines of Floyd & Beasley’s common carrier authority which it holds from this Commission. In addition to certain general commodity, regular route authority held by Floyd & Beasley, it also holds certain irregular route authority relating specifically to general commodities in some cases and also as to general commodities as a matter of practice relating to textile mills located at points and places within a radius of 200 miles of Sylacauga, Alabama. While it is true that Floyd & Beasley would not propose to serve Kimberly-Clark as a common carrier, it is entirely conceivable that Floyd & Beasley would have an undue competitive advantage over other existing common carriers in respect to such traffic as might be contemplated to be involved as a result of a grant of the instant application. Additionally, an operation which on the same day is exclusively contract carrier in nature and then exclusively common carrier in nature would be difficult if not impossible for the Commission to police. The mere fact that shipments transported as a contract carrier might move from a different origin or to a different destination than those transported as a common carrier would not remove the opportunity for discrimination or undue advantage. The same would be true where the carrier may serve identical consignees from the same or different points of origin. The Interstate Commerce Commission has found in some cases that the holding of both a certificate and a permit may be consistent with the public interest. However, as with the Interstate Commerce Commission, each application, no matter how similar the circumstances to previous applications, must be determined on its own merits.
“Taking into consideration the services which the supporting shipper states that it needs and the services which the existing carriers state that they are ready, willing and able to provide as common carriers, and taking into consideration the particular proposal of the applicant in the instant case, the Examiner is of the opinion and finds that no good cause has been shown to warrant a finding of consistency with the public interest as relates to dual operations.”

The trial court, commenting on the dual operations question, held, as follows:

“The other principal contention of Floyd & Beasley is that the Attorney-Examiner and the APSC both ignored its evidence of record of its willingness to accept whatever restriction was necessary, either on its present common carrier authority or on the contract carrier authority requested, to obviate any opportunity for discrimination and thereby avoid any dual operations difficulty with its application. Dual operation as the term is used in Section 301(12) of Title 48, Code of Alabama (1940, Recompiled 1958) refers to a person holding at the same time a certificate as a common carrier and a permit as a contract carrier authorizing operations for the transportation of property by motor vehicle over the same route or within the same territory. The reason for such prohibition of dual operations, as found in the decisions by the Interstate Commerce Commission, is to prevent the possibility of discrimination when a shipper has available both common and contract carrier services in the same territory from the same carrier. Gallot-Purchase-Holst, 45 M.C.C. 1; Feree Moving and Storage, Inc., Contract Carrier Application, 99 M.C.C. 454, Schwerman Trucking Co. of Alabama, Inc., Contract Carrier Application, 89 M.C.C. 628. Because of the policy underlying the prohibition, the Interstate Commerce Commission has found it desirable in many cases to restrict or modify operating rights, or even condition a grant of authority on a reservation of the jurisdiction so to do in the future if required, thereby eliminating the objection to dual operations and granting authority otherwise prohibited. Such restrictions to operating authority effectively prevent operations ‘over the same route or within the same territory’ by the motor common carrier in both its contract and common carrier modes of operation. Cardinale Trucking Corp. Extension—Centreville, New Jersey, 100 M.C.C. 125, United Parcel Service of New York, Inc., Common Carrier Application, 79 M.C.C. 629, Lindner Brothers Trucking, Inc., Extension—Groceries, 77 M.C.C. 651.
“In the present proceeding there is but a single supporting shipper involved and the applicant’s presently held common carrier authority that is duplicative of the contract carrier authority sought consists mainly of its general commodity authority between Birmingham and Alexander City, serving Coosa Pines or Kimberly-Clark as an intermediate point on such route. In such circumstances it would appear to be a relatively easy matter to fashion a restriction or restrictions to completely remove any possibilities for discriminatory practices, thereby eliminating any bar to award of contract carrier authority due to dual operations. Floyd & Beasley’s general commodity authority between Birmingham and Alexander City via Sylacauga could be restricted against service to Kimberly-Clark or Coosa Pines; similarly, if necessary, Floyd & Beasley’s other irregular route authority could be restricted against service to Kimberly-Clark. Despite the ease with which restrictions could be fashioned to prevent even the possibility of discriminatory practices and despite Floyd & Beasley’s indicated willingness to accept restrictions either on its common carrier authority or the contract carrier authority requested, no discussion of restrictions, of any type, or why such restrictions could not be utilized is contained within the Examiner’s Report and Recommended Order. Furthermore, although the APSC adopted such Examiner’s Report and Recommended Order, is also chose to re-emphasize the dual operations aspect in its denial of Floyd & Beasley’s application. In fact, it appears to rely almost entirely upon such consideration as in its Report and Order on Page 2 it states ‘this application is governed by Title 48, Section 301(12), Code of Alabama 1940 (Recompiled 1958) dealing with dual operations,’ cites such Code section and then finds ‘that no good cause has been shown to warrant a finding by the Commission that Floyd & Beasley may engage in dual operations consistently with the public interest.’ In its order the APSC also does not discuss restrictions of any type nor why such restrictions would not obviate the dual operations prohibition even though Floyd & Beasley had pointed out its willingness to accept such restrictions in their Exceptions of Applicant to Examiner’s Report and Recommended Order served August 4, 1975. Such refusal to discuss, or even to recognize, evidence relating to such an important element and issue involved in dual operations is arbitrary and capricious, and constitutes error in the APSC’s application of the law.”

As we read the trial court’s decree, the trial judge thought that Floyd & Beasley had agreed to accept whatever restriction was necessary, either on its present common carrier authority or on the contract carrier authority requested. We do not believe Floyd. & Beasley made such a broad agreement. In any event, it was not a part of its application. The applicant apparently led the trial court to believe that the only common carrier authority held by Floyd & Beasley which would be duplicative of the contract carrier authority sought would be that of general commodities between Birmingham and Alexander City, Alabama, via Sylacauga, Alabama. That does not appear to be the case. Floyd & Beasley holds general commodity authority between other points in Alabama. The Commission was obviously not only concerned about special or discriminatory treatment as related to the relationship between Floyd & Beasley and Kimberly-Clark, it was also concerned with the same' possibilities as between Floyd & Beasley and all other real and potential receivers and shippers which would be involved within the scope of the proposed operations.

The protestants, in brief, make this assertion:

“Floyd & Beasley represented to the APSC that it would propose to serve the supporting shipper as a contract carrier on an outbound basis from the shipper’s facility at Coosa Pines, Alabama, to all points and places in the State of Alabama. Upon completion of such outbound movement from Coosa Pines, the truck and driver (heretofore operating under contract carriage) suddenly, by magic, began operations pursuant to common carriage authority held by Floyd & Beasley. That truck and driver would then be free to render service throughout the State of Alabama, serving the textile industry, or it could render service to hundreds of other shippers and receivers pursuant to Floyd & Beasley’s general commodity regular route authority, or that truck and driver could suddenly reenter the contract carrier status and pick up a load of materials, equipment, or supplies from any point throughout the entire State of Alabama and return to Coosa Pines. A very interesting and perplexing question is raised as to the following. Suppose Floyd & Beasley takes a load outbound from Kimberly-Clark at Coosa Pines as a contract carrier destined to a particular point in Alabama where Kimberly-Clark had a consignee for paper or woodpulp. If Floyd & Beasley had no textile mill to serve at that same destination point, under what authority would Floyd & Beasley operate to traverse the highways of Alabama from said destination point to an origin point where it would begin to operate pursuant to its common carrier authority?
“By way of example, if the instant authority were granted, Floyd & Beasley could serve Kimberly-Clark as a contract carrier from Coosa Pines to Decatur, Alabama. It is not unlikely that such shipment from Coosa Pines might be destined to such a giant concern as Monsanto at Decatur. Floyd & Beasley could then offer service to Monsanto as a shipper to any point in Alabama such as Montog-mery, such transporation being performed by Floyd & Beasley as a common carrier. Certainly, Floyd & Beasley could then mysteriously transform itself back into a contract carrier and transport a load of materials, equipment, or supplies from Montgomery to Kimberly-Clark at Coosa Pines. Thus, it is elementary that the granting of the instant application would have allowed Floyd & Beasley to perform virtually thousands of transportation services which it cannot now perform and for which no need has been shown.”

The protestants make a valid point, and Floyd & Beasley, in brief, does not deny the protestants’ assertion that a contract carrier could be transformed into a common carrier. In brief, it says:

“ * * * Appellants then state that ‘Floyd & Beasley could then offer service to Monsanto as a shipper to any point in Alabama such as Montgomery, such transportation being performed by Floyd & Beasley as a common carrier.’ This statement can only be true if Floyd & Beasley already holds existing common carrier authority to perform such service. The granting of the instant application would not extend Floyd & Beasley’s existing common carrier authority in any manner whatsoever. . . . ” (Emphasis added).

It is obvious that the Commission recognized that Floyd & Beasley could engage in dual operations and it was on this basis, in part, that the application was denied.

We affirm the order of the trial court remanding this cause to the Commission to allow the Commission to impose restrictions on Floyd & Beasley’s contract carrier authority or upon its common carrier authority. Since the Commission found that restrictions such as proposed orally during the hearing would be difficult to police, the applicant should be permitted to present evidence to show that this Commission finding is erroneous.

The order of the circuit court, insofar as it orders the Alabama Public Service Commission to issue a contract carrier permit, is reversed.

This cause is reversed and remanded to the circuit court with directions to that court to remand the cause forthwith to the Alabama Public Service Commission in order that the Commission may review this cause in accordance with what has been said in this opinion.

AFFIRMED IN PART; REVERSED, IN PART; REMANDED WITH DIRECTIONS.

TORBERT, C. J., and FAULKNER, SHORES and BEATTY, JJ., concur.


author: PER CURIAM.

text:
    Walter C. DUNCAN et al. v. Nell SHERRILL.
    SC 2026.
    Supreme Court of Alabama.
    Jan. 21, 1977.
    Sherman B. Powell, Decatur, for appellants.
    Merrill W. Doss, of Doss & Sparkman, Hartselle, for appellee.
   PER CURIAM.

This is a boundary line dispute between coterminous landowners. The trial court fixed the boundary after hearing evidence from an assortment of witnesses, examining various documents and surveys, and viewing the property. The Duncans, neighbors of Sherrill, appealed.

The record is replete with evidence which supports the line as fixed by the trial court. As we have so often said, a decree fixing a boundary line between coterminous lands on evidence submitted ore tenus and viewed by the trial court has the effect of a jury verdict and will not be disturbed on appeal unless plainly or palpably contrary to the weight of the evidence. Casey v. Keeney, 290 Ala. 94, 274 So.2d 68 (1973); Jones v. Wise, 282 Ala. 707, 213 So.2d 914 (1968).

On appeal, the Duncans recognize this well-established principle of law and focus most of their argument on the trial court’s failure to grant their motion for new trial wherein they sought a new trial before another judge, because of the asserted prejudice of the judge who tried this case.

In support of their motion for new trial, the Duncans filed an affidavit made by the attorney who represented them in which he said that, after the case was tried and during a meeting in chambers with counsel for both sides present, the trial judge disclosed to the lawyers that the plaintiff, Mrs. Sher-rill, had been his daughter’s first grade teacher and had done a good job, for which he and his wife were appreciative. This meeting took place sometime after the evidence in the case had been taken but before the judge viewed the property and some several weeks before the judge entered the judgment in this case. No objection was made to the judge continuing to a conclusion of the controversy until the Duncans filed their motion for new trial, which the trial judge denied after going on record to state that he had met Mrs. Sherrill two or three times, that he also knew the Duncans, and that the fact that Mrs. Sherrill had taught his daughter did not influence him, in anyway in deciding the case.

We affirm. There is absolutely no evidence in the record before us to suggest that the trial court was biased or prejudiced toward either party to this litigation. In fact, just the opposite appears. The only assertion of prejudice is in the affidavit of the Duncans’ lawyer who said it was his opinion that the fact that Mrs. Sherrill had taught the daughter of the judge affected his consideration of the case. Nothing in the record before us suggests that the trial judge should have disqualified himself under Canon 3 C. of the Code of Judicial Conduct, or otherwise. Prejudice on the part of a judge should not be presumed. At 48 C.J.S. Judges § 82b, the general rule is stated as follows:

“It is actual existence of prejudice on the part of a judge, not the mere apprehension of it by a party which disqualifies. Further, the disqualifying prejudice of a judge does not necessarily comprehend every bias, partiality, or prejudice which he may entertain with reference to the case, but must be of a character calculated to impair seriously his impartiality and sway his judgment, and must be strong enough to overthrow the presumption of his integrity. . .

In the instant case, there is no evidence of partiality on the part of the judge; therefore, we are not called upon to pass upon the quality and character of such evidence to determine whether it might have tended to sway his judgment.

The judgment appealed from is affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX, FAULKNER, SHORES and BEATTY, JJ., concur.