author: BEATTY, Justice.

text:
    Donald COMER, III, et al. v. The CITY OF MOBILE et al.
    SC 1830.
    Supreme Court of Alabama.
    Sept. 24, 1976.
    See also, Ala., 837 So.2d 753.

      William J. Baxley, Atty. Gen., and William T. Stephens and Winston T. Lett, Asst. Attys. Gen., for appellants.
    J. Michael Druhan, Jr., Mobile, for appel-lees.
   BEATTY, Justice.

Appellants, Donald Comer, III, George E. Bagley, Alto V. Lee, III, Leslie S. Wright and Melvin G. Cooper, appeal a final order and decree by Circuit Judge Perry 0. Hooper which held Act No. 130 of the 1975 session of the Alabama Legislature unconstitutional in its entirety as well as holding that the incumbent Ethics Commissioners (appellants) are holding office illegally, having not been appointed under Act No. 130. We affirm in part and reverse in part.

THE HISTORY

Act No. 1056 of the 1973 session of the Alabama Legislature, the Alabama Ethics Law, was enacted by the Legislature on September 13,1973 and was signed into law by the Governor on the following day. As originally enacted, Act No. 1056 applied only to state officials and employees. It delegated to the State Ethics Commission the authority to adopt rules of ethical conduct for county and municipal officials and employees similar to the requirements the state law imposed upon state officials and employees.

In order to facilitate the understanding of this case, we include the pertinent sections of Act No. 1056, which follow:

“To establish a state ethics commission and to provide a state ethics law, which: requires disclosures of certain economic interests and certain family connections to be filed by state officials and certain state employees and by persons having certain business dealings with the state or its agencies or instrumentalities, proscribes certain practices by state officials and employees which conflict with the proper.safeguarding of the public trust; requires the registration of persons engaged in activities designed to influence legislation and the making of certain reports by such persons and otherwise regulates such activities of such persons; prescribes penalties; provides for the enforcement of this act; prescribes the powers and duties of the ethics commission; and authorizes the commission to prescribe, promulgate and enforce rules, consonant with this law, to govern activities and disclosures by county and municipal officials needed to safeguard the public trust in such governmental units.
Be It Enacted by the Legislature of Alabama:
Section 1.
(a) 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 renumeration provided by law; and that there be public confidence in the integrity of government. The attainment of one or more of these ends is impaired whenever there exists a conflict between .the private interests of an elected official or a government employee and his duties as such. The public interest, therefore, requires that the law protect against such conflicts of interest and establish appropriate ethical standards with respect to the conduct of elected officials and government employees in situations where conflicts exist.
(b) It is also essential to the proper operation of government that those best qualified be encouraged to serve the government. Accordingly, legal safeguards against conflicts of interest must be so designed as not unnecessarily or unreasonably to impede the recruitment and retention by the government of those men and women who are best qualified to serve it. An essential principle underlying the staffing of our government structure is that its elected officials and employees should not be denied the opportunity, available to all other citizens, to acquire and retain private economic and other interests, except where conflicts with the responsibility of such elected officials and employees to the public cannot be avoided.
(c) Also, the legislature hereby declares that the operation of responsible democratic government requires that the fullest opportunity be afforded to the people to petition their government for the redress of grievances and to express freely to individual member of the legislature, to committees of the legislature, and to officials of the Executive branch, their opinions on legislation, on pending executive actions, and on current issues; and that, to preserve and maintain the integrity of the legislative and administrative processes, it is necessary that the identity, expenditures and activities of certain persons who engage in efforts to persuade members of the legislature or the executive branch to take specific actions, either by direct communication to such officials, or by solicitation of others tó engage in such efforts, be publicly and regularly disclosed. The provisions of this act shall be liberally construed to promote complete disclosure of all such information and so as to assure that the public interest will be fully protected.
(d)It is the policy and purpose of this Act to implement these objectives of protecting the integrity of the government 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 public service.
Section 2. Whenever used in this Act, the following words and terms shall have the following respective meaning unless the context clearly indicates otherwise:
(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.
Section 17.
(a) There is hereby created a State Ethics Commission which shall be composed of five members, each of whom shall be a fair, equitable citizen of this state and of high moral character. No member of the commission shall be eligible for appointment to succeed himself, except that members appointed to the first commission may each be appointed one time to succeed himself. One member of such commission shall be appointed by each of the following officers: the Governor, the Lieutenant-Governor, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the Attorney General. The members of the first commission shall be appointed for terms of office expiring one, two, three, four and five years, respectively, from the date on which this act becomes law, the member being appointed by the Governor having the one-year term, the member appointed by the Lieutenant-Governor having the two-year term, the member appointed by the Speaker of the House having the three-year term, the member appointed by the Chief Justice having the four-year term, the member appointed by the Attorney General having the five-year term. Successors to the members of this first commission shall each be appointed for terms of five years and until their successors are appointed and have qualified. If any of the above listed appointing authorities should fail to make his appointment to the first commission within forty-five days after this act becomes law or to fill a vacancy forty-five days after such vacancy occurs, then the Governor may make such appointment; but the term of such appointee shall be for the period prescribed for a member appointed by the officer authorized to make such appointment but who failed to do so. If at any time there should be a vacancy on the commission, a successor member to serve for the unexpired term applicable to such vacancy shall be appointed by the same appointing authority as the member whose unexpired term such successor is to fill. The commission shall elect one member to serve as chairman of the commission and one member to serve as vice chairman. The vice chairman shall act as chairman in the absence or disability of the chairman or in the event of a vacancy in that office.
As soon as all the members of the board have been appointed the Governor shall call and provide for the holding of an organizational meeting of the commission. Such meeting shall be set for not less than forty-five days nor more than sixty days after this act becomes effective.

Appellants were appointed to their positions on the Commission as provided by Act No. 1056. Subsequently, the Commission prescribed financial disclosure forms to be filed periodically by persons covered by Act No. 1056 and adopted rules of ethical conduct for county and municipal officials and employees.

The Legislature considered revision of the Ethics Law in the spring of 1975. House Bill 240, introduced on May 6, 1975, was altered by the Senate to become Act No. 130 of the 1975 session of the Legislature — an amendatory Act relating to and re-enacting Act No. 1056. Pertinent parts of Act No. 130 follow:

To amend and re-enact Act. No. 1056, S. 1, Regular Session 1973 (Acts 1973, pg. 1699); entitled, An Act to establish a state ethics commission and to provide a state ethics law, which: requires disclosures of certain economic interests and certain family connections to be filed by state officials and certain state employees and by persons having certain business dealings with the state or its agencies or instrumentalities, proscribes certain practices by state officials and employees which conflict with the proper safeguarding of the public trust; requires the registration of persons engaged in activities designed to influence legislation and the making of certain reports by such persons and otherwise regulates such activities of such persons; prescribes penalties; provides for the enforcement of this Act; prescribes the powers and duties of the ethics commission; and authorizes the commission to prescribe, promulgate and enforce rules, consonant with this law, to govern activities and disclosures by county and municipal officials needed to safeguard the public trust in such governmental units, so as to amend the title and certain sections; to eliminate section 14; and to renumber certain sections.
Be It Enacted by the Legislature of Alabama:
Section 1. Act No. 1056, S. 1, Regular Session 1973 (Acts 1973, pg. 1699) is hereby amended and re-enacted to read as follows:
“AN ACT
“To establish a state ethics commission and to provide a state ethics law, which: Requires disclosures of certain economic interests and certain family connections to be filed by candidates for public offices, public officials and employees, and by persons having certain business dealings with the state, a county or municipality or its agencies or instrumentalities; proscribes certain practices by public officials and employees which conflict with the proper safeguarding of the public trust; requires the registration of persons engaged in activities designed to influence legislation and the making of certain reports by such persons and otherwise regulates such activities of such persons; prescribes penalties; provides for the enforcement of this act; prescribes the powers and duties of the ethics commission; and authorizes the commission to prescribe, promulgate and enforce rules, consonant with this law, to govern activities and disclosures by public officials and employees needed to safeguard the public trust in such governmental units.
“BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
“SECTION 1.
“(a) 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 renumeration provided by law; and that there by public confidence in the integrity of government. The attainment of one or more of these ends is impaired whenever there exists a conflict between the private interests of an elected official or a government employee and his duties as such. The public interests, herefore, requires that the law protect against such conflicts of interest and establish appropriate ethical standards with respect to the conduct of elected officials and government employees in situations where conflicts exist.
“(b) It is also essential to the proper operation of government that those best qualified be encouraged to serve the government. Accordingly, legal safeguards against conflicts of interest must be so designed as not unnecessarily or unreasonably to impede the recruitment and retention by the government of those men and women who are best qualified to serve it. An essential principle underlying the staffing of our government structure is that its elected officials and employees should not be denied the opportunity, available to all other citizens, to acquire and retain private economic and other interests, except where conflicts with the responsibility of such elected officials and employees to the public cannot be avoided.
“(c) Also, the legislature hereby declares that the operation of responsible democratic government requires that the fullest opportunity be afforded to the people to petition their government for the redress of grievances and to express freely to individual members of the legislature, to committees of the legislature, and to officials of the executive branch, their opinions on legislation, on pending executive actions and on current issues; and that, to preserve and maintain the integrity of the legislative and administrative processes, it is necessary that the identity, expenditures and activities of certain persons who engage in efforts to persuade members of the legislature or the executive branch to take specific actions, either by direct communication to such officials, or by solicitation of others to engage in such efforts, be publicly and regularly disclosed. The provisions of this Act shall be liberally construed to promote complete disclosure of all such information and so as to assure that the public interest will be fully protected.
“(d) It is the policy and purpose of this Act 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.
“(i) ‘Public Employee’ means any employee of state, county or municipal governments who has administrative and discretionary authority for the receipt or expenditures of public funds or who earns in excess of $15,000 annually but shall not include those persons who are primarily engaged in teaching duties in all schools, colleges, and universities in the State.
“(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, schools 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 of authorities, functioning solely for cultural or historical purposes and advisory board members and members of boards of trustees of institutions of higher learning of the State of Alabama.
SECTION 16.
“(a) There is hereby created a State Ethics Commission which shall be composed of five members, each of whom shall be a fair, equitable citizen of this state and of high moral character. No member of the commission shall be eligible for appointment to succeed himself. The members of such commission shall be appointed by the following officers: the Governor, the Lieutenant-Governor, and the Speaker of the House of Representatives and shall assume their duties upon confirmation by the Senate. The members of the first commission shall be appointed for terms of office expiring one, two, three, four and five years, respectively, from September 1, 1975. Successors to the members of this first commission shall each be appointed for terms of five years and until their successors are appointed and have qualified. If at any time there should be a vacancy on the commission, a successor member to serve for the unexpired term applicable to such vacancy shall be appointed by the Governor. The commission shall elect one member to serve as chairman of the commission and one member to serve as vice chairman. The vice chairman shall act as chairman in the absence or disability of the chairman or in the event of a vacancy in that office. As soon as all the members of the board have been appointed the Governor shall call and provide for the holding of an organizational meeting of the commission.
“(b) A vacancy in the commission shall not impair the right of the remaining members to exercise all the powers of the commission and three members thereof shall constitute a quorum.
“(c) The commission shall at the close of each fiscal year report to the legislature and the Governor concerning the action it has taken; the names, salaries, and duties of all individuals in its employ and the monies it has disbursed; and shall make such further reports on the matters within its jurisdiction and such recommendations for further legislation as may appear desirable.
“(d) Members of the Commission shall, while serving on the business of the commission, be entitled to receive compensation at the rate of $50 per day, and each such member shall be paid the actual and necessary expenses incurred in the performance of his duties as a member of the commission when approved by the chairman thereof.
“(e) All members, officers, agents, attorneys, and employees of the commission shall be subject to the provisions of this Act and also to the provisions of law prohibiting political activities by state employees.
“(f) The commission shall appoint an Executive Director and such other staff as is needed. All such appointees shall serve at the pleasure of the commission. All such employees, except for the Executive Director, shall be employed subject to the provisions of the state merit system law, and their compensation shall be prescribed pursuant to such law. The compensation of the Executive Director shall be fixed by the Commission, but shall not exceed $25,000 per year. The Executive Director shall be responsible for the administrative operations of the commission and shall perform such other duties as may be delegated or assigned to him from time to time by regulation or order of the commission. However, the commission shall hot delegate the making of regulations to the Executive Director. The commission may require the Executive Director to draft regulations but no regulation shall be implemented by the Executive Director until adopted by the commission members.
“(g) The commission is hereby authorized, when in its discretion the ends of justice will be thereby served, to waive any rule or regulation presented relative to any disclosure statement, provided such waiver is done in writing stating the reason why and made a part of the public record.
“(h) No person heretofore appointed to the Ethics Commission pursuant to Act No. 1056, S-l, Regular Session of 1973 shall be eligible for appointment or membership of the commission after the effective date of this act.
“SECTION 30. The provisions of this Act are severable. If any part thereof is declared unconstitutional, such declaration shall not affect the part which remains.
“SECTION 81. This Act shall be construed in pari materia with other laws dealing with the subject matter hereof, and repeals all laws and parts of laws in conflict herewith.

As adopted, Act No. 130 amended Act No. 1056 to replace all references to “state officials and employees” with definitions of and references to “public officials and employees.” It defined public officials and employees to include state, county and municipal officials and employees. It included guidelines for lobbyists and provided criminal sanctions for violation. Act No. 130 also amended Act No. 1056 to correct a title deficiency. Additionally, Act No. 130 amended Act No. 1056 to provide in § 16(h) that incumbent members of the State Ethics Commission were removed from office and could never again serve on the Commission. In § 16(a) it provided for a subsequent method of appointment for Commission members.

Following an opinion of the Attorney General that the Legislature could not constitutionally remove incumbents from office, nor prohibit them from serving again, Steve Suitts initiated a quo warranto proceeding in February, 1976, challenging the authority of the incumbent members of the State Ethics Commission to continue to serve as members of the Commission. The Commissioners and the State of Alabama countered by asking for dismissal of the petition on the grounds that:

“. . . the State of Alabama acknowledges and admits that respondents properly hold office as members of the Alabama State Ethics Commission, that the Relator Steve Suitts does not have standing to maintain this action, that removal of these Respondents from office would be contrary to the public interest and that the provisions of law upon which the Relator relies as having removed Respondents from office and prohibiting Respondents from holding office are unconstitutional, illegal and ineffective; . . .."

A different trial court, noting that the motion should be granted for each reason urged, decreed that the petition for a writ of quo warranto was dismissed with prejudice and the relief denied. That judge’s decision has been appealed; it is now before this Court. State ex rel. Suitts v. Comer, Ala., 337 So.2d 753.

THE FACTS

The complaint in this action was filed February 27, 1976 by the City of Mobile, the Industrial Development Board of the City of Mobile and Mr. Oliver H. Delchamps, Jr., in their own behalf and “as representatives of all other county and municipal officers and employees, and all other members of the governing bodies, officers and employees of all municipal and county boards, agencies, authorities, commissions, committees, councils and authorities ... in all cities whose population is more than 15,000 . . . ” They asked that Act No. 130 of the 1975 session of the Legislature and certain sections thereof be held unconstitutional and the incumbent members of the State Ethics Commission be removed from office. A temporary restraining order, granted ex parte by the trial judge, was served on the defendant-appellants, restraining them from applying Act No. 130 to any county or municipal official or employee. Later, after ruling that the case could be maintained as a class action, the trial judge granted a preliminary injunction and the case was set down for trial on the merits on March 29, 1976.

A final order was entered in the case on April 30, 1976 holding Act No. 130 unconstitutional in its entirety, holding certain sections of the Act unconstitutional and holding that the incumbent Ethics Commissioners were holding office illegally because they had not been appointed under Act No. 130. This appeal followed.

We sustain the lower court’s decree insofar as it renders § 16(h) and a portion of § 2(k) of Act No. 130 unconstitutional. However, we also hold that the incumbent Ethics Commissioners are legally authorized to retain their positions until the new Commissioners are appointed and confirmed as provided under § 16(a) of Act No. 130.

THE ISSUES

Although it is not entirely clear either from the trial judge’s order or from the briefs of the parties precisely what issues are raised on this appeal, we believe the following state the legal questions raised;

1. Whether Act No. 130 is so vague and overbroad as to violate the due process clause of the United States Constitution.

2. Whether the removal of a certain class of persons holding office prior to the effective date of the Act violates Section 175 of the Alabama Constitution of 1901, Art. I, Section 10, of the United States Constitution, or the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

3. Whether § 2(k) of Act No. 130 is a local Act which violates Sections 104, 110 and 111 of the Alabama Constitution of 1901.

4. Whether Act No. 130 was so altered or amended on its passage through the 1975 legislative session as to change its original purpose in violation of Section 61 of the Alabama Constitution of 1901.

5. What does Rule 65(b) ARCP require with respect to the decision of the trial judge to grant a temporary restraining order without notice to the adverse party?

THE OPINION

1. In his “Corrected Judgment and Decree,” the trial judge held Act No. 130 overbroad because:

“. . . The arms of the Ethics Commission have been stretched into areas never contemplated by Act No. 130, but because of the vagueness of the statute, the Ethics Commission has undertaken to exercise authority over citizens which it has never had the right to exercise authority . . ”

This appears not a criticism of the Act itself but of the application of the Act by the Ethics Commission, for the decree goes on to condemn the requirement by that body of financial disclosure by the Alabama State Nurses Association whose members are part of the class on whose behalf the action was brought. The trial court found that those nurses are not “public officials or employees” within the meaning of those terms as used in the Act.

If “overbroad” were taken to mean, therefore, that the Legislature did not include this Association in its definition of “public official,” the trial judge was correct, for § 2(k) includes “any elected official . and any person appointed under state, county, or municipal law to an office where . . . such person has . authority for the receipt or expenditure of public funds . . . and any boards, commissions, committees, authorities or councils having jurisdiction with respect thereto. . . .” The Alabama State Nurses Association, having been found by the trial court not to be such public officials, does not fall within the ambit, and the Ethics Commission had no statutory authority to impose the Act’s provisions upon its membership. Such a lack of authority, however, does not establish that the definition of those to whom the Act was to apply was vague. Those persons and organizations to whom the definition applies are readily identifiable. That a statute might be susceptible of misapplication does not necessarily result in its unconstitutionality. Stein v. Howlett, 52 Ill.2d 570, 289 N.E.2d 409 (1972).

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. Although its application by the Ethics Commission with regard to nurses, discussed heretofore, may be far-reaching, this is not a fault of the statute. If there is overbreadth, it is the result of the Ethics Commission’s overreaching.

2. In paragraph (p) of his decree, the trial judge held that certain provisions of Act No. 130 operated as a bill of attainder and thus violated Art. I, Section 10 of the Federal Constitution. He referred to an earlier opinion of the Attorney General of Alabama which viewed §§ 16(a) and 16(h) as bills of attainder. The appellants urge that view upon us here, and argue as well that these sections violate the Equal Protection Clause of the Constitution. Prohibiting any member of the Ethics Commission appointed under Act No. 1056 from again becoming such a member under Act No. 130, § 16(h) clearly violates the Equal Protection Clause, for while that clause does not prohibit a state from treating different classes of people in different ways, the classification must be a reasonable one, having a substantial relation to the object of the legislation, and not constituting an arbitrary distinction. See Montgomery County v. Walsh, 274 Md. 502, 336 A.2d 97 (1975). We can discern no reasonable relationship between this membership prohibition and the purpose of this legislation as expressed in § 1. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). Setting out this particular class of persons for the special treatment of utter disqualification tends to effect their disapprobation, but without any relationship to the broad principles of proper democratic government espoused in this Ethics bill. Clearly, by this prohibition public officials are not rendered independent, government decisions are not more properly channeled, public office is not less used for private gain, public confidence in governmental integrity is not increased, conflicts of interest are not thereby reduced, nor are the best qualified encouraged to serve the government, as the Act provides.

Having found § 16(h) offensive to the constitutional mandate of equal protection, we find it is unnecessary to consider the question of its attaintive character.

The invalidity of § 16(h) does not necessarily render the appointive section, § 16(a), invalid. Indeed, the Legislature has included within the terms of Act No. 130 a severability clause, § 30. Such a clause is persuasive authority that the Legislature intended the valid portion to survive. Mitchell v. Mobile County, 294 Ala. 130, 313 So.2d 172 (1975). As stated in 82 C.J.S. Statutes § 93, pages 155, 156:

“ . . .A statute may be unconstitutional in part and yet be sustained with the offending part omitted, if the paramount intent or chief purpose will not be destroyed thereby, or the legislative purpose not substantially affected or impaired, if the statute is still capable of fulfilling the apparent legislative intent, or if the remaining portions are sufficient to accomplish the legislative purpose deducible from the entire act, construed in the light of contemporary events.
[t]he invalidity of a part of a statute does not render the remainder invalid where enough remains, after discarding the valid part, to show the legislative intent and to furnish sufficient means to effectuate that intent. . . . ”

This view finds support in our law. Hamilton v. Autauga County, 289 Ala. 419, 268 So.2d 30 (1972). It seems obvious that by enacting Act No. 130 as an amendatory act, the Legislature wished to terminate the offices of Ethics Commissioners created by Act No. 1056 and create new offices with a different method of selection. Such action was within the Legislature’s power, for it may abolish any office it creates without infringing upon the rights of the officer affected. Heck v. Hall, 238 Ala. 274, 190 So. 280 (1939); Hard v. State, 228 Ala. 517, 154 So. 77 (1934). This is precisely what was accomplished by the enactment of § 16(a) of Act No. 130 which superseded § 17 of Act No. 1056. Under § 16(a), initially-appointed members cannot succeed themselves as under § 17. Other changes concern the method of appointment and the date on which their terms of office begin. There is nothing within the provisions of Act No. 130 which suggests that the Legislature would not have enacted § 16(a) without § 16(h); we may presume that having created the five-member Commission, the Legislature acted reasonably by providing for its selection. Certainly, § 16(a) may be given effect without dependence upon § 16(h), since, as we have shown, they are independent of one another. Hamilton v. Autauga County, supra.

Having had their offices legally abolished by the enactment of Act No. 130 the incumbent Ethics Commissioners became de facto officers because they had possession of public offices and were exercising the function of those offices. Alabama Code, Tit. 41, § 2 (Recomp.1958) declares that:

“The official acts of any person in possession of a public office, and exercising the functions thereof, shall be valid and binding as official acts, in regard to all persons interested or affected thereby, whether such person be lawfully entitled to hold office or not, and whether such person be lawfully qualified or not; but such person shall be liable to all penalties imposed by law for usurping or unlawfully holding office, or for exercising the functions thereof without lawful right, or without being qualified according to law.”

Because of the invalidity of § 16(h), the de facto Commissioners may be considered with other “fair, equitable citizen[s] . of high moral character” for appointment to the new Commission under § 16(a) whose appointments were authorized to be made from September 1, 1975. Until these appointments are made, they continue as de facto officers under their original appointments.

3. Plaintiffs below challenged the constitutionality of § 2(k) of Act No. 130 because the section is based on a population classification which they contend has no reasonable relationship to the purpose of Act No. 130. Because of that deficiency, they contend, the entire Act is unconstitutional as a local Act violating Sections 106, 110 and 111 of the Alabama Constitution of 1901.

Often this Court has declared acts passed as general acts to be local in nature, and thus unconstitutional when the act rested upon a single minimum population dividing line classification such as the 15,000 population mark at bar. City of Birmingham v. Moore, 248 Ala. 422, 27 So.2d 869 (1964); Nelson v. State, 255 Ala. 141, 50 So.2d 401 (1951); McDowell v. Columbia Pictures Corp., 281 Ala. 438, 203 So.2d 454 (1967). The decisions stemmed from conclusions by this Court that the purposes of the acts involved were not reasonably related to the differences in population created by the dividing lines of minimum population. Couch v. Rodgers, 253 Ala. 533, 45 So.2d 699 (1950) citing Reynolds v. Collier, 204 Ala. 38, 85 So. 465 (1919). In City of Birmingham v. Moore, supra, an act was passed to provide clearance and renewal housing projects for cities with a population of over 300,000. The trial court had held the act invalid as repugnant to § 106 of the Alabama Constitution of 1901. In considering the constitutionality of the Act, we consulted §§ 106, 110 and 111 of the Constitution of Alabama 1901. Section 106 provides basically that “no local, special, or private law shall be passed on any subject without giving the .notice as there prescribed, and makes it the mandatory duty of the courts to declare the same void if the journals do not affirmatively show that it was passed in accordance with the provisions of the section.” City of Birmingham v. Moore, supra, 248 Ala. at page 423, 27 So.2d at page 870. Section 110 was consulted because it contains the legislative definition of general and local laws; Section 111 deals with prohibition of amendments which would change the nature of a general law such that it would become a special, private or local law.

In rendering the Act unconstitutional this Court noted the following in Moore, supra, at pages 423, 424, 27 So.2d at page 870:

“However, the conditions justifying such classification are equally well established by our cases. The difference in population must be substantial, and the classification must be made in good faith and must be reasonably related to the purpose to be effected by the act. If these conditions exist, the fact that at the time the law may be applicable to only one political subdivision of the State will not suffice for its condemnation. On the other hand, if the classification is not in good faith, bears no reasonable relation to the difference in population upon which it rests in view of the purpose to be effected by such legislation, and was arbitrarily fixed, the law will be condemned as local, and as having been passed merely under the guise of a general law in violation of the Constitution. (Citations omitted.)”

It is our determination that a portion of § 2(k) provides no rational relationship to the purpose of Act No. 130, and therefore, cannot be upheld as a general law. (It cannot be maintained as a local law because of noncompliance with the notice sections, Art. 6, Section 106, Alabama Constitution of 1901.) As Justice Lawson said in Moore, supra:

“The act before us cannot survive the test, heretofore stated, . . . Judicial ingenuity would exhaust itself in the effort to find any rational basis for the classification it presents. . . . ”

The purpose of Act No. 130 is summarized in its § 1(d): “ . . .to implement these objectives of protecting the integrity of all governmental units of this state . .” (Emphasis supplied.) Yet, rather than applying the Commission’s formula of financial disclosure to all employees in the state, county and municipal governmental units, the Legislature, in part of § 2(k) defined some of the “Public officials and employees” to which disclosure applied as the following:

“ . . . 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. . . . ”

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

Without this invalid portion, the remainder of the public official definition in § 2(k) not only is without unreasonable classification but well within the purposes of the Act. What we have stated in reference to the severability of § 16(a) applies with equal force to the viability of the remainder of § 2(k). Separate amendatory provisions and exceptions have been upheld even when unconstitutional provisions which they contain were stricken from them. Jardine v. Superior Court, 213 Cal. 301, 2 P.2d 756 (1931); 16 Am.Jur.2d, § 184. Accordingly, the remaining definition of “public official” in § 2(k) of Act No. 130 remains in effect.

4. The fourth issue raised is whether Act No. 130 was so altered or amended during its passage as to change its original purpose in violation of Section 61, Alabama Constitution of 1901. It was not so changed in our judgment. The purpose of House Bill 240 was simply to pass a bill which could be titled “Ethics Legislation.” By amendment or substitution, the Senate enlarged that legislation. The result was Act No. 130. Such change or substitution did not affect the purpose of the bill. State v. Buckley, 54 Ala. 599 (1875); Harrison v. Gordy, 57 Ala. 49 (1876); Hall v. Steele, 82 Ala. 562, 2 So. 650 (1886).

As a general rule of statutory interpretation, Section 61 is deemed complied with unless the contrary is shown with certainty. State v. Buckley, supra; Rogers v. Garlington, 234 Ala. 13, 173 So. 372 (1937); Ex parte Rice, 265 Ala. 454, 92 So.2d 16 (1957). After careful examination of the bills themselves, the briefs, and after oral argument we feel that Section 61 was complied with. The purpose of Act No. 130 was not so altered as to bring the taint of unconstitutionality to all of its sections not heretofore stricken.

5. The final issue concerns the decision of the trial judge granting a temporary restraining order without notice to the opposing parties. Rule 65(b), ARCP, authorizes such action in some instances. We can ascertain no damage accruing to the adverse parties as a result of the trial court’s action in this case, nor was damage claimed in argument or brief.

In our review of this case we have addressed ourselves only to the constitutional issues raised.

AFFIRMED IN PART; REVERSED IN PART.

All the Justices concur.


source: Caselaw Access Project

author: MADDOX, Justice. BLOODWORTH, Justice

license: Public Domain

text:
    STATE of Alabama on the relation of Steve SUITTS v. Donald COMER et al.
    SC 1757.
    Supreme Court of Alabama.
    Sept. 24, 1976.

      Steve Suitts, pro se.
    William J. Baxley, Atty. Gen., and William T. Stephens, Asst. Atty. Gen., for the appellees.
   MADDOX, Justice.

This is another challenge to the Alabama Ethics Commission. The facts surrounding the controversy are set forth in Comer v. City of Mobile et al., Ala., 337 So.2d 742 (decided September 24, 1976).

In Comer, this Court held that section 16(h) and a portion of section 2(k) of Act No. 130 of the 1975 Session of the Alabama Legislature to be unconstitutional. This suit challenges the authority of the incumbent members of the State Ethics Commission to continue to serve as members of the Commission. We hold here, as we did in Comer, that the incumbent Ethics Commissioners are legally authorized to hold their positions and continue as de facto officers until Commissioners are appointed and confirmed as provided under section 16(a) of Act No. 130.

On authority of Comer, we decide that the judgment of dismissal by the trial court is due to be affirmed.

In view of the fact that we are affirming the judgment of the trial court, it is unnecessary for us to consider the State of Alabama’s motion to dismiss Suitts’ appeal on the ground that Suitts lacked standing to perfect the appeal.

AFFIRMED.

HEFLIN, C. J., and FAULKNER, JONES, ALMON, SHORES and BEATTY, JJ., concur.

BLOODWORTH and EMBRY, JJ., concur specially.

BLOODWORTH, Justice

(concurring specially.)

I would grant the motion to dismiss Suitts’ appeal because he is not a member of the Alabama Bar and therefore lacks “standing” to prosecute this appeal. A private individual does, of course, have the right to represent himself when he is a party. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). He does not have the right to represent others — as Suitts’ attempts to do in appealing the dismissal of his quo warranto action. Moreover, I doubt that Suitts has “standing” because of a lack of proper legal “interest” in the subject matter of the suit.

EMBRY, J., concurs.


author: SHORES, Justice.

text:
    Hilton R. PARRISH v. R. J. STEMBRIDGE, as Judge of Probate of Houston County, Alabama, et al.
    SC 1855.
    Supreme Court of Alabama.
    Sept. 24, 1976.

      J. R. Herring, Dothan, for appellant.
    Richard H. Ramsey, III, Dothan, for ap-pellees.
   SHORES, Justice.

This action was brought to test the constitutionality of Act No. 936, 1975 Regular Session of the Alabama Legislature, page 1955, approved October 8, 1975. The trial court granted the defendants’ motion for summary judgment and the plaintiff appealed.

Act No. 936 is an act of local application and provides for the creation of a license commissioner in Houston County and the abolition of the office of license inspector. Title 51, § 835, Code, is a general law and establishes the office of license inspector for each of the counties within the state. Act No. 936 abolishes that office in Houston County and replaces it with the office of license inspector. The plaintiff contends that, since the act is a local law, it is repugnant to Section 105 of the Constitution of Alabama 1901, which provides:

“No special, private, or local law, except a law fixing the time of holding courts, shall be enacted in any case which is provided for by a general law, or when the relief sought can be given by any court of this state; and the courts, and not the legislature, shall judge as to whether the matter of said law is provided for by a general law, and as to whether the relief sought can be given by any court; nor shall the legislature indirectly enact any such special, private, or local law by the partial repeal of a general law.”

This court has construed this section of the Constitution on several occasions. Its purpose has been stated as follows:

“. . . this provision of the Constitution was intended to prohibit the enactment of special,'private, or local laws to meet the purposes of particular cases which may be accomplished by proceedings outside of the Legislature under the provisions of general statutes enacted to meet all cases of their general character. . ” Dunn v. Dean, 196 Ala. 486, 495, 71 So. 709, 714 (1916).

To the same effect are Hall v. Underwood, 258 Ala. 392, 63 So.2d 683 (1953), and City Council of Montgomery v. Reese, 149 Ala. 188, 43 So. 116 (1906).

Section 105 has not been held, however, to prohibit local legislation merely because the general law deals with the same subject matter. In State v. Steele, 263 Ala. 16, 19, 81 So.2d 542 (1955), this court said:

“We have so many cases on the subject we shall not attempt to review each of them. The case of Standard Oil Co. v. Limestone County, 220 Ala. 231, 124 So. 523, 526, contains a statement whose essence seems to extend through all the eases, variously expressed, that: ‘It is fully settled that this section does not forbid local legislation on subjects not prohibited by section 104, merely because a general law deals with the same matter. If, in the judgment of the Legislature, local needs demand additional or supplemental laws substantially different from the general law, the Legislature has power to so enact.’ . .

The question is whether the local act and the general act contain substantive differences, not in detail merely. City Bank and Trust Co. v. The State, 172 Ala. 197, 55 So. 511 (1911).

Under Title 51, § 835, Code, a license inspector is established for each county. He is paid a salary by warrant of the Alabama State Comptroller and compensated for service of citations and for making arrests. Two-thirds of the costs and penalties collected by the license inspector are paid to the State Treasury and one-third is remitted to the respective county. Under Act No. 936, the license commissioner of Houston County is paid a salary from the general fund of Houston County; and all penalties collected by the commissioner are returned to the general fund of the county.

Additionally, the method of selecting the officers is different under the two enactments. The license inspector created by Title 51, § 835, is selected by appointment. Except for the initial appointment, Act No. 936 provides that the license commissioner of Houston County will be selected by general election in the county, every four years.

We believe these divergencies amount to substantive differences in the two statutes.

We cannot now depart from settled construction of Section 105 of the Constitution. When it is applied to this case, it means that since local Act No. 936 is materially different from the general statute, Title 51, § 835, in the manner of providing for a licensing officer for Houston County, it is not violative of Section 105. As has often been said, when, in the judgment of the legislature, local needs demand additional or supplemental laws substantially different from the general law, the legislature has the power and authority to enact them. Van Sandt v. Bell, 260 Ala. 556, 71 So.2d 529 (1954).

The judgment appealed from is, therefore, affirmed.

AFFIRMED.

All the Justices concur.


author: MADDOX, Justice. JONES, Justice

text:
    Grover L. ELLISON and Arnold Brent Ellison v. Rudy ABBOTT et al.
    SC 1979.
    Supreme Court of Alabama.
    Sept. 24, 1976.
    J. Richard Carr, Gadsden, for appellants.
    Merrill, Porch, Doster & Dillon, Anniston, for appellees.
   MADDOX, Justice.

The sole issue: Is Jacksonville State University a state instrumentality and therefore immune from suit?

Plaintiff, Arnold Brent Ellison, signed a pre-enrollment application for a grant-in-aid baseball scholarship with Jacksonville State, and was awarded a scholarship; however, the scholarship was withdrawn because Ellison’s application was filed late in the Commissioner’s office. Ellison sued Jacksonville State, and agents for Jacksonville State, for breach of contract. Jacksonville State filed a motion for summary judgment, claiming immunity from suit under Section 14 of the Constitution of Alabama, 1901. The court granted the motion. We affirm.

Section 14 of the Constitution provides “That the State of Alabama shall never be made a defendant in any court of law or equity.” One of the early cases applying this section to state universities is Cox v. Board of Trustees of the University of Alabama, 161 Ala. 639, 49 So. 814 (1909). It referred to two previous decisions of the Supreme Court and stated:

“The cases above referred to settle the law in this state that public institutions created by the state purely for charitable or educational purposes are a part of the state, or a mere agency of the state; that the property of such corporations is really and in fact the property of the state, and that they are not subject to suit under section 14 of the Constitution of 1901, which prohibits the state from being made a party defendant in any court of law or equity, although the charters and acts of the Legislature incorporating such institutions expressly provide that they may sue and be sued as an individual. . . ."

Another case on the same point is Denson v. Alabama Polytechnic Institute, 220 Ala. 433, 126 So. 133 (1930). In that decision the court cited the Cox ease and said:

“. . . Such state institutions are a part of the state, and their property is in fact the property of the state. They are held to be immune from suits under the terms of our Constitution prohibiting suits against the state, though the charter may expressly provide otherwise. . . ."

The most recent case dealing with governmental immunity of a state institution is Hutchinson v. Board of Trustees of the University of Alabama, 288 Ala. 20, 256 So.2d 281 (1972).

We conclude that Jacksonville State University is an instrumentality of the State of Alabama, and is therefore immune from suit.

AFFIRMED.

HEFLIN, C. J., and BLOODWORTH, FAULKNER, ALMON, SHORES and BEATTY, JJ., concur.

EMBRY, J., concurs in the result.

JONES, J., dissents.

JONES, Justice

(dissenting).

I cannot agree to extend the State’s constitutional immunity to Jacksonville State University. It is a public or quasi-public corporation created by the legislature and derives a portion of its financial support from the State. But this does not equate Jacksonville State University with the State of Alabama for purposes of immunity-

I respectfully dissent.


text:
    Namon PETTWAY et al. v. PEPSI COLA BOTTLING COMPANY, INC.
    SC 2000.
    Supreme Court of Alabama.
    Sept. 24, 1976.

      Chestnut, Sanders & Sanders, Selma, for appellants.
    Philip Henry Pitts, Selma, for appellee.
   BEATTY, Justice.

The Pepsi Cola Bottling Co., Inc. filed a complaint against Bobby Wayne Pettway, the driver, and Namon Pettway, the owner, alleging negligence and wanton conduct in the operation of an automobile which collided with and damaged the plaintiff’s delivery truck. On defendant’s motion, George Harris, Jr., the truck driver, was added as a party plaintiff. Later, a passenger in the automobile, Jerry Pettway, brought a pro ami complaint in negligence against Pepsi Cola and Harris.

In their answer, the defendants, Bobby Wayne Pettway and Namon Pettway, denied negligence or wantonness on their parts, pleaded contributory negligence of plaintiffs, and counterclaimed against plaintiffs for personal injuries and property damage. In their answer to Jerry Pett-way’s complaint, Pepsi Cola and its driver, Harris, denied negligence. In their answer to the counterclaim of Bobby Wayne Pett-way and Namon Pettway, Pepsi Cola and Harris pled the general issue and contributory negligence.

The cases were consolidated for jury trial, and at that stage there were two plaintiffs, Pepsi Cola and Harris, both allegedly involved in the collision, and three defendants, Bobby Wayne, the driver, Jerry, the passenger, and Namon, the owner of the automobile. After both sides had rested, Pepsi Cola and Harris filed a written motion for a directed verdict against all defendants on the ground of negligence on the part of Bobby Wayne Pettway. During argument on this motion counsel for the defendants, in referring to the evidence, stated: “I think we’re entitled to make a motion for directed verdict also.” At the conclusion of the argument on the motions the trial court ordered a directed verdict in favor of each side, i. e., in favor of Bobby Wayne Pettway and Namon Pettway in the action of Pepsi Cola and Harris against them; in favor of Pepsi Cola and Harris in the counterclaim against them by Bobby Wayne and Namon Pettway; and in favor of Pepsi Cola and Harris in the pro ami action brought against them by Jerry Pett-way.

Motions for a new trial were filed by Namon Pettway and Jerry Pettway. In his motion, Namon Pettway alleged that the directed verdict was ordered against him on the ground of contributory negligence which, he contended, was not in issue in his counterclaim. Jerry Pettway’s motion raised the same ground for his original action. Both motions were denied and Na-mon and Jerry Pettway appealed to the Court of Civil Appeals. Thereafter, the appeal was transferred to this Court.

In their brief the Pettways complain of the trial court’s action granting a directed verdict in their favor on its own motion, and further point out that Rule 50, ARCP requires a statement of the specific grounds in support of such a motion when made. While the latter point is a correct position under the express language of the rule, Rule 50(a), we do not believe that what was done here violated that requirement. The motion for a directed verdict may be oral even though the better practice dictates a written motion for the sake of clarity and to prevent misunderstanding. U. S. v. 363 Cases, More or Less, Mountain Valley Mineral Water, D.C.Ark.1956, 143 F.Supp. 219. Moreover, the colloquy between the trial court and the lawyers on the plaintiff’s motion for directed verdict reveals that the Pettways’ counsel himself sufficiently asked for a directed verdict and pointed out the grounds for this motion, although in disjointed fashion:

“THE COURT: The evidence appears to me that both of them were negligent. Now we have a big truck that is bearing down on you and unfortunately I’ll say this for the record too, you get out on the road this day and age and you meet a big truck, particularly those big old tractor-trailer rigs that weigh close to 100,000 pounds and they don’t just take their half of the road, but they usually take the other part also. Now in my estimation, if you see that happen, if you see a truck coming towards you and you don’t give him the road, you’re negligent. If one were approaching me, I would give him the whole road if there’s any way to get in that ditch without killing myself, but it looks like to me what we’re faced with here is a situation where, according to the best light I can put on the evidence in favor of your client, is that the truck’s left front wheel, which is where contact was made, was on the line. There’s no way the accident could have happened had theirs not been on the line too because the left front of both vehicles collided. Isn’t that correct?
“MR. SANDERS: Yes, sir, but they also testified they were on their side of the road at all times. That again goes to the scintilla.
“THE COURT: I don’t think so. They testified that they were at all times on their side of the road, true, which is a statement in their own interest which, of course, the jury can believe or not believe, but I’m saying that from their own lips they say that the truck was, the Pepsi Cola truck was never over in the south lane, that at worst, it was on the line and I say that under those circumstances, how can this Court not say that the Defendants were contribu-torily negligent. Let’s assume that the Pepsi Cola truck is negligent. You’ve still got a question of contributory negligence on the part of the Defendant. Now that’s because the accident could not have happened if they were not also on the line.
“MR. SANDERS: Judge, let me bring this to your attention. If the tires are on the line, that means that some portion of the truck is over.
“THE COURT: Yes, sir. Now let’s be realistic, Mr. Sanders. If they just barely grazed each other, do you think the automobile that they were in would have been knocked backward and both of them knocked unconscious? No way.
“MR. SANDERS: Your Honor, he testified that what happened was that it hit the front ’ portion and it ran into the other portion that was sticking out and that’s what knocked it back. Mr. Harris testified to that.
“MR. PITTS: The truck is sitting like this and it ran down the cab and hit the other portion and bounced back.
“MR. SANDERS: Yes, sir, Judge, but he testified that it hit the other portion and bounced back, that it just glanced and hit the other portion and bounced back and that was from his own mouth. I just don’t believe this is a case for a directed verdict.
“MR. PITTS: I believe there is evidence in the case that—
“MR. SANDERS: (Interposing) The jury might very well come back — I don’t think it’s a case to be taken away from the jury.
“MR. PITTS: If there was ever a case, this is it. There’s no showing whatsoever of any negligence on this man driving that truck.
“THE COURT: Well this is the position I’m in. If the jury came back in with a verdict in favor of the Defendants against this Plaintiff, I would have to set the verdict aside and in view of that, why should I let it go to the jury in the first place?
“MR. SANDERS: Because there’s a scintilla of evidence.
“THE COURT: No, there is an inference built on an inuendo which doesn’t amount to a hill of beans. Just because someone is hurt and because someone comes into Court and says that he was way over on his side of the road and this man was on the line, I don’t see where you’ve got anything. I don’t see where you’ve got anything.
“MR. SANDERS: Judge, take this case most strongly against the movement. [sic] I would say that the verdict, the motion for directed verdict should be granted, but by the same token, I don’t think there should be any finding of damages in favor of the Plaintiff. I think that the evidence, if it shows that the verdict should be directed, certainly it shows contributory negligence because you’ve got to take the evidence as it stands most strongly against the movement, [sic] I think we’re entitled to make a motion for directed verdict also.
“THE COURT: Well, what I’m saying is that the verdict of this Court would have to be that the parties would be left where they were found. There would be no finding of damages in favor of either party.
“MR. PITTS: Judge, there is a scintilla of evidence as far as negligence is concerned on their side.
“THE COURT: Well, it would have to go to the jury and—
“MR. PITTS: (Interposing) On my portion. I’m not asking you to direct a verdict in my favor, saying the jury must find for them, for Pepsi Cola Bottling Company, I’m saying the case can go to the jury though on the question of their damages against them.
“THE COURT: You’re asking the Court to direct a verdict and you’re asking the Court to enter a verdict.
“MR. PITTS: You’ve got two separate cases, Judge. You’ve got to get that in mind also.
I’m asking for a directed verdict on the counterclaim on the action against these parties back against Pepsi Cola Bottling Company and Goerge Paul Harris and then on a separate suit back.
“MR. SANDERS: Judge, I might at this point call to the Court’s attention, since there are four different suits here, that—
“THE COURT: (Interposing) Three. There’s no counterclaim in Jerry Petta-way’s suit.
“MR. SANDERS: But there’s a counterclaim for Namon Pettaway. A counterclaim for Bobby Wayne Pettaway and a straight claim for Jerry Petta-way and a straight claim for Pepsi Cola Bottling Company.
“MR. PITTS: I’ll submit to you that what you say, while I disagree with you, if you want to take the whole case away from the jury, both sides of it, that suits me just fine.
“THE COURT: When it comes to the Court on a motion of directed verdict, I consider the evidence as it pertains most strongly against the party making the motion and the evidence most strongly against the party making the motion is, that would be that both parties were guilty of negligence. I’ll so find that.”

Appellants also question the propriety of granting a directed verdict in favor of the plaintiffs/cross defendants, contending that there was evidence of negligence on the part of the Pepsi Cola truck driver which required submission of the case to the jury

It is axiomatic that a civil ease must go to the jury if the evidence, or any reasonable inference arising therefrom, furnishes a mere gleam, glimmer, spark, the least particle, the smallest trace, or a scintilla in support of the theory of the complaint, and when a reasonable inference may be drawn which is adverse to the moving party, the motion is properly refused. Kilcrease v. Harris, 288 Ala. 245, 259 So.2d 797 (1972). If there was a scintilla of evidence supporting the cross-complaint of Na-mon Pettway and the complaint of Jerry Pettway, both alleging negligence on the part of Harris, the truck driver, then these defendants were entitled to have the jury weigh the evidence and decide the question of liability. What was the evidence?

The plaintiffs called three witnesses: Fuller, a state trooper; Maness, a deputy sheriff; and Harris, the co-plaintiff driver.

On direct examination trooper Fuller related his investigation of the accident at the scene, describing the roadway at the site as a fairly sharp curve, locating skid marks left on the north side by the Pepsi Cola truck, and debris, mud, and parts of a vehicle on the north side of the highway (the side on which the Pepsi Cola truck was traveling). In his opinion the point of impact was on that north side. He measured the width of the roadway, “twenty-one foot” (sic), and from the south side to the point of impact, which measured sixteen feet. On cross examination he identified part of the debris as mud from the vehicles which stretched across the road on the south side of the pavement.

Deputy Sheriff Maness testified that he took photographs of the accident and described the positions of the vehicles.

George Harris, Jr. testified that when he first saw the other vehicle it was “fixing to come into the curve,” coming at him, and that he, Harris, was traveling between twenty and thirty-five miles an hour. He was on his side of the road and he “saw he wasn’t going to make the curve, so I started running off the road.” The car hit the (front) side of the truck and came down the cab, struck the side and bounced backward. He was close to a stop when struck, and the Pettway vehicle did not change its course of travel but came straight at him, the point of impact being on the north side.

On cross examination Harris stated that he had already gone into the bigger part of the curve at the time of the accident and had negotiated most of the curve, but he added that he was slowing down for the curve, and “coming into it applying my brakes slightly.” It was a new truck and he was “fairly well used to it.” He had driven it one day before. When he saw the other vehicle it was going “pretty fast,” thirty or thirty-five miles per hour. At the conclusion of Harris’ testimony, plaintiffs rested.

For the defendants/cross complainants and plaintiff Jerry Pettway, Bobby Wayne Pettway testified that he began driving the automobile about a thousand to two thousand feet from the accident site, when he met a Pepsi Cola truck coming into the curve. Bobby stated that he was on his side, and the truck was on his side, about twenty-five or thirty feet away, and “we met right up on the line together.” He stated further that the impact occurred on “my side,” with the left side of his bumper coming in contact with the left side of the truck’s bumper. On cross examination he stated that he tried to slow down to meet the truck, but he conceded that on an earlier occasion he had said that he was going about thirty or thirty-five when he started into the curve, and that he increased his speed, but he “didn’t know what it meant then.” He was “fighting the steering wheel” trying to miss the Pepsi Cola truck. He added that when he first saw the truck it was “in his lane . . . hugging the center line” and “up on the center line on my side” when he hit him. Then, when he hit it, the truck “wasn’t over the center line” but “he was right on the center line.” No portion of the truck was across the center line but was “right up on the center line.” On redirect, Bobby described the truck as being wider in the back than the front, with the front being right on the line and the back wheels two to three feet from the center line “on my side.”

Jerry Pettway, another witness for the defendants and for himself, testified that he had been driving earlier that morning but he had a headache and Bobby Wayne started driving. When they met the truck it “was just about in the curve, all the way in when we just began to go in. The front wheel on the line and this back wheel crossed it sort of crisscross . . . cater-cornered.” He described the location of the car as being on “the right side going towards Boykin,” not on the line or across the line.

Appellant Namon Pettway’s answer and cross-complaint asserted the theories of simple negligence and contributory negligence against Pepsi Cola and Paul Harris, Jr. Indeed, there was no evidence introduced by plaintiffs of any fault, negligence or otherwise, on the part of Namon Pett-way. In his complaint, Jerry Pettway pro ami asserted the theory of simple negligence against Pepsi Cola and Paul Harris, Jr. Again, there was no evidence of any fault of Jerry Pettway. As the record reveals, however, there was a scintilla of evidence on the issue of negligence on the part of Harris, the Pepsi Cola truck driver, for notwithstanding the inconsistencies in the testimony of Harris and Bobby Wayne Pettway, their testimony created a disputed fact with respect to the positions of the vehicles before the collision, their directions, and the point of impact. A jury might have inferred from this evidence that the delivery truck, in negotiating this curve in the road, was in the path of the oncoming Pettway car and in the attempt to avoid the collision struck, or was struck by, that car. Opposite inferences might be entertained also. In either case, defendant is entitled to the benefit of the rule that a question must go to the jury in a civil case if any reasonable inference arising from the evidence furnishes a scintilla in support of his theory. Alabama Power Co. v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975). Issues of negligence are to be determined by the jury, as a general rule. Patterson v. Seibenhener, 273 Ala. 204, 137 So.2d 758 (1962).

For the error in directing a verdict against the appellants, the case is due to be and is reversed and remanded.

REVERSED AND REMANDED.

HEFLIN, C. J., and MADDOX, JONES and SHORES, JJ., concur.


author: HEFLIN, Chief Justice.

text:
    GULF COLLATERAL, INC. v. Edwin W. POWELL.
    SC 2001.
    Supreme Court of Alabama.
    Sept. 24, 1976.

      Jerry W. Jackson, Haleyville, for appellant.
    H. Carey Walker, Jr., Huntsville, for ap-pellee.
   HEFLIN, Chief Justice.

Gulf Collateral, Inc., as assignee of King International Corporation, brings this appeal alleging error on the part of the trial court in granting the motion of defendant Edwin W. Powell to dismiss the case, as well as from an order which denied post-dismissal motions. This court reverses and remands.

Gulf Collateral, Inc., as assignee of King International Corporation, filed a complaint alleging that the defendant Powell was indebted to it for the sum of $27,000, this debt being evidenced by a personal check of the defendant made to the order of King International which had been dishonored due to insufficient funds. The check was attached as an exhibit.

The defendant Powell filed a motion to dismiss the complaint alleging that the plaintiff had failed to qualify to do business in the State of Alabama. An affidavit was filed by defendant Powell which alleged that he had been contacted in the State of Alabama with regard to taking a gambling trip to the island of Aruba and that it was necessary to establish a “line of credit.” He stated in his affidavit that he established a line of credit at the First Alabama Bank in Huntsville. He further stated:

“On November 11, 1974, an airplane was flown into Huntsville, Alabama, which was being chartered or leased by King International Corporation. It departed Huntsville, Alabama with approximately 150 passengers of which a majority were resident citizens of the State of Alabama. We were flown to the Country of Aruba where we remained until November 15. On that date we were flown from Aruba to Miami, Florida, for the Alabama-Miami Collegiate Football Game and then returned to Huntsville, Alabama, by airplane.
“I was approached in the State of Alabama with regard to the gambling trip and any and all agreements entered into with regard to the trip were made in the State of Alabama.”

The attorney for the plaintiff filed an affidavit on information and belief that the trip was arranged by the International Sportsman’s Club and a Mr. Nate Teplis; that said International Sportsman’s Club is not in any way a division of or a part of King International Corporation. He further stated that the check which was the subject of the suit was given in the country of Aruba and not in the State of Alabama and that King International Corporation did not arrange the lines of credit or any other agreement within the State of Alabama.

Following the filing of these affidavits, a hearing was held and the court entered its order granting the defendant’s motion to dismiss on the basis that the plaintiff and the plaintiff’s assignor were doing business in the State of Alabama prior to the date of this suit and in conjunction with the transaction which was made the basis of this suit, without having first qualified to do business in Alabama as required by law. The court recites in its order of dismissal that it concluded that any obligation undertaken by the defendant in regard to the premises of the complaint was, therefore void as a matter of law.

Thereafter, the plaintiff filed post-dismissal motions, designed to reinstate the case, along with an affidavit from Nate Teplis. In the affidavit, Mr. Teplis stated that he, personally, arranged the trip and that he was employed by International Sportsman’s Club, which was neither owned by, nor a subsidiary of, nor an agent for King International Corporation. The affidavit of Mr. Teplis recited all the factual statements contained in the previously filed affidavit on information and belief filed by attorney for plaintiff, along with additional facts. These motions were denied.

The code section which guided the trial court in reaching its decision is Section 21(89), Title 10, Alabama Code 1940 (Recompiled 1958) (Supp.1973) which provides:

“All contracts or agreements made or entered into in this state by foreign corporations which have- not qualified to do business in this state shall be held void at the suit of such foreign corporation or any person claiming through or under such foreign corporation by virtue of said void contract or'agreement * * *”

Defendant Powell contends that the order of the trial court was the equivalent of a summary judgment. Although the defendant does not specifically state this, it is presumed that this contention is based on Rule 12(c) of ARCP which provides that if, on a motion for judgment on the pleadings, matters outside the pleadings are presented and not excluded by the court, then the motion is treated as a motion for summary judgment and governed by Rule 56 of ARCP. This contention overlooks the fact that Rule 12(c) is very specific in stating that this transformation may only occur, “[a]fter the pleadings are closed.” In this case the only pleadings that had been filed were the complaint and the motion to dismiss and thus the defendant’s motion could not be considered as a motion for summary judgment. See Rule 7, Alabama Rules of Civil Procedure; 5 Wright & Miller, Federal Practice and Procedure, §§ 1368, 1369 (1969).

Even if the action of the trial court in denying the post-dismissal motions could be considered a summary judgment, it would still be due to be reversed.

In the record before this court, there are a number of voids. This court cannot determine from the record the following:

(1) Whether or not Gulf Collateral, Inc. or King International Corporation failed to qualify to do business in the State of Alabama (The briefs of the parties are subject to an interpretation that there may have been oral admissions or stipulations that these corporations failed to so qualify, but such facts are not conclusively before this court.);

(2) Whether or not the check of $27,000 had anything whatsoever to do with the gambling trip (The only connection apparent in the record is that the check was given on the island of Aruba.);

(B) Whether or not the check was given in connection with gambling.

From the affidavits we find that there are genuine issues of disputed facts about certain material issues. These issues are as follows:

1. Whether contacts concerning the trip were made in the State of Alabama;

2. Whether any agreement concerning the gambling trip was entered into within the State of Alabama;

3. Whether a line of credit was established with an Alabama bank.

The relationship between the International Sportsman’s Club and King International Corporation is also an issue. Nate Teplis, in his affidavit, stated that the International Sportsman’s Club is neither owned by, nor a subsidiary of, nor an agent for King International Corporation. He stated that he, personally, arranged for the trip and that he was employed by the International Sportsman’s Club. His affidavit also states that King International Corporation furnished air transportation out of Alabama for the trip and that Powell stayed at the King International Corporation Hotel in Aruba. The only connection, which is mentioned by Powell in his affidavit, with King International Corporation in this entire affair, is that the plane that picked him up in Huntsville to carry him to Aruba was chartered or leased by King International Corporation. The facts contained in the record are insufficient to establish conclusively that King International Corporation was the contracting party with Powell as to the trip to Aruba. From aught that appears, King International Corporation could have had an independent contractual relationship with International Sportsman’s Club. Moreover, some of the statements found in the affidavits are in conflict.

Our reversal of the order of dismissal is not influenced by a supposition that the trial court treated the motion to dismiss as though the case was in a summary judgment posture.

This is true because this court has stated many times that a complaint shall not be dismissed on the grounds that it fails to state a claim, unless there is no doubt that the plaintiff cannot prove a set of facts which would entitle him to relief. See e. g., Watwood v. R. R. Dawson Bridge Co., 293 Ala. 578, 307 So.2d 692 (1975); Bowling v. Pow, 293 Ala. 178, 301 So.2d 55 (1974).

The defendant-appellee has not convinced this court that the plaintiff-appellant cannot prove a set of facts upon which it would be entitled to relief. Therefore, this case is reversed and remanded.

REVERSED AND REMANDED.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.

      . See Rule 56(e) ARCP for requirements of summary judgment affidavits.

      . See Allenberg Cotton Co. v. Pittman, 419 U.S. 20, 95 S.Ct. 260, 42 L.Ed.2d 195 (1974) and Kentucky Galvanizing Co. v. Continental Casualty Co., 295 Ala. -, 335 So.2d 649 (1976) for possible influencing considerations in the interpretation or application of this statute.


author: HOLMES, Judge.

text:
    Nora Ann PARSONS v. John Wayne PARSONS and William Henry Parsons and Nancy Parsons, Intervenors.
    Civ. 781.
    Court of Civil Appeals of Alabama.
    Sept. 1, 1976.
    Rehearing Denied Sept. 30, 1976.

      George P. Seabourne and William M. Dawson, Jr., Birmingham, for appellant.
    Lee Bains, Bessemer, for intervenors-ap-pellees.
   HOLMES, Judge.

This is a child custody case. The Circuit Court of Jefferson County removed the child from the custody of appellant-mother, Nora Ann Parsons, and placed him in the custody of appellees-intervenors, William Henry Parsons and Nancy Parsons. Mr. Parsons is the paternal uncle of the child. The mother prosecutes this appeal.

The dispositive issue for our determination is whether the learned trial court abused its discretion by its transfer of custody. We are also called upon to determine if the trial court erred to reversal by not granting the mother’s motion for rehearing grounded on bias. We find no such abuse of discretion or error to reversal, and affirm.

The pertinent facts as revealed by the record are as follows:

Appellant-mother was married to John Wayne Parsons and one child, Barry Parsons, was born of their union.

The mother was divorced from John Wayne Parsons, hereinafter referred to as the father, on March 12, 1975, by decree of the Circuit Court of Jefferson County. This decree granted custody of the minor child, Barry Parsons, to the mother.

On March 21, 1975, the Circuit Court of Jefferson County was notified that the father had been shot to death by an acquaintance of the mother while in the presence of the mother. The court then entered an order vesting temporary custody of the minor child in the father’s brother, William Henry Parsons, appellee herein, until a hearing could be held on the matter of the shooting.

Appellees, William Henry and Nancy Parsons, subsequently filed with the court a motion to intervene in the cause and sought permanent custody of the minor child Barry Parsons. Appellees were allowed to intervene, and a full hearing on the matter was held on April 30, 1975.

At the hearing, the mother testified that she first met one James Donald Yerby on March 7, 1975, and did not see him again until the afternoon of March 12, the date of her divorce. The next day, the father met Yerby and told the mother that he would kill Yerby if she did not tell him to leave her alone.

The mother and Yerby continued to associate with each other almost every day through March 20. On that date, they decided to drive to a nearby lake to visit a cousin of the mother. When they had almost reached their destination, a truck driven by the father fan their car off the road. The father exited from the truck, opened the door of their car, and began striking Yerby. The mother then ran for help to a nearby house. While she was fleeing the car, she heard three gunshots. Upon reaching the house, she telephoned for an ambulance, and returned to the car to find that the father had been shot and was seriously wounded. The father died before the ambulance arrived at the scene, and Yerby was taken into custody by law enforcement officers and charged with murder.

The trial judge specifically asked the mother and Yerby whether they intended to associate with each other in the future, and if they planned to marry. The court emphasized the importance which it placed on these questions. Yerby and the mother both answered these queries in the negative.

The trial judge upon conclusion of the hearing entered an order which provided as follows:

“This cause coming on to be heard, the Court allows the Petition of Intervention of William Henry Parsons and Nancy Parsons, seeking the custody of the child, Barry, and the evidence being heard orally in open court between the mother, Nora Ann Parsons, and the Intervenors, the Court finds that the Intervenors have a fine home and are upright, honorable people who would give the child an excellent home. But the first claim to the child is that of the mother, who must receive the custody unless the Court is reasonably satisfied by the evidence that she is unfit to have the child. The Court finds that the mother and Don Yerby have both testified under oath that they have no intention whatever of seeing one another again or of marrying one another, and under these circumstances the Court finds that the claim of the mother for custody is sustained, and that it is in the best interest of the child that the custody be vested in the mother.”

On September 15, 1975, the appellees filed with the trial court a petition to modify the above decree vesting custody of Barry Parsons in the mother. The alleged ground for the modification was that the mother had married Yerby on September 12.

At the hearing held on this petition it was established, inter alia, that the mother and Yerby had indeed married as alleged, and that the criminal charges filed against Yerby for the death of the father had been dropped due to the mother’s testimony that Yerby had acted in self-defense. Both the mother and Yerby testified that at the time of the earlier hearing they had no intention of continuing their relationship, but rather that it had simply developed approximately two months after the hearing, in spite of their former intention.

The evidence introduced at this hearing showed that Yerby had previously been divorced twice. His police record showed that he had been convicted five times of offenses pertaining to drunkenness — three convictions for reckless driving, all reduced from charges of driving while intoxicated, and two convictions of public drunkenness. The most recent offense took place in 1974. His medical.records indicated that he had a history of alcohol and drug abuse. Additionally, he had in 1970 been committed by the federal government to a federal rehabilitation facility as a narcotics addict.

Yerby admitted all these matters when questioned by counsel. However, he insisted that he had since rehabilitated himself and was no longer involved with drugs and alcohol. In this context, it is pertinent to note that Yerby volunteered for the federal narcotics therapy program.

Appellant-mother testified that Yerby was an exemplary father to the minor child. Further testimony was that Yerby is now a member in good standing in a local church which he attends regularly with the mother and child.

The minor child’s first grade schoolteacher testified that he is in all respects a normal, healthy, well behaved little boy, who is apparently quite intelligent. She further testified that a lapse in his normally high calibre of schoolwork occurred shortly after the mother and Yerby were married, but that this was soon rectified.

The appellees testified that it would not be in the child’s best interest to live with Yerby. At this point, it is appropriate to npte that appellees are apparently in all respects qualified to have custody of the child. They are financially able to provide for him, and testified that they love him. Additionally, the - child is no stranger to the appellees. The appellees and the child’s grandparents live two houses apart. The child stayed with the grandparents during the day for the first two years of his life and variously thereafter, and has seen a great deal of the appellees.

At the conclusion of these proceedings, the trial judge awarded custody of Barry Parsons to the appellees. In his custody order, the trial judge specifically found that the mother and Yerby wilfully testified falsely at the first hearing- concerning their intention not to associate with one another and not to marry. His order recited that the best interest of the child, considering all the evidence, required this action.

As noted' earlier, the mother now appeals the order of the trial judge to this court.

This court is now confronted with a most difficult decision. The argument that the custody of the child should be vested in the appellees, based as it is on Yerby’s background and having killed the father, is persuasive but not compelling. Similarly, the contention that the mother should retain custody of the child, in the absence of any evidence of presently existing detriment to Barry Parsons, is also persuasive.

It is the tragedy of child custody cases that some party must always suffer. Parties whose relationships have deteriorated, often into discord and malice, frequently retain out of the emotional wreckage of their lives only their love for the child. One party must then lose the object of that love.

Such is indeed a grievous and pitiable state of affairs. The judge who must render a decision in such cases, be he on the appellate or trial level, truly knows the meaning of anguish.

It is a settled and salutary principle of law that a trial judge in a domestic relations case will not be reversed by an appellate court save for plain and palpable error. Mullinax v. Mullinax, 56 Ala.App. 676, 325 So.2d 185; Dorminy v. Dorminy, 51 Ala.App. 70, 282 So.2d 686. While the provisions of a custody decree will not be altered unless there is a showing of changed circumstances sufficient to justify the alteration, Snead v. Snead, 279 Ala. 344, 185 So.2d 135, the determination of such changed circumstances rests within the sound discretion of the trial judge. See 8 Ala.Dig. Divorce <©=>312.6(4). Plain and palpable error constituting an abuse of discretion only exists where the reviewing court can draw no reasonable inference from the evidence that the decree below is correct. Northcutt v. Northcutt, 45 Ala.App. 646, 235 So.2d 896.

The pre-eminent principle in child custody cases is, of course, the welfare and best interest of the child. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707; Linderman v. Linderman, 49 Ala.App. 662, 275 So.2d 342.

Applying these principles to the case before us, we cannot say that the learned trial judge erred to 'reversal by his award of custody to the appellees. Here, the trial judge twice conducted hearings involving the same parties; Yerby had killed the father of Barry Parsons, which fact would certainly not facilitate the upbringing of the child by Yerby; Yerby’s past record is somewhat blemished; Yerby has been twice divorced; and the trial judge not unreasonably found that both the mother and Yerby had testified falsely to him. We are aware that a mother is presumed best qualified to have custody of a small child. Burleson v. Burleson, 269 Ala. 637, 114 So.2d 887. However, considering the whole of the evidence set out above, and the aforesaid principles of law, we cannot say as a matter of law that the trial court’s action was not in the best interest of the child.

While it is true that the remarriage of a party to a divorce is not of itself such a material change of condition as to justify modification of a custody decree, the effect of a particular remarriage can be shown as indicating a material change of condition since the divorce. McBride v. McBride, 268 Ala. 619, 109 So.2d 718; Goldman v. Hicks, 241 Ala. 80, 1 So.2d 18; Randolph v. Randolph, 45 Ala.App. 326, 229 So.2d 923; Serotzke v. Serotzke, 335 Ill.App. 485, 82 N.E.2d 375; Johnson v. Fish (Mo.App.), 197 S.W.2d 990. The character of a divorced mother’s present husband is always a pertinent matter in a modification proceeding. Goldman v. Hicks, supra.

We emphasize that by our decision in this case we do not hold that a child custody modification is per se justified because the new spouse of a divorced party has killed in self-defense the other biological parent of the child, or because the new spouse has demonstrated misconduct in the past. All we hold today is that the trial judge did not abuse his discretion, considering the totality of circumstances in this case. The trial judge has had the opportunity to personally listen to the witnesses and observe their demeanor. Our review of the cold pages of a transcript must of necessity defer to such a perspective in the absence of palpable error. We cannot supplant our judgment for that of the trial judge, even if we would have decided the cause differently. Sutton v. Sutton, supra; Northcutt v. Northcutt, supra.

Appellant-mother-also advances the contention that the trial judge was biased toward the case, and so erred by not granting her motion for rehearing made on that ground.

Appellant made no motion for re-cusal during the hearing, but rather made a bare allegation of prejudice in her motion for rehearing. There is a “substantial burden” on a party alleging bias to show grounds therefor. Street v. Hutto, 46 Ala.App. 324, 241 So.2d 848. Where such a party does not meet this burden by legal proof or affidavit, but merely rests upon an allegation, there is insufficient matter for our review. Shell v. Shell, 48 Ala.App. 668, 267 So.2d 461. We accordingly cannot consider appellant’s contention of bias.

We would finally note, for the benefit of the parties involved, that the matter of custody of a child is never res judicata. See 8 Ala.Dig. Divorce 303(1), (2). Those who are vested with such a responsibility must always act in such a manner as to justify their trust.

There being no error to reversal in the record, the ease is. due to be affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


author: BRADLEY, Judge.

text:
    Larry Wayne HAYES v. Bonnie S. HAYES.
    Civ. 866.
    Court of Civil Appeals of Alabama.
    Sept. 29, 1976.

      Sherman B. Powell, Jr., Decatur, for appellant.
    No appearance for appellee.
   BRADLEY, Judge.

The parties to the proceedings before this court were divorced by order of the Morgan County Court on October 4, 1972. The wife was given custody of the two minor children, and the father was ordered to pay child support in the amount of $50 per month for both children. The father was also given certain visitation privileges.

On January 29, 1976 Bonnie S. Hayes, the former wife, filed a petition in the Morgan County Court alleging that Larry Wayne Hayes, the former husband, was $1,650 in arrears in child support payments. The petitioner asked that he be ordered to pay this amount and, furthermore, that he be required to show cause why he should not be placed in contempt for failure to comply with the original child support order. Mrs. Hayes also requested the court to modify the former decree by increasing the child support payments from $50 a month for the two children to $300 per month for both of them, revise the visitation schedule, and award her a reasonable sum for attorney’s fees.

A hearing at which both parties appeared and testified was held on the petition. At the conclusion of the hearing the court found Mr. Hayes, the appellant herein, in arrears in child support in the amount of $1,450 and held him in contempt for failure to pay child support as previously ordered. Mr. Hayes was incarcerated in the Morgan County jail.

The order further provided that appellant might purge himself of contempt by posting a cash bond of $1,500 to assure future compliance with the court’s orders and pay the arrearage, court costs and attorney’s fee of $300. The court also modified the former child support decree by increasing child support payments from $50 a month for both children to $250 a month for the children; requiring appellant to pay all medical expenses of the minor children; and permitting appellant to have visitation with his children at the sole discretion of Mrs. Hayes, the appellee, and upon the condition that he pay the child support payments as ordered.

On April 29, 1976 Mr. Hayes appealed to this court from the order of modification of the former decree and the contempt citation rendered on April 28, 1976. His motion for a stay of execution of the contempt citation was denied on May 5, 1976.

Mr. Hayes next filed a petition in the Circuit Court of Morgan County seeking the issuance of a writ of habeas corpus, alleging that he was unable financially to comply with the order of the Morgan County Court. A return was filed and the circuit court, in effect, denied the writ without reaching the merits of the controversy. Hayes then filed a petition for habeas corpus in this court and also asked us for a stay of execution until we could review the matter. We ordered Hayes released from custody upon his posting a bond in the amount of $1,500 with good and sufficient sureties, pending disposition of the request for the writ of habeas corpus.

The proper remedy for review of a contempt proceeding is by habeas corpus if the party is in jail, or by certiorari if the party is not, and appeal is not the proper remedy. Killingsworth v. Killingsworth, 284 Ala. 524, 226 So.2d 308 (1969).

Appeal not being the proper remedy for a resolution of the contempt order, it cannot be considered in this proceeding. Only the validity of the Morgan County Court’s modification order will be considered. Review of the contempt order will have to be treated in another proceeding.

Appellant raises two issues in his appeal from the modification decree: (1) whether the amount awarded as child support is excessive and unreasonable, and (2) whether the change in visitation, by placing in the mother the authority to deny visitation to the father, exceeded the court’s authority.

In a child support case the presumption is that the trial court’s decree is correct. To overcome that presumption, the appellant must convince the reviewing court that the award is so unsupported by the evidence as to be plainly and palpably wrong. Pruett v. Pruett, Ala.Civ.App., 333 So.2d 580 (1976). The guide to be followed by both trial courts and reviewing courts in determining the sufficiency of the amount of child support awarded is the need of the child or children tempered by the ability of the father to pay. Barber v. Barber, 51 Ala.App. 448, 286 So.2d 852, cert. den. 291 Ala. 772, 286 So.2d 857 (1973).

As we observed in Pruett:

“It is seldom that the first is met or exceeded by the latter. Such result is one of the unfortunate consequences of divorce. If the ability of the father to pay is so exceeded that he is unable to meet his own cost of self maintenance without sinking into insolvency, the best interests of the children are not served. The equities of each must be weighed by the court.” 333 So.2d at 582.

The evidence showed without dispute that appellant, a truck driver, has gross earnings of $235 every ten days. Due to layovers in California and Florida he does not average more than two trips a month. Appellant stated that after taxes and expenses incurred on his trips, his net income averages from $210 to $225 per month. His fixed expenses per month, consisting of a payment on a house trailer which was awarded to him in the divorce decree, rent for space to park the trailer, payment on a 1972 Volkswagen that has been refinanced, and utility payments, total $194.

In addition to these fixed expenses appellant must pay income tax, FICA and Blue Cross-Blue Shield insurance premium. When these amounts are deducted from appellant’s gross income there is not enough money left to pay the amount ordered to be paid by the modified decree.

Furthermore, there is no evidence in this record to -support a conclusion that appellant’s income will substantially increase in the immediate future. In fact, the evidence is to the contrary. The record shows that appellant earned three dollars an hour in the first job he had after being discharged from the army. In subsequent jobs, including his present one, he has earned approximately $235 every two weeks. To enforce the payment of $250 per month child support against the appellant, in light of his present income, would not serve the best interests of his children. The trial court erred in this aspect of its decree.

We consider next appellant’s contention that the trial court erred in changing the visitation schedule by leaving to the total discretion of the mother the time, place and length of appellant’s visit with his children. We begin by pointing out that much discretion is left to the trial court in the settlement of visitation rights between the parents. Skipper v. Skipper, 280 Ala. 506, 195 So.2d 797 (1967). Each case must be decided on its own peculiar facts and circumstances.

In the case at bar, during the three and one-half years between the divorce in 1973 and the modification decree, appellant has seen his children on only two occasions. During the summer, 1975, the children spent two weeks with him at his parents’ home; they visited again for ten days at Christmas, 1975. The evidence showed that, other than these times that he visited with the children, appellant has not contacted them. He did not send them Christmas cards or birthday cards or birthday presents, although the children did receive some clothes from appellant one Christmas. In view of these facts and circumstances, we cannot say that the trial court abused its discretion in revising the visitation arrangement for the appellant, particularly in view of the statement of the appellee that she has never refused appellant the right to visit with or talk to the children and would not in the future refuse him reasonable visitation periods and times.

The Morgan County Court’s modification order is affirmed in part, reversed in part and remanded for further proceedings.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

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