author: BOWLING, Justice,

text:
    Manuel SULLIVAN v. STATE of Mississippi.
    No. 50785.
    Supreme Court of Mississippi.
    Nov. 15, 1978.
    Fielding L. Wright, Jr., James H. Heidelberg, Pascagoula, for appellant.

      A. F. Summer, Atty. Gen. by Calvin Coolidge Williams, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant was indicted, tried and convicted in the Circuit Court of Jackson County for the crime of selling a controlled substance [three capsules of heroin] to one Charles Spillers for the sum of $75. He assigns two alleged errors, namely:

1. The trial court erred in not requiring the attendance of an essential out of state witness.

2. The trial court’s verdict was against the overwhelming weight of the evidence.

On February 8, 1977, during the January term of the Circuit Court of Jackson County, appellant, through his attorney, filed a motion to require the court to make available witness “John Clayton, employee of the Mississippi Bureau of Narcotics.” The case was set for trial on February 14, 1977. It was not tried at that time and no order appears in the record in regard to the motion.

Two terms of court passed and the case was again set for trial on October 12, 1977. On the morning of the trial, prior to its beginning, appellant’s attorney presented a motion to the court to allow him to withdraw from the case because of non-cooperation of appellant. He further alleged in the motion that he had been informed at 1:30 P.M. on October 11, 1977, by the district attorney’s office that an essential witness, John Clayton, an employee of the Mississippi Bureau of Narcotics, would not be available as a witness, which had previously been agreed upon by counsel for defendant and the district attorney’s office; and that the presence of this witness for direct and cross-examination in any trial of the defendant would be absolutely necessary for his defense. The motion requested a continuance.

The district attorney orally dictated an answer to the motion into the record. He did not deny the agreement alleged by the attorney for appellant, but, in effect, admitted such agreement. He further stated that “[W]e can’t get this witness any longer. He has left the state. We don’t know where he is. We can’t find him or we haven’t been able to serve him a subpoena, and I don’t know if we will ever be able to find him.”

Immediately thereafter voir dire examination of the jury was had and the trial began. The first and only witness as to the occurrence alleged in the indictment was Charles Spillers, the person alleged to have purchased the controlled substance. Mr. Spillers, soon after commencing his testimony, stated that the witness John Clayton was confined to a Federal institution in Texas under a conviction of check forgery.

Spillers further testified that he was an undercover agent for the Mississippi Bureau of Narcotics. In detailing the occurrence leading to appellant’s arrest, he testified that John Clayton was a paid informant for the Bureau, and that early on the morning in question he called Spillers and arranged to go to appellant’s home to purchase the controlled substance. This was done with both Spillers and Clayton entering appellant’s home. According to Spillers, appellant would only pass the substance to Clayton after the latter was given the sum of $75 by Spillers; appellant and Clayton went to another room where the substance was passed to Clayton in exchange for the money. Spillers testified that he could see the transaction through an open doorway.

Appellant’s defense was an alibi. A girl friend testified that she was with him in New Orleans, Louisiana, at the time in question. Appellant’s wife testified that he was not at home on the night and morning in question.

The threshold question is whether or not the lower court should have granted a continuance upon admission that the state had agreed to have witness John Clayton present and failed to do so.

The record does not reveal any effort by appellant’s attorney to locate witness John Clayton and have him available at the trial. We state without hesitation that had it not been for the admitted agreement, appellant’s contention of error because of the witness not being present would be invalid.

The record does not show any effort to locate the witness and a subpoena for his presence was not issued. After an investigation had been made and revealed that the witness was confined to a Federal institution in Texas, there were at least three ways appellant’s attorney could have secured the attendance of the witness, towit:

1. The witness’ attendance could have been secured by authority of 28 U.S.C.A., section 2241(c)(5), which gives Federal courts authority to issue writs of habeas corpus ad testificandum.

2. The United States Supreme Court has in effect ordered the United States Bureau of Prisons to permit Federal prisoners to testify in state courts in criminal proceedings pursuant to writs of habeas corpus issued by state courts. See Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968).

3. The witness could have been subpoenaed under the Uniform Witness Act as set out in Mississippi Code Annotated section 99-9-27.

As noted above, none of these procedures were done by appellant’s attorney, and in addition to this, the record does not show that anything else was done or any investigation made. The record in this regard is incomplete. In order to insure justice, however, we have to look at what we do have in the record. First, we have the motion that the witness be produced, which motion was filed on February 8, 1977. From the record it is evident that at sometime between that date and October 11, 1977, the day before the trial, appellant’s attorney and the district attorney’s office had some type of agreement regarding the production of the witness at the trial on October 12. As stated above, the agreement was alleged and not denied. It was stated by the district attorney immediately prior to trial that the location of the witness was completely unknown. Immediately thereafter, the first and only witness testified as to the missing witness’ location. We do not mean to imply any bad faith on the part of the district attorney’s office. It is entirely possible that preparation for trial had been made without the presence of witness Spil-lers and he had not been requested to give information regarding the witness prior to taking the stand.

Whether or not the missing witness was. material is accentuated by the alibi defense and the further fact that the witness Clayton was the main participating person in the alleged purchase of the controlled substance from appellant. He admittedly was paid for this service and according to the testimony was the actual purchaser. It is understandable why appellant’s attorney wished his presence at the trial.

We conclude that the case should be reversed solely because of the admitted failure of the state to have the witness present pursuant to the agreement hereinbefore discussed. Had it not been for this agreement, the record would be entirely insufficient as to the necessary investigation and action on the part of appellant’s attorney to secure the attendance of the witness. For clarification and not criticism, the attorney of record in the appeal did not appear for the appellant in the lower court. Further, the trial attorney surely had the right to rely on any agreement between him and the district attorney’s office. For the reason stated, the case is reversed and remanded for a new trial.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

license: Public Domain

text:
    Hubert L. TURNAGE v. CITIZENS BANK, COLUMBIA, Mississippi.
    No. 50714.
    Supreme Court of Mississippi.
    Nov. 15, 1978.
    Dale & Upton, Garland D. Upton, Columbia, for appellant.
    Richard D. Fox worth, Columbia, for ap-pellee.
   Appeal from Circuit Court, Marion County; R. I. Prichard, III, Judge.

Before SMITH, P. J., WALKER and BROOM, JJ., and RUFUS H. BROOME, Commissioner.

AFFIRMED.


text:
    Mrs. Helen Kathleen ARMSTRONG v. Robert Allen ARMSTRONG.
    No. 50756.
    Supreme Court of Mississippi.
    Nov. 15, 1978.
    Crawley & Ford, Michael H. Steele, Kosciusko, for appellant.
    Thornton, Guyton, Dorrill & Pettit, George L. Dorrill, Kosciusko, for appellee.
   Appeal from Chancery Court, Attala County; John C. Love, Jr., Chancellor.

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

AFFIRMED.


text:
    SOUTHERN SCOTTISH INNS, INC., et al. v. Harry HAAS et al.
    No. 50725.
    Supreme Court of Mississippi.
    Nov. 15, 1978.
    James W. Newman, III, Lawrence L. Little, Jackson, for appellants.
    M. Charles May, Jackson, for appellees.
   Appeal from Chancery Court, Hinds County; James Arden Barnett, Chancellor.

Before PATTERSON, C. J., and SUGG and BOWLING, JJ.

AFFIRMED.


text:
    Mrs. F. R. GREGORY, Sr. a/k/a Mrs. Maggie Gregory v. Mary E. GREGORY a/k/a Mary G. Saucier.
    No. 50719.
    Supreme Court of Mississippi.
    Nov. 15, 1978.
    Swartzfager & Swartzfager, Paul G. Swartzfager, Laurel, Oates & Houston, O. Marvin Oates, Jr., Bay Springs, for appellant.
    Robert H. McFarland, J. E. Ulmer, Jr., Bay Springs, for appellee.
   Appeal from Chancery Court, Jasper County; Osborn Guyton Idom, Chancellor.

Before PATTERSON, C. J., and SUGG and BOWLING, JJ.

REVERSED AND REMANDED.

SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, LEE and COFER, JJ., concur.


author: SUGG, Justice,

text:
    Boutros JARJOURA v. FRED’S ONE AND TWO DOLLAR STORES, INC.
    No. 50954.
    Supreme Court of Mississippi.
    Nov. 22, 1978.
    Ronald W. Lewis, Catherine V. Kilgore, David G. Hill, Oxford, for appellant.
    Mitchell, McNutt, Bush, Lagrone & Sams, Jack R. Reed, Jr., Tupelo, for appellee.
   SUGG, Justice,

for the Court:

MOTION OVERRULED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, LEE and BOWLING, JJ., concur.

COFER, J., took no part.


text:
    Royce FOSTER, Royce Foster, II and Donald G. Harris v. John L. SIMS.
    No. 50763.
    Supreme Court of Mississippi.
    Nov. 22, 1978.
    Daniel, Coker, Horton, Bell & Dukes, Curtis E. Coker, Jackson, George G. Williamson, Mendenhall, for appellants.
    R. M. Sullivan, Petal, Harris Sullivan, Jr., Mendenhall, for appellee.
   Appeal from Circuit Court, Simpson County; George B. Grubbs, Judge.

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

AFFIRMED.


text:
    William Owen LANGLEY v. Virginia LANGLEY.
    No. 50943.
    Supreme Court of Mississippi.
    Nov. 22, 1978.
    James S. Gore, Houston, for appellant.
    Michael D. Jonas, Aberdeen, for appellee.
   Appeal from Chancery Court, Chickasaw County; Lenore L. Prather, Chancellor.

Before PATTERSON, C. J., ROBERTSON, P. J., and LEE, J.

Affirmed.


text:
    James T. WILSON v. STATE of Mississippi.
    No. 50728.
    Supreme Court of Mississippi.
    Nov. 22, 1978.
    William B. Sullivan, Laurel, for appellant.
    A. F. Summer, Atty. Gen. by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

Before SMITH, P. J., WALKER and BROOM, JJ., and RUFUS H. BROOME, Commissioner.

Affirmed.


text:
    DeSOTO, INC. v. PIPER INDUSTRIES, INC.
    No. 50747.
    Supreme Court of Mississippi.
    Nov. 22, 1978.
    Watkins & Eager, James A. Becker, Jr., Michael W. Ulmer, Jackson, for appellant.
    Brunini, Grantham, Grower & Hewes, John R. Hutcherson, Charles P. Adams, Jr., Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; James Arden Barnett, Chancellor.

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

Affirmed.


text:
    Willie Inez SAVELL v. PRESTO MANUFACTURING COMPANY et al.
    No. 50765.
    Supreme Court of Mississippi.
    Nov. 22, 1978.
    Dixon L. Pyles, Jackson, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, Joel W. Howell, III, Jackson, for appellees.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Before ROBERTSON, P. J., and LEE and COFER, JJ.

Affirmed.


author: EMBRY, Justice. BLOODWORTH, Justice TORBERT, Chief Justice

text:
    James R. HARRISON, d/b/a Harrison’s Food Mart v. H. J. BUCKHALT, Individually and as City Clerk for the City of Dothan, et al.
    77-19.
    Supreme Court of Alabama.
    Sept. 15, 1978.
    Rehearing Denied Nov. 17, 1978.
    Edmon L. Rinehart, Montgomery, for appellant.
    Wade H. Baxley, Dothan, for appellees.
   EMBRY, Justice.

The dispositive issue on this appeal is whether Dothan City Ordinance No. 5503 is an invalid, unconstitutional, arbitrary and unreasonable exercise of the police power of the City of Dothan because it purports to forbid the retail sale of whiskey, wine, liquor, malt or brewed beverages within 600 feet from any church building or church grounds, school buildings or school grounds, while containing a grandfather clause which permits those already licensed, and their successors, to make retail sales of such beverages within the prohibited distance and to continue to do so indefinitely. We hold the ordinance arbitrary and unreasonably discriminatory; therefore violative of Sections 1, 6 and 22 of the Constitution of Alabama of 1901.

James Harrison, d/b/a Harrison’s Food Mart, appeals from a judgment denying the writ of mandamus to compel H. J. Buckhalt as Clerk of the City of Dothan to issue the appellant a license to sell beer for off-premises consumption. In his petition, Harrison alleged that even though he had been issued a license by the Alabama Alcoholic Beverage Control Board, Buckhalt and the City refused to issue him a city license because his place of business was less than 600 feet from a church; therefore prohibited by Do-than City Ordinance 5503, which reads:

“No privilege license shall be issued for the retail sales of whiskey, wine, liquor, malt or brewed beverages or other alcoholic beverages where the place or establishment for which such license applied for is less than six hundred (600) feet from any church building or church grounds, school building or school grounds, public park or public playground; but this provision shall not apply to renewals of such license heretofore issued or to such license now in existence, nor shall this provision apply to the granting of such new licenses to qualified applicants at locations which were previously licensed; within the last twelve (12) months.”

Harrison also complained that the City had on previous occasions, although prohibited by a prior ordinance, issued off-premises beer licenses to businesses located less than 600 feet distance from a church. He says that this makes enforcement of the present ordinance discriminatory and unconstitutional as to him. Since we hold the present ordinance unconstitutional, because of the structure of its “grandfather clause,” there is no need to address this second issue.

The grandfather clause reads:

“ * * * but this provision shall not apply to renewals of such license heretofore issued or to such license now in existence, nor shall this provision apply to the granting of such new licenses to qualified applicants at locations which were previously licensed; within the last twelve (12) months.”

It is apparent that not only would a licensee be permitted to renew in perpetuity, also any purchaser of the business of such licensee, if qualified to be licensed, would be licensed if application were made within the twelve month period during which his predecessor held an existing license.

This court has held it to be a reasonable and valid exercise of the police power of a city to prohibit the sale of beer within a reasonable distance from a school or church. USA Oil Corp. v. City of Lipscomb, 293 Ala. 103, 300 So.2d 362 (1974) (within three city blocks of church and school); Capps v. Bozeman, 272 Ala. 249, 130 So.2d 376 (1961) (within 1000 feet of church). See also Norwood v. Capps, 278 Ala. 218, 177 So.2d 324 (1965) (within 500 feet from any other place where beer is sold). However, exercise of this police power is not without limitation; e. g. the manner of enforcement of an ordinance of this type can be a denial of equal protection of the laws guaranteed by Sections 1, 6 and 22 of the Alabama Constitution. See City of Hueytown v. Jiffy Chek Company of Alabama, 342 So.2d 761 (Ala.1977).

In this case the question is whether, because of the grandfather clause, there is an arbitrary and unconstitutional classification made which is not reasonably related to the intended purpose of the ordinance to be achieved through proper exercise of the police powers and within the scope of such powers. We answer yes and hold the ordinance invalid. See generally, Piggly-Wiggly of Jacksonville v. Jacksonville, 336 So.2d 1078 (Ala.1976) (number of employees of store held to be unreasonable basis for classification in light of purpose of Sunday Blue Law).

The crux of Harrison’s contention regarding the constitutional invalidity of the grandfather clause is that it discriminates in favor of persons who have already obtained an off-premises beer license; therefore it discriminates against him and entitles him to a license. In brief, he asserts:

“ * * * The constitutional flaw in Ordinance 5503 is that its very purpose of keeping beer, wine and spirits away from schools and churches cannot be achieved; yet it discriminates invidiously against those who would sell beer while continuing to permit sales within 600 feet by those already doing so.” (emphasis added)

He is correct in contending that the grandfather clause thwarts the purpose of the ordinance. The purpose, among others, of the ordinance is to prohibit the retail sale of alcoholic beverages within 600 feet of a church. But that purpose is frustrated by the grandfather clause that would never provide for termination of the sale of those prohibited beverages within the stated distance.

Regulation or prohibition of the sale of alcoholic beverages is unlike regulation of the conduct of other businesses or of the pursuit of a trade, vocation, or profession. Grandfather clauses regarding the latter have a different purpose. See e. g. § 34-24-232 and § 34-28A-24, Code 1975 (regarding the practice of podiatry and that of speech pathology and audiology, respectively). In the latter situation the purpose of the statutes is to ensure that licensees are competent. Grandfather clauses in those statutes do not frustrate their purpose because those exempt from licensing requirements are presumed to be competent because of experience in the licensed activity. Watson v. Maryland, 218 U.S. 173, 30 S.Ct. 644, 54 L.Ed. 987 (1910). Assuming, ar-guendo, this presumption is not correct, the purpose of the statute is only temporarily thwarted because natural attrition will eventually terminate licensing of those benefiting from a grandfather clause.

In this case, however, the grandfather clause prevents the fulfillment of the purpose of the ordinance. In State ex rel. First Presbyterian Church of Miami v. Fuller, 136 Fla. 788, 187 So. 148 (1939), and Town of Mandeville v. Band, 111 La. 806, 35 So. 915 (1904), such provisions were held to be arbitrary, discriminatory and, therefore, invalid. In those cases in which similar grandfather clauses have been upheld, the statute or ordinance, provides for the ultimate elimination of the sale of alcoholic beverages in the prohibited area. See e. g. Eckert v. Jacobs, 142 S.W.2d 374, 378 (Tex.Civ.App.1940); Commonwealth v. Petri, 122 Ky. 20, 90 S.W. 987, 989 (1906).

What is the effect of the invalidity of the grandfather clause? Of necessity, the entire ordinance must fall. This is owing to the general rule that when an exception or exemption is held invalid, and there is no severability provision in the enactment (of the legislature or city governing body), then such enactment is void in its entirety. Were it otherwise the scope of the enactment would be widened beyond the intent of the enacting authority. City of Mobile v. Salter, 287 Ala. 660, 255 So.2d 5 (1971); Barron-Leggett Electric, Inc. v. Department of Revenue, 336 So.2d 1124 (Ala.Civ.App.1976), cert. den. 336 So.2d 1128 (Ala.1976); Sutherland Statutory Construction, § 44.13, Vol. 2, pp. 359-360, 4th Ed. (1973). On the other hand, if the ordinance here under consideration contained a severability clause it would permit severance of the invalid grandfather clause and allow the valid prohibitory remainder to stand. See Comer v. City of Mobile, 337 So.2d 742 (Ala.1976).

For the reasons stated, we hold Ordinance No. 5503 of the City of Dothan discriminatory, arbitrary, unreasonable, and therefore a denial of equal protection of the laws guaranteed by Sections 1, 6 and 22 of the Constitution of Alabama of 1901.

The action of the trial court in dismissing the petition of Harrison for writ of mandamus to compel issuance of a license to him under the provisions of the ordinance, as applied to others, being in error, the judgment below is due to be, and is hereby, reversed.

REVERSED AND REMANDED.

FAULKNER, JONES, ALMON, SHORES and BEATTY, JJ., concur.

BLOODWORTH and MADDOX, JJ., concur specially.

TORBERT, C. J., dissents.

BLOODWORTH, Justice

(concurring specially).

I concur in the result in this case to reverse and remand this cause to the trial court.

The posture in which this case was tried below is as follows. There was a motion to dismiss, which by operation of Rule 12(b), was converted into a motion for summary judgment. After the taking of testimony in support and contra the motion for summary judgment, the trial court granted the motion to dismiss, i. e., the summary judgment. I conclude the summary judgment was premature, that is, inappropriate, because a motion for summary judgment is to be granted only where there is no genuine issue as to a material fact and the movant is entitled to judgment as a matter of law. Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975). The movant (Buckhalt, the City Clerk) had the burden to show that Harrison could not recover “under any discernible circumstances.” Loveless v. Graddick, supra.

Harrison claimed in the court below the unconstitutional application of the “grandfather clause.” The trial judge would not permit evidence to be adduced on the issue of licenses issued prior to January 25, 1977, the date of the enactment of the ordinance in question (which contained the “grandfather clause”), although there was a prior ordinance which both parties admitted was essentially the same. A copy of the prior ordinance was never admitted into evidence, but the evidence sought to be adduced by Harrison as to a pattern of discrimination against subsequent applicants by the granting of licenses to prior applicants was foreclosed by the trial judge’s order. Thus, it seems to me that the mov-ant here has not shown that the other party could not recover “under any discernible circumstances.” Loveless v. Graddick, supra.

I can agree with that part of Mr. Justice Embry’s opinion when he states that it is a reasonable and valid exercise of the police power of a city to prohibit the sale of beer within a reasonable distance from a school or church, even though an applicant has been granted a license by the ABC Board. This is the rule of our cases. Lawrence v. Gayle, 294 Ala. 91, 312 So.2d 385 (1975); USA Oil Corp. v. City of Lipscomb, 293 Ala. 103, 300 So.2d 362 (1974); Paulson’s Steerhead Restaurant, Inc. v. Morgan, 273 Ala. 235, 139 So.2d 330 (1962). Our rule is that a “municipality may prescribe conditions as a prerequisite to the issuance of a beer license so long as such conditions bear a reasonable relationship to the health, safety, and public welfare of the community; but it may not, under the guise of' its licensing authority, prescribe such conditions as to constitute a prohibition of the sale of beer.” Lawrence v. Gayle, supra at 98, 312 So.2d at 391.

I cannot agree with Mr. Justice Embry’s conclusion that the “grandfather clause” in this case is discriminatory and therefore unconstitutional. “Grandfather clauses” have generally been held not to be discriminatory. See Annot., 4 A.L.R.2d 667, 670 (1949), Annot., 136 A.L.R. 207, 213 (1942). “Grandfather clauses” in such ordinances as the one in question serve to protect property and investments in a manner analogous to nonconforming use exceptions in zoning ordinances. See Annot., 9 A.L.R.2d 877 (1950).

Nor, can I agree with Mr. Justice Em-bry’s opinion that because the ordinance does not expressly provide for the eventual elimination of existing licenses for premises within 600 feet of a church or school, that it, in effect, allows renewals “in perpetuity.” On this issue I agree with Mr. Chief Justice Torbert’s view.

MADDOX, J., concurs.

TORBERT, Chief Justice

(dissenting):

I respectfully dissent.

I would affirm the judgment below denying the writ of mandamus to compel H. J. Buckhalt as Clerk of the City of Dothan to issue the appellant a license to sell beer for off-premises consumption. Further, I do not agree that this ordinance containing a “grandfather clause” is “arbitrary and unreasonably discriminatory; therefore, viola-tive of Sections i, 6, and 22 of the Constitution of Alabama of 1901.”

This court has held it to be a reasonable and valid exercise of the police power of a city to prohibit the sale of beer within a reasonable distance from a school or church. USA Oil Corp. v. City of Lipscomb, 293 Ala. 103, 300 So.2d 362 (1974). However, the question here centers around the “grandfather clause” which reads:

but this provision shall not apply to renewals of such license heretofore issued or to such license now in existence, nor shall this provision apply to the granting of such new licenses to. qualified applicants at locations which were previously licensed; within the last twelve (12) months.

No one has a vested constitutional right to retail intoxicating beverages, and lawmakers have almost unlimited power to prohibit or regulate such an occupation. Powell v. State, 69 Ala. 10 (1881), states that such a license to sell liquor is not a contract within the protection of the constitution. However, it is within the discretion of the legislative body to determine whether or not to include such an exempting clause as provided for here.

“To declare what the law is, or has been, is a judicial power; to declare what the law shall be, is legislative.” Lindsay v. United States Savings & Loan Association, 120 Ala. 156, 168, 24 So. 171, 174 (1898). Further, “[m]uch must be left to legislative discretion, with which there cannot be judicial interference.” Id. at 176, 24 So. at 178.

In Lane v. McFadyen, 259 Ala. 205, 66 So.2d 83 (1953) and Crabtree v. City of Birmingham, 292 Ala. 684, 299 So.2d 282 (1974), the court held that the mere fact of inequality is not enough to invalidate a law, and the legislative body must be allowed a wide field of choice in determining what shall come within the class of permitted activities and what shall be excluded.

In the constitutional determination of a legislative act, the court does not look at the propriety of such an act. The court is to determine whether it is expressly prohibited by the constitution itself or violates the constitutional rights of equal protection and due process.

This court’s stated principles by which it is guided in determining the constitutionality of a legislative act are recited in Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So.2d 810 (1944). Chief Justice Gardner summarized this State’s law:

Uniformly, the courts recognize that this power [to strike down a legislative act as violative of the constitution] is a delicate one, and to be used with great caution. It should be borne in mind, also, that legislative power is not derived either from the state or federal constitutions. These instruments are only limitations upon the power. Apart from limitations imposed by these fundamental charters of government, the power of the legislature has no bounds and is as plenary as that of the British Parliament. It follows that, in passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government. All these principles are embraced in the simple statement that it is the recognized duty of the court to sustain the act unless it is clear beyond reasonable doubt that it is violative of the fundamental law. (Citation omitted).
Another principle which is recognized with practical unanimity, and leading to the same end, is that the courts do not hold statutes invalid because they think there are elements therein which are vio-lative of natural justice or in conflict with the court’s notions of natural, social, or political rights of the citizen, not guaranteed by the constitution itself. Nor even if the courts think the act is harsh or in some degree unfair, and presents chances for abuse, or is of doubtful propriety. All of these questions of propriety, wisdom, necessity, utility, and expediency are held exclusively for the legislative bodies, and are matters with which the courts have no concern. This principle is embraced within the simple statement that the only question for the court to decide is one of power, not of expediency or wisdom.

Id. at 9-10, 18 So.2d at 814-15.

There are cases which have upheld similar ordinances which retroactively cover business establishments in a designated area. See, e. g., Manor v. Bainbridge, 136 Ga. 777, 71 S.E. 1101 (1911). However, there are cases where the continuance of existing nonconforming uses does not render a liquor zoning ordinance invalid. Rapp v. Venable, 15 N.M. 509, 110 P. 834 (1910), dealt with a similar statute prohibiting the establishment of saloons within certain distances of United States sanatoriums, military reservations, and educational institutions. The act, in question, also exempted those establishments already in existence. The Supreme Court of New Mexico held that this act was not unconstitutional as violating the equal protection clause of the Federal Constitution, or as creating a monopoly in favor of existing beverage businesses. “It was clearly within the legislative power to so provide and the recognition of the validity of existing licenses furnishes a reasonable and just basis for the proviso in the act, and renders untenable the contention of appellant that the act is void in that it creates a monopoly.” Id. at 837.

In Eckert v. Jacobs, 142 S.W.2d 374 (Tex.Civ.App.1940), the Texas court ruled on a similar ordinance which went further and contained an express provision against future expansion of the pre-existing business, no renewals after discontinuance, and limited restoration of the business if it was destroyed. The Texas court states:

The authorizations by ordinance of the continuation of such non-conforming uses, already legally established in such areas when the ordinance takes effect, has been uniformly recognized; and such provisions have repeatedly been held not to render them invalid; and not to amount to unreasonable discrimination against others desiring to engage in additional nonconforming uses. Such ordinances operate prospectively and not retroactively. Undoubtedly these provisions are designed to avoid running afoul of the constitutional provisions against taking of property without compensation and guaranteeing'due process of law. In any event, they have been repeatedly sustained. See Lombardo v. City of Dallas, supra [124 Tex. 1] 73 S.W.2d [475] at page 478; Austin v. Older, 1938, 283 Mich. 667, 278 N.W. 727; Zahn v. Los Angeles Board of Public Works, 195 Cal. 497, 234 P. 388; City of Miami v. Green, 131 Fla. 864, 180 So. 45; Landay v. MacWilliams, 173 Md. 460, 196 A. 293, 114 A.L.R. 984, and annotations thereunder.

Id. at 378.

The ordinance adopted by the City of Dothan is a matter of the determination of the municipality in the execution of its police powers, and not a violation of any substantial right of the individual. Therefore, for the reasons above, I would not hold such an ordinance containing a “grandfather clause” unconstitutional, but would affirm the decision of the lower court in favor of the appellee here.


author: PER CURIAM.

text:
    Terry WILSON v. Faye HALL et al.
    77-581.
    Supreme Court of Alabama.
    Jan. 12, 1979.
    John E. Medaris, of Bell & Johnson, Pel-ham, for appellants.
    Robert D. Norman, of Norman, Fitzpatrick & Wood, Birmingham, for appellee.
   PER CURIAM.

Upon the Court’s own motion, the appeal in this cause is dismissed on the authority of Thames v. Gunter-Dunn, 365 So.2d 1216 (Ala.1979).

DISMISSED.

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


author: ALMON, Justice.

text:
    Mary Mildred SIMPSON v. FIRST ALABAMA BANK OF MONTGOMERY, N. A., et al.
    77-238.
    Supreme Court of Alabama.
    Sept. 22, 1978.
    Rehearing Denied Nov. 22, 1978.

      Frank W. Riggs, Montgomery, for appellant.
    Charles N. Parnell, III, of Ingalls & Parnell, Montgomery, for appellees.
   ALMON, Justice.

Appellees, creditors of the estate of Robert H. Simpson, filed an action in Montgomery County Circuit Court, seeking an order requiring that Mary Mildred Simpson, Executrix of Robert H. Simpson’s estate, convey certain real property and apply the proceeds thereof to the estate’s debts. Subsequently, Mary Mildred Simpson individually petitioned the court for leave to intervene, asserting a personal claim to the property made the basis of the appellees’ action, and seeking reformation of the deed which originally conveyed this property to Robert H. Simpson. Mrs. Simpson’s petition was granted, and a hearing was held to determine whether the original deed to Robert H. Simpson as sole grantee should be reformed to include Mary Mildred Simpson as a joint tenant with right of survivorship. From an order denying Mrs. Simpson’s petition for reformation, she appealed. We affirm.

On March 10, 1975, Robert H. Simpson, husband of the Appellant, Mary M. Simpson, died in Montgomery, Alabama. His will was probated March 17, 1975 and letters testamentary were issued to Appellant Mary M. Simpson on April 25, 1975. On November 19, 1975, Mr. Simpson’s estate was removed from the Montgomery County Probate Court to the Montgomery Circuit Court. Shortly thereafter, Appellees, First Alabama Bank of Montgomery, N. A., Union Bank and Trust Company, Crescent Credit Corporation and the Bank of Pratt-ville filed a complaint praying, inter alia, for an order requiring Appellant Mary Simpson, as Executrix of Mr. Simpson’s estate, to sell her home to satisfy claims of creditors of Mr. Simpson. Later, an additional complaint was filed against Appellant on behalf of the Alabama National Bank of Montgomery.

Along with her answer to these complaints, Mrs. Simpson individually filed a petition to intervene, on the grounds that the property in question was to have been conveyed to her and to her husband as joint tenants with rights of survivorship; so that upon the death of her husband, the title to this property vested in her absolutely. She sought an order reforming the deed to reflect the survivorship provision, and “declaring that Mary Mildred Simpson, individually is the sole owner of the real property.” Her petition to intervene was granted, a hearing was set, and on August 18, 1976, her claim for reformation was denied. The trial court found that Mrs. Simpson was present at the time the deed was executed and delivered to her husband, and that she and her husband had private legal representation at the closing of the transaction. The court also noted that more than ten years had elapsed from the time the deed was executed, delivered and thereafter recorded.

Alabama has expressly provided for reformation or revision of a written document when circumstances warrant. § 35-4-153, Code 1975, provides:

“When, through fraud, or a mutual mistake of the parties, or a mistake of one party which the other at the time knew or suspected, a deed, mortgage or other conveyance does not truly express the intention of the parties, it may be revised by a court on the application of the party aggrieved so as to express that intention, insofar as this can be done without prejudice to rights acquired by third persons in good faith and for value.”

This section has been recognized as the codification of the right of reformation recognized at common law. Fidelity Serv. Ins. Co. v. A. B. Legg & Sons Burial Ins. Co., 274 Ala. 94, 145 So.2d 811 (1962), City of Oneonta v. Sawyer, 244 Ala. 25, 12 So.2d 82 (1943). The appellant, in order to avail herself of this statutory remedy, must, however, sustain a burden of proof establishing her case by clear, exact, convincing and satisfactory evidence. Original Church of God, Inc. v. Perkins, 292 Ala. 283, 293 So.2d 292 (1974).

On May 20, 1965, Robert H. Simpson and the appellant signed a contract agreeing to purchase the property in question. The Simpsons were to buy this residential property from Forestdale Homes, Inc., who was represented in the transaction by Robert B. Fain, of Bob Fain Realty Company, Inc., and the contract of May 20, 1965 specified that the conveyance was “to be made to Robert H. Simpson and Mary S. Simpson.” Robert B. Fain testified that between May 20, 1965, the date of the execution of the contract, and August 2, 1965, the closing date, he had occasion to speak with Robert H. Simpson regarding this transaction. Mr. Fain’s testimony indicated that Mr. Simpson specifically requested that the deed be prepared “in his name only.” According to Mr. Fain, Mr. Simpson stated “that he was taking care of Mary with his will.” Thereafter, Mr. Fain instructed the attorney preparing the deed to prepare it in the name of Robert H. Simpson as sole grantee. •

The Simpsons, along with their attorney, attended the closing on August 2, 1965. Mrs. Simpson testified that although she signed several papers, she did not read them. She stated that no one ever discussed the ownership of the home with her and “we just thought we were buying the house together.”

There are no allegations of fraud arising out of this transaction, thus to fall within § 35-4-153, Code 1975, the appellant must establish that there was “a mutual mistake of the parties, or a mistake of one party which the other at the time knew or suspected,” such that the “conveyance does not truly express the intention of the parties, . . ."

It appears that although there may have been a misinterpretation of the contract, the conveyance was not misrepresented, nor was Mrs. Simpson misinformed as to the contents of the deed.

There was evidence that funds attributable to Mrs. Simpson had been used to acquire property previously acquired by the Simpsons and that the Simpsons had owned other property as joint tenants with the right of survivorship. However, when this evidence is weighed against the other evidence, especially the uncontroverted testimony of Mr. Fain and the fact that Mrs. Simpson attended the closing represented by counsel, a case for reformation was not established by clear, convincing evidence. Perkins, supra.

The trial court, having heard the testimony ore ten us, is due to be affirmed on appeal unless competent evidence shows that it is plainly and palpably wrong. Adams v. Adams, 346 So.2d 1146 (Ala.1977). We are not convinced from the evidence that the trial court was plainly or palpably wrong.

In view of the disposition of the reformation issue, we do not address the question of whether any proposed revision of the instrument is barred by the ten year statute of limitations embodied in § 6-2-33, Code 1975.

The judgment of the trial court is affirmed.

AFFIRMED.

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


author: SHORES, Justice. TORBERT, Chief Justice MADDOX, Justice MADDOX, Justice

text:
    SHELL OIL COMPANY, a corp. v. Margaret GUYTON et al.
    77-250.
    Supreme Court of Alabama.
    Sept. 22, 1978.
    Rehearing Denied Nov. 10, 1978.

      Romaine S. Scott, Jr., and John H. Morrow, Birmingham, for appellant.
    Samuel Tenenbaum, Birmingham, for ap-pellees.
   SHORES, Justice.

This appeal involves only the question of the proper allocation of a consent condemnation award of $400,000 between the owners of the condemned property and the lessee thereof, Shell Oil Company. The property is a 40,000 square foot lot on the northwest corner of 8th Avenue North and 22nd Street in the City of Birmingham on which was situated a Shell Oil service station and a rental parking lot. After holding a hearing on the allocation petition, the trial court allocated the $400,000, $366,522 to the lessors and $33,478 to the lessee. The lessee appealed. We affirm.

At the time of taking, Shell’s lease (including four renewal options of 5 years each) had 27 years and 8 months remaining. The court’s final decree is, in part, as follows:

“The court has considered the testimony of all the witnesses and the authorities submitted by the parties.
“It seems clear that in a condemnation case such as this, the lessee is entitled to the difference between the fair and reasonable market value of the unexpired portion of the lease and the amount of rent which would have been due to be paid by the lessee for the unexpired portion of the lease. City of Dothan vs Wilkes, 269 Ala. 444, 114 So.2d 237 [1959].
“The court is of the opinion that the renewal options contained in the lease should be included and considered by the court in determining the lessee’s interest in the condemnation award. These renewal options, if exercised, would extend the term of the lease for a period of about twenty-seven years from the date of the condemnation taking.
“The court is further of the opinion that the lessee is not entitled to a portion of the condemnation award as compensation for improvements over and above the difference between the value of the unexpired portion of the lease and the amount of rent due to be paid by lessee for the unexpired portion of the lease, as referred to above. This, because the lessee contends that the renewal options should be included in a determination of lessee’s interest, with which position the court agrees, and in view of the fact that over a period of twenty-seven years the value of the improvements would be substantially, if not completely, depreciated.
“The court is of the opinion that the fair and reasonable annual rental value of this property, under the evidence, cannot be fixed simply by capitalizing at the rate of 10 per cent the amount of the condemnation award. The court finds and determines from all the evidence that the fair and reasonable annual rental value of this property was Twenty Thousand Dollars ($20,000.00) at the time of the condemnation taking. Under the terms of the lease the rent is Fifteen Thousand Dollars ($15,000.00) a year for the first period, Eighteen Thousand Dollars ($18,-000.00) for the first and second option periods and Nineteen Thousand Two Hundred Dollars ($19,200.00) for the third and fourth option periods.
“To attempt to foresee the course of inflation over a twenty-seven year period or to predict changes in business and economic conditions during such span of years is impossible. It is, of course, impossible to know with certainty that the four options to renew this lease would have been exercised had the property not been taken by condemnation.
“The court has given due consideration to the rental value, the rents due to be paid under the lease, and the options to renew and determines and finds and orders, adjudges, and decrees that the defendants Margaret Guyton and husband, Clayton Guyton; Lenora Caldwell and husband, Joseph Caldwell; Miss Winifred Gilb, an individual; Miss Winifred Gilb, Executrix of the Estate of Clara O’Neill, are entitled to Three Hundred Sixty-Six Thousand Five Hundred Twenty-Two Dollars ($366,522.00) of the condemnation award, and that the defendant, Shell Oil Company, is entitled to Thirty-Three Thousand Four Hundred Seventy-Eight Dollars ($33,478.00) of the condemnation award.

The trial court correctly followed the rule in cases such as this as set out in City of Dothan v. Wilkes, infra, cited in its judgment and reiterated as follows in Gamble v. State, 289 Ala. 131, 136, 137, 266 So.2d 286, 291 (1972):

“The only proper measure of the amount of compensation to which a lessee is entitled for the condemnation and taking of the unexpired portion of his leasehold interest in real estate owned by another is the difference between the fair and reasonable market value of the unexpired portion of the lease and the amount of rent which would have been due to be paid by the lessee for the unexpired portion of the lease, all to be considered as of the time of the taking of the leasehold interest. City of Dothan v. Wilkes, 269 Ala. 444, 114 So.2d 237 [1959] (Charge No. 1), [4, 5] and authorities there cited.”

Shell contends that, in fixing the amount to be allocated to the lessee, the trial court must accept a percentage of the total value of the property and, for that purpose, is bound by the fair market value of the property as fixed in the condemnation proceedings.

Shell’s argument is that, because the experts agreed that a fair rent for commercial property is 10% of the value per year, the value of its lease for the unexpired term was $40,000 per year (i. e., 10% of $400,000 as fixed by the condemnation award), rather than $20,000 as found by the trial court.

It is true, as Shell points out, that the trial court, in arriving at the fair market value of the unexpired portion of the lease, accepted Shell’s argument that this amount could be determined by calculating 10% of the total value of the property, but rejected its contention that the fair market value of the property for this purpose was the amount of its condemnation award. The trial court arrived at the $20,000 per annum figure by taking 10% of $200,000, not $400,-000. While, at first glance, it appears that the trial court was not justified in disregarding the amount of the condemnation award in calculating the value of the unexpired lease term, this method produced a figure of $20,000 per year.

We agree with Shell that where all of the parties agree to the condemnation award as they did here, they are bound to accept that figure as the value of the property in determining the value of the unexpired lease term. They are not, however, bound to determine the fair value of the lessee’s interest by a fixed percentage of this amount. In this case, the landlords objected to this method of determining the value of the leasehold interest and offered evidence of its value notwithstanding the value of the property. Their expert testified that, in his opinion, the property would not rent for more than $20,000 per year regardless of the value of the property itself. The method urged by Shell for determining the value of the unexpired lease term is not the only method for establishing this figure.

The trial court’s finding is, therefore, supported by evidence. Where it is conflicting, as the evidence is here, we are bound by the trial court’s conclusions. The result reached by the trial court is consistent with the rule announced in City of Dothan v. Wilkes, supra, and we are not persuaded that the rule should be changed. It is followed by most jurisdictions and, although it does not always produce perfect equity, this would be true of any formula adopted for allocating condemnation awards among various interests. See Nichols, Eminent Domain, Vol. 4, § 12.42[3] (3d ed. 1977); Annot., 3 A.L.R.2d 286 (1949); Polasky, The Condemnation of Leasehold Interests, 48 Va.L.Rev. 477 (1962).

Shell also argues that the trial court erred to reversal because the allocation to Shell was less than the value of the improvements placed upon the land by the lessee. By its lease, Shell had the right to remove certain improvements, viz:

“13. REMOVAL - ' SURRENDER-FORFEITURE. Any automobile service station erected on the premises, together with all pumps, machinery, compressors and other similar equipment which is devoted exclusively to the sale and service of petroleum products, tires and automobile accessories, constructed, installed or placed on the premises by Shell, or acquired by Shell at any time during the continuance of this or any previous lease or any tenancy thereafter; shall be and remain Shell’s property and Shell shall have the right to remove any or all of the same from the premises at any time during, and within sixty (60) days after any termination of, this lease or any tenancy thereafter. All other buildings, structures and improvements placed upon the leased premises by Shell during the continuance of this lease, of a kind and character normally deemed in law to become a part of the realty and without limitation, including any parking deck structures or building for the parking or storage of automobiles, shall be and remain the property of Lessor, and upon the expiration or termination of this lease shall be delivered to Lessor, natural wear and tear and damage from fire or other casualty excepted. Any holdover by Shell After any termination of this Lease shall create no more than a month-to-month tenancy at the rent and on all other applicable conditions herein provided. If forfeiture of this Lease is permitted by law for Shell’s default, Lessor shall not be entitled to declare any such forfeiture unless Lessor has given Shell notice of such default and Shell has failed to remedy same within twenty (20) days after receipt of such notice.”

Shell concedes that a lessee is not entitled to compensation for diminution in value of personal property used by him on the leased premises. It contends, however, that a lessee is entitled to recover for the value of improvements taken by the condemning authority if the lessee has the right to remove the improvements. Nichols, Eminent Domain, Vol. 4, § 13.121[1], states the rule as follows:

“. . . The tenant is generally not entitled to recover the value of the buildings or fixtures as a separate item in addition to the value of his leasehold interest. Moreover, the tenant is not entitled to the diminution in value of such fixtures as are removed by him [citing City of Dothan v. Wilkes], nor the cost of their removal. The measure of damages is the increased market value of the leasehold interest by reason of the buildings and fixtures. . . . Hence, the structural value of the buildings and fixtures may be a fair test of what they add to the market value of the leasehold, if they are well adapted to the best use of the property. But in such case, the lease must be of such duration that it will outlast the fixtures, or must contain a covenant of perpetual renewal at the option of the tenant.”

Even if the lessee has the right to remove improvements, the general rule seems to be that he is not entitled to the value of the improvements as a separate item of damages, but they may be considered in determining the value of the leasehold interest. 27 Am.Jur.2d, Eminent Domain, § 292.

The trial court appears to have so treated the improvements. It agreed that the lessee was entitled to have the option periods considered in determining the value of its interest and found that at the end of the leasehold estate, including the option periods, the improvements would have no value. This is a fact issue; therefore, we are not free to substitute our judgment for that of the trial court.

The judgment appealed from is affirmed.

AFFIRMED.

BLOODWORTH, FAULKNER, JONES, ALMON, EMBRY and BEATTY, JJ., concur.

TORBERT, C. J., and MADDOX, J., dissent.

TORBERT, Chief Justice

(dissenting):

I respectfully dissent. I believe that the trial court erred in disregarding the value of the property as established in the condemnation proceeding.

The function of a condemnation proceeding is to determine the total compensation required to be paid for the property taken. City of Dothan v. Wilkes, 269 Ala. 444, 114 So.2d 237 (1959). The compensation is to be equivalent to the full value of the property which is commonly expressed as its “fair market value.” 4 Nichols, The Law of Eminent Domain § 12.1 (3d ed. 1977). Where there are different interests in the property, all parties are, of course, entitled to compensation; however, the proper procedure is to ascertain the total compensation, or, value of the property, as if the property belonged to one person and then allocate this value among the respective parties in interest. City of Dothan v. Wilkes, supra. Therefore, once the value of the property has been established, all that remains is to apportion the award to the interested parties.

In the present case, the value of the property was fixed in a consent condemnation award where all parties in interest were represented. After entering the order for the condemnation award, the trial court expressly retained jurisdiction of the case for the sole purpose of allocating the award between the various parties in interest.

The majority says that the parties are not “bound to determine the fair value of the lessee’s interest by a fixed percentage of this amount,” that is, the fair market value of the property. However, experts for both the lessors and lessee testified that commercial property should yield 10 per cent of its market value as its annual rental or economic rent. Lessors’ expert, Mr. Haynes, testified as follows:

Q. All right. So, if I had a $400,000.00 piece of property and I went to you and I said, “Mr. Haynes, I want you to handle this for me and I want you to get as much as you can in handling it,” you would do a decent job for me and try to get me ten or eleven percent of that $400,000.00 on an annual basis?
A. That’s correct, or otherwise I wouldn’t take the listing.
Q. So, that if you assume that this property — I mean, forget about your predisposition about the value, but if you assumed that this property is worth $400,000.00, let’s just assume that it is fixed and X’d and stoned and is worth $400,000.00 and everybody agrees, everybody in the market place, everybody in the whole wide world agrees that it is worth $400,000.00, you would expect that property if you were handling it to be able to fix a lease on it from $40,000.00 to $44,000.00 a year, wouldn’t you?
A. If it had a $400,000.00 value.
Q. If it had a $400,000.00 value?
A. That’s right.

Mr. McGehee, another expert for lessors, testified similarly:

Q. What do you — if you are going to list some property for me, what kind of yield would you expect on a rental basis?
A. I would say today more people are trying to — more investors are trying to get a safer — safer tenant, safer income stream, and maybe coming down from — there was a period three or four years ago that people talked in the 12 to 15 percent return range, and I would say now they are — the last few years they have been more in the 9, 10 and 11 percent return range, if their — if they have a good sound lease and substantial tenant.
Q. So, you would expect commercial property back in ’75 — -in 76 in the Birmingham area to yield approximately, in terms of annual rent, 10 percent of its value?
A. I would say that would be a good figure to hand your hat on.

The trial court, in its final decree, determined that the economic rent or the fair rental value was $20,000. By so computing this fair rental value or economic rent, it necessarily follows that the fair market value of the property was $200,000, not $400,-000 as fixed by the condemnation award.

Lessors maintained that the fair market value of the property condemned was in fact worth only $200,000, not $400,000.

Accordingly, the trial court disregarded the amount of the condemnation award as to the fair market value of the property condemned. I would hold, that absent fraud or collusion, the award fixed in a condemnation proceeding is determinative as to the fair market value of the property taken and should be utilized to apportion the' award between the various parties in interest, i. e., between the lessor and the lessee.

It is my opinion that the majority erred when it stated:

It is true, as Shell points out, that the trial court, in arriving at the fair market value of the unexpired portion of the lease, accepted Shell’s argument that this amount could be determined by calculating 10% of the total value of the property, but rejected its contention that the fair market value of the property for this purpose was the amount of its condemnation award. The trial court arrived at the $20,000 per annum figure by taking 10% of $200,000, not $400,000. . . .
We agree with Shell that where all of the parties agree to the condemnation award as they did here, they are bound to accept that figure as the value of the property in determining the value of the unexpired lease term. They are not, however, bound to determine the fair value of the lessee’s interest by a fixed percentage of this amount.

But it was the lessors’ own witnesses who testified that the fair rate of return was about 10 per cent of the value of property at this time in Birmingham.

Accordingly, I would reverse and remand this case to the trial court for an appropriate decree apportioning the award between the lessors and the lessee consistent with this opinion.

MADDOX, Justice

(dissenting).

I respectfully dissent. I believe that the amount apportioned to the lessee, Shell Oil Company, was inadequate, and that it does not fairly represent the difference between the fair and reasonable market value of the unexpired portion of the lease and the amount of rent which Shell would have had to pay during the unexpired portion of the lease, as of the time of the taking.

It is undisputed that the lessee was entitled to remove the building within sixty days after the expiration of the lease. Therefore, the lessee should be entitled to be compensated for the value of this building taken by the condemning authority. U. S. v. Seagren, 60 App.D.C. 183, 50 F.2d 333 (1931).

“If, as against the lessor, the lessee has the right, prior to or upon the expiration of his term, to remove fixtures, structures, or other improvements installed or erected by him upon the property taken, he is, generally speaking, entitled to be compensated for such improvements.” 27 Am.Jur.2d Eminent Domain § 292, p. 100 (1966). Accord., Annot. 3 ALR 2d 286 (1949); 4 Nichols, Eminent Domain, § 13.121[1] (1977).

By taking the building, the condemning authority has abridged the right of the lessee Shell to remove the building at any time; or upon the expiration of the lease, to sell it to the fee owner or new lessee. Thus, it is the lessee, not the lessor, who has been damaged and who should be awarded the value of the building. The record shows that the building was valued at $64,000 and this amount was included in the $400,000 consent award. Obviously, the lessee is entitled to at least the value of the building which was included in the condemnation award.

In this case, the trial court placed the fair market value of the lessee’s interest at $20,-000 (including the value of the building). The majority’s attempt to uphold the inadequacy of the award to the lessee is bottomed on the theory that the trial judge came to a correct conclusion by using the wrong method. It is obvious from the trial court’s decree that he allowed the lessees nothing for their building (valued at $64,-000) because “over a period of twenty-seven years, the value of the improvements would be substantially, if not completely, depreciated). He obviously determines that the fair market value of the lease is $20,000. This value for the leasehold, in my opinion, is grossly inadequate. The condemnation award was $400,000. Although this was a consent award, there is $400,000 which the public pays and which stands in the stead of the pi’operty. It is this amount which is to be apportioned, not some theoretical amount. The trial court permitted experts to testify at the apportionment hearing that the fair market value of the property was between $180,000 and $240,000. This was completely improper, in my opinion. The public is paying $400,000 for the property. For the purposes of apportionment between lessor and lessee, the actual award, whether by a jury verdict or by consent, is the amount to be apportioned, not some theoretical amount. As was said in City of Dothan v. Wilkes, 269 Ala. 444, 114 So.2d 237 (1959):

“In State ex rel. McCaskill v. Hall, 325 Mo. 165, 28 S.W.2d 80, 81, 69 A.L.R. 1256, the Missouri court cited as a general rule the following, which is taken from Lewis on Eminent Domain:
“ ‘ “When there are different interests or estates in the property, the proper course is to ascertain the entire compensation as though the property belonged to one person and then apportion this sum among the different parties according to their respective rights. The value of property can not be enhanced by any distribution of the title or estate among different persons or by any contract arrangements among the owners of different interests. Whatever advantage is secured to one interest must be taken from another, and the sum of all the parts cannot exceed the whole.” 2 Lewis on Eminent Domain (3d Ed.) § 716, p. 1253.’
“The same rule is laid down in 4 Nichols, The Law of Eminent Domain, 3d Ed., § 12.36[1], as follows:
“ ‘It was formerly looked upon as one of the most firmly established principles of law of eminent domain, and it is still the law in the usual case, that when a tract of land is taken by eminent domain, as the land itself is taken by a paramount title rather than the separate estates of different persons having interests in the land, the compensation awarded is for the land itself, and not for the sum of the different interests therein. The duty of the public to make payment for the property which it has taken is not, it- is said, affected by the nature of the title or by the diversity of interests in the property. The public pays what the land is worth, and lets the amount so paid be divided among the various claimants, according to the nature of their respective estates. The rule was expressed in the following language:
“ ‘ “No contracts between the owners of different interests in the land can affect the right of the government to take the land for the public use, or oblige it to pay by way of compensation more than the entire value of the land as a whole.” ’ ” (Emphasis added.)

Can the lessor take the value paid to him by the public and apportion at a different value? I think not. The $400,000 award is the value of all the interests in the land, and the apportionment among the intérests should be made on that value, certainly in the absence of fraud or collusion.

The lessee Shell claims that the economic rent should be 10% times the condemnation award. I do not agree with that premise, because that would mean that the lessee would have been entitled to an economic rent of $40,000 per year, and the lessee would get an excessive windfall. Nevertheless, I would say that the economic rent, should never be less than the legal rate of interest times the condemnation award, which would have been $24,000 (6% X $400,000). As I said, the award stands in the stead of the property.

I cite another example that the award to the lessee here was inadequate. In awarding damages, it is proper to consider the highest and best use to which the property could be put. Sayers v. Mobile, 276 Ala. 589, 165 So.2d 371 (1964). Expert testimony established that the highest and best use of this property would be the rental of parking spaces. The experts testified that between 160 and 189 cars could be parked on this area. With the going rate of $15.00 per month, the rental of this property for parking would be worth between $28,800 and $34,020.

I would reverse and remand with instructions to the trial court to make a new determination on value.

I am clear to the conclusion that the lessee was entitled to at least that part of the condemnation award which represented the value of the building, not because the building added to the value of the leasehold, but because the building belonged to the lessee, and its value entered into the value of that which was taken.

ON DENIAL OF REHEARING

MADDOX, Justice

(dissenting).

I would grant rehearing to prevent a gross miscarriage of justice.

The property owners state in their brief in opposition to the application for rehearing, in part, as follows:

“The minority opinion stressed the fact that appraisers on both sides stated that an investor in real estate ought to receive a return of ten per cent (10%) on his investment. Both of the real estate appraisers for the Appellee stated, however, that regardless of the amount of the award, in their judgment the County overpaid for the property. Nevertheless, it is common knowledge that a parcel of property, particularly if it is vacant, may be worth a million dollars and at the same time have a nominal rental value because of the lack of improvements. In any event, the Lessee is not entitled to the same measure of damages as the fee owner. The Lessee owns a commodity, namely, a leasehold. The valuation of a leasehold is measured by the reasonable market value of the rent that it produces irrespective of the value of the fee.
“ ‘The term “rental value”, as applied to realty, is but another form of saying the value of the use, and means simply the value of the use of the land’. White Roofing Company v. Wheeler, [39 Ala.App. 662] 106 So.2d 658 (1957).

If his leasehold has not increased in value he is not entitled to anything. He cannot recover for personal property, permanent improvements, nor for loss of business. White Roofing Company v. Wheeler, supra.

“The ten percent (10%) factor used by the witnesses on both sides and also by the Court was merely an interest factor to commute to its present value the total amount of the increase in the rental value over the contract rental for the entire term of the lease including the option periods.”

* * * * * *

“Under the terms of the lease Shell was not entitled to be reimbursed out of the award for the improvements. Paragraph 13 of the lease provided as follows:

“ ‘Any automobile service station erected on the premises, together with all pumps, machinery, . . shall be and remain Shell’s property and Shell shall have the right to remove any or all of the same from the premises at any time during, and within sixty (60) days after any termination of, this lease or any tenancy thereafter.
“ ‘All other buildings, structures and improvements placed upon the leased premises by Shell during the continuance of this lease, of a kind and character normally deemed in law to become a part of the realty . . . shall be and remain the property of Lessor, and upon the expiration or termination of this lease shall be delivered to Lessor, natural wear and tear and damage from fire or other casualty excepted.’

“The removal of the building would have no practical value'to Shell because the expense of removing the building from the leased premises and storing the remnants would be prohibitive and would more than offset any value attributed to the debris. Furthermore, under the law, in view of the lease provision, the building would be deemed personal property and is not recoverable as a permanent fixture. We quote from 36A C.J.S., § 15, FIXTURES, Page 631:

‘Effect as rendering article personalty. The cases are ordinarily to the effect that an article which is annexed by the tenant, subject to a stipulation granting him the right of removal, retains its chattel character, as long as the right of removal continues, as between the parties, although it may lose its chattel character, if so closely annexed as to become an integral part of the land.’

“We cite the following headnote from Powers v. Harris, 68 Ala. 409: ‘A house, fence or any other erection placed upon the land of another with his permission and with the intention that it should be held as property of the builder is personal property and not a fixture.’ For the difference between a chattel and a fixture, see Southern Cotton Oil Company v. Lowery, 163 So. 629, 231 Ala. 119 (1935); also Groves v. Segars, 261 So.2d 389, 288 Ala. 376 (1972).

“Furthermore,

“ ‘The authorities in support of the holding in Wilkes are the same we would cite here and will not be repeated. The trial court erred in failing to sustain objections to the questions relating to personal property in the store building.
“ ‘. -. . There is, in this state, no constitutional provision or statute requiring compensation for damages to personal property in a condemnation of realty. Consequential damages to personal property have never been compensable in Alabama. The usual reason stated for the rule is that personalty which is not affixed to realty can be removed by the owner to another place. See Ridings [Ridings v. State, 16 Ala.App. 467, 79 So. 141], supra.' State v. Woodham [288 Ala. 608, 264 So.2d 166], supra.

“If the building becomes an integral part of the land and loses its chattel character it becomes the property of the Lessor, or if by the provision in the lease, is deemed to be personal property and not a fixture, in either event, the Lessee under the law in Alabama, is not entitled to recover damages therefor out of the award.”

I have quoted from the landowners’ brief because I think it appropriate that bench and bar know exactly what this case holds.

The property owners impliedly admit that witnesses on both sides testified that economic rent should be 10% of the fair market value of the property. They say, however, the county paid too much for the property. My question is: Did the county pay twice what the property was worth? The consent award was $400,000 and the court’s finding of fair market value for the purpose of distribution was $200,000.

Also, the landowners say the building was “personal property” and that the leaseholder, even though having a right to remove, was not entitled to a penny out of the condemnation award. Yet, the landowners got $60,000 for the value of this improvement. The landowners contend in brief that Shell’s building was not worth anything because to remove and store it would be prohibitive. Nevertheless, the landowners were awarded $60,000 for this “personalty”, which they contend belongs to Shell.

At the very least, Shell should be paid $60,000 in addition to the amount originally awarded by the trial court under any theory of what would be considered a fair and just apportionment of the award.

TORBERT, C. J., concurs.


author: ALMON, Justice. TORBERT, Chief Justice

text:
    Betty Lou AUSTIN, as Executrix of the Estate of Dallas E. Austin, Deceased v. Evelyn M. AUSTIN.
    SC 2796.
    Supreme Court of Alabama.
    Sept. 29, 1978.
    Rehearing Denied Nov. 22, 1978.
    Ernest H. Hornsby of Lewis & Hornsby, Dothan, for appellant.
    Douglas M. Bates of Adams & Bates, Dothan, for appellee.
   ALMON, Justice.

This appeal is taken by Betty Lou Austin, as Executrix of the estate of Dallas E. Austin, deceased, from a judgment of the Circuit Court allowing a claim against the estate filed by Evelyn M. Austin, a former wife of decedent, for past due and unpaid child support payments in the sum of $12,-829.10. We reverse.

Dallas Austin and Evelyn Austin were divorced in Houston County, Alabama on August 23, 1950. The decree provided that Dallas Austin was to pay to Evelyn Austin the sum of $15.00 each week for the support and maintenance of their three minor daughters during their minority. The payments were not ordered to be paid through the court. Evelyn Austin claims the full amount owing for support and maintenance from August 23, 1950 to November 21, 1970, less certain amounts paid by the decedent in 1961 and 1963, through 1967. Evelyn testified that Dallas made no payments in the other years. This was disputed by Betty Lou Austin.

The evidence shows that Dallas Austin moved to Pennsylvania in 1950. In 1955, Dallás Austin moved back to Alabama, but shortly thereafter, moved to Panama City, Florida. In 1956, he married Betty Lou Austin, the Executrix. In 1966, the decedent moved back to Alabama where he resided until his death in 1976.

Evelyn made only one attempt through the courts to collect child support payments. This was in 1960, when she reached Austin by process in Florida under the reciprocal non-support act. This action produced the payments in the years mentioned above. No further action was taken by Evelyn for approximately sixteen years until the present claim was filed after Austin’s death.

The question is whether past child support payments may be charged against an estate where the amount due is in dispute and has not been reduced to a monied judgment.

Considerable confusion has arisen because of the appellation that past due and unpaid child support and alimony payments are “judgments” or “final judgments.” See Andrews v. City National Bank of Birmingham, 349 So.2d 1 (Ala.1977). It is commonly stated that installment payments decreed in a divorce for alimony or support and maintenance of minor children become final judgments as of the dates due and may be collected as other judgments. See Andrews v. City National Bank of Birmingham, supra; O’Neal v. O’Neal, 284 Ala. 661, 227 So.2d 430 (1969); Morgan v. Morgan, 275 Ala. 461, 156 So.2d 147 (1963); Armstrong v. Green, 260 Ala. 39, 68 So.2d 834 (1953) (On Rehearing). The “finality” of these judgments appears to have arisen from those cases which hold that installments which mature before a petition to modify is filed are immune from change. Wood v. Wood, 275 Ala. 305, 154 So.2d 661 (1963); Scott v. Scott, 265 Ala. 208, 90 So.2d 813 (1956).

Past due and unpaid alimony or child support payments are not “judgments” for all purposes. For example, in Miles v. Gay, 280 Ala. 131, 190 So.2d 686 (1966), it was held that a lien on the husband’s real property for past due and unpaid installment payments of alimony awarded under an Alabama decree could be acquired only by a judicial ascertainment and declaration of the amount past due and filing a proper certificate showing such a judgment.

Appellant makes several claims of error including laches, the statute of limitation, and the further claim that certain testimony of Evelyn Austin, to the effect that Dallas Austin had failed to make child support payments violated the Dead Man’s Statute and was thus inadmissible. There is no necessity to address these issues, as we are of the opinion that the case of Dodd v. Lovett, 282 Ala. 383, 211 So.2d 799 (1968), cited in appellant’s brief, is dispositive of this appeal.

The Dodd case holds that the statute pertaining to the contest of a claim filed against an estate was not intended as a substitute for a civil action which might lead to the rendition of a monied judgment. The opinion states as follows:

“In Nelson, Divorce and Annulment, 2nd Ed., 1961 Revision, Sec. 16.43 p. 481, it is stated in reference to the collection of accrued alimony installments:
‘The usual procedure is to apply to the court which rendered the decree or order to transmute it into a money judgment * * * for amounts due up to the time of the application thus making the liability absolute and providing the basis for suit in another state or county on a fixed and certain obligation.
Actions on alimony and support awards are most commonly brought with respect to' awards under foreign decrees, because it is necessary to reduce them to judgment locally before they can be enforced.’
In Keezer on Marriage and Divorce (Morland) 3rd Ed., Sec. 677, it is stated:
‘As a rule it is considered that no decree of a foreign court can operate directly upon propérty in another jurisdiction and cannot make any direct change of property rights, such as dower or distribution.’
In Miles v. Gay, 280 Ala. 131, 190 So.2d 686, it was held that under Secs. 584 and 585, Tit. 7, Code of Alabama 1940, a lien for periodic installment payments of alimony awarded under an Alabama decree could be acquired only by a judicial ascertainment and declaration of the amount of past due installments and filing a proper certificate showing such a judgment or decree.
The filing of a lawful claim against an estate creates a charge upon the deceased’s general estate. Traweek v. Hagler, 199 Ala. 664, 75 So. 152. The determination of a contest of claim filed against an estate, as provided in Sec. 216, Tit. 61, Code of Alabama 1940, does not lead to a monied judgment, since Sec. 216, supra, was not intended as a substitute for a civil action which might lead to the rendition of a monied judgment. Merchants National Bank of Mobile v. Cotnam, 250 Ala. 316, 34 So.2d 122. By analogy, the doctrine of Miles v. Gay, supra, would deny the enforcement of an Alabama decree providing for periodic payments of alimony until the accrued installments had been transmuted into a monied judgment for an amount certain. No greater effect need be given a decree of a sister state than is given a decree of this state, Johnson v. Johnson, 196 S.C. 474, 13 S.E.2d 593, 134 A.L.R. 318. See also Nelson, Divorce and Annulment, 2nd Ed., Vol. 3, Sec. 33.53. We hold therefore that for a decree for alimony, as to accrued installments to be given effect in this state, it must be reduced to a judgment in this state for a sum certain by appropriate proceedings brought for that purpose.”

The above holding is applicable to this case. The fact that Dodd dealt with a foreign decree is of no consequence because part of the rationale of that case was that no greater effect should be given to the decree of a sister state than to to one of this state. Thus, a divorce of this state comes within the holding of Dodd.

The judgment is therefore reversed and the cause is remanded.

REVERSED AND REMANDED.

BLOODWORTH, FAULKNER and EM-BRY, JJ., concur.

TORBERT, C. J., concurs specially.

TORBERT, Chief Justice

(concurring specially):

Although I disagree with the holding of the majority that a disputed claim for past due child support under a divorce decree cannot be allowed as a claim against an estate unless first reduced to a monied judgment, I concur in the result. There is no reason in law that claims for alimony or child support should be treated any differently than any other claim or debt asserted against an estate by requiring that such payments be first reduced to a judgment.

The majority misplaces its reliance on Miles v. Gay, 280 Ala. 131, 190 So.2d 686 (1966) and Dodd v. Lovett, 282 Ala. 383, 211 So.2d 799 (1968). In Miles, the wife attempted to impose a lien on the real estate of her former husband based on a divorce decree. In Dodd, the question of the assertion of a claim for accrued alimony was based upon a decree of a foreign court.

I concur in the result to reverse and remand this cause for two reasons. First, those child support payments which matured more than twenty years before the claim was filed are conclusively presumed satisfied. § 6-9-190 Code 1975; Armstrong v. Green, 260 Ala. 39, 68 So.2d 834. It appears the trial court allowed in its judgment child support payments which had matured more than twenty years before the claim was filed. In this, the trial court was in error. Second, child support payments should not be awarded to the children after reaching their majority or after marriage. It appears that the trial court allowed such recovery in its award. In this the trial court erred.


text:
    STATE of Alabama ex rel. John Allie JAMES, etc. v. Thomas REED.
    77-355.
    Supreme Court of Alabama.
    Sept. 29, 1978.
    Rehearing Denied Nov. 10, 1978.

      James T. Upchurch, III, Montgomery, for appellant.
    Alberta Murphy and Stanley Jay Murphy, Tuscaloosa, for appellee.
   PER CURIAM.

This is a statutory quo warranto action brought by the State of Alabama on the relation of John Allie James challenging the qualifications of Thomas Reed to hold office as a member of the Alabama House of Representatives. The Circuit Court of Montgomery County granted a motion for summary judgment, holding that the judiciary has no authority to determine the qualifications of a member of the Alabama Legislature. We reverse.

The relator is a resident and registered voter of Alabama House District 67. In the general election of 1974, Thomas Reed was elected as the representative from this district and has served continuously since that time.

On July 22, 1977, Reed was convicted in the Circuit Court of Montgomery County of attempted bribery, a misdemeanor, and fined $500.00. The relator contends that the crime for which Reed was convicted is an infamous crime involving moral turpitude, and that the conviction renders him ineligible to hold office under § 60 of the Alabama Constitution, 1901.

It is Reed’s position that the Alabama Constitution vests the exclusive power to judge the qualifications of legislators in each respective house of the Legislature, and that therefore his eligibility is not a proper subject for judicial review.

As a preliminary matter, we note that if this matter is justiciable, then quo warranto is the appropriate remedy. It is well established that the remedy lies to challenge a person’s right to hold office based on grounds of ineligibility. State ex rel. Moore v. Blake, 225 Ala. 124, 142 So. 418 (1932); State ex rel. Coe v. Harrison, 217 Ala. 80, 114 So. 905 (1927); Stone v. State ex rel. Freeland, 213 Ala. 130, 104 So. 894 (1925). As it was stated by this Court in State ex rel. Moore v. Blake, supra.

“If the incumbent becomes ineligible to hold the office pending his incumbency, and continues to exercise its functions, he is a usurper, and may be ousted by quo warranto proceedings. Such is the definite decision in State ex rel. Coe v. Harrison, 217 Ala. 80, 114 So. 905. See, also State ex rel. Williams v. Owens, 217 Ala. 668, 117 So. 298.” 225 Ala. at 126, 142 So. at 419.

It is undisputed that a conviction for an infamous crime goes to the eligibility of Reed to hold office as a member of the Alabama Legislature. § 60, Constitution of Alabama, 1901.

The propriety of the quo warranto procedure is not the central issue here; rather, the question is whether any judicial remedy is available to challenge Reed’s eligibility. Since Reed is a member of the Legislature, if authority to pass on the question of his eligibility is vested exclusively in the House of Representatives, this issue is a “political question” which is barred from judicial resolution by the doctrine of separation of powers. § 42, § 43, Constitution of Alabama, 1901.

The judiciary has traditionally refrained from deciding political questions. State ex rel. Attorney General v. Porter, 1 Ala. 688 (1840); Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). In Baker v. Carr, supra, the Court stated that a political question incapable of judicial resolution is presented when there is one of the following factors:

“. . . a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” 369 U.S. at 217, 82 S.Ct. at 710

Reed’s main contention is that § 51 and § 53 of the Alabama Constitution constitute a textually demonstrable constitutional commitment of the issue to the Legislature. We disagree.

Section 60 of the Alabama Constitution provides that:

“No person convicted of embezzlement of the public money, bribery, perjury, or other infamous crime, shall be eligible to the legislature, or capable of holding any office of trust or profit in this state.”

We are clear that this section is a specific constitutional limitation on legislative authority, and judicial enforcement of its mandate does not derogate the principle of separation of powers. Speaking of § 60, this Court has stated:

“That section has the force of positive law declaring a fixed policy that persons therein named are ineligible to hold office in Alabama. The peace and dignity of the state as dependent upon the character and morale of her public officials is the thought behind it.
The Legislature has no power, unless elsewhere provided in the Constitution, to make convicted felons of the class named eligible to office. To that extent section 60 is a limitation on legislative power.” State ex rel. Moore v. Blake, supra, 225 Ala., at 126, 142 So. at 419.

Ruling against a similar claim that the suit involved a political question committed to the Legislative branch, this Court in State ex rel. Attorney General v. Porter, supra, sustained the power of the judiciary to entertain a quo warranto suit challenging the constitutional qualifications of a judge to hold office. The facts in Porter involved a challenge to the right of a member of the Legislature to resign a legislative seat and accept a newly-created judgeship. There was a constitutional proscription against any member of the legislature taking any position which was created during his legislative term. The respondent maintained that since the legislature had exclusive power to elect judges, the legislature’s election was conclusive as to the qualifications of anyone they elected. This court did not agree with that proposition. In the course of overruling State ex rel. Attorney General v. Paul, 5 Stew. & P. 40 (Ala.1833), the Court in Porter made the following comments:

“The tendency of this argument is to prove, that each department of the government is supreme, as to the powers and duties confided to it. — That the two houses of the General Assembly, being charged with the duty of electing judges, are impliedly vested with the authority to examine, and definitely determine upon the qualification of those they may elect. Such a conclusion cannot be tolerated. That there may be acts of either one, or all of the branches of the Legislature united, which cannot be drawn in question before the judiciary, will not be denied. Thus either house may elect its own officers, and the choice cannot be questioned; nor can the exercise of a mere political duty by the Legislature, or either of its branches be in any manner controlled. But that the election of a judge by joint vote of the two houses, is of a character so conclusive, as to forbid an examination into the right of the appointee to the office, cannot be admitted.”
* * * * * *
“In the case of the State ex rel. & c. c. Paul, the court seem [sic] to have considered, that the constitution in conferring upon the two houses of the General Assembly, the right to elect the chancellors and judges, impliedly invest [sic] them with entire and exclusive authority, over the subject; and thus negative any interference with their choice. This con-elusion could only have been attained by a misapplication of the maxim expressio unius exclusio est alterius. It is true, that the grant of power to the two houses to elect, is equivalent to an express denial of it to any other branch of government, exeept [sic], so far as the authority to appoint, in the event of a vacancy, is conferred upon the governor. But after an election has been made, according to the forms of the constitution there is no inhibition, either express or implied, upon the judiciary, which will prevent that department from inquiring, whether in the choice made, some feature of that instrument has not been violated, or an office conferred upon one, who was not eligible to its enjoyment. The opposite conclusion, if carried out to its legitimate result, would place the legislative above the judicial department, instead of making both co-workers in their appropriate spheres, in the machinery of government.” 1 Ala. at 697-699

Likewise, under these facts, to construe § 51 and § 53 as vesting in each house of the Legislature exclusive authority on this issue, removing it from judicial cognizance, would deprive § 60 of its proper field of operation.

The legislative power to judge the qualifications of its members and to expel them is not restricted to considerations of criminal misconduct. The legislative power to judge the constitutional qualifications of age, citizenship, and residency (§ 47, Constitution of Alabama, 1901) is exclusive under § 51. Buskey v. Amos, 294 Ala. 1, 310 So.2d 468 (1975). The legislative power under § 53 to expel a member by a two-thirds vote is seemingly unrestricted.

However, the legislative power under these sections does not operate to the exclusion of the positive force of § 60, a specific constitutional limitation upon the ability of any person to hold public office in this State. This section embodies the policy that a person proven not to be of good moral character, through conviction of an infamous crime, may not hold public office.

This court faced a similar question concerning the proper field of operation of § 60 as it applies to public officials who may be removed from office by impeachment, and it has continually rejected the contention that merely because an official may be impeached, § 60 has no application. In State ex rel. Chambers v. Bates, 233 Ala. 251, 171 So. 370 (1936), the Court stated:

“There has been much discussion of the circumstances which will support a contest, an impeachment proceeding, and a quo warranto when the claim relates to some disqualification of the officeholder, or cause for his removal. We will refer to those cases here applicable.”
* * * * * *
“In State ex rel. Moore v. Blake, 225 Ala. 124, 142 So. 418, this court again considered the question. It was a quo warranto proceeding, and sought to oust a county officer because of his conviction in a federal court and sentenced [sic] to the penitentiary. The court referred to section 60 of the Constitution, which makes a person convicted of such a crime incapable of holding any office of trust or profit in this state, and also referred to section 2699, Code, vacating the office upon such a conviction. Stone v. State ex rel. Freeland, 213 Ala. 130, 104 So. 894. He may be impeached and removed from office for no other act or omission except such as is named in section 173, but he may be removed by quo warranto on account of the circumstances named m section 60, supra, which make him incapable of holding such an office, though they occur while he is in office, or for any other cause which renders him incapable of holding the office. State ex rel. Coe v. Harrison, 217 Ala. 80, 114 So. 905.” (Emphasis supplied.) 233 Ala. at 254, 171 So. at 372.

See also, State ex rel. McIntyre v. McEachern, 231 Ala. 609, 166 So. 36.

The power of the Legislature to remove one of its members for criminal misconduct is analogous to the power of impeachment. It is merely cumulative and supplements § 60 when the facts are within the section’s field of operation. The principles of § 60 apply without regard to the office the person may occupy.

We hold that § 51 and § 53 do not demonstrate a constitutional commitment of this issue to the Legislative branch to the exclusion of judicial action to enforce § 60 through quo warranto. The issue is a proper subject of judicial resolution.

Reed’s reliance on language from Buskey v. Amos, supra; Alabama State Bar ex rel. Steiner v, Moore, 282 Ala. 562, 213 So.2d 404 (1968); and In re Opinion of the Justices, 254 Ala. 160, 47 So.2d 586 (1950), is inapposite for the reason that none of these cases involved a criminal conviction which brought into play the constitutional disqualification provision of § 60.

The judgment of the lower court is hereby reversed and the cause is remanded.

REVERSED AND REMANDED.

All the Justices concur, except TOR-BERT, C. J., not sitting.

      . Section 51 provides, in part:
      “Each house shall choose its own officers and shall judge of the election, returns, and qualifications of its members.”
      Section 53 provides;
      “Each house shall have power to determine the rules of its proceedings and to punish its members and other persons, for contempt or disorderly behavior in its presence; to enforce obedience to its processes; to protect its members against violence, or offers of bribes or corrupt solicitation; and with the concurrence of two-thirds of the house, to expel a member, but not a second time for the same offense; and the two houses shall have all the powers necessary for the legislature of a free state.”

      . Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969) held that the power of the United States House of Representatives under Art. I, § 5 to judge the qualifications of its members was limited to consideration of constitutional qualifications. Our decision in the case at bar does not require us to so interpret § 51 of the Alabama Constitution and we reserve judgment on that issue.

      . However, the legislature must afford a member the minimum procedural due process requirements of the federal constitution — McCarley v. Sanders, 309 F.Supp. 8 (M.D.Ala., 1970)—and a member cannot be expelled for reasons which violate the First Amendment. Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966).


author: BEATTY, Justice. MADDOX, Justice

text:
    Henry E. GARDNER et al. v. Malcolm BETHEA et al.
    77-465, 77-466.
    Supreme Court of Alabama.
    Nov. 10, 1978.
    E. Ray Large, Birmingham, for appellants.
   BEATTY, Justice.

Reversed and remanded on the authority of Grantham v. Denke, 359 So.2d 785 (Ala., 1978).

REVERSED AND REMANDED.

BLOODWORTH, FAULKNER, JONES, ALMON, SHORES and EMBRY, JJ., concur.

TORBERT, C. J., and MADDOX, J., concur specially.

MADDOX, Justice

(concurring specially).

I concur only because Grantham v. Denke, 359 So.2d 785 (Ala., 1978) does control. I registered my dissenting views in Grantham v. Denke, at length. I failed to persuade a majority of the Court in that case that it had erred; therefore, Grantham v. Denke is the law of this state, at this time. Unless and until Grantham is revisited, an event not likely to occur within the foreseeable future, I see no justifiable reason to continue to register my dissenting views. I reserve the right, however, to overrule Grantham, if, and when, I can persuade a sufficient number of justices on this Court that Grantham is wrong.

TORBERT, C. J., concurs.


text:
    Ralph COOPER et al. v. Robert Ray NETTLES, etc.
    77-527.
    Supreme Court of Alabama.
    Nov. 10, 1978.
    Wilbur J. Hust, Jr., of Zeanah, Donald & Hust, Tuscaloosa, for appellants.
    G. Stephen Wiggins, of Roberts & Davidson, Tuscaloosa, for appellees.
   PER CURIAM.

After careful consideration, the court concludes that permission to appeal under ARAP 5 was improvidently granted.

APPEAL DISMISSED.

All the Justices concur, except FAULKNER, J., not sitting.