text:
    John Foster LORMAND, Plaintiff-Appellant, v. Eva Advalia MOUTON, Defendant-Appellee.
    No. 5624.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 1976.

      Toxie L. Bush, Jr., Abbeville, for plaintiff-appellant.
    Louis G. Garrot, III, Thompson & Sellers, Abbeville, for defendant-appellee.
    Before HOOD, MILLER and WATSON, JJ.
   WATSON, Judge.

Plaintiff, John Foster Lormand, has appealed from a judgment of the trial court decreeing a final divorce between him and defendant, Eva Advalia Mouton, and ordering Lormand to pay permanent alimony of $175 per month. Lormand contends that the trial court erred:

(1) in not decreeing a previous judgment of separation between the parties to be a nullity;
(2) in finding the separation of the parties to be the fault of the husband;
(3) in increasing the prior alimony award in the absence of a change in circumstances; and
(4) in awarding alimony in excess of one-third of the husband’s income in violation of LSA-C.C. art. 160.

We affirm.

Although the trial court did not specifically decree the nullity of the previous judgment of separation, it is clear from the reasons for judgment that the issue of fault was considered de novo. The same conclusion was reached in this suit as in the previous suit for separation, i. e., that the fault was Lormand’s. The parties have been separated some three years, and no purpose would be served by considering appellant’s contentions about the nullity of the judgment of separation. Re-consideration of the fault issue herein has rendered any complaint about the previous judgment moot.

There is ample testimony in the record to sustain the findings that the separation was due to the husband’s fault and that the wife was not at fault. The parties were married in December, 1939 and had been married some 36 years. Permanent alimony is clearly justified.

The only real issues presented by the appeal are:

(1) whether the increase in alimony was unwarranted; and
(2) whether the amount exceeds one-third of the husband’s income in violation of LSA-C.C art. 160.

It is, of course, unnecessary to show a change in circumstances in order to fix permanent alimony under LSA-C.C. art. 160 at a different figure than alimony pendente lite under LSA-C.C. art. 148. Here, the trial court relied heavily on the record in the suit for separation in determining the wife’s means and the husband’s property and earnings. It is contended that the increase is an abuse of the trial court’s discretion.

The trial court increased the alimony of the wife by only $25 per month, setting it at $175 rather than $150. She now pays approximately $40 per month for life insurance, cancer insurance and two policies of hospitalization insurance. The reasons for judgment in the previous suit for separation state:

“ . . . the Court will order that the husband, Mr. Lormand, continue to carry insurance, hospitalization insurance, on his wife so long as he is able to do so.” (TR. 94)

Lormand testified that his wife would continue to be covered by his hospitalization insurance as long as the divorce was not final. The divorce is now final as a result of this judgment. At the time of the former hearing, Lormand was paying the insurance on the 1966 Mercury which his wife was driving. She no longer has this automobile for transportation and he no longer pays her automobile insurance.

The increase of $25 per month is clearly required for the wife’s support.

Lormand testified that his income had not changed from the time of the previous hearing when he was making $125.00 a week plus the use of a truck and an expense allowance of $120 per month. Even without consideration of the expense allowance and the truck, $175 per month does not exceed one-third of Lormand’s gross income, which is $541.66 per month. Lor-mand contends that the one-third should be calculated on his net income rather than his gross but that is not the language of LSA-C.C.,art. 160. Gross pay rather than take-home pay is the proper basis for fixing permanent alimony. Roberts v. Roberts, 145 So.2d 669 (La.App. 4 Cir. 1962). The trial court pointed out in reasons for judgment that:

“His [Lormand’s] salary was reduced from the sum of Three Hundred ($300.00) Dollars a week to the sum of One Hundred twenty-five ($125.00) Dollars per week, several weeks before the alimony rule, by his brother who was and still is his employer.” (TR. 21)

Lormand withdrew the sum of $17,611.36 which was in a certificate of deposit on June 13, 1973 and his wife filed suit for separation on June 21, 1973. Lormand admitted that he did not divide this sum with his wife. Another certificate of deposit in the amount of $5,000 was withdrawn March 5, 1975. While Lormand said he paid bills with some of the money he admitted a lot went for “Gambling and partying and stuff like that.” (TR. 54) These sums constitute part of his “property” under LSA-C.C. art. 160.

It is axiomatic that the trier of fact has much discretion in fixing the amount of alimony and we find no abuse of that discretion. here.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed against plaintiff-appellant, John Foster Lormand.

AFFIRMED.

      . LSA-C.C. art. 160:
      “Art. 160. When the wife has not been at fault, and she has not sufficient means of her support, the court may allow her, out of the property and earnings of the husband, alimony which shall not exceed one-third of his income when:
      1. The wife obtains a divorce;
      2. The husband obtains a divorce on the ground that he and his wife have been living separate and apart, or on the ground that there has been no reconciliation between the spouses after a judgment of separation from bed and board, for a specified period of time; or
      3.The husband obtained a valid divorce from his wife in a court of another state or country which had no jurisdiction over her person.
      This alimony shall be revoked if it becomes unnecessary, and terminates if the wife remarries.”

      . LSA-C.C. art. 148:
      “Art. 148. If the wife has not a sufficient income for her maintenance pending the suit for separation from bed and board or for divorce, the judge shall allow her, whether she appears as plaintiff or defendant, a sum for her support, proportioned to her needs and to the means of her husband.”


source: Caselaw Access Project

author: MILLER, Judge.

license: Public Domain

text:
    Margaret Elizabeth Jones TRAYLOR, Plaintiff-Appellee, v. Norval Robertson TRAYLOR, Defendant-Appellant.
    No. 5637.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 1976.

      Polk, Foote, Randolph, Percy & Ledbetter by Lamar Polk Culpepper, Alexandria, for defendant-appellant.
    Yoltz & Ware by John R. Hickman, Alexandria, for plaintiff-appellee.
    Before HOOD, MILLER and WATSON, JJ.
   MILLER, Judge.

Defendant Norval Robertson Traylor appeals the award of $250 per month as alimony pendente lite (authorized by LSA-C.C. art. 148), pending trial of his and his wife’s cross-claims for a judicial separation. Husband contends he can’t pay that much alimony and seeks a reduction. We affirm.

A judgment awarding alimony pen-dente lite prior to a hearing on the suit for judicial separation is an appealable judgment. Lodatto v. Lodatto, 238 La. 305, 115 So.2d 359 (1959); Fuori v. Fuori, 316 So.2d 803 (La.App. 1 Cir. 1974).

Both parties testified concerning the needs of plaintiff Margaret Elizabeth Jones Traylor and husband’s ability to pay; the testimony taken at trial of the rule has not been made part of the record. Appellant made no effort to comply with LSA-C.C.P. arts. 2130, 2131 and 2132, relative to supplying a transcript of testimony or a written narrative of facts.

Husband’s request for a reduction is based on his contention that the trial court erred in evaluating facts. Where there are factual issues involved and the record on appeal contains neither the transcript of testimony nor an agreed statement of facts entered into between the parties or given by the trial judge, there is nothing for appellate review. Succession of Walker, 288 So.2d 328 (La.1974).

The trial court judgment is affirmed at appellant’s costs.

AFFIRMED.


author: WATSON, Judge. DOMENGEAUX, Judge

text:
    Mrs. Donitelle MARCEAUX, Plaintiff-Appellee, v. V. F. W. POST 2130, Defendant-Appellant.
    No. 5638.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 1976.

      Larry Roach, Lake Charles, for defendant-appellant.
    Jack Rogers, Lake Charles, for plaintiff - appellee.
    Before MILLER, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

Defendant, V.F.W. Post 2130, operates a bingo game licensed by the Calcasieu Parish Police Jury under the provisions of LSA-R.S. 33:4861.1, et seq. Plaintiff, Mrs. Doni-telle Marceaux, won a jackpot of $2325, which the V.F.W. refused to pay because the card on which she won was not registered. The trial court gave Mrs. Marceaux judgment for $2325. The V.F.W. has appealed, alleging that the trial court erred in holding Mrs. Marceaux entitled to recover in spite of the fact that her card was not registered.

The issue is whether there is manifest error in the trial court’s conclusion that Mrs. Marceaux is entitled to recover the amount of the jackpot.

The trial court’s factual conclusions are well supported by the evidence, and are as follows:

Mrs. Marceaux bought and paid for the card on which she won the jackpot and it was not registered due to an error on the part of the V.F.W.’s agent. The V.F.W.’s failure to register the winning card was not due to Mrs. Marceaux’s fault. The error consisted of another one of Mrs. Marceaux’s cards being registered twice in lieu of the winning card. Since the purpose of the registration was to assure that the cards were paid for and since Mrs. Marceaux in fact paid for the winning card, the lack of registration did not .affect Mrs. Marceaux’s right to recover.

Both parties to the appeal concede that there is no jurisprudence which is applicable. We conclude the matter must be decided on the basis of the equity defined in LSA-C.C. art. 1965:

“Art. 1965. The equity intended by this rule is founded in the Christian principle not to do unto others that which we would not wish others should do unto us; and on the moral maxim of the law that no one ought to enrich himself at the expense of another. When the law of the land, and that which the parties have made for themselves by their contract, are silent, courts must apply these principles to determine what ought to be incidents to a contract, which are required by equity.”

The V.F.W. Post profits by the bingo games which it conducts. Members of the public are induced to participate by the prospect of winning. There would be an unjust enrichment if the V.F.W. collected money for the bingo cards and failed to pay the winners. While the registration rule appears reasonable, the V.F.W. cannot raise lack of registration of a winning card when the lack of registration resulted not from the fault of the player but the fault of the V.F.W.’s agent, and when there is no question that the player actually paid for the card. The trial court correctly allowed recovery by Mrs. Marceaux.

For the foregoing reasons, the judgment of the trial court herein is affirmed. All costs of this appeal are assessed to defendant-appellant, V.F.W. Post 2130.

AFFIRMED.

DOMENGEAUX, J., concurs in the result and assigns brief reasons.

DOMENGEAUX, Judge

(concurs in the result).

I do not agree that the non-registration was due to an error of the defendant’s agent. Rather it is clear that the failure to register the winning card was due to the fault of Mrs. Marceaux and/or the members of her family who were also players at the games. Nevertheless, the winning card was paid for, hence the main and really only significant purpose of the V.F.W.’s registration rule was satisfied.

I respectfully suggest that it is not necessary to resort to equity in order to affirm.

      . Registration is a procedure whereby a notation is made by one of the persons conducting the bingo game of the serial numbers of cards which have been purchased. When a person wins on a certain card the list is checked to determine whether that card had been registered.

      . The constitutionality of LSA-R.S. 33:4861.1, et seq., has not been raised (cf. LSA-Const. 1974, Art. 12 § 6) nor has Mrs. Marceaux’s cause of action been challenged on the basis of LSA-C.C. art. 2983, which provides:
      “Art. 2983. The law grants no action for the payment of what has been won at gaming or by a bet, except for games tending to promote skill in the use of arms, such as the exercise of the gun and foot, horse and chariot racing.
      And as to such games, the judge may reject the demand, when the sum appears to him excessive.”
      Statutes are presumed to be constitutional. Jordan v. LeBlanc and Broussard Ford, Inc., 332 So.2d 534 (La.App. 3 Cir. 1976).
      Therefore, we do not consider the issues of (1) constitutionality and (2) cause of action to enforce a gaming debt.


author: WATSON, Judge.

text:
    Ollie DUPUIS, Defendant-in-Rule-Appellant, v. Gertie Dupuis CLEMENTS, Plaintiff-in-Rule-Appellee.
    No. 5648.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 1976.
    Sue Fontenot, Abbeville, for plaintiff-appellant.
    Edwards, Stefanski & Barousse by Nolan J. Edwards, Crowley, for defendant-appel-lee.
    Before HOOD, MILLER and WATSON, JJ.
   WATSON, Judge.

This suit is an outgrowth of previous litigation between the parties as a result of which, by judgment rendered April 24, 1971, the original plaintiff, Ollie Dupuis, was ordered to reconstruct a canal bordering her property in Vermilion Parish, Louisiana. The original defendant, Gertie Du-puis Clements, filed rule to show cause, alleging that Ollie Dupuis had failed to comply with the terms of the previous judgment. The rule was made absolute, and Ollie Dupuis was ordered to comply with the previous judgment. Ollie Dupuis moved for a new trial, which was refused. This suspensive appeal was perfected. We affirm.

On appeal, Ollie Dupuis contends that the trial court erred in making the rule absolute because he has in fact complied with the previous judgment; and that the trial court erred in refusing to grant a new trial.

In reasons for judgment on the rule, the trial court stated that there was a personal inspection of the area in question and:

“The evidence does not indicate that the judgment should not be complied with.” (TR. 84)

Since the trial court made the factual finding that Ollie Dupuis had not complied with the previous judgment, the only question is whether this finding is manifestly erroneous.

The parties herein are siblings and the record shows a family dispute following partition of inherited property. The canal, ditch, drainage and/or irrigation lateral in question is referred to throughout the proceedings as being from points B to B on Exhibit PD # 1, which is the plat in Act of Partition # 179676, conveyance records, Vermilion Parish, Louisiana.

Appellant, Ollie Dupuis, contends that he did in fact comply with the previous judgment by reconstructing an irrigation lateral; that this can be distinguished from a drainage lateral, which was not required; and that the trial court was confused as to this distinction in making the rule absolute. The prior judgment refers only to a canal. Since the original hearing on the merits and the rule were heard by the same judge, appellant has a difficult burden of proof in trying to show that the trial court failed to understand the terms of its previous judgment.

The testimony establishes that the waterway from B to B has been reconstructed as it was with the exception of a levee at one end. The trial court apparently concluded that its previous judgment intended the waterway to be reconstructed exactly as it had been before without the levee. We find no basis for a contrary finding and no manifest error in this conclusion.

For the foregoing reasons, the judgment of the trial court herein is affirmed. All costs are assessed to defendant-in-rule appellant, Ollie Dupuis.

AFFIRMED.


text:
    James Lee TOLBERT, Jr., et al. v. Monroby Tolbert NELMS et al.
    No. 48886.
    Supreme Court of Mississippi.
    Oct. 5, 1976.
    Farese, Farese & Farese, Peggy A. Jones, Ashland, for appellants.
    S. H. Long, Tupelo, for appellees.
   Appeal from Chancery Court, Lee County; J. D. Doty, Chancellor.

Before . INZER, P. J., SMITH and BROOM, JJ., and BIZZELL, Commissioner.

AFFIRMED.


text:
    MERCHANTS & MARINE BANK OF PASCAGOULA, Mississippi v. SINGING RIVER BANK, MOSS POINT, Mississippi.
    No. 48922.
    Supreme Court of Mississippi.
    Oct. 5, 1976.
    Frank J. Hammond, Jr., Moss Point, for appellant.
    Earl L. Koskela, Pascagoula, Stanford Young, Waynesboro, for appellee.
   Appeal from Chancery Court, Jackson County; Kenneth B. Robertson, Chancellor.

Before INZER, P. J., SMITH and BROOM, JJ., and BRAND, Commissioner.

AFFIRMED.


text:
    Clyde L. LEGGETTE v. Violet Brown LEGGETTE.
    No. 48721.
    Supreme Court of Mississippi.
    Oct. 5, 1976.
    Johnson & Walker, Jackson, for appellant.
    Robert G. Johnston, Cleveland, for appel-lee.
   Appeal from Chancery Court, Bolivar County; William H. Bizzell, Chancellor.

Before INZER, P. J., and SMITH and BROOM, JJ.

AFFIRMED.


text:
    TRUCK SPECIALIST, INC. v. C. I. T. SERVICE LEASING CORPORATION.
    No. 48888.
    Supreme Court of Mississippi.
    Oct. 5, 1976.
    Pigford, Hendricks & Fields, Meridian, for appellant.
    Goldman & Goldman, Meridian, for appel-lee.
   Appeal from Circuit Court, Lauderdale County; Lester F. Williamson, Judge.

Before INZER, P. J., and SMITH and BROOM, JJ.

AFFIRMED.


text:
    AKIN MOBILE HOMES OF GREENVILLE, INC. v. Mrs. Annie CUMMINS.
    No. 48895.
    Supreme Court of Mississippi.
    Oct. 5, 1976.
    Pigford, Hendricks & Fields, Meridian, for appellant.
    Carlton & Hollowell, Greenville, for ap-pellee.
   Appeal from Circuit Court, Washington County; B. B. Wilkes, Judge.

Before INZER, P. J., and SMITH and BROOM, JJ.

AFFIRMED.


text:
    Jimmy Wayne PEARSON v. STATE of Mississippi.
    No. 49278.
    Supreme Court of Mississippi.
    Oct. 5, 1976.
    Smith, O’Hare & Atkinson, Cleveland, for appellant.
    A. F. Summer, Atty. Gen., by Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Sunflower County; B. B. Wilkes, Judge.

Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.

REVERSED AND REMANDED.

PATTERSON and INZER, P. JJ., and SMITH, SUGGS, WALKER and BROOM, JJ., concur.


text:
    Delman Dean ANTHONY v. Ida M. ANTHONY.
    No. 49280.
    Supreme Court of Mississippi.
    Oct. 5, 1976.
    Pittman & Nobles, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Chancery Court, Rankin County; Osborn Guyton Idom, Chancellor.

Before PATTERSON, P. J., and SUGG and WALKER, JJ.

REVERSED AND RENDERED.

GILLESPIE, C. J., INZER, P. J., and SMITH, ROBERTSON, BROOM and LEE, JJ., concur.


author: BROOM, Justice,

text:
    Jerry ISAACKS v. STATE of Mississippi.
    No. 49323.
    Supreme Court of Mississippi.
    Oct. 5, 1976.

      Fred M. Witty, Greenwood, for appellant.
    A. F. Summer, Atty. Gen., by Ben H. Walley, Asst. Atty. Gen., Jackson, for ap-pellee.
    Before INZER, SMITH and BROOM, JJ.
   BROOM, Justice,

for the Court:

Felonious marijuana sale was the offense for which appellant, Isaacks, was convicted in the Circuit Court of Bolivar County. He was sentenced to a term of nine years in the state penitentiary and appeals. We reverse.

Facts of the case need not be set forth in detail. Summarized, the testimony established that Isaacks sold marijuana (8.2 pounds) to two law officers who met him at a previously arranged rendezvous near or in Cleveland, Mississippi. The jury rejected his alibi defense.

Reversal is urged on the ground that the district attorney went too far afield in his cross-examination of the defendant concerning irrelevant and prejudicial matters. The defendant was asked about such things as his general knowledge of marijuana, his opportunity of having seen marijuana on his father’s place, and how long he and his counsel “practiced” his testimony. Certain of defense counsel’s objections to such cross-examination were sustained and reversal might not be required if there were no other error before us. Inasmuch as the case will be remanded for a new trial, details of the prejudicial cross-examination of the defendant as to extraneous issues need not be fully developed here. Suffice it to say that, in criminal cases, the general rule is that the scope of the testimony should be limited to the singular issue of the defendant’s guilt under the indictment. Counsel will be accorded broad latitude of cross-examination as an appropriate means to test the truthfulness, accuracy, and credibility of any witness (including the defendant). Nevertheless, aimless repetitions and references to immaterial and inflammatory matters are to be avoided. Patrick v. State, 285 So.2d 165 (Miss.1973).

The second error argued by the appellant concerns a jury instruction (duly objected to) given in the following form:

THE STATE DOES NOT HAVE TO PROVE THE CHARGE BEYOND ALL POSSIBLE DOUBT BEFORE A CONVICTION CAN BE HAD, BUT THE STATE MUST PROVE THE DEFENDANT GUILTY BEYOND A REASONABLE DOUBT BEFORE YOU CAN CONVICT.
THE TERM “REASONABLE DOUBT” MEANS A DOUBT BASED UPON REASON AND COMMON SENSE. IT IS A DOUBT FOR WHICH A REASON (OR REASONS) CAN BE GIVEN, ARISING FROM A FAIR AND RATIONAL CONSIDERATION OF THE EVIDENCE OR THE LACK OF EVIDENCE.

The court has spoken a number of times on the giving or failure to give jurors a definition of “reasonable doubt.” Boutwell v. State, 165 Miss. 16, 143 So. 479 (1932). In Boutwell, we held that the court correctly refused to give such an instruction because “reasonable doubt” defines itself and needs no definition by the court.

In Simmons v. State, 206 Miss. 535, 40 So.2d 289 (1949), the appellant argued that the trial judge erred in telling prospective jurors on voir dire examination that “reasonable doubt must be of the type that you can give a reason for when you get back in the jury room and discuss the matter . . . .” There the court cited Boutwell and pointed out that courts should not attempt to define “reasonable doubt.” We said in Boutwell that the definition given (similar to the definition now before us) was erroneous and, even if the definition were correct, jurors need no definition of “reasonable doubt.” The instruction as given in effect tells jurors that they should be able to state a reason why they have a doubt. Such an instruction is erroneous because, in our jurisprudence, jurors are never required to articulate any explanation of their decision although they are to consult with each other. Cannon v. State, 190 So.2d 848 (Miss.1966). Such a rule is not peculiar to this state — in most jurisdictions the rule seems to be that instructions which attempt to define “reasonable doubt” are erroneous. 23A C.J.S. Criminal Law § 1280 (1961). That part of the instruction in controversy which defined “reasonable doubt” as based upon reason and common sense may convey abstract logic, but the language “for which a reason (or reasons) can be given” cannot be upheld. Burt v. State, 72 Miss. 408, 16 So. 342 (1894).

REVERSED AND REMANDED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ„ and SMITH, ROBERTSON, SUGG, WALKER and LEE, JJ., concur.


author: SUGG, Justice,

text:
    Jimmy P. WISE v. STATE of Mississippi.
    No. 49412.
    Supreme Court of Mississippi.
    Oct. 5, 1976.

      Thomas D. Berry, Jr., James Sideris, Gulfport, for appellant.
    A. F. Summer, Atty. Gen., by Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appel-lee.
   SUGG, Justice,

for the Court.

ON MOTION TO STRIKE SUPPLEMENTAL ABSTRACT AND SUPPLEMENTAL BRIEF

Jimmy P. Wise, defendant, was represented in trial court by two attorneys. On June 23, 1976, one of the attorneys filed an abstract of the record, assignment of errors and brief for defendant. On the same day the other attorney filed a motion requesting 10 days extension within which to file a separate abstract and brief for defendant. The motion was resisted by the State on the ground that the rules of this Court make no provision for supplemental briefs and abstracts. The motion was denied on that ground on June 28, 1976.

Notwithstanding the denial of the motion, two days later counsel filed a separate assignment of errors, abstract and brief on behalf of defendant. The State filed a motion to strike the supplemental abstract and brief and no response to the motion to strike has been made.

The rules of this Court do not provide for filing separate assignments of error, abstracts of record and briefs by co-counsel for an appellant. We therefore sustain the motion to strike the supplemental abstract and brief filed June 30, 1976.

MOTION SUSTAINED.

All Justices concur.


author: ROBERTSON, Justice,

text:
    Carrie YOUNG et al. v. MADISON GENERAL HOSPITAL et al.
    No. 48790.
    Supreme Court of Mississippi.
    Oct. 5, 1976.

      Blackmon & Smith, Canton, for appellants.
    Case, Montgomery & Smith-Vaniz, Canton, for appellees.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   ROBERTSON, Justice,

for the Court:

Carrie Young, Robert Smith, Lillie R. Diamond, Cammie Ricks, Eloise Nelson, and Mississippi Association for Community Health Care for the Poor, brought suit individually and on behalf of all others similarly situated, against the Madison General Hospital, Sidney Whittington, Administrator, the individual members of the Board of Directors of the Hospital, and the Madison County Board of Supervisors, in the Chancery Court of Madison County.

Complainants prayed for a permanent injunction “enjoining defendant Hospital, its agents, servants, employees and officers from further withholding information from medical records in the control and custody of said Hospital”. A general demurrer was sustained to the original bill of complaint. Whereupon, complainants dismissed as to the Madison County Board of Supervisors and amended their bill of complaint. The matter was then tried on the amended bill of complaint and answer thereto. After a full hearing the chancellor dismissed the amended bill of complaint. The complainants appeal.

Complainant Carrie Young was the only former patient of the Madison General Hospital to testify. Mrs. Betty Griffin, who was in charge of the medical records at the Madison-Yazoo-Leake Family Health Center, testified for the complainants.

Mrs. Young testified that she was a new patient at the health center, and that she had been a patient on numerous occasions at the Madison General Hospital since 1968. She testified that she had five children, all of whom were delivered at the Madison General Hospital. On cross-examination Mrs. Young stated:

“Q. You indicated that you had been a patient on numerous occasions since 1968,1 believe you said, at the Madison General Hospital?
A. That’s right.
Q. Were those in connection with childbirth?
A. That’s right. Tonsilitis, different things like that.
Q. Other than childbirth?
A. Oh, they call it pleurisy, near about the pneumonia, had my tonsils taken out. High fever. Just name it.
Q. Who was your doctor?
A. Dr. Percy Durfey, Jr.
Q. When was the last time you were in the Madison General Hospital as a patient?
A. Been quite a while now.”

Complainant Young further testified that she signed a “Release of Information” form on June 13, 1974. That form recited:

“This authorizes you to release to the Medical Record Department of Madison-Yazoo-Leake County Family Health Center all information in your records concerning
Patient’s Name Carrie Young . . . .”

A second form was signed by Carrie Bell Young on October 11, 1974. That form recited:

“The following is a demand for reasonable access to information contained in the medical records of Carrie Bell Young pursuant to § 41-9-65 of the Mississippi Code 1972 Annotated.
“This is to authorize any physician, hospital, medical attendant or others to furnish Betty H. Griffin Director of the Medical Records Department of Madison-Yazoo-Leake Family Health Center, reasonable access to my medical records in your possession which have information relating to my physical condition, and treatment rendered therefor and to allow to see or copy any x-rays or records which you may have regarding my condition and treatment.
The aforesaid demanded information is needed to enable my physicians at the Madison-Yazoo-Leake Family Health Center, to; document the course of my illness and medical treatment; provide continuity of care on follow-ups; aid in the communication of my past medical treatment to my physicians at the Madison-Yazoo-Leake Family Health Center; provide data to assist in protecting my legal interest and the legal interest of the Madison-Yazoo-Leake Family Health Center and its medical staff; to serve as a reference of my past illness for my physicians at the Madison-Yazoo-Leake Family Health Center to receive and analyze my previous illness and treatment and make judgments as to the course of treatment to be followed.
“The Madison-Yazoo-Leake Family Health Center is an institution engaged in the diagnosis, treatment or care of individuals suffering from physical or mental infirmities or disorders.
“The Madison-Yazoo-Leake Family Health Center will pay for the cost of reasonable access to the medical records of the above mentioned individual.” (Emphasis added).

Mrs. Griffin testified that she mailed these form releases for Mrs. Young and all of the other named complainants to the Madison General Hospital.

Three statutes cover the ownership and release of medical and hospital records on patients. Mississippi Code Annotated section 41-9-65 (1972) provides:

“Hospital records are and shall remain the property of the various hospitals, subject however to reasonable access to the information contained therein upon good cause shown by the patient, his personal representatives or heirs, his attending medical personnel and his duly authorized nominees, and upon payment of any reasonable charges for such service.” (Emphasis added).

Mississippi Code Annotated section 41-9-67 (1972) styled “Hospital records not public records; privileged communications rule not impaired”, provides:

“Except as otherwise provided by law, hospital records shall not constitute public records, and nothing contained in sections 41-9-61 to 41-9-83 shall be deemed to impair any privilege of confidence conferred by law on patients, their personal representatives or heirs, by section 13-1-21, Mississippi Code of 1972.”

Mississippi Code Annotated section 13-1-21 (1972), styled “Communications privileged; exception”, provides in part:

“All communications made to a physician or surgeon by a patient under his charge or by one seeking professional advice are hereby declared to be privileged, and such physician or surgeon shall not be required to disclose the same in any legal proceeding except at the instance of the patient or in case of the death of the patient at the instance of his personal representative or legal heirs in case there be no personal representative, or except, if the validity of the will of the decedent is in question, at the instance of the personal representative or any of the legal heirs or any contestant or proponent of the will.”

Even a cursory reading of these sections makes crystal clear the careful investigation that must be made and the great caution that must be exercised before doctors and hospitals authorize the inspection and release of the medical and hospital records of patients. A release of this information to the wrong person or wrong organization could cause embarrassment to the patient, and could possibly be the subject of a lawsuit for damages. The treating doctor or hospital is under a heavy duty and responsibility to thoroughly check the credentials of the person or organization requesting access to a patient’s records and to determine the specific records desired.

In the case at bar, all so-called requests for records were mailed to the Madison General Hospital by the Medical Records Department of the Family Health Center. This center did not come into being until January, 1974, and as of July 2, 1974, had enrolled 1227 families and 3470 individuals in its health services program. Every request for reasonable access to a patient’s records was handled by mail. At no time did Mrs. Betty Griffin or Dr. William Truly, medical director of the center, personally appear at the Madison General Hospital and ask for reasonable access to any patient’s records.

In the case of Mrs. Young, who was the only former patient of the Madison General Hospital to testify, no indication was made by Mrs. Young, Dr. Truly or Mrs. Griffin of what particular records the treating doctor needed to see or what records they needed copies of, even though Mrs. Young had been a patient there many times over a considerable span of years and had been treated for illnesses and disabilities running the gamut from normal childbirth to pleurisy and pneumonia.

Medical and hospital records of a patient are of a highly personal nature and as the statute says are privileged communications between the patient and his doctor or between the patient and the hospital. That is the reason the statute limits the patient, his or her attending medical personnel, and his or her duly authorized nominees “to reasonable access to the information contained therein upon good cause shown . and upon payment of any reasonable charges for such service.”

Medical and hospital records being highly personal in nature, reasonable access to them cannot be the subject of a class action suit.

The question could be logically asked as to just exactly what was expected of the hospital when it received the form through the mail requesting “reasonable access to information contained in the medical records of Carrie Bell Young”. Was the hospital expected to promptly reproduce and send to the medical records department of the family health center all medical and hospital records of Carrie Bell Young from 1968 through October 1974? Was the health center willing to pay for these voluminous records?

We construe the form request signed by Carrie Bell Young on October 11, 1974, to require the Madison General Hospital to provide Mrs. Betty Griffin or Dr. William Truly reasonable access to the medical and hospital records of Mrs. Young when Mrs. Griffin or Dr. Truly appeared personally at the Madison General Hospital and personally requested reasonable access.

After carefully checking these hospital records at the Madison General Hospital, Mrs. Griffin or Dr. Truly should designate which of the records the center would need, and for which the center would be willing to pay for producing copies.

The appellants not having complied with the requirements of Mississippi Code Annotated sections 41-9-65 and 13-1-21 (1972), the chancellor was correct in dismissing the original and amended bills of complaint, and his decree so doing is affirmed.

AFFIRMED.

GILLESPIE, C. J„ PATTERSON and IN-ZER, P. JJ., and SMITH, SUGG, WALKER, BROOM and LEE, JJ., concur.


text:
    Aaron CAIN v. STATE of Mississippi.
    No. 49195.
    Supreme Court of Mississippi.
    Oct. 5, 1976.
    Robert E. Arrington, Hattiesburg, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, ROBERTSON and LEE, JJ.
   ROBERTSON, Justice,

for the Court:

Aaron Cain was indicted, tried and convicted in the Circuit Court of Lamar County of the crime of grand larceny. The court imposed the following sentence:

“It is, therefore, hereby ordered and adjudged that the said defendant, Aaron Cain, be and he hereby is sentenced to serve five (5) years in Mississippi State Penitentiary, fined $1,000, all rights of parole and probation or early work release shall also be removed from said defendant . . .

The appellant, in his first assignment of error, says that the trial court erred:

“In not directing a verdict for the defendant when the State rested its case, and after the State and Defendant both rested their cases.”

We have carefully reviewed the record and studied the briefs and are of the opinion that the trial court properly submitted the question of the guilt or innocence of the defendant to the jury to decide, and that there is ample evidence in the record to support the verdict of the jury.

In his second and third assignments of error, the appellant contends that the trial court erred:

“2. In allowing the Waiver of Search Warrant to be presented over objection of the Counsel for Appellant.” and
“3. In allowing the money obtained from said 518 Ferguson Alley, Hatties-burg, Mississippi to be submitted as evidence over objection of counsel for Appellant.”

Lucille Parker, the girl-friend of appellant, testified that she lived at 518 Ferguson Alley, Hattiesburg, Mississippi; that she paid the rent for her bedroom and kitchen and furnished her own groceries, and that Aaron Cain lived with her. She further testified-that on December 14, 1974, the day after Cain had given her $80, she voluntarily signed a consent to search and waiver of search warrant for 518 Ferguson Alley. When her bedroom was searched on December 14, 1974, a total of $2740 was found in her room at 518 Ferguson Alley. $700.00 of this amount was found in the inside pocket of a suit coat in her closet, which coat belonged to defendant Aaron Cain.

United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), is disposi-tive of these two issues. In Matlock, the Supreme Court of the United States said:

“[M]ore recent authority here clearly indicates that the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.” 415 U.S. at 170, 94 S.Ct. at 993, 39 L.Ed.2d at 249.

Actually Cain testified that “I wasn’t exactly staying with her” but would “come backward and forwards to see her but I really live in Poplarville”. Cain also admitted on the witness stand that Lucille Parker rented the room at 518 Ferguson Alley. The trial court was correct in admitting into evidence the waiver of search warrant and the money found on the search of 518 Ferguson Alley.

In his last assignment of error, the appellant contends that the trial court did not have the authority to include this language in his sentence:

“[A]ll rights of parole and probation or early work release shall also be removed from said defendant . . . .”

In this contention he is correct. See Mississippi Code Annotated section 47-7-3 (1972).

In Bullock v. State, 222 So.2d 692 (Miss.1969), and again in Royalty v. McAdory, 278 So.2d 464 (Miss.1973), we held that where the trial court has included in a sentence conditions that it does not have authority to impose, that such portion of the sentence would be treated as surplusage and would not affect the enforcement of the valid portion of the sentence.

We, therefore, affirm that portion of the sentence ordering the defendant to serve a term of five years in the Mississippi State Penitentiary and imposing a $1,000 fine. The following language of the sentence will be deleted as surplusage: “[A]ll rights of parole and probation or early work release shall also be removed from said defendant”. As thus corrected, the sentence is affirmed.

AFFIRMED AS CORRECTED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, SUGG, WALKER, BROOM and LEE, JJ., concur.


author: PATTERSON, Presiding Justice,

text:
    MISSISSIPPI PUBLIC SERVICE COMMISSION, Appellant, v. MISSISSIPPI POWER COMPANY, Appellee.
    No. 49199.
    Supreme Court of Mississippi.
    Oct. 5, 1976.

      Pickering & McKenzie, Laurel, Bennett E. Smith, Jackson, for appellant.
    Watkins & Eager, Jackson, Eaton, Cott-rell, Galloway & Lang, Gulfport, for appel-lee.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   PATTERSON, Presiding Justice,

for the Court:

The Mississippi Power Company filed a proposed rate increase with the Mississippi Public Service Commission on February 28, 1974, to become effective April 1 of that year. Mississippi Power Company, hereinafter MPCo, estimated the rate increase would provide $8,500,000 for 1974, a 10.24% pro forma income increase over the rates of 1972. MPCo also proposed to add or “roll-in” approximately 2.25 mills in the base rate to reflect higher fuel costs necessary to the production of electrical energy. It also filed a schedule of proposed rate changes with a statement of the necessity therefor and supporting data as required by Mississippi Code Annotated section 77-3-37 (1972).

On March 11, 1974, the Mississippi Public Service Commission, hereinafter commission, suspended the proposed rate increase, whereupon MPCo filed a refunding bond so the suggested rate increase would take effect April 1, 1974. Public hearings before the commission concluded on July 30, 1974. The record consists of 86 exhibits and a transcript of 1459 pages resulting from eight days of testimony before the commission.

On August 12, 1974, the commission entered its order finding the rate increase was unjust, unreasonable and otherwise in violation of the law. It also deemed inappropriate the change in the amount of fuel cost included in the schedule of rates and charges (the base rate) for energy generated by the company. It concluded the company should reduce the proposed base rate to reflect the amount of fuel cost by which the base rate of the tariff schedule was increased on February 28, 1974, over the base rate in existence prior to that time and changed the new fuel cost adjustment clause accordingly. The commission directed a refund of the excess rates collected over approved rates together with 8% interest and determined that the rates in effect prior to April 1, 1974, were reasonable and just.

When MPCo’s petition for rehearing was denied by the commission, an appeal was perfected to the Chancery Court of the First Judicial District of Hinds County.

The chancery court held:

1. That the commission’s order of August 12, 1974, should be vacated because it was not supported by substantial evidence, was contrary to the manifest weight of the evidence and violated the constitutional rights of the appellant.

2. That the proposed change in rates filed with the commission on February 28, 1974, effective April 1, 1974, was just and reasonable, would yield revenues not in excess of a fair return on the reasonable value of the property of MPCo used in furnishing the service and that said rates should be approved.

The court thereupon vacated the commission’s order and approved the rates proposed by MPCo.

On its appeal to this Court the commission argues that the lower court erred in holding the commission order was not supported by substantial evidence, was contrary to the manifest weight of the evidence and violated the constitutional rights of the appellee and erred in fixing and establishing rates for the appellee.

The legal principles relating to the commission’s authority in establishing rates are well settled and have not been subject to substantial change. They are:

1. The burden of proof rests on the public utility to establish the reasonableness of new rates. Southern Bell T. & T. Co. v. Mississippi Pub. Serv. Com’n, 237 Miss. 157, 113 So.2d 622 (1959).

2. The commission, with its expertise, is the trier of facts and within this province it has the right to determine the weight of the evidence, the reliability of estimates and the credibility of witnesses. Capital Electric Power Ass’n v. Mississippi Power & Light Co., 216 So.2d 428 (Miss.1968); and Southern Bell T. & T. Co. v. Mississippi Pub. Serv. Com’n, 237 Miss. 157, 113 So.2d 622 (1959).

3. The order of the commission is presumptively valid. Loden v. Mississippi Pub. Serv. Com’n, 279 So.2d 636 (Miss.1973).

4. The reasonableness of rates charged, or to be charged, by a public utility is not determined by definite rule or legal formula, but is a fact question requiring the exercise of sound discretion and-independent judgment in each case. Southern Bell T. & T. Co. v. Mississippi Pub. Serv. Com’n, 237 Miss. 157, 113 So.2d 622 (1959).

5a. The chancery court’s authority on review is limited by Mississippi Code Annotated section 77-3-67(4) (1972) to: The order shall not be set aside in whole or part except for errors of law, unless the court finds it is not supported by substantial evidence, is contrary to the manifest weight of the evidence, is in excess of statutory authority or violates constitutional rights.

5b. The authority of 5a has been construed at times as follows: The sole question presented for decision is whether or not the action of the commission was arbitrary, not supported by substantial evidence or was manifestly against the evidence. Tri-State Transit Co. of La. v. Dixie Greyhound Lines, 197 Miss. 37, 19 So.2d 441 (1944).

We review the chancery court’s order with the above rules before us. We conclude, as did the lower court, that the commission’s order denying the proposed rate increase was not supported by substantial evidence. The testimony of the utility’s witnesses, with the exception of Dr. Lan-gum is largely uncontradicted as the trial court found:

. [T]he Commission failed to give proper consideration to other factors related to the rate structure, such as the increased cost of operating expenses, the increased capital cost of the business, which includes service on the debt and dividends on the stock, the added cost of pollution control, including the power used in the operation of the pollution control equipment. The undisputed evidence shows that the coverage on debt and preferred stock has dropped to a dangerously low level, and that dividends available for common equity continue to decline, even with the 1972 rate increase. The serious question now is whether the revenue produced by such rate will enable this utility to secure additional funds for expansion of facilities needed to serve its certificated area, and at the same time enable it to maintain coverages required by law.

We therefore affirm the trial court in its finding that the order of the commission was not supported by substantial evidence because it is apparent that the commission overlooked uncontradicted and reasonable testimony of the company’s witnesses in reaching its conclusion that the proposed rate increase was not supported by substantial evidence.

The next assignment of error challenges the authority of the chancery court to determine the rate increase on appeal. The legislative intention of embedding in the Public Service Commission the authority to fix and determine rates of return for public utilities has long been established [Miss. Code Ann. § 77-3-41 (1972)]. Our decisions also hold that the rate making function is legislative in character and not the function of a court. In Mississippi Public Service Comm’n v. Home Telephone Co., 236 Miss. 444, 110 So.2d 618 (1959), we held:

The chancery court erred in fixing a rate of return. The function of rate making is purely legislative in character. It is not within the power of a court to fix the rates to be charged by public utilities, although a court may restrain the imposition of confiscatory rates, or, under the Public Utility Act, determine whether the rates as fixed are supported by substantial evidence or within the other statutory restrictions set forth in Code, Sec. 7716-26. 43 Am.Jur., Public Utilities and Services, Sec. 83, pages 185-191. So that part of the decree fixing a rate of return for appellee is reversed. (236 Miss. at 461, 110 So.2d at 626)

This principle was recently reannounced in Mississippi Public Service Comm’n v. Hinds County Water Co., 195 So.2d 71 (Miss.1967), wherein we stated:

It is beyond question that the function of rate making in this state is purely legislative in character, and a court is without power to fix rates charged by a public utility. We have firmly established this rule in a number of cases. United Gas Corp. v. Mississippi Pub. Serv. Comm., 240 Miss. 405, 127 So.2d 404 (1961); Southern Bell Tel. & Tel. Co. v. Mississippi Pub. Serv. Comm., 237 Miss. 157, 113 So.2d 622 (1959); Mississippi Pub. Serv. Comm. v. Home Tel. Co., 236 Miss. 444, 110 So.2d 618 (1959). (195 So.2d at 78)

The legislature’s intentions and this Court’s pronouncements that the rate making function is legislative in character and rests with the commission and not the courts has been shadowed by Mississippi Public Service Comm’n v. Mississippi Valley Gas Co., 327 So.2d 296 (Miss.1976), and Mississippi Power Co. v. Mississippi Public Service Gomm’n, 291 So.2d 541 (Miss.1974). We there held the commission’s denial of rate increases was confiscatory and subject to being restrained. From this premise the proposed rate schedules filed by the utilities were adopted. Mississippi Valley Gas Co., supra, cited Mississippi Power Co., supra, as its authority for adopting the rate increase proposed by the gas company. In turn, the Mississippi Power Co. case, supra, cited Mississippi Public Service Comm’n v. Home Telephone Co., 236 Miss. 444, 110 So.2d 618 (1959), as precedent for determining the proposed rate by judicial order.

The authority of a court to enjoin or restrain the imposition of confiscatory rates does not ordinarily carry with it the power to establish the rate. A review of 43 Am. Jur., Public Utilities and Services, section 83, cited in Mississippi Public Service Comm’n v. Home Telephone Co., supra, updated in 64 Am.Jur.2d, Public Utilities, section 126 (1972), reveals that each referred solely to a restraint or injunction, prohibitions incapable of transferring the rate making power from the commission to the courts in derogation of state statute. Indeed, the authorities cited in these texts acknowledge the legislative character of rate making. In Los Angeles G. & E. Corp. v. Railroad Com., 289 U.S. 287, 53 S.Ct. 637, 77 L.Ed. 1180 (1932), the following typical language is noted:

It is the appropriate task of the commission to determine the value of the property affected by the rates it fixes, as that of an integrated, operating enterprise, and it is the function of the court in deciding whether rates are confiscatory not to lay down a formula, much less to prescribe an arbitrary allowance, but to examine the result of the legislative action in order to determine whether its total effect is to deny to the owner of the property a fair return for its use. (289 U.S. at 314, 53 S.Ct. at 647, 77 L.Ed. at 1197.)

We are of the opinion the blemish of established rules by the recent cases is removed by the terms of Mississippi Code Annotated section 77-3-67(4) (1972):

[T]he court may sustain or dismiss the appeal, modify or vacate the order complained of in whole or in part, as the case may be. In case the order is wholly or partly vacated the court may also, in its discretion, remand the matter to the commission for such further proceedings, not inconsistent with the court’s order as justice may require. (Emphasis added.)

As we view this language, it means that the court in addition to sustaining or dismissing an appeal may also, when the order is wholly or partially vacated, remand the matter to the commission for further proceedings not inconsistent with the court’s order. The discretion mentioned in the statute does not authorize removal of the rate making power from the commission where it is embedded by Mississippi Code Annotated section 77-3-41 (1972). The numerous references to the commission’s rate making power in the statutes, both precedent and antecedent to Section 77-3-41, buttress our thoughts that the legislature clearly intended that the power remain with the commission.

The rate making authority remains legislative in character and rests within the power of the Public Service Commission. The pronouncements of Mississippi Public Service Comm’n v. Mississippi Valley Gas Co., 327 So.2d 296 (Miss.1976), and Mississippi Power Co. v. Mississippi Public Service Comm’n, 291 So.2d 541 (Miss.1974), though dispositive of the issues under the circumstances in each of them, are nevertheless not authority to vest rate making powers in the courts.

The order of the lower court is affirmed insofar as it holds the commission’s order not supported by substantial evidence. It is reversed insofar as it adopted the proposed rate increase of MPCo, and remanded to the commission for determination of the proposed rate increase.

The plea in bar considered in conjunction with the cause on the merits is denied.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED TO THE COMMISSION. THE PLEA IN BAR IS DENIED.

INZER, P. J., and SMITH, ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.

GILLESPIE, C. J., did not participate in this decision.


author: BRADLEY, Judge.

text:
    STATE of Alabama v. The ADVERTISER COMPANY, a corporation.
    Civ. 635.
    Court of Civil Appeals of Alabama.
    Feb. 11, 1976.
    Rehearing Denied March 17, 1976.

      William J. Baxley, Atty. Gen., William H. Burton, Acting Counsel, Dept, of Revenue, and Asst. Atty. Gen., Philip C. Davis, Asst. Counsel, Dept, of Revenue, and Asst. Atty. Gen., for the State, appellant.
    Steiner, Crum & Baker, and M. R. Nach-man, Jr., Montgomery, for appellee.
   BRADLEY, Judge.

On November 30, 1971 the City of Montgomery adopted Ordinance No. 84-71, levying a business license tax on retail sales which was parallel in some respects to the State sales tax found at Title 51, Sections 786(2)-786(36), Alabama Code of 1940. The City also passed Resolution No. 460-71 which requested the appellant State Department of Revenue to collect the license tax. Such collection of municipal license taxes by the Department is authorized by Title 37, Section 759(1) of the Alabama Code of 1940:

“ . . . [U]pon the request by resolution of the council or commission of such city or town and upon the filing with said department a certified copy of the ordinance levying the tax, whenever such levy parallels the state levy except for the rate of the tax, and is subject to all definitions, exceptions, exemptions, proceedings, requirements, rules, regulations, provisions, penalties, fines, punishments and deductions as are applicable to the state sales and use taxes . . ..”

The Advertiser Company, appellee here, sells its newspapers in Montgomery to independent newscarriers, who are not licensed retailers, who in turn sell them to individual readers. This course of dealing creates some inconvenience for the State in collecting the tax due. As an accommodation therefor, the Advertiser and the Department of Revenue reached an agreement in 1959 whereby the Advertiser would directly return the State tax on sales made to its carriers, rather than require the State to tax the carriers. This arrangement was, and apparently continues to be, satisfactory as regards taxes levied by the State of Alabama. However, neither Advertiser nor its carriers has ever returned any tax to the Department of Revenue pursuant to the City’s Ordinance No. 84-71, and on October 4,1972 the Department issued to Advertiser notice to make such a tax return. A hearing on the Department’s preliminary assessment of $26,312.56 against the Advertiser was held and the assessment was adjusted. On February 22, 1973 the Department entered its final assessment of $8,410.17. Advertiser thereafter appealed the assessment to the Circuit Court of Montgomery County-

In its pleadings before the circuit court, Advertiser alleged that the assessment was an illegal levy on sales at wholesale, which are not within the scope of the relevant taxing ordinances. Appellee also alleged that the tax denied it due process of law and equal protection of the laws, and that the tax was a burden on interstate commerce.

On May 28, 1975 the case was submitted to the trial court on stipulations and exhibits. The Department objected to Advertiser’s submission of documents relating to a 1966 adjustment of an earlier assessment against the appellee. The trial judge did not rule on this objection at the hearing.

A decree in favor of Advertiser was rendered on June 17, 1975. In its findings contained in that decree, the trial court remarked that the sole underlying question for decision was whether or not Advertiser’s sales of papers to its independent carriers were “wholesale sales” within the definition of Title 51, Section 786(2). The trial court concluded that they were, and thus that they were not subject to the tax. On this basis the trial court set aside the assessment, taxed costs to the Department of Revenue, and discharged the supersedeas bond Advertiser had filed in connection with its appeal to the circuit court. On July 14, 1975 the Department filed its notice of appeal from this decree.

It is clear that the trial court correctly found that the controlling question before it was whether or not the sale of papers by Advertiser to its independent carriers amounts to a sale at wholesale: the statutory taxing scheme does not allow wholesale sales to be taxed, Title 51, Section 786(3)(a), Code of Alabama 1940. It is also clear that Title 51, Section 786(2)(i) provides us with the definition, for tax purposes, of a wholesale sale:

“(i) The term ‘wholesale sale’ or ‘sale at wholesale’ means any one of the following: a sale of tangible personal property by wholesaler to licensed retail merchants, jobbers, dealers, or other wholesalers for resale and does not include a sale by wholesalers to users or consumers, not for resale; . . . ” [Emphasis added.]

The question on appeal is whether the court below properly found that the transactions between Advertiser and its newscarriers met this definition.

The answer to this question depends on the significance attached to the word “licensed” in Title 51, Section 786(2)(i) and to the fact that none of Advertiser’s carriers is licensed. The trial court found that these factors did not render Advertiser’s transactions taxable. We reverse this finding.

Because this case was submitted on stipulations and briefs, appellate review consists of sitting in judgment on the evidence, McCulloch v. Roberts, 292 Ala. 451, 296 So.2d 163. The starting point for review is the language of Title 51, Section 786(2)(i).

The sales tax applies to retail sales. It is a tax paid by the ultimate consumer, and collected and returned to the State by the retailer. The word “license” is used throughout the tax statute to indicate a status conferred on a retailer by virtue of his remittance of collected sales tax in compliance with the law. A “licensed” merchant is one who remits the tax due on his sales; an “unlicensed merchant” is one who does not.

The scope of the sales tax statute does not extend to wholesale sales. However, the statutory definition of “wholesale” covers a more restricted category of sales than the word denotes in common parlance. Whereas the ordinary meaning of wholesale includes all sales made to retailers who will resell the item, the sales tax meaning of wholesale contained in the statute is limited to those sales made to licensed retail merchants for purposes of resale. The implication is clear: the legislature intends to collect its tax. If a wholesaler sells to a retailer who resells the goods but does not remit the tax due, then the retail sales tax becomes an obligation of the wholesaler. We see nothing infirm in the legislature establishing such a provision to prevent the possible avoidance of tax liability.

All of Advertiser’s newscarriers are unlicensed; all are engaged in retail selling to individual consumers. Because the newscarriers are not returning the tax to the State, the statute imposes this duty on Advertiser. Similarly, the municipal ordinance on appeal, paralleling'the State tax in this respect, imposes this tax burden on Advertiser.

Advertiser argues that its newscar-riers are not “merchants” but are “dealers”, and that the adjective “licensed” does not apply to dealers in Section 786(2)(i). It is pointed out that the stipulation in the record denominates the carriers as “dealers”. Though ably made, this argument does not avail Advertiser. The stipulation at one point states: “All of the news dealers are independent merchants.” This statement renders the stipulation weak evidence as to the proper characterization of the newscarriers. More important is the use of language by the Alabama Supreme Court in Merriwether v. State, 252 Ala. 590, 42 So.2d 465, and Cody v. State Tax Commission, 235 Ala. 47, 177 So. 146, to the effect that a dealer who sold to an ultimate consumer became liable for the sales tax as a “retailer” under predecessor sales tax statutes which incorporated wording identical to that before us now. What these cases import to us is that a seller under whatever nomenclature who completes the chain of commerce by selling to the individual that consumes rather than resells is a “retail merchant” for purposes of Section 786(2)(i). Advertiser’s carriers are retail merchants. They are not licensed retail merchants. Under the State sales tax, and the parallel provision of the Montgomery ordinance, Advertiser’s sales to its carriers are taxable as retail sales.

In addition to holding the transactions between Advertiser and its carriers to be “wholesale”, the trial court also found that the Department of Revenue’s position was untenable because its own policy N5-013 renders minors ineligible for retail business licenses. Only sixty percent of appel-lee’s carriers are minors; none of Advertiser’s carriers are licensed. This appears to be as much a result of appellee’s apathy toward licensing as of any policy of State government. The sample contract between Advertiser and carrier included in the record of this case does not indicate that licensing is. a prerequisite to becoming a carrier. The' record discloses not a single instance in which- a carrier’s application for licensing has been denied, nor even a single instance in which an application has been made. Yet forty percent of the carriers are adults eligible for licensing under the regulation. As to them, there is no standing to raise the licensing issue, Caiola v. City of Birmingham, 288 Ala. 486, 262 So.2d 602. The regulation does require the adults to post an itinerant vendor’s tax bond as a prerequisite to licensing. This is required by express provision of Title 51, Section 786(23) of the Alabama Code. Newscarri-ers are clearly itinerant vendors, and the statutory provision is a valid mechanism for insuring collection of taxes due. The trial court’s decree is reversed as to that portion of the tax assessment against Advertiser derived from its sales to unlicensed adult newscarriers. This much tax is due.

As to that portion of the tax attributable to minors, the existence of the Departmental regulation compels a different result.

Under the statute, and therefore the ordinance, the burden of returning this tax falls in the first instance on the carriers. Advertiser’s alleged tax liability arises only as a result of the carrier’s failure to obtain a “license” — i. e., failure to collect and remit the tax as required. However, the Department has taken the position that it will not issue a license, i. e., will not accept a return of the tax, from the minor carriers whose tax liability is primary. Such a stance by the Department cannot be given effect.

The power delegated to the Department is broad:

“The department shall from time to time promulgate such rules and regulations for making returns and for ascertainment, assessment and collection of the tax imposed hereunder as it may deem necessary to enforce its provisions; . . .” Title 51, Section 786(30), Code of Alabama 1940.

To a certain extent, Regulation No. N5-013 has the effect of permitting the Department to assess retail sales tax liability directly against Advertiser and dispense with the inconvenience of processing returns which could otherwise be submitted by the minors. This regulation simplifies the Department’s collection procedure, and it follows that the Department was not outside the bounds of the above delegated authority in issuing it. Nevertheless the regulation conflicts with the legislative policy ascertainable by reference to the statute, and judicial enforcement proceedings cannot be predicated on it, Alabama State Bd. of Optometry v. Busch Jewelry Co., 261 Ala. 479, 75 So.2d 121.

The State tax statute discloses no legislative intent to exclude minors from the activity of retail selling, or to exempt them from the license tax assessed on the privilege of engaging in that activity. There may well exist regulatory statutes which prevent minors from performing tasks related to some types of retailing, but the license tax is not a vehicle for their enforcement. Neither does the minority of a taxpayer per se establish a presumption that it is so lacking in financial responsibility as to render the tax uncollectible. State taxes on incomes and other privileges are regularly assessed against minors. The financial responsibility of the itinerant minor vendors, like their adult counterparts, is provided for in Title 51, Section 786(23) by imposition of a bond for taxes which, under Wiggins Estate Co. v. Jeffery, 246 Ala. 183, 19 So.2d 769, would be a binding contract for necessaries.

Regulation N5-013 is nothing more or less than the Department’s unilateral decision to refuse to collect the tax from the individuals on whom the statute places it. Absent express or implied statutory directive, it is not proper for the Department to make up the lost revenue by proceeding against a party whose liability arises only because of that unilateral refusal. The regulation having no foundation in the State statute, it cannot be effective under the City ordinance which parallels it. The decree of the trial court is affirmed as to all assessments which arose from sales made by minors.

Appellee finally argues that the Department is not authorized to collect the assessment since the Montgomery ordinance does not parallel the State sales tax, as required by Title 37, Section 759(1). The sole point complained of as being not parallel is where the City ordinance allows the merchant to absorb the tax, whereas the State tax is required to be passed on to the consumer, Title 51, Section 786(25), Code of Alabama 1940. This difference prevents the Montgomery tax from being a “sales tax”, Al Means, Inc. v. City of Montgomery, 268 Ala. 31, 104 So.2d 816.

The text of Section 759(1) disposes of this argument, for it expressly authorizes collection of “any municipal privilege license taxes levied” which are subject to the limitations of the “state sales and use taxes.” The Al Means case clearly establishes that the absorption provision is what makes a municipal tax a privilege license tax. It is absurd to interpret the legislative intent as requiring the municipal tax to parallel the State sales tax to the degree that the municipal tax would no longer be the type of tax referred to in the statute: if such were the case no tax would be capable of collection under Section 759(1) and the provision would be devoid of meaning. Absorption being a point of nonparallelism which is necessary to retrieve the statute from nonsense, we hold that it is permitted, Ott v. Moody, 283 Ala. 288, 216 So.2d 177.

Having found error in parts of the decree below, we must remand this cause for further proceedings to determine what proportion of the total assessment relates to sales to adult newscarriers. The trial court’s decree setting aside that portion of the assessment is reversed; the decree below is affirmed with respect to the sales to minors.

Affirmed in part; reversed in part and remanded.

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


author: JONES, Justice. SHORES, Justice

text:
    In re STATE of Alabama v. The ADVERTISER CO., a corp. Ex parte The ADVERTISER CO., a corp.
    SC 1774.
    Supreme Court of Alabama.
    Sept. 24, 1976.
    M. R. Nachman, Jr., Montgomery, for petitioner.
    William J. Baxley, Atty. Gen., and 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 respondent, the State of Ala.
   JONES, Justice.

Petition of The Advertiser Co., a Corp., for certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that court in State of Alabama v. The Advertiser Co., a Corp., Ala.Civ.App., 337 So.2d 942, which was granted on May 4, 1976, and argued and submitted on June 14, 1976, is quashed as being improvidently granted.

WRIT QUASHED.

BLOODWORTH, MADDOX, FAULKNER and EMBRY, JJ., concur.

HEFLIN, C. J. and ALMON, SHORES and BEATTY, JJ., dissent.

SHORES, Justice

(dissenting):

The State appealed to the Court of Civil Appeals from a final decree rendered by the Circuit Court of Montgomery County setting aside a sales tax assessment against The Advertiser Company (Advertiser) entered by the State Department of Revenue. The sales tax was levied by the City of Montgomery and the Department of Revenue sought to collect it in accordance with Act No. 203, First Special Session, 1965 Acts of Alabama, approved April 20, 1965, page 272. The Court of Civil Appeals reversed in part the judgment of the trial court and we granted certiorari.

The Advertiser, admittedly and by stipulation of the parties, sold newspapers to independent persons for resale by them to ultimate consumers. The question presented here and below is whether these sales were wholesale ones within the meaning of Title 51, § 786(2)(i), Code:

“The term ‘wholesale sale’ or ‘sale at wholesale’ means any one of the following: a sale of tangible personal property by wholesaler to licensed retail merchants, jobbers, dealers, or other wholesalers for resale and does not include a sale by wholesalers to users or consumers, not for resale . .

The trial court held that because the transactions involved had all the elements of a wholesale sale — namely a sale by the Advertiser to admittedly independent news dealers for resale — the sales were wholesale ones and not subject to sales tax.

The Court of Civil Appeals agreed with the trial court that the issue turned on whether the sales by ‘the Advertiser to its newscarriers met the statutory definition of wholesale sales, but determined that, because the newscarriers were engaged in retail selling to individual consumers, they were retail merchants. However, since they were not licensed retail merchants, that court held that the duty to pay the tax fell on the Advertiser.

In so holding, the Court of Civil Appeals attached paramount significance to the word “licensed.” Whether the sales are subject to the sales tax is the determinative issue. If they are sales at retail, the tax is due and the Advertiser, under our statutory scheme, is liable for the tax if it fails to collect it from its buyer. However, if the sales are wholesale sales, no tax is due, and the Advertiser is not liable.

The State, in assessing the tax, necessarily contends that the sale by the Advertiser is a sale at retail. It bases this contention on the assertion that the sale does not fall within the statutory definition of a wholesale sale. It contends that the statute provides two basic classes of sales which are wholesale sales. The first, says the State, is a sale to a “licensed retail merchant,” who will resell the merchandise to the consumer. The other is a sale for resale, not to the ultimate consumer but to one who will in turn resell the merchandise to a retailer. Because the newscarriers do not sell the newspapers to a retailer, they do not fall within the second category, goes the State’s argument; and because they are not licensed retail merchants, they cannot fall within the first category. Therefore, the State asserts that the Advertiser is liable for the tax since the sale by it to its news-carriers is not a wholesale sale as statutorily defined.

Whether the sales tax is due on a sale is to be determined from the facts. If the sale is to the ultimate consumer, the tax is due. If, however, the sale is to one for resale, no tax is due. The purpose of Act No. 203, supra, is to impose a tax on the ultimate consumer of the property, regardless of who this may be. State v. T. R. Miller Mill Company, 272 Ala. 135, 130 So.2d 185 (1961).

“The Alabama sales tax has been held to be a consumer’s tax in the sense that the ultimate burden of the tax must be passed on to the consumer. King & Boozer v. State, 241 Ala. 557, 3 So.2d 572, and cases cited. However, as to taxable sales, the burden is upon the seller to collect from the purchaser the amount of tax due on a sale and the State looks to the seller for the tax. Doby et al. v. State Tax Commission, 234 Ala. 150, 174 So. 233, 237; Tanner v. State, 28 Ala.App. 568, 190 So. 292, certiorari denied, 238 Ala. 269, 190 So. 295. ...” Merriwether v. State, 252 Ala. 590, 593, 42 So.2d 465, 466 (1949).

Whether a sale is subject to the payment or collection of the sales tax in no way turns upon the single fact that the buyer possesses a license. The question is whether the sale is to one for his own use or consumption or for resale. The tax is due if the buyer uses or consumes the article whether he holds a retail license or not.

This distinction was clearly drawn in Cody v. State Tax Commission, 235 Ala. 47, 177 So. 146 (1937). That case involved sales of automobile parts to persons who used some of such parts to repair and recondition secondhand automobiles and resold some of such parts. Some of these persons operated retail outlets. The question was whether the seller of such parts was liable for the sales tax on all of such sales. There the court said:

“While it may not be the duty of the dealer in selling to him to follow up the transaction to see to it that none of the goods are used or consumed, it is his duty to know the general nature of the business conducted by the customer. He is bound to find out the nature of business conducted by him in respect to resales and consumption of goods of a similar sort. If the customer operates a retail place only, and is engaged in the business of reselling the goods so purchased from the dealer or jobber, there is no tax on the sale by the dealer to him, although the latter may, occasionally but rarely, take from his stock certain of the goods, supplies, and parts and use them on his own car or in rendering some desultory service to another. The question controlling on the dealer would be dependent upon the usual course of business of such customer, not what he might do on an isolated occasion. The dealer is bound to know only the general customary business of his customer. It may be a part of the business of the customer in the usual course, both to render service and to sell parts out of the stock purchased from the dealer, so that when the sale is made, the goods are not separated for resale from those which are used in service, and which would be subject to the tax on the sale by the dealer to the customer thus dealing with the goods. But the dealer, as we have said, is bound at his peril when he sells to a customer to know whether the customer is engaged in consuming such goods as a part of his course of business. If so, the sale of them all is taxable, though the customer may also out of the same lot habitually resell some of them to others.” (235 Ala. at 50, 177 So. at 148)

It is clear from Cody that the taxability of a sale does not turn on whether the sale is made to one holding a license for resale. Likewise, in Merriwether v. State, supra, the tax was imposed on the seller even though the sales were made to “regularly licensed retail automobile dealers,” because the facts indicated that the buyer consumed rather than resold such articles. The statutory definition of wholesale sale was identical to the language now contained in Title 51, § 786(2)(i).

In the instant case, it is not disputed that the Advertiser sells newspapers to newscar-riers who, in turn, sell the papers to the ultimate consumer. Clearly this sale is one for resale and is not subject to the sales tax. Although the Advertiser and other newspapers throughout the State have, for many years, collected the State sales tax from its newscarriers, they have done so pursuant to an agreement with the Department of Revenue. However, that agreement does not bind the Advertiser to collect a parallel sales tax imposed by municipalities, which is the subject of this case.

Therefore, I would reverse the decision of the Court of Civil Appeals holding the Advertiser liable for the tax on sales made to its adult newscarriers.

HEFLIN, C. J., and ALMON and BEAT-TY, JJ., concur.