author: GILLESPIE, Chief Justice.

text:
    Larry Darnell HOWARD v. STATE of Mississippi.
    No. 48600.
    Supreme Court of Mississippi.
    Sept. 29, 1975.
    Rehearing Denied Oct. 20, 1975.
    Johnson & Walker, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, SMITH and ROBERTSON, JJ.
   GILLESPIE, Chief Justice.

Larry Howard was convicted in the Circuit Court of Hinds County of the crime of attempted armed robbery and sentenced to a twenty-five year term in the penitentiary.

The victim was a young female secretary who was alone in her office in the Bankers Trust Plaza Building in Jackson during the noon hour. A young man entered the office inquiring of a man who did not work there, and he was so informed. The young man left but returned in a few minutes, pointed a pistol at the victim and demanded money. She had none. He pulled the victim into an office, made sexual advances, and, when she answered the telephone contrary to the intruder’s order, she was struck on the head with the gun which fired into the wall. The intruder then left. The victim observed the intruder about ten minutes.

The victim viewed a number of photographs the day of the crime and identified Howard, a sixteen-year-old black male. The next day Howard was arrested and the victim picked Howard out of a lineup. She requested another lineup and again identified Howard. Other lineups were held and Howard was identified by two other persons who saw a young black male in the building at about the time of the attempted robbery. Four other people who saw a black male in the building at or about the time of the attempted robbery were unable to identify Howard. Howard offered several alibi witnesses.

The principal question is whether Howard was denied due process because of the trial court’s refusal to grant a preliminary evidentiary hearing on the motion to suppress identification.

Defendant filed in advance of trial a motion to suppress identification by the victim and all other persons and alleged that after his arrest defendant was placed in a series of lineups at the police station and was identified as the person who committed the crime of armed robbery by the victim and other persons. He alleged (1) he was denied counsel at the lineups and denied the right or opportunity to be represented by counsel, and (2) the lineups were held under conditions which were imper-missibly suggestive with respect to identifying defendant as the perpetrator of the crime. The motion stated conclusions only.

We find that the first ground assigned in the motion is not well taken. The lineups were conducted prior to indictment. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).

On the due process aspect of the motion to suppress identification, the court, at a hearing prior to trial on the merits, declined to hear evidence and inquired of defendant’s counsel what testimony he intended to offer. Counsel stated that he intended to offer the defendant and his mother, the people who identified defendant, and two officers who were under subpoena. The court ruled that evidence should be offered at the trial of the case. Counsel requested to make a tender of the proof, which the court allowed. He dictated a statement of what defendant and his mother would testify, and their testimony contained no facts that would show that the lineup identifications were illegal. The officers who were under subpoena were called during the trial. The three witnesses who identified defendant testified during the trial in chambers outside the presence of the jury.

The victim first identified the defendant from photographs. She testified in chambers that she was shown-a large number of photographs and within a short time identified the defendant. There was nothing in the testimony to indicate that there was anything unduly suggestive concerning her identification of the defendant by photographs prior to the lineups. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Court stated:

Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method’s potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power' or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misiden-tification. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967, 18 L.Ed.2d 1199, and with' decisions of other courts on the question of identification by photograph. 390 U.S. at 384, 88 S.Ct. at 971.

The defendant’s counsel vigorously requested a full evidentiary hearing on all aspects of the lineup identifications of the defendant and the court should have conducted a full hearing in advance of trial as requested. The stated question has given the Court considerable concern and the record has been examined and re-examined to determine if the totality of the circumstances as revealed by the entire record shows that the defendant was denied due process. We have concluded that it does not.

The leading case of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), dealt at length with both the necessity for counsel to be present at a post-indictment identification as well as with the determination of whether the in-court identification had an independent origin, and whether, in any event, the introduction of the evidence was harmless error under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The Wade case was reversed because the Court stated that on the record before it, “We cannot make the determination whether the in-court identifications had an independent origin.”

In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), which involved a pre-indictment, out-of-court identification of a defendant without counsel, the Court declined to impose the per se exclusionary rule. In Kirby, as it had earlier said in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the Court said that it is always necessary to scrutinize any pre-trial confrontation, and due process forbids a lineup that is unnecessarily suggestive and conducive to irreparable mistaken identification.

In Poole v. State, 216 So.2d 425 (Miss.1968), this Court analyzed the Federal standards, and, quoting from Wade, stated as follows:

A per se exclusionary rule was not applied in Wade, Stovall or Gilbert, supra, to all in court identifications which occurred after illegal confrontations. The “independent source” doctrine formulated by Justice Holmes was recognized by Wade as being available to re-establish the validity of the offered evidence. “Of course this does not mean that the facts thus obtained [illegally] become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, * * *.” Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920).
The Supreme Court in Wade quotes with approval the test formulated in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) to be used in determining the application of the independent source doctrine.
Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Maguire, Evidence of Guilt, 221 (1959). 371 U.S. at 488, 83 S.Ct. at 417.
This test is also translated by Wade into language applicable to the identification problem.
[T]o establish by clear and convincing evidence that the in court identifications were based upon observations of the suspect other than the line up identification. 388 U.S. at 240, 87 S.Ct. at 1939.

A study of the authorities indicates that the per se exclusionary rule does not apply to this case; and the in-court identification was admissible because the state established by clear and convincing evidence that the in-court identification was based upon observations of the suspect other than at the lineup identifications. We are of the opinion that there is no showing of illegality in either the photographic identification of the defendant or of the several lineup identifications.

The victim saw the attempted robber twice: once briefly, and the second time, about ten minutes. State’s witness, George, saw him twice: the first time about a minute and the second time two or three minutes, and she talked with him both times. State’s witness, Crandall, who also made an in-court identification, had a two minute conversation with him. It seems to the Court that the trial court had ample reason for his finding that the state established by clear and convincing evidence that the in-court identifications were based on observations other than the lineup identifications.

The fact that the testimony concerning the lineup identifications was brought out in chambers during the trial rather than at a pretrial hearing on the motion to suppress is an insufficient basis to justify a reversal of the case.

Complaint is made that the state offered evidence of the lineup identifications. This evidence, however, was introduced by the defendant.

The other two questions raised, involve the manner and place of punishment and the length of the sentence. It is contended that twenty-five years for an attempted robbery is cruel or unusual punishment within the meaning of the Constitution of the United States and the Constitution of Mississippi. The Court is not indifferent to matters of punishment, but our system does not permit a review other than on constitutional grounds. We are unable to state that the term meted out to the defendant in this case constitutes cruel or unusual punishment. The fact that the defendant was only sixteen years of age at the time the offense was committed is a factor that no doubt was taken into consideration by the trial judge. No doubt, he felt that he was justified in applying adult punishment for an offense so grievous as attempted armed robbery, which could easily have resulted in the death of the victim.

We have given this case careful consideration and conclude that the record does not reveal reversible error. The case is therefore affirmed.

Affirmed.

RODGERS, P. J., and PATTERSON, INZER, SUGG, WALKER and BROOM, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    A. H. “Country” BROWN v. CITY OF VICKSBURG.
    No. 48782.
    Supreme Court of Mississippi.
    Oct. 6, 1975.
    Bacon & Smith, Arthur F. Jernigan, Jr., Jackson, Eaves & Eaves, Louisville and Jackson, for appellant.
    Ramsey, Bodron, Thames & Robinson, Ward, Martin, Terry, Way & Parker, Vicksburg, for appellee.
    Before GILLESPIE, C. J., and SMITH and ROBERTSON, JJ.
   Appeal from Chancery Court, Warren County; J. D. Thames, Chancellor.

Affirmed.


text:
    Tommy Joseph LANDRY v. LITTON SYSTEMS, INC.
    No. 48352.
    Supreme Court of Mississippi.
    Oct. 6, 1975.
    Rushing & Guice, Biloxi, for appellant.
    White & Morse, Paul M. Franke, Jr., Eldon L. Bolton, Jr., Gulfport, for appellee.
    Before GILLESPIE, C. J., and SMITH and ROBERTSON, JJ.
   Appeal from Circuit Court, Jackson County; Darwin M. Maples, Judge.

Affirmed.


author: RODGERS, Presiding Justice.

text:
    Carroll FLEMING and Paul Fleming v. STATE of Mississippi.
    No. 48629.
    Supreme Court of Mississippi.
    Sept. 22, 1975.
    Rehearing Denied Oct. 20, 1975.
    Murray L. Williams, Water Valley, for appellants.
    A. F. Summer, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before RODGERS, SUGG and BROOM, JJ.
   RODGERS, Presiding Justice.

The appellants, Carroll and Paul Fleming, were indicted, tried and convicted in the Circuit Court of Calhoun County, Mississippi, on a charge of burglary. They were each sentenced to serve a term of seven (7) years in the state penitentiary, and from this judgment they have appealed to this Court.

We have examined the record in the light of the splendid briefs; we have read the authorities cited in support of the suggested errors and have failed to find an error on which a reversal of the trial judgment may be predicated.

The conviction in this case was predicated upon the sworn testimony of a co-conspirator, a man with a long criminal record. The appellants earnestly complain of this testimony under several alleged errors of the trial court. However, the weight and worth of the testimony is for the jury. This Court has long been committed to the proposition that the uncorroborated testimony of an accomplice, when reasonable, is sufficient to sustain a verdict of conviction. See the authorities cited in Moore v. State, 291 So.2d 187 (Miss.1974).

The appellant argues, however, that the uncorroborated testimony of an accomplice is looked on with suspicion, [we so held in Moore, supra] and, therefore, defendant should have been granted Instruction No. 13 so stating. This instruction was properly refused for several reasons. First, instructions on the personal interest of a witness or on the weight of the testimony are prohibited by statute. Bryson v. State, 291 So.2d 693 (Miss.1974). Second, the granting of a cautionary instruction as to the testimony of an accomplice is discretionary with the trial judge and is not the subject of error on appeal to this Court. Wellborn v. State, 140 Miss. 640, 105 So. 769 (1925); Cheatham v. State, 67 Miss. 335, 7 So. 204 (1890).

The court was correct in denying Instruction No. 17. This instruction is another of the “false in part, false in all” [falsus in uno, falsus in omnibus] instructions on the weight to be given to the testimony of a witness. We have condemned this instruction so often that we hope it should be plain to all that the instruction is not proper. Butler v. State, 245 So.2d 605 (Miss.1971).

We do not find a reversible error among the other alleged errors argued by the appellants.

The judgment of the trial court is therefore affirmed.

Affirmed.

GILLESPIE, C. J., and PATTERSON, INZER, SMITH, ROBERTSON and WALKER, JJ., concur.


author: PATTERSON, Justice:

text:
    James L. GREEN et al., Defendants-Appellants, v. WINONA ELEVATOR COMPANY, a Mississippi Corporation, Complainant-Appellee.
    No. 48332.
    Supreme Court of Mississippi.
    Oct. 6, 1975.

      Eaves & Eaves, Jackson & Louisville, for defendants-appellants.
    Schissel & Harrigill, W. S. Stuckey, Jr., Greenwood, for complainant-appellee.
    Before PATTERSON, INZER and WALKER, JJ.
   PATTERSON, Justice:

This creditor’s suit arises from a decree of the Chancery Court of Leflore County favorable to the complainant. There Wi-nona Elevator Company, hereinafter Wi-nona, sued James L. Green, hereinafter Green, his wife and son for fraudulently conveying, it is alleged, a large quantity of soybeans. The principal issue is venue, occasioned by the situs of the soybeans in Leflore County and Green’s residence in Choctaw County.

On February 16, 1973, Green entered into a contract with Winona, a Mississippi corporation, with its principal place of business in Montgomery County for the delivery of 10,000 bushels of soybeans to it on or before December 31, 1973, for $4.15 per bushel.

In reliance upon this agreement Winona contracted the sale of 10,000 bushels of beans to the Co-Op Elevator Company of Greenwood, Leflore County. When Green failed to deliver as he had agreed to do, Winona purchased soybeans at a higher price to fullfill its contract with Co-Op Elevator Company.

After December 31, 1973, Winona demanded delivery of the beans from Green and upon his failure to deliver in accord with the contract, billed him for $13,500, the difference between the price of the beans that Green had agreed to deliver and the price the company was required to pay for them on the open market. Thereafter, Winona received information that Green had stored approximately 16,132 bushels of soybeans in the Co-Op Elevator Company of Greenwood, and filed its bill in Leflore County alleging that Green had fraudulently conveyed soybeans owned by him to his wife and son.

An affidavit of sequestration was also filed to detain 2,250 bushels of the beans, aggregate value of $13,500, within the state to protect the complainant’s interest.

The defendant, preliminary to trial, moved for a change of venue to Choctaw County, his place of residence, invoking Mississippi Code Annotated section 11-5-5 (1972) which states in part that such change may be made “upon the same terms, and for the same causes provided for in the circuit court, . . . ” and, of course, Mississippi Code Annotated section 11-11-3 (1972) provides, with some exceptions, that venue belongs to the county of the residence of the defendant. This motion was overruled by the trial court. We affirm.

The bill of complaint alleges that Green fraudulently conveyed the greater portion of the soybeans to his wife and son for the purpose of hindering, delaying or defrauding the complainant from subjecting the beans to the satisfaction of its demand arising from the breach of contract. The bill of complaint is in accord with Mississippi Code Annotated section 11-5-75 (1972) entitled Creditors may attack fraudulent conveyances, wherein it is provided that writs of sequestration may issue to establish a lien upon the property of the debtor to protect the creditor’s interest, and see Griffith, Mississippi Chancery Practice, section 495 (2d ed. 1950).

In determining venue of a chancery suit it is necessary to consider the appropriate statute. In Griffith, Mississippi Chancery, Practice, section 151 (2d ed. 1950) it is stated:

The venue of suit in equity in our state is governed entirely by statute.

There do not appear to be any specific provisions in the sequestration statute, Mississippi Code Annotated section 11 — 29— 1 et seq. (1972) establishing venue, nor do we find any Mississippi cases thereon. This necessitates consideration of the general statute on venue appertaining to chancery courts. Mississippi Code Annotated section 11-5-1 (1972) in part provides :

. . . [S]uits respecting real or personal property may be brought in the chancery court of the county in which the property, or some portion thereof, may be; .

The allegations of the bill of complaint and the evidence thereon reveal that the personal property, the subject of this suit, was located in Leflore County. In our opinion it necessarily follows that venue was in that county since the specific terms of Mississippi Code Annotated section 11-5-1 (1972), supra, prevail over the general terms of Mississippi Code Annotated section 11-11-3 (1972) which places venue generally in the county of the defendant’s residence “except where otherwise provided,” this suit being in one of the categories otherwise provided for.

The remaining assignments of error concerning violation of the gambling statutes and unconscionability of the contract have been reviewed and in our opinion are of insufficient merit to require the cause to be reversed.

Affirmed.

GILLESPIE, ,C. J-, RODGERS, P. J., and SMITH, ROBERTSON, SUGG and BROOM, JJ., concur.


author: WALKER, Justice:

text:
    John H. WILLIAMS v. Donald Ray MICHAEL.
    No. 48962.
    Supreme Court of Mississippi.
    Sept. 29, 1975.

      Beach, Beach, Luckett & Hanbury, Jackson, for appellant.
    Wise Carter Child Steen & Caraway, Charles T. Ozier, Jackson, for appellee.
   ON MOTION TO DISMISS APPEAL

WALKER, Justice:

The appellee has filed a motion to dismiss this appeal and assigns as grounds therefor the following:

(1) That a final judgment in favor of the defendant, movant-appellee herein, was entered on the minutes of the County Court of the First Judicial District of Hinds County, Mississippi, on June 6, 1974.
(2) That the May 1974 Term of the County Court of the First Judicial District of Hinds County, Mississippi, ended on June 7, 1974.
(3) That although a notice to court reporter and designation of the record to be prepared was filed by the plaintiff, appellant herein, on June 13, 1974, an appeal bond was not approved and filed with the aforesaid county court until July 11, 1974, being more than ten days after the final judgment was entered on the minutes of the county court. (Mississippi Code Annotated section 11-51-79 (1972)). No motion for a new trial was filed.

The thrust of appellee’s motion to dismiss is that the circuit court did not acquire jurisdiction to consider the appeal from county court and consequently there was nothing from which to appeal from the circuit court to the Supreme Court. The appellant concedes that no appeal bond was filed in county court within the required ten days; and, that in numerous cases from Flowers v. Trotlos, 172 Miss. 305, 160 So. 581 (1935) to Parkman v. Mississippi State Highway Commission, 250 So.2d 637 (Miss.1971), this Court has consistently held that the filing of an appeal bond within ten days from the entry of judgment in county court to be jurisdictional. However, appellant contends that the recent decision in Haralson v. State, 308 So.2d 222 (Miss.1975), overruled the cases by implication. In that case, the Court overruled Mayflower Mills v. Breeland, 168 Miss. 207, 149 So. 787 (1933), and all other cases which followed it insofar as they had held that the giving of notice to the court reporter within the prescribed time was jurisdictional. The Court went on to emphasize in Haralson that we were not changing the rule that the notice must be given as heretofore required, but were only holding that it was procedural and as such could be waived by the litigants. The appellant has obviously interpreted Haralson to mean that the posting of an appeal bond within the time prescribed by law is also no longer jurisdictional but is now procedural and may be waived by the parties. This is not so. The many cases holding that the posting of an appeal bond within the period prescribed by the statute to be jurisdictional were not overruled by Haralson and the law in that respect remains the same.

We have held that the lack of jurisdiction of the lower court may be raised for the first time on appeal to this Court, Sperier v. Ward, 233 So.2d 823 (Miss.1970); Khoury v. Saik, 203 Miss. 155, 33 So.2d 616 (1948); and Green v. Creighton, 18 Miss. 159 (1848); and, that estoppel does not apply. McDaniel Bros. Construction Co. v. Jordy, 185 So.2d 450 (Miss.1966).

Therefore, since the circuit court did not acquire jurisdiction to hear the appeal from the county court, there was no valid judgment from which to appeal to the Supreme Court.

The motion of the appellee to dismiss the appeal is sustained.

Motion to dismiss appeal considered en banc and sustained.

All Justices concur.

      . See Miss.Sup.Ct. Rules 16(d).


text:
    Linda Bowman JENKINS et al. v. Mrs. Daisy YOUNG et al.
    No. 48316.
    Supreme Court of Mississippi.
    Sept. 22, 1975.
    Heidelberg, Woodliff & Franks, Otis Johnson, Jr., George F. Woodliff, III, Jackson, for appellants.
    Wells, Wells, Marble & Hurst, Jackson, for appellees.
    Before RODGERS, SUGG and BROOM, JJ.
   RODGERS, Presiding Justice.

This was an appeal from a decision by the Chancellor, Division One, Hinds County, Mississippi, dated October 17, 1973. The decision established the fair market value as of June 9, 1972, of one thousand two hundred and fifty (1,250) shares of stock in the Jackson Coca-Cola Bottling Company, a closely held corporation. This stock, for which the value had to be established, was part of the corpus of a testamentary trust left by Phillip Lee Borden.

Phillip Lee Borden set forth in his last will and testament very explicit instructions as to the distribution of the corpus upon termination of the testamentary trust, as follows:

“This trust shall end and terminate ten (10) years from the date of the death of my last surviving sister, and at such time my said Trustee, or any successor in trust, shall distribute the entire assets of said trust estate, both corpus and income, to my said nephew and nieces in the following amounts or proportions, to-wit:
To Charles R. Bowman (The same person as said Trustee) six-tenths (6/10ths).
To Mrs. Stella Bowman Funkhouser, my niece, one-tenth (l/10th).
To Mrs. Zada Bowman Williams, my niece, one-tenth (l/10th).
To Mrs. Daisy Bowman Young, my niece, one-tenth (l/10th).
To Mrs. Pauline Bowman Coulbourne, my niece, one-tenth (l/10th).
In dividing and distributing said trust estate, however, I expressly desire, and hereby so stipulate, that all capital stock in the Jackson Coca-Cola Bottling Company, Inc., a Mississippi corporation domiciled at Jackson, Hinds County, Mississippi, shall be distributed and delivered to my said nephew, Charles R. Bowman, as part of his six-tenths share of said trust estate (except, however, if the fair value of said capital stock exceeds the fair value of six-tenths of said trust estate, then the said Charles R. Bowman to receive only such part of any capital stock in said corporation as does not exceed six-tenths of the fair value of the entire trust estate).”

The date agreed upon for the termination of the Phillip Lee Borden testamentary trust was June 9, 1972, ten (10) years after the death of Mr. Borden’s last sister. The issue on appeal is the value found by the chancellor for this 1,250 shares of stock in the Jackson Coca-Cola Bottling Company. The chancellor, after hearing the evidence offered by the parties, accepted briefs and took the matter under advisement. After study and deliberation, he found that the stock in the Jackson Coca-Cola Bottling Company was worth two thousand four hundred dollars ($2,400.00) per share as of June 9, 1972.

The ruling of the trial judge in rejecting the testimony of the sales of alleged comparable stock in other companies was not reversible error because it is within the sound discretion of the trial judge to determine whether or not the sales of stock were based on comparable companies not only in name and similar stock dividends, but also in plant value and liquid assets. Moreover, the alleged sales of stock must have occurred sufficiently close in point of time to afford a fair comparison.

In the instant case, the rejected testimony was cumulative and if, in fact, the trial court erroneously rejected this evidence, its ruling did not constitute a reversible error.

The appellants contend that the chancellor w.as manifestly in error, as a matter of fact and law, in refusing to allow the witness Thompson to give his opinions as an expert witness on the highest price earnings multiple that he would pay for a minority interest in a closely held corporation. This Court finds, after studying the record and hearing oral argument, that the chancellor did not err in refusing to allow the witness Thompson to testify as an expert. The record shows the following colloquy:

"BY MR. FRANKS:
Q. Mr. Thompson, based on your experience in trading the minority interest in privately owned, non-publicly traded Coca-Cola company stock,, do you have an opinion as to what the highest price earnings multiple would be that you would consider paying for such interests ?
BY MR. WELLS: If the Court please, we don’t believe he has been tendered as an expert in the field. He can testify about three occasional sales in the plant that he has got an interest in, and that is one thing. But now he is being asked to testify about a broad range as an expert and we submit that he is not qualified to do that.
BY THE COURT: The objection will be sustained.”

At this point counsel for the appellants asked for the court’s permission to make a record as to what the witness would answer rather than asking for permission to qualify him as an expert. The court allowed him to do this.

“BY MR. FRANKS:
Q. If you were allowed to answer the question that I just gave you — asked you, what would be your answer?
A. I rarely have purchased on a P-E [price earnings] ratio that exceeded seven, and I have purchased in, say several other companies, on the basis of maybe purchasing for other people, but I wouldn’t take it myself even at less than seven because I just don’t believe in being a minority stockholder in a closely held corporation.”

In addressing the admission of expert testimony, we have said:

“[T]he qualification of an expert witness is addressed to the judicial discretion of the trial judge; Saucier v. Talkington, 251 Miss. 519, 170 So.2d 434 (1965); 31 Am.Jur.2d Expert and Opinion Evidence § 31, p. 530 (1967); . ” Bynum v. Mandrel Industries, Inc., 241 So.2d 629, 633 (Miss.1970).

We also cited in Bynum, supra, the rule set forth in Glens Falls Insurance Co. v. Linwood Elevator, 241 Miss. 400, 130 So.2d 262 (1961): “. . . . [I] t is largely within the discretion of the trial judge as to whether or not a witness will be permitted to testify as an expert.” 241 Miss. at 419, 130 So.2d at 268.

Under the terms set out in the testamentary trust, the appellants desired a lower evaluation per share of stock than that found by the chancellor. The lower the value per share the appellants could have obtained from the court, the larger the number of shares they would have received under the terms of the testamentary trust.

Both sides endeavored to prove by the use of expert witnesses what should be the value assigned the stock as of June 9, 1972. The chancellor listened to the experts offered and then took briefs from the parties on the issues raised. In making his determination as to the value of the stock, it would appear that the chancellor followed and agreed with the methods set forth by the appellee’s expert witnesses, Cecil Brown, a certified public accountant, and Sam P. Peters, a management consultant to the bottlers of Coca-Cola who specializes in acquisitions, mergers, and/or sales of Coca-Cola plants. It was Mr. Brown’s professional opinion that as of June 9, 1972, the stock was worth a minimum of two thousand four hundred dollars ($2,400.00) per share and a maximum of two thousand eight hundred dollars ($2,800.00) per share. He used a method known in accounting procedures as “capitalization of earnings” to obtain the above values.

Mr. Peters, the management consultant, was of the opinion that the 1,250 shares of the Jackson Coca-Cola stock which amounted to 35.71% of the total outstanding stock of the company was worth from two thousand four hundred dollars ($2,400.00) to two thousand five hundred dollars ($2,-500.00) per share as of June 9, 1972. In making his assessment of the value of the stock, this expert witness used eight factors to arrive at what was, in his opinion, a balanced evaluation of the plant: (1) current earnings, (2) a weighted average of the last five years audited net earnings, (3) unit sales, (4) a weighted .average of the last five years of unit sales, (5) cash flow [It was his opinion that in acquiring a Coca-Cola plant one would incur a debt. The ability to pay the debt is based many times on cash flow.], (6) a weighted average of cash flow for the last five years, (7) gross revenues, and (8) capital assets adjusted. He also injected into his computation long-term debt and present available working capital possessed by the company being evaluated. Lastly, a factor known as “other considerations” was injected into the study of the evaluation of stock. These were things which did not lend themselves to a strict mathematical computation, i. e., size of the available market, location of the territory of the company, the highway structure, management, possibility of becoming a production center for small plants, etc.

In order for the appellants in the instant case to prevail, it must appear from the record that the decision rendered by the chancellor was manifestly wrong. This we do not find to be the case. This Court addressed itself to the discretion of the chancellor when we handed down Cal-Maine Foods, Inc. v. Duvic, 264 So.2d 383 (Miss.1972):

“Since the question of fair value was purely factual, it was peculiarly within the province of the chancellor, as the trier of facts, to evaluate the evidence, resolve conflicts and to draw reasonable inferences from it. Viewing the evidence in the record, both oral and documentary, from that standpoint, and reading the chancellor’s opinion giving the basis of his finding, we are unable to say that it was not sufficiently supported by the evidence or that he was manifestly wrong. Consequently, the decree appealed from must be affirmed. Griffith, Mississippi Chancery Practice section 674 (2d ed. 1950), and authorities there cited.” 264 So.2d at 384.

For the reasons above set out, it is the opinion of this Court that the ruling of the chancellor should be, and the same is hereby, .affirmed.

Affirmed.

GILLESPIE, C. J., and PATTERSON, INZER, SMITH, ROBERTSON, and WALKER, JJ., concur.


author: BROOM, Justice.

text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. J. P. AMOS.
    No. 48323.
    Supreme Court of Mississippi.
    Sept. 22, 1975.

      Merrimen M. Watkins, Crystal Springs, for appellant.
    Armstrong & Hoffman, John T. Armstrong, Jr.,-Hazlehurst, for appellee.
    Before RODGERS, SUGG and BROOM, JJ.
   BROOM, Justice.

Mississippi State Highway Commission (Commission) appeals from a judgment of $1,750 entered in a special court of eminent domain of Copiah County, Mississippi. We affirm.

The chief issue is whether, under Mississippi Code Annotated section 11-27-7 (1972), a judge may in a special court of eminent domain permit the landowner (ap-pellee) to file his statement of values less than ten days before trial date.

Condemnation of 3.2 acres of appellee’s land from a fifty-six acre tract was sought by the Commission in a special court. After filing its application on March 30, 1973, the Commission filed its statement of values and damages totaling $1,065 on May 14 next. On May 25, the appellee filed a motion for additional time in which to plead. Neither the Commission nor the court responded to the motion for additional time, and on May 31 the appellee filed a statement of values ($1,840). Just before the trial of the cause on June 5, 1973, appellee, without leave of the court, filed an amended statement of values ($2,160). The Commission moved for a default judgment on the ground that the appellee had failed to file proper pleadings. No other response or objection was made by the Commission to the appellee’s amended statement of values. The court overruled the motion and entered an order nunc pro tunc in effect sustaining the appellee’s original motion for additional time in which to plead and allowing the amended statement of values.

The Commission argues that the court abused its discretion and erred in entering the nunc pro tunc order allowing the landowner to file his amended statement of values on the day of the trial instead of ten days prior thereto pursuant to section 11-27-7.

We note that section 11-27-7 provides that the judge “for good cause shown, may increase or decrease the time for pleading” by either party. As said in Coleman v. Mississippi State Highway Commission, 289 So.2d 918 (Miss.1974), trial judges have discretion in invoking the prerogative to enlarge the time for pleading as specified in the statute. Coleman also held that the provisions of Chapter 27 of Mississippi Code Annotated require that the issue of value be determined by a jury and that no default judgment will issue, even in the absence of pleadings by the landowner.

From the record, it cannot be said that the trial judge abused his discretion by entering the order nunc pro tunc and allowing the appellee to file his amended statement of values on the day of the trial. Careful study of the record does not show that the Commission was prejudiced by the action of the trial judge complained of here. We note that the disparity between the statements of value was not great and the Commission does not contend that the amount of the verdict was excessive.

With regard to appellant’s contention that the amended statement of values was erroneously allowed, this again is a province in which the trial judge is invested with discretionary power. Statements of value are to “be treated as pleadings are treated in civil causes in the circuit court.” Miss.Code Ann. § 11-27-7 (1972). Mississippi Code Annotated section 11-7-115 (1972), concerning pleadings in the circuit court, provides :

The court shall have full power to allow all amendments to be made in any pleading or proceeding at any time before verdict .

The same circumstances that influenced the trial judge to allow the defendant additional time to file the original statement of values also influenced him in permitting the amendment. In this case the appraisal report of the court appointed appraiser (filed one day prior to the filing of appel-lee’s amended statement of values) tended to support rather than refute the defendant’s amended valuation. No cause for questioning the exercise of the trial judge’s discretion is apparent.

Affirmed.

GILLESPIE, C. J., and PATTERSON, INZER, SMITH, ROBERTSON, and WALKER, JJ., concur.


author: WALKER, Justice.

text:
    STATE of Mississippi for the Use and Benefit of J. C. FOSTER et al. v. Irvan L. TURNER et al.
    No. 48343.
    Supreme Court of Mississippi.
    Oct. 6, 1975.

      W. S. Murphy, Lucedale, for appellant.
    M. M. Roberts, Dorrance Aultman, Hat-tiesburg, William T. Bailey, Lucedale, for appellee.
    Before PATTERSON, INZER and WALKER, JJ.
   WALKER, Justice.

This is an appeal from the action of the Circuit Court of Greene County, Mississippi, in dismissing declarations filed on behalf of appellants in four separate suits, (which by order of the court were consolidated) in the name of the State of Mississippi for the use and benefit of J. C. Foster, David T. Fleming, D. L. Guy and Franklin Miller, adult resident citizens of Mobile County, Alabama, against appellees, Irvan L. Turner, a Mississippi game warden, and Aetna Casualty and Surety Company, purported surety, and Louie J. Beard, Justice of the Peace of District One, Greene County, Mississippi, and United States Fidelity and Guaranty Company, his purported surety.

The appellants were hunting in the vicinity of the line which divides the states of Mississippi and Alabama when they were arrested by Irvan L. Turner, the game warden, advised that they were hunting deer in a closed season in Mississippi (appellants contend they were in Alabama), taken to the defendant, justice of the peace, their guns seized, found guilty and fined a total of $125 each. The appellants posted bond and perfected their appeal to the Circuit Court of Greene County.

For the purpose of this opinion, we will treat the defendants’ motion to dismiss as a demurrer.

The declarations are all substantially the same and attempt to charge malicious prosecution or, in the alternative, abuse of process.

1. MALICIOUS PROSECUTION

In Edmonds v. Delta Democrat Publishing Company, 230 Miss. 583, 93 So.2d 171 (1957), Justice Gillespie, speaking for the Court, noted the distinction between a suit for malicious prosecution and one for abuse of process:

In the former, [suit for malicious prosecution] these elements are essential: Malice, want of probable cause, and that the former proceedings have been determined. In the latter, [suit for abuse of process] these elements are essential: An ulterior purpose, and the perversion of the process after its issuance so as to accomplish a result not commanded by it or not lawfully obtainable under it. (230 Miss. at 593, 93 So.2d at 174).

Generally, to authorize the maintenance of an action for malicious prosecution arising out of a criminal proceeding, the following elements must be shown: (1) the institution of the criminal proceeding; (2) by, or at the instance of, the defendant; (3) the termination of such proceedings in plaintiff’s favor; (4) malice in instituting the proceedings; (5) want of probable cause for the proceeding; and (6) the suffering of injury or damage as a result of prosecution or proceeding.

The appellants failed to allege in their declarations that there had been a final determination, in their favor, of the criminal proceedings from which this litigation stems. Therefore, the declarations failed to state a cause of action based upon malicious prosecution.

We would point out that actions for malicious prosecution are regarded by law with jealousy and they ought not to be favored but managed with great caution. Their tendency is to discourage prosecution for crime as they expose the prosecutor to civil suits, and the love of justice may not always be strong enough to induce individuals to commence prosecution when, if they fail, they may be subjected to the expenses of litigation even though they are not found liable for damages. Suits by which the complainant in a criminal prosecution is made liable to an action for damages, at the suit of the person complained of, are not to be favored in law, as they have a tendency to deter men who know of the breaches of the law from prosecuting offenders thereby endangering the order and peace of the community. Although the court should not discourage actions for malicious prosecution, by establishing harsh rules of evidence, or by the rigid principles of law, by force of which a party may be deprived of an important remedy for a real injury, at the same time, all proper guard and protection should be drawn around those who, in obedience to the mandates of duty, may be compelled to originate, carry on, aid or assist in a criminal prosecution which may from any cause terminate in favor of the accused.

II. ABUSE OF PROCESS

The appellants argue that “even though the criminal cases may not have been disposed of . nevertheless this would not excuse the game warden and justice of the peace for the abuse of process nor prevent appellants from maintaining their suit to recover damages for that which they alleged in their declarations resulted from illegal, unwarranted, improper and flagrant use and abuse of process with an ulterior purpose and motive by Turner and Beard, to collect fees from appellants and make a personal record, not in the interest of justice.”

The action of abuse of process consists in the misuse or misapplication of a legal process to accomplish some purpose not warranted or commanded by the writ. It is the malicious perversion of a regularly issued civil or criminal process, for a purpose and to obtain a result not lawfully warranted or properly attainable thereby, and for which perversion an action will lie to recover the pecuniary loss sustained. While some cases have confounded the action for abuse of process with the action for malicious prosecution, the two are essentially different and independent. An action for abuse of process differs from an action for malicious prosecution in that the latter is concerned with maliciously causing process to issue, while the former is concerned with the improper use of process after it has been issued. Thus it is said in substance that the distinction between the two is that the malicious use of process is the employment of process for its ostensible purpose, but without reasonable or probable cause, whereas the malicious abuse of process is the employment of a process in a manner not contemplated by law, or to obtain an object which such a process is not intended by law to effect.

It is generally -recognized that the elements essential to sustain the action of abuse of process are: (1) that the defendant made an illegal and improper perverted use of the process, a use neither warranted nor authorized by the process; (2) that the defendant had an ulterior motive or purpose in exercising such illegal, perverted or improper use of process; and (3) that damage resulted to the plaintiff from the irregularity.

The appellants argue that the perverted use of the process in this case was the ulterior motive of the defendants to collect fees from appellants, make a personal record for themselves and to confiscate the appellants’ guns. This argument is without merit.

The assessment of fines and court costs [which in some instances includes fees to the justice of the peace], was a legitimate and lawful outcome of the arrest of the defendants upon being found guilty of hunting deer during closed season and cannot be said to be a perversion or misuse of process. Furthermore, if the diligent performance of their duties reflected favorably upon the record of the officers, then that too is a natural consequence flowing from their acts and is not a perversion of process. The allegation that the appellees unlawfully confiscated the appellants’ guns, after being arrested for an alleged violation of hunting deer during closed season also fails to state a cause of action. The game warden was authorized to disarm the appellants and to seize and hold their guns as evidence pending a final determination of the criminal charges.

For the reasons stated above, we are of the opinion that the trial court properly dismissed the declarations for failure to state a cause of action.

The judgment of the lower court is therefore affirmed.

Affirmed.

GILLESPIE, C. J., RODGERS, P. J., and SMITH, ROBERTSON, SUGG and BROOM, JJ., concur.

      . See 52 Am.Jur.2d Malicious Prosecution § 6, p. 190 (1970).

      . See Van Sant v. American Express Co., 158 F.2d 924, 931-32 (3rd Cir. 1946); Cloon v. Gerry, 79 Mass. (13 Gray) 201 (1859).

      . 1 Am.Jur.2d Abuse of Process § 1, p. 250 (1962).

      . 1 Am.Jur.2d Abuse of Process § 2, pp. 250-51 (1962).


author: SMITH, Justice.

text:
    AMERICAN EMPIRE LIFE INSURANCE COMPANY v. J. D. McADORY, Sheriff, et al.
    No. 48305.
    Supreme Court of Mississippi.
    Sept. 22, 1975.

      Young, Young & Scanlon, Jackson, for appellant.
    Richard E. Stratton, III, Brookhaven, for appellees.
    Before GILLESPIE, SMITH and ROBERTSON, JJ.
   SMITH, Justice.

In this case appellant, American Empire Life Insurance Company, a corporation, as owner of a commercial lot worth some 55 to 60 thousand dollars, sought to enjoin its sale in execution of an enrolled judgment for $55,563.42 which had been recovered by Deposit Guaranty National Bank against its grantor, Empire Investment Company, W. L. Dickerson, appellee, claiming to be owner of the judgment by assignment.

The background facts are complicated.

The actors in the transactions which preceded and gave rise to the present suit, in addition to Life Insurance Company, were W. L. Dickerson, the appellee, A. D; Buffington and one Blackmon, and two corporations, Empire Investment Company and B & B Inc.

In the trial before the chancellor, at the conclusion of complainant’s case, on motion of appellee, the chancellor excluded the evidence and entered a decree dissolving the temporary injunction which had issued and dismissing the suit.

Griffith, Mississippi Chancery Practice section 584 (2d ed. 1950), states the circumstances under which such an action is proper.

Under this statute the court has held that when at the conclusion of complainant’s evidence the defendant moves to exclude it and to dismiss the bill the court should assume as true all facts which the complainant’s evidence fairly tended to establish together with all reasonable inferences to be deduced therefrom, the practice in that respect in the chancery court being analogous to that in the circuit court.

The correctness of the chancellor’s action in this case is vigorously challenged and must be examined in the light of the. above standard.

Dickerson, appellee, and Empire Investment Company were defendants in the trial court, in addition to the sheriff who was conducting the execution sale. However, Life Insurance Company moved to amend so as to make defendants A. D. Buffington and Ralph Blackmon, alleging that they had been co-adventurers, with Dickerson, and to have acted in concert with him in his wrongful acquisition of the judgment.

Buffington had formed American Empire Life Insurance Company in 1967, and at relevant times he was president, director and executive committee member. He was also president, director and “in control” of Empire Investment Company. He was in-corporator, vice-president, director and owner of all of the stock in B & B Inc., his personal holding company. He was also president of another corporation which may be referred to as “IBIDCO.”

Empire Investment Company, while having no formal connection with Life Insur-anee Company, had some directors in common with it and it was operated by Buf-fington from Life Insurance Company’s offices. Dickerson, the appellee, was, from April, 1971 until October 26, 1971 de facto director, management committee member and assistant to the president (Buffington) of Life Insurance Company, having been elected as shown by company minutes, and having acted as such during the period stated, although at the conclusion of this period his election was adjudged to have been illegal and was invalidated by an order of the chancery court in another case.

The basic question posed by the present appeal is whether the evidence offered, direct and circumstantial, which supported or reasonably tended to support Life Insurance Company’s contentions, together with all such reasonable inferences which might be drawn from it which tended to support such contentions, and considered in the context of the relationships and fiduciary duties of Dickerson and his fellow actors, as officers of the several corporations, was incapable of supporting a decree for Life Insurance Company?

In deciding whether such evidence was sufficient to withstand the motion to exclude it is not intended to foreshadow here what the ultimate decision following a full trial of the case should be. However, evidence introduced (and that offered and erroneously excluded) measured by the rule stated in Griffith and quoted above, sufficiently supported appellant’s contentions to require appellees to go forward with such defenses as they may have and the action of the chancellor in sustaining the motion to exclude and entering a decree for appellees was error. See Mississippi Code Annotated section 11-5-71 (1972).

Deposit Guaranty National Bank had obtained the judgment in question against Empire Investment Company in the amount of $55,563.42, and this became a lien upon the property here involved which then belonged to the Investment Company. Attorneys for the Investment Company worked out a compromise settlement with Deposit Guaranty National Bank whereby the Investment Company agreed to pay and the bank agreed to accept in full satisfaction and settlement of its $55,563.42 judgment the sum of $12,000. At the time, the company did not have immediately available the $12,000 in cash and Buffington, who was chairman of Investment Company’s board of directors, as well as president and director of the Life Insurance Company and was an officer and owned all of the stock of B & B Inc., proposed to the Investment Company that he would undertake to raise the $12,000 for Investment Company for the purpose of enabling that company to take advantage of the compromise offer of Deposit Guaranty National Bank and thereby settle and satisfy the judgment for the sum of $12,000. As a condition, Buffington stated that the money should be repaid by the company when it sold a certain building which it owned. The transaction was approved and authorized.

Pursuant to this, Buffington, Dickerson and Blackmon each put up $4,000 of the $12,000 loan to the Investment Company, with the understanding that they would each be repaid $6,000 within a period of from 30 to 60 days, that being the time within which it was expected that Investment Company would sell the building.

However, instead of using these funds to enable Investment Company to take advantage of its opportunity to satisfy the judgment for $12,000, as had been agreed upon, Buffington had the judgment transferred and assigned to his own personal holding company, B & B Inc.

At a meeting of the shareholders of the Life Insurance Company in April, 1971, (although later declared illegal and invalidated by a decree of the chancery court in another case), Buffington, Dickerson and Blackmon were elected to its board of directors. This board of directors then placed Buffington, Dickerson and Black-mon on a management committee and elected Buffington president, Blackmon treasurer and Dickerson assistant to the president (Buffington) of Life Insurance Company. From April, 1971, until October 26, 1971, Buffington, Dickerson and Black-mon acted in these capacities and controlled the affairs of Life Insurance Company.

It was in this situation that in May, 1971, Buffington, Dickerson and Blackmon brought about the purchase by Life Insurance Company from Investment Company of the real estate in question.

This was done by having Investment Company execute and deliver to Life Insurance Company its general warranty deed conveying the property to Life Insurance Company. Although the lien of the bank’s judgment had neither been satisfied nor cancelled, no exception was noted in the general warranty clause of the deed. In addition to this, Life Insurance Company was caused to pay off a mortgage indebtedness actually owed by Empire Investment Company approximating $40,935. In June, 1971, Buffington’s personally owned corporation, B & B Inc., without any known consideration, assigned the judgment to appellee Dickerson.

In 1972, after disposing of his stock in Life Insurance Company, Dickerson proceeded to execute the judgment and the proposed sale of the property by the sheriff was halted by the temporary injunction issued in this case.

The lot in question is valuable commercial property located at the intersection of North Street and High Street in the City of Jackson, and worth some $55,000 to $60,000.

While it is not suggested that the whole case can be measured by the result, it is obvious that, unless restrained in these proceedings, Dickerson having acquired in this manner the bank’s judgment, would stand to collect the amount of the judgment through the sale of Life Insurance Company’s lot although he had paid out only $4,000 of his own funds.

Among other things, Life Insurance Company contends that Buffington and Dickerson, acting in concert and in breach of their fiduciary duty to Life Insurance Company and Investment Company, engineered and brought about the present situation, that their actions in the premises violated fiduciary duties owed by them as officers of Investment Company and Life Insurance Company and that each is bound by the acts of the other. It is contended that under the circumstances Dickerson holds the judgment as trustee under a constructive or resulting trust for the benefit of Life Insurance Company. Also, that the actions of Dickerson and Buffington violated fiduciary duties owed Life Insurance Company and Investment Company, whether they acted as de jure or de facto officers of Life Insurance Company. Moreover, Dickerson’s claim that he took the assignment of the judgment as “security” for his loan of $4,000 is countered by a charge that, if so, the loan was usurious in that the lenders were to receive in repayment not only the principal but $2,000 additionally on each $4,000 of the loan, and that interest and principal both were forfeited.

It was error for the chancellor to exclude the evidence, dissolve the injunction and dismiss the suit. The chancellor unduly restricted the appellant’s attempts to introduce evidence. A case of this kind, which involves the good faith of corporate officers who are charged with having converted corporate opportunities to their own personal aggrandizement, requires the application of a liberal rule as to the admission of any evidence having a tendency to draw aside or pierce the corporate veil which might otherwise conceal the real nature, purpose and circumstances of what was done.

Directors and officers of a corporation stand in a fiduciary relationship to the corporation and its stockholders. Knox Glass Bottle Company v. Underwood, 228 Miss. 699, 89 So.2d 799, 814 (1956).

It is a breach of their fiduciary obligations which equity will not tolerate for such officers, in antagonism to the corporate interest, to oust the corporation from beneficial property rights which ought to be preserved to it by acquiring the property themselves. When such derelictions or breaches of duty occur, they are treated as a fraud on the corporation out of which equity will protect the corporate interest as against the unfaithful corporate officials. 3 Pom.Eq. Jur. § 959. [Pioneer Oil & Gas Co. v. Anderson, 168 Miss. 334, 344, 151 So. 161, 163 (1933)].
[Interested fiduciaries have acted for and represented both the corporation and themselves in making these lease contracts. Where that occurs, it is well established that, in the absence of ratification or estoppel, and full disclosure the transaction is voidable at the option of the corporation without proof of actual fraud or actual injury to the corporation. . . . [Knox Glass Bottle Co. v. Underwood, 228 Miss. 699, 743, 89 So.2d 799, 815 (1956)].
“If a third person joins with a corporate officer in dealing with the corporation, with knowledge that he is such officer, the contract may be set aside as to him as well as the corporate officer, and cannot be enforced by either party thereto, because they are in pari delicto. ...” [228 Miss. at 753, 89 So.2d at 819 (1956)].

It is argued that since the election of Dickerson, Buffington and Blackmon as corporate officers was later declared to have been illegal, that they should not be held to have owed the same duties to the corporation as if they had been lawfully elected. The illegality of their tenure, rather than being a defense, requires an even closer scrutiny of what was done than otherwise might be the case, especially where they have diverted a corporate opportunity to their own use and their actions have redounded to their own personal profit at the expense of corporate interests.

The assertion that Buffington (through B & B Inc.), and then Dickerson, took the assignment of the $55,000 judgment as security for their respective shares of the loan, $4,000 in each case, aside from the charged breach of faith in failing to apply the funds to the satisfaction of the judgment, is met by the contention that the evidence shows that the loan was usurious in that $6,000 was to be repaid to each of them within 30 to 60 days for each $4,000 loaned, so that both principal and interest are uncollectible under Mississippi Code Annotated section 75-17-1 (1972).

Upon remand, all relevant records, correspondence, minutes and other papers, and all relevant testimony, directly or indirectly reflecting or bearing upon the true nature, purpose and motive of the acts of the several parties which ultimately resulted in the acquisition of the judgment by Buffington, through B & B Inc., and later by Dickerson, and in the failure to apply the funds raised to the satisfaction of the bank’s ■ judgment should be admitted into evidence.

The request of Life Insurance Company to amend its bill of complaint so as to make defendants Buffington and Blackmon should be granted.

The case will, therefore, be remanded in order that Buffington and Blackmon may be made parties defendant and that the case may be fully heard and for such further appropriate proceedings as may be necessary, not inconsistent with this opinion.

Reversed and remanded.

RODGERS, P. J., and PATTERSON, INZER, SUGG, WALKER and BROOM, JJ., concur.


author: ALMON, Justice.

text:
    CITY OF LEEDS et al. v. TOWN OF MOODY.
    SC 735.
    Supreme Court of Alabama.
    Sept. 18, 1975.

      Charles L. Kerr, Leeds, for appellants.
    Church & Trussed, Pell City, for appel-lee.
   ALMON, Justice.

Appellee, Town of Moody, filed its complaint in the Circuit Court of St. Clair County seeking injunctive relief against an ordinance enacted by the City Council of the nearby City of Leeds. The ordinance in question, Ordinance 395, purported to annex certain real property under the authority of Tit. 37, § 137(1) — (3), Code of Alabama 1940, Recompiled 1958, which provides in pertinent part:

“Whenever all of the owners of property located and contained within an area contiguous to the corporate limits of any incorporated municipality with a population of two thousand (2000) or more, located in the state of Alabama, and such property does not lie within the corporate limits or police jurisdiction of any other municipality, shall sign and file a written petition with the city clerk of such municipality requesting that such property or territory be annexed to the said municipality, and the governing body of such municipality adopts an ordinance assenting to the annexation of said property to such municipality, the corporate limits of said municipality shall be extended and rearranged so as to embrace and include such property and such property or territory shall become a part of the corporate area of such municipality upon the date of publication of said ordinance. . . .”
(Emphasis ours).

Contrary to the findings of the Leeds City Council made prior to the enactment of Ordinance 396, appellee’s complaint charged that all of the land sought to be annexed by such ordinance did in fact lie within the police jurisdiction of the Town of Moody and, furthermore, that it was not contiguous to the corporate limits of Leeds. The requirements of Tit. 37, § 137(1) not having been met, the complaint prayed that Ordinance 395 be declared null and void. Additionally, the complaint asked that due to the alleged irreparable damage which would be suffered by the Town of Moody by the loss of territory over which it had therefore exercised its police jurisdiction, a preliminary injunction issue against the appellant from taking any further action to incorporate the disputed land and, after a hearing on the merits, appellant be permanently so enjoined.

In its answer, appellant admitted that a small triangular portion of the land sought to be annexed by Ordinance 395 did lie closer to the southernmost corporate limits of the Town of Moody than the northernmost limits of the City of Leeds. The answer also interposed a motion to dismiss all aspects of appellee’s complaint which did not arise out of the question of whether or not Ordinance 395 illegally encroached upon the police jurisdiction of the Town of Moody. More specifically, since the Town of Moody had standing to protect the legal interests of only those persons who resided in the area alleged to be within its police jurisdiction, it conversely had no standing to raise the question of whether or not the portion of land annexed by Ordinance 395, but outside its police jurisdiction, was contiguous to the corporate limits of the City of Leeds.

According to the latest federal decennial census (1970), the City of Leeds has a population of 6,991; its corporate limits are situated in both Jefferson and St. Clair Counties. The 1970 population of the Town of Moody was 504; its corporate limits are situated entirely in St. Clair County. The two cities are roughly one and one-half miles apart. The testimony adduced before the trial court showed that the City of Leeds since 1950 continuously had had in force ordinances levying taxes in the form of business licenses within its police jurisdiction.

Sometime prior to April, 1973, the then representative of St. Clair County, Roy H. Coshatt, advertised in the local newspapers of St. Clair County proposed bills which if enacted would have removed the corporate limits of the City of Leeds from St. Clair County. Appellee, over objection, was allowed to introduce evidence that the May- or of the City of Leeds, James H. Wright, and Representative Coshatt entered into discussions to see if some compromise could be reached which would be satisfactory to both municipalities and the residents living in the area between those municipalities. In essence, the resulting agreement reached by the parties was that .Representative Coshatt would not introduce the proposed bills in exchange for a promise on the part of the City of Leeds that (1)it would relinquish its police jurisdiction over any territory in St. Clair County which lay outside its existing corporate limits, and (2) it would not accept in the future any petitions for annexation of land in St. Clair County. Representative Cosh-att testified that it was also agreed that fire and police protection for those inhabitants of the area theretofore serviced by the City of Leeds would become the responsibility of St. Clair County.

In several regularly scheduled meetings of the Leeds City Council, that body officially adopted the foregoing agreement and resolved to reduce same in two letters which would be sent “in good faith” to Representative Coshatt and the Chairman of the County Commission of St. Clair County, James H. McClendon. These letters, dated April 16, 1973, and July 2, 1973 were also introduced over the objection of appellant.

The Mayor of Moody, M. A. Lee, testified that pursuant to the agreement, the Town of Moody commenced rendering fire and police protection in the area, although other testimony indicated that the City of Leeds continued to assist and augment Moody’s limited resources. The testimony of witnesses for both parties relating to the respective quality of police and fire protection, both before and after the alleged relinquishment by the City of Leeds of its police jurisdiction, was in conflict and non-conclusory.

On January 21, 1974, Ordinance 395 was duly enacted by the City of Leeds; four days later the Town of Moody filed its action, and the circuit court thereafter granted a preliminary injunction pending a final hearing on the merits. From the foregoing testimony and other evidentiary material, the trial court found that (1) Ordinance 395 was in “flagrant violation” of the agreement entered into by Mayor Wright and Representative Coshatt, (2) the Town of Moody, although not a landowner of the area in question, did have an interest therein and accordingly standing to challenge Ordinance 395, (3) the land was not “contiguous” to the City of Leeds as a matter of law, and (4) the agreement was a valid contract or, in the alternative, even if it was legally questionable, valuable consideration (Representative Coshatt’s executed promise not to introduce the proposed bills) had moved to the City of Leeds thereby rendering it equitably estopped from questioning the validity of the contractual agreement.

Based on these findings, the trial court issued a permanent injunction against the City of Leeds from exercising or attempting to exercise any governmental authority of any nature over any of the land described in Ordinance 395.

There are three methods by which a municipality may annex territory in Alabama: (1) by an act of the legislature; (2) by an election in accordance with Tit. 37, § 135, Code, supra; and (3) by complying with Tit. 37, § 137, (1) — (3), Code, supra. This latter method was the one which the City of Leeds attempted to use in the instant case.

The northern corporate boundary of the City of Leeds and the southern corporate boundary of the Town of Moody lie less than one and one-half miles apart. Thus, the territory between the two municipalities would be within the police jurisdiction of both municipalities according to Tit. 37, § 9, Code, supra.

This court considered the meaning of the term, “police jurisdiction,” in the recent cases of State ex rel. City of Birmingham v. City of Tarrant City and State ex rel. City of Birmingham v. City of Fultondale, which were combined for trial and appeal, 294 Ala. 304, 315 So.2d 583 (1975):

“It is apparent that the purpose of Title 37, Section 137(1) was to provide municipalities with a simpler and quicker method of annexing territory than the conventional methods which require election or legislative enactment. . . . ” 315 So.2d at 587.

Applying a strict interpretation to the “clear and unambiguous” requirements of Tit. 37, § 137(1), that “such property [must] not lie within the corporate limits or police jurisdiction of any other municipality,” the court concluded:

“ . . . that the legislature intended ‘police jurisdiction’ as used in the proviso to be defined by the objective standard of a three-mile (or mile and a half) limit given in Title 37, Section 9, and that the legislature intended to prohibit this method of annexation when the proposed lands to be annexed are located within the police jurisdiction of another city. . . . ” 315 So.2d at 587.

In arguing that the area sought to be annexed by the City of Leeds was not within the “police jurisdiction” of the Town of Moody, appellant relies upon City of Homewood v. Wofford Oil Co., 232 Ala. 634, 169 So. 288 (1936), and Town of Graysville v. Johnson, 33 Ala.App. 479, 34 So.2d 708 (1948), cert. denied, 250 Ala. 507, 35 So.2d 339 (1948). In both of these cases the term “police jurisdiction” was within the context of the power to tax, a problem totally unrelated to the annexation dispute sub judiee. Likewise, Tit. 37, § 733, relied upon by appellant, which allows a municipality to tax business within its police jurisdiction, applies only to taxation questions.

The trial court erred in permanently enjoining the City of Leeds and all other respondents from exercising or attempting to exercise any governmental authority of any nature over any of the land described in Ordinance 395. While it was appropriate to enjoin the City of Leeds and all the respondents from attempting to exercise any governmental authority through the use of Tit. 37, § 137(1) — (3), they should not be prevented from exercising any other statutory procedure for accomplishing the same result. It is only Tit. 37, § 137(1) — (3) which was used as a vehicle for annexation in the instant case, and it is only Tit. 37, § 137(1) — (3) which contains the phrase, “and such property does not lie within the corporate limits or police jurisdiction of any other municipality . . . .”

The agreement between appellants and Roy H. Coshatt should not have been admitted into evidence. The agreement purported to bind the City of Leeds (1) to relinquish its “police jurisdiction” over any territory in St. Clair County which lay outside its existing corporate limits; and (2) to refrain from accepting any petitions in the future for annexation of land in St. Clair County. Municipalities are mere instrumentalities of the state possessing only such powers as may have been delegated to them by the legislature. State ex rel. Britton v. Harris, 259 Ala. 368, 371, 67 So.2d 26, 28 (1953). The powers which the City of Leeds was purporting to give up are legislative powers delegated to the municipality by the legislature. Neither the mayor nor the council had authority to relinquish these legislative powers. Since a municipality cannot by any provision or terms in a contract delegate or barter away a governmental power, the agreement which purported to do so in the present case was null and void. Mayor v. Birmingham Water Works Co., 139 Ala. 531, 36 So. 614 (1904).

It was error for the trial court to decree that the City of Leeds and all of the other respondents were estopped from questioning the legality of their agreement with Representative Coshatt. The City of Leeds had no authority to enter into the agreement, and a municipality cannot be estopped by doing that which it had no authority or right to do. Board of School Commissioners of Mobile County v. Hudgens, 274 Ala. 647, 651, 151 So.2d 247, 252 (1963).

Appellee alleges that appellant City of Leeds discontinued exercising police and fire protection in the area in question and thereby waived and relinquished its police jurisdiction over the area. In support of this contention, appellee cites State ex rel. Martin v. City of Gadsden, 216 Ala. 243, 113 So. 6 (1927). In the Martin case this court was concerned with the corporate boundaries of two municipalities, a matter which the legislature has allowed the local citizenry to determine. Tit. 37, § 10, Code, supra. The present case on the other hand deals with “police jurisdiction,” a matter separately determined by the legislature and delegated to the municipalities alone. Tit. 37, § 9, Code, supra. Since a municipality cannot barter away a governmental power specifically delegated to it by the legislature, Mayor v. Birmingham Water Works Co., supra, it follows that it also cannot waive or relinquish such power.

The land which was sought to be annexed by the City of Leeds was separated from its corporate limits by an interstate highway. Tit. 37, § 137(1), the statute which was utilized in the attempted annexation, provides only for annexation of “contiguous” land. Appellee correctly cites two Alabama cases in which the court defined “contiguous” as requiring a “touching,” While a “touching” is normally a requirement of the word, “contiguous,” such is not the case where the physical separation occurs merely because of the interposition of a public highway. Cabler v. Alexander, 111 Or. 257, 271, 224 P. 1076, 1080 (1924).

In White v. City of Decatur, 225 Ala. 646, 144 So. 873 (1932) this court in construing the meaning of the term, “adjoining,” in Tit. 37, § 9, the statute on police jurisdiction, stated that:

“ . . . the territory immediately north of the corporate limits of the City of Decatur . . . lies next to, connects with, and is contiguous to said north corporate line, and this is so, notwithstanding the river and the county line intervene between the corporate line and petitioner’s place of business . 225 Ala. at 648, 144 So. at 874 (Emphasis ours).

Thus, it would appear to be conclusive that a public highway is not the type of physical separation which would prevent two pieces of land from being “contiguous” within the meaning of the statute.

The judgment is affirmed insofar as it enjoins the City of Leeds and all the respondents from attempting to exercise any governmental authority through the use of Tit. 37, § 137(l)-(3), over any of the land described in Ordinance 395, which is within the police jurisdiction of the Town of Moody.

The judgment is otherwise reversed and the cause is remanded for entry of judgment in conformity with this opinion.

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

HEFLIN, C. J., and BLOODWORTH, FAULKNER, JONES and SHORES, JJ., concur.

       This ease was originally assigned to a justice formerly on this court. It has been reassigned to the writer who has listened to the tape recordings of the oral argument.

      . At the time of trial the Town of Moody had a police force of two full-time personnel and six part-time personnel; its fire department consisted of fifteen volunteers. This same force serviced the nearby community of White Chapel and was partially funded by a LEPA grant.


author: MADDOX, Justice. JONES, Justice

text:
    Carolyn Drake WHITE et al. v. STATE of Alabama.
    SC 974.
    Supreme Court of Alabama.
    Sept. 11, 1975.
    Rehearing Denied Oct. 2, 1975.
    John H. Lavette, Birmingham, for appellants.
    Arthur J. Hanes and Thomas Coleman, Sp. Asst. Attys. Gen., Birmingham, for the State.
   MADDOX, Justice.

“Attorney’s fees and expenses are not embraced within just compensation for land taken by eminent domain.”

This short, concise and direct quote, taken from Dohany v. Rogers, 281 U.S. 362, 368, 50 S.Ct. 299, 302, 74 L.Ed. 904 (1930), sustains the trial court’s judgment that attorneys’ fees and litigation expenses are not recoverable costs in an eminent domain proceeding.

The landowners, after a judgment was entered in circuit court based upon a jury verdict, filed a motion with the trial judge asking him to direct the circuit clerk to tax $35,000 as costs to pay their attorneys’ fees and expert witnesses’ fees. The court overruled their motion and they appealed. We affirm.

The landowners cite three broad theories to support their argument that they should recover their attorneys’ fees and litigation expenses. First, they say that Title 19, Section 30, Code, authorizes the court to tax these expenses as costs. We disagree. In a long line of cases this Court has held that in the absence of contract, statute, or recognized ground of equity, there is no inherent right to have attorneys’ fees paid by the opposing side. City of Vestavia Hills v. Randle, 292 Ala. 492, 296 So.2d 710 (1974); Johnson v. Gerald, 216 Ala. 581, 113 So. 447 (1927); Bell v. Bell, 214 Ala. 573, 108 So. 375 (1926); Alabama Digest, Vol. 5-A, Costs, Key No. 172.

Where a statute does authorize the recovery of attorneys’ fees, a landowner may recover them. Mobile Housing Board v. Cross, 285 Ala. 94, 229 So.2d 485 (1969). Title 19, Section 30, Code, does not authorize the recovery of litigation expenses, however.

The landowners’ other theories are based on the proposition that attorneys’ fees and expenses are embraced within “just compensation” in eminent domain proceedings.

Although Alabama appellate courts apparently have not passed on this particular question, the Supreme Court of the United States has. In Monongahela Navigation Co. v. United States, 148 U.S. 312, 13 S.Ct. 622, 37 L.Ed. 463 (1893), Mr. Justice Brewer spelled out what the words “just compensation” mean. He wrote:

“The language used in the Fifth Amendment in respect to this matter is happily chosen. The entire amendment is a series of negations, denials of right or power in the government, the last, the one in point here, being, ‘Nor shall private property be taken for public use without just compensation.’ The noun ‘compensation,’ standing by itself, carries the idea of an equivalent. Thus we speak of damages by way of compensation, or compensatory damages, as distinguished from punitive or exemplary damages, the former being the equivalent for the injury done, and the latter imposed by way of punishment. So that if the adjective ‘just’ had been omitted, and the provision was simply that property should not be taken without compensation, the natural import of the language would be that the compensation should be the equivalent of the property. And this is made emphatic by the adjective ‘just.’ There can, in view of the combination of those two words, be no doubt that the compensation must be a full and perfect equivalent for the property taken. And this just compensation, it will be noticed, is for the property, and not to the owner. Every other clause in this Fifth Amendment is personal. ‘No person shall be held to answer for a capital, or otherwise infamous crime,’ etc. Instead of continuing that form of statement, and saying that no person shall be deprived of his property without just compensation the personal element is left out, and the ‘just compensation’ is to be a full equivalent for the property taken.” [Emphasis added.]

The right to recover attorneys’ fees from one’s opponent in litigation as part of the costs thereof did not exist at common law. See annotation, Eminent Domain— Attorneys’ Fees, 26 A.L.R.2d 1295.

Several state appellate courts have construed provisions in condemnation statutes and constitutions for the payment of compensation or “just compensation” as not to include attorneys’ fees wihtin those terms. United States v. 23.94 Acres of Land, 325 F.Supp. 330 (D.C.Va.1970); United States v. 254.35 Acres of Land, 46 F.Supp. 913 (D.C.La.1942); County of Los Angeles v. Ortiz, 6 Cal.3d 141, 98 Cal.Rptr. 454, 490 P.2d 1142 (1971); Pacific Gas & Electric Co. v. Chubb, 24 Cal.App. 265, 141 P. 36 (1914); Schneider v. Schneider, 36 Colo. 518, 86 P. 347 (1906); Seban v. Dade County, 102 So.2d 706 (Fla.1950); Bowers v. Fulton County, 227 Ga. 814, 183 S.E.2d 347 (1971); Ottumwa v. Taylor, 251 Iowa 618, 102 N.W.2d 376 (Iowa 1960); Welton v. Iowa State Highway Commission, 211 Iowa 625, 233 N.W. 876 (1930); Muskegon v. Slater, 379 Mich. 466, 152 N.W.2d 652 (1967); Petition of Reeder, 110 Or. 484, 222 P. 724 (1924); North American Realty Co. v. Milwaukee, 189 Wis. 585, 208 N.W. 489 (1926).

Of course, when state statutes permit landowners to recover their litigation expenses, they may do so. Mobile Housing Board v. Cross, supra; State of Washington v. Roth, 78 Wash.2d 711, 479 P.2d 55 (1971).

We note that the Uniform Eminent Domain Code promulgated by the National Conference of Commissioners on Uniform State Laws at its annual meeting held in August, 1974, makes provision for a landowner to recover litigation expenses under certain circumstances. Section 1205 of the Uniform Eminent Domain Code provides:

"[Recoverable Costs.\
“(a) If the judgment determines that the plaintiff has the right to take all or part of the defendant’s property, the costs incurred by the defendant shall be claimed, taxed and awarded to the defendant by the same procedure as in other civil actions, except as otherwise provided in this section.
“(b) If the amount of compensation awarded to the defendant by the judgment, exclusive of interest and costs, is equal to or greater than the amount specified in the last offer of settlement made by the defendant under Section 704, the court shall allow to the defendant, in addition to costs allowed under Subsection (a) his litigation expenses, but not more than the greater of [ ] dollars or [25]% of the amount by which the compensation awarded exceeds the amount of the plaintiff’s last offer of settlement made under Section 203 or Section 704.
“[(c) If the amount of compensation awarded to the defendant by the judgment, exclusive of interest and costs, is equal to or less than the amount specified in the last offer of settlement made by the plaintiff under Section 704, the defendant shall not be entitled to his costs incurred after the date of service of the offer.]
“Comment
“Section 1205 provides the basic rules governing the award and allocation of costs. For the definition of ‘costs,’ see Section 103(8).
“The general principle underlying this section, and expressed in Subsection (a), is that when the condemnor is determined to have the right to take the property in question, the recoverable costs of litigation should ordinarily be awarded to the defendant property owner. This rule appears to be generally accepted among American courts, and in some states is regarded as constitutionally required. See Levey, Condemnation in U. S.A. § 47, pp. 463-64 (1969).
“Subsections (b) and (c) are designed to correlate with the provisions of Section 704, under which either party may tender a final offer of settlement prior to trial. If such an offer by the defendant is not accepted, an award of litigation expenses is made to the defendant if he obtains an award more favorable than his final settlement offer. Subsection (b). Non-acceptance of a final offer of settlement by the plaintiff may result in a denial of costs to the defendant under Subsection (c), if the plaintiff obtains a result equal to or more favorable than the offer. Subsection (c), however, is in brackets to indicate that it should be omitted if a withholding of costs in the adopting state would violate state constitutional requirements.”

Alabama has not adopted the Uniform Code or any other statute which would permit the landowners here to recover their litigation expenses.

Affirmed.

HEFLIN, C. J., and MERRILL, BLOODWORTH, ALMON, SHORES and EMBRY, J J., concur.

FAULKNER and JONES, JJ., dissent.

JONES, Justice

(dissenting):

I respectfully dissent. I would frame the issue thus: Does “just compensation”, as constitutionally employed in eminent domain proceedings, mean full and unequivocally comprehensive payment, including attorney’s fees and costs of litigation, for property taken? Alternatively stated, the sole and precise issue presented by this case of first impression is whether “reasonable compensation” is denied the property owner where he must pay the costs of litigation, including the attorney’s fees, out of the award received based on his property’s value ?

T agree that Tit. 19, § 30, Code, does not support the property owner’s position. In other words, I am in accord with the majority opinion that there is no statutory authority allowing the property owner attorney’s fees or other costs incident to litigation.

The property owners next contend that fundamental justice and reason support their argument with respect to the term “just compensation”, as that term is used in § 23 of Art. 1, Constitution of Alabama 1901. With this contention, I agree.

A condemnation proceeding is sui gener-is, totally unlike any other legal right, claim, or suit for damages known to our law. Issues of culpability, retribution for wrong, or civil liability comprise no part of such proceedings; and, unlike other civil actions, the right of recovery in a condemnation proceeding is rarely, if ever, contested. Consequently, the traditional rule allowing attorney’s fees and other expenses only by statute, contract, or recognized equitable principles can hardly be said to control here.

While the power of eminent domain is an attribute of sovereignty, it is constitutionally restricted by the requirement: “unless just compensation be made therefor.” This constitutional restriction recognizes that the sovereign power of appropriation is in derogation of the common and established inalienable right of property ownership. Tt is this expression embodied in the basic law which says in effect that while a taking of private property for public use can be forced and involuntary from the standpoint of the property owner, the citizenry that make up the body politic for whose benefit the property is taken must make whole such private owner from the common source,

As this Court has held, the purpose of condemnation is to effect an involuntary transfer of land, and eminent domain is in the nature of a forced sale of property rights for an amount of money equal to its value. Beeland Wholesale Co. v. Kaufman, 234 Ala. 249, 174 So. 516 (1937); City Council of Montgomery v. Moore, 140 Ala. 638, 37 So. 291 (1903); London v. Sample Lumber Co., 91 Ala. 606, 8 So. 281 (1890). The safeguard, by which the State’s inherent and unqualified power to appropriate private property is surrendered, is constitutionally mandated.

Thus, the procedure by which this mandate of “just compensation” may be effectually enforced in favor of the landowner cannot in reason and justice render him less than whole. A holding to the contrary writes into the meaning of “just compensation” a condition in derogation of the plain meaning of this term when taken in its constitutional context.

Necessarily, then, the definition of “just compensation” must be gleaned from the sui generis nature of condemnation proceedings. Alabama Pattern Jury Instructions, Eminent Domain, 14.05, contains the following definition :

“Just compensation means the payment of such sum of money to the property owner(s) that the owner(s) would be saved harmless as near as may be, and put in as near the same condition as such owner(s) would have been but for the taking.”

Following the above suggested jury instruction, under “References,” appears this supplemental definition:

“The owner is to be put in as good position pecuniarily as he would have occupied if his property had not been taken.” APJI, 14.07, defines Market Value:
“Market value is the price the property would bring when offered for sale by a willing seller who is not forced to sell and which is sought by a willing buyer who is not required to buy, after due consideration of all the elements affecting value.”

APJI, 14.15, contains the following instruction :

“The landowners are entitled to recover the reasonable market value of the property taken as of the date of the taking.
“The terms ‘reasonable market value,’ ‘cash market value,’ ‘fair market value,’ or ‘fair cash market value’ are considered substantially synonymous.”

However scrupulously the jury by its verdict may heed these instructions, the property owner, when required to bear his own expenses of litigation, is not put in as good position pecuniarily as he would have occupied if his property had not been taken; nor does the “willing seller/willing buyer” test become a reality in affecting a net recovery to the property owner for the value of the property taken.

The end result of these declarations of the law, which find their source in the constitutional use of the term “just compensation,” can be affected from the standpoint of the property owner only if he is allowed the additional recovery of the necessary and reasonable expenses incurred in pursuit of his remedy.

Other courts who, in the absence of the express statutory authority, allow reasonable expenses as costs against the con-demnor likewise ground their holding on the definition of “just compensation.” The Supreme Court of Illinois in Dickson v. Epling, 170 Ill. 329, 48 N.E. 1001 (1897) stated:

“Where private property is taken or damaged for public use, just compensation cannot be made to the property owner if he is compelled to prosecute in the courts for his just rights at his own costs.”

The Supreme Court of California in City of Oakland v. Pacific Coast Lumber and Mill Company, 172 Cal. 332, 156 P. 468 (1916) stated:

“It is settled law in this state that, in view of the provision of section 14 of article 1 of our Constitution that ‘private property shall not be taken or damaged for public use without just compensation having first been made to, or paid into court for, the owner,’ the owner whose property is thus sought to be taken cannot be required to pay any portion of his reasonable costs necessarily incidental to the trial of the issues on his part, or any part of the costs of the plaintiff; for to require him to do this would reduce the just compensation awarded by the jury by a sum equal to that paid by him for such costs.”

To rebut this definition with the contention that the property owner need not resort to litigation and incur the expenses incident thereto begs the question. Such contention overlooks the involuntariness of the property owner’s position in the first instance, as well as his unqualified right to pursue the matter in litigation to obtain the highest value contended for. It is only fair and just, therefore, that the condemn- or who initiates the proceeding should bear the necessary and reasonable expenses incident to the involuntary position in which the property owner is placed.

Additionally, the property owners argue that to disallow expenses of litigation as a part of “just compensation” places an unfair weapon in the hands of the State in its negotiations with the property owner, and that this weapon is frequently used to compel the property owner to accept in settlement a sum less than the State’s own appraised value. Whether this tactic is employed by the State, we need not decide; however, it is significant — indeed persuasive — that the subtle reality of this pressure exists even in the absence of any such overt threat. It is implicit in the very nature of the negotiations. The property owner knows that if he declines the State’s offer, he must expend a substantial amount of the total value received for his property in making the recovery. He is put to a choice, then, of accepting the State’s offer or litigating at his own expense. In any event, this interpretation of “just compensation,” at best, unnecessarily encourages a waiver of the property owner’s constitutional right to full recovery for the value of the property taken.

The converse, on the other hand, is not true. Any property owner who sought to gamble for a higher recovery at the con-demnor’s expense runs the risk of having the trial court disallow the expenses of litigation where in retrospect the refused offer was a reasonable one. Otherwise stated, suppose a property owner refuses a $50,000 offer with the thought: “Why not litigate and risk a higher award since the costs of litigation is to be borne by the condemnor ?” Suppose further that the jury awarded $40,000. In such event, the trial judge on motion for award of costs, applying the traditional rules governing such matters, could deny any additional recovery. This judicial discretion would serve as a safety valve against abuse by the property owner whereas no counterpart exists to stem abuse by the condemnor under the majority’s interpretation.

The major opinion lays great stress on the interpretation of “just compensation” by the United States Supreme Court in Dohany v. Rogers, 281 U.S. 362, 50 S.Ct. 299, 74 L.Ed. 904 (1930). There the issue was whether the substantive due process clause of the 5th Amendment to the Federal Constitution requires “just compensation” to include attorney’s fees and other costs of litigation in eminent domain proceedings. Here, the Alabama Supreme Court is asked to interpret its own State Constitution; and Dohany not only is not controlling, it is indeed poor precedent for the majority holding.

It is, to be sure, an anomaly of our jurisprudence that the United States Supreme Court has no difficulty in recognizing and applying the “independent state ground” doctrine while most state courts seem never to have heard of, much less apply, such doctrine. Strikingly obvious, it seems to me, yet ignored by the majority, is the fact that minimum federal constitutional standards are not here in issue.

Finally, the State argues that, as a practical matter, condemnation awards, particularly jury verdicts, take into account items of necessary expenses incurred in litigation; and thus no declared interpretation favorable to the property owners’ contention is necessary. This argument is to the effect that we should either condone or encourage dishonesty within the system. I would respectfully decline to do either. Any award which goes outside the bounds of competent testimony as to value of the property taken must, on review, be set aside as excessive. This Court should neither promulgate a new rule nor adhere to an old rule which has as its avowed purpose the condoning of false testimony as to value or which will reflect on the veracity of a jury verdict.

Rather, by our holding here, we should further assure the integrity of the system by recognizing and giving full effect to the rule of damages heretofore alluded to (APJI), and by permitting the trial court, upon motion of the property owner following the verdict, to assess as costs the necessary and reasonable expenses, if any.

I would reverse and remand.

FAULKNER, J., concurs.

      . “The costs of the application and proceedings thereunder, including the compensation of commissioners, who shall receive reasonable compensation to be fixed by the judge, must be adjudged and assessed against the applicant and his surety for costs, for which execution may issue. But should the applicant tender to the landowner or other party interested therein, prior to the application for condemnation, a sum of money in excess of that awarded by the commissioners, which tender lie lias kept good until the time of trial by paying the same into court to await the result of the proceedings, in which case the costs of the proceedings shall be taxed against the landowner or other party; but the commissioners awarding damages shall have no knowledge of the amount so tendered, and shall so certify in their award.”

      . gee Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975), in which Mr. Justice Blackmun, speaking for the majority said: “ . . . a State is free as a matter of its own law to impose greater restrictions . . . than those this Court holds to be necessary upon federal constitutional standards.” See also my dissent in McKinney v. City of Birmingham, Ala., 296 go.2d 236 (1974).