author: ALMON, Justice. JONES, Justice

text:
      Joyce BILLUPS et al. v. ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, a corporation, et al.
    SC 2159.
    Supreme Court of Alabama.
    Sept. 30, 1977.
    Rehearing Denied Dec. 22, 1977.

      Jack Clarke, of Henley & Clarke, North-port, for appellants.
    Olin W. Zeanah and William J. Donald, III, of Zeanah, Donald & Hust, Tuscaloosa, for appellees.
   ALMON, Justice.

Alabama Farm Bureau Mutual Casualty Insurance Company and Federated Guaranty Mutual Insurance Company, appellees, brought this action seeking a declaratory judgment to determine their obligations to pay benefits to any of the appellants. From the trial court decree denying medical payments coverage and uninsured motorist coverage, appellants take this appeal.

The facts of this case arise out of an automobile, accident on February 8, 1975, in Jefferson County, Alabama. The accident involved a 1970 Plymouth automobile, owned by Lucille Conner and driven by Jessie Silver, Jr., and an automobile driven by Henry Lee Moore, an uninsured motorist. In the 1970 Plymouth with Jessie Silver, Jr., were Debbie Billups, Joyce Billups, Melanie Carol Billups, and Curtis Conner, son of Lucille Conner. As a result of the accident, Jessie Silver, Jr., and Debbie Bill-ups were killed. The other occupants received varying degrees of injuries.

At the time of the accident there was in force and effect on the 1970 Plymouth automobile a policy of liability insurance issued by Federated Guaranty to Lucille Conner as the named insured. At the same time there was in force and effect a policy of insurance issued by Alabama Farm Bureau to Lucille Conner as the named insured on a 1973 Chevrolet Impala automobile. The issue in this case is whether Joyce Billups, Melanie Carol Billups, the estate of Debbie Billups, and the estate of Jessie Silver, Jr., are entitled to medical coverage and uninsured motorist coverage under either of the automobile liability policies issued to Lucille Conner. The coverage of Curtis Conner under the policies is not at issue.

The two policies in question are identical except for the automobile covered. The relevant provisions are as follows:

“INSURING AGREEMENT I — THE AUTOMOBILE
* * * * * *
“Coverage C — Medical Payments
“To pay the reasonable expense of necessary medical, dental, x-ray, eyeglasses, hearing aids, surgical, ambulance, hospital, professional nursing, funeral services and prosthetic devices, all incurred within one year from date of accident to or for: “(Division 1) each person who sustains bodily injury, sickness or a disease caused by accident while occupying:
“(a) the automobile described in the declarations, if the injury arises out of the use thereof by the named insured or spouse if a resident of the same household, or with the express permission of either, (emphasis added).
* # * * * *
“(Division 2) each insured who sustains bodily injury, sickness or diseased caused by accident, while in or upon, or while entering into or alighting from, or through being struck by, an automobile.
* * * * * *
“(Division 3) Any person occupying the described automobile who sustains bodily injury caused by accident, if such vehicle is being used by an insured; * * *.
$ ‡ ‡ 5fc $ sf:
“DEFINITIONS — INSURING AGREEMENTS I AND II
* * * * * *
“Insured —under Coverages A, B, C, C-l, and C-2, the unqualified word ‘insured’ includes (1) the named insured, and also includes (2) his relatives, (3) any other person while using the automobile, provided the actual use of the automobile is with the express permission of the named insured, and (4) under Coverages A and B any person or organization legally responsible for the use thereof by an insured as defined under the three subsections above, (emphasis added).
Sf! * * * * *
“Use — means the actual manual and physical driving of the automobile (emphasis added).
* * * * * *
“INSURING AGREEMENT III — UNINSURED MOTORIST
“Coverage M — Damages for Bodily Injury Caused by Uninsured Automobiles. “The Company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages except punitive damages (other than for death) from the owner or operator of an uninsured automobile * * *.
“DEFINITIONS — INSURING AGREEMENT III
“The definitions of ‘Automobile, Temporary Substitute Automobile, Bodily Injury and Use ’ under Insuring Agreements I and II apply to Insuring Agreement III. “(a) Insured. The unqualified word ‘Insured’ means
“(1) the First Named Insured as stated in the policy and residents of the same household, the spouse of any such Named Insured and relative of either;
“(2) any other person while occupying an insured automobile.
* 4c * * * *
“(b) Insured Automobile
* * * * * *
“but the term ‘insured automobile’ shall not include:
******
“(ii) under subparagraphs (1) and (2) above, if the insured named in the declarations of the policy is an individual or husband and wife who are residents of the same household, an automobile unless being used by or with the express permission of such Named Insured or such spouse; [emphasis added].
* * * * * »

I

UNINSURED MOTORIST COVERAGE

The court found that the 1970 Plymouth automobile was not used with the express permission of the named insured, Lucille Conner, or her spouse, and that the appellants were not entitled to uninsured motorist coverage under the Conner policies.

The appellants contend that the express permission provision of the policies conflicts with the Alabama Motor Vehicle Safety-Responsibility Act and is therefore void. We agree insofar as it pertains to uninsured motorist coverage.

Tit. 36, § 74(62) (mandatory liability coverage) provides in part as follows:

“(a) A ‘motor vehicle liability policy’ as said term is used in this subdivision shall mean an owner’s or an operator’s policy of liability insurance, certified as provided ... as proof of financial responsibility, and issued . . . by an insurance carrier . . . to or for the benefit of the person named therein as insured.
“(b) Such owner’s policy of liability insurance:
“(2) shall insure the person named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of such motor vehicle . .” (Emphasis added).

Tit. 36, § 74(62a) (uninsured motorist coverage) provides in part as follows:

“No automobile liability . . . policy . . . shall be delivered or issued . in this state . . . unless coverage is provided therein for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles . . .”

The question is the effect the statutory provisions have upon the scope of the uninsured motorist coverage under the policy. This court has held that the scope of uninsured motorist coverage must be coextensive with liability coverage. State Farm Automobile Insurance Co. v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974). In Reaves, supra, we stated that, “once an automobile liability policy is issued extending coverage to a certain class of insureds under such a clause, uninsured motorist coverage must be offered to cover the same class of insureds.” 292 Ala. at 223, 292 So.2d at 99.

§ 74(62) is unambiguous in mandating the extension of liability insurance coverage to persons using an insured vehicle with the express or implied permission of the named insured. Accordingly, the uninsured motorist coverage must be as broad. Reaves, supra.

The insurance policies in question extend uninsured motorist coverage to “any other person while occupying an insured automobile.” See, Definitions — Insuring Agreement III, supra. Under the policy terms, an insured automobile is one used with the express permission of the named insured or his spouse. See, Definitions — Insuring Agreement III, supra.

Restricting uninsured motorist coverage to occupants of an automobile only if the automobile is used with the express permission of the named insured is repugnant to the statutory requirements and the decisions of this court. Reading the statutory requirement into the policy, American Southern Insurance Co. v. Dime Taxi Service, Inc., 275 Ala. 51, 151 So.2d 783 (1963), the policy must afford uninsured motorist coverage to the occupants of the automobile if it was used with the express or implied permission of the named insured. Tit. 36, § 74(62); State Farm Automobile Ins. Co. v. Reaves, supra.

The trial court did not make a factual finding as to whether Jessie Silver, Jr., used the automobile with Lucille Conner’s or her husband’s implied permission. Therefore, we remand to the trial court for such a determination.

The appellees reliance on past cases of this court upholding the express permission provisions contained in the policies in question, Alabama Farm Bureau Mutual Cas. Ins. Co. v. Government Employees Ins. Co., 286 Ala. 414, 240 So.2d 664 (1970); Alabama Farm Bureau Mutual Cas. Ins. Co. v. Mattison, 286 Ala. 541, 243 So.2d 490 (1970); Crawley v. Alabama Farm Bureau Mutual Cas. Ins. Co., 295 Ala. 226, 326 So.2d 718 (1976), is without merit. In none of the mentioned cases was there a challenge to the express permission provision in the policies on the ground that it conflicted with the Alabama Motor Vehicle Safety-Responsibility Act. Each case was decided on terms of policy language construction alone. To the extent that these cases construe the meaning and effect of a valid express permission provision, they remain good law. However, future cases involving the scope of uninsured motorist coverage must be read in light of the Alabama Motor Vehicle Safety-Responsibility Act and today’s decision.

II

MEDICAL COVERAGE

Our decision regarding the uninsured motorist coverage required by our statutes is not dispositive of whether the appellants are entitled to medical payments coverage under the policies in question. The Alabama Motor Vehicle Safety-Responsibility Act mandates automobile liability and uninsured motorist coverage only. It does not require medical payments coverage. Thus, the issue of whether appellants are entitled to medical payments coverage is to be determined by the language of the policy.

Under the terms of the policies, medical payments coverage is extended to occupants of an insured automobile if the automobile is used by or with the express permission of the named insured or his spouse. The policy defines “use” as the “actual manual and physical driving of the automobile.” See, Definitions — Insuring Agreements I and II, supra. The issue is whether Jessie Silver, Jr., was “using” the automobile with the express permission of Lucille Conner or her husband.

The facts show that the 1970 Plymouth automobile involved in this case was purchased for Curtis Conner by Richard Conner, his father, in November, 1974. Lucille Conner acquired the Federated Guaranty policy covering the automobile and paid the premium payments. The insurance company charged a higher premium for the 1970 Plymouth because Curtis was a teenager and was the principal driver.

At the time of the accident Curtis Conner was a fulltime student at Stillman College in Tuscaloosa, Alabama. Curtis Conner primarily used the car for travel to school and back from his home in Aliceville. However, Curtis was not restricted in his use of the car, except the admonishment by his father to “drive carefully.” There was no restriction placed on Curtís regarding his allowing other people to drive the car.

On February 8, 1975, the Plymouth automobile was driven to Bessemer, Alabama, by Jessie Silver, Jr. As indicated earlier, Curtis Conner, Joyce Billups, Melanie Carol Billups and Debbie Billups were riding as passengers. They departed from the home of Eunice Billups (the father of the three Billups girls) in Tuscaloosa. The destination of the trip was the home of Eunice Billups’ brother in Bessemer, Alabama. There, Curtis Conner was to see an Inez Billups, a girlfriend. The accident occurred that same day in the late evening when Jessie Silver, Jr., was driving on the return trip. Curtis Conner was asleep and lying in the lap of Melanie Carol Billups when the collision occurred.

According to the testimony of the occupants surviving the collision, Jessie Silver, Jr., was driving at the request of Curtis Conner because Conner was not familiar with the interstate highway on which they traveled. Curtis had gotten lost on an earlier trip to Bessemer.

There is no doubt that Jessie Silver, Jr., did not have the express permission of Lucille Conner or her husband. In fact, the appellants do not so contend.

The appellants argue several other theories concerning why they are entitled to medical payments coverage. We consider each in turn.

Appellants contend they qualify for medical payments coverage because they were occupants of a vehicle used by an insured; i.e., Curtis Conner. See, Coverage C— Medical Payments (Division 3), supra. The heart of appellants’ argument is that the word “use” is ambiguous, and therefore mere occupancy of the vehicle by Curtis Conner is sufficient to constitute use by him, thereby making the automobile an insured automobile under the terms of the policy.

This court adheres to the well-known rules of construction that ambiguities in a contract of insurance will be construed against the insurer and in favor of the insured. Life Insurance Company of Georgia v. Miller, 292 Ala. 525, 296 So.2d 900 (1974); and authorities cited therein. However, when there is no ambiguity, the court will not indulge in construction favorable to the insured. Green v. Merrill, 293 Ala. 628, 308 So.2d 702 (1975). Ambiguities will not be inserted, by strained and twisted reasoning, into contracts where no such ambiguities exist. Alabama Farm Bureau Mutual Casualty Insurance Company v. Goodman, 279 Ala. 538, 188 So.2d 268 (1966); Michigan Mutual Liability Co. v. Carroll, 271 Ala. 404, 123 So.2d 920 (1960).

The word “use” in these policies is not ambiguous. The policy clearly defines “use” as the actual manual and physical driving of the automobile. Thus, for appellants to qualify for medical payments coverage, Curtis Conner must have been driving the automobile. Such not being the case, the appellants’ reliance on the cases of Hardware Mutual Casualty Co. v. Mitnick, 180 Md. 604, 26 A.2d 393 (1942) and Baudin v. Traders & General Insurance Co., 201 So.2d 379 (La.App., 1967) is unfounded although each case held that activities other than actual driving of the automobile constituted “use” within the terms of the policy; in neither of these cases did the policy itself define the word “use.”

Appellants also contend that Lucille Conner and Richard Conner had expressly authorized Curtis Conner to use the automobile, and his express permission to Jessie Silver, Jr., on the day in question operated as the named insured’s express permission within the terms of the policy. This issue has been considered before by this court and it has consistently held that the express permission clause cannot be satisfied by implication. In Crawley v. Alabama Farm Bureau Mutual Casualty Insurance Co., supra, we stated the following:

“Our cases have been consistent in making a distinction between policy provisions which require the ‘permission’ of the insured and those which require the ‘express permission’ of the named insured. In Royal Indemnity Company v. Pearson, 287 Ala. 1, 8, 246 So.2d 652, 658 (1971), this court, speaking through Justice Lawson, said:
“ ‘Where, as here, only “permission” is required in the omnibus clause, we have followed the general rule to the effect that “permission” is sufficient to provide coverage to the user if the facts justify a finding that either express or implied permission has been granted by the named insured. — Alabama Farm Bureau Mut. Cas. Ins. Co. v. Robinson, 269 Ala. 346, 113 So.2d 140; Harrison v. Densmore, 279 Ala. 190, 183 So.2d 787; American Mutual Liability Ins. Co. v. Milwaukee Ins. Co. of Milwaukee, 283 Ala. 414, 218 So.2d 129; Pettis v. State Farm Mut. Auto. Ins. Co., 286 Ala. 344, 239 So.2d 772. But where the words “express permission” are used in the omnibus clause, the burden is on the user to establish that he was driving with the express permission of the named insured. — Alabama Farm Bureau Mut. Cas. Ins. Co. v. Government Employees Ins. Co., 286 Ala. 414, 240 So.2d 664; Alabama Farm Bureau Mut. Cas. Ins. Co. v. Mattison, 286 Ala. 541, 242 So.2d 490.’ ”

As stated earlier, these cases are no longer controlling in regard to automobile liability or uninsured motorist coverage because of statutory requirements. However, to the extent that the express permission provisions limit medical payments coverage, these cases are still controlling.

Lastly, appellants argue that Curtis Conner was a named insured under the Federated Guaranty policy covering the 1970 Plymouth automobile because the insurance company charged a specific higher premium due to Curtis Conner’s being the regular user of the automobile. Therefore, appellants argue, the express permission of Curtis Conner is the express permission of the named insured within the terms of the policy. Appellants rely on the case of Dixie Auto Insurance Co. v. Safeco Insurance Co. of America, 292 Ala. 358, 294 So.2d 736 (1974).

In Dixie, this court affirmed a trial court’s reformation of an automobile liability policy to change the named insured on the insurance policy. The facts in that case were that a Mrs. Brittain obtained a policy of insurance on a 1964 Chevrolet owned and operated by her son, Barry Brittain. There was no question that Barry Brittain was the true owner; he paid for the car, it was registered in his name, and he purchased the tag for the car. The policy of insurance was in his mother’s name because she understood “it had to be,” but Barry paid the premiums.

The facts in this case are substantially different. Curtis Conner did not own the 1970 Plymouth. His parents purchased the car, paid the insurance premiums, and paid for all maintenance, including almost all gas and oil. There is nothing to indicate that the Conners intended Curtis to be the named insured allowing a court to grant reformation. North Carolina Mutual Life Insurance Co. v. Martin, 223 Ala. 104, 134 So. 850 (1931); American Trader’s National Bank v. Henderson, 222 Ala. 426, 133 So. 36 (1931). In addition, the record does not indicate that the appellants requested reformation of the policy by the trial court, and the trial court made no ruling on reformation. Accordingly, we find all of appellants’ arguments concerning medical payments coverage are without merit.

Ill

On remand, the trial court must determine if Jessie Silver, Jr., used the automobile with the implied permission of Lucille Conner or her husband. If the trial court so finds, the final issue is whether appellants can “stack” uninsured motorist coverage under the Alabama Farm Bureau policy covering a 1973 Chevrolet Impala onto the coverage under the Federated Guaranty policy, both owned by Lucille Conner.

As we stated in Lambert v. Mutual Insurance Company, 331 So.2d 260 (Ala., 1976):

“Our previous Alabama cases allowing stacking have fallen generally into two separate categories.
“This Court first allowed stacking in a case in which the insured passenger sought to stack coverage under his own personal uninsured motorist policy onto coverage under a policy owned by the driver. In Safeco Ins. Co. of America v. Jones, 286 Ala. 606, 243 So.2d 736 (1970), this Court held that the passenger, who was injured in a collision with an uninsured motorist, was not only entitled to coverage under his own uninsured motorist policy but was also entitled to coverage under the driver’s policy.
“Under the second category of cases in which this Court has permitted stacking, the injured party seeks to stack coverages under separate uninsured motorist coverages on multiple vehicles insured under one policy which lists him as the named insured. In Employers Liab. Assurance Corp. v. Jackson, 289 Ala. 673, 270 So.2d 806 (1972), the doctrine of stacking coverages was extended to cover this second category of cases. Under the rule set out in Jackson, the insured is permitted to stack benefits under the uninsured motorist provisions of his personal policy where he has paid separate premiums for each vehicle insured under one multi-ve-hicle policy.” 331 So.2d at 262.

The rationale of our decisions allowing stacking is that this court is simply honoring the reasonable expectation of the “named insured” that his payment of an additional premium will result in increased coverage. Lambert, supra. In Lambert, we quoted with approval and adopted the reasoning of two other jurisdictions in the cases of Sturdy v. Allied Mut. Ins. Co., 203 Kan. 783, 457 P.2d 34 (1969) and Cunningham v. Ins. Co. of North America, 213 Va. 72, 189 S.E.2d 832 (1972), distinguishing between two classes of persons for the purpose of stacking insurance coverage. An insured of the first class, consisting of the named insured and any relative, is entitled to stack coverages. An insured of the second class, consisting of permissive users of the vehicle and any occupants, is not so entitled. This classification is consistent with reasonable expectations of the parties to the contract, the named insured and the insurance company. In Lambert, we expressly declined to extend to permissive users of automobiles the privilege of stacking multi-vehicle coverage under policies not owned by them. We adhere to that decision and find that it controls in this instance.

The decision of the trial court is hereby affirmed in part, reversed in part, and remanded.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

TORBERT, C. J., and BLOODWORTH and EMBRY, JJ., concur.

JONES, J., concurs specially.

JONES, Justice

(concurring specially)

I concur with the opinion except as to the stacking issue. As to this issue I concur in the result. See my special concurring opinion in Lambert v. Liberty Mutual Insurance Company, 331 So.2d 260 (Ala., 1976).

      . Tit. 36, § 74(42)-74(83), Code of Alabama 1940, Recompiled 1958.

      . By the terms of the policy, Lucille Conner is the only named insured.


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    Bessie HARDY, as Administratrix of the Estate of Charles Hardy, and as Personal Representative v. Earl SAWYER and Sawyer Farm Company.
    SC 2789.
    Supreme Court of Alabama.
    Nov. 10, 1977.
    Rehearing Denied Dec. 22, 1977.

      Alice L. Anderson, Enterprise, for appellant.
    C. Warren Rowe, of Rowe & Rowe, Enterprise, for appellees.
   EMBRY, Justice.

This appeal by Bessie Hardy, as adminis-tratrix of the estate of Charles Hardy, is from a judgment entered on a directed verdict in favor of the defendants, Earl Sawyer and Sawyer Farm Company, based on the applicability of the one year statute of limitations under the Alabama Employer’s Liability Act (Code, Tit. 26, § 326, et seq.) to plaintiff’s action for the wrongful death of her husband.

The issue presented on this appeal is whether this case which sought damages for the death of Charles Hardy was under the Alabama Employer’s Liability Act or a wrongful death action under § 123, Tit. 7, Code.

Facts pertinent to the appeal are: On 17 January 1972, Mrs. Hardy filed a two count complaint, which was later amended, against Sawyer and Sawyer Farm to recover damages for the death of her husband which occurred on 16 January 1970. The gist of each count is that Charles Hardy was employed by the defendants as a farm laborer and his death was the result of defendants’ negligence in furnishing him a defective truck. Thus the complaint, as amended, on its face asserted a cause of action under both § 123, Tit. 7, Code and the Alabama Employer’s Liability Act. The defendants pleaded the two year statute of limitations in abatement of the action. Mrs. Hardy demurred; the trial court sustained the demurrer because the action was filed on 16 January 1972, a Sunday, and under Tit. 39, § 184, Code, must be excluded.

At pretrial hearing Mrs. Hardy’s contentions were stated as follows:

“The plaintiff claims $75,000.00 damages of the defendants Earl Sawyer and Sawyer Farm Company for the wrongful death of the plaintiff’s intestate caused by the proximate negligence or wantonness of the defendants in furnishing defective equipment. The plaintiff contends that the deceased was a farm laborer and the defendants’ liability is to her under the Employer’s Liability Act for failing to provide a safe place or means of work.” (emphasis added)

At trial, following the conclusion of Mrs. Hardy’s case-in-chief, the defendants moved for a directed verdict on the ground the action was not brought within one year from the death of her decedent, therefore barred by the one year statute of limitation applicable under the Alabama Employer’s Liability Act. The trial court granted the motion and entered judgment accordingly. Mrs. Hardy filed a motion to set aside the judgment, and for a new trial, asserting for the first time, in the face of the pretrial order, that this was a wrongful death action and not brought under the Alabama Employer’s Liability Act. The trial court denied the motion and Mrs. Hardy perfected this appeal.

The basis of the defendant’s motion and the trial court’s judgment was the Court of Civil Appeals’ decision in C. F. Halstead Contractor, Inc. v. Lowery, 51 Ala.App. 86, 282 So.2d 909 (1973).

Halstead held:

“The enactment of the Employer’s Liability Act created a new cause of action by the employee against the employer for injury * * *. Tit. 26, § 326. Title 26, § 328 extended the employee’s right of action for such injury, if it resulted in death, to the personal representative. The Act did not provide a limitation upon the time for bringing such action by the personal representative. Therefore, in the absence of such provision, the general statute for the bringing of such action for injury by the employee had he not died must be looked to. That statute is Title 7, § 26. The application of the statute of limitation of one year to an action by the personal representative for death of an employee under the Employer’s Liability Act was determined as early as 1891 in the case of O’Kief v. Memphis & Charleston RR Co., 99 Ala. 524, 12 So. 454, and followed in subsequent cases. L & N R Co. v. Chamblee, supra [171 Ala. 188, 54 So. 681]; Williams v. Ala. Great Sou. Ry. Co., 158 Ala. 396, 48 So. 485; Gulf States Steel Co. v. Jones, 204 Ala. 48, 85 So. 264.”

On appeal Mrs. Hardy renews her claim that this was a wrongful death action under § 123, Tit. 7, and not under the Alabama Employer’s Liability Act. Therefore, she argues, the applicable statute of limitations is two years as provided in § 123, and Halstead does not control the instant case. We disagree.

The first time Mrs. Hardy ever explicitly stated that her action was under the wrongful death act was in her motion for new trial. This contradicts her own contentions, as evidenced by the pretrial order, that the defendants’ liability to her was under the Alabama Employer’s Liability Act.

A pretrial order under Rule 16, ARCP, has been construed as controlling the cause of action, Dillon v. Nix, 55 Ala. App. 611, 318 So.2d 308 (1975), and binding on the parties. 3 Moore’s Federal Practice, ¶ 16.19, at p. 1131 (1974). One must assume Mrs. Hardy was bringing her claim against Sawyer and Sawyer Farm under the Alabama Employer’s Liability Act. The record is absent any amendment to her complaint or motion to amend, or objection to, the pretrial order.

Under the state of the record the judgment of the trial court is due to be, and is, affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.


author: PER CURIAM. MADDOX, Justice

text:
    ALABAMA STATE BOARD OF CORRECTIONS, Judson C. Locke, Jr., as Commissioner, etc., et al. v. Hubert M. NORRIS.
    SC 2454.
    Supreme Court of Alabama.
    Dec. 2, 1977.

      W. Scears Barnes, Jr., Alexander City, for appellants.
    No brief for appellee.
   PER CURIAM.

On February 4,1977, Judson Locke, Commissioner of the Alabama State Board of Corrections, informed Sheriff Hubert Norris of Fayette County that twenty state prisoners were being transferred to the Fa-yette County jail from Marshall County. Norris, on February 7, 1977, petitioned the circuit court for a temporary restraining order which was granted on the same day. On March 14, 1977, after a presentation of the evidence, a permanent injunction was issued.

Evidence adduced at trial showed that as of February 1, 1977, the Marshall County jail, with a design capacity of fifty-two, had an inmate population of seventy-one. Fa-yette County’s jail had a design capacity of forty-six, and the present inmate population was five. Locke, acting under the authority granted him in Title 45, § 166, Code of Alabama, ordered twenty inmates removed from Marshall County to Fayette County in an attempt to eliminate the overcrowded conditions.

The trial judge based his order on the finding that Locke had failed to comply with the provisions of Title 45, § 166, Code of Alabama 1940, which was found to be a prerequisite to Locke’s exercise of his powers granted by Title 45, § 166. Title 45, § 166, provides:

“Whenever the department shall make written report to the court of county commissioners, or board of revenue, or to the city council, or other governing board or body, that certain conditions in the jail, prison, or almshouse should be remedied, or that certain improvements, additions or alterations should be made, they shall have the matter attended to within such reasonable time as may be designated by the department, and shall make written report to the department that such orders have been carried out.”

Admittedly, Commissioner Locke did not demand in writing that Marshall County correct the overcrowded conditions within a reasonable time before ordering the transfer of prisoners to Fayette County jail.

This same issue was recently presented in Locke v. Wheat, Ala., 350 So.2d 451 (1977) and was decided against the Commissioner. We affirm on the authority of Locke v. Wheat, supra.

AFFIRMED.

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

MADDOX, J., concurs specially.

MADDOX, Justice

(concurring specially).

In Locke v. Wheat, Ala., 350 So.2d 451 (1977), I was the sole member of this Court to express a dissenting view. I thoroughly expressed my views in that dissent, which I still believe to be right, but I recognize that this Court, for the present, seems committed to the interpretation of Alabama’s prisoner transfer statute as expressed by the other eight members of the Court in that decision. Consequently, so long as this Court is so thoroughly committed to that interpretation, I must make decisions on the law as this Court construes it to be. See Mr. Justice Black’s special concurrence in Morgan v. Virginia, 328 U.S. 373, 386-88, 66 S.Ct. 1050, 90 L.Ed. 1317 (1945), wherein he expressed similar views about the Supreme Court’s interpretation of the Interstate Commerce Clause, with which he disagreed, but which he felt constrained to follow.

In any event, the legislature will soon be in session. That body, in its wisdom, can determine whether the prisoner transfer laws, as interpreted, should be changed because of the emergency conditions which exist in some county jails because of the federal court order.


author: MADDOX, Justice.

text:
    POUGHKEEPSIE SAVINGS BANK v. HIGHLAND TERRACE APARTMENTS.
    SC 2465.
    Supreme Court of Alabama.
    Dec. 2, 1977.
    James J. Robinson, Birmingham, for appellant.

      James M. Tingle and Robert R. Sexton, Birmingham, for appellee.
   MADDOX, Justice.

The defendant below, Poughkeepsie Savings Bank, appeals from the trial court’s order which permanently enjoined Pough-keepsie’s attempt to collect an irrevocable Letter of Credit established by the plaintiff, Highland Terrace Apartments.

Highland, a partnership, employed W. B. Phillips to secure permanent financing for an apartment complex on Birmingham’s southside. Phillips sought a $940,000 commitment from Poughkeepsie, but got only $850,000. The commitment had a closing date in eighteen months, and contained a liquidated damages clause, requiring that an irrevocable Letter of Credit in the amount of $8,500 be established. The pertinent portion of that clause reads, as follows:

“[T]he Borrowers must deposit an additional sum of $8,500 in the form of an irrevocable Letter of Credit, with the acceptance of this commitment as a good faith deposit, which shall be forfeited as liquidated damages if the Borrower defaults under the terms and conditions of this commitment; otherwise, it shall be returned to the Borrower upon delivery the mortgage loan.”

The agreement also required the personal guarantee of payment by the members of the partnership until 85% of the apartment units were occupied for one year. Interim construction financing was obtained from The First National Bank of Birmingham, which also issued the $8,500 Letter of Credit.

Due to numerous problems which arose, it was two or three months after the final loan commitment of July 22, 1975, before actual construction was begun. Heavy rains fell in Birmingham during the first few months of 1976. Highland’s progress was hindered because of the steep grade and loose dirt at the building site. Evidence tended to show that progress toward completion was being rapidly made, and that the complex would be successful. Nevertheless, Phillips was asked to seek an extension of the commitment closing date and an increase in the loan commitment of $100,000. In November of 1976, Phillips sent Poughkeepsie several letters of inquiry and Poughkeepsie, after some delay, agreed to send two representatives to Birmingham on December 7, 1976, to make an on-site inspection. In a telephone conversation on December 28,1976, a Poughkeepsie employee informed Phillips that the extension and increase in the loan commitment had been approved and that a letter would be forthcoming. The actual terms and conditions of the new loan commitment were never discussed.

The notice of the extended closing date came on January 11, 1977, in the form of a new commitment agreement which would supersede the July 22, 1975 agreement. The new commitment offer was unacceptable to Highland because it contained terms not in the earlier commitment. The new offer included clauses calling for a six-month extension, $8,500 loan fee, $850.00 processing fee, $8,500 good faith Letter of Credit and an absolute guarantee of payment by the individual partners and their spouses. Some confusion arose as to whether the fees set out in the new proposal would be in addition to the original loan commitment requirements or were restatements. The most objectionable addition was the personal guaranty requirement.

The January 22, 1977, closing deadline under the original commitment arrived and Poughkeepsie attempted to collect on the Letter of Credit. Highland sought injunc-tive relief. A Temporary Restraining Order was issued and Poughkeepsie counterclaimed against Highland for the amount of the Letter of Credit and filed a crossclaim against The First National Bank of Birmingham, with whom the Letter was established. In addition, Poughkeepsie sought $5,000 for the expenses incurred by it in defending against the injunction. Pough-keepsie’s jury demand on the original complaint was denied and the request for a jury on the counterclaim was withdrawn.

Stating that the courts of Alabama will balance the equities, the trial judge permanently enjoined Poughkeepsie from attempting to collect the Letter of Credit, but did award it $1,750 for expenses incurred in defending the action. Stating that the loss of the $8,500 fee would not work any hardship upon a banking institution such as Poughkeepsie, and that Poughkeepsie had not suffered any additional monetary expenses, the Letter of Credit was found to be a penalty. The trial court further found that Poughkeepsie had not dealt in good faith in that it had led Highland into believing that the requested extension of time would be granted under the same conditions that existed in the original loan commitment, and that Poughkeepsie had waited until January 11, 1977, to submit an unacceptable commitment.

Poughkeepsie attacks the trial court’s granting of the injunction on the ground that rainy weather does not excuse one from the terms of his contract and that the $8,500 Letter of Credit does not constitute a penalty under the facts of this case. Poughkeepsie also contends that the trial judge erred in failing to award it the sum of $5,000 as attorney’s fees and costs of defending the wrongful injunction. Lastly, Poughkeepsie argues that they were wrongfully denied their right to trial by jury as to both the original complaint and counterclaim.

Breaking down the sequence of events which led to this lawsuit leaves us with the conclusion that the trial judge was in error. This is not a case where we are faced with an ore tenus problem; instead, the facts in the record before us, as a matter of law, do not support the judgment. Very simply, the parties entered into a contract on July 22, 1975, wherein Poughkeepsie promised to loan Highland $850,000 on January 22,1977. In return, Highland promised to be in a position to close the loan on January 22, 1977, or forfeit a $8,500 Letter of Credit as liquidated damages. Because of unusual weather, and terrain conditions, Highland was running behind schedule and needed an extension. Trying to avoid payment of the Letter of Credit, and seeking to acquire additional capital, they requested Pough-keepsie to give an extension of time and an additional $100,000. After considering the application, Poughkeepsie, which was under no obligation to do so, responded to Highland’s request with a new superseding commitment. Highland rejected the offer and the loan was not closed on January 22,1977.

The legal conclusion is inescapable; Highland had breached its contract with Poughkeepsie. Highland’s excuse was based on the adverse weather conditions, and on the fact that Poughkeepsie failed to promptly notify it that the new commitment would contain new terms until January 11, 1977, and that this late notification constituted bad faith. Highland argues that it acted in good faith and that the $8,500 Poughkeepsie seeks amounts to a forfeiture. We disagree.

Alabama decisions have strictly held a promissor to the literal terms of his promise. City of Albertville, Alabama v. United States Fidelity & Guaranty Co., 272 F.2d 594 (5th Cir. 1960). Here, Highland promised to close the loan on January 22, 1977; it did not do so. Nowhere does the record reflect that Poughkeepsie was under any legal or contractual duty to vary the terms of its agreement or to promptly inform Highland of the exact terms of the offer that Poughkeepsie eventually made. The trial judge, in his order, relied on the evidence offered by Highland, over Pough-keepsie’s objection, to the effect that the unusual amounts of rainfall delayed completion of the apartment complex. This was error. As this Court said in Otinger v. Water Works and Sanitary Sewer Board, 278 Ala. 213, 177 So.2d 320 (1965):

“ * * * [WJhere one by his contract creates an absolute obligation in which the obligation rests on himself, he is bound to perform within the terms of the contract, or answer in damages despite an act of God, unexpected difficulty, hardship, or inevitable accident, since he should have provided against such contingencies by his contract. Partridge v. Forsyth, 29 Ala. 200; Capital Fertilizer Co. v. Ashcraft-Wilkinson Co., 202 Ala. 92, 79 So. 484.”

Highland says that under all the facts here, the trial judge was authorized to reach the conclusion that a forfeiture has accrued. Highland relies on Hunter-Benn & Co. v. Bassett Lumber Co., 224 Ala. 215, 139 So. 348 (1931), and states that a court of equity will generally relieve a party of strict compliance with the time of performance in a contract. But this rule has an exception which is stated in the Hunter-Benn & Co. decision, as follows:

“ * * * Consequently a court of equity will generally relieve a party who has not performed his contract strictly, as to time, unless it appears affirmatively that the parties regarded it as an essential element in their agreement, or unless such a result follows from the nature and purpose of the contract. And slight circumstances are sufficient in a court of equity to prevent a party from taking the benefit of a time stipulation.” (emphasis supplied).

The nature and purpose of the contract before this Court was to loan some $850,000 at 10% interest; in fact, this was Pough-keepsie’s sole promise. Time was of the essence. Highland was seeking' an extension. Poughkeepsie offered an extension, but the terms were unacceptable. Under these facts, no court' should change the date of closing agreed upon by the parties.

The last question is: Was the sum of $8,500 in liquidated damages so excessive, under the facts, as to prevent the same from being a valid liquidated damages clause? We think not. In Shel-Al Corporation v. American National Ins. Co., 492 F.2d 87 (5th Cir. 1974), the Fifth Circuit Court of Appeals, relying on an interpretation of Alabama law, found a clause requiring a $24,-000 Letter of Credit plus a $24,000 cash deposit for liquidated damages on a $1,600,-000 mortgage loan commitment was a valid requirement. In fact, the Shel-Al Corporation decision is basically identical to the ease presently before us. See, also, Frank’s Nursery Sales, Inc. v. American National Ins. Co., 388 F.Supp. 76 (E.D.Mich.1974); White Lakes Shopping Center, Inc. v. Jefferson Standard Life Ins. Co., 208 Kan. 121, 490 P.2d 609 (1971). Thus, we do not find the $8,500 to be an unreasonable liquidated damages sum under the facts of this case.

Poughkeepsie also asks this Court to reverse the trial court’s award of some $1,750 for the cost and expenses it incurred in defending the wrongful injunction obtained by Highland. Poughkeepsie claims this sum is inadequate to compensate it for the costs and expenses it incurred. Poughkeepsie relies on Rule 65(c), A.R.C.P., which states:

“SECURITY. No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs, damages, and reasonable attorneys fees as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained; provided, however, no such security shall be required of the State of Alabama or of an officer or agency thereof, and provided further, in the discretion of the court, no such security may be required in domestic relations cases.
“The provisions of Rule 65.1 apply to a surety upon a bond or undertaking under this rule.”

We decline to set aside the court order. Although, as we have heretofore expressed, the injunction was wrongfully issued, the court made a finding of fact that the reasonable cost incurred in this case by Pough-keepsie amounted to $1,750. The court stated:

“The court finds that the Defendant, Poughkeepsie Savings Bank, has incurred travel expenses and attorney’s fees for the defense of this action as described aforesaid and determines that the reasonable value thereof is the sum of $1,750.00 which the Plaintiff is directed and ordered to pay to the Defendant, Pough-keepsie Savings Bank, within (30) days from the date of this Order.”

It has been a longstanding rule of this state that where the evidence is heard ore tenus, the findings of the trial court will not be disturbed unless plainly and palpably contrary to the weight of the evidence. We do not find any evidence to the contrary. Casey v. Krump, 263 Ala. 346, 82 So.2d 424 (1964).

Poughkeepsie also argues its demand for jury trial as to the complaint and counterclaim was wrongfully denied. The record affirmatively shows that Poughkeepsie voluntarily withdrew its demand. Thus, we are left without anything to review. See Rule 38(d), A.R.C.P.

AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED.

BLOODWORTH, JONES, SHORES and BEATTY, JJ., concur.


author: PER CURIAM.

text:
    UNITED BUILDERS, INC. v. OXFORD PROPERTIES, INC.
    SC 2594.
    Supreme Court of Alabama.
    Dec. 2, 1977.
    Donald B. Weir, Jr., Huntsville, for appellant.
    Gary C. Huckaby, Huntsville, for appel-lee.
   PER CURIAM.

Affirmed on the authority of Birmingham National Bank v. Bradley, 108 Ala. 205, 19 So. 791 (1895). See also McElroy’s Alabama Evidence, § 10.01.

AFFIRMED.

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


author: JONES, Justice.

text:
    W. W. MOCK v. FIRST CITY NATIONAL BANK, a National Banking Association.
    SC 2654.
    Supreme Court of Alabama.
    Dec. 2, 1977.

      Fred Ray Lybrand of Lybrand, Sides, Hamner, Oglesby & Boozer, Anniston, for appellant.
    Robert B. Propst of Wilson, Propst, Isom, Jackson, Bailey & Bolt, Anniston, for appel-lee.
   JONES, Justice.

This appeal arises from a decree holding Appellant, W. W. Mock, liable on an overdue note payable to Appellee, First City National Bank of Oxford, Alabama. The trial Court overruled Mock’s motions for severance and change of venue, and upon trial, without a jury, awarded judgment against Mock, including interest, for the sum of $19,504.03. We affirm.

Environmental Standards, Inc., a named Defendant, was a corporation which produced and sold chemical cleansers to commercial establishments. Prior to June, 1975, Environmental became indebted to Bank for the sum of $66,000. At approximately this time, because the debt was past due, Bank made a demand for immediate payment. To forestall Bank’s foreclosure proceedings, E. L. Prokos, President of Environmental, made overtures to several prospective investors — including Mock. Initially, Mock invested $11,000 in exchange for 40% of the stock in Environmental. Thereafter, in August, 1975, Bank, seeking additional security for the corporate indebtedness, sent a note for an additional $15,000 to Mock for his signature. In ruling against Mock, the trial Court necessarily found that this note was to be applied against Environmental’s debt.

Pursuant to an agreement between these parties, Bank wrote a memorandum check indicating a credit to Environmental’s debt, placed it in escrow for later payment, and forebear foreclosure proceedings. Mock never complained of this transfer until this action was filed. It is from this posture, and under these findings, then, that the trial Court rendered its judgment.

Appellant Mock asserts the issues presented thusly:

“1. Whether a party, residing in another county, executing a note at his place of residence to an out-of-county bank, is entitled to a severance and change of venue where he was in no way involved with the other defendants named in the complaint.” (Citing, inter alia, Rules 19 and 20, ARCP.)

“2. Whether the failure of a lending institution to pay over to the maker or any other person the amount recited in a note, is a failure or want of consideration so as to defeat a subsequent suit on the note.” (Citing, inter alia, U.C.C., § 3-408.)

Appellee Bank’s reply to the “severance and change of venue” issue amply answers this aspect of the appeal:

“The Complaint clearly reflects that if the amount due from Appellant Mock to the Bank is due and payable and is paid, its proceeds are due to be applied to one or more of the other notes sued on. It is clear from the evidence and the final judgment of the trial Court that to the extent the Mock note was due and payable and is paid, the other parties are due a credit toward their own indebtedness. If Mock’s note is not due, the other parties are liable for their full indebtedness.

“The note given by Mock as security for the original notes clearly falls within ARCP Rule 20 which refers to a series of transactions or occurrences. Clearly security for prior note(s) would be one in a series of transactions or occurrences.” (Emphasis theirs.)

Rule 20(a) states, in part:

“All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action.”

Giving a note as security for a previous debt, as here, is clearly one of a series of transactions or occurrences. In Hooper v. Huey, 293 Ala. 63, 300 So.2d 100 (1974), this Court said:

“Rules 19 and 20, ARCP, which deal with the joinder and alignment of parties, are intended to promote trial convenience, prevent a multiplicity of suits, and expedite the final determination of litigation by inclusion in one suit all parties directly interested in the controversy despite technical objects previously existing in many situations.” 293 Ala. at 69, 300 So.2d at 105.

The trial Court did not err in denying the motions for severance and change of venue.

Appellee Bank’s initial response to Appellant’s “lack of consideration” issue is to more aptly restate the question presented:

“Whether a note given by a stockholder investor in a Corporation is supported by consideration when given to prevent foreclosure or suit on Corporation’s debt.”

The thrust of Mock’s contention is that, “because he never did receive the $15,000.00 consideration, he did not become liable to the Bank for that sum.” This overlooks the nature of the note here sued upon by Bank. The trial Court, adverse to Appellant’s contention, found that the note was accepted by Bank as security for an existing note, and its forebearance of its right of foreclosure or to sue on the original note was conditioned on Mock’s execution of the note in question.

Thus, Appellant’s reliance upon the first portion of U.C.C., § 3-408 (“Failure of Consideration”) is not well grounded, because the facts bring the case squarely within the “except” clause:

“ . . . except that no consideration is necessary for an instrument or obligation given in payment of or as security for an antecedent obligation of any kind.”

See also Comment 2 to § 3 — 408.

AFFIRMED.

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


author: SHORES, Justice.

text:
    Jack DANIELS et al. v. Ralph A. CHAPUIS and Helen M. Chapuis.
    SC 2663.
    Supreme Court of Alabama.
    Dec. 2, 1977.

      Sanford D. Weiss of Weiss and Sawyer, Montgomery, for appellants.
    J. Donald Reynolds, Montgomery, for ap-pellees.
   SHORES, Justice.

This is the second appeal in this case. In Daniels v. Chapuis, 344 So.2d 500 (Ala.1977), this court remanded the cause and directed the trial court to take “ . . . further testimony respecting the specifics of the restrictive conditions for future dragstrip operations . . ..” (344 So.2d at 504)

On remand, the trial court took additional testimony and modified its former order by substituting a concrete wall of specified dimensions for the former requirement of a 15' X Vs" plywood fence and a three cable fence as a barrier between the properties of each party.

Daniels again appeals, this time contending that the trial court must be reversed because it refused to hear additional testimony with respect to the hours which the drag strip should be allowed to operate. There was evidence in the prior record to support the trial court’s finding with respect to this issue. Therefore, additional evidence on this issue was not mandated on remand.

The judgment appealed from is affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


text:
    George E. BAGLEY, etc., et al. v. The CITY OF MOBILE et al.
    SC 2462.
    Supreme Court of Alabama.
    Dec. 9, 1977.

      William J. Baxley, Atty. Gen., William T. Stephens and Winston T. Lett, Asst. Attys. Gen., for appellants.
    Robert B. Wilkins, J. Michael Druhan, Jr., and Michael A. Wermuth, Mobile, for appel-lees.
   EMBRY, Justice.

The principal issue to be resolved on this appeal is whether members of city and county industrial boards, planning and zoning boards, school boards, boards of adjustment, utility boards, housing boards, public hospital boards and any boards, commissions, committees, authorities or councils having jurisdiction with respect thereto, are subject to the Alabama Ethics Act. § 36-25-1, et seq., Code 1975.

Incidental issues are: whether the action was properly maintained as a class action; and whether the City of Mobile and the Industrial Development Board of the City of Mobile have standing to sue.

Plaintiffs in the action are the City of Mobile; the Industrial Development Board of the City of Mobile; Oliver H. Delchamps, Jr., as Vice President and as a member of the Board of Directors of the Industrial Development Board of the City of Mobile; E. Frank Schmidt, as Treasurer and as a member of the Board of Directors of the Industrial Development Board of the City of Mobile; C. M. A. Rogers, III, as a member of the Board of Directors of the Industrial Development Board of the City of Mobile; E. Ward Faulk, as a member of the Board of Directors of the Industrial Development Board of the City of Mobile; Michael P. Feore, as Vice President and as a member of the Greater Mobile Mental Health-Retardation Board, Inc.; Withers Davis, as President and as a member of the Montgomery Area Mental Health Authority, Inc., and Robert B. Nesbitt, as Treasurer and as a member of the Montgomery Area Mental Health Authority, Inc.

Defendants are George E. Bagley, Alto V. Lee, III, Leslie S. Wright, Melvin G. Cooper, members of the Alabama Ethics Commission, and William J. Baxley, Attorney General of the State of Alabama.

In their complaint, plaintiffs allege the action was brought in their own behalf and as representatives of:

“ * * * all other persons appointed under state, county or municipal law as members of all municipal and county boards, agencies, commissions, committees, councils and authorities, similarly situated, including but not limited to city and county industrial boards, planning and zoning boards, school boards, boards of adjustment, utility boards, housing boards, public hospital boards, and other boards, commissions, committees, councils or authorities having jurisdiction with respect thereto, in all cities and counties in the State of Alabama.”

They contend the effect of this court’s decision in Comer v. City of Mobile, 337 So.2d 742 (Ala.1976), excludes members of the alleged class from the definition of “public official” found in § 36-25-1(11), Code 1975 (§ 2(k) of the Ethics Act). The Circuit Court of Montgomery County agreed, and entered a final judgment by which it permanently enjoined the enforcement of the Ethics Act against:

“ * * * Plaintiffs and all other persons appointed under state, county, or municipal law to an office which is normally filled other than by an election by the voting populace, being all county and municipal boards, agencies, commissions, committees, councils and authorities, similarly situated, including but not limited to city and county industrial boards, planning and zoning boards, boards of adjustment, utility boards, housing boards, public hospital boards, mental health boards, and other similar boards, commissions, committees, councils or authorities having jurisdiction with respect to all cities and counties in the State of Alabama, regardless of population * * * ”

This appeal is from that judgment, which is partially erroneous in the above aspect, erroneous in other aspects; therefore it will be reversed.

Before addressing the applicability of the Act to plaintiffs, and the class defined by the trial court, it is necessary to answer two procedural questions posed in this case: (1) Whether this action was properly maintained as a class action; and (2) Whether the City of Mobile and the Industrial Development Board of the City of Mobile have standing to challenge the Act. We answer each of these questions in the negative.

The Class Action Question

The prerequisites to maintaining a class action are set forth in Rule 23(a), ARCP:

“(a) Prerequisites to a class action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.”

Additional requirements are found in Rule 23(b), ARCP:

“(b) Class actions maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
“(1) The prosecution of separate actions by or against individual members of the class would create a risk of:
“(A) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
“(B) Adjudications with respect to individual members of the class which would as a practical matter be disposi-tive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
“(2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
“(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.”

Moreover, Rule 23(c)(1), mandates:

“As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits.”

In its final judgment, in addition to defining the class as we set out above, the trial court found:

“(b) That the class is so numerous that joinder of all members is impracticable; that there are questions of law and fact common to the class; that the claims of the representative parties are typical of the claims of the class; and that the representative parties have fairly and adequately protected the interests of the class; and
“(c) That this action has been properly maintained as a class action because the prosecution of separate actions by individual members of the class would create a risk of inconsistent or varying adjudications with respect to individual members of the class; that adjudications with respect to individual members of the class would as a practical matter be dispositive of the interests of other members not parties to the adjudications, or would substantially impair or impede their ability to protect their interests; and that the Defendants have acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief and corresponding declaratory relief with respect to the class as a whole. * * * ”

The record is silent as to whether a hearing was had on the class action question, and absent an order of the trial court determining the suit could be maintained as a class action. An order of determination is mandatory. 3B Moore’s Federal Practice, ¶ 23.50, at p. 23-1101. The trial court has the duty to determine the class action question whether or not a motion is made by either of the parties. Rodriguez v. East Texas Motor Freight, 505 F.2d 40 (5th Cir. 1974). It must determine, before entry of judgment, that all prerequisites of 23(a) are met and, in addition, that at least one of the three requirements of 23(b) are satisfied. 3B Moore’s Federal Practice, ¶ 23.03, at p. 23-228; Rule 23(c)(1). These findings and determinations were not made, therefore there are before us only the named plaintiffs excepting the City of Mobile and the Industrial Development Board of the City of Mobile. The latter excepted for the reasons we will now discuss.

The Standing to Sue Question

In order that the City of Mobile and the Industrial Development Board of the City of Mobile be proper parties plaintiff to this action they must have, either individually or in a representative capacity, an interest in the right to be protected. Stewart v. White, 128 Ala. 202, 30 So. 526 (1901). The language of § 36-25-1(1), Code 1975 (§ 2(k) of the Act), clearly applies only to those it defines as public officials; not to cities or boards or similar entities. Hence, only the named plaintiffs, who are persons, have standing to challenge the applicability of the Act. They would be directly affected by enforcement of it. The City of Mobile and the Industrial Development Board of the City of Mobile would not and therefore lack standing to challenge its enforcement.

The Merits

The provision of the Ethics Act calling for interpretation in order to determine whether the Act is enforceable against, and applicable to, the named individual plaintiffs is § 36-25-1(11), Code 1975 (§ 2(k) of the Act):

“PUBLIC OFFICIAL. Any elected official at the state, county or municipal level of government and any person appointed under state, county or municipal law to an office where in the conduct of such office such person has administrative and discretionary authority for the receipt or expenditure of public funds. This term shall also include members of state boards, commissions, committees, councils and authorities, however selected, presidents, vice-presidents, chief purchasing officials and chief financial officials of all schools, colleges and universities of the state; members of city and county industrial boards, planning and zoning boards, school boards, boards of adjustment, utility boards, housing boards, public hospital boards and any boards, commissions, committees, authorities or councils having jurisdiction with respect thereto, in all cities whose population is more than 15,000 according to the last decennial census. This term excludes members of all other boards not named including but not limited to those commissions, committees, councils, boards or authorities, functioning solely for cultural or historical purposes and advisory board members and members of boards of trustees of institutions of higher learning of the State of Alabama.”

The Ethics Commission and the Attorney General, appellants, state the issue presented for review as follows:

“The only issue presented for review on this appeal is whether in light of this Court’s decision in Comer v. City of Mobile, 337 So.2d 742 (1976) appointed members of county and municipal boards who have ‘administrative and discretionary authority for the receipt or expenditure of public funds’ are ‘public officials’ under Section 2(k) of Act No. 130, 1975 Session; and thus subject to the prohibitions and requirements of that act.” Appellees disagree, and say:
“Does Act No. 130 of the 1975 Regular Session of the Legislature of Alabama apply to persons appointed under state, county and municipal law as members of municipal and county boards, agencies, commissions, committees, councils and authorities, including, but not limited to city and county industrial boards, planning and zoning boards, boards of adjustment, utility boards, housing boards, public hospital boards, and any and all other similar boards, commissions, committees, authorities or councils having jurisdiction with respect to all counties and municipalities in the State of Alabama?”

The trial court answered the issue, as stated by appellees, in the negative.

In Comer, supra, Justice Beatty, for the court, stated:

“ * * * Since we can find no reasonable relationship between boards in cities with a population of over 15,000, as opposed to cities which do not reach the minimum population mark, with regard to the integrity of board members, we must conclude that the classification in the quoted portion of the § 2(k) is an arbitrary and capricious one, and thus unconstitutional. Accordingly, we hold that this portion of § 2(k) is unenforceable.”

What was the effect of so holding? It was to make § 2(k) (§ 36-25-1(11), Code 1975) read:

“ ‘Public Official’ means any elected official at the state, county, or municipal level of government and any person appointed under state, county, or municipal law to an office where in the conduct of such office such persons has administrative and discretionary authority for the receipt or expenditure of public funds. This definition shall also include members of state boards, commissions, committees, councils and authorities, however selected, Presidents, Vice-Presidents, Chief Purchasing Officials and Chief Financial Officials of all schools, colleges and universities of the State; members of county industrial boards, planning and zoning boards, school boards, boards of adjustment, utility boards, housing boards, public hospital boards, and any boards, commissions, committees, authorities or councils having jurisdiction with respect thereto. This definition excludes members of all boards not named including but not limited to those commissions, committees, councils, boards of authorities, functioning solely for cultural or historical purposes and advisory board members and members of boards of trustees of institutions of higher learning of the State of Alabama.”

The Commission and Attorney General contend that individual plaintiffs are board members who have “administrative and discretionary authority for the receipt or expenditure of public funds” and thus subject to the provisions of the Ethics Act because of the language of § 36-25-1(11), supra, which defines a public official as “ * * * any person appointed under state, county, or municipal law to an office where in the conduct of such office such person has administrative and discretionary authority for the receipt or expenditure of public funds. * * * ” We disagree.

We must now interpret this language in the wake of our decision in Comer. As in all cases in which this court is called upon to interpret an enactment of the legislature, the underlying consideration is to ascertain and effectuate the intent of the legislature as expressed in the statute. Tillman v. Sibbles, 341 So.2d 686 (Ala.1977). The language which appellants contend brings the appellee members of city boards and authorities within the ambit of the Ethics Act is both prefatory and general. The definition of public official proceeds from the general to the specific in describing the boards, commissions, committees, authorities and councils, the members of which, having administrative and discretionary authority for the receipt or expenditure of public funds, are subject to the Ethics Act.

An aid in construing statutes structured in such a manner is the maxim: expressio unius est exclusio alterius. In Champion v. McLean, 266 Ala. 103, 95 So.2d 82 (1957), this court made the following comment about the maxim:

“According to this rule of construction, where a statute enumerates certain things on which it is to operate, the statute is to be construed as excluding from its effect all those things not expressly mentioned. * * * ”

It is clear from a reading of that provision of the Act under consideration that the legislature named with specificity the boards, commissions, committees, authorities, and councils whose members were defined as public officials with administrative and discretionary authority for the receipt or expenditure of public funds.

Because members of the named city boards, commissions, committees, authorities, and councils were removed from the category of public officials subject to the Act by the holding in Comer, it follows that plaintiffs, members of city boards and authorities, are not subject to its provisions. Once removed they cannot now be included in the definition by reference to the general, prefatory language. As they are not members of boards et cetera, which are named as the provision reads since Comer, they are also excluded from the category of public officials subject to the Act by the very language of the provision under consideration. That is:

“ * * * This definition excludes members of all other boards not named including but not limited to those commissions, committees, councils, boards of authorities, functioning solely for cultural or historical purposes and advisory board members and members of boards of trustees of institutions of higher learning of the State of Alabama.”

For the reasons given we hold: that the City of Mobile and the Industrial Development Board of the City of Mobile are not proper parties to this action; that the action was not properly determined to be a class action; and that the named individual plaintiffs are not subject to the Code of Ethics for Public Officials, Employees, etc., § 36-25-1, Code 1975.

AFFIRMED IN PART. REVERSED AND RENDERED IN PART.

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


author: SHORES, Justice. MADDOX, Justice

text:
    James A. McCULLOUGH, as Member of the Mobile County Personnel Board v. The STATE of Alabama ex rel. C. E. BURRELL and C. E. Burrell.
    SC 2475.
    Supreme Court of Alabama.
    Dec. 9, 1977.
    Rehearing Denied Jan. 6, 1978.

      Mylan R. Engel, James E. Atchison, Charles S. Street, Mobile, for appellant.
    William H. McDermott, Mobile, for appel-lees.
   SHORES, Justice.

C. E. Burrell filed a petition for writ of quo warranto challenging James A. McCullough’s eligibility to hold membership on the Mobile County Personnel Board. Bur-rell contended that McCullough was ineligible to hold an office on the Personnel Board because he served as a member of the Sara-land Water and Sewer Board for eight years next preceding his election (by the Supervisory Committee of the Mobile County Personnel Board) and, as such, held public office, which disqualified him under the provisions of Act No. 684, Acts of Alabama 1976, Vol. II, approved August 23, 1976, page 939.

After hearing, the trial court entered a final judgment removing McCullough from an office on the Personnel Board for Mobile County and declared him ineligible to hold such office hereafter for a period of time fixed by law. McCullough appealed.

The facts are undisputed.

McCullough, for several years prior to his election to the Mobile County Personnel Board to fill a vacancy in Place One, served as a member of the Board of Water and Sewer Commissioners of the City of Sara-land, Alabama, which is a public corporation created pursuant to Title 37, Article 8, Chapter 7, §§ 402(28)-(46), Code.

The Water and Sewer Board has authority to adopt a budget and spend monies, fix water (but not sewer) rates, and give final approval for hiring of employees for the board. McCullough participated in all of these functions as a member of that board.

Additionally, in December 1976, McCullough’s name was placed on a ballot circulated among the members of the State Democratic Executive Committee to select a party nominee for a vacancy in the State Legislature, but was not selected as the party nominee for that office. Because he found that McCullough held a public office by being a member of the Board of Water and Sewer Commissioners of Saraland, the trial judge did not reach the question of whether his having sought the Democratic nomination for the legislature would also disqualify him for membership on the Personnel Board.

The initial issue presented is whether McCullough, by being a member of the Board of Water and Sewer Commissioners of the City of Saraland, held public office as that expression is used in Act No. 684, supra. The Mobile County Personnel Board was originally created by Act No. 470, 1939 Local Acts of Alabama, approved September 15, 1939, page 298. Section VII of Act No. 470 sets out the number of members and qualifications of the Personnel Board as follows:

“The Personnel Board shall consist of three members designated respectively as Member Number One, Member Number Two, and Member Number Three, each of whom shall be over 21 years of age, of recognized good character and ability, a bona fide resident and a qualified elector of Mobile County, and shall not, when appointed, nor for the three years then next preceding the date of his appointment have held any Mobile County or City public office, nor have been a candidate for such. If any person actively solicits a position on such Board, the Committee may, for this reason, refuse to consider his appointment. . . . ”

4 Act No. 470 was amended in 1965. Act No. 36, Acts of Alabama 1965, Third Special Session, Vol. I, approved October 29, 1965, page 246. This amendment eliminated the reference to Mobile County or City so that the section reads:

“ ‘Section VII. PERSONNEL BOARD: The Personnel Board shall consist of three members designated respectively as Member Number One, Member Number Two, and Member Number Three, each of whom shall be over 21 years of age, of recognized good character and ability, a bona fide resident and a qualified elector of Mobile County, and shall not, when appointed, nor for the three years then next preceding the date of his appointment have held public office, nor have been a candidate for such. If any person actively solicits a position on such Board, the Committee may, for this reason, refuse to consider his appointment. . . . ’”

This section was again amended in 1976 by Act No. 684, supra. The 1976 amendment increased the number of members on the Board from 3 to 5, reduced the qualifying age from 21 to 19, and provided that members should be selected from districts. The 1976 amendment retained the language contained in the 1965 amendment:

“ ‘Section VII, (a). . . . members . .. . shall be ... a qualified elector of Mobile County, and shall not, when appointed, nor for three years then next preceding the date of his appointment have held public office, nor have been a candidate for such. If any person actively solicits a position on such Board, the committee shall, for this reason, refuse to consider his appointment. . ’ ” (Emphasis Added)

Does a member of a municipal water and sewer commission, created pursuant to Title 37, Article 8, §§ 402(28)-{46), Code, hold public office as that term is used in Act No. 684, supra ? § 402(31) of Title 37 provides:

“Each board created under the provisions of this article shall be deemed to be a public agency or instrumentality exercising public and governmental functions to provide for the public health and welfare, and each such board is hereby authorized and empowered:

There follows a list of the functions which such boards are empowered to perform, described in the statute as governmental functions. The Saraland Water and Sewer Board, of which McCullough was a member, is a corporation organized by law to perform its functions as an agency of the municipality. Its functions are governmental. Its members are, therefore, public officers. State ex rel. Richardson v. Morrow, 276 Ala. 385, 162 So.2d 480 (1964). Consequently, McCullough held public office within three years next preceding his election to the Mobile County Personnel Board. He is, therefore, ineligible to hold this office because of the restrictions contained in Act No. 684.

We agree with the contention of McCullough that the words “office” and “officer” as frequently used in statutes are not easily defined. As he points out, this court said in Harrington v. State ex rel. Van Hayes, 200 Ala. 480, 481, 76 So. 422, 423 (1917):

“The words ‘office’ and ‘officer,’ as used in certain statutes or constitutional provisions, may include certain positions, places, and persons, which would not be embraced within the meaning of the same words used in other statutes or other constitutional provisions. .
“There are in legal parlance probably few words that have a greater variety of meanings, or shades of meaning, than the words ‘office’ and ‘officer.’
Public officers are usually required to take an oath, and often, to make bond, and to keep an office or place of business; but none or all of these requirements do not absolutely determine whether or not a given employment is a public office, within the meaning of a given statute or constitutional provision. ... A public employment authorized or created by law may not be a public office within the meaning of the statutes and constitutional provisions governing qualifications for, elections to, and removals from, public offices, state, county or municipal

The court, in Harrington, recognized, however, that where a board or commission is clothed by law with a part of the sovereign power, its members are for that reason public officers within the meaning of the statute creating such board or commission. Id. at page 481, 76 So. 422.

The Act creating the Mobile Personnel Board (nor any amendment thereto) contains no definition of “public office” as that term is used in the Act. We must, therefore, look to the Act creating the Water and Sewer Board of the City of Saraland to determine whether the members of that board are public officers. Clearly, that board is clothed by law with a part of the sovereign powers; State ex rel. Richardson v. Morrow, supra, and for that reason its members must be deemed to hold a public office within the meaning of the statute under which it was created.

McCullough argues that Act No. 684 refers only to public offices whose members are elected by the public. The Act contains no suggestion that the legislature intended the restriction to apply only to publicly elected public officers. Our function, of course, is to construe legislation consistent with the legislative intent to the extent that such intent can be determined from the enactment itself. Tillman v. Sibbles, 341 So.2d 686 (Ala.1977); State ex rel. City of Birmingham v. City of Tarrant City, 294 Ala. 304, 315 So.2d 583 (Ala.1975). It is also appropriate to look to the purposes and objects of the legislation and any evil sought to be remedied or avoided by the legislation. Alabama State Board of Health ex rel. Baxley v. Chambers County, 335 So.2d 653 (Ala.1976).

The language of Act No. 684 restricts membership in the Mobile County Personnel Board to persons who have not held public office for three years next preceding their election to the board. It does not say “elective” public office. In fact, the 1965 amendment to the Act originally passed in 1939, which created the Personnel Board, further limited the membership. The 1939 Act prohibited only persons who had held a Mobile County or City public office during the preceding three years from serving. It seems clear that by striking the geographical reference, the legislation added a further restriction to membership by prohibiting persons who had held public office in places other than the County and City of Mobile.

Had the legislature intended to restrict membership on the Mobile County Personnel Board by disqualifying only those persons who had held or been a candidate for elective public office, they could have so provided. In fact, the same legislature which first adopted the Mobile Act also adopted the Act creating the State Merit System. The State Act, No. 58, General Acts of Alabama 1939, approved March 2, 1939, page 68, has the following restrictions on membership on the State Personnel Board:

“Section 5. Each member shall be a person over twenty-one years of age, of recognized character and ability, shall have been a bona fide resident and a qualified voter of this State for not less than five years, and shall not, when appointed, nor for the three years then last past before the date of his appointment, have held elective public or party office, nor have been a candidate for such office. . . .” (Emphasis Added)

This act, having been passed by the same legislature which passed the Mobile Act, suggests that the legislature was mindful of the distinction between elective public office and nonelective public office and determined that all public officers, whether elected or otherwise, should be disqualified from serving on the Mobile Personnel Board for three years next preceding their appointment to that board.

In the 1939 Act and in each reenactment of that act up until the 1976 amendment, there was also included a provision which permitted the appointing authority to refuse to consider any person who actively sought a position on the board itself. This discretionary authority was made mandatory by the 1976 amendment so that the act as presently written requires the appointing authority to refuse to consider the appointment of any person who actively seeks a position on the board.

McCullough argues that to construe Act No. 684 to prohibit persons who have held public office within three years of their appointment, or who have been candidates therefor, violates the equal protection clause of the First and Fourteenth Amendments to the Constitution of the United States. We cannot agree. The legislature is free to specify qualifications for holding public office so long as the classification or qualifications imposed are reasonable and have some substantial relation to the object of the legislation and does not constitute an arbitrary treatment of some persons. Comer v. City of Mobile, 337 So.2d 742 (Ala. 1976). It is equally true that:

. . the right to hold an office under authority of the state, unlike the right of a citizen to engage in a gainful occupation, is not considered, as a general rule, a privilege or immunity belonging to a citizen of the United States, nor an inherent or natural right existing in the absence of constitutional provision or legislative enactment. It is rather considered as a political privilege or civil right under the control of the state, which it may regulate or restrict, so long as the right of suffrage is not denied to any person on account of race, color, or previous condition of servitude. [Citations Omitted]” Davis v. Teague, 220 Ala. 309, 312, 313, 125 So. 51, 54 (1929).

The legislature is authorized to place qualifications on the right to hold an office under authority of the state, so long as the limitations do not offend the Constitution of the State or of the United States, and so long as such limitations are not unreasonable nor arbitrary. We cannot agree that it is unreasonable to require that members of the Mobile County Personnel Board be persons who have not held public office for three years before their appointment. The legislature obviously wanted persons on the Personnel Board whose political activities had remained dormant for three years next preceding their selection. This is in the legislative prerogative.

The State Merit System Act, supra, at page 83, contained a provision that “No employee in the classified service shall be a candidate for nomination or election to any public office.” In holding that this limitation was constitutionally permissible, this court said:

“The one controlling, dominating thought and purpose of the Act was to secure fit, capable and efficient service from those in the state’s employment, and if, to the legislative mind, candidacy for office would militate against the service, or render the employee or official less active and efficient, or less independent, in the discharge of his duties to the state, there could be no objection to the inclusion of such prohibition against candidacy for office. . . .” Heck v. Hall, 238 Ala. 274, 282, 190 So. 280, 286 (1939).

The same is true here. If, to the legislative mind, having held a public office, or having been a candidate therefor, would militate against the independence of a member of the Personnel Board in the discharge of his duties, the legislature has the right to disqualify such persons for a reasonable period of time. It has not undertaken to disqualify such persons except to require that three years elapse from the time they served in a public office, or were candidates for such offices, before becoming members of the Personnel Board. This is not an unreasonable limitation.

McCullough argues that if the legislation is construed to mean that he cannot serve on the Personnel Board because he has held a public office within three years of his appointment, it follows that a member of the Mobile County Personnel Board cannot be appointed to successive terms, because such members also hold public office. That question is not before us in this case and we, therefore, express no opinion on this issue.

The judgment appealed from is affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, FAULKNER, JONES and BEATTY, JJ., concur.

MADDOX, ALMON and EMBRY, JJ., dissent.

MADDOX, Justice

(dissenting).

Admittedly, the words “public officer” are not easily defined [Harrington v. State ex rel. Van Hayes, 200 Ala. 480, 481, 76 So. 422 (1917)], but I believe that we should construe those words in this statute to apply only to persons who hold elective public office or are candidates for elective office, for at least two reasons: (1) I believe those are the persons the legislature intended to make ineligible to serve on the Personnel Board and, (2) the interpretation placed on the statute by the majority, in my opinion, would clearly make the statute unconstitutional, because, as the majority suggests, if the words “public office” include both elective and appointive public offices, then it follows that a member of the Mobile County Personnel Board could not be appointed to a successive term, because a member of the Mobile County Personnel Board would be the holder of a “public office.” I cannot believe the legislature intended such a result.

The one controlling, dominating thought and purpose of the Act creating the Civil Service System for Mobile County was to secure fit, capable and efficient service from those employed thereunder. Cf. Heck v. Hall, 238 Ala. 274, 190 So. 280 (1939). To interpret the Act to prohibit any appointive public office, to serve on the Personnel Board, I believe, does not carry out the legislative intent. I think that the legislature intended to disqualify only elective public officials. The use of the words “nor been a candidate for [public office]” indicates that only elective public officers were classified. In the context here, I think “candidate for [public office]” only applies to persons who run for office.

If the legislature did, in fact, mean to disqualify persons such as McCullough, as the majority holds, then I think the legislature acted unconstitutionally. To disqualify every person who, within the past three years, has held either elective or appointive public office — city, county, state or national — or who has been a candidate for such office is an unreasonable classification. Cf. Rogers v. The Common Council of The City of Buffalo, 123 N.Y. 173, 25 N.E. 274 (1890) (where a classification was upheld, but where the court inferred that to disqualify a person to hold a public office, the classification must be reasonable). There is no reason to disqualify the myriad of people who must have held an appointive city, county or national “public office,” or been a “candidate” for such. The legislature did not intend to disqualify all these people from holding public office as a member of the Personnel Board. Consequently, I dissent.

ALMON and EMBRY, JJ., concur.