author: GILLESPIE, Chief Justice,

text:
    Bennie CARSON et al. v. Louis CARSON, Executor of the Estate of Sidney Bates Carson, et al.
    No. 48660.
    Supreme Court of Mississippi.
    May 4, 1976.
    Rehearing Denied May 26, 1976.

      Smith, Downs, Coleman & Ross, Wendell H. Trapp, Jr., Corinth, for appellants.
    Mitchell, Rogers & Eskridge, Claude F. Clayton, Jr., Tupelo, for appellees.
    Before GILLESPIE, ROBERTSON and LEE, JJ.
   GILLESPIE, Chief Justice,

for the Court.

This case involves the question whether under the particular terms of the will, the testamentary power of sale conferred upon two named executors survived the death of one of them.

Bennie Carson and three other devisees under the will of Sidney Bates Carson, deceased, filed suit in the Chancery Court of Lee County to set aside two deeds executed by Louis Carson, Executor of the last will of Sidney Bates Carson. After a hearing on the merits of the controversy, the chancellor upheld the validity of the deeds in question, and Bennie Carson and the three other devisees appealed from the adverse decree.

The will of Sidney Bates Carson appointed in Item 1 thereof his wife, Minnie Fulton Carson, as executrix without bond. Other pertinent items in the will are as follows:

Item 4. Upon the death of my wife, Minnie Fulton Carson, I appoint my two children, Mrs. Jennie May Carson Godfrey, Executrix and Louis Carson, Executor, of my estate, real, personal and mixed as may then remain, to serve jointly without bond and without reporting to any court.
Item 5. Upon the death of my wife, I direct that my executor and executrix, named in the next preceding item, shall, in their joint discretion, sell, in parts, parcels or all together, all of my property and estate then remaining, at public or private sale as they may elect, and then divide the proceeds into shares of equal value of a number to the number of my children who survive my wife plus the number of my children who predecease my wife, but who have a child, or children then living.

Item 6 provides for distribution of the proceeds of the sale of the property to his children.

Item 7. It is my will and I hereby direct and authorize my Executrix and Executor heretofore named in Item 5, hereof, when my estate then remaining is sold by them, to execute all deeds, bills of sale or other instruments as may be required to effectively convey all, or any part of my estate then remaining to the purchaser or purchasers thereof.

Item 8 provided in part as follows:

It is my will and I hereby authorize my Executrix and Executor heretofore named in Item 5, hereof, when distribution of the proceeds of sale of my estate is undertaken by them in accordance with Item 6, hereof, where a portion thereof will be due to a minor, in their joint discretion to pay said minor’s portion to the person who then stands in loco parentis to said minor.

The testator died on June 1, 1959, and his wife, Minnie Fulton Carson, qualified as executrix and performed the duties as such until her death on December 14, 1973. At that time, Mrs. Jennie May Carson Godfrey (one of the executors named in Item 4) was already dead. Louis Carson was thereupon issued letters testamentary and proceeded to act as sole. executor. Without court order, he sold two tracts of land remaining in Sidney Bates Carson’s estate.

It is argued on the part of Bennie Carson and the other appellants that the will of Sidney Bates Carson reveals an intention on the part of the testator that the power to sell real estate was dependent upon the judgment or discretion of both executors named in the will and was a special trust or confidence reposed in both, and without the concurrence of both, the power could not he exercised.

The executor, Louis Carson, and the other four appellees, contend that the direction to the co-executors to sell the land and distribute the proceeds to certain named distributees survived the death of Mrs. Jennie May Carson Godfrey. The executor bases his argument on the ground that the power to sell the real estate is coupled with an interest in the executor to execute a trust. For authority, he relies on Bartlett v. Sutherland, 24 Miss. 395 (1852). The executor also relies upon the Bartlett case in contending that the will in the present case directs that the co-executors shall sell the land at all events. He further relies upon Mississippi Code Annotated section 91-7-49 (1972).

A power to sell real property given by a will to two or more persons as executors survives the death of one of them if the whole will evinces an intention that the real property be sold at all events. Bartlett v. Sutherland, supra. The opinion in Bartlett also states that the power survives if the power of sale is coupled with an interest in the executor to execute a trust. Bartlett is also authority for the proposition that wherever a power to act is conferred upon two or more persons, and it is dependent upon their judgment whether the act shall be done or not, the power conferred in such case is a special trust or confidence reposed in the judgment of all, and without the concurrence of all, the power cannot be exercised. This Court applied the latter rule in holding that the power did not survive in Batson v. Humble Oil & Refining Co., 213 Miss. 340, 56 So.2d 828 (1952), and Ex Parte White, 118 Miss. 15, 78 So. 949 (1918).

In Glidewell v. Pannell, 158 Miss. 249, 130 So. 288 (1930), the power to sell lands not otherwise devised, was held to survive. The Court found that the power to sell lands “was not confined to the personal discretion or judgment of the executors,” and the will required the lands to be sold “at all events.”

Bartlett provides the key to the construction of these powers. There the Court said: “The intention of the testator is much to be regarded in the construction of these powers, and they are to be construed with greater or less latitude in reference to that intent.” 24 Miss. at 402.

We now turn to the will to ascertain the intention of the testator. Item 2 gives his wife a life estate in his property with power to sell all property except real estate. Item 4 provides that upon the death of the testator’s wife, his children, Mrs. Jennie May Carson Godfrey and Louis Carson are appointed co-executors “to serve jointly without bond and without reporting to any court.” Item 5 directs that upon the death of testator’s wife, the executors “shall, in their joint discretion, sell in parts, parcels or all together, all of my property and estate thn remaining, at public or private sale as they may elect,” and then divide the proceeds in equal shares. Item 6 gives each of his children one equal share of the proceeds of the sale mentioned in Item 5. Item 7 authorizes his executors to “execute all deeds, bills of sale or other instruments as may be required to effectively convey all, or any part of my estate then remaining to the purchaser or purchasers thereof.” Item 8 provides that where any share is due a minor, the executors are authorized “in their joint discretion” to pay the minor’s share to the person who stands in loco parentis to the minor.

The general scheme of the will is to convert the property, remaining after the testator’s wife dies, into cash and distribute the proceeds to his children, but this purpose is qualified by repeated indications in the will that the testator intended that his co-executors serve jointly (Item 4), and sell the property in their joint discretion, in parts, parcels or all together at public or private sale, as they may elect (Item 5). And in Item 8, in distributing a share to a minor, their authority to act is limited to their joint discretion.

It is manifest that the testator intended to repose special trust and confidence in the joint discretion of his co-executors. This being so, it follows that he did not intend that his lands be sold at all events. As said in Bartlett,

We can readily conceive, that a testator might be willing to repose a power to sell his real estate at private sale, to the joint judgment of all his executors, when he would not be willing to trust so great a power to the discretion or judgment of a single one. Believing this to be the true construction of this will, we think the sale made by the acting executor was void, and conferred no title on the purchaser. 24 Miss. at 403.

It follows from what has been said that the power of the surviving executor does not survive because of the provisions of the will that the proceeds be distributed to the legatees named therein. This is not such an interest as to override the manifest intention of the testator that any sale be made upon the joint discretion of both executors.

The construction we now place upon this will is not inconsistent with the other provisions of the will being carried out in accordance with the testator’s intention. No reason has been suggested why the executor could not apply to the chancery court and obtain an order of sale so that the proceeds could be distributed as directed by the will. This procedure was suggested as the wise course in Batson v. Humble Oil & Refining Co., supra.

Finally, we hold that the provisions of Code section 91-7-49 do not cause the power to survive. The pertinent' provisions of this section are as follows:

Whenever any last will and testament shall empower and direct the executor as to the sale of property, the payment of debts and legacies, and the management of the estate, the directions of the will shall be followed by the executor, and the provisions herein contained shall not so operate as to require the executor to pursue a different course from that prescribed in the will, if it be lawful. If land be directed by the will to be sold, the sale shall be made and the proper conveyance executed by the executors, or such of them as shall undertake the execution of the will, or by the person appointed by the will to execute the trust. If the executor fail to qualify or die before he execute the will, and if the person appointed fail to execute the trust, the sale shall be made by the administrator with the will annexed.

This statute has been considered by the Court in several cases. In Bartlett, the Court noted that this statute is similar to one passed in England in the reign of Henry VIII in order to obviate inconveniences which were found to result from the strict rule of the common law which required the power of sale to be executed by all when the power was given by the will to two or more persons as executors.

In Ex Parte White, supra, the Court stated:

The controlling question in each case is to arrive at the intention of the testator. It would have been an easy matter in the present case for the testator to have conferred the power upon the survivor by the express terms of the will itself. If he had directed that any of his lands should be sold, then the misfortune of either executor failing to qualify or dying before the execution of the trust would be taken care of by our statute. If there is to be a sale of real estate at all events, then the statute sees to it that the purposes of the testator are not thwarted by misfortune or accident. But if there is to be no sale at all events, but only at the discretion of the two persons named as executors, then it is safe to require that this discretion be exercised jointly. 118 Miss. at 29, 78 So. at 951.

For the reasons stated herein, the final decree in this cause dated October 11, 1974, is reversed and judgment entered here for the appellants setting aside the deed from Louis Carson as executor to Larry C. Godfrey and his wife, Anne B. Godfrey, dated January 11, 1974, and from Louis Carson as executor to Lindsey E. Carson and his wife, Thelma B. Carson, dated February 28, 1974.

REVERSED AND RENDERED.

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


source: Caselaw Access Project

author: BROOM, Justice,

license: Public Domain

text:
    Nellie DICKEY v. Hillard T. PARHAM and Bud Eaton.
    No. 48679.
    Supreme Court of Mississippi.
    May 4, 1976.
    Rehearing Denied May 25, 1976.
    Smith, Downs, Coleman & Ross, Wendell H. Trapp, Jr., Corinth, for appellant.
    Mitchell, Rogers & Eskridge, Tupelo, for appellees.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   BROOM, Justice,

for the Court:

This wrongful death action (a non-resident attachment suit in the Chancery Court of Lee County) was brought by appellant, Mrs. Dickey, for herself and other statutory beneficiaries of Lee Russell Dickey, her deceased son. The decedent was killed when his automobile collided with the Seal-test Milk Company truck being driven by appellee Parham, who was the employee of the other appellee, Eaton. Damages in the amount of $10,000 were allowed at the first trial in the lower court. On appeal we affirmed the decree of the lower court as to liability, but reversed for inadequacy of damages and granted a new trial on the issue of damages only. Dickey v. Parham, 295 So.2d 284 (Miss. 1974). Upon retrial the lower court decreed a $30,000 judgment against both appellees (Parham and Eaton) which appellant argues is still so inadequate as to require a third trial. We affirm on condition that appellees agree to an additur set forth in this opinion; otherwise, the cause is again remanded for retrial on the sole issue of damages.

Facts of the case are as stated in our original opinion except at the second trial economist Oliver (whose testimony was not directly controverted) gave additional testimony. His testimony was to the effect that the twenty-one year old decedent had a life expectancy of 41.6 years. Based upon statistics, he stated that the decedent could have expected an annual income of $9,397. He mathematically converted such an annual income into an annuity which could presently be purchased for $188,674 at 4%. After reducing that figure by varying percentages to allow for the living expenses of the deceased, Dr. Oliver arrived at a minimum present net value of the life of the deceased at the time of his death: $92,497.

The issue now before us is: Must the $30,000 judgment be reversed for inadequacy?

An award which is so grossly inadequate (or excessive) as to shock the conscience of the court, or reflect a manifest miscarriage of justice, cannot be allowed to stand. Mindful of the foregoing rule, consideration of this case again requires us to consider the elements of damage. The opinion of this Court in Dickey v. Parham, supra, stated that three elements of damage were allowable:

(1) Gratuities that the parent had a reasonable expectation of receiving. Gordon v. Lee, 208 Miss. 21, 43 So.2d 665 (1949); Cumberland Telephone & Telegraph Co. v. Anderson, 89 Miss. 732, 41 So. 263 (1906);
(2) Loss to all the beneficiaries of the deceased’s society and companionship. Scott v. K-B Photo Service, Inc., 260 So.2d 842 (Miss.1972); Avery v. Collins, 171 Miss. 636, 157 So. 695 (1934); and
(3) The sum the deceased might have received as the present net value of his own life expectancy. Bush v. Watkins, 224 Miss. 238, 80 So.2d 19 (1955); Gordon v. Lee, supra; Cumberland Telephone & Telegraph Co., supra.

Appellees correctly argue that to allow Item (1) on gratuities, and also allow Item (3) as the present net value of the life expectancy of the deceased, would be' “to pyramid damages.” New Deemer Mfg. Co. v. Alexander, 122 Miss. 859, 85 So. 104 (1920), and Gulf M. & N. R. R. v. Graham, 153 Miss. 72, 117 So. 881 (1928). They point out that this was conceded by the appellees in the lower court. As stated in New. Deemer, supra, the plaintiff “was not entitled to recover the present net cash value of his earnings, measured by his life expectancy, and, in addition, recover the amount of any contributions the deceased might have made for the support of his mother.” Accordingly, we now hold that the elements of damages properly allowable in this case are: (a) loss of the deceased’s society and companionship, and (b) the sum he might have received as a present net cash value of his own life expectancy (any gratuities are included in this item and cannot be separately added). Our previous opinion reported at 295 So.2d 284 (Miss.1974), supra, correctly states the law except element of damages numbered (1) therein on gratuities, since it was also included in (3) of the opinion, should not have been allowed.

As pointed out in the court’s earlier opinion rendered in this cause, we have no formula by which damages can be computed to a mathematical certainty in a wrongful death action. Death awards in this jurisdiction have ranged between $2,-500 and $200,000. We will not place a floor or ceiling between which every judgment in wrongful death cases must fall.

The record does not show what value the chancellor placed upon loss of companionship. As to the present net cash value of the decedent’s life expectancy, the trier of fact (chancellor) had before him Dr. Oliver’s testimony plus other evidence that the decedent earned $2,635 during the last five years when school was not in session. Having before him such testimony, which in the main was the same at both trials, it became the duty and responsibility of the chancellor to award the decedent’s statutory beneficiaries just compensation. This Court will not ordinarily disturb the judgments and findings of the trier of fact below. However, if such judgments or findings evidence passion, prejudice or bias, or reflect a manifest miscarriage of justice, then we must cause to be made some manner of rectification.

Applying the rationale of prior decisions of this Court to the action taken by the chancellor who as trier of fact awarded appellant a judgment for $30,000, we must decide now whether he was manifestly wrong, or abused his discretion in not making a larger award. Significant is the fact that in his opinion rendered at the earlier trial of this cause (which we affirmed), the chancellor found that “the sole proximate cause of the collision and death of Lee Russell Dickey” was truck driver Parham’s negligence. Thus there is eliminated from this cause any question as to contributory negligence on the part of the decedent. Absent any such contributory negligence, upon the particular facts and circumstances of this record, we hold that the judgment appealed from ($30,000) is so grossly inadequate as to require reversal the second time. We have already stated that how to test the adequacy or inadequacy of verdicts in a wrongful death action is a most perplexing problem. This is true because the value of human life even when considered along with applicable elements of damages is difficult of proof. Nevertheless, such difficulty of proof is no justification to make or affirm an award when it bears no logical relation to the loss suffered. Here, where the decedent had completed three years of college, he was proven to be an industrious, hard working young man, and was absolved of any contributory negligence, the award of $30,000 is without any logical relation to the loss suffered.

Therefore, we must grant a new trial (on damages only) to appellant unless the ap-pellees will accept an additur of $30,000 in which case judgment will be entered here for $60,000 in favor of appellant. We emphasize that this decision is not to be construed as a floor or bottom line value of human life or in any manner limiting the amount of damages in any future case. Our decision merely provides an option, pursuant to Mississippi Code Annotated § 11-1-55 (1972), by which the appellees may at their election prevent a third trial of a case regarding a tragic vehicular accident. Should the defendants (appellees) not accept the additur within fifteen days after the judgment of this Court becomes final, the cause will be remanded for retrial on the issue of damages only.

AFFIRMED ON CONDITION OF ACCEPTANCE OF ADDITUR.

GILLESPIE, C. J., PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER and LEE, JJ., concur.


text:
    COLUMBUS BRICK COMPANY et al. v. MAYOR AND CITY COUNCIL OF CITY OF COLUMBUS, Mississippi.
    No. 48739.
    Supreme Court of Mississippi.
    May 11, 1976.
    Threadgill & Smith, David L. Sanders, Columbus, for appellant.
    Billy J. Jordan, Shields Sims, Columbus, for appellee.
   Appeal from Chancery Court, Lowndes County; Woodrow W. Brand, Jr., Chancellor.

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

REMANDED TO THE TRIAL COURT FOR DISMISSAL.

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

SUGG, J., took no part.


text:
    W. G. (Bill) TODD, Jr. v. Norman T. SMITH.
    No. 49262.
    Supreme Court of Mississippi.
    May 4, 1976.
    Walker, Franks, Rone, Bridgforth & Woods, Ltd., Mills E. Barbee, Hernando, for appellant.
    James E. Cahill, Jr., Senatobia, for ap-pellee.
    Before PATTERSON, WALKER and BROOM, JJ.
   BROOM, Justice,

for the Court:

By an injunction, the name of appellee, Smith (the loser in a democratic primary election), was by the Chancery Court of Tate County ordered placed on the general election ballot for the office of Justice of the Peace of District 3 of Tate County. The injunction effectively eliminated from the general election the winner (appellant, Todd) of the August Democratic Primary. Todd appeals, and we reverse.

The dispositive issue is: Was Smith’s proper remedy by petition to the County Democratic Executive Committee under Mississippi Code 1942 Annotated § 3143 (1956), or by bill for injunction in the chancery court?

Todd was a qualified and serving member of the Tate County Election Commission when he decided in the early part of 1975 to run for the office of justice of the peace (District 3). He orally told the election commissioners at their March 1975 meeting that he was resigning to seek the office of justice of the peace. Both he and Smith (the incumbent) filed their affidavits of candidacy and their names were placed on the primary election ballot of August 5, 1975. Smith did not challenge Todd’s qualifications or nomination until some thirty-eight days after the democratic primary election in which Todd received 830 votes to Smith’s 535. Subsequently Todd was notified by the Tate Count}' Board of Supervisors that he would have to submit a written resignation from the election commission, and on September 2, 1975, he filed his written resignation.

On September 12, 1975, “Smith filed a PETITION TO HAVE NAME PLACED ON GENERAL ELECTION BALLOT with the County Election Commissioners of Tate County, Mississippi, alleging that Todd was not eligible to be a candidate for justice of the peace in the August primary because he continued at that time to hold the office of County Election Commissioner. After a hearing, the County Election Commission dismissed Smith’s petition, and no appeal was taken. He then filed a BILL FOR INJUNCTION in the Tate County Chancery Court praying for an injunction to prohibit the election commission from placing Todd’s name on the general election ballot. «Todd’s demurrer, and motion to dismiss the Bill were both overruled. Finding that the controversy was “not an election contest—” and that Todd had not effectively resigned from the election commission, the chancellor ordered the election commission to place Smith’s name on the general election ballot. In the November 1975 general election Smith defeated an independent candidate and assumed the office of justice of the peace.

Todd contends that Smith failed to properly contest the election. He correctly argues that Smith’s remedy would have been by petition to the Democratic County Executive Committee as provided by Mississippi Code 1942 Annotated § 3143 (1956), “within twenty days after the primary election.” As this Court recently held in Jones v. Moorman, 327 So.2d 298 (Miss.1976), § 3143 was not effectively repealed by the Mississippi Legislature and is still in effect. Smith had an adequate remedy at law under § 3143 which he failed to pursue within the twenty day time limit. In fact, he never petitioned the County Democratic Executive Committee contesting the primary election results, but sought relief from the county election commission and the chancery court.

Smith argues that § 3143 is not applicable because there was no charge of fraud. Both Smith’s petition to the election commission and his bill for injunction charged that “all votes cast for him [Todd] are illegalfraud is implicit in such a charge. Jones v. Moorman, supra; Francis v. Sisk, 205 So.2d 254 (Miss.1967). Since Smith’s proper remedy was under § 3143 which he failed to pursue, the chancery court was without jurisdiction to grant him injunc-tive relief upon the facts revealed by the record before us.

It follows that the order of the chancery court must be reversed and a special election shall be called in accordance with Mississippi Code Annotated § 23-3-55 (1972).

REVERSED AND SPECIAL ELECTION TO BE CALLED.

GILLESPIE, C. J., PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER and LEE, JJ., concur.

      . We note that the office of justice of the peace has become that of justice court judge. Miss.Const. Art. VI, § 171, as amended (1975).


author: ROBERTSON, Justice:

text:
    Ronald J. SMITH, a/k/a Ronald Walker v. STATE of Mississippi.
    No. 49009.
    Supreme Court of Mississippi.
    May 4, 1976.
    Wilkins, Ellington, Latham & James, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by John C. Ellis, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, ROBERTSON and LEE, JJ.
   ROBERTSON, Justice:

Ronald J. Smith, also known as Ronald Walker, was indicted, tried and convicted in the Circuit Court of the First Judicial District of Hinds County, of armed robbery, and was sentenced to serve a term of thirty years in the Missisippi State Penitentiary.

After an all-night period of drinking at Freddie B’s and Peewee’s, bars in Jackson, Mississippi, about 7:30 a. m. Saturday, January 25, 1975, defendant Walker was a passenger on the back seat of Tommie Lee Brown’s automobile, as Brown drove his car west of U. S. highway 49 on County Line Road. Isaac Smith occupied the passenger’s side of the front seat and Arthur Lee Grant sat beside Walker on the back seat.

Defendant Walker pulled a pistol, forced Brown to stop the car, and made Brown, Grant and Smith get out of the car. Smith was slow in getting out and Walker hit him over the head with the pistol and knocked him down. Walker also shot once or twice into the ground by Smith.

Defendant Walker ordered them to go to the rear of the car and place their money on the trunk compartment. Isaac Smith placed his wa'Het containing about $220 on the trunk lid, and Grant placed about $8 thereon. Walker then picked up Smith’s wallet and money and Grant’s money. Defendant allowed Brown and Grant to get back in the car but would not let the victim, Isaac Smith, re-enter the car.

Defendant Walker ordered Brown to turn the car around and go back to Jackson, and as they passed Isaac Smith, Walker fired two more times, out of the car window.

Walker gave Brown a $100 bill, and Grant a $20 bill that he had taken off of Isaac Smith. Isaac Smith, Brown and Grant positively identified defendant Walker as the armed robber who pulled a pistol on them and robbed Smith and Grant at pistol point.

After the State rested its case, the defendant rested without putting on any testimony. The testimony was overwhelming and the jury was amply justified in returning a verdict of guilty as charged. The conviction and sentence are, therefore, affirmed.

AFFIRMED.

GILLESPIE, C. J., PATTERSON and INZER, P. JJ., and SMITH, SUGG, WALKER, BROOM and LEE, JJ., concur.


author: ROBERTSON, Justice

text:
    Frank S. PARKER, general guardian of persons and Estates of Melanie Anne White, et al. v. FORD MOTOR COMPANY and Louisville Motor Company.
    No. 48634.
    Supreme Court of Mississippi.
    May 4, 1976.
    Crawley & Ford, Kosciusko, for appellants.
    Watkms & Eager, Hassell H. Whitworth, Elizabeth Hulen, Jackson, Hathorn & Hathorn, Fair & Mayo, Louisville, for ap-pellees.
    Before GILLESPIE, ROBERTSON and LEE, JJ.
   ROBERTSON, Justice

for the Court:

This is a products liability case. Mrs. Jo Anne Parker White, the widow, and Frank S. Parker, Guardian of Melanie Anne White and Melissa Kaye White, minors, brought suit in the Circuit Court of Winston County, Mississippi, against Ford Motor Company and Louisville Motor Company, to recover damages for the wrongful death of Billy Charles White.

On February 18, 1972, Wayne White purchased a new 1972 Ford pickup truck from Louisville Motor Company, for his son, Billy Charles White. Billy Charles was 26 years old, and planned to use this pickup truck in his plumbing business.

About 7:45 p. m. on September 9, 1972, White was driving his pickup truck on a blacktop state highway in a southwesterly direction toward Louisville, Mississippi. He had negotiated a curve to the right, had covered a short straightaway stretch and was attempting to make a rather abrupt curve to the left when his pickup truck left the right side of the highway, traveled along a shallow roadside ditch, and crashed into an embankment. White was dead on arrival at the hospital from a broken neck or head injury.

Berlin Robinson, a friend of White, was following in his 1966 Ford pickup truck about 150 to 200 yards behind him at the time of the fatal accident. He testified that the night was clear, that he and White were driving about 50 or 55 miles an hour, that White was driving normally when his truck left the highway and crashed into the embankment.

After plaintiffs had rested, the trial court sustained motions for directed verdicts in favor of Ford Motor Company and Louisville Motor Company.

White’s pickup truck was not quite seven months old and had been driven 11,487 miles at the time of the fatal accident. It was a total loss.

Dr. Will T. McKie, Jr., professor of mechanical engineering at Mississippi State University and a consulting engineer on automobile problems, testified that ten days after the accident, on September 19, 1972, he carefully removed the steering column and entire steering mechanism from the decedent’s truck, disassembled the steering mechanism and carefully examined it.

His testimony as an expert was that the retainer clamp on the steering shaft was improperly installed, that by virtue of this improper positioning of the retainer clamp undue stress and strain was placed on a fabric insulator which eventually caused it to tear and the steering mechanism to separate. The immediate result would be that the driver would have no control over the steering and the front wheels. Dr. McKie was positive that the pickup truck left the manufacturer in this unsafe condition, and that this was the proximate cause of the fatal accident.

Dr. Richard Forbes, an associate professor of mechanical engineering at Mississippi State, at the instance, of Dr. v McKie, carefully examined and studied the steering column and steering mechanism from the wrecked pickup truck. Dr. Forbes confirmed Dr. McKie’s findings that the retainer clamp was improperly installed, thereby overloading the fabric insulator and causing it to eventually tear and give way. This caused the steering mechanism to separate, the connection with the front wheels to be lost, and the driver to have no control of the steering.

Forbes also was positive that the steering mechanism left the manufacturer in this unsafe condition, and that the separation of the steering linkage was the proximate cause of the fatal accident.

White, the driver, was killed in the accident, so he could not testify as to what actually happened. Usually in such a case the only evidence that can be adduced is circumstantial evidence. This is in the form of opinions of experts arrived at after carefully studying and examining the mechanical parts of the wrecked vehicle.

In Johnson v. State, 23 So.2d 499 (Miss.1945), this Court stated, with reference to circumstantial evidence:

“It was long ago held by this Court in the case of Browning v. State, 33 Miss. 47, citing Cicely v. State, 13 Smedes & M. 202, 211, and the principle has been uniformly adhered to since that time, that the sufficiency of circumstantial evidence is peculiarly for the determination of the jury, . . . .” 23 So.2d at 500. (Emphasis added).

In Cameron v. Hootsell, 229 Miss. 80, 90 So.2d 195 (1956), we reiterated this principle in these words:

“The evidence is circumstantial, and we have held that where a case turns upon circumstantial evidence it should rarely be taken from the jury.” 229 Miss. at 85, 90 So.2d at 197.

This principle was again repeated in Matthews v. Carpenter, 231 Miss. 677, 97 So.2d 522 (1957).

The opinions of mechanical experts as to latent defects were considered by the juries in reaching their verdicts in Ford Motor Company v. Cockrell, 211 So.2d 833 (Miss.1968); Ford Motor Company v. Dees (Ford Motor Company v. Adams), 223 So.2d 638 (Miss.1969).

The trial court was in error in directing a verdict for the manufacturer, Ford Motor Company. The testimony presented a question for the jury to decide.

The trial court was correct in directing a verdict for Louisville Motor Company, the retail dealer, because the testimony was that it was a latent defect, not discoverable by visual inspection.

This Court affirmed the jury verdict in favor of Mendenhall Motor Company, the retail dealer, in Ford Motor Company v. Cockrell, supra, because the defect in the wiring system was latent.

In Sam Shainberg Company of Jackson v. Barlow, 258 So.2d 242 (Miss.1972), we held that neither the wholesaler nor retailer of a pair of shoes would be liable for a latent defect in the heel of one of the shoes, where both the wholesaler and retailer sold the shoes in exactly the same condition they were in when they came from the manufacturer.

In the case of a defective ketchup bottle, we said:

“The defect in the bottle in question was not known to Early-Gary, and evidently, it could not be discovered by a visual inspection which was the only method that Early-Gary was expected to use. Neither the waitress nor Walters noticed any defect. Under these circumstances, Early-Gary could not be guilty of negligence in placing the defective bottle on the table for use by its customers.” Early-Gary, Inc. and H. J. Heinz Company v. Walters, 294 So.2d 181, 187, (Miss.1974).

The judgment of the trial court is affirmed as to Louisville Motor Company; but the judgment is reversed and the cause remanded for a new trial as to Ford Motor Company.

AFFIRMED AS TO LOUISVILLE MOTOR COMPANY;

REVERSED AND REMANDED AS TO FORD MOTOR COMPANY.

GILLESPIE, C. J., PATTERSON and INZER, P. JJ., and SMITH, SUGG, WALKER, BROOM and LEE, JJ., concur.


author: GILLESPIE, Chief Justice:

text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. S. B. GRESHAM and John C. Dunlap.
    No. 48640.
    Supreme Court of Mississippi.
    May 4, 1976.
    Rehearing Denied May 25, 1976.

      Ball & Ball, Oxford, for appellant.
    Fant, Crutcher, Moore & Spencer, Holly Springs, for appellees.
    Before GILLESPIE, ROBERTSON and LEE, JJ.
   GILLESPIE, Chief Justice:

Mississippi State Highway Commission appealed from a judgment of the Circuit Court of Marshall County in an eminent domain proceeding prosecuted by the Commission against S. B. Gresham and John C. Dunlap (landowners). The assignments of error involved the weight of the evidence offered by the landowners on the question of damages and the question whether the verdict is excessive. This case was previously before the Court on a motion to docket and dismiss the appeal and thereafter, on a motion to reinstate. Mississippi State Highway Commission v. Gresham, 323 So.2d 100 (Miss.1975). On the former appearance of this case, this Court held that the motion for a new trial was not timely filed.

In a long line of cases, this Court has repeatedly held that an assignment of error in this Court that the verdict of the jury was excessive or that the evidence did not support the jury’s finding will not be considered by this Court where no timely motion for a new trial was made in the trial court. T. G. Blackwell Chevrolet Co. v. Eshee, 261 So.2d 481 (Miss.1972); West Bros., Inc. v. Barefield, 239 Miss. 530, 124 So.2d 474 (1960).

AFFIRMED.

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

SMITH, J., took no part.


text:
    CITY OF JACKSON et al. v. Ray F. THOMAS.
    No. 48678.
    Supreme Court of Mississippi.
    May 11, 1976.

      John E. Stone, Davis H. Smith, Jackson, for appellants.
    Satterfield, Shell, Williams & Buford, E. P. Lobrano, Jr., Jackson, for appellee.
    Before GILLESPIE, PATTERSON and BROOM, JJ.
   GILLESPIE, Chief Justice,

for the Court.

On January 17, 1975, Ray F. Thomas was dismissed and removed from his position and duties as a police officer with the City of Jackson by a letter from the Chief of Police which specified violations of various rules and regulations of the Department. No demand was made by Thomas for an investigation by the Civil Service Commission as provided by Mississippi Code Annotated section 21-31-23 (1972).

This was Thomas’ exclusive remedy. Tenant v. Finane, 227 Miss. 410, 86 So.2d 453 (1956). The trial court had no jurisdiction to direct the City to reinstate Thomas and to reimburse him for all back pay.

REVERSED AND RENDERED.

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


author: PER CURIAM. SUNDBERG, Justice

text:
    THE FLORIDA BAR. In re AMENDMENT TO INTEGRATION RULE, ARTICLE XI.
    No. 47596.
    Supreme Court of Florida.
    Feb. 26, 1976.
    Case of Original Jurisdiction — The Florida Bar. J. Rex Farrior, Jr., Tampa, Edward J. Atkins, Miami, Marshall R. Casse-dy, Wilson J. Foster, Jr., Norman A. Faulkner, Tallahassee, and Burton Young, N. Miami Beach, for The Florida Bar, petitioner.
   PER CURIAM.

We have before us for consideration a petition of The Florida Bar to amend the Integration Rule, article XI. After due notice, the Court has heard argument in the matter. Having heard such argument and having reviewed the record and briefs, we approve the following proposed amendments, as revised by the Court:

Rule 11.02
(4) Trust funds and fees.
(c) TRUST ACCOUNTING PROCEDURES: The Florida Bar shall promulgate by-laws under this rule, such by-laws and amendments thereto to be approved by this Court, prescribing minimum trust accounting records which shall be maintained and minimum trust accounting procedures which must be followed by all attorneys practicing in Florida who receive or disburse trust money or property. The minimum procedure shall require reconciliation of trust account balances at periodic intervals and the annual filing of a certificate reflecting compliance with minimum record keeping and procedural requirements. Failure to file the required certificate or the return of a trust account check for insufficient funds shall be good cause for The Florida Bar to order an audit of the trust account at the cost of the attorney audited. Other audits for cause conducted by The Florida Bar shall be at the cost of the attorney audited unless the audit reveals that the attorney was without fault and that his trust account records and procedures are in substantial compliance with the minimum requirements.
Rule 11.03 (2)
(h) QUORUM, VOTE. Not less than three members shall constitute a quorum. All findings of probable cause and of guilt of minor misconduct shall be made by affirmative vote of a majority of the committee present, which majority must number at least two members. The number of committee members voting for or against the committee report shall be reflected in the report. Minority reports may be filed.
Rule 11.03
(8) STAFF COUNSEL AND GRIEVANCE COMMITTEE CHAIRMAN DETERMINATIONS OF NO PROBABLE CAUSE. If staff counsel and a grievance committee chairman concur in a finding of No Probable Cause the complaint may be closed on such finding without reference to a grievance committee.
Rule 11.06
(3) NATURE OF PROCEEDINGS
(a) ADMINISTRATIVE IN CHARACTER. A disciplinary proceeding is neither civil nor criminal but is a quasi-judicial administrative proceeding. The Rules of Civil Procedure apply except as otherwise provided in the Integration Rule.
Rule 11.06
(9) REFEREE’S REPORT
(a) CONTENTS OF REPORT. Within 30 days after the conclusion of a trial before a referee or 10 days after the referee receives the transcripts of all hearings, whichever is later, or within such extended period of time as may be allowed by the President of The Florida Bar for good cause shown, the referee shall make a report and enter it as part of the record, but failure to enter the report in the time prescribed shall not deprive the referee of jurisdiction. The referee’s report shall include (1) a finding of fact as to each item of misconduct of which the respondent is charged, which findings of fact shall enjoy the same presumption of correctness as the judgment of the trier of fact in a civil proceeding, (2) recommendations as to whether or not the respondent should be found guilty of misconduct justifying disciplinary measures, (3) recommendations as to the disciplinary measures to be applied. (4) a statement of any past disciplinary measures as to the respondent which are on record with the executive director of The Florida Bar or which otherwise become known to the referee through evidence properly admitted by the referee during the course of the proceedings. After a finding of guilt all evidence of prior disciplinary measures may be offered by bar counsel subject to appropriate objection or explanation by respondent, and (5) a statement of costs of the proceedings and recommendations as to the manner in which costs should be taxed. The costs shall include court reporters’ fees, copy costs, witness fees and traveling expenses and reasonable traveling and out-of-pocket expenses of the referee and bar counsel, if any. Costs shall also include a $50 charge for administrative costs at the grievance committee level and a $50 charge for administrative costs at the referee level.
Rule 11.06
(11) PLEA OF GUILTY BY ACCUSED OR RESPONDENT
(c) UNCONDITIONAL. An unconditional plea of guilty shall not preclude review as to disciplinary measures imposed.
Rule 11.10 (7) EMPLOYMENT OF CERTAIN DISCIPLINED ATTORNEYS
When attorneys have been placed on the inactive list, suspended, disbarred or allowed resignation pursuant to Rule 11.08 by order of this Court, they are ineligible to practice law until reinstated or readmitted. However, this shall not preclude a lawyer, law firm or professional association from employing the suspended, disbarred or resigned individual to perform such services only as may ethically be performed by other lay persons employed in attorneys offices under the following conditions:
(1) Notice of employment along with a full job description will be provided to staff counsel before employment commences.
(2) Information reports verified by the employee and employer will be submitted to staff counsel quarterly; such reports shall contain a statement by the employing lawyer certifying that no aspect of the employee’s work for the period involved the unauthorized practice of law.
(3) No suspended or disbarred attorney shall have direct contact with any client or receive, disburse or otherwise handle funds or property of a client.

It is so ordered.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON, ENGLAND and HATCHETT, JJ„ concur.

SUNDBERG, J., concurs in part and dissents in part with an opinion.

SUNDBERG, Justice

(concurring in part and dissenting in part).

In addition to the amendments to the Integration Rule approved by the Court herein, The Florida Bar submitted additional proposed amendments which have been rejected by the majority of the Court. From the majority’s rejection of the following amendments I respectfully dissent:

Rule 11.04
“(6) RECORD AND REPORT OF GRIEVANCE COMMITTEE.
“(a) NO FINDING OF PROBABLE CAUSE. If a grievance committee upon termination of its investigation does not find probable cause, the committee shall dispose of its file in the manner directed by the Board of Governors. If the grievance committee has notified the accused of the investigation, then the committee shall notify the accused of the action of the committee. The failure of a grievance committee to find probable cause shall not preclude further proceedings. Grievance committees may find No Probable Cause as to a complaint and thereafter in the fraternal tradition of the profession admonish the accused attorney to improve any practice or procedure which appears to have contributed to the filing of the complaint. Such admonishments do not constitute a disciplinary record for any purpose and costs shall not be assessed against the accused following a No Probable Cause Admonishment.
(Proposed amendment represented by underlined language.)

A number of grievance committees have employed this practice in the past with beneficial results, particularly in the case of young and inexperienced attorneys. Since such admonitions do not constitute a disciplinary record for any purpose I would grant the flexibility of such practice to grievance committees.

“Rule 11.10
“(3) SUSPENSION. The respondent may be suspended from the practice of law for a» appropriate rime er fer a definite period of time and or for an indefinite period thereafter to be determined by the conditions imposed by the judgment. Definite and indefinite periods of suspension may be included in the same judgment. During such suspension the respondent shall continue to be a member of The Florida Bar but without the privilege of practicing; and upon the expiration of the suspension period and the satisfaction of all conditions accompanying the suspension, the respondent shall become eligible to all of the privileges of membership in The Florida Bar. A suspension ef three months er less shah net require preef ef rehabilitation er satis faetefy passage ef the fherida bar examination-; a suspension ef mere than three menths shah require proof ef rehabhita-tien; No suspension shall be ordered for a specific period of time in excess of three years; one year. Indefinite suspensions which continue for over three year-9 one year shall require proof of rehabilitation and may require satisfactory passage of the Florida bar examination subsequent to the date of suspension. Suspensions for professional incompetence shall require satisfactory passage of the bar examination after the date of suspension. The provisions of this paragraph apply only to suspension imposed after the effective date of this change.
“(4) DISBARMENT. A judgment of disbarment terminates the respondent’s status as a member of the Bar. A former member who has been disbarred may only be admitted again upon full compliance with the rules and regulations governing admissions to the Bar. Except as might be otherwise provided in these rules, no application for admission may be tendered within three years one year after the date of disbarment or such additional period of time as may be prescribed in the disbarment order except that persons disbarred prior to the effective date of this paragraph may not apply for admission until at least three years after the date of disbarment.
(Words in struck through type represent deletions from the existing rule; words underlined represent additions.)

The Florida Bar has concluded, and I believe correctly, that the practical effect of a suspension under the current rules can be far more onerous than disbarment. Consequently the concept of disbarment from the practice of law has lost much of its significance, both practically and in the eyes of the public whose interests are to be protected by the disciplinary program of this Court and The Florida Bar. The proposed rule amendment is intended to shift the emphasis between the two forms of discipline so as to return to the historical and accepted connotations of the respective terms. I would approve this proposal.


author: ROBERTS, Justice. ENGLAND, Justice HATCHETT, Justice

text:
    John W. CORN, Appellant, v. STATE of Florida, Appellee.
    No. 46922.
    Supreme Court of Florida.
    March 19, 1976.
    Rehearing Denied June 4, 1976.

      Herman W. Goldner of Goldner, Marger & Davis, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard G. Pippinger, Asst. Atty. Gen., for ap-pellee.
   ROBERTS, Justice.

This cause is before us to review the decision of the County Court in and for Pi-nellas County which upholds the constitutionality of Section 821.01, Florida Statutes. We have jurisdiction pursuant to Article V, Section 3(b)(1), Constitution of Florida.

Appellant was informed against for violation of Section 821.01, Florida Statutes, providing:

“Trespass after warning. — Whoever willfully:
(1) Enters into the enclosed land and premises of another or into any private residence, house, or building of another, having been forbidden so to enter by the lawful occupant;
(2) Not having previously been forbidden, is warned to depart therefrom and refuses to do so;
(3) Having departed, reenters without the previous consent of the lawful occupant; or
(4) Having departed, remains about in the vicinity, using profane or indecent language shall upon conviction be punished as provided in § 821.38.”

in that on September 13, 1974, he willfully entered onto the premises of The Gateway Mall, after having previously been forbidden to enter and after having been warned to depart. He pled nolo contendere and the trial court adjudicated him guilty of violating Section 821.01(3), Florida Statutes, and fined him $100.00 plus $27.00 court costs. In his order, the trial court determined that Section 821.01, Florida Statutes, is constitutional, that the State of Florida has established a prima facie case, and ordered that since the defendant has challenged the constitutionality of Section 821.-01, Florida Statutes, the question of constitutionality is preserved for defendant’s appeal.

The record before us clearly supports the trial judge’s conclusion that the State has made a prima facie case for violation of Section 821.01, Florida Statutes, by the defendant. His activity is clearly within the purview of that conduct sought to be prohibited by the statute. He carried on in the Mall in a boisterous manner and after having been asked to leave and having been instructed that if he returned he would be prosecuted for trespassing, he did shortly thereafter return and told the officers to go ahead and arrest him because he was trespassing. His attack on the constitutionality of the statute is limited to an argument of unconstitutionality on the sole basis of violation of his right to equal protection under the law. However, in the same argument, he concedes that he was not discriminated against by being asked to leave the Mall or by subsequently being arrested for trespass, because of race, color, religion or national origin or on the basis of any arbitrary classification. In fact, he does not show how his right to equal protection is violated by the statute. The act in question does not apply arbitrarily and discriminatorily to appellant. Lasky v. State Farm Insurance Company, 296 So.2d 9 (Fla. 1974); Erwin v. State, 262 So.2d 677 (Fla. 1972); Jackson v. Consolidated Government of City of Jacksonville, 225 So.2d 497 (Fla. 1969); McKee v. State, 203 So.2d 321 (Fla. 1967); Finlayson v. Conner, 167 So.2d 569 (Fla. 1964); Insurance Co. of Texas v. Rainey, 86 So.2d 447 (Fla. 1956); and DiLustro v. Penton, 106 Fla. 198, 142 So. 898 (1932). He contends that the questioned statute appropriately applies to family residences and other buildings where the public is not invited but should not apply to public or quasi-public places because to the extent that a property owner, for his own financial advantage, opens his premises to the public, the more his ownership rights become limited, and urges that a strict construction of the statute and application of ejusdem ge-neris require that the Mall not be included within the meaning of the statutory language.

Review of his brief reveals no convincing argument on his behalf that his freedom of speech rights were violated. In Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966), the Supreme Court of the United States upheld the constitutionality of another portion of our trespass statute, Section 821.18, Florida Statutes (1968), and expressly stated:

“The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated. For this reason there is no merit to the petitioners’ argument that they had a constitutional right to stay on the property, over the jail custodian’s objections, because this ‘area chosen for the peaceful civil rights demonstration was not only “reasonable” but also particularly appropriate . . . .’ Such an argument has as its major unarticulated premise the assumption that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please. That concept of constitutional law was vigorously and forthrightly rejected in two of the cases petitioners rely on, Cox v. Louisiana, supra, [379 U.S. 536] at 554-555 [85 S.Ct. 453, at 464 and 480, 13 L.Ed.2d 471] and [379 U.S.] 563-564 [85 S.Ct. 476, 13 L.Ed.2d 487]. We reject it again. The United States Constitution does not forbid a State to control the use of its own property for its own lawful nondiscriminatory purpose.”

All natural persons have the inalienable right to acquire, possess, and protect their property. Article I, Section 2, Constitution of Florida. It has long been recognized that the rights in property are basic civil rights. Lynch et al. v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972). The original of private property is founded in nature. 1 Blackstone 138. In Wilkinson v. Leland et al., 27 U.S. 627 at 657, 7 L.Ed. 542 (1828), the Supreme Court of the United States emphasized the importance of the right to private property as basic to the foundation of our democratic system of government in the following language:

“The fundamental maxims of a free government seem to require, that the rights of personal liberty and private property should be held sacred.”

Cf. State v. City of Stuart, 97 Fla. 69, 120 So. 335 at 346-347 (1929). The right of property has been characterized as a sacred right, the protection of which is an important object of government. 16 Am. Jur.2d, Constitutional Law Section. Relative to the significance of this right, the Supreme Court of Texas in Spann v. City of Dallas, 111 Tex. 350, 235 S.W. 513 at 515 (1921), explicated:

“To secure their property was one of the great ends for which men entered into society. The right to acquire and own property, and to deal with it and use it as the owner chooses, so long as the use harms nobody, is a natural right. It does not owe its origin to constitutions. It existed before them. It is a part of the citizen’s natural liberty — an expression of his freedom, guaranteed as inviolate by every American Bill of Rights.
“It is not a right, therefore, over which the police power is paramount. Like every other fundamental liberty, it is a right to which the police power is subordinate.
“It is a right which takes into account the equal rights of others, for it is qualified by the obligation that the use of the property shall not be to the prejudice of others. But if subject alone to that qualification the citizen is not free to use his lands and his goods as he chooses, it is difficult to perceive yuherein his right of property has any existence.
“The ancient and established maxims of Anglo-Saxon law which protects these fundamental rights in the use, enjoyment and disposal of private property, are but the outgrowth of the long and arduous experience of mankind. They embody a painful, tragic history — the record of the struggle against tyranny, the overseer-ship of prefects and the overlordship of kings and nobles, when nothing so well bespoke the serfdom of the subject as his incapability to own property. They proclaim the freedom of men from those odious despotisms, their liberty to earn and possess their own, to deal with it, to use it and dispose of it, not at the behest of a master, but in the manner that befits free men.
“Laws are seldom wiser than the experience of mankind. These great maxims, which are but the reflection of that experience, may be better trusted to safeguard the interests of mankind than experimental doctrines whose inevitable end will be the subversion of all private right.” ■■ (emphasis supplied)

Cf. Miller v. McKenna, 23 Cal.2d 774, 147 P.2d 531 (1944).

John Adams said in “A Defence of the Constitutions,” Coker, Democracy, Liberty and Property, at 125-6, that property is surely a right of mankind as truly as liberty. As a new country, we could have selected any form of government — socialism, communism, fascism or any other ism, but our leadership, with divine guidance, selected for this fledgling nation a system of free enterprise with a profit incentive, believing as they did and as we do now that a nation is stronger when its citizens are guaranteed the right to earn decent wages, acquire, possess and protect property, risk capital, and venture for additional profits.

Here we have a situation of property privately owned but utilized for monetary gain and hence opened to the 'public, property “quasi-public” in the nature of its use. In a sense an invitation is extended to the public to shop in the Mall to the financial advantage of the owners of the stores contained therein and consequently to the advantage of the Mall owner. The lobby of a commercial mall is a privately owned building to which the public has been invited to come, to look and to buy. The invitation presupposes that the conduct of persons coming there will be in keeping with such purposes. However, reasonable nondiscriminatory restrictions pertaining to the use of the Mall may be placed on the users of such Mall, such as the requirement that shoes be worn. As any invitation, it can be limited and, upon abuse, be withdrawn or revoked. This can be analogized to the lobby of a hotel where people come to rent rooms, buy food, and trade with shops located in the hotel. There would be nothing unreasonable about providing that swimming attire would not be permitted in the lobby; or, in a fine restaurant, the owner would have a right to require shirts, ties and jackets, so long as the regulation applied uniformly to all persons. Reasonably incident to the control and ownership of the Mall, a screaming, yelling, boisterous person could be asked to leave the premises. The trespass statute in question could certainly cover such a situation as this where one is causing such a disturbance in the Mall lobby as to warrant his being asked to leave and asked not to re-enter until the following day. It would certainly be to the financial detriment of all the store owners in the Mall to have someone causing a disturbance in the Mall lobby to the extent that it might keep would be customers from going into the Mall lobby if those causing disturbances therein could not be asked to leave. Once again, we must emphasize that no argument has been made by appellant that his freedom of speech right has been violated. Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), which involved the peaceful picketing of a business enterprise located within a shopping center is not applicable sub judice.

The statute in question was passed by the Legislature to assist the property owner in the protection of his property. Under the facts of the instant cause, the statute did not apply arbitrarily or discrim-inatorily to appellant. While we have many regulatory measures protecting civil rights of citizens, we also have constitutional duty to protect rights of property and the business community.

This court is committed to the fundamental principle that it has the duty if reasonably possible, and consistent with constitutional rights, to resolve doubts as to the validity of a statute in favor of its constitutional validity and to construe a statute, if reasonably possible, in such a manner as to support its constitutionality —to adopt a reasonable interpretation of a statute which removes it farthest from constitutional infirmity. By placing the foregoing construction on Section 821.01, Florida Statutes, we see no constitutional infirmity under the present attack made by appellant on the statute.

Accordingly, we find that appellant’s activities did fall within the language of Section 821.01, Florida Statutes, that said statute has not been unconstitutionally applied to appellant, and that he has not been deprived of his right to equal protection under the law.

It appears, however, that the judgment of the lower court failed to expressly adjudicate that appellant was guilty of the crime charged. The sentence (fine) not being anchored to a correct judgment of conviction must be vacated. The cause is, therefore, remanded for the purpose of entering a proper judgment; and upon such judgment being entered, the judgment will stand affirmed.

It is so ordered.

OVERTON, C. J., and ADKINS and SUNDBERG, JJ.; and SHOLTS, Circuit Court Judge, concur.

ENGLAND, J., concurs with an opinion.

HATCHETT, J., dissents with an opin-10n-

ENGLAND, Justice

(concurring).

, I concur in the result reached by a majority of the Court on the issues framed in this appeal. Had Corn appropriately and timely raised a denial of his constitutionally-protected right of free speech, I do not believe that the application of this statute to the facts in this case would sustain his conviction. See Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 324, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968). c. f. Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551, 560, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972).

HATCHETT, Justice

(dissenting).

Because I believe the information which initiated this prosecution does not charge the offense of which appellant has been found guilty, or, indeed, any offense under Florida law, I dissent from the affirmance of the conviction. I agree with the majority and my brother England, however, that there is no need to reach any first amendment question in the present posture of the case. The information alleges that John W. Corn at a specified time “enter-fed] onto the premises of Gateway Mall, after having been previously forbidden to enter and after having been warned to depart.” Evidently the draftsman intended to accuse Corn of a violation of subsection one of Fla.Stat. § 821.01 (1973). Arguably, he succeeded in charging, in a single count, violations of subsections one and two of Fla.Stat. § 821.01 (1973); but the trial court found Corn guilty of subsection three, which proscribes reentering, apparently on the theory that the facts admitted fall most nearly under Fla.Stat. § 821.01(3) (1973).

In accepting the plea of nolo contendere, the trial court had the benefit of depositions given by some of the persons involved in the incident out of which this case arises. The defendant himself was not questioned at any length because of “a serious heart condition.” (R 66) According to the depositions, the person who decided he would “rather just bar him [Corn] from the Mall, you know” (R 14) was an 18 year old high school junior in the employ of a private guard service. His name was Frank Johnson and he “wasn’t in a security guard uniform that day . . . [I]t was a Hawaiian weekend and [Johnson] had the Hawaiian shirt on with the badge on.” (R 23) He had on blue trousers and wore a straw hat.

Corn was a customer of one of the shops in the Gateway Mall, the Radio Shack, where he and a salesperson got into an argument in connection with the refund of the purchase price for a radio antenna. An employee of the Radio Shack summoned Johnson. After a certain amount of discussion the party adjourned to the mall commons. There, in the presence of two policemen, Officers Drolet and Loersch, Mr. Johnson told Mr. Corn to leave the mall. Officer Drolet testified:

As a matter of fact he [Johnson] told Mr. Corn, he said, “I’m the security guard here and I understand there was problems in the Radio Shack and I want to advise you that as far as the company goes or as far as the mall goes we restrict you right now from the mall area altogether, that’s any portion of it”. So Mr. Corn turned to him and said, “Who are you?” and he said, “My name is Johnson”, and at that point because of my experience I had Mr. Johnson show identification because he was not in what I would term a proper uniform. I had him show identification as Frank Johnson to Mr. Corn, and I then turned to Mr. Corn and said, “Now, I recognize this man as a security guard here”. I had seen him. I lived in the area. I had seen him in the area several times. So I did tell him the man was a security guard in that place. Mr. Corn then turned to him and told them he had no business telling him not to go in any particular area or place, that he had no authority to do so, and I at that time again cautioned Mr. Corn, he being a security guard, Johnson being a security guard did have that authorization.

After this, Mr. Corn left the premises but some ten minutes later returned, once again questioning Mr. Johnson’s authority to bar him from the mall. The record does not show who owned Gateway Mall. It may be that the owner contracted with a manager who contracted with Johnson’s employer for Johnson’s services. It may be that the mall owner, the mall manager and Johnson’s employer are each corporations.

There is no occasion to reach the question of Johnson’s authority, however, where the information fails even to allege that he has authority. Under the statute which section 821.01 replaced, warning or notice was to be given by “the owner or employee”. Under the statute at issue here, this element has been modified and authority to forbid entry is given to “the lawful occupant” of the premises. The information in the present case alleges that appellant was forbidden to enter and warned to depart but fails to specify by whom, he was forbidden and warned. Cf. State v. Huegel, 141 Fla.Supp. 133 (19th Cir. 1974) (Alderman, J.) An essential element of the offense is omitted. Such an omission is fatal, especially where the premises are those “of the Gateway Mall”, and not the home of a named person. Otherwise, the statute would be amenable to absurd interpretations, and manifestly unjust applications.

If the information in this case charges a crime, a citizen could have been convicted under it, at any time before July 1, 1975, for entering the premises of a shopping mall, after he had been told not to, regardless of who told him not to. Anybody at all — a man with a spendthrift wife, a shopkeeper in competition with a store at the mall — might forbid entry onto the mall’s premises, and bring to bear the whole power of the State to work his will. Section 821.01 does not contemplate any such plenary grant of police power to private persons, but limits to “the lawful occupant” the power to forbid entry or reentry, or to require departure.

Where an information purporting to charge an offense under section 821.01 fails to allege either (1) that entry or reentry was forbidden by the lawful occupant, or (2) that the lawful occupant warned the accused to depart, no crime is charged, in my opinion, because an essential element of the offense has been omitted. As we recently said, a “plea of nolo contendere admits, for the purpose of the case, all the facts which are well-pleaded and only those.” Allen v. State, 326 So.2d 419 (Fla. 1975). A conviction predicated on a plea to an information which fails to charge a crime is a nullity. Allen v. State, supra; Kelly v. State, 323 So.2d 565 (Fla. 1975); Baker v. State, 323 So.2d 556 (Fla. 1975); Zimmerman v. State, 320 So.2d 41 (Fla.App.2d Dist. 1975). Where an accusatory pleading “wholly fails to allege any offense against the defendant, or to allege the essential elements of the statutory offense sought to be charged, it cannot support a conviction.” 17 Fla.Jur. Indictments and Informations § 104 (1958) (footnotes omitted). When an information or indictment charges a crime, “[n]o essential element . . . should be left to inference.” Id. § 29. Evanco v. State, 318 So.2d 535 (Fla.App.1st Dist. 1975); Haley v. State, 315 So.2d 525 (Fla.App.2d Dist. 1975). See Long v. State, 92 So.2d 259 (Fla. 1957); Smith v. State, 324 So.2d 699 (Fla.App.1st Dist. 1976); Rodgers v. State, 325 So.2d 48 (Fla.App.2d Dist. 1975); Causey v. State, 307 So.2d 197 (Fla.App.2d Dist. 1975); Priester v. State, 294 So.2d 421 (Fla.App.4th Dist. 1974); Ashley v. State, 292 So.2d 616 (Fla.App.2d Dist. 1974).

The majority states, “It appears, however, that the judgment of the lower court failed to expressly adjudicate that appellant was guilty of the crime charged.” I agree. If the appellant was charged with any offense, the charge was either brought under Fla.Stat. § 821.01(1) or Fla.Stat. § 821.01(2). The judgment, if it adjudicates the appellant guilty of any offense, adjudges him guilty of § 821.01(3). This case is remanded for the purpose of entering a proper judgment, and upon such a judgment being entered, the judgment will stand affirmed, according to the majority. Will the parties have an opportunity to be heard before the judgment is “corrected”, or shall the new adjudication on offenses never properly charged be considered merely the correction of a typographical error ?

The present case has very little indeed to do with communism, socialism or even fascism, and a great deal to do with due process of law. We are called upon to decide a legal question, not an ideological or political one. The narrow issue for our consideration is whether a conviction, under a law since repealed, should be permitted to stand, even though it is predicated on an accusation which never charged a crime. The problem this case presents deserves careful technical analysis and resolution. I believe it is precisely because the majority has approached this matter as a broad philosophical question that it has gone astray, and I respectfully dissent.

      . “The right of ‘acquiring, possessing, and protecting property’ is anchored in the first section of the first article of our Constitution. This right is as old as Magna Charta. It lies at the foundation of our constitutional government, and ‘is necessary to the existence of civil liberty and free institutions.’ Billings v. Hall, 7 Cal. 1, 6.”

      . Cragin v. Ocean & Lake Realty Co., 101 Fla. 1324, 133 So. 569, 135 So. 795 (1931), appeal dism. 286 U.S. 523, 52 S.Ct. 494, 76 L.Ed. 1267; Haworth v. Chapman, 113 Fla. 591, 152 So. 663 (1933); Hanson v. State, 56 So.2d 129 (Fla.1952); Overstreet v. Blum, 227 So.2d 197 (Fla.1969); Hancock v. Sapp, 225 So.2d 411 (Fla.1989); Rich v. Ryals, 212 So.2d 641 (Fla.1968).

      . Burns v. State, 97 Fla. 232, 120 So. 360 (1929); Kuhn v. State, 98 Fla. 206, 123 So. 755 (1929); Ellis v. State, 100 Fla. 27, 129 So. 106 (1930); Anderson v. Chapman, 109 Fla. 54, 146 So. 675 (1933); State ex rel. House v. Mayo, 122 Fla. 23, 164 So. 673 (1935); Finch v. Mayo, 137 Fla. 762, 189 So. 27 (1939); and Hart v. State, 60 So.2d 489 (Fla.1952). Rule 3.650, Florida Criminal Rules of Procedure.

      . Hart v. State, 60 So.2d 489 (Fla.1952).

      . The majority concludes that the judgment of conviction is defective for want of an “express adjudication” of guilt. The pertinent language in the judgment is :
      The Court therefore finds the defendant, JOHN W. CORN, Guilty of violating F.S. 821.01(3) and fines the defendant .
      The trial court will evidently be able to meet the majority’s objection by substituting the word “adjudicates” for the word “finds”. The requirement for such precision of language is apparently a new one, going beyond what was required in the cases the majority cites. The opinions in Hart v. State, 60 So.2d 489 (Fla.1952); Kuhn v. State, 98 Fla. 206, 123 So. 755 (1929) and Burns v. State, 97 Fla. 232, 120 So. 360 (1929) omit to specify what language the Court deemed unsatisfactory in those cases. The other decisions cited are clearly distinguishable. In Finch v. Mayo, 137 Fla. 762, 189 So. 27 (1939), the deficient language was, as follows :
      It is the judgment of the court and the sentence of the law that you Frank Finch be taken by the Sheriff, or his lawful deputy, to the State’s prison of the State of Florida and delivered to the principal keeper thereof, and there to be confined in said State’s prison at hard labor for a period of (15) fifteen years from date of your incarceration therein.
      Similarly, in State ex rel. House v. Mayo, 122 Fla. 23, 164 So. 673, 674 (1935) the Court found the following language inadequate :
      It is the judgment of the court and the sentence of the law that you, Albert House, be taken by the Sheriff, or his lawful deputy, to the State Prison of the State of Florida and be delivered to the principal keeper thereof, there to be confined in said State Prison at hard labor for a period,

        A closer question was presented in Anderson v. Chapman, 109 Fla. 54, 146 So. 675 (1933) where it was clear from context that the crime involved was robbery and where the clear implication was that the defendant had earlier been pronounced guilty. The Court concluded, however, that such an important matter should not be left to inference. The pertinent language was, 146 So. at 677:
      It is therefore considered by the Court that you, J. C. Anderson, for the crime of which you have been and stand convicted, do be imprisoned by confinement at hard labor in the State Prison for a period of ten (10) years.
      Finally, the majority cites Ellis v. State, 100 Fla. 27, 129 So. 106 (1930) where, as in Finch v. Mayo, supra, and State ex rel. House v. Mayo, supra, the trial court completely omitted to adjudge the defendant guilty and pronounced sentence in these words, 129 So. at 108:
      It is the judgment of the court and the sentence of the law, that you J. H. Ellis, pay a fine of $300, and in default of payment of said fine you will be confined in the County jail for a period of (3) months.
      Writing for the Court in ElUs, Justice Brown said that “the so-called judgment was defective, in that it contained no adjudication by the court of the guilt of the defendant”, 129 So. at 108, and emphasized the importance of judicial action even where a jury had returned a guilty verdict. The Court in Ellis v. State, supra, did not go so far as the Court does today, however, as is evident from Justice Brown’s remark that, “Of course, the judgment of the court on the question of the guilt of the defendant need not be expressed in any particular set form of words . . . but surely it should not be entirely omitted.” 129 So. at 110.

      . See generally Petersen v. Talisman Sugar Corp., 478 F.2d 73 (5th Cir. 1973). In my opinion, the Court in Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972) has effectively overruled its prior decision in Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), although without saying so.

      . The body of the information reads:
      JAMES T. RUSSELL,, State Attorney for the Sixth Judicial Circuit of Florida, in and for Pinellas County, prosecuting for the State of Florida, in the said County, or his Assistant State Attorney, under oath, information makes that JOHN W. COBN of the County of Pinellas and State of Florida, on the 13 day of September in the year of our Lord, one thousand nine hundred seventy-four, in the County and State aforesaid, did then and there willfully enter onto the premises of Gateway Mall, after having been previously forbidden to enter and after having been warned to depart; contrary to Chapter 821.01(1), Florida Statutes, and against the peace and dignity of the State of Florida.

      . Although the fact has not lessened judicial labor in the present case, section 821.01 was repealed by the legislature in the 1974 session, effective July 1, 1975. Fla.Laws, ch. 74-383 § 66. Pursuant to Fla.Stat. § 775.-011(2) (1974 Supp.), prosecutions for “offenses committed prior to July 1, 1975, . shall be governed by the prior law,” so there is still the duty to decide whether appellant’s conviction under section 821.01 should stand. The predecessor statute to section 821.01 was enacted in 1879 as Fla. Laws, ch. 3139 § 1, which was styled “An Act for the Protection of Private Residences and Enclosed Premises” and provided, as follows :
      That any person who shall wilfully trespass upon or enter into any private residence, house or building, or labor camp, occupied by the owner or the employees of the owner, or the enclosed premises of another, and shall be warned or notified by such owner or employee to depart therefrom, and shall refuse to depart, or having departed shall re-enter or remain about in the vicinity of the same, using profane or indecent language in a loud or boisterous manner, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by imprisonment in the county jail not exceeding sixty days, or by fine not exceeding fifty dollars, one or both, at the discretion of the court trying the case.
      The statute was amended in 1969 at which time it took the form it had when Corn was accused of violating it. Fla.Laws, ch. 69-284 § 1. Both originally and as amended, section 821.01 was enacted without division into subsections, which were supplied by the codifiers.


author: PER CURIAM.

text:
    THE FLORIDA BAR. In re Ralph A. JOHNSTON.
    No. 49154.
    Supreme Court of Florida.
    April 28, 1976.
    John A. Weiss, Asst. Staff Counsel, Tallahassee, for The Florida Bar, complainant.
    Thomas W. Kenworthy, Coral Gables, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea and Entry of Final Order of Discipline.

On October 17, 1975 the Eleventh Judicial Circuit Grievance Committee “C” filed its complaint with The Florida Bar finding probable cause for disciplinary proceedings against Respondent. The committee found “that the Respondent acted improperly in falsely endorsing the said check, converting the proceeds of said check to his own use and failing to account for monies delivered to him on behalf of a third person.” The check referred to is a check Respondent received in behalf of his clients for the benefit of their doctor.

The Petition for Approval of Conditional Guilty Plea is granted and Respondent, Ralph A. Johnston, is suspended from the practice of law for one year, beginning nunc pro tunc March 13, 1976, to run concurrent with Respondent’s previous 89 day suspension, and continuing indefinitely thereafter until Respondent proves rehabilitation.

Costs in the amount of One Hundred Ninety-Three Dollars and Seventy-Five Cents ($193.75) are hereby taxed against Respondent to be paid within thirty days from this date.

It is so ordered.

OVERTON, C. J., and ROBERTS, BOYD, ENGLAND and HATCHETT, JJ., concur.


text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY, a corporation, Petitioner, v. A. C. GROUNDS, Respondent.
    No. 47382.
    Supreme Court of Florida.
    April 7, 1976.
    Rehearing Denied May 28, 1976.

      Benjamin W. Redding, Barron, Redding, Boggs & Hughes, Panama City, and Gurney, Gurney & Handley, Orlando, for petitioner.
    Lefferts L. Mabie, Jr., Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for respondent.
   PER CURIAM.

We have granted certiorari in this cause on the basis of conflict for the limited purpose of expunging certain language contained in the First District Court of Appeal decision which directly conflicts with this Court’s decision in Nationwide Mutual Ins. Co. v. McNulty, 229 So.2d 585 (Fla. 1969).

The conflicting language in the instant decision relates to the nature of an excess action against an insurance company for bad faith failure to settle and is as follows :

“. . . While this is an action growing out of a contract, it is not a contract action strictly speaking. It is a hybrid which has some of the aspects of a tort action and some aspects of an action ex contractu. In Thompson v. Commercial Union Insurance Company of New York, Fla.App. (1st), 267 So.2d 18, cert. den. 271 So.2d 461, this court said:
. Although the courts have labeled a claim for “bad faith” in refusing to settle as a contract action, it possesses certain illegitimate characteristics. The “contract” is one en-grafted by the courts upon a detailed written instrument and labeled with such terms as “negligent refusal to settle” and “bad faith”; thus to a great extent the action sounds in tort arising out of a contractual relationship.’
Since an excess judgment action, though bearing certain aspects of a suit upon a contract is, strictly speaking, not one, ..."

This Court in McNulty, supra, quoted with approval the following excerpt from the Third District Court of Appeal in the same case reported at 221 So.2d 208 (3d D.C.A.Fla.1969):

“. . . It follows that the cause of action for an ‘excess,’ where one arises from bad faith, is bottomed on the contract, and that the nature of an action thereon is ex contractu rather than in tort. The fact that the proofs offered to establish an insurer’s bad faith in this connection may include or consist of showing an act of negligence will not take the cause of action out of the contract category. . . .”

Finding that this is an action ex contrac-tu rather than tort will not alter the decision of the District Court insofar as it determines that Florida law should apply as opposed to Mississippi law, which does not allow excess judgment recoveries. In this case, this is so because the obligation of the contract breached by petitioner was the obligation to provide respondent a good faith defense to the action. Such goes to petititioner’s performance under the contract (or lack thereof), and matters concerning performance are determined by the law of the place of performance under traditional conflict of laws principles. Scudder v. Union Nat’l Bank, 91 U.S. 406, 23 L.Ed. 245 (1876); State-Wide Ins. Co. v. Flaks, 233 So.2d 400 (3d D.C.A.Fla. 1970), cert. dismissed, 238 So.2d 427 (Fla. 1970); Castorri v. Milbrand, 118 So.2d 563 (2d D.C.A.Fla.1960). In the instant case, the place of performance was Florida, where the cause of action against respondent was maintained and was defended by petitioner.

Issues unrelated to the foregoing, which were raised by the petitioner’s brief, have been considered and found to be without merit. We find discussion of such points to be unnecessary to the just determination of this cause.

Accordingly, the conflicting language is expunged and there being no longer any foundation for conflict certiorari, the Petition for Writ of Certiorari is discharged.

It is so ordered.

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


author: HATCHETT, Justice.

text:
    Carolyn WOOTEN, Appellant, v. STATE of Florida, Appellee.
    No. 47635.
    Supreme Court of Florida.
    April 7, 1976.
    Rehearing Denied May 28, 1976.

      Judge C. Luckey, Jr., Public Defender; and Paul Sidney Elliott, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Davis G. Anderson, Jr., Asst. Atty. Gen., for ap-pellee.
   HATCHETT, Justice.

This appeal is taken from a judgment of conviction entered in the County Court of Hillsborough County. The prosecution began with the filing of Florida Uniform Traffic Citation 862-714K, in accordance with the procedure approved in Hurley v. State, 322 So.2d 506 (Fla.1975). Appellant Wooten was originally charged with driving while under the influence of alcoholic beverages, in violation of Fla.Stat. § 316.028(1) (1974 Supp.) but on her motion the charge was reduced at trial to driving with an “unlawful blood alcohol level”, which is a violation of Fla.Stat. § 316.028(3) (1974 Supp.). The defense challenged as unconstitutional the statute and rule which forbid withholding adjudication of guilt in such cases; after a bench trial, Judge Johnson rejected this challenge and adjudicated appellant guilty. We have jurisdiction, pursuant to Fla.Const. art. V § 3(b)(1) (1973). Singletary v. State, 322 So.2d 551 (Fla.1975); Hurley v. State, supra; Williston Highlands Development Corp. v. Hogue, 277 So.2d 260 (Fla.1973).

Appellant Wooten raises no question as to the conduct of the trial which eventuated in her conviction and does not question the propriety of the sentence imposed in consequence of the conviction. Her complaint is that the trial court was deprived, both by statute and by court rule, of discretion to withhold adjudication of guilt, once the prosecution had established her guilt beyond a reasonable doubt. We limit our consideration to that issue. Appellant urges that both Fla.Stat. § 322.281(1) (1974 Supp.) and Traffic Court Rule 6.-290(a), be declared unconstitutional on state and federal grounds. We perceive no constitutional deficiency either in Section 322.281(1) or in Rule 6.290(a), however, and accordingly affirm the judgment of conviction.

As regards both the rule and the statute, appellant contends she has been denied equal protection of the laws as a federal constitutional matter because a trial court is free to withhold adjudication of guilt in cases where such serious crimes as murder, rape and robbery have been proven, while conviction is mandatory in drunken driving cases. For the same reasons, appellant urges that Fla.Stat. § 322.281(1) (1974 Supp.) cannot stand consistent with Fla. Const, art. I, § 2 (1973) (All natural persons are equal before the law . . . .)

The punishments prescribed by Fla.Stat. § 316.028(4) (1974 Supp.) are progressively more severe for subsequent offenses occurring within specified times after an initial violation. Subsection four prescribes the following penalties for the crime of which appellant stands convicted:

(a) For first conviction thereof, by imprisonment for not more than 90 days or by a fine of not more than $250, or by both such fine and imprisonment.
(b) For a second conviction within a period of 3 years from the date of a prior conviction for violation of this section, by imprisonment for not less than 10 days nor more than 6 months and, in the discretion of the court, a fine of not more than $500.
(c) For a third or subsequent conviction within a period of 5 years from the date of conviction of the first of 3 or more convictions for violations of this section, by imprisonment for not less than 30 days nor more than 12 months and, in the discretion of the court, a fine of not more than $500.

No attack is made as such on this scheme of progressively more severe punishments. The legislature has broad discretion in prescribing punishments for crime, as long as the punishment is not cruel or unusual. Owens v. State, 316 So.2d 537 (Fla.1975); Dorminey v. State, 314 So.2d 134 (Fla.1975). See Note, The Supreme Court, 1973 Term, 88 Harv.L.Rev. 13 (1974) (“The state clearly has a strong interest in making legislative judgments concerning the appropriate punishment for various classes of crime, and it is difficult to describe as over- or underinclusive a legislative purpose to impose a particular penalty on a defined group of criminals.” At 111.)

Under accepted rules of statutory construction, Fla.Stat. §§ 316.028 and 322.-281 (1974 Supp.) should be read in pari materia, because they govern different facets of the same subject matter. 30 Fla. Jur., Statutes § 114 (1974). The requirement that offenders who have been proven guilty be so adjudged is part and parcel of the legislative scheme to discourage drunken driving by authorizing progressively harsher sentences for multiple offenders. In order for a repeat offender to be subject to enhanced punishment for subsequent offenses under Fla.Stat. § 316.028(4) (1974 Supp.), there must have been at least one previous conviction under Fla.Stat. § 316.028(3) (1974 Supp.) Section 316.028 does not authorize stiffer punishment in the absence of a prior adjudication of guilt; previous entry of a judgment of conviction is the necessary precondition.

In light of the legislative history, the requirement of mandatory adjudication manifests, if anything, a legislative intent to ensure equal protection of the laws. If Fla.Stat. § 316.028 (1974 Supp.) stood alone, the multiple offender who succeeded in avoiding formal adjudication, in three previous prosecutions, could not be punished as severely as the drunken driver whose single previous offense resulted in conviction. For this reason, the legislature might have concluded that failure to require adjudication would have permitted unjust disparities in the punishment authorized for subsequent offenders. When by court rule the Court also adopted the mandatory adjudication requirement for drunken driving offenses, the Court aligned itself with the legislature and approved the view that classifying drunken driving offenders in this manner served a rational state purpose. We are not persuaded otherwise today.

Appellant asserts an additional state constitutional defect, contending “that Florida Statute 322.281(1) is an encroachment by the Legislature upon an inherent power of the Judiciary violative of the Separation of Powers Doctrine.” Brief of Appellant, p. 5. This argument does not take account of the fact that this Court had adopted the identical requirement for mandatory adjudication in drunken driving cases. Rule 6.290(a), Rules of Practice and Procedure For Traffic Courts. If the statute is ineffective because the subject matter is appropriate only for court rule, as appellant contends, it does not follow that the requirement for mandatory adjudication is invalid, since the requirement is also embodied in Rule 6.290(a), supra.

In these circumstances, it would serve no useful purpose to decide whether Section 322.281 is an “encroachment upon an inherent power of the” judicial branch. Cf. State v. Smith and Figgers, 260 So.2d 489 (Fla.1972). In accordance with long established principles, we refrain from the unnecessary decision of this constitutional question. Williston Highlands Development Corp. v. Hogue, 277 So.2d 260 (Fla.1973) (“It is a fundamental principle that Courts will not pass upon the validity of a statute where the case . may be disposed of upon any other ground.” At 261.); Overstreet v. Blum, 227 So.2d 197, 199 (Fla.1969). See State v. Aiuppa, 298 So.2d 391 (Fla.1974); Campbell v. Johnson, 182 So.2d 244 (Fla.1966); Brewer v. Gray, 86 So.2d 799 (Fla.1956); Waybright v. Duval County, 142 Fla. 875, 196 So.2d 802 (1940); Williams v. Dormany, 99 Fla. 496, 126 So. 117 (1930); Richardson v. Hardee, 85 Fla. 510, 96 So. 290 (Fla.1923); Campbell v. Skinner Mfg. Co., 53 Fla. 632, 43 So. 874 (1907).

The judgment is affirmed.

OVERTON, C. J, and ROBERTS, ADKINS, BOYD, ENGLAND and SUND-BERG, JJ., concur.

      . Subsection one of Fla.Stat. § 322.281 (1974 Supp.) provides, as follows:
      Notwithstanding the provisions of s. 948.-01, no court shall withhold adjudication of guilt or imposition of sentence for the offense of driving, or being in actual physical control of, a motor vehicle while having an unlawful blood alcohol level or while under the influence of alcoholic beverages, model glue, or any substance controlled by chapter 893.

      . Similarly, Rule 6.290(a), Rules of Practice and Procedure for Traffic Courts, provides, as follows:
      Pursuant to the provisions of section 322.-281 of Florida Statutes, no court shall withhold adjudication of guilt or the imposition of sentence for the offense of driving or being in actual physical control of a motor vehicle, while having an unlawful blood alcohol level or while under the influence of alcoholic beverages, model glue, or any substance controlled by chapter 893 of Florida Statutes.

      . The legislature passed Section 316.028 and Section 322.281 at the same session and as part of the same legislative enactment, viz., Fla.Laws, ch. 74-384.


author: OVERTON, Chief Justice.

text:
    John A. HOFMANN, Petitioner, v. Louie L. WAINWRIGHT, et al., Respondents.
    No. 48,008.
    Supreme Court of Florida.
    April 28, 1976.
    Louis M. Jepeway, Jr. of Jepeway, Gas-sen & Jepeway, for A.C.L.U. Foundation of Florida, for petitioner.
    Robert L. Shevin, Atty. Gen. and Arthur Joel Berger, Asst. Atty. Gen., for respondents.
   OVERTON, Chief Justice.

Petitioner, by habeas corpus, seeks immediate reinstatement to parole from a state prison sentence following an intervening federal conviction and prison term. We have jurisdiction.

Petitioner complains that the State did not hold a parole revocation hearing immediately following his conviction and sentence for a federal offense. He asserts he has been prejudiced by the failure to have an immediate revocation hearing, and claims reinstatement to be the only adequate remedy. We disagree and deny relief.

Petitioner was paroled from Florida State Prison on February 22, 1972, for ten years. On March 19, 1973, petitioner was convicted in federal court of a federal criminal offense and held in the Dade County jail approximately one month pending his federal sentencing on April 10, 1973, and subsequent transfer on April 29, 1975, to the federal penitentiary in Atlanta, Georgia.

On March 23, 1973, the Florida Parole and Probation Commission issued a parole violation warrant for his arrest based solely on his federal conviction. The petitioner was advised of this fact by his parole supervisor who visited the petitioner during his period of incarceration in the Dade County Jail. At that time petitioner inquired about a revocation hearing, and his supervisor informed him that he had no personal authority to set such a hearing but directed the petitioner to request such hearing from the Parole and Probation Commission through legal counsel who was then representing the petitioner. No such request was made. Petitioner contends the Commission ignored his request, but the record does not support this contention.

Petitioner contends that even though he is imprisoned in another jurisdiction, Florida is required under Morrissey to provide an immediate parole revocation hearing irrespective of whether the petitioner is within or without the State of Florida. The Morrissey procedure requires a preliminary probable cause hearing followed by a full final hearing within a reasonable time to avoid possible unconstitutional grievous loss of liberty. If the petitioner had been convicted of a Florida criminal offense, a revocation hearing in a reasonable time would be required. In the instant case petitioner was convicted of a federal offense and was committed to an out-of-state federal prison within forty-one days of his conviction.

To comply with the petitioner’s contention Florida would be required to make the necessary transfer arrangements and pay the costs of bringing every parolee convicted of a criminal offense in another jurisdiction to Florida or to send the Parole Commission to where he is incarcerated for a revocation hearing. We find that not constitutionally required. We are not unaware of the fact that federal prisons treat an arrest warrant for violation of parole as a detainer which disqualifies a prisoner from beneficial privileges and rehabilitative programs; but, we note that it is the custodial jurisdiction, not the requesting jurisdiction, which establishes the policy of restricting prisoners’ privileges and eligibility for rehabilitative programs when arrest warrants are placed against them.

Federal courts are divided on the due process right, of prisoners to receive revocation hearings upon filing of arrest warrants by a foreign jurisdiction. The Fifth Circuit Court of Appeals in Cook v. United States Attorney General, 488 F.2d 667 (5th Cir. 1974), held that prejudice from lack of an immediate hearing was not sufficient to meet the grievous loss test in Morrissey. See also Small v. Britton, 500 F.2d 299 (10th Cir. 1974), and Gaddy v. Michael, 519 F.2d 669 (4th Cir. 1974); contra. United States ex rel. Hahn v. Revis, 520 F.2d 632 (7th Cir. 1975); Cooper v. Lockhart, 489 F.2d 308 (8th Cir. 1973); Sutherland v. District of Columbia Board of Parole, 366 F.Supp. 270 (D.D.C.1970). We are unpersuaded by the decisions of the federal circuit courts which have found a right to immediate hearings.

The situation in the instant case is not analogous to Morrissey. The conduct of this prisoner caused him to be incarcerated by a jurisdiction distinct from the jurisdiction which placed him on parole. Morris-sey dealt with parolees who were free on parole at the time of the revocation proceedings and not parolees imprisoned in another jurisdiction. More importantly, Morrissey arose from proceedings instituted by parole officers alleging parole violations other than criminal convictions and directing that parolees be retaken into custody. No intervening criminal offenses for which the parolees had been convicted and sentenced were involved.

Petitioner also complains of grievous loss of opportunity to have the state prison sentence run concurrently with that for the federal intervening conviction. He overlooks, however, the fact that the Parole and Probation Commission in its discretion may credit the parolee with such time toward his state sentence at the time of the parole revocation hearing. Sections 947.-21(2) and 947.23(1), Florida Statutes.

We conclude that Morrissey does not require Florida to hold immediate parole revocation hearings for parolees who have been convicted of intervening offenses and are imprisoned elsewhere, either by sending its Parole and Probation Commission out of state or by recalling the prisoner parolee. We recognize that a parolee standing convicted of a federal crime who is available in Florida for an amount of time sufficient to conduct the final parole revocation hearing should not arbitrarily be denied that right. The petitioner in this instance was advised how to request a hearing by his supervisor. Although petitioner was represented by counsel, no proper request was made to the Commission. Under the circumstances of this case, the petition for relief is denied and the writ is discharged.

It is so ordered.

ROBERTS, BOYD and SUNDBERG, JJ., concur.

ADKINS, J., concurs in conclusion.

      . Art. V, § 3(b) (6), Fla.Const.

      . Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

      . “Though the State properly subjects him to many restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison. He may have been on parole for a number of years and may be living a relatively normal life at the time he is faced with revocation. The parolee has relied on at least an implicit promise that parole will be revoked only if he fails to live up to the parole conditions.” Id., 408 U.S. at 482, 92 S.Ct. at 2601. [footnotes omitted].