author: BOWEN, Judge.

text:
    Anthony J. SMITH v. STATE.
    8 Div. 874.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 1978.

      Robert P. Schwenn, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

Anthony Jerome Smith was charged in a two count indictment with rape and carnal knowledge of a girl over twelve and under sixteen years of age. A jury found him guilty of rape and sentenced him to fifteen years’ imprisonment. Both at trial and on appeal, Smith is represented by retained counsel of his own choosing. Though Smith was nineteen years of age at the time of the commission of the crime, application for treatment as a youthful offender was denied.

On June 3, 1975, Ellen was fifteen years old. Her sister, Barbara, was fourteen. Ellen and Barbara and their stepbrothers, Alan, fourteen, and Donald Lee, eighteen, had run away from their home in Fort Payne, Alabama, and come to Limestone County where they pitched their tent in a cotton field.

Though the sufficiency of the evidence is challenged in a motion for new trial, there being no motion to exclude the state’s evidence or request for the affirmative charge, we do not feel compelled to detail all the evidence presented. Ellen testified that Smith and his two companions, Charles Hardy and John Lockett, each had sexual intercourse with her and that these acts were accomplished by force and fear and against her consent. She made a complaint of having been raped and the medical and physical evidence was consistent with recent sexual assault. Ellen’s testimony alone constituted sufficient evidence, if believed by the jury, to sustain the conviction. Boddie v. State, 52 Ala. 395 (1875); Herndon v. State, 2 Ala.App. 118, 56 So. 85 (1911). In addition, her testimony was corroborated by that of her stepbrother, Alan. The state also introduced a written statement in which Smith admitted having had sexual intercourse with Ellen but maintained that it was with her consent.

At trial Smith denied any sexual act with Ellen and stated that he never even touched her. Under his testimony neither he nor Hardy and Lockett had anything to do with Barbara and Ellen.

I

Initially Smith contends that his motion to quash the indictment should have been granted because the jury commission (A) failed to comply with Alabama law in regard to filling the jury box and (B) excluded or omitted large numbers of legally qualified citizens, and placed so few names in the jury box as not to obtain a full cross-section of the county.

A.

Specifically Smith contends that the county jury commission failed to comply with Alabama law in filling the jury box (1) because its members did not meet annually between August 1st and December 20th as spelled out in Section 12-16-42, Code of Alabama 1975, and (2) because the clerk of the jury commission did not personally visit every precinct at least once a year to enable the jury commission to properly perform its duties under Section 12-16-41 (1975).

Prior to Smith’s trial two hearings were conducted to determine the composition of the jury roll for Limestone County and the procedure followed by the jury commission of that county in compiling the jury roll. There is no question, based on the testimony of Mrs. Rogers, Clerk of the Jury Commission, and Mr. Johnston, President of the Jury Commission, that the commission did meet annually to discharge the major portion of their duties. However, instead of meeting between August 1st and December 20th, the commission regularly met in January and for the year 1974 completed their duties in March of that year. Mrs. Rogers testified that the first of the year meetings were customary for Limestone County and were held at that time according to the instructions of the circuit judge for that county.

The evidence further reveals that between January 10, 1975, and May 12, 1975, every card in the jury box was taken out and analyzed by the jury commission to ascertain whether or not each particular person that had been indexed was living at the present address indicated. After completing this duty the commission worked the remainder of the summer adding 751 names and removing twelve to bring the total on the jury roll to 2,902. This task was completed on September 26, 1975, and represented a concerted effort to enlarge the jury roll and simultaneously increase the percentages of blacks, women and young people between the ages of 21 and 30 on the jury roll. ■

Section 12-16-42 (1975) states that in order to compile the jury roll

“The jury commission shall meet in the courthouse at the county seat of the several counties annually, between the first day of August and the twentieth day of December.”

Generally, the statutes prescribing the time for selecting the jury roll are held to be merely directory and, “if the list is at a later date properly selected and returned, the delay furnishes no ground of objection to the panel”. 50 C.J.S. Juries § 159b.

The purpose of Section 12-16-42 is to “protect litigants and to insure a fair trial by an impartial jury”. State ex rel. Gregg v. Maples, 286 Ala. 274, 278, 239 So.2d 198, 201 (1970). We fail to see how the jury commission’s meeting annually beginning in January instead of August could in any manner fail to protect a defendant or deprive him of a fair trial. Accordingly we reject Smith’s contention that because the meetings were not held between August 1st and December 20th of each year, that, as a matter of law, the duties performed by the Limestone County Jury Commission must be declared void due to noncompliance with statutory provisions. Such an interpretation as Smith advocates would pervert form over substance and result in an interpretation of Section 12-16-42 inconsistent with its basic import of safeguarding the administration of justice. While it is incumbent upon the jury commission to meet annually to conduct its business, the reference in Section 12-16-42 that the meetings occur between August 1st and December 20th must be construed as directory only and not mandatory in nature.

Smith also takes issue with the performance of the jury commission in light of Alabama Code Section 12-16-41 (1975) which states that the jury commission, in addition, to requiring the clerk of the commission to scan the registration lists, tax assessor’s records, city directories, et cetera, is to require the clerk “to visit every precinct at least once a year to enable the jury commission to properly perform the duties required of it . . ..” The evidence is unequivocal that Mrs. Rogers did not visit each of the precincts, but instead, Mr. Johnston, the president of the commission, carried out this assignment himself.

Again, this court is persuaded that the instruction in Alabama Code Section 12-16-41 (1975) that the clerk of the jury commission visit every precinct each year is directory and not mandatory as to who must perform this duty. It is mandatory that each precinct be visited annually so that the jury commission is enabled to obtain comprehensive information about those persons qualified to serve as jurors and to insure that no person is systematically eliminated simply on the basis of that person’s residence. This is to prevent the possibility of the jury commissioners selecting only those residents of the county that they have personal knowledge of and who, in their opinion, are competent to serve at the time the jury list is prepared. Certainly a jury list containing names selected only from certain precincts of the county to the exclusion of others is fatally defective. Hanners v. State, 147 Ala. 27, 41 So. 973 (1906). Under our statute there are limits on who may visit each precinct to discharge this Code requirement. In Penn v. Eubanks, 360 F.Supp. 699, 702 (M.D.Ala.1973), the federal district court determined that those charged with the administration of jury selection machinery could not transfer to other segments of the community the responsibilities placed on them by law. The duties assigned to the jury commission and its clerk must be performed by the commission and clerk and should not be delegated to third parties. Here there was no unauthorized delegation of authority. While the jury commissioners may not delegate any of their statutorily imposed duties to any other person or persons, we see no reason why the commission or any one of its members may not assume some of the duties of the clerk of the jury commission.

It is clear that the clerk of the jury commission is an integral component of the commission and according to statute must work closely with the commission in executing the duties demanded by law. More specifically, by way of Alabama Code Section 12-16-39 (1975), the clerk is to discharge his responsibilities “under'the direction of the jury commission”, and by authority of Alabama Code Section 12-16— 40 (1975) serves at the pleasure of the commission as the commission has absolute authority to discharge the clerk and employ another at any time. Therefore, since it was decided by the jury commission that Mr. Johnston, the president of the commission, would visit each precinct, Mrs. Rogers, as clerk, was acting “under the direction of the jury commission” and was in no way derelict in her responsibility of visiting every precinct each year to gather names. By the same token, since Mr. Johnston, under the authority of the commission, did, in fact, visit every precinct for the purpose of gathering names for the jury roll, the duty was performed. Therefore the trial court did not err in refusing to quash the indictment on the ground that the jury commission failed to comply with Alabama law in filling the jury box.

B.

The appellant alleges that the jury commission omitted or excluded large numbers of legally qualified citizens, from the jury roll and placed so few names in the jury box as not to obtain a full cross-section of the community.

In Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879), the United States Supreme Court held that the due process and equal protection clauses of the Fourteenth Amendment prohibit the statutory exclusion of persons from jury service solely because of their race or color. Thereafter, in Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567 (1880), that Court ruled that the equality of protection secured by the Fourteenth Amendment forbids the discriminatory application of racially neutral jury selection statutes.

Since Strauder and Neal, the Supreme Court has consistently reiterated the constitutional requirement that both grand and petit juries must be drawn from a panel which-represents a cross-section of the community. Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940). At the same time and just as consistently, the Court has rejected the notion that proportional representation of races or community groups is required by the provisions of the Fourteenth Amendment. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961); Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950); Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945).

The principle of cross-sectional representation requires that all.eligible persons residing in the community be afforded an opportunity of being selected for jury service.

“The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community. This does not mean, of course, that every jury must contain representatives of all economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups. Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society. Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system. To disregard it is to open the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury.” Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985, 986, 90 L.Ed. 1181, 1184 (1946).

However only “distinct” community groups constituting a significant and identifiable segment of the overall population from which the jurors are drawn need be considered by the jury commissioners in choosing a representative jury panel. Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954); Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967).

Despite criticism, Rabinowitz v. United States, 366 F.2d 34 (5th Cir. 1966), the “key man” system, under which jury commissioners solicit names for the jury list from certain designated “key men” in the community, enjoys widespread use today. Kuhn, Jury Discrimination: The Next Phase, 41 S.Calif.L.Rev. 235, 260-264 (1967). Because of its potential for abuse, the United States Supreme Court has developed two constitutionally grounded affirmative duties to be adhered to by the jury commissioners. See Sperlich & Jaspovice, Statistical Decision Theory and the Selection of Grand Jurors: Testing for Discrimination in a Single Panel, 2 Hastings Const. L. Q. 75, 78 (1975). The first obligates the jury commissioners, as a constitutional duty of their office, to familiarize themselves with all the community’s elements in which qualified jurors may be found so as to make certain that none is omitted from full and equal consideration for jury service. Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950); Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942); Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966). The second requires that the jury commissioners refrain from following a course of conduct which, whether so intended or not, naturally tends to exclude any group of potential jurors from jury service. Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953); Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945); Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1940); Davis v. Davis, 361 F.2d 770 (5th Cir. 1966); White v. Crook, 251 F.Supp. 401 (M.D.Ala.1966).

While a challenge to the selection procedures employed in establishing a jury roll may assail the constitutional validity of the selection plan or statute, the usual challenge is to the manner in which a constitutional statute is applied.

“The discriminatory application of racially neutral statutes can be attacked in three ways. The first entails a demonstration of discriminatory outcome of the selection procedure. Pursuant to this method the challenger has the burden of establishing a prima facie case by producing evidence which proves that there is a substantial disparity over time between the percentage of the cognizable community group on the jury roll or venire and that group’s percentage in the relevant population. Once a prima facie case has been proven, the burden shifts to the state to justify the discrepancy. The second method involves a showing thát discriminatory selection procedures have been indulged in by the selectors. Thus, evidence proving that the selectors have failed to take affirmative steps to comply with the two-fold constitutional duty imposed upon them and described above will allow the challenger to succeed. The actual outcome of the selection process is wholly inconsequential to the success or failure of this method. The third and final method requires a demonstration of a combination of factors indicative of discrimination and may involve proof called for by the first and second methods, in addition to other evidence.”
Sperlich & Jaspovice, Grand Juries, Grand Jurors and the Constitution, 1 Hastings Const. L. Q. 63, 80-81 (1974).

See also: Kuhn, supra; Comment, The Civil Petitioner’s Right to Representative Grand Juries and a Statistical Method of Showing Discrimination in Jury Selection Cases Generally, 20 U.C.L.A. Law Rev. 581 (1973); Comment, Jury Discrimination in the South: A Remedy? 8 Colum. J. L. & Soc. Prob. 589 (1972); Discriminatory Jury Selection, 9 Am.Jur. Proof of Facts 2d 407 (1976).

Though the discrimination must be “purposeful” or “systematic”, proof of specific acts of discrimination or actual discriminatory intent on the part of the jury commissioners is not required. Purposeful discrimination may be inferred or presumed to have arisen from the fact of a continued lack of representation or from underrepre-sentation or tokenism. Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970); Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Patton v. Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76 (1947); Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945); Mitchell v. Johnson, 250 F.Supp. 117 (M.D.Ala.1966). A statistical showing of significant numerical disparity in representation will give rise to a finding of purposefulness. Avery, supra; Patton, supra; State ex rel. Gregg v. Maples, 286 Ala. 274, 239 So.2d 198 (1970); Inter-Ocean Casualty Co. v. Banks, 32 Ala.App. 225, 23 So.2d 874 (1945). Mindful of these guidelines we now undertake to treat the specific assertions of the appellant.

The facts show that the jury commission actually placed 2,163 names on the jury roll. This figure represents 5.1% of the total county population of 41,699. As the appellant recognizes, the requirement of Section 12-16-42, Code of Alabama 1975, that the jury commission place the name of every qualified, nonexempt person on the jury roll is permissive and not mandatory. The commission’s failure to put the name of every qualified person on the jury roll is not a basis for quashing the indictment or a venire absent fraud or a denial of constitutional rights. Swain, supra; Carter v. Jury Commission of Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970); Bokulich v. Jury Commission, 298 F.Supp. 181 (N.D.Ala.1968); Mitchell v. Johnson, 250 F.Supp. 117 (M.D.Ala.1966); White v. Crook, 251 F.Supp. 401 (M.D.Ala.1966); Ex parte Seals, 271 Ala. 622, 126 So.2d 474, cert. denied, 366 U.S. 954, 81 S.Ct. 1909, 6 L.Ed.2d 1246 (1961).

When Mrs. Rogers, the Clerk of the Jury Commission, was asked at the November 4, 1974, hearing how the commission obtained names to fill the jury roll she stated that the commission used the registered voters’ list, the city directory, the telephone directory, the tax assessor’s records; that she had written letters to approximately ten high school principals, fifty pastors of churches of both blacks and whites, and the personnel managers of the industrial plants in the area; that in all she had written approximately one hundred fifty letters; and that she had conducted personal interviews with some of the people being considered for the jury roll.

The use of the key man system has been upheld where effort was made to consult leaders from the significant population groups. Swain, supra; Billingsley v. Clayton, 359 F.2d 13 (5th Cir.), cert. denied, 385 U.S. 841, 87 S.Ct. 92, 17 L.Ed.2d 74 (1966). Here, black leaders were specifically contacted. In addition, the key man system was not used exclusively but in conjunction with several lists which would tend to ameliorate the drawbacks of the key man system.

There is absolutely no evidence that the commission or its clerk made any unauthorized effort to systematically limit or exclude any group, class, or person from the jury roll or employ any fraudulent practice in filling that roll. The appellant offered no evidence that either the key men did not represent all relevant segments of the population or that the lists themselves were a product of discrimination and disproportionate in their representation. In short, this Court has not been furnished with sufficient information to conclude that the jury selection process and the manner in which it is executed in Limestone County is either purposefully or unintentionally discriminatory in its use of selection procedures.

The appellant further contends that there was no “substantial compliance” with the Alabama statutes because so few names were placed on the jury roll. This issue was addressed to some extent in Mitchell v. Johnson, 250 F.Supp. 117 (M.D.Ala.1966) and State ex rel. Gregg v. Maples, 286 Ala. 274, 239 So.2d 198 (1970).

“The purpose of §§ 18, 20 and 24 of Title 30 (§§ 12-16-39, 41 and 42, Code of Alabama 1975), is ‘to protect litigants and to insure a fair trial by an impartial jury’. And ‘substantial compliance with these requirements is necessary in order to safeguard the administration of justice’. Inter-Ocean Cas. Co. v. Banks, 32 Ala.App. 225, 227, 23 So.2d 874, 875.” Gregg, 286 Ala. at 279, 239 So.2d at 201.
* * * * * *
“(T)he mere failure to adhere to the Alabama statutes does not in and of itself constitute a violation of the plaintiff’s federally-guaranteed constitutional rights; however the purpose of the Alabama statutes is to insure at least a reasonable approximation to the requirements that jury venires include all qualified persons, and, hence, represent a cross-section of the community, with no significant groups being excluded without justifiable reasons; therefore, the procedures outlined by the Alabama statutes can and do serve in this case as a standard by which the actions of the jury commissioners can and should be judged. . The sole purpose of these requirements is to insure that the jury commissioners will have as complete a list as possible of names, compiled on an objective basis, from which to select qualified jurors.” Mitchell, 250 F.Supp. at 122-123.

“Substantial compliance” with a statute means actual compliance in respect to the substance essential to every reasonable objective of the statute. Coe v. Davidson, 43 Cal.App.3d 170, 117 Cal.Rptr. 630, 633, (1974). It means that a court should determine whether the statute has been followed sufficiently so as to carry out the intent for which it was adopted. In re Rudd’s Estate, 140 Mont. 170, 369 P.2d 526, 530 (1962). Substantial compliance with a statute is not shown unless it is made to appear that the purpose of the statute is shown to have been served. Kasner v. Stanmire, 195 Okl. 80, 155 P.2d 230, 232 (1945). What constitutes substantial compliance with a statute is a matter depending on the facts of each particular case. Trussell v. Fish, 202 Ark. 956, 154 S.W.2d 587, 590 (1941). For jury selection purposes, there can be no absolute measure of what is a “substantial” deviation from the ideal cross-section of the community and the term must be defined in its relationship to the situation in a particular county. United States v. McDaniels, 370 F.Supp. 298 (E.D.La.1973).

In Swain v. Alabama, supra, it was determined that “a typical jury roll (in Talladega County) at best contains about 2,500 names of 16,406 persons”. In White v. Crook, supra, the court noted that in Lowndes County with a population of 15,-417 “there should be no less than 1,000 names placed in the jury box”. That is approximately 6.5% of the total population. The defendant’s conviction was affirmed in Hill v. State, 57 Ala.App. 437, 329 So.2d 126 (1976), where the Dale County jury roll contained 2,881 names in a population of 29,559.

Consequently, we cannot state that the fact that the jury commissioners of Limestone County placed only five percent of the total county population on the jury roll, in and of itself as a matter of law, violated the constitutional rights of the appellant because it was too small a number to represent a fair cross-section of the community or was not a substantial compliance with the Alabama statutes to safeguard the administration of justice. Obviously, before the jury roll can be condemned for its alleged inadequate representation of the community, proof of what would constitute a fair cross-section must be offered. In this regard the appellant failed to prove what groups constituted a significant portion of the community and had been consistently omitted from or underrepresented on the venire or jury roll.

C.

Finally, the appellant alleges that “the figures prove that the young, of both races, females and the blacks were greatly discriminated against in the make-up of the jury roll”.

By testimony and stipulation the facts were established that the total population of Limestone County was 41,699; that more than 21,000 of this number were registered voters and that it might be a “good guess” that there were 5,000 unregistered voters in the county. The jury roll was composed of 2,163 names and constituted by race and sex as follows:

White male : 1,535
White female : 418
Black male : 179
Black female : 31

The age distribution of the jury roll was also proven.

Ages 21-30 : 102
31-50 : 1,024
51-65 : 1,037

The appellant contends that these figures alone establish a prima facie case of discrimination and underrepresentation.

The proof necessary to make out a prima facie case of discrimination basically amounts to the presentation of evidence showing that the particular class in question, although it forms a substantial and identifiable segment of the total population of the community, has been excluded from or significantly underrepresented on jury panels over an extended period of time. Disproportionate statistics, e. g., black population as against black jurors, may constitute a prima facie case of purposeful discrimination. Black v. Curb, 464 F.2d 165 (5th Cir. 1972). Discriminatory selection will be inferred from a statistical analysis which reflects a significant disparity over a period of time between the percentage of the allegedly excluded class existing in the community and the. percentage of that same class which appears on the jury venire. Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567 (1881).

The basic elements of a prima facie case are: (1) That the class claiming to be excluded forms a substantial and identifiable segment of the overall population with some members of the class qualified to serve as jurors; (2) that there has been a significant disparity between those members of the class actually serving as jurors and their corresponding numbers in the general population; and (3) that the disparity has been continued over an extended period of time. Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977); United States v. Hyde, 448 F.2d 815 (5th Cir. 1971), cert. denied, 404 U.S. 1058, 92 S.Ct. 736, 30 L.Ed.2d 745 (1972); Preston v. Mandeville, 428 F.2d 1392 (5th Cir. 1970); Jackson v. Morrow, 404 F.2d 903 (5th Cir. 1968); Billingsley v. Clayton, 359 F.2d 13, cert. denied, 385 U.S. 841, 87 S.Ct. 92, 17 L.Ed.2d 74 (1966); Comment, 20 U.C.L.A. Law Rev. 581, 586 (1973); 9 Am.Jur. Proof of Facts 2d 407, 432 (1976).

In this case the appellant has failed to establish even the threshold requirements of a prima facie case of discriminatory jury selection in regard to youth and women. With reference to these two groups the appellant established only what number they constituted of a particular jury roll. The burden was on the appellant to establish at least a prima facie case of discriminatory jury selection by showing an opportunity for discrimination in the jury selection system and a substantial disparity between the number of “youth” and women eligible to serve as jurors and the number chosen. Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967); Singleton v. Estelle, 492 F.2d 671, 677 (5th Cir. 1974). The record before us does not demonstrate the percentage of youth and women in the population of Limestone County and does not reveal anything about the number eligible to serve as jurors. United States v. Turcotte, 558 F.2d 893, 895 (8th Cir. 1977); Bowens v. State, 54 Ala.App. 491, 309 So.2d 844, cert. denied, 293 Ala. 746, 309 So.2d 850 (1974); Racine v. State, 51 Ala.App. 484, 286 So.2d 890, cert. denied, 291 Ala. 684, 286 So.2d 896 (1973); Harris v. State, 352 So.2d 460 (Ala.Cr.App.1976); James v. State, 337 So.2d 1332 (Ala.Cr.App.1976).

Additionally, age is not a valid criterion in determining whether an identifiable group, for purposes of a jury system reflecting a cross-section of the community, has been excluded. Hammond v. State, 354 So.2d 280, 287 (Ala.Cr.App.), cert. quashed, 354 So.2d 294 (Ala.1977); Hurley v. State, 335 So.2d 183, 187 (Ala.Cr.App.), cert. denied, 335 So.2d 188 (Ala.1976); Giddens v. State, 333 So.2d 615, 617 (Ala.Cr.App.1976); Williamson v. State, 52 Ala.App. 617, 618, 296 So.2d 241 (1974). Here there was no attempt to prove that the “youth” constituted a distinct and identifiable group within the community. Generally see 9 Am.Jur. Proof of Facts 2d 407, Discriminatory Jury Selection §§ 9 and 10 (1976).

Besides discrimination based on age and sex, the appellant also alleges that blacks were unlawfully excluded from the jury roll. The evidence submitted reveals that blacks represent approximately 18% of the total population of Limestone County and constitute about 10% of the jury roll.

The Constitution does not guarantee a defendant a proportionate number of his racial group on the jury panel or on the jury which tries him; it merely prohibits deliberate exclusion of an identifiable group from the juror selection process. Swain v. Alabama, 380 U.S. 202, 208, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). The burden of proving systematic exclusion is on the defendant. It may not be assumed or merely asserted but must be proven. Butler v. Alabama, 285 Ala. 387, 232 So.2d 631 (1970). Mere statistical disparity between the number of blacks presumed eligible for jury duty and the number actually included in the jury roll does not of itself establish a primary inference of invidious discrimination. Swain, supra; Beecher v. State, 294 Ala. 674, 320 So.2d 727 (1975); Rainer v. State, 342 So.2d 1348 (Ala.Cr.App.1977). However a “substantial” or “wide” disparity may establish a prima facie inference of discrimination. Beecher, 294 Ala. at 683, 320 So.2d 727.

Because of a “continued reliance on intuitive and untutored understanding of the laws of chance” the courts have provided little guidance as to how great the discrepancy or disparity must be to establish a prima facie case of discrimination. On the one hand, token representation does not comply with equal protection. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Billingsley v. Clayton, 359 F.2d 13 (5th Cir.), cert. denied, 385 U.S. 841, 87 S.Ct. 92, 17 L.Ed.2d 74 (1966). On the other, proportional representation is not required. Swain, supra; Akins, supra; Billingsley, supra. Thus there is no objective or even minimum standard concerning the size of the disparity which must be shown to establish a prima facie case.

In describing the degree of disproportionate representation that will give rise to a prima facie case of discrimination, the Fifth Circuit Federal Court of Appeals has employed such terms as “wide disproportion”, Mitchell v. Johnson, 250 F.Supp. 117 (M.D.Ala.1966) (The jury list was 35.7% black in a county whose population was 87% black); “significant discrepancy”, Davis v. Davis, 361 F.2d 770 (5th Cir. 1966) (Sixteen percent black in the eligible population compared to 1.8% on the venires); “very decided variations”, Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966), cert. denied, 386 U.S. 991, 87 S.Ct. 1303, 18 L.Ed.2d 334 (1967) (Blacks comprised 25.8% of the eligible population compared to an average of 6.2% and a maximum of 16.1% of venires); United States ex rel. Seals v. Wiman, 304 F.2d 53 (5th Cir. 1962) (31% compared to 2%). In finding no discrimination the court noted the complete absence of “spectacular under-representation” in United States v. Hyde, 448 F.2d 815 (5th Cir. 1971), cert. denied, 404 U.S. 1058, 92 S.Ct. 736, 30 L.Ed.2d 745 (1972).

In Swain v. Alabama, supra, the proportion of Negroes among the eligible population was 26% and their proportion of ve-nires ranged from 10% to 15%. “This discrepancy is far from startling and considerably less than that found to be prima facie evidence of discrimination in any other case.” Kuhn, 41 S.C.Law Rev. 235, 253.

There being no wide, significant or substantial disparity in this case and considering the other evidence presented on this matter, we do not think that the proof was sufficient to establish a prima facie case of discrimination. Because of the failure of proof the judgment of the trial court in denying the motion to quash the indictment was proper.

II

Apart from the charges of discrimination in the selection of the jury roll, the appellant also contends that his conviction is due to be reversed because the court reporter lost his stenographic notes on the motion to quash the venire in the case of State v. John W. Lockett, Case Numbers 10,852 and 10,853. The court reporter certified this fact and the additional fact that he “did read said stenographic notes to the trial judge, R. L. Hundley, in the month of October, 1974, to be considered on the motion to quash the venire” in the case of the appellant.

In his written order denying the motion to quash the indictment the trial judge found that “it was stipulated and agreed . . ., by counsel for both sides, that the Court could consider, not only the testimony presented this day (October 14, 1975), but that the Court should consider the testimony previously offered” in several other cases including the Lockett cases. Under Alabama law the appellant has a duty to see that the record on appeal is correct. Cantrell v. Alabama, 546 F.2d 652 (5th Cir. 1977); Tyus v. State, 347 So.2d 1377 (Ala.Cr.App.), cert. denied, 347 So.2d 1384 (Ala.1977); Baxter v. State, 41 Ala.App. 533, 143 So.2d 191, cert. denied, 273 Ala. 704, 143 So.2d 192 (1962); Weldon v. State, 21 Ala.App. 357, 108 So. 270 (1926).

Nowhere in the record before this Court, including the “designation of record on appeal”, does it appear or is it even averred that this other testimony was requested or ordered to be included in the appellant’s record on appeal. Objection was initially and only made to the absence of the lost testimony in the appellant’s brief on appeal. There was no attempt to stipulate to the contents or substance of the lost testimony. See Alabama Rules of Appellate Procedure, Rule 10(e). Rule 10(d) A.R.A.P. specifically provides the procedure to be followed when a transcript of the evidence or proceedings is unavailable. Appellant’s counsel admits in brief that “the appellant can only speculate what such evidence was”. In view of these factors no issue is presented for review and the appellant has no legal cause to complain.

Additionally the appellant should not be heard to complain that his four exhibits, consisting of medical technician’s reports and hospital records, were not included in the record on appeal. It appears that these reports were offered as exhibits in a companion case. All four exhibits were admitted into evidence at trial to prove that scientific tests did not reveal the presence of sperm in the body of the prosecutrix or her sister and that the prosecutrix had given information to a nurse in the emergency room of the hospital that she was married and 18 years of age and contrary to her testimony at trial. In themselves or in their admission the exhibits constitute no issue on appeal. They were the appellant’s exhibits and susceptible to being reproduced or photocopied. While this Court could order their production or reproduction under Rule 10(f) A.R.A.P., they are not material to this appeal and would serve no useful purpose before this Court.

III

The trial court did not err in refusing to charge the jury that they could find the appellant guilty of attempted rape or assault and battery as lesser included offenses of the crime of rape. There was no evidence in this case which would warrant the Court in charging the jury with respect to either of these lesser included offenses. “The crime was either rape or it was nothing. The court so charged; and in this, there was no error.” Owens v. State, 29 Ala.App. 53, 56, 191 So. 899, 902, cert. denied, 238 Ala. 519, 191 So. 903 (1939); Smith v. State, 34 Ala.App. 45, 38 So.2d 341 (1948), cert. denied, 251 Ala. 559, 38 So.2d 347 (1949); Section 13-9-3, Code of Alabama 1975. Under the evidence, the jury could either believe the prosecutrix, in which case the appellant would have been guilty of rape, or they could have believed the appellant, in which case he was guilty of nothing. Therefore the requested charge as to lesser included offenses was properly refused. Fisher v. State, 57 Ala.App. 310, 328 So.2d 311, cert. denied, 295 Ala. 401, 328 So.2d 321 (1976). A defendant may well be prejudiced by an instruction on a lesser included offense not warranted by the evidence. DeGraaf v. State, 34 Ala.App. 137, 142-143, 37 So.2d 130 (1948).

IV

The appellant’s contention that the trial court abused its discretion in limiting defense counsel’s closing argument to forty-five minutes is without merit. The record reflects no objection to this limitation and nothing is presented for review.

The trial continued over three days but neither the record nor appellant’s argument reveals any abuse of discretion by the trial judge. Much discretion is allowed the trial court in respect to limiting arguments of counsel and, in the absence of some abuse of that discretion, no error exists. Peterson v. State, 231 Ala. 625, 166 So. 20 (1936); Jackson v. State, 239 Ala. 38, 193 So. 417 (1940); Stovall v. State, 18 Ala.App. 559, 93 So. 275 (1922).

V

After careful examination we are satisfied that the two refused requested charges were fairly and adequately covered in given charge requested by the appellant. Therefore the refusal to give the additional requested charges was proper. Walker v. State, 265 Ala. 233, 90 So.2d 221 (1956); Chambers v. State, 264 Ala. 8, 84 So.2d 342 (1955); Ingram v. State, 356 So.2d 761 (Ala.Cr.App.1978); Section 12-16-13, Code of Alabama, 1975.

VI

The appellant’s final allegation of error is that the jury was allowed to deliberate in a jury room equipped with a telephone. This objection was raised in the Motion for New Trial but there was no allegation or evidence that calls had actually been made or received by the jurors. The cases presented by the appellant in his brief are not analogous to the facts in this case. Two of the cases deal with jurors who read newspaper accounts which presented the accused in an unfavorable light. Sprinkle v. State, 137 Miss. 731, 102 So. 844 (1925); Cartwright v. State, 71 Miss. 82, 14 So. 526 (1893). The other two cases cited by Smith involve separation of the jury after the trial, but before the verdict was returned. Turner v. State, 54 Ala.App. 467, 309 So.2d 503 (1975); Palmore v. State, 283 Ala. 501, 218 So.2d 830 (1969).

The practice of permitting jurors to use the telephone while deliberating has been criticized. State v. Raspberry, 452 S.W.2d 169 (Mo.1970); Arnett v. Commonwealth, 470 S.W.2d 834, 837 (Ky.1971). We have been cited to no case which holds that the mere presence of a telephone in the jury room, without at least some indication that calls were either made or received by members of the jury, is ground for reversal and a new trial. Indeed, it would be an exercise in speculation and conjecture for this Court to hold as a matter of law that the presence of a telephone in the jury room, without more, could in any way prejudice a defendant’s right to a fair trial.

Moreover, we note that the record bears no evidence that there was a telephone in the jury room. Assertions of counsel in an unverified motion for new trial are bare allegations and cannot be considered as evidence or proof of the facts alleged.

After carefully considering each and every argument advanced on appeal and searching the record for error, our opinion is that the judgment of the trial court should be affirmed and the conviction of the appellant should stand.

AFFIRMED.

All Judges concur.

      . Kuhn, 41 S.Calif.L.Rev. 235, 255 (1967).
      “This ‘prima facie rule’ rests on the courts’ intuitive understanding of the laws of chance. It is therefore necessary to show not merely the absence of Negroes from a particular jury but their continued absence (or substantial underrepresentation) over a period of time from a series of juries, venires or jury lists. Once such a showing makes chance a most improbable explanation, the state is called upon to show what the explanation is and that it is non-racial.”
      * * * * * * *
      “To suggest that discrimination is at work, and accordingly to call upon the state to show that it is not, the discrepancy must be great enough to eliminate chance as a reasonable explanation . .” Kuhn, 41 S.Calif.L.Rev. 235, 251-252 (1967).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Cecil HUNTER, Appellant, v. STATE of Florida, Appellee.
    No. JJ-275.
    District Court of Appeal of Florida, First District.
    Oct. 3, 1978.
    Rehearing Denied Dec. 6, 1978.
    Michael J. Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Appellant, convicted for battery of a law enforcement officer contrary to Section 784.07, Florida Statutes (Supp.1976), asserts the evidence was insufficient to support the judgment urging that a county correctional officer and/or jailor is not a “law enforcement officer” within the meaning of Section 784.07.

This issue is not properly before us since the issue was not presented to the trial court by a motion for judgment of acquittal or otherwise. G.W.B. v. State, 340 So.2d 969 (Fla. 1st DCA 1977). Therefore, the judgment and sentence are AFFIRMED.

McCORD, C. J., and BOYER and MILLS, JJ., concur.


author: CROSS, Judge. MOORE, Judge,

text:
    BOAT TOWN U. S. A., INC., Stephen Grossman and Albert H. Tate, Jr., Appellants, v. MERCURY MARINE DIVISION OF BRUNSWICK CORPORATION, etc., Appellee.
    No. 76-1552.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 1978.
    Rehearing Denied Dec. 4, 1978.

      Donald M. Coon, Miami, for appellants.
    Davis W. Duke, Jr., of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for appellee.
   CROSS, Judge.

Appellant-counterclaimant, Boat Town U.S.A., Inc., et al., appeals a judgment entered on the pleadings of a counterclaim in favor of appellee-counter-defendants, Mercury Marine Division of Brunswick Corporation, in an action instituted by Mercury seeking to recover sums allegedly owed under a contract for sale of goods. We reverse.

Boat Town U.S.A. is a Florida corporation engaged in the sale of marine products, whose place of business is in Broward County, Florida. Mercury Marine Division of Brunswick Corporation (hereinafter Mercury) is a Delaware corporation with its principal place of business in Fond du Lac, Wisconsin. The relationship between Boat Town and Mercury is evidenced by a written agreement termed “Direct Sales Contract,” which made Boat Town a dealer of specified Mercury products. This agreement was made renewable each year by Mercury; the last such agreement was dated September 9, 1974. Prior to September 1975, Mercury, without prior written notice of its intention, refused to renew the agreement. Boat Town then refused to make payments to Mercury for Mercury products previously delivered to Boat Town. Mercury then filed a complaint in the Circuit Court of Broward County, Florida, for sums it claimed were due and owing for Mercury products. Boat Town answered and filed a counterclaim, alleging that the action of Mercury in failing to renew the agreement violated Chapter 135, Wisconsin Statutes, known as the Wisconsin Fair Dealership Law, and this constituted a breach of the agreement. Mercury answered the counterclaim and alleged as an affirmative defense No. 4 that:

“Chapter 135 of the Wisconsin Statutes, . . . has no applicability to this cause or to Florida dealers, alleged or actual; nor does that chapter provide any jurisdictional basis for a Florida court, or any court applying Florida law, to grant relief thereunder. All counts and claims of the counterclaim premised thereon should be dismissed with prejudice.”

Boat Town then moved to strike Mercury’s affirmative defense No. 4, which after hearing was denied by the trial court. Mercury then moved for judgment on the pleadings with respect to certain counts of the counterclaim. The trial court, after hearing, determined as a matter of law that the provisions of Chapter 135, Wisconsin Statutes, known as the “Wisconsin Fair Dealership Law” are inapplicable to a dealer located in Florida and therefore were inapplicable in the instant cause. Judgment for the appellee-counter-defendant was accordingly entered. This appeal then followed.

As its initial point, appellant asserts that Mercury and Boat Town expressly selected the law of Wisconsin to govern their agreement.

Paragraph II of the Direct Sales Agreement provides:

“II. INTERPRETATION. This Agreement and all its provisions are to be interpreted and construed according to the laws of the State of Wisconsin. Any provision of this contract which in any wise contravenes or is unenforceable under any law of the nation of the state or states in which this agreement is effective shall be deemed separable and not to be part of this agreement.”

Appellant urges us to the view that the above quoted provision reflects the intention of the parties to be bound by Wisconsin law not only in the interpretation and construction of the terms of the contract itself, but also as to the substantive'rights and obligations of the parties themselves. Appellant cites C. A. Marine Supply Co. v. Brunswick Corp., No. C76—132A (N.D.Ga.1976), aff’d (5th Cir. 1977), in support of its position. In C. A. Marine the trial judge for the federal district court, in construing the identical provision in a contract between parties other than those here before us now, determined that the quoted language did provide for the express selection of Wisconsin law to govern the entire legal relationship of the parties. With all .due regard for the views of the learned trial judge, we must respectfully decline from that view.

It is the law in Florida that the language used in a contract is the best evidence of the intent and meaning of the parties. Home Devel. Co. v. Bursani, 178 So.2d 113 (Fla.1965). As was recognized in the C. A. Marine case, a distinction exists between the words “interpretation” and “govern.” Interpretation is defined as “[t]he art or process of discovering and expounding the meaning of a . . . written document.” Black’s Law Dictionary, 4th ed. 1968. On the other hand, govern means “to direct and control the actions or conduct of, either by established law or by arbitrary will; to direct and control, rule, or regulate, by authority.” Black’s, id. The difference between “interpretation” and “govern” is more than a technical distinction. It goes to the very heart of the purpose underlying a contract. The terms of a contract generally govern the conduct of the parties. It is the purpose of interpretation to ascertain what those terms are. However, it is settled law in Florida that a court may resort to the process of interpretation only when the words used in a contract are unclear. Board of Public Instruction of Dade County v. Fred Howland, Inc., 243 So.2d 221 (Fla.3d DCA 1971). The ambiguity must exist on the face of the document itself before extrinsic matters may be considered by the court. Gulf Cities Gas Corp. v. Tangelo Park Service Company, 253 So.2d 744 (Fla.4th DCA 1971).

In the instant case, there is no assertion, nor could any be substantiated, that ambiguities exist in the terms of the contract. Thus, the interpretation clause of the contract has no effect and does not provide an explicit choice of Wisconsin law to govern the conduct of the parties.

The mere fact that the parties have not made an explicit choice of law does not, however, prevent the application of Wisconsin law in the instant case. While it is true that a statute generally has no effect of its own force beyond the territorial limits of the state in which it was enacted, (see Equitable Life Assur. Soc. v. McRee, 75 Fla. 257, 78 So. 22 (1918)), such law may be applied in a foreign forum under conflict of law principles. The extent to which rights arising under the laws of one state will be given legal effect within the dominion of another is dependent upon the degree of recognition purposely given to those rights by the forum state, having due regard both to its duty under recognized notions of comity and convenience, and in full contemplation of the rights of its own citizens or other persons who are under the protection of its law. Absent a stipulation as to which state’s law is applicable in a multi-state transaction, it is well established in Florida that matters bearing on execution, validity, interpretation and obligations of contracts are determined by the lex loci contractus, whereas matters connected with performance are regulated by the lex loci solutionis. Brown v. Case, 80 Fla. 703, 86 So. 684 (1920); State-Wide Insurance Company v. Flaks, 233 So.2d 400 (Fla.3d DCA 1970); Charles L. Bowman & Company v. Erwin, 468 F.2d 1293 (5th Cir. 1972); Center Chemical Company v. Avril, Inc., 392 F.2d 289 (5th Cir. 1968). Where the place of making and of performance of a contract are the same, the law of that state determines and controls the validity, interpretation, and rights and obligations under the contract. Confederation Life Association v. Ugalde, 151 So.2d 315 (Fla.3d DCA 1963), aff’d in part, rev’d in part, 164 So.2d 1 (Fla.), on remand 163 So.2d 343 (Fla.3d DCA), cert. denied 379 U.S. 915, 85 S.Ct. 263, 13 L.Ed.2d 186.

In the instant case, both the place of making and of performance are located in Wisconsin. The contract was entered into at Fond du Lac, Wisconsin, the situs of Mercury Marine Division’s principal offices. Although it is true that the terms of the contract called for performance in both Wisconsin and Florida, we determine that the most significant acts under the Direct Sales Agreement were those which related to the sale of goods occurring in Wisconsin, and other acts under the agreement, although performed in Florida, were merely ancillary to the main purpose of the contract. All shipments were made f. o. b. seller’s factory at Fond du Lac, Wisconsin; all pricing and credit decisions were undertaken in Wisconsin; orders were not final until accepted in writing by Mercury in Wisconsin; title to all goods was transferred from Mercury to Boat Town in Wisconsin, thereby shifting the risk of loss to Boat Town in Wisconsin; the dealer was under an obligation to submit a certified financial statement each year at Mercury’s principal office; and, no modification or renewal of the agreement could occur without the signature of the general sales manager or other officer of Mercury in Wisconsin. The pleadings and contract attached thereto clearly indicate that the parties’ place of performance, as well as the place of contracting, was Wisconsin, and therefore, we determine that Wisconsin law is applicable in the instant cause.

Furthermore, no reason has been offered as to why the present forum should not apply the Wisconsin law. It seems apparent that Wisconsin, in adopting the Fair Dealership Law, had significant interests in controlling dealership arrangements, not only from the point of view of protecting the interests of the dealer himself, but also in regulating the conduct of the supplier to prevent overreaching. It was the determination of the Wisconsin legislature that its citizens should not engage in the type of conduct proscribed in the Fair Dealership Law. Florida should not take it upon herself to countermand this determination by the State of Wisconsin, absent some compelling reason to do so.

In the present case, Florida is seized with no compelling interest which would dictate that a rule of law other than the Wisconsin Fair Dealership Law be applied. In fact, the Wisconsin law serves to protect the best interests of a Florida resident while controlling the conduct, as is appropriate, of a Wisconsin resident. No actual conflict between the interests of the two respective states exists because the best interests of both states are served by an application of the Wisconsin Fair Dealership Law.

Accordingly, the order of the trial court is reversed and the cause remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

LETTS, J., concurs.

MOORE, J., dissents with opinion.

MOORE, Judge,

dissenting:

I respectfully dissent. In my opinion, the order from which this appeal stems is a non-appealable order. A motion to dismiss on this ground was previously denied by the Court at a time when the record was insufficient to make an appropriate determination. Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974).


text:
    Clayton Council DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. II-258.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1978.
    Rehearing Denied Dec. 6, 1978.
    Stephen Lindsey Gorman and Sidney L. Matthew, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant contends on this appeal that the lower court erred in denying his motion for judgment of acquittal on a forgery charge. We disagree and affirm his conviction.

The crime of forgery requires the making of a writing, which falsely purports to be the writing of another, with an intent to defraud. Davis v. State, 111 So.2d 459 (Fla. 1st DCA 1959); Walters v. State, 245 So.2d 907 (Fla. 1st DCA 1971). Endorsement of a check may also be the subject of forgery, and the offense may exist even though the name used is an assumed or fictitious name when it is shown that the assumed or fictitious name was used with intent to defraud. Green v. State, 76 So.2d 645 (Fla.1954).

The check allegedly forged by appellant here was drawn on a Georgia bank and appeared on its face to have been written by a Tally Youmans to an E. P. Stevenson. Two endorsements appeared on the back of the check, one signed E. P. Stevenson and one signed Clayton Davis. The apparent maker of the check, Tally Youmans, testified that he had an account at that bank but had not written the check and did not know an E. P. Stevenson. He further testified that a checkbook of his had been stolen after he loaned a car containing the checkbook to a friend named Brenda Taylor. Brenda Taylor testified and linked appellant to the check in two ways: first she stated that he had used Tally Youmans’ car during the time she had borrowed it; and second, she stated that appellant had told her before this incident that he had come into possession of certain identification cards of the apparent payee of the check, Evelyn Stevenson, and that if she cooperated with him, they could “make some money.” Finally, a State handwriting expert testified conclusively that appellant had written the name Clayton Davis as a second endorsement on the check.

On this record, we believe the State presented sufficient evidence to go to the jury on whether appellant signed the name Clayton Davis as an endorsement to a check drawn on another person’s account with the intent to defraud that person.

AFFIRMED.

MILLS, Acting C. J., and ERVIN and MELVIN, JJ., concur.


author: SMITH, Acting Chief Judge.

text:
    James M. KILPATRICK, Appellant, v. James Russell KEENER, Jr., et al., Appellees.
    No. HH-479.
    District Court of Appeal of Florida, First District.
    Oct. 16, 1978.
    Rehearing Denied Dec. 6, 1978.

      Luke G. Galant of Dawson, Galant, Maddox, Sulik & Nichols, P. A., Jacksonville, for appellant.
    Marion R. Shepard of Matthews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellees.
   SMITH, Acting Chief Judge.

Plaintiff appeals from a circuit court judgment awarding him $1,200 upon a jury verdict finding that he and defendant were equally negligent and that plaintiff’s total damages amounted to $2,400. Plaintiff complains of the trial court’s denial of his motion for a new trial, and of other asserted errors.

Plaintiff, then a high school student, was struck from behind by an extended mirror or antenna of defendant’s vehicle as plaintiff walked with a companion, just on the shoulder of a roadway, with his back to oncoming traffic. Plaintiff was knocked unconscious to the ground, and electroencephalograms indicated that his brain was bruised. Subjective symptoms also indicated, in an orthopedist’s opinion, permanent aggravation of a congenital back defect which previously was neither disabling nor uncomfortable to this high school athlete. Plaintiff’s medical and hospital bills received in evidence amount to approximately $2,180. Based on plaintiff’s complaints, a psychologist diagnosed a traumatic neurosis for which he recommended future therapy costing from $1,500 to $4,000.

The jury obviously doubted plaintiff’s credibility because of a detective’s testimony that he observed plaintiff one night, with two other young men, pushing a steel safe of more than 400 pounds out the back door of a local bakery. Given plaintiff’s complaints of continuing back disability, the detective’s testimony was not inadmissible because of its tainting effect.

Plaintiff urges that the verdict on degrees of negligence and on damages was contrary to the manifest weight of the evidence and resulted from the jury’s passion and prejudice. Had the trial court so found on plaintiff’s motion for new trial, we could not disagree. But the trial court did not so find, and it is not our duty to reweigh the evidence. The jury could have found that plaintiff was substantially negligent in walking perilously close to the roadway with his back to oncoming traffic. The court charged on the statute requiring pedestrians to walk on the shoulder facing traffic. Section 316.130(4), Florida Statutes (1977); Fla.Std. Jury Instr. (Civ.) 4.11. The jury could conceivably have found that plaintiff’s subjective symptoms were exaggerated or fabricated, and that some of the medical services sought were unnecessary. However the jury’s assessment of plaintiff’s damages is rationalized in the light of his indisputable injury, the verdict is, to put it mildly, parsimonious. But the trial court did not disapprove the verdict and neither, in the circumstances, can we. Shaw v. Puleo, 159 So.2d 641 (Fla.1964); Haddock v. Robinson, 289 So.2d 449 (Fla. 1st DCA 1974). See also Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978). We have also considered plaintiff’s contentions concerning the verdict forms submitted to the jury, and we find no error.

AFFIRMED.

ERVIN, J., and MITCHELL, HENRY CLAY, Jr., Associate Judge, concur.


author: BOOTH, Judge.

text:
    Herman L. SPENCER and Cressie M. Spencer, Individually and Good Shepard Memorial Gardens, Inc., a Florida Corporation, Appellants, v. J. B. DEVINE and Rosemary Devine, Appellees.
    No. II-209.
    District Court of Appeal of Florida, First District.
    Oct. 16, 1978.
    Rehearing Denied Dec. 6, 1978.
    Fred J. Krim of Savage, Krim, Simons & Fuller, Ocala, for appellants.
    R. Scott Cross of Matthies & Cross, Harry C. Dozier, Jr., Ocala, for appellees.
   BOOTH, Judge.

This cause is before us on appeal from the final judgment of the Circuit Court, Marion County, cancelling the contract between the parties and denying certain commissions.

Suit was brought by J. B. and Rosemary Devine [Devines], appellees herein, against the corporate defendant, Good Shepard Memorial Gardens, and the individual defendants, Herman and Cressie Spencer [Spenc-ers] who are president and secretary/treasurer of the corporation, respectively. The complaint alleges that the Devines were employed by the corporation to sell cemetery lots on a commission basis; that they faithfully performed their duties but that the corporation was indebted to them for commissions earned during the period of employment. The complaint further seeks to enforce a written stock purchase agreement between the Spencers and Devines, whereby the Devines paid $4,000 to the Spencers as down-payment on 400 shares of stock in the corporation and were to receive the stock certificates evidencing ownership. The complaint alleges the Devines performed in accordance with the terms of the agreement but the Spencers failed and refused to deliver the stock.

The Spencers answered asserting, by way of affirmative defense, that the agreement between the parties contemplated that the outstanding indebtedness owed by the Spencers to one Martin Berry be paid before any of the shares of the corporation would be delivered to the Devines. Berry was the party who, in 1975, sold 1,000 shares of stock in the corporation to the Spencers and who was still owed a balance on the $375,000 purchase price, secured by a pledge of the stock.

The case was tried before the court without a jury. At the conclusion of the plaintiffs’ case, the defendant Spencers moved for a directed verdict. The court then announced a recess during which the parties reached an agreement as to the thirty percent sales commissions and stipulated to $1,000 as a “full liquidation figure” of those commissions owing the Devines. When the hearing resumed, the court unexpectedly announced that the contract was vague and indefinite and that he was going to hold the stock purchase agreement void and also deny the four percent commission. The court did not rule on defendant’s outstanding motion for directed verdict and defendants were given no opportunity to present their case.

The final judgment holds that the agreement between the parties was “so vague and ambiguous that no meeting of the minds ever existed” and the agreement was void ab initio. The court ordered the Spencers to return to the Devines the $4,000 paid for the purchase of the stock and disallowed the four percent “override”' commission claimed by the Devines from the defendant Good Shepard Memorial Gardens. The $1,000 stipulated to as the balance due the Devines on the thirty percent sales commissions was allowed in the judgment.

On appeal, the Spencers point out that the suit was one for breach of contract and that the order of the trial court rescinding or cancelling the contract was outside the issues framed by the pleadings. We agree. Neither side requested cancellation or rescission of the stock purchase agreement. The court’s announcement of its ruling on the contract came at the close of plaintiffs’ case and was both outside the issues framed by the pleadings and premature. Defendants were entitled to have the court rule on their motion for directed verdict and, if that motion was denied, to proceed with the presentation of their case. Appellees’ contention that appellants should have objected to the court’s announcement of its ruling is without merit. Counsel is not expected, much less required, to argue with the court once it has announced its decision. The distinction is between argument to the court, which is proper advocacy, and argument with the court after it has announced a ruling, which is improper.

Appellees Devine have cross-assigned as error the trial court’s ruling that the invalidity of the stock purchase contract with the Spencers precludes, as a matter of law, the Devines’ claim against the corporate defendant for the commissions not covered by the stipulation. We agree that the record does not establish a basis for the court’s ruling on this point.

Accordingly, the judgment below is REVERSED and the cause REMANDED for further proceedings consistent herewith.

SMITH, Acting C. J., and MELVIN, J., concur.


text:
    DEPARTMENT OF REVENUE, State of Florida, Petitioner, v. Honorable James E. JOANOS, Circuit Judge, Second Judicial Circuit, In and For Leon County, Florida, and NOS Corporation (real party in interest), Respondents.
    No. KK-334.
    District Court of Appeal of Florida, First District.
    Oct. 16, 1978.
    Rehearing Denied Dec. 6, 1978.
    Robert L. Shevin, Atty. Gen., and Cecil L. Davis, Jr., Asst. Atty. Gen., for petitioner.
    Thomas J. Ellwanger, Tampa, for respondent NOS Corp.
   BOOTH, Judge.

This cause is before us on Petition for Writ of Prohibition and response thereto. The petition alleges that the Circuit Court, Leon County, is without jurisdiction to consider respondent NOS Corporation’s complaint for declaratory and injunctive relief challenging the validity of the proposed sales tax assessment because proceedings under Chapter 120, Florida Statutes, had already been had on the same matter. Those proceedings terminated, following a hearing under Florida Statute § 120.57, on February 7, 1978, with approval of the recommended order of the hearing officer that respondent pay sales tax, penalties and interest in the amount of $11,126.93. No appeal was taken from the final agency action.

On March 9, 1978, complaint was filed in the Circuit Court. Petitioner moved to dismiss, and, on denial of that motion, filed Petition for Writ of Prohibition here.

Respondent NOS contends it was entitled to proceed in the Circuit Court under Florida Statute § 212.15(4), a statute in effect at the time this action was brought, which provides:

“If any taxpayer or person required by this chapter to remit taxes to the department shall feel aggrieved by any action of the department, he shall have the right within thirty days to appeal to the department for rehearing and reexamination and in support thereof may submit such data as may be relevant. All exceptions and objections to the actions of the department must be filed with the department in duplicate at least ten days prior to the date set for such rehearing and reexamination. If the department’s decision is determined adversely to the taxpayer or person required by this chapter to remit to the department, such person shall have the right within thirty days from notice of such determination to have the department’s determination reviewed in appropriate proceedings in the circuit court of Leon county, and in such review there shall be no presumption in favor of the department’s findings.”

Petitioner contends that the foregoing statute was repealed by implication by the 1974 revision of the Florida Administrative Procedure Act. Respondent points out that the statute remained on the books and was not expressly repealed by the Legislature until May 30, 1978, some two months after this litigation commenced.

Respondent also relies on § 120.73, which provides, in part:

“Nothing in this chapter shall be construed to divest the circuit court of jurisdiction to render declaratory judgments under the provisions of chapter 86 . . .”

Respondent cites DOR v. University Square, Inc., 336 So.2d 371 (Fla. 1st DCA 1976) and DOR v. Estero Bay Development Corp., 336 So.2d 479 (Fla. 2nd DCA 1976) as cases involving use of suits for declaratory judgment to attack the validity of the tax assessments.

We hold that the Circuit Court has jurisdiction. There was no repeal by implication of § 212.15(4) and the remedy there provided is not excluded by prior administrative proceedings. The subsequent repeal of that statute did not operate to divest the court of jurisdiction. In truth, the question is not one of jurisdiction at all, but of policy, the policy being exhaustion of available administrative remedies prior to judicial intervention, as recently stated by the Florida Supreme Court in Gulf Pines Memorial Park v. Oaklawn Memorial Park, Fla., 361 So.2d 695, Opinion filed May 25, 1978:

“We need not review here in detail the extensive analyses of the relation between the administrative procedure act and the jurisdiction of the circuit courts embodied in the Willis[] and Mitchell[] decisions. Section 120.73 states that nothing in the administrative procedure act ‘shall be construed ... to divest the circuit courts of jurisdiction to render declaratory judgments under the provisions of chapter 86.’ On the other hand, we have previously observed that if administrative agencies are to function and endure as viable institutions, courts must refrain from ‘promiscuous intervention’ in agency affairs ‘except for most urgent reasons.’ . . . The determination of whether the circumstances of a particular controversy warrant judicial intervention, then, is ultimately one of policy rather than power, and it is to that policy question that the First District Court of Appeal has addressed itself in Willis and Mitchell.” (e. s.)

Accordingly, the Petition is DENIED.

BOYER, Acting C. J., and MILLS, J., concur.

      . State ex rel. Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977).

      . School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977).


author: HENDRY, Judge.

text:
    FEDERAL DEPOSIT INSURANCE CORPORATION, Appellant, v. Michael GRASSO, Appellee.
    No. 77-1028.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 1978.
    Rehearing Denied Dec. 6, 1978.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellant.
    Leo Greenfield, North Miami, for appel-lee.
    Before HENDRY and HUBBART, JJ., and PARKER, J. GWYNN (Ret.), Associate Judge.
   HENDRY, Judge.

Appellant, plaintiff below, appeals from a final judgment rendered in favor of appel-lee, defendant below, in an action wherein appellant sought to domesticate certain Pennsylvania final money judgments.

Succinctly stated, the record reveals the facts as follows: appellant filed complaint alleging that on May 18,1971, it had recovered a final money judgment against appel-lee in the Court of Common Pleas in Montgomery County, Pennsylvania. It was further alleged that on June 2, 1971, appellant was awarded a second final money judgment against appellee in the same court and that both judgments were due, owing and unpaid. Attached to the complaint and incorporated therein were copies of the “Docket Entries,” “Judgment Indexes” and “Certificates of Exemplification” for each of the judgments. The certificates of exemplification were executed by the Pro-thonotary of the Court of Common Pleas and certified that the documents were true and correct copies of the records in the two eases. The complaint further requested that the Pennsylvania judgments be reduced to Florida judgments and that a final judgment be entered in the principal sum of TWO HUNDRED THIRTY-ONE THOUSAND, EIGHT HUNDRED NINETY-FOUR DOLLARS and THIRTY-TWO CENTS ($231,894.32), representing the sum of the two judgments, together with interest.

Appellee moved to dismiss the complaint. Said motion was denied by the trial judge and appellee subsequently answered the complaint denying the allegations and asserting that the Pennsylvania judgments were invalid in that state. After summary judgment (filed by appellant) and judgment on the pleadings (filed by appellee) were denied, appellant filed a “Notice of Intention to Request Judicial Notice of Foreign Law.” Said notice asserted that while ap-pellee was previously on notice that appellant would rely upon the laws of Pennsylvania, this notice reaffirmed appellant’s intent to so rely. Thereafter, appellant filed a second “Notice of Intention to Request Judicial Notice of Foreign Law,” wherein appellant specifically referred to certain statutes and rules of civil procedure of Pennsylvania. Appellee did not respond, controvert or criticize the form in which the notices to rely on foreign law had been presented.

At trial, appellant presented the statutes and rules applicable to the case and found in its notice of intention to rely on foreign law, and the exemplified (certified) copies of the records in both the Pennsylvania cases. Notwithstanding the above, the trial judge entered a final judgment in favor of appellee. From that final judgment, this appeal has been taken.

There appears to be but one issue in this case, to-wit: whether, pursuant to Section 92.031, Florida Statutes (1977), a notice of reliance on foreign law must be contained in a pleading. The trial judge was apparently of the view that the above statute requires that a notice of reliance on specific rules and statutes of other jurisdictions be specifically set forth in a pleading. Based upon appellant’s failure to plead foreign law, the trial judge entered judgment in favor of appellee.

Section 92.031, Florida Statutes (1977), in pertinent part, reads as follows:

“92.031 Judicial notice of foreign laws; uniform act.
“(1) Every court of this state shall take judicial notice of the common law and statutes of every state, territory and other jurisdiction of the United States.
“(2) The court may inform itself of such laws in such manner as it may deem proper, and the court may call upon counsel to aid it in obtaining such information.
* * * * * *
“(4) Any party may also present to the trial court any admissible evidence of such laws, but, to enable a party to offer evidence of the law in another jurisdiction or to ask that judicial notice be taken thereof, reasonable notice shall be given to the adverse parties either in the pleadings or otherwise.” [Emphasis supplied.]

The above statute clearly offers alternative means by which a litigant may notify the court of his or her intention to rely upon the law of a foreign jurisdiction. Reasonable notice to the adverse party appears to be the only prerequisite to the means of notification to be utilized by a party intending to rely upon foreign law.

Sub judice, the record affirmatively shows that appellee did in fact have reasonable notice of appellant’s intention to rely upon certain statutes and rules of Pennsylvania. Further, the record reveals that the method employed by appellant in notifying the court of its intention to rely was, in light of the above statute, not improper.

Accordingly, it is our opinion that the trial judge erred in rendering final judgment in favor of appellee in that both the method and means employed by appellant to notify appellee of its intention to rely upon certain statutes and rules of Pennsylvania did not contravene the purpose of Section 92.031, i. e. sufficient notice. See Aboandandolo v. Vonella, 88 So.2d 282 (Fla.1956); and United Mercantile Agencies v. Bissonnette, 155 Fla. 22, 19 So.2d 466 (1944).

While appellant had adequately notified both the court and the opposing party of its intention to rely, it is, however, not entitled to domesticate the judgments until proof has been shown that said foreign judgments were obtained in compliance with the laws of Pennsylvania. See Kingston v. Quimby, 80 So.2d 455 (Fla.1955); and Aboandandolo v. Vonella, supra. Therefore, the cause is remanded to the trial court with directions to conduct a hearing to determine the procedural propriety of the foreign judgments in light of the Pennsylvania law relied upon by appellant.

Reversed and remanded with directions.


text:
    BARNETT BANK OF MIAMI BEACH, N.A., Appellant, v. Jules LIPP, Appellee.
    No. 77-1137.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 1978.
    Rehearing Denied Dec. 6, 1978.

      Rosenberg, Rosenberg, Reisman & Glass and Stephen H. Reisman, Miami, for appellant.
    Dubbin, Schiff, Berkman & Dubbin and Evan J. Langbein, Miami, for appellee.
    Before HENDRY, J., and CHARLES CARROLL (Ret.), and PARKER, J. GWYNN (Ret.), Associate Judge.
   HENDRY, Judge.

Appellant/defendant appeals from a final judgment rendered pursuant to a jury verdict in favor of appellee/plaintiff in an action for conversion of a check. Appellee cross-appeals from that same final judgment.

Briefly stated, the facts are that appellee filed a complaint against appellant alleging that the latter, as a collecting bank, had cashed a SEVEN THOUSAND ($7,000.00) DOLLAR check bearing the name of appel-lee as payee. The check, itself, was drawn by DuPont Glore Forgan, Inc., at the request of its employee, Arthur Novick, who handled appellee’s stock brokerage account at DuPont. Appellee was named as payee of the check and his account was debited by Du Pont. Appellee did not authorize the check, nor did he see the check until after companion litigation against Du Pont in federal court had been terminated. Novick, after forging appellee’s endorsement and having said endorsement guaranteed by a vice-president of Du Pont, endorsed the check in his own name and cashed said check at appellant bank, where he maintained an account. Appellee alleged that appellant could have prevented the fraud from occurring by exercising due care.

Appellant answered the complaint and raised two affirmative defenses. Firstly, appellant asserted that pursuant to Section 673.419(3), Florida Statutes (1977), it had acted solely as a collecting bank, and, as such, had dealt with the check “in good faith and in accordance with the reasonable commercial standards applicable to banking institutions.” Secondly, appellant alleged that any liability owed to appellee was released and discharged by virtue of an action filed by appellee in federal court.

Appellant first argues that a payee is not entitled to recover against a collecting bank which has allegedly failed to exercise due care in cashing a check bearing the forged endorsement of the payee. We disagree. Pursuant to Jett v. Lewis State Bank, 277 So.2d 37 (Fla. 1st DCA 1973), the beneficial ownership of a check is in the payee, and thus, said payee can maintain an action against a collecting bank for the conversion of a check. See also Siegel Trading Co., Inc. v. Coral Ridge National Bank, 328 So.2d 476 (Fla. 4th DCA 1976) and Annot., 100 A.L.R.2d 670.

Appellant next contends that pursuant to Section 673.405(l)(c), Florida Statutes (1977), the forged endorsement of the payee’s signature was “effective” as far as a collecting bank is concerned. Generally, this provision has been limited to actions between the drawer-maker and the drawee-bank. See Annot. 23 A.L.R.3d 932, 1008. The policy of said section is to shift the loss of a forged endorsement by employees of the maker-employer to the employer, rather than the drawee-bank, based upon the view that the employer is in a better position to guard against employee forgery of endorsements, as compared to a drawee bank. New Amsterdam Casualty Company v. First Pennsylvania Banking & Trust Co., 451 F.2d 892 (3d Cir. 1971). Sub judice, Section 673.405(l)(c) is inapplicable in that appellee, as a payee, is suing a collecting bank. Here, there is no policy reason for shifting the risk of loss to the payee as appellant was in a superior position to prevent fraud against appellee from occurring.

Appellant lastly contends that even assuming the subject check was cashed over a forged endorsement, it was relieved of liability as a collecting bank, because it acted in good faith, in accordance with reasonable commercial standards and did not retain the check or its proceeds. See Section 673.419(3), Florida Statutes (1977). Siegel Trading Co., Inc. v. Coral Ridge National Bank, supra. “Good faith” and “reasonable commercial standards” are, of course, factual questions to be determined by the trier of fact. Sub judice, appellant failed to present evidence of such reasonable commercial standards in the industry, simply arguing that it had an absolute right (as a collecting bank) to rely on the endorsement.

In light of appellant’s failure to present evidence concerning the applicable standards of the banking industry, we cannot say, as a matter of law, that the jury erroneously determined that appellant’s blind reliance on the endorsement amounted to negligence. Our decision is, in part, based upon certain testimony presented by appellee to the effect that appellant’s cashier failed to obtain the initials of a bank officer prior to cashing the check, notwithstanding the fact that the check was for SEVEN THOUSAND ($7,000.00) DOLLARS and was approximately one month old at the time of the transaction. Appellee argued to the jury that this was not sound banking principles. Said argument was not countered by appellant.

Finally, appellee cross-appeals from that portion of the final judgment wherein the trial judge granted- appellant’s motion for a set-off, pursuant to Section 768.041, Florida Statutes (1977). The set-off of TWO THOUSAND, TWO HUNDRED, THIRTY-THREE ($2,233.33) DOLLARS and THIRTY-THREE CENTS was granted upon the fact that appellee had previously settled a federal lawsuit against Du Pont for fraud pursuant to Section 10(b) of the Securities and Exchange Act of 1934 and Rule 10(b)5 promulgated by the Securities and Exchange Commission. It is appellee’s contention that the set-off was erroneous in that (1) appellant was not a party to the federal lawsuit, (2) the causes of action in the two lawsuits were completely different, i. e., securities violation versus common law conversion, and (3) the amount set-off by the trial judge was purely arbitrary.

After a careful review of the record, we must agree with appellee’s contentions. Section 768.041, Florida Statutes (1977), authorizes a set-off from a judgment where joint tortfeasors are involved and where it appears that a release has been given by one tortfeasor in partial satisfaction for a claim made against the joint tortfeasors based upon the same cause of action. Devlin v. McMannis, 231 So.2d 194 (Fla.1970); Sun First National Bank of Melbourne v. Batchelor, 321 So.2d 73 (Fla.1975).

Sub judice, the federal claim against Du Pont concerned a wholly separate and independent cause of action based upon a violation of the securities law. In addition, appellant was not a party to the federal litigation and was not a party to the release executed by appellee terminating the federal suit. Also, the claim against appellant had not even matured until four days after the federal suit had been settled because of difficulty in obtaining the check through discovery and by so obtaining, discovering the identity of the collecting bank. Therefore, we believe the trial judge erred in granting appellant a set-off and reverse that portion of the final judgment granting same.

Accordingly, that portion of the final judgment authorizing a set-off is hereby reversed and remanded with directions to enter judgment in accordance with the jury verdict. In all other respects, the final judgment is affirmed.

Affirmed in part; reversed and remanded with directions, in part.


text:
    DADE COUNTY, a political subdivision of the State of Florida, Appellant, v. FLORIDA MINING AND MATERIALS CORPORATION, a Florida Corporation, Appellee.
    No. 77-1223.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 1978.
    Rehearing Denied Dec. 6, 1978.
    Stuart L. Simon, County Atty., and Stanley B. Price, Asst. County Atty., for appellant.
    Frates, Floyd, Pearson, Stewart, Rich-man & Greer and Ray H. Pearson, Miami, for appellee.
    Before HENDRY and BARKDULL, JJ., and PARKER, J. GWYNN (Ret.), Associate Judge.
   PER CURIAM.

Dade County, respondent in the trial court, appeals an order granting the appel-lee’s petition for writ of certiorari and directing the County to grant an unusual use and variance allowing the appellee to commence proposed mining activities.

The order recites the facts out of which the litigation arose, and reads as follows:

* * * * * *
“THIS CAUSE came on to be heard before this Court on April 22, 1977, upon Petition for Writ of Certiorari filed by FLORIDA MINING & MATERIALS CORPORATION (hereinafter ‘FLORIDA MINING’). This Court has considered the briefs, the Record and oral argument of the attorneys representing the parties, and after full consideration, grants the Petition for Writ of Certiorari.
“BACKGROUND AND FINDINGS OF FACT
“In March 1973, FLORIDA MINING acquired approximately 566 acres of land in Section 14, Township 55 South, Range 38 East, Dade County, Florida for the purpose of mining construction aggregates. This land is located in an undeveloped portion of far western Dade County, approximately one mile west of Krome Avenue (S.W. 177th Avenue) and one mile south of the Tamiami Trail (S.W. 8th Street). The land is within the environmental sensitivity sub-zone (ES — 2) known as the Shark River Slough which is part of the East Everglades Moratorium Area pursuant to the Comprehensive Development Master Plan for Metropolitan Dade County (hereinafter referred to as ‘MASTER PLAN’).
“FLORIDA MINING requested an unusual use and variance so that it could utilize its property for its proposed ‘Reclamation Concept’ (mining). The Zoning Appeals Board denied FLORIDA MINING’S Petition for the unusual use and variance in Resolution No. 4-ZAB-199-76 and FLORIDA MINING presented its Petition and appeal from the Zoning Appeals Board decision to the County Commission for Metropolitan Dade County, Florida. The Petition for an unusual use and variance was denied with prejudice by the County Commission on October 26, 1976 in Resolution No. Z-302-76. The denial with prejudice by the County Commission constitutes the final administrative hearing and was the appropriate precedent to the filing of a Petition for Writ of Certiorari with this Court.
“FLORIDA MINING’S reclamation concept prepared by Milo Smith & Associates, Inc., would allow four lake excavations in conjunction with rock mining activities to be conducted on the land for a jperiod- of approximately 10 to 15 years. This proposal is essentially identical to the uses being made of adjacent land and more particularly sections 24, 25, 26, 36 of the same township. These sections are owned by General Portland Cement which has been permitted by the County Commission to mine similar construction aggregates and remodel and expand its existing cement plant in the area. The County Commission allowed General Portland Cement to conduct these activities in Resolution No. Z-114-75 dated April 23, 1975, which was adopted subsequent to the adoption of the MASTER PLAN (as admitted by counsel for the County during the hearing). Additionally, an unusual use permit was granted by the same Resolution to allow an excavation on section 26 for mining aggregate materials similar to those which are the subject of FLORIDA MINING’S reclamation concept.
“As part of the Record in this case and as part of its presentation before the appropriate County authorities, FLORIDA MINING presented expert testimony showing that the proposed reclamation concept would not have a significant adverse environmental effect upon the water quality of the area. Significantly, FLORIDA MINING (through its project designer, Milo Smith & Associates, Inc.) employed Dr. J. H. Sullivan, currently of Water & Air Research, Inc., to analyze the environmental effects of the proposed reclamation concept. Dr. Sullivan was formerly the team leader and principal author of the East Everglades Moratorium Study, which has been incorporated into the MASTER PLAN and which study provided the basis for zoning the area of land in question as an environmental sensitivity sub-zone.
“Dr. Sullivan and FLORIDA MINING presented evidence in the form of testimony and exhibits at the County Commission hearing regarding the environmental impact on the water quality of the proposed reclamation concept. Dr. Sullivan also concluded that based upon his studies, analysis and expertise, the proposed mining activity would produce no significant impact on water quality in the Biscayne Aquifer. Additionally, Dr. Sullivan pointed out that the project would have little or no effect on the sheet flow of water as it passes the subject property because levies and canals to the north and east of the project, built by various governmental authorities, had already almost completely halted and sheet flow. Also, the mined out area would present no impairment to the flow since it creates no significant barrier.
“The zoning guidelines for the subject property prohibit paved surfaces, roadbeds and structures, and suggest passive recreational activities as an appropriate use for the land in question. Although the County has suggested that the land could be used for five acre home-sites, this Court finds that the prohibition of roads and structures negates this possibility.
“The main objections raised in the Record by the County to the project were that it did not conform with the present zoning and did not meet the environmental requirements of this particular sub-zone.
“CONCLUSIONS OF LAW
“The review of zoning matters via a Petition for Writ of Certiorari in Dade County is a quasi judicial function. Dade County vs. Marca, 326 So.2d 182 [183] (Fla.1976); Centex Home Corp. vs. Metropolitan Dade County, 318 So.2d 149 (3 DCA 1975); Dade County vs. Metro Improvement Corp., 190 So.2d 202 (3 DCA 1966); Dade County vs. Carmichael, 165 So.2d 227 (3 DCA 1964); Baker vs. Metropolitan Dade County, 237 So.2d 201 (3 DCA 1970). This Court cannot substitute its judgment as to the proper zoning for that of the zoning authority, but can only review the applicable zoning to see whether it is arbitrary, capricious, unreasonable or amounts to a confiscation of the subject property. Town of Hialeah Gardens vs. Hebraica Community Center, Inc., 309 So.2d 212 (3 DCA 1975); and William Murray Builders, Inc., vs. City of Jacksonville, 254 So.2d 365 [364] (1 DCA Fla.1971). There must be substantial competent evidence in the record to establish that the zoning matter is fairly debatable in order to sustain the present zoning. Shaughnessy vs. Metropolitan Dade County, 238 So.2d 466 (3 DCA 1970). Accordingly, the Court makes the following independent conclusions of law:
“1. Because Dade County has permitted mining activities essentially identical to that proposed by the Petitioner on nearby tracts of land even after the adoption of the MASTER PLAN, which prohibited such activities in the subject area, the Court finds that the County has acted in an arbitrary, capricious, discriminatory and unreasonable manner in refusing to grant the variance and unusual use.
“2. This Court finds that there was no substantial competent evidence in the record to support the denial of the unusual use and variance and the classification is not fairly debatable. Although the County presented objections to the granting of the unusual use and variance, the mere existence of a disagreement between the Petitioner and the County does not mean that the zoning matter is fairly debatable and immune to judicial reversal. G. M. Davis vs. Situs, Inc., 275 So.2d 600 (1 DCA 1973).
“3. Because the present zoning of the property allows uses such as passive recreation and prohibits roadbeds and structures, this Court holds that the present zoning is confiscatory, arbitrary and capricious in that it only allows uses of the land which are consistent with public ownership and not private ownership. See New Products Corp. vs. City of North Miami, [271] 371 So.2d 24 (3 DCA 1972). As such the present zoning denies the owner the beneficial use of the property which cannot be sustained. Forde vs. City of Miami Beach, [146 Fla. 676,] 1 So.2d 642 (1941).
“There is no dispute that Dade County may place reasonable restrictions on the use of property through its zoning powers. However, as to this property those restrictions are, as a whole, unreasonable, discriminatory, arbitrary and capricious. They have no reasonable basis in the police power and are an unconstitutional taking of private property.
“RELIEF GRANTED
“Accordingly, it is
“ORDERED and ADJUDGED as follows: “1. The Petition for a Writ of Certiorari is granted and Dade County is directed to grant an unusual use and variance allowing the proposed mining activities to commence as set forth in the ‘Reclamation Concept’, which is a part of this record.
“2. Upon proper application by the Petitioner, Dade County shall grant all other permits necessary to allow the mining excavations and operations to begin.
“3. This Court reserves jurisdiction for the purpose of enforcing this Order and taxing costs against Dade County.”
* * * * * *

We reject the conclusions that the zoning, as applied to the property involved, was confiscatory or deprived the owner of any beneficial use. In this connection, see: Dade County v. Yumbo, S.A., 348 So.2d 392 (Fla. 3d DCA 1977); Moviematic Industries Corp. v. Board of County Commissioners of Metropolitan Dade County, 349 So.2d 667 (Fla. 3d DCA 1977). However, we do sustain the trial court’s finding that the denial of the variance or unusual use permit was discriminatory.

The various zoning classifications set forth in Chapter 33, Code of Metropolitan Dade County are silent as to the right or prohibition of mining or quarrying within the districts. The right to operate a quarry can only be obtained by the granting of an unusual use pursuant to Section 33-13, Code of Metropolitan Dade County. The granting or refusal thereof is to be determined by the facts of the individual case, viewed in light of the governing body’s right to reasonably regulate mining operations under its police powers to advance the community’s interest in health, safety, morals or welfare. Davidson County v. Rogers, 184 Tenn. 327, 198 S.W.2d 812 (1947); Anno. 10 A.L.R.3d 1226, 1250 & 7(a); Vol. 2, Anderson, Law of American Zoning (1968) & 11.64. The only absolute prohibition to the operation of a quarry within the confines of Dade County is found in the Comprehensive Development Master Plan wherein quarrying is prohibited in an area classified by the plan as an Environmental Sensitivity Zone. The Comprehensive Development Master Plan, as adopted by the County Commission, is a guide to future development in Dade County to be conformed with when applying for future development. Section 2-114, Code of Metropolitan Dade County. However, the Master Plan is not beyond being altered by the courts where, under the facts of a particular case, strict adherence to the Master Plan proves to be unreasonable, arbitrary and/or confiscatory.

In the instant case there is a plethora of evidence showing that the proposed use of the appellee’s property would not constitute a land use detrimental to the public health, safety, welfare or morals. The proposed use is not so violative of the intent of the Master Plan so as to deprive the appellee of its requested use. This was apparently recognized by the appellant when, shortly after adoption of the Master Plan (while it was still fresh in their minds) it granted similar unusual uses to other properties immediately to the northwest, south, and east of the appellee’s property. Therefore, it was an arbitrary and unreasonable act for the County to deny the relief sought, and the action of the trial court in granting the writ of certiorari on this ground is affirmed.

Affirmed.

      . it is to be noted that these cases were decided subsequent to the entry of the order appealed.