author: BLOODWORTH, Justice. BEATTY, Justice MADDOX, Justice BLOODWORTH, Justice.

text:
    Dr. Leslie S. WRIGHT et al. v. Edward P. TURNER et al. Dr. Leslie S. WRIGHT et al. v. Charles M. HOHENBERG et al. Dr. Leslie S. WRIGHT et al. v. James J. CARTER et al.
    SC 2564-SC 2566.
    Supreme Court of Alabama.
    Sept. 23, 1977.
    As Corrected On Denial of Rehearing Nov. 4, 1977.
    William J. Baxley, Atty. Gen., and William T. Stephens and Winston T. Lett, Asst. Attys. Gen., State of Alabama, for appellants.
    William H. Morrow, Jr. and Truman Hobbs, Montgomery, for appellees.
   BLOODWORTH, Justice.

By these three consolidated appeals, Act No. 130, the State Ethics Act (Acts of Legislature, Regular Session 1975, Yol. 1, page 604) which amended and re-enacted the former Ethics Act (Act No. 1056, Regular Session 1973, Vol. Ill, page 1699) is being challenged again. For the history of these two acts, see Mr. Justice Beatty’s opinion for the Court in Comer v. City of Mobile, 337 So.2d 742 (Ala.1976), in which we disposed of the several constitutional challenges there presented to Act No. 130.

Two principal issues are raised by these appeals. First, are members of the Board of Bar Commissioners of the Alabama State Bar, members of the Judicial Compensation Commission, and members of the Court of the Judiciary “public officials” within the meaning of that term in the State Ethics Act and thus subject to the Act? Second, would application of the Ethics Act to these parties violate the “separation of powers” doctrine of the Alabama Constitution?

We answer the first question in the negative and therefore need not reach the constitutional issue. Moreover, we do not consider the constitutional validity of a statute unless essential to a disposition of the cause. Rainey v. Ford Motor Credit Co., 294 Ala. 139, 313 So.2d 179 (1975); City of Mobile v. Gulf Dev. Co., 277 Ala. 431, 171 So.2d 247 (1965).

These cases commenced on May 19, 1974, when appellees Edward Turner, et al., Charles M. Hohenberg, et al., and James J. Carter, et al., who are members of the Board of Bar Commissioners of the Alabama State Bar Association, the Judicial Compensation Commission, and the Court of Judiciary, respectively, instituted these actions against appellants, members of the Alabama State Ethics Commission and the Attorney General of Alabama, seeking to restrain them from applying and enforcing the provisions of the 1973 Ethics Act to them in their capacity as members of these entities. On May 15, 1974, Circuit Judge Eugene Carter entered a temporary restraining order; on May 21, 1974, he entered a preliminary injunction.

Appellants thereafter filed answers to ap-pellees’ complaints denying the substantive allegations of the complaints and incorporating motions to dismiss them.

By agreement of counsel for all parties, further proceedings were suspended pending final determination of the constitutionality of the 1973 Ethics Act. On November 19, 1974, Judge Carter upheld the constitutionality of the Act.

On August 7, 1975, the Alabama Legislature passed an amended and re-enacted Ethics Act over the Governor’s veto. This 1975 amended version withstood a challenge to its constitutionality by the City of Mobile and certain individuals in Comer v. City of Mobile, supra, although two of its provisions were held to be unconstitutional.

Subsequently, at a pre-trial hearing of these cases, appellees filed an amendment to their complaints advancing the same challenges to the 1975 Ethics Act as they had made to the 1973 version. Appellees further averred that appellants’ attempt to apply the provisions of the 1975 Ethics Act to them violated the “separation of powers” clauses of the Alabama Constitution of 1901, contained in sections 42, 43, and 139 et seq.

On May 4, 1977, Circuit Judge William Thetford, to whom the case had been reassigned upon the retirement of Judge Carter, entered a permanent injunction, enjoining appellants from taking any action to apply any of the provisions against appel-lees or their successors in office solely by reason of their service as members of these entities.

We now proceed to consider whether ap-pellees are “public officials” within the meaning of that term in the Act.

Section 2(k) of the Ethics Act defines “public official” as follows:

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

In interpreting the provisions of a statute, we must ascertain and effectuate the intent of the legislature. Tillman v. Sibbles, 341 So.2d 686 (Ala.1977); State ex rel. City of Birmingham v. City of Tarrant City, 294 Ala. 304, 315 So.2d 583 (1975).

In ascertaining legislative intent, we are entitled to consider conditions which may arise under the provisions of statutes and to examine the results which will flow from giving the language in question a particular meaning over another. League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974).

At the outset, we should say that the express provisions of § 2(k) of the Ethics Act leave this matter in some doubt. Nowhere does the statute explicitly refer to the Board of Bar Commissioners of the Alabama State Bar, the Judicial Compensation Commission, or the Court of Judiciary. Appellants earnestly contend that the following language clearly demonstrates that appellees are covered by the Ethics Act: “This definition (public officials) shall also include members of state boards, commissions, committees, councils and authorities, however selected . . ..” Appellees just as vigorously contend that the above-quoted language is not dispositive of the issue, and insist that the following language demonstrates that they are not covered by the act: “This definition excludes members of all other boards not named including, but not limited to those commissions, committees, councils, boards or authorities, functioning solely for cultural or historical purposes and advisory board members . ..”

Upon close examination, we think it clear that none of the appellees are covered by the Ethics Act, and, therefore, that none need comply with it.

Under the statutory definition, these ap-pellees are not “elected officials.” Nor are they “appointed [officials who] in the conduct of such office . . . [have] administrative and discretionary authority for the receipt or expenditure of public funds,” with, perhaps, the possible exception of the Bar Commissioners.

The plainest case is that of the Judicial Compensation Commission. Although it is a constitutionally mandated body and is required to “recommend to the legislature the salary and expense allowances to be paid from the state treasury for all judges of this state except for municipal and probate judges,” its members are expressly excluded from the definition of “public officials” found in the Ethics Act.

This is equally true for the Court of Judiciary. Its five members’ primary function is to hear complaints filed against judges by the Judicial Inquiry Commission. Since its creation four years ago, it has convened for no more than a few times each year. Its members serve without pay in a position which may be charitably characterized as “thankless.” Plainly, we think, the members of the Court of Judiciary are not “public officials.”

Likewise, it seems clear to us that the members of the Board of Bar Commissioners of the Alabama State Bar Association are not “public officials” either.

It might be argued that because the Bar Commissioners receive and expend public funds through their discretionary budgeting of receipts from lawyers’ licenses, they fall within the second part of the definition. Tit. 46, § 32, Code of Alabama 1940 (Recompiled 1958). But, we think not for the reasons which hereafter appear.

The members of the Board of Bar Commissioners act on matters relating exclusively to their professional association of attorneys. They serve without pay. They are required to meet once each year, although in practice, they usually meet five or six times annually. Their significant duties, with respect to disbarment and reinstatement, are subject to Supreme- Court review. Clearly, they should not be characterized as “public officials” in any common sense or legal definition of the term.

Historic definitions as to the meaning of the term “public officers” are not particularly helpful to us in a resolution of the question as to whether members of the Board of Bar Commissioners are, or are not, “public officials” within the meaning of that term in the Ethics Act. Nevertheless, we proceed to examine those definitions found in our case law.

In State v. Baumhauer, 244 Ala. 1, 7, 12 So.2d 326, 330 (1942), the following appears: “[I]n Harrington v. State, 200 Ala. 480, 76 So. 422, 423, it is pointed out that ‘when we speak of a public officer as a state, county, or municipal officer, we usually mean a person who, by lawful authority, has been invested with a part of the sovereign functions of government.’ ”

In State v. Stone, 240 Ala. 677, 680, 200 So. 756, 758 (1941), we find the following: “It seems to be well settled that one who performs a public function, and his authority is derived directly from the state by legislative enactment, and the law prescribes his duties, powers, and authority, such an one is a public officer of the state.”

In Hard v. State, 228 Ala. 241, 153 So. 725, 726, the above quoted language from State v. Stone appears. The opinion also quotes from United States v. Hartwell, 6 Wall. (73 U.S.) 385, 393 18 L.Ed. 830: “An office is a public station, or employment, conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties.”

Members of the Board of Bar Commissioners do have some functions which derive directly from legislative enactments. See Tit. 46, § 25, Code of Alabama 1940. It is clear, however, from the terms of the Code, that their duties are, for the most part, dependent upon Supreme Court approval.

This dependency was underscored in the opinion authored for the Court by Justice Shores in Board of Commissioners, Alabama State Bar v. State ex rel. Baxley, 295 Ala. 100, 109, 324 So.2d 256, 262 (1975): “Although the Board (of Bar Commissioners) was created by the legislature, it was created as an arm to this court and any action by the Board is subject to review or approval by this court. The legislature has not created an entity which is not subject to control or regulation, the Board is subject to the control of this court.”

Moreover, the members of the Board receive neither emolument nor salary by virtue of their membership on the Board, although they do receive reimbursement for actual expenses.

There are two more reasons we may give for the result we reach in these cases.

The first reason emanates from the long-standing maxim of statutory construction that a reviewing court is bound to presume that the legislature, when amending a statute, was aware of the judicial construction placed upon it and that, absent indications of intent to the contrary, the legislature did not see fit to change such judicial construction in the course of the amendment. Coden Beach Marina, Inc. v. City of Bayou La Batre, 284 Ala. 718, 228 So.2d 468 (1969).

The first Ethics Act, passed in 1973, did not use the term “public official” nor did the definition of that term correspond with any term we find in the 1973 Ethics Act, except for the following. The 1973 Act employed the term “state official” and defined it thusly:

“(k) ‘State Official’ means any elected official of the legislative, judicial, or executive branch of state government, and any person appointed under Alabama law to an office in either branch where, in the conduct of such office, administrative and discretionary powers attend the appointment. Also, this definition shall mean an appointed member of any commission or committee which has administrative or policy-making control of any governmental function, but shall not mean members of commissions or committees functioning solely for advisory or research purposes.”

This definition, which appears to be much broader than the present act, in encompassing even more persons, was nevertheless held not to include appellees by the decision of the Circuit Court of Montgomery County in 1974. When the Ethics Act was revised in 1975, the legislature did not specifically list appellees in the definition of the term “public official.” This being so, we think it clear that the above-cited rule of statutory construction dictates the conclusion we reach.

The other reason for the result we reach is as follows. The avowed purpose of the Ethics Act is to eliminate conflicts of interest between the private interests of an elected official or a government employee and his (her) duties as such. Appellants do not suggest, in brief, a single instance in which appellees might become involved in a conflict of interest by reason of their service on these entities. However, the dissent suggests that conflicts could arise if a bar commissioner or attorney member of the Court of Judiciary solicited or received a gift or favor in return for his vote or if a lawyer member of the Judicial Compensation Commission used his official position to obtain personal financial gain for himself by arranging for his assignment as a guardian ad litem. In the unlikely event that such actions did occur, they would constitute violations of one or more provisions of the Code of Professional Responsibility governing attorneys and would subject them to disbarment.

In sum, the dissent would have it both ways! On the one hand, it says these appel-lees are “public officials,” under the Ethics Act; therefore, they have to comply with the provisions requiring the filing of financial disclosure statements. On the other hand, it says these appellees do not have to comply with the other provisions of the Act “dealing with restrictions and prohibitions on the actions of public officials.”

Public officials are public officials. Either these appellees are, or they are not, public officials. If they are, as the dissent suggests, they are subject to all provisions. If they are not, as we hold, they are subject to none of the Act’s provisions. To hold otherwise would constitute judicial legislation.

Appellants argue that our holding will place appellees above the law and make them immune from compliance with ethical standards. This is patently untrue. Those members of these entities who are attorneys are subject to the Code of Professional Responsibility, with its attendant “Ethical Considerations” and “Disciplinary Rules.” Those members who are judges are bound by the Canons of Judicial Ethics. And, of course, all members are bound to obey the law or suffer the consequences.

AFFIRMED.

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

BEATTY, J., concurs specially.

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

BEATTY, Justice

(concurring specially).

I concur in the majority opinion but for a different reason. In my opinion, the “public officials” covered by the Ethics Law are only those who have “administrative and discretionary authority for the receipt or expenditure of public funds,” and I believe it is implicit in the findings of the lower court that these officials have no such authority. See the definition of “public official” in the Amendatory Act, Act No. 130, and referred to in Comer v. City of Mobile, 337 So.2d 742 (Ala.1976).

TORBERT, Chief Justice (dissenting): Ethics or conflict of interest statutes are of recent vintage. One legislative enactment (1975 Ala. Acts Reg. Sess. No. 130) attempts to deal with (1) persons elected at the state, county, or municipal level of government, (2) persons appointed under state, county or municipal law to an office involving administrative and discretionary authority over public funds, and (3) members of state boards, commissions, committees, councils and authorities, however selected; therefore it necessarily follows that the scope and application of such statute be broad. The difficulty presented by specificity, usually sought in statutory law, is further compounded where, as here, it is necessary to delicately balance the equities between the public’s right to know and to foster the public interest over private gain, and at the same time encourage, recruit and retain those best qualified to render public service. The worthy goal that there be confidence in the integrity of our government is further complicated by the fact that, in our scheme of government in this state, citizens are called upon to render public service on a part-time basis (and sometimes without any compensation). The government must not unduly restrict their opportunity to acquire and retain private economic interests which are available to all citizens.

The legislature, in the exercise of its lawful powers, passed Act No. 130 (codified at Ala. Code tit. 55, §§ 327(8)-327(37) (Interim Supp.1975)) in the 1975 regular session in recognition of the fact that:

“It is essential to the proper operation of democratic government that public officials be independent and impartial; that '■governmental decisions and policy be made in the proper channels of the governmental structure; that public office not be used for private gain other than the remuneration provided by law; and that there be public confidence in the integrity of government.”

Ala. Code tit. 55, § 327(8)(a) (Interim Supp. 1975) (emphasis added). This statement indicates that the legislature intended Act No. 130 to be broad in its coverage. However, the legislature also intended the enforcement of the provisions of Act No. 130 to be balanced with the prevention of undue restrictions on the outside employment of part-time public officials:

“It is the policy and purpose of this chapter to implement these objectives of protecting the integrity of all governmental units of this state and of facilitating the recruitment and retention of qualified personnel by prescribing essential restrictions against conflicts of interest in state government without creating unnecessary barriers to the public service.”

Ala. Code tit. 55, § 327(8)(d) (Interim Supp. 1975). Thus, while I dissent from the majority’s holding that the appellees are not “public officials,” it does not necessarily follow that all of the provisions of Act No. 130 must be applied to the appellees.

The majority is in error in its assertion that the members of the Board of Bar Commissioners, the Court of the Judiciary, and the Judicial Compensation Commission are not “public officials” within the context of Act No. 130. Though the statute does not expressly mention these governmental bodies by name, the construction of “public official” must necessarily be broad. Ala. Code tit. 55, § 327(9)(k) (Interim Supp.1975). It is noted that the statutory definition includes “members of state boards, commissions, committees, councils and authorities, however selected.” Id. The majority holds that, in any case, the members of the Judicial Compensation Commission are “advisory board members,” and thus are expressly excluded from the definition of “public official.” Id. This proposition, though possessing logical appeal at first glance, is also in error. The members of the Judicial Compensation Commission are empowered to make recommendations to the legislature in regard to judicial salaries. Ala. Const, art. 6, § 148(a). Though this appears to be an advisory function, it must be noted that the recommendations of the commission become law unless rejected or altered by the legislature. Id. § 148(d). This potential power of appropriation removes the commission from the category of “advisory board.”

In addition to the Act’s definition of “public official,” it is helpful to consider this court’s interpretation as to public officials generally. Using the identical case authority cited by the majority, it seems abundantly clear that members of the Board of Bar Commissioners of the Alabama State Bar, the Judicial Compensation Compensation, and the Court of the Judiciary are, in fact, public officials under our previous decisions. A public official usually means “a person who, by lawful authority, has been invested with a part of the sovereign functions of government.” Harrington v. State ex rel. Van Hayes, 200 Ala. 480, 481, 76 So. 422, 423 (1917). He is “one who performs a public function, and his authority is derived directly from the state by legislative enactment,” and through such law his duties, powers and authority are prescribed. Hard v. State ex rel. Owen, 228 Ala. 241, 242, 153 So. 725, 726 (1934); accord, State ex rel. Haas v. Stone, 240 Ala. 677, 680, 200 So. 756, 758 (1941).

As to the Board of Bar Commissioners, the administration of laws relating to the examination of applicants for the license to practice law and the administration of rules governing discipline of lawyers are all a part of the sovereign functions of government, and these duties and powers are prescribed by statute. Ala. Code tit. 46, § 25 (1958). To hold that members of the Board of Bar Commissioners are not “public officials” because they have duties which are dependent upon Supreme Court approval is without merit. The fact that a public official is supervised by or subject to regulation or approval of a higher official or body does not lessen the importance of the official public function of that person.

The Court of the Judiciary, as well as the Judicial Compensation Commission, were created under the new Judicial Article to the Alabama Constitution. The members of these governmental bodies exercise significant state powers which are specified in the constitution. The members of the Court of the Judiciary have the power to remove from office, suspend, or censure a state judge. Ala. Const, art. 6, § 157(a). The powers and duties of the members of the Judicial Compensation Commission are also significant as previously discussed.

The members of the Board of Bar Commissioners, the Court of the Judiciary, and the Judicial Compensation Commission occupy offices created by state law, and they exercise specified powers as defined by the Alabama Constitution or by statute. It matters not that they receive no salary by virtue of their office so long as they derive their powers, duties and authority from law and are invested with a part of the sovereign functions of government. They fit within the definition of “public official” in Title 55, section 327(9)(k) of the Alabama Code (Interim Supp.1975).

The majority argues that the legislature, when amending the Ethics Act in 1975, was aware that the Circuit Court of Montgomery County had held that the statutory definition in the 1973 Act did not cover the appellees. Since the legislature did not specifically list the appellees in the 1975 Act, the majority feels that Act No. 130 was not intended to be applied to the appellees under the authority of Coden Beach Marina, Inc. v. City of Bayou La Batre, 284 Ala. 718, 228 So.2d 468 (1969). The majority’s reliance on Coden Beach is misplaced for two reasons. First, the court in Coden Beach was dealing with a previous Supreme Court construction of a particular legislative act— not a circuit court ruling on the viability or coverage of the act. Id. at 723, 228 So.2d at 471 — 72. Second, the circuit court decision cited by the majority merely granted a preliminary injunction to the appellees; there was no adjudication on the merits of their construction of the statute.

Act No. 130 has already been attacked as “vague and overbroad,” but in our recent case of Comer v. City of Mobile, 337 So.2d 742 (Ala.1976), we held:

“After careful consideration of the foundation of the trial court’s decree and our own consideration of the merits of this challenge, we find that the Act itself is not vague or overbroad.”

Id. at 750. Nevertheless, the appellees argue that, since the objective behind Act No. 130 is to eliminate conflicts of interest, the application of the Act to them would be overbroad since no conflict of interest could arise by their service on these governmental bodies. The majority agrees with this assertion. However, it is obvious to me that conflicts could clearly arise. Surely a bar commissioner or a lawyer-member of the Court of the Judiciary should not solicit nor receive “anything of value, including a gift, favor or service or a promise of future employment, based on any understanding that [his] vote . . . [in a proceeding to discipline a lawyer or judge] would be influenced thereby.” Ala. Code tit. 55, § 327(11) (Interim Supp.1975). Surely no lawyer-member of the Judicial Compensation Commission should use his “official position or office to obtain direct personal financial gain for himself” by arranging for his assignment as a guardian ad litem for injured minors seeking court approval of settlements. Id. § 327(10)(a). The fact that such conflicts might actually arise proves that the legislature did not enact an overbroad statute.

On the other hand, I do not believe that an actual or potential conflict of interest could arise to warrant proscribing the ap-pellees from receiving “any money . for advice or assistance on matters concerning the legislature.” Id. § 327(12). I would hold such restrictions to be overbroad in regard to the appellees and in no way reasonably related to the evils sought to be eliminated. The appellees are part-time public officials who serve without compensation. They must rely on outside employment for their living. Thus, the public’s interest in governmental integrity must be balanced with the appellees’ interests in serving the public without having their outside employment overly restricted. Legislation — Conflicts of Interest: A New Approach, 18 U.Fla.L.Rev. 675, 684 (1966). Therefore, I would hold that those provisions in Act No. 130 dealing with restrictions and prohibitions on the actions of public officials should not be applied to the appellees unless it could be shown that such provisions rationally relate to the elimination of actual conflicts of interest. Manning, The Purity Potlatch: An Essay on Conflicts of Interest, American Government, and Moral Escalation, 24 Fed.B.J. 239, 255 (1964).

Í base my construction of Act No. 130 in accordance with the following well-established rule:

“Where the terms of a statute do not indicate with reasonable certainty their intended application to particular cases, though their general intent and application are clear, they should be given such a construction as is conducive to fairness and justice, and in harmony with the general spirit and policy of the statute, rather than one which is offensive thereto, if that construction is reasonably consistent with the language used.”

Age-Herald Pub. Co. v. Huddleston, 207 Ala. 40, 45, 92 So. 193, 197 (1921) (emphasis added); accord, Cole v. Gullatt, 241 Ala. 669, 672, 4 So.2d 412, 415 (1941). “The fact that a statute might be susceptible of misapplication does not necessarily make it unconstitutional,” Stein v. Howlett, 52 Ill.2d 570, 580, 289 N.E.2d 409, 414 (1972), therefore to avoid an unconstitutional application of Act No. 130, I would limit certain provisions of the Act with regard to the appellees. Such limitations “can best be [further refined] when actual cases requiring such interpretation are presented.” Stein v. Howlett, 52 Ill.2d at 581, 289 N.E.2d at 415. The limitations arrived at above clearly follow from an examination of not only the general language of the Act, “but also from the reason and necessity for the act, the evil [conflicts of interest] sought to be remedied, and the object and purpose sought to be obtained.” Rinehart v. Reliance Insurance Co., 273 Ala. 535, 538, 142 So.2d 254, 256 (1962); accord, Cole v. Gullatt, 241 Ala. 669, 672, 4 So.2d 412, 415 (1941).

The appellees, as public officials, come within the ambit of Act No. 130, and the financial disclosure provisions of the Act are rationally related to the legislative goal of eliminating conflicts of interest. It has been stated that:

“The public’s right to know and the government interest in both the prevention of official misconduct and the cultivation of public confidence in the integrity of government outweigh the public servant’s interest in financial privacy so long as the disclosure statute is not over-broad in its reach.”

Staines, A Model Act for Controlling Public Corruption Through Financial Disclosure and Standards of Conduct, 51 Notre Dame Law. 686, 663 (1976). The disclosure requirements in Act No. 130 are not over-broad, Ala. Code tit. 55, § 327(19) (Interim Supp.1975), and they rationally relate to the compelling legislative goal stated in section 327(8)(a). The appellees should be required to file in accordance with Act No. 130, and the restrictive provisions should be tempered or simply not applied to the appellees in accordance with the legislative purpose behind the Act. Ala. Code tit. 55, § 327(8)(d) (Interim Supp.1975).

Purity in government is a splendid ideal, but “one ideal pursued singlemindedly will eventually collide with another equally valid” one. Manning, supra at 256. Aided by established rules of statutory construction viewed in the light of modern circumstances, this court is called upon to resolve the delicate balance between public and private interests in the case at hand.

MADDOX, Justice

(dissenting).

I can neither agree with the majority opinion nor with the Chief Justice’s dissent, except I do agree with one short paragraph in the majority opinion which is directed at the Chief Justice’s dissent, and which reads:

“Public officials are public officials. Either these appellees are, or they are not, public officials. If they are, as the dissent suggests, they are subject to all provisions. If they are not, as we hold, they are subject to none of the Act’s provisions. To hold otherwise would constitute judicial legislation.”

The legislature very carefully defined “public official.” It used specific words such as “this definition shall also include” and “this definition excluded’ and the original Act which is filed with the Department of Archives and History shows that the “public official” definition was amended by both houses of the legislature. I believe that the legislature was well aware of which “public officials” it intended to include and exclude. Whether these particular “public officials” should or should not have been included was a question addressed to legislative choice and the intent of the legislature is plain to me. I believe that this Court has changed the legislative intent by use of the rule of statutory construction, and as a consequence, the Court has necessarily substituted its choice for that of the legislature.

ON REHEARING

BLOODWORTH, Justice.

OPINION CORRECTED. APPLICATION FOR REHEARING OVERRULED.

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

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

      . Our decision in Comer v. City of Mobile, italicized portions of this sentence. ante, declared unconstitutional and struck the


source: Caselaw Access Project

author: HATCHETT, Justice. ADKINS, Justice, ENGLAND, Justice,

license: Public Domain

text:
    George JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 47513.
    Supreme Court of Florida.
    June 9, 1977.
    Rehearing Denied Oct. 17, 1977.

      David A. Demers of the Law Offices of Robert W. Pope, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   HATCHETT, Justice.

Appellant was charged with five violations of Florida’s obscenity statute, Section 847.011, Florida Statutes, in that he knowingly sold or offered for sale certain magazines containing obscene, lewd, lascivious, filthy, indecent, sadistic, or masochistic material. Appellant moved to dismiss the charges on the ground that Section 847.011, Florida Statutes, is unconstitutional. Motion was denied. We have jurisdiction.

It is by now well established that obscenity is not protected by the First and Fourteenth Amendments and is subject to limited regulation under the police power of the states. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). The problem arises in trying to determine what is or is not obscene. In Rhodes v. State, 283 So.2d 351 (Fla.1973), we expressly adopted the Miller test of obscenity, to wit: Obscenity is:

“(a) Patently offensive representations or descriptions of ultimate sex acts, normal or perverted, actual or simulated, (or)
“ ‘(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals’, where such material, taken as a whole, when viewed by the average person applying contemporary community standards, appeals to the prurient interest and lacks serious literary, artistic, political, or scientific value).”

We later determined that the applicable community standard is the local county standard. Davison v. State, 288 So.2d 483 (Fla.1973). This formulation permits maximum protection of materials acceptable in cosmopolitan areas while not forcing more conservative areas to accept public depiction of conduct they find obscene. Section 847.011, Florida Statutes, viewed in light of the judicial definitions above, penalizes no more than that which may be constitutionally proscribed. We therefore reject appellant’s argument that the statute is overly broad.

The state candidly admits that four of the five magazines involved in the charge are not patently offensive under the Miller/Rhodes guidelines. Consequently, we reverse the convictions on Counts II, III, IY, and V.

The fifth magazine, Climax, # 59086-0, Nov. 1974 issue, Yol. 20, No. # 11, taken as a whole, is patently offensive in its depiction of ultimate sexual acts. The Hamilton County jury found that the magazine appeals to the prurient interest and lacks serious literary, artistic, or scientific value. The facts are sufficient to support such a finding.

We also hold that the facts are sufficient to support a finding that appellant “knowingly” sold the obscene publication. The state was not required to prove that appellant knew the magazine was “legally” obscene. It was only necessary to prove that he knew the nature or content of the material. In Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), the Court stated:

It is constitutionally sufficient that the prosecution show that a defendant had knowledge of the contents of the materials he distributed, and that he knew the character and nature of the materials. To require proof of a defendant’s knowledge of the legal status of the materials would permit the defendant to avoid prosecution by simply claiming that he had not brushed up on the law. .

418 U.S. at 123, 94 S.Ct. at 2911. Testimony revealed that appellant leafed through the magazine and pronounced it “filthy.” This was enough.

We reject appellant’s argument that the charging information was legally insufficient. The information tracked the language of the statutes and specifically named the publications involved in the prosecution. This was sufficient to put appellant on notice and prevent double jeopardy. Vannoy v. State, 94 Fla. 1175, 115 So. 510 (1928).

We also reject the argument that the prosecutor improperly elicited testimony indicating that the magazines were within the reach of children. The location of the magazines was relevant to scienter and any possible prejudice resulting from the testimony was cured by appropriate instructions to the jury.

Appellant also challenges certain remarks made by the prosecutor during closing argument to the effect that the attorney for the defense sought to make a mockery of Hamilton County. These comments, though ill advised, were not so prejudicial as to require a mistrial.

We disagree with appellant’s assertion that the trial court erred in denying his motion for change of venue. An application for change of venue is addressed to the sound discretion of the trial court, and the trial court’s decision will ordinarily be upheld unless there is a showing of palpable abuse of discretion. Hawkins v. State, 206 So.2d 5 (Fla.1968).

Appellant’s argument that the law was enforced by religious agents in violation of the Establishment Clause of the United States Constitution and Article I, Section 3 of the Florida Constitution is wholly without merit. The fact that religious leaders of the community encouraged the prosecution and/or appeared as witnesses for the state is irrelevant.

Appellant's contention that Section 847.011, Florida Statutes, is unconstitutional by virtue of the fact that it provides for a penalty of imprisonment for up to one year and a $1,000 fine in violation of the Cruel and Unusual Punishment provisions of the Eighth and Fourteenth Amendments to the United States Constitution is also without merit.

Appellant’s final point involves an attack on the “seizure” of the magazines involved in the prosecution. It is his contention that a prior judicial determination of obscenity was required before the publications could be confiscated. The principle is sound but irrelevant. The magazines in this case were neither seized nor confiscated. They were voluntarily bought and sold in the ordinary course of business.

Accordingly, the judgment is reversed in part and affirmed in part and the cause remanded to the County Court in and for Hamilton County for further proceedings consistent with this opinion.

It is so ordered.

OVERTON, C. J., and BOYD, SUND-BERG and KARL, JJ., concur.

ADKINS and ENGLAND, JJ., dissent with opinions.

ADKINS, Justice,

dissenting in part.

I concur in that portion of the opinion which reverses in part the judgment of the lower court and dissent from that portion of the opinion which affirms in part the judgment of the trial court.

At a meeting of a ministerial association the participants agreed to go to a store for the specific purpose of removing certain written material. Their motives were good, as it was their responsibility to do everything necessary to maintain high moral standards in the community.

The magazine “Climax” was examined. Just as the sculpture “Bound Slave” by Michelangelo, and “David with the Head of Goliath” by Donatello, the magazine contained pictures of men with their genitals completely exposed. Just as Rembrandt’s “Danae,” the magazine contained pictures of a nude female stretched out in a sensuous position. Just as the movie “Carnal Knowledge,” recently declared not to be obscene in Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974), the magazine contained pictures which implied the act of sexual intercourse.

Granted, the magazine lacked serious literary, artistic, or scientific value, but this alone does not bring it within the rule prohibiting certain publications.

The next criteria to be considered is whether the magazine “appeals to the prurient interest.” This criteria is so vague and uncertain that no person could determine whether the magazine is obscene or permissible. A person’s guilt or innocence rests upon the philosophy of the individuals constituting the jury, not the facts in the case.

The time has come when we should assume the responsibility of determining the standards under our State constitution which should be applied in the various communities and still safeguard First Amendment rights under the United States Constitution. First Amendment rights should not vary from county to county, nor should an identical set of facts violate the criminal laws in one county and be permissible in another.

The prosecution was based on Section 847.011, Florida Statutes, prohibiting certain acts in connection with obscene material. During the progress of the trial the witnesses were allowed to testify as to certain matters relating to Section 847.013, Florida Statutes, which penalizes the act of exposing minors to harmful “motion pictures, exhibitions, shows, presentations, or representations.” The testimony relating to the exposure to minors was highly prejudicial and reversible error.

The judgment of conviction should be reversed.

ENGLAND, Justice,

dissenting.

Based on appellant’s second motion to dismiss the information against him which alleged, among several other contentions, the constitutional infirmity of Section 847.-011, the Hamilton County Court ruled:

“This cause came before the Court for hearing on March 20, 1975, upon Defendant’s Second Motion to Dismiss, and the Court having considered the same, together with agreement of Counsel thereon, it is
ORDERED That Defendant’s Second Motion to Dismiss is denied.”

This order obviously did not expressly “construe” a provision of the Florida or United States Constitution. The trial judge simply applied recent precedents which were binding on him. In fact, appellant’s brief to us contains this acknowledgement:

“This Court has rendered a number of decisions upholding the constitutional efficacy of Florida Statute 847.011. Those cases include Rhodes v. State, 283 So.2d 351 (Fla.1973); State v. Papp, 298 So.2d 374 (Fla.1974); Bucolo v. State, 303 So.2d 329 (Fla.1974), reversed (per curiam), 421 U.S. 927, 95 S.Ct. 1651, 44 L.Ed.2d 84 (1975), confirmed 316 So.2d 551 (Fla.1975).”

It is obvious that appellant has no colora-ble basis on which to bring his appeal here. The constitutionality of this statute had been determined, and the only issue that can be reasonably raised at this point is whether the statute, as we have construed it, has been violated. Indeed, that is the real issue raised here under the guise of an attack against the constitutionality of the statute. It should require more to confer jurisdiction here than counsel’s assertion that there exists in the case a constitutional point which has recently been resolved by this Court.

As I have pointed out previously, the judicial article of the Constitution becomes distorted if frivolous or insubstantial constitutional questions can be raised by litigants simply to by-pass the district courts of appeal. ■ We are not powerless to prevent this practice, and I oppose the majority’s willing abdication to counsel of its role in confining the Constitution to its intended purpose. This case should be transferred to the Third Circuit Court in and for Hamilton County.

       Article V, Section 3(b)(1), Florida Constitution.

      . Rojas v. State, 238 So.2d 234 (Fla.1974).

      . Jordan v. State, 334 So.2d 589, 593 (Fla.1976) (dissent).

      . Evans v. Carroll, 104 So.2d 375 (Fla.1958).


author: HATCHETT, Justice.

text:
    WOODGATE DEVELOPMENT CORPORATION, a Florida corporation, R. F. Donaldson, Individually, and Terry C. Nelson, Individually, Petitioners, v. HAMILTON INVESTMENT TRUST, a Massachusetts Business Trust, Respondent.
    No. 50027.
    Supreme Court of Florida.
    June 9, 1977.
    Rehearing Denied Oct. 14, 1977.
    Carl R. Pennington, Jr., and Everett P. Anderson of Pennington, Wilkinson & Sauls, Tallahassee, for petitioners.
    Hugh M. Taylor and W. Robert Olive, Jr., of Bryant, Dickens, Franson & Miller, Tallahassee, for respondent.
    Richard L. Lapidus of Lapidus & Hollander, Miami, for Sailboat Key, Inc., ami-cus curiae.
   HATCHETT, Justice.

By petition for writ of certiorari we have for review an order of the Second Judicial Circuit Court in and for Leon County, initially, and directly passing on the validity of Section 687.11(4), Florida Statutes. We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution. We reverse.

Petitioner Woodgate Development Corporation executed a note to Commonwealth Corporation, secured by a development and construction mortgage. Commonwealth was subsequently placed in federal receivership, and the mortgage was transferred to the respondent, Hamilton Investment Trust. Respondent, as plaintiff, instituted an action for deficiency judgment after a foreclosure sale of the mortgaged property failed to produce sufficient funds to satisfy the mortgage debt. By way of affirmative defense and counterclaim, petitioners pleaded that the interest on the note was usurious. Respondent argued that by virtue of Section 687.11(4), Florida Statutes, all interest limitations on loans to corporate borrowers in excess of $500,000 were effectively removed. Petitioners argued that, so construed, the statute would violate Article III, Section 6 of the Florida Constitution. The Circuit Court adopted the construction urged by respondent and struck the pleadings.

We need not reach the constitutional question raised above, for this matter can be resolved by an historical analysis of the applicable statutes.

Petitioners take the position that Section 687.11(4), Florida Statutes, was intended to remedy an inconsistency between permissible rates payable by an individual as maker, as contrasted to a person secondarily liable on loans in excess of $500,000. We agree.

In 1965, Chapter 687 provided in pertinent part as follows: Section 687.02, Florida Statutes, defined usurious contracts and provided that any contract, other than that of a corporation, for interest at a higher rate than 10 percent per annum was usurious, and any contract involving a corporation for interest at a higher rate than 15 percent per annum was usurious. Section 687.03, Florida Statutes, defined unlawful rates of usury and provided that it was usurious for any person to charge to take for any loan, except from a corporation, a rate of interest greater than 10 percent per annum. It further provided that transactions with a corporation shall be usurious and unlawful if for a rate of interest greater than 15 percent per annum. Section 687.04, Florida Statutes, provided that any person willfully violating the provisions of Section 687.03 should forfeit the entire interest contracted to be charged and should forfeit double the amount of the interest taken or reserved. Section 687.07, Florida Statutes, provided for forfeiture of principal and interest when the interest charged exceeded 25 percent. Section 687.11, Florida Statutes, enacted by Ch. 65-299, provided, in part:

(1) No individual secondarily liable as endorser, guarantor, surety, or otherwise on any corporate obligation shall be required, in any proceeding for collection of interest in the courts of this state, to pay any interest in excess of 10 percent per annum, and any interest claimed therein against such individual in excess of 10 percent per annum shall be forfeited; and no corporation, in any such proceeding in the courts of this state where the interest is proven to exceed 15 percent per annum, shall be required to pay any interest, and in such event all interest shall be forfeited.
(2) All laws or parts of laws in conflict herewith and all other statutory penalties for usury applicable to loans to corporations are hereby repealed.

The 1967 Legislature did not amend the law. Therefore, Sections 687.02, 687.03, 687.04, 687.07, and 687.11 were reenacted as the official law of the state in accordance with Section 11.2421, Florida Statutes.

In 1969, the legislature enacted Section 687.071, Florida Statutes, which repealed Section 687.07, Florida Statutes. Section 687.07 had previously provided for the un-enforceability of the debt where the interest rate exceeded 25 percent. The new statute provided different penalties for loans exceeding 25 percent. Sections 687.-02, 687.03, 687.04, and 687.11 were carried forward from the official 1967 statutes and reenacted into the official 1969 statutes.

The 1970 Legislature carried forward all sections of 687 previously enacted, except that it made a small and insignificant amendment to Section 687.03.

In 1973 Section 687.02 was amended to provide that an individual could be charged up to 15 percent interest per annum on any loan exceeding $500,000. Section 687.11 still provided that:

No individual secondarily liable as endorser, guarantor, surety, or otherwise on any corporate obligation shall be required, in any proceeding for collection of interest in the courts of this state, to pay any interest in excess of 10 percent per annum, and any interest claimed therein against such individual in excess of 10 percent per annum shall be forfeited

Thus, in 1973, the laws of this state regarding usury contained inconsistent provisions. The law as it then stood provided that with regard to loans in excess of $500,000 an individual as maker could pay up to 15 percent interest and an individual secondarily liable was limited to 10 percent interest.

In 1974, Sections 687.02 and 687.04 were carried forward into the 1975 statutes unchanged. Section 687.03 was amended in several small and insignificant ways not germane to this discussion. It was at this time that Section 687.11 was amended by adding: “(4) The provisions of this section shall not apply to obligations which exceed $500,000.” Respondent argues that this amendment was intended to remove all interest limitations on loans to corporate borrowers in excess of $500,000. However, Sections 687.02, 687.03, and 687.04 do now and always have provided penalties for the charging of interest in excess of certain rates.

The courts presume that statutes are passed with knowledge of prior existing statutes and that the legislature does not intend to keep contradictory enactments on the books or to effect so important a measure as the repeal of a law without expressing an intention to do so. Where possible, it is the duty of the courts to adopt that construction of a statutory provision which harmonizes and reconciles it with other provisions of the same act. State ex rel. School Board v. Dept. of Education, 317 So.2d 68 (Fla.1975); State v. Putnam County Development Authority, 249 So.2d 6 (Fla.1971); Woodley Lane, Inc. v. Nolen, 147 So.2d 569 (Fla.2d DCA 1962).

The only interpretation of Section 687.11(4) that can be harmonized with the remainder of Section 687.11 and the remaining sections of the usury statutes is that it remedies the inconsistency between permissible rates payable by an individual as maker, as contrasted to persons secondarily liable on loans in excess of $500,000.

A careful reading of the title to the act further convinces us that this is the proper construction of the statute. The title makes no reference to an abolition of penalties for usury, but refers to provisions “relating to guarantors.” Other evidence which was admitted before the trial judge, without objection, is also persuasive.

We therefore hold that the intent of the legislature in enacting Section 687.11(4), Florida Statutes, was to remedy the inconsistency between permissible rates payable by an individual as a maker as contrasted to an individual secondarily liable on loans in excess of $500,000.

This litigation is the second suit between these parties. The first was a mortgage foreclosure which culminated in a judgment of foreclosure pursuant to stipulation. Petitioners’ fourth affirmative defense and counts three and four of their counterclaim assert that the mortgage was not in default when the foreclosure judgment was entered. The circuit court held that these points were disposed of in the original proceedings and are res judicata. Petitioners argue that they specifically reserved the right to raise these issues, and respondent specifically waived the right to plead the doctrine of res judicata as a bar to any counterclaim. Having carefully reviewed the stipulation entered into between the parties, we agree with the petitioners that they may properly raise the issue of default in the deficiency judgment action.

Accordingly, this cause is remanded to the trial court with directions to reinstate petitioners’ first, second, fourth, and ninth defenses and to reinstate their counterclaim.

It is so ordered.

OVERTON, C. J., and ENGLAND and SUNDBERG, JJ., concur.

ADKINS, BOYD and KARL, JJ., dissent.

      . Section 6 of Article III, Florida Constitution, provides as follows:
      Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title. No law shall be revised or amended by reference to its title only. Laws to revise or amend shall set out in full the revised or amended act, section, subsection or paragraph of a subsection. The enacting clause of every law shall read: “Be It Enacted by the Legislature of the State of Florida:”.

      . In the House Committee on Business Regulations, a member of the committee called upon to explain the proposed amendment stated:
      Bill basically just was the bill we passed last year that said loans over $500,000 can be treated as corporate loans, $500,000 to individuals. . . . This is attempting to straighten out that language and clarify that language to say where the intent of the loan is to exceed $500,000 the interest rate can be in excess of 10% to individuals. . . .


author:
HATCHETT, Justice.
      BOYD, Justice, KARL, Justice,

text:
    Janice S. DAVIS and Kenneth Davis, her husband, Petitioners, v. SOBIK’S SANDWICH SHOPS, INC., and State Farm Mutual Automobile Insurance Company, Benny Rome Jackson and Cavalier Insurance Corporation, Patricia Buchanan Dunn and Allstate Insurance Company, Respondents.
    No. 49552.
    Supreme Court of Florida.
    June 16, 1977.
    Rehearing Denied Oct. 11, 1977.

      John C. Briggs of Robertson, Williams, Duane & Lewis, Orlando, for petitioners.
    James 0. Driscoll of Driscoll, Baugh, Langston, Layton & Kane, Harry K. Anderson of Anderson & Leklem, and John Edwin Fisher and Stephen D. Feinberg of Aker-man, Senterfitt & Eidson, Orlando, for respondents.
   HATCHETT, Justice.

By petition for writ of certiorari, we have for review a decision of the Fourth District Court of Appeal, reported at 330 So.2d 223 (Fla. 4th DCA 1976).

Petitioner in this case was the plaintiff in the trial court. The litigation arose from a three-vehicle rearend collision in which petitioner, a passenger in one of the automobiles, was injured. She brought suit against the three drivers and against the School Board of Seminole County, as one of their buses was alleged to have been a contributing cause of the accident. At the close of the evidence the trial court granted a motion for directed verdict on the issue of liability and instructed the jury to assess petitioner’s damages and determine which defendant or defendants were negligent. The jury returned a verdict against all of the defendants, except the School Board. On appeal, the Fourth District Court of Appeal reversed and remanded for new trial on all issues, finding that the trial court erred in entering a directed verdict for the plaintiff and against no particular defendant. Conflict is asserted with New Deal Cab Co. v. Stubbs, 90 So.2d 614 (Fla. 1956); Sheehan v. Allred, 146 So.2d 760 (Fla.lst DCA 1962); City of St. Petersburg v. Blankenhorn, 251 So.2d 37 (Fla.2d DCA 1971); and Ringler v. McVeigh, 109 So.2d 606 (Fla.3d DCA 1959). We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

In New Deal Cab Co., supra, plaintiff was injured when the taxicab in which she was riding collided with another vehicle. She sued the cab company and the owner of the other vehicle, alleging negligence on both their parts. At the close of the evidence and upon motion of the plaintiff, the trial judge directed the jury to enter a verdict in favor of the plaintiff in reference to negligence and instructed them to designate the negligent defendant or defendants. The jury was also instructed to determine the amount of damages. This court affirmed, finding that the plaintiff was an innocent sufferer of harm and was entitled to a verdict at all events. The court stated that the only question to be determined was whose negligence was the legal cause of the damage.

This case presents an almost identical fact situation. Petitioner was an innocent passenger, free of any contributory negligence. The legal cause of her injuries was not attributable to anyone not joined in the action, and there was no evidence to indicate that she was injured as a result of an unavoidable accident. As in New Deal, a verdict was directed for the plaintiff but against no particular defendant. Such a verdict was proper since the state of the evidence would require a new trial if petitioner failed to recover against at least one of the defendants. A verdict for all the defendants was legally precluded by the evidence.

Our reading of Sheehan v. Allred, supra, is to the same effect. There, the First District Court of Appeal, in reversing an order denying a directed verdict in the case of multiple defendants, said: “The court could not, however, properly direct the verdict against either or both of the defendants under the evidence revealed by this record.” 146 So.2d at 764. But that court also said:

Where, as in the case we now review, the evidence affirmatively establishes that plaintiff is free of any negligence which could be held to have been the proximate cause of or contributed to the collision out of which her damages arose, there is no reason why this issue should be submitted to the jury to be considered in light of the defenses of contributory negligence and general denial. In response to plaintiff’s motion the trial judge properly should have granted it on the issue of liability insofar as any claimed or alleged negligence on the part of plaintiff was concerned. ... Id. at 764.

Similarly, the courts in City of St. Petersburg v. Blankenhorn, supra, and Ringler v. McVeigh, supra, affirmed directed verdicts as to liability. See also Schield Bantum Co. v. Greif, 161 So.2d 266 (Fla.3d DCA 1964), and Mansell v. Eidge, 179 So.2d 624 (Fla.3d DCA 1965).

In arriving at its decision below, the Fourth District Court of Appeal relied primarily on a decision of the Third District Court of Appeal, Blakely v. Pahler, 253 So.2d 140 (Fla.3d DCA 1971). In that case plaintiff was injured while riding in a bus which collided with an automobile. The trial judge denied Blakely’s motion for directed verdict, and the District Court affirmed. The affirmance, however, was based on the theory that “the jury may have found that the damages suffered by Blakely (the plaintiff) were not proximately caused by any injuries resulting from this accident.”

We agree with the holding in Blakely, for surely, a trial judge may not grant a directed verdict for the plaintiff, and against the defendants, where there is sufficient evidence for the jury to find that some intervening cause produced the accident or that the damages suffered by the plaintiff were not “proximately caused by any injuries resulting from the accident.” But in the present case, as in New Deal:

No third persons intervened to cause or contribute to the accident. There is nothing in the record to suggest that the collision was an “unavoidable accident,” and there was evidence from which the jury could have found either or both of the defendants to be negligent. . . 90 So.2d at 615.

We know of no injustice or inconvenience resulting from this rule and therefore reaffirm our holding in that case.

Petitioners also contend that the District Court erred in remanding for new trial on all issues. Due to the disposition which we make of this case, it is unnecessary to discuss the matter further.

We have considered the points raised by respondents regarding the swearing in of part of the jury without affording them an opportunity to exercise their remaining peremptory challenges and find no error to have been committed.

Accordingly, the opinion of the Fourth District Court of Appeal is quashed and the case remanded for proceedings not inconsistent herewith.

It is so ordered.

OVERTON, C. J., and ADKINS, ENGLAND and SUNDBERG, JJ., concur.

BOYD, J., dissents with an opinion.

KARL, J., dissents with an opinion.

BOYD, Justice,

dissenting.

The district court found that each defendant presented evidence that tended to show their individual lack of fault. Sobik’s Sandwich Shops, Inc. v. Davis, 330 So.2d 223 at 225 (Fla.4th DCA 1976). That being the case, I must agree with the district court that the directed verdict for the plaintiff on liability was error. The jury should not have been prevented by the trial judge from finding that none of the defendants were liable since there was evidence admitted at trial which showed that each of the defendants may have been free from negligence. In passing on a motion for directed verdict, the court must accept as true all of the evidence and reasonable inferences therefrom which supports the opponents of the motion. Kelly v. Millers of Orlando, Inc., 294 So.2d 704 (Fla.4th DCA 1974).

New Deal Cab Co. v. Stubbs, 90 So.2d 614 (Fla. 1956), does not control since the evidence, if found persuasive by the fact finder, establishes that the accident was unavoidable. In any event, injury and lack of contributory negligence is not enough to direct a verdict for the plaintiff on liability. Before a plaintiff can recover for the negligence of a party, the plaintiff must prove that party’s negligence. I would restate the New Deal Cab rule to make it crystal clear that in negligence suits against multiple defendants where there is evidence presented by each defendant that they were free from negligence the court may not direct a verdict for the plaintiff on liability.

KARL, Justice,

dissenting.

I must respectfully dissent from the majority opinion which finds that jurisdiction lies in this Court to review the decision of the district court finding that the trial court erred in directing a verdict for the plaintiff.

The facts in this cause are clearly distinguishable from the facts in cases cited by petitioner to establish conflict. No conflict having been properly shown to exist, I would discharge the writ heretofore entered by this Court.


author: PER CURIAM.

text:
    Joseph R. O’DELL, Petitioner, v. STATE of Florida, Respondent.
    No. 50570.
    Supreme Court of Florida.
    June 30, 1977.
    Rehearing Denied Nov. 7, 1977.
    Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., and Charles F. McClamma and Michael H. Davidson, Asst. Attys. Gen., for respondent.
   PER CURIAM.

The Petition for Writ of Certiorari reflected probable jurisdiction in this Court. We issued the Writ and have heard argument of the parties. After hearing argument and upon further consideration of the matter, we have determined that the Court is without jurisdiction. Therefore, the Writ of Certiorari must be and is hereby discharged.

It is so ordered.

OVERTON, C. J., and ENGLAND, SUNDBERG and KARL, JJ., concur.

ADKINS, BOYD and HATCHETT, JJ., dissent.


author: KARL, Justice. HATCHETT, Justice,

text:
    Alberto R. CARDENAS and Frank Colunga, Petitioners, v. Bruce M. SMATHERS, as Secretary of State of Florida; and Joyce Dieffenderfer, as Supervisor of Elections of Dade County, Florida, Respondents.
    No. 50864.
    Supreme Court of Florida.
    June 30, 1977.
    Rehearing Denied Oct. 28, 1977.
    Alberto R. Cardenas, Miami, for petitioners.
    Robert L. Shevin, Atty. Gen., James D. Whisenand, Deputy Atty. Gen., and Thomas McLin Beason, Asst. Atty. Gen., Stuart Simon, County Atty., and Alan J. Kan, Asst. County Atty., for respondents.
   KARL, Justice.

During its regular session in 1972, the Legislature, by Senate Joint Resolution Number 1305, apportioned the state into forty consecutively numbered Senate districts and one-hundred twenty consecutively numbered House districts. In some eases, in both the Senate and House plans, two or more districts were assigned identical territory.

Following its adoption, Senate Joint Resolution 1305 was presented to this Court by th£ Attorney General, and the Court, in In re Apportionment Law Appearing as Senate Joint Resolution Number 1305, 1972 Regular Session, 263 So.2d 797 (Fla.1972), approved the plan of apportionment, including the multi-member districts.

In an order clarifying the original opinion and denying rehearing, this Court set out the procedures for any future proceedings relating to the validity of the plan. Jurisdiction was retained in the Court over the subject matter because the real-life impact of the plan on individual voting power could not be demonstrated until after an election or series of elections.

In original proceedings, Alberto R. Cardenas and Frank Colunga have petitioned for supplementary relief, declaratory relief and for the appointment of a commissioner to take testimony and report to the Court the findings thereof. They allege, inter alia, that the territory included in Miami’s House Districts 109 through 114 is identical and that the inclusion of the predominantly Hispanic precincts into this multi-member district invidiously discriminates against the petitioners.

The allegations of the petition include population statistics, voter registration information, a current breakdown of Hispanic and non-Hispanic residents and voters, and projections of future population patterns. Voting activities and election results from 1976 are presented in support of the discrimination charge, and included is a general allegation that the voting strength of voters of Hispanic origin has been negated and that the result is legislative indifference to the interests of the Hispanic minority-

We note that petitioners do not contend that multi-member House District 109-114, from its inception, discriminated against petitioners by operating to minimize or cancel out their voting strength. As conceded at the bar of the Court, the alleged discrimination has occurred through change in the community by the influx of large numbers of persons of Hispanic origin. Furthermore, there is no allegation made by petitioners that the Senate Joint Resolution encompassed a deliberate attempt to discriminate racially against those of Hispanic origin in Miami’s House District 109-114.

In In re Apportionment Law, supra, we held that multi-member districts are not, per se, invalid but, rather, are permissible and may co-exist with single-member districts under the same plan.

We therein concluded:

“It might well be that, designedly or otherwise, a multi-member constituency scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population. When this is demonstrated, we will consider whether the apportionment plan still passes constitutional muster.
“In other words, the apportionment plan as framed may be constitutional on its face, but upon its application in a particular case the joint resolution may violate organic law. This is in accord with our holdings that a statute may be valid as applied to one state of facts, though invalid as applied to another state of facts. See 4 F.L.P., Constitutional Law, § 10, p. 253, and authorities cited.”

We did not intend to retain jurisdiction of Senate Joint Resolution 1305 so that this Court could continuously monitor changing ethnic, racial or population patterns and require adjustments to reflect those changes. Such a day-to-day examination would allow us, on one occasion, to find that a particular multi-member district passed constitutional muster and, at some later date, to strike it down because of an influx of a particular racial group into the area. This would be an impossible task and was not our expressed intention.

The purpose for retention of jurisdiction was to determine the validity of a multi-member district at its inception after its real-life impact had been tested in at least one election.

The constitutional provision authorizing declaratory judgment review of the legislative apportionment plan was designed to test the sufficiency of what the Legislature had done and was not designed to provide a method for continuous updating of the apportionment plan adopted by the Legislature by Senate Joint Resolution 1305, based on changing circumstances as opposed to consideration of challenges to the original plan.

The petition before us prays for relief because of events that have transpired since 1972. It does not state grounds for invalidating the apportionment decision of the Legislature as of its effective date. It does not, therefore, state a cause for relief under our described retained jurisdiction, and the petition cannot be considered here in the first instance. The relief desired by petitioners must be sought through separate proceedings, to wit, a declaratory judgment action before the Circuit Court.

Accordingly, for the foregoing reasons, this cause is transferred to the Circuit Court, in and for Leon County, for consideration of the matter as an original proceeding for declaratory judgment before that court.

It is so ordered.

OVERTON, C. J., and BOYD, ENGLAND and SUNDBERG, JJ., concur.

HATCHETT, J., dissents with an opinion.

ADKINS, J., dissents and concurs with HATCHETT, J.

HATCHETT, Justice,

dissenting.

The majority of the Court refuses to entertain the grievances of these petitioners regarding discrimination in representation in multi-member House District 109-114 because:

(1) The district “from its inception, [did not] discriminate[d] against petitioners by operating to minimize or cancel out their voting strength;”

(2) “[T]here is no allegation that the Senate Joint Resolution encompassed a deliberate attempt to discriminate racially against those of Hispanic origin;”

(3) “We did not intend to retain jurisdiction . . . [to] continuously monitor changing ethnic, racial or population patterns and require adjustments to reflect those changes;” rather the purpose was “to determine the validity ... at its inception after its real-life impact had been tested in at least one election.”

The legislature last apportioned the state in 1972. We may admit for these purposes that in 1972 the plan was not drawn to deliberately discriminate and did not at that time operate to cancel out petitioners’ voting strength. But this is of little importance. Today — (that’s the question) are these voters being represented in accordance with the Constitutions of the State of Florida and the United States of America?

These petitioners ask only for appointment of a commissioner to take testimony and other evidence in order to determine whether the voting strength of an identifiable element of the voting population in House District 109-114 has been diluted as a result of multi-member districting. We should grant this petition because Art. Ill, § 16(c), Fla.Const., specifically provides for judicial review of legislative apportionment by this Court, and because we expressly retained jurisdiction for just this purpose— to consider the real-life impact of the 1972 apportionment plan. In re Apportionment Law Appearing as Senate Joint Resolution Number 1305, 1972 Regular Session, 263 So.2d 797 (Fla.1972).

Shortly after holding that the apportionment plan of 1972 was constitutional on its face this Court decided In re Apportionment Law, 279 So.2d 14 (Fla.1973) a suit alleging that the apportionment law was unconstitutional, in its practical effect, on the theory that it deprived citizens of Lee County of meaningful senatorial representation. In that original action in this Court, we addressed the issue of jurisdiction and, at page 15, stated:

“In upholding the apportionment law, we said that the scheme, in a particular case, might operate to undermine the voting strength of a racial or political group. We added, ‘when this is demonstrated we will consider whether the apportionment plan still passes constitutional muster.’ In re Apportionment Law, Senate Joint Resolution Number 1305, 263 So.2d 797, p. 808.” (emphasis added)

Later in another original action entitled In re Apportionment, 281 So.2d 484 (Fla.1973) the court again spoke of its jurisdiction in these terms:

“We have already determined that the apportionment law is valid on its face (In re Apportionment Law, Senate Joint Resolution Number 1305, 263 So.2d 797 (Fla. 1972), and have retained jurisdiction to hear particular complaints about the application of the apportionment plan pursuant to Fla.Const., art. 3, (16)(c) F.S.A., and Fla.Stat. 86.061, F.S.A. We have sole jurisdiction to hear the present complaint.” (at p. 484) (emphasis added)

The majority today abrogates that jurisdiction and transfers the cause to the circuit court. No authority is cited for such a transfer. While transfer to the circuit courts may be a convenient way to handle apportionment cases all the authority of this Court indicates original, exclusive jurisdiction here.

Meaningful representation is the foundation of a democratic society. If an apportionment scheme operates to minimize or eliminate meaningful representation for some segment of the voting population, at its inception or in application, the plan is unconstitutional. The majority today rules that the discrimination must be present from the very inception of the legislative plan. At inception the plan can only be attacked facially. On the other hand, the majority admits that at least one election should be held to test its constitutionality in its real-life impact. If this be true, and if the plan may be held unconstitutional, as applied, at the first election following its adoption, why not at the second or third elections. Are constitutional rights to be protected only each ten years? Or, eight years? Dicennial review is wholly inadequate to protect such a basic right as equal representation.

ADKINS, J., concurs.

      . Multiple districts with identical territory are authorized by Article III, Section 16(a), Florida Constitution, and are referred to as multi-member districts.

      . Judicial review is required by Article III, Section 16(c), Florida Constitution:
      “JUDICIAL REVIEW OF APPORTIONMENT. Within fifteen days after the passage of the joint resolution of apportionment, the attorney general shall petition the supreme court of the state for a declaratory judgment determining the validity of the apportionment. The supreme court, in accordance with its rules, shall permit adversary interests to present their views and, within thirty days from the filing of the petition, shall enter its judgment.”

      . With emphasis, we note that Article III, Section 16(a), mandates the Legislature to reapportion in the second year following each decennial census.

      . Petitioner having joined the Secretary of State as a party to this action, venue properly lies in Leon County. This does not mean to say that the Secretary of State is a proper party or that there is a cause of action stated in this complaint. These are matters which must be determined by the Circuit Court.


text:
    Morris W. MILTON, Charles Shorter, S. Curtis Kiser, Lorraine Quinn and Pamela A. Meacomes, Petitioners, v. Bruce M. SMATHERS, as Secretary of State of Florida, and Charles J. Kaniss, as Supervisor of Elections of Pinellas County, Florida, Respondents.
    No. 51041.
    Supreme Court of Florida.
    June 30, 1977.

      Peter M. Dunbar of Dunbar, Dunbar & Roman, New Port Richey, S. Curtis Kiser of Kurland, Johnson & Kiser, Clearwater, and Morris W. Milton, St. Petersburg, for petitioners.
    Robert L. Shevin, Atty. Gen., James D. Whisenand, Deputy Atty. Gen., Thomas Mc-Lin Beason, Asst. Atty. Gen., and Thomas C. Schiereck, Asst. County Atty., for respondents.
    Dennis J. Wall, for amicus curiae.

      . “We, therefore, hold that variable multi-member districts are not per se invalid under the Florida Constitution. It might well be that, designedly or otherwise, a multi-mem-ber constituency scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population. When this is demonstrated, we will consider whether the apportionment plan still passes constitutional muster.”
      “In other words, the apportionment plan as framed may be constitutional on its face, but upon its application in a particular case the joint resolution may violate organic law. This is in accord with our holdings that a statute may be valid as applied to one state of facts, though invalid as applied to another state of facts. See 4 F.L.P., Constitutional Law, § 10, p. 253, and authorities cited.”

   KARL, Justice.

In an original proceeding, we have a two count petition for supplementary relief and for appointment of a commissioner. The first count, in which petitioners are Morris Milton and Charles Shorter, challenges the constitutional validity of Senate Joint Resolution 1305 as it applied to petitioners in multi-member House District 57-61 on its effective date. Count two of the petition, in which Morris Milton, Charles Shorter, Curtis Kiser, Lorraine Quinn and Pamela Meacomes are petitioners, makes a general attack as to the constitutionality of the total multi-districting scheme in Florida.

This Court has already decided count two against the petitioners in In re Apportionment Law Appearing as Senate Joint Resolution 1305, 1972 Regular Session, 263 So.2d 797 (Fla.1972), and we decline to reconsider our position therein.

Count one of this petition does state sufficient allegations to come within the retained jurisdiction of this Court as set out in In re Apportionment Law, S.J.R. 1305, supra, and explained by this Court in Cardenas et al. v. Smathers, 351 So.2d 21 (Fla.1977).

This matter raised in count one requires appointment of a commissioner for factual findings and recommendation.

The commissioner shall forthwith conduct a prehearing conference for the purpose of establishing procedural guidelines for the proceedings contemplated hereunder. These proposed guidelines should then be submitted to this Court for approval before further hearings are held.

Accordingly, count two is dismissed and the Court, by separate order, will appoint a Commissioner to proceed as to count one.

It is so ordered.

OVERTON, C. J., and BOYD, ENGLAND and SUNDBERG, JJ., concur.

HATCHETT, J., concurs in part, dissents in part with an opinion, with which ADKINS, J., concurs.

HATCHETT, Justice,

concurring in part, dissenting in part.

I dissent from that portion of the majority opinion that holds that count two “has already [been] . . . decided against the petitioners.” The petitioners have alleged that the multi-member district plan of 1972, in application, is unconstitutional. This issue has not been decided. All that has been heretofore decided is that facially multi-member districts are constitutional. An apportionment plan must be subject to attack as to its continuing constitutionality, as applied, between the constitutionally required extraordinary apportionment sessions.

I would direct the commissioner to take evidence on both counts one and two.

ADKINS, J., concurs.


author: HATCHETT, Justice. ENGLAND, Justice, OVERTON, Chief Justice,

text:
    Donnie Lee IVORY, Petitioner, v. STATE of Florida, Respondent.
    No. 49615.
    Supreme Court of Florida.
    July 14, 1977.
    Rehearing Denied Oct. 20, 1977.

      Bennett H. Brummer, Public Defender, and Thomas G. Murray, Asst. Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for respondent.
   HATCHETT, Justice.

This cause is before us to determine whether a defendant in a criminal case is denied a fair trial and due process of law when the trial judge responds to a request from the jury, during the period of its deliberations, without affording the prosecutor, the defendant, or defendant’s counsel an opportunity to be present and object or request alternative courses of action. In the exercise of our jurisdiction, we answer this question in the affirmative and reverse the conviction.

Petitioner, Donnie Lee Ivory, was indicted for first degree murder. At trial, the charge was reduced to second degree murder and the jury returned a verdict finding petitioner guilty of manslaughter.

After retiring to consider its verdict, the jury sent out two notes requesting the following additional information: the instructions to the jury, the defendant’s statement, the medical examiner’s report, and “the brief definitions of third degree murder and the various types of manslaughter.” Without notifying the defendant, his counsel, or counsel for the state, and outside of their presence, the court ordered the bailiff to deliver to the jury the documentary exhibits requested. It was later discovered that the medical examiner’s report had never been admitted into evidence. After the jury had the report for approximately 45 minutes, the trial judge ordered it withdrawn, whereupon the defendant filed a motion for mistrial. The trial court denied defendant’s motion but did instruct the jury to disregard the written medical examiner’s report. In a per curiam decision, Judge Nathan dissenting, the Third District Court of Appeal affirmed the conviction, Ivory v. State, 330 So.2d 853 (Fla. 3d DCA 1976).

Because we find that it was prejudicial error for the trial judge to respond to the jury’s inquiries outside the presence of the prosecutor, the defendant, and his counsel, we need not determine whether the delivery to the jury room of the medical examiner’s report was prejudicial error.

Florida Rule of Criminal Procedure 3.410, entitled “Jury Request to Review Evidence or for Additional Instructions” provides that if the jury, while deliberating, requests additional information or instructions, they shall be conducted to the courtroom by the bailiff. The rule then provides, in pertinent part, as follows:

Such instructions shall be given and such testimony read only after notice to the prosecuting attorney and to counsel for the defendant. (Emphasis added.)

The comment to this rule also states:

If an additional requested instruction is given, if testimony is read to the jury, or if material is given to the jury, notice must be supplied to counsel for both the prosecution and the defense as emphasized in Smith v. State, 1957, 95 So.2d 525. 34 Fla.Stat.Ann. 145.

Obviously the court failed to follow the rule, but is the failure to follow the rule so prejudicial that a new trial is required? In Slinsky v. State, 232 So.2d 451, at 452 (Fla. 4th DCA 1970), that court stated:

After the case was submitted to the jury and during the course of their deliberations in the jury room, the jury sent a message by the bailiff to the trial judge. It requested that certain testimony be read back to them. The court summarily denied the request. This procedure was accomplished without inquiry, without opening court and without advising the defendant's counsel or the prosecuting attorney. It was also conducted outside the presence of the defendant. This procedure was assigned as error. We believe that it was and because of it that defendant should have a new trial.

As to whether failure to open court and have the defendant and his counsel present constituted harmful error, the court in Slin-sky, at 453, said:

[W]e feel that the practice here employed, innocently intended as undoubtedly it was, violated the defendant’s rights in a harmful way and entitles him to a new trial. . . . [T]he trial court, faced with such request, should have advised counsel of it and re-convened court with defendant in attendance. . . . This would afford counsel an opportunity, to perform their respective functions. They could advise the court, object, request the giving of additional instructions or the reading of additional testimony, and otherwise fully participate in this facet of the proceeding.

We agree. Any communication with the jury outside the presence of the prosecutor, the defendant, and defendant’s counsel is so fraught with potential prejudice that it cannot be considered harmless. Had the court followed the procedure set forth in the rule and in Slinsky by opening court and allowing the prosecutor and counsel for the defendant to be present, the matter involving the medical examiner’s report probably would never have occurred. This points up the wisdom and practicality of such a rule.

We now hold that it is prejudicial error for a trial judge to respond to a request from the jury without the prosecuting attorney, the defendant, and defendant’s counsel being present and having the opportunity to participate in the discussion of the action to be taken on the jury’s request. This right to participate includes the right to place objections on record as well as the right to make full argument as to the reasons the jury’s request should or should not be honored.

Most Florida authority is in accord. Holzapfel v. State, 120 So.2d 195 (Fla. 3d DCA 1960), cert. den., 125 So.2d 877 (Fla.1960); McNichols v. State, 296 So.2d 530 (Fla. 3d DCA 1974), cert. den., 303 So.2d 645 (Fla. 1974). The First District Court of Appeal is contra. See Kimmons v. State, 178 So.2d 608 (Fla. 1st DCA 1965), cert. discharged, 190 So.2d 308 (Fla.1966), cert. den., 387 U.S. 934, 87 S.Ct. 2057, 18 L.Ed.2d 996 (1967), holding that the sending of a .written instruction to the jury, in the absence of defendant and his attorney, is at most an irregularity which does not require reversal when no prejudice is shown to have resulted. Insofar as Kimmons is in conflict with this holding, it is overruled.

Accordingly, the decision of the Third District Court of Appeal is quashed and the case remanded for a new trial.

It is so ordered.

ADKINS, BOYD, SUNDBERG and KARL, JJ., concur.

ENGLAND, J., concurs with an opinion.

OVERTON, C. J., dissents with an opinion.

ENGLAND, Justice,

concurring.

The rule of law now adopted by this Court is obviously one designed to have a prophylactic effect. It is precisely for that reason that I join the majority. A “prejudice” rule would, I believe, unnecessarily embroil trial counsel, trial judges and appellate courts in a search for evanescent “harm”, real or fancied.

OVERTON, Chief Justice,

dissenting.

I dissent.

I would require a determination that the medical examiner’s report was in fact prejudicial to the defendant’s case. The decision of the Third District Court of Appeal should be affirmed.

       Article V, Section 3(b)(3), Florida Constitution.


author: SUNDBERG, Justice.

text:
    Helen E. WILLS and Howard A. Wills, her husband, Petitioners, v. SEARS, ROEBUCK & COMPANY, Respondent.
    No. 50255.
    Supreme Court of Florida.
    Sept. 8, 1977.
    Rehearing Denied Nov. 14, 1977.
    Harvey M. Goldstein of Goldstein & Gold-stein, Miami, for petitioners.
    Robert J. Schaffer of Helliwell, Melrose & DeWolf, Miami, for respondent.
   SUNDBERG, Justice.

This cause is before us on petition for writ of certiorari to review a decision of the District Court of Appeal, Third District, reported at 336 So.2d 1190, which affirmed per curiam without opinion an order of the trial court granting summary judgment to respondent, Sears, Roebuck & Company. The present decision is alleged to be in conflict with Visingardi v. Tirone, 193 So.2d 601 (Fla.1966); Holl v. Talcott, 191 So.2d 40 (Fla.1966), and other decisions setting forth the law applicable to summary judgment, which states that grant of summary judgment is improper if there is any genuine issue as to material fact. Because the record proper in this cause reflects conflict in decision between this case and those cited, we have jurisdiction. Foley v. Weaver Drugs, Inc., 177 So.2d 221 (Fla.1965); Article V, Section 3(b)(3), Florida Constitution.

Petitioners filed a complaint alleging that Mrs. Wills was seriously injured while shopping at respondent’s store. Specifically, she stated that she entered the store to purchase a “banana” seat for her bicycle and, at the instruction of one of the respondent’s employees, attempted to mount a demonstration bicycle provided by respondent for customers such as herself. She further alleged that respondent created a dangerous condition by placing the demonstration bicycle in a display area upon a carpet tacked down and secured in place by a metal rim running the circumference of the carpeted area. As a result of this negligent design and placement of the metal rim, and because of the failure of respondent to warn her of this dangerous condition, petitioners claim she fell when her foot slipped on the metal rim while she attempted to mount the demonstration bicycle. Respondent, in its answer, specifically denied that Mrs. Wills mounted the demonstration bicycle at the instruction of one of respondent’s employees. Further, respondent alleged that Mrs. Wills was herself negligent and voluntarily assumed a known risk in attempting to mount the bicycle while wearing a dress. In so doing, she directly and proximately caused her own injuries, thereby barring her recovery. Alternatively, Sears alleged that Mrs. Wills’ negligence at the least substantially contributed to her injuries. Thus, her damages, if any, should have been reduced by the amount of her own negligence. Petitioners denied these affirmative defenses. Respondent then made a motion for summary judgment arguing there existed no genuine issues as to any material fact, and consequently, Sears was entitled to judgment as a matter of law. Based on the pleadings, respondent’s own answers to petitioners’ interrogatories, and photographs, not in the court file but presented to the judge at the time of the hearing, the trial court granted respondent’s motion for summary judgment but did not set forth any reasons for doing so. Petitioners filed a motion for rehearing and attached thereto an affidavit in which Mrs. Wills explained in greater detail the assertions of respondent’s negligence as set forth in her original complaint. However, the trial court denied this motion for rehearing, again without stating any reasons therefor. After the District Court of Appeal, Third District, per curiam affirmed without opinion, petitioners sought review in this Court.

Petitioners now assert that the trial court erred: (1) in ordering summary judgment in favor of respondent, since respondent failed to sustain its burden of clearly demonstrating the absence of any genuine issues of material fact; (2) in granting summary judgment for respondent based on respondent’s own answers to the petitioners’ interrogatories; and (3) in failing to grant the petitioners’ motion for rehearing. Because we believe that there were unresolved genuine issues of material fact present sub judice, even in view of the respondent’s answers to interrogatories and the photographs considered by the court, it is unnecessary to consider the arguments of petitioners as to the propriety of basing a summary judgment thereon. Nor need we determine the issue raised concerning denial of rehearing.

A party moving for summary judgment must meet a twofold requirement:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits [in support or opposition, or both], if any, show [1] that there is no genuine issue as to any material fact and [2] that the moving party is entitled to a judgment as a matter of law. Fla.R.Civ.P. 1.510(c).

In order to carry its burden as to the first of these requirements, the movant must show conclusively the absence of any genuine issue of material fact, Visingardi v. Tirone, supra; Holl v. Talcott, supra. The Holl court additionally stated that the burden on parties moving for summary judgment is greater than the burden which the plaintiff must carry at trial, because the movant must prove a negative — the nonexistence of a genuine issue of material fact. Id. at 43. Movant’s burden is even more onerous in negligence actions where summary judgment procedures historically have been employed with special care. Holl v. Talcott, supra; Stephens v. Moody, 225 So.2d 586 (Fla.lst DCA 1969); Maury v. City Stores, Inc., 214 So.2d 776 (Fla.3d DCA 1968); Suhr v. Dade County, 198 So.2d 837 (Fla.3d DCA 1967). The necessity for exercise of such caution is emphasized by virtue of this Court’s adoption of comparative negligence, Hoffman v. Jones, 280 So.2d 431 (Fla.1973), and its recent abolition of assumption of risk as an absolute defense, Blackburn v. Dorta, 348 So.2d 287, (Fla.1977). Unless a movant can show unequivocally that there was no negligence, or that plaintiff’s negligence was the sole proximate cause of the injury, courts will not be disposed to granting a summary judgment in his favor.

Respondent argues that when a movant refutes the material factual issues raised in the complaint and shows the nonexistence of a genuine issue as to any material fact, summary judgment is proper if the opposing party merely stands upon the allegations of the complaint and fails to present anything to show a disputed issue of fact. While we agree with this statement of law, we find it inapplicable to the instant cause where respondent has initially failed to meet its task of proving the requirements of Fla.R.Civ.P. 1.510(c). Croft v. York, 244 So.2d 161, 163-64 (Fla.lst DCA 1971), cert. denied, 246 So.2d 787 (Fla.1971).

In the instant case, there were genuine issues of material fact. Petitioners assert in their complaint that a Sears’ employee instructed Mrs. Wills to mount the demonstration bicycle. Respondent directly controverts this fact by answering that no employee gave petitioner Helen E. Wills any such instruction. Petitioners allege in their complaint that Sears’ bicycle demonstration area was negligently designed and maintained. Respondent’s answer adamantly denies this allegation. Given the above pleadings, it is apparent that genuine issues of material fact are in dispute. Did respondent’s answers to interrogatories propounded by petitioners resolve the disputed issues incontrovertibly in favor of respondent so as to eliminate all genuine issues of material fact? An examination of the pertinent interrogatories and answers discloses they did not.

13. Please state the dates for a period of one year prior to February 2, 1974, that anyone enumerated in answer to Interrogatory number 12, or any persons known to the Defendant, inspected for safety and maintenance purposes, the area within the Sears and [sic] Roebuck & Company Store located at Cutler Ridge, Dade County, Florida, where Defendants employees were required to be in the performance of their duties, including the area in said store where plaintiff allegedly was injured on February 2, 1974..
Daily inspection by store staff and department manager
******
14. How many men were employed for maintenance purposes by the Defendant at the Sears, Roebuck & Company Store, Cutler Ridge, Dade County, Florida, on an average day during the year preceding February 2, 1974.
17-18
a. How many men were employed for maintenance purposes by the Defendant at the above store on February 2, 1974.
approximately 17
******
18. Please describe as completely as possible the lighting conditions at the time and place of the occurrence alleged by Plaintiff in this cause.
Excellent, overhead florescent [sic], same today as on date of alleged incident.
******
28. Please describe in detail just what the Defendant, its agents and/or employees did if anything, in an attempt- to avoid the alleged accident herein complained of.
Bikes displayed on all-weather carpeting, rubber rim to carpet, non-skid floor wax on surrounding area, kickstands provided and in use on all bikes in display area.
29. Please state the signals or warnings that were made or given by the Defendant, its agents, and/or employees to the Plaintiff prior to the time of the alleged accident?
None, because the plaintiff was by herself.
******

The answer to Interrogatory 13 regarding safety and maintenance inspections does not conclusively obviate the allegations in the complaint that the demonstration area was negligently designed and created nor that it was improperly maintained at the time of the alleged accident. The response to Interrogatory 14.a. does not refute petitioners’ allegation that the demonstration area was improperly maintained at the time of the accident. The response to Interrogatory 18 does not bear on the allegation of improper design and maintenance of the demonstration area. The answer to Interrogatory 28 does not meet the burden of refuting, for summary judgment purposes, the allegation of ultimate fact to the effect that the demonstration area, together with the placement of the bicycle therein, was negligently created, designed, and laid out. The response to Interrogatory 29 tends to refute the allegation that Mrs. Wills was instructed by an employee to mount the bicycle, but even if deemed to conclusively refute that allegation, it eliminates only one issue of fact upon which liability could be predicated.

Respondent contends in its brief, that, nonetheless, summary judgment was properly entered because the design and condition of the demonstration area was not the proximate cause of the injury. Rather the act of Mrs. Wills in attempting to mount the demonstration bicycle while clothed in a dress was the sole proximate cause of her injuries. In paragraphs 7 and 8 of their complaint, petitioners alleged to the contrary. Suffice it to say that such a question of causation has traditionally, and quite properly, been one for the jury. The showing by respondent was not so conclusive on this issue as to take it from the jury.

Mindful as we are of the presumption of correctness which attaches to an order of the trial court, nevertheless we must draw every possible inference in favor of the party against whom the motion is made. First Realty Corp. v. Standard Steel Treating Co., 268 So.2d 410, 413 (Fla.4th DCA 1972). Accordingly, we find that respondent has not carried its burden of showing conclusively that there was no genuine issue as to any material fact. The petition for certiorari is granted, and the decision of the District Court of Appeal, Third District, is quashed with directions to remand to the trial court for proceedings not inconsistent with this opinion.

It is so ordered.

ADKINS, BOYD and HATCHETT, JJ., concur.

OVERTON, C. J., dissents.