text:
    Jerry COLLINS, Jr. v. Deloris Richard, wife of Jerry COLLINS, Jr.
    No. 9215.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.

      Donald P. Conlay, New Orleans, for Jerry Collins, Jr., plaintiff-appellee.
    Bettyanne L. Bussoff,'New Orleans, on behalf of Deloris Richard Collins, defendant-appellant.
    Before LEMMON, BOUTALL and-SCHOTT, JJ.
   BOUTALL, Judge.

Pursuant to R.S. 46:236.1 D. the State of Louisiana, alleging an assignment from the mother of seven minor children, entered this proceeding, originally a 2 year divorce suit filed by the husband, and filed a rule to show cause why child support payments should not be made to the State of Louisiana. The trial judge rendered a judgment awarding child support in the amount of $50.00 per week, and the state, on behalf of the mother, has appealed.

In its program of family and child support, Louisiana has authorized the Health and Human Resources Administration to develop and implement the obtaining of child support from parents, R.S. 46:236.1 et seq. One purpose of the statute is to place the ultimate burden of child support where it belongs, that is, on the parent and not on the taxpayers. While the State properly furnishes immediate relief for needy children, the scheme of the statute allows the State to pursue collection of child support from the person primarily legally responsible for that support. The State is granted a separate cause of action for enforcement of support, or it may proceed by assignment of rights of the custodial parent. In this case the State alleges assignment from the mother. Accordingly, the State stands exactly in the same position as the mother and has no greater rights than she has. The award of child support against the father must be based upon a balancing of the children’s needs and the father’s ability to pay. L.C.C. Art. 231.

It is unnecessary to refer to specific evidence herein to show that the expenses of raising seven children are in excess of $50.00 per week. Unquestionably the judgment is inadequate to pay for their entire support. The problem that is presented is how much should their father be required to pay?

The father, Jerry Collins, Jr., was employed in 1976 at a net salary after taxes of $12,573.98 per year, earning gross $6.59 per hour. He received a 7% raise in September, 1976. Since the divorce he has remarried and has one child from that marriage, and at trial time his wife was pregnant expecting a second child within a few weeks. He relates that his net income amounted to an average of $225.00 per week (it actually computes in 1976 to $242.00 per week) and that his expenses averaged $237.00 per week, making a net loss of $11.00 per week, which was made up from his wife’s salary of $85.00 per week. However his wife would have to quit her job within two weeks of trial because of her pregnancy and health condition, but intended to return to work later.

In resolving this problem, the trial judge awarded the sum of $50.00 per week. It is well settled that a great deal of discretion is vested in the trial judge in determining the proper amount of child support. His judgment should not be set aside unless the evidence clearly reflects an abuse of discretion.

A survey of child support cases reveals that the trial court’s award of $50.00 per week for seven children is extremely low. We note that in the division of his pre-raise salary of some $242.00 weekly, the father, second wife and child is allowed more than $192.00 per week (79%) for their living expenses, while his seven children are allowed $50.00 per week. We note for comparison the following cases: Long v. Long, 347 So.2d 513 (La.App. 2d Cir. 1977); Marcus v. Barnett, 282 So.2d 122 (La.1973); Koon v. Koon, 271 So.2d 893 (La.App. 4th Cir. 1973); Laiche v. Laiche, 237 La. 298, 111 So.2d 120 (1959). We conclude that the father’s obligation to support his seven minor children is his primary obligation, which has priority over the present indebtedness of the father. The trial judge erred in considering the priority of these obligations, and set the alimony too low. We recognize the problem with which he was confronted, that is, there being insufficient funds for the satisfactory support of both the children and his second family, and we must also fix our figure, not at the amount necessary for the support of the children, but at an amount tempered by the ability of the father to pay, considering the trial court’s discretion. Accordingly, we fix the father’s obligation to pay child support at the sum of $70.00 per week.

It is ordered that the judgment of child support appealed from is amended to increase the sum to $70.00 per week, and as amended, the judgment is affirmed.

AMENDED AND AFFIRMED.


source: Caselaw Access Project

author: SCHOTT, Judge.

license: Public Domain

text:
    Maggie LOTT v. BRENNAN’S HOUSE OF PRINTING, INC. and United States Fidelity & Guaranty Co.
    No. 9310.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    Porteous, Toledano, Hainkel & Johnson, James L. Donovan, New Orleans, for defendants-appellants.
    William A. Summers, III, Inc., William A. Summers, III, Metairie, for plaintiff-appel-lee.
    Before REDMANN, STOULIG and SCHOTT, JJ.
   SCHOTT, Judge.

Defendants have appealed from a judgment in which plaintiff was awarded $29,-282.43 for workmen’s compensation benefits. The trial judge gave the following reasons for his judgment:

“Viewing the medical opinions in a light most favorable to the injured employee, the Court concludes that plaintiff is permanently partially disabled and is entitled to receive maximum partial disability compensation at the rate of SIXTY AND 10/100 DOLLARS ($60.10) per week for 400 weeks, which amounts to $24,040.00 less a credit of $1,466.40 previously paid. This results in a net figure of $22,573.60.
“The Court is of the opinion that the defendants were arbitrary and capricious in terminating Mrs. Lott’s compensation payments without any medical authorization that she was able to return to work. Penalties of 12% of the compensation due, amounting to $2,708.83, and attorney’s fees of $3,500 are awarded to the plaintiff.
“This results in a total figure of TWENTY-NINE THOUSAND TWO HUNDRED EIGHTY-TWO AND m/m DOLLARS ($29,282.43) with legal interest until paid.”

Appellants have limited their complaint in this court to the manner in which the trial judge computed compensation due plaintiff. They contend that plaintiff is entitled to only $25.00 per week and that the judgment should be recast to award her $25.00 a week for 400 weeks subject to a credit of $1466.40 previously paid.

This case involves an injury which occurred on January 22, 1976, so that the compensation act as amended by Act 583 of 1975 is applicable.

One of the changes in the new act is in the definition of benefits due an employee for partial disability under LSA-R.S. 23:1221(3). Before the passage of the 1975 amendment this provision was as follows:

“For injury producing partial disability to do work of any reasonable character, sixty-five per centum of the difference between wages at the time of injury and wages which the injured employee is able to earn thereafter during the period of disability, not beyond three hundred weeks.”

However, the new act’s definition of partial disability is:

“For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience, sixty-six and two-thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, during the period of disability, but not beyond a maximum of four hundred weeks . . . .”

Now, the particular disabled workman is entitled to a flat two-thirds of the difference between the wages he was earning at the time of the injury and any lesser wages which he actually earns thereafter. See Kilbourne v. Armstrong, 351 So.2d 802 (La.App. 1st Cir. 1977), LeBlanc v. Commercial Union Assur. Co., 349 So.2d 1283 (La.App. 1st Cir. 1977), writ refused, La., 351 So.2d 174. Thus, the $60.10 figure used by the trial judge was the proper amount of compensation to be awarded.

However, we do not find from the wording of the act authority for the trial judge to award a lump sum of compensation to plaintiff. Furthermore, the statutory intent is to credit the employer of the injured workman with any actual earnings accruing to the employee during the 400 weeks of benefits. Therefore, the judgment must be amended to award plaintiff $60.10 per week for a period of 400 weeks, subject to a credit of the $1466.40 previously paid to her.

Appellants have not complained of the remaining portions of the judgment so that these will remain unchanged.

Accordingly, the judgment appealed from is affirmed but is amended to decree that plaintiff is entitled to workmen’s compensation benefits for partial disability, i. e., $60.10 per week for 400 weeks, subject to a credit of $1466.40 previously paid in lieu of the lump sum of $22,573.60 for benefits. The judgment is further subject to credit for any earnings by plaintiff after its date on a week-for-week basis. Penalties are reduced to 12% of past due benefits only. R.S. 23:1201.2, Kilbourne v. Armstrong, supra, Costa v. Wembley, 346 So.2d 282 (La.App. 4th Cir. 1977). The award of attorney’s fees to plaintiff is affirmed.

AMENDED AND AFFIRMED.


author: STOULIG, Judge. SCHOTT, Judge,

text:
    Henry ARNOLD and John F. Robbert v. The BOARD OF LEVEE COMMISSIONERS OF the ORLEANS LEVEE DISTRICT, Guy Lemieux, the F. Edward Hebert Foundation, and Ernest A. Carrere, Jr.
    No. 9328.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 22, 1978.
    Rehearing Denied June 1, 1978.
    Writs Granted June 30, 1978.
    John F. Robbert, New Orleans, for plaintiffs-appellees.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John W. Haygood and Lucius F. Suthon, New Orleans, for The F. Edward Hebert Foundation, defendant-appellant.
    McGinity & McGinity, Richard J. McGinity, New Orleans, for The Board of Levee Commissioners Orleans Levee District, defendant-appellant.
    Kantrow, Spaht, Weaver & Walter, Carlos G. Spaht and Sidney M. Blitzer, Jr., Baton Rouge, for Gulf South Research Institute, amicus curiae.
    Montgomery, Barnett, Brown & Read, Nathan T. Gisclair, Jr., and Omer F. Kue-bel, Jr., New Orleans, for Lake Forest, Inc., amicus curiae.
    Before REDMANN, STOULIG and SCHOTT, JJ.
   STOULIG, Judge.

This is an appeal from a judgment that nullifies a contract of lease between the Board of Levee Commissioners of the Orleans Levee District and the F. Edward Hebert Foundation for noncompliance with the public lease law (R.S. 41:1211 et seq.). The defendants were also enjoined from proceeding on this site with construction of the proposed F. Edward Hebert Memorial Library.

The basis for this result is our opinion in Arnold v. Board of Levee Com’rs of Orleans Lev. Dist., 327 So.2d 495 (La.App.1976), wherein we held that a petition alleging the lease in question was confected without complying with R.S. 41:1211 et seq. did state a cause of action. On this holding the court was unanimous. The majority stated:

“We conclude that the lease negotiated between defendants is valid only if consummated after compliance with the provisions of L.R.S. 41:1211 et seq. While defendants concede the lease was privately negotiated, our adjudication necessarily is limited to the record before us and we can only hold that the petition does state a cause of action in this respect.” 327 So.2d at 500.

On remand, the litigants formally stipulated the public bid procedure was not used; therefore, we apply the “law of the case” principle and affirm based on our holding in the first appeal.

Appellants reargue the proposition the Board has been exempted from compliance with the public lease law by a constitutional grant. They urge us to review the same issue and depart from the “law of the case” policy because of the alleged problems the decision creates in titles to property derived from the Board through mesne conveyances. It may be doubted, however, that titles pre-existing the 1974 Constitution are affected by our decision. In any case, the applicability of the “law of the case” principle and situations in which a court is warranted in deviating from this policy are well stated by Justice Tate in Petition of Sewerage & Water Board of New Orleans, 278 So.2d 81, 83 (La.1973). We quote:

“The procedural principle known as the ‘law of the case’ foreclosed the trial court on the remand from reconsidering the unconstitutionality issue, this court having decided such issue on the first appeal.
“As the authorities to be cited show:
“The law of the case principle relates to (a) the binding force of trial court rulings during later stages of the trial, (b) the conclusive effects of appellate rulings at the trial on remand, and (c) the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal in the same case. Among reasons assigned for application of the policy are: the avoidance of indefinite relitigation of the same issue; the desirability of consistency of the result in the same litigation; and the efficiency, and the essential fairness to both sides, of affording a single opportunity for the argument and decision of the matter at issue.
“Nevertheless, the law of the case principle is applied merely as a discretionary guide: Argument is barred where there is merely doubt as to the correctness of the former ruling, but not in cases of palpable former error or so mechanically as to accomplish manifest injustice.
“See: Day v. Campbell-Grosjean Roofing & S. M. Corp., 260 La. 325, 256 So.2d 105 (1971); Louisiana State Bar Assn. v. Theard, 225 La. 98, 72 So.2d 310 (1954); City of Gretna v. Aetna Life Ins. Co., 207 La. 1085, 22 So.2d 658 (1945); Wall v. American Employers Ins. Co., 250 So.2d 172 (La.App. 1st Cir. 1971); Keller v. Thompson, 134 So.2d 395 (La.App. 3d Cir. 1961) (full discussion). See also Moore’s Federal Practice, 0.404 (1965); Freeman on Judgments, Section 30 (5th Ed. 1925); Note, 60 Ky.L.J. 419 (1972); Note, 5 Stanford L.Rev. 751 (1953); Note, 62 Harv.L.Rev. 286 (1948); Note, 40 Col.L.Rev. 268 (1940); Lummus, ‘The “Law of the Case” in Massachusetts’, 9 Boston U.L.Rev. 225 (1929); 5B C.J.S. ‘Appeal and Error’ §§ 1821-1834, 1964; 21 C.J.S. ‘Courts’, § 195; 5 Am.Jur.2d ‘Appeal and Error’, Sections 744-59.”

After considering the arguments and briefs of counsel and the amici curiae briefs, we fail to see how this case meets the criteria warranting a departure from the “law of the case”'rule.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

SCHOTT, J., concurs with written reasons.

SCHOTT, Judge,

concurring.

I was not a member of the panel which heard this ease when it was here on appeal from a judgment maintaining exception of no cause of action and I do not necessarily agree with that opinion.

However, the law of the case doctrine makes it unnecessary for me to consider the issues which were resolved by this court in our earlier opinion and compel at this time a conclusion that the judgment appealed from be affirmed.


author: LEMMON, Judge. GULOTTA, Judge,

text:
    Aaron Lester SARPY v. Theresa Locicero SARPY.
    No. 8513.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 25, 1978.
    Rehearing Denied June 13, 1978.
    Writ Refused July 3, 1978.
    Lemle, Kelleher, Kohlmeyer & Matthews, Mack E. Barham and Charles F. Thensted, New Orleans, for plaintiff-mover.
    Frank J. D’Amico, New Orleans, for defendant-respondent.
    Before LEMMON, GULOTTA and SCHOTT, JJ.
   LEMMON, Judge.

This matter is before us on a motion to vacate and recall our judgment in this case (reported at 354 So.2d 572, cert. den. 356 So.2d 436) and to assign the case for rear-gument before a panel of five judges in accordance with La.Const.1974, Art. 5, § 8(B).

The appeal was originally submitted to a three-judge panel, which rendered a unanimous decision reversing the judgment of the trial court. Mr. Sarpy then applied to this court for a rehearing, and the application was denied, with one judge voting to grant the rehearing.

In this motion presently before us Mr. Sarpy argues that a five-judge panel must be convoked any time one judge of a three-judge panel dissents from the reversal of a judgment of the trial court, even if the dissent comes after rendition of the original judgment on appeal.

The purpose of Section 8(B) is to require reconsideration by a larger panel “prior to rendition of judgment” whenever the original panel proposes to reverse or modify the trial court judgment, unless the original panel votes unanimously to do so. The issue presented by this motion is whether the unanimity must continue after rendition of the judgment of reversal, until the judgment of this court becomes definitive.

Section 8(B) contemplates applicability to the judgment of the appellate court which actually reverses the trial court judgment. Once the judgment is rendered reversing the trial court judgment, Section 8(B) does not require unanimity of the appellate court on an application to reconsider the unanimous judgment of reversal.

The motion is denied.

MOTION DENIED.

GULOTTA, J., dissents and assigns reasons.

GULOTTA, Judge,

dissenting.

I dissent. One judge of this panel has expressed disagreement (in explanation of his vote to grant a rehearing) with the majority opinion modifying the trial court’s judgment. LSA-Const.1974, Art. 5, § 8(B) provides that where one judge of a three-judge panel dissents from the modification or reversal of a district court judgment, reargument before a five-judge panel is required. Where no application for writs has been made to the Supreme Court, our judgment is final only after denial of the application for rehearing. LSA-C.C.P. art. 2166; Montagne v. Tinker, 201 So.2d 701 (La.App. 3d Cir. 1967). The majority’s holding could easily be used to circumvent the constitutional requirement. In view of the dissent, on the application for rehearing, I am of the opinion this matter should be reargued before a five-judge panel.

      . La.Const.1974, Art. 5, § 8(B) provides:
      “A majority of the judges sitting in a case must concur to render judgment. However, when a judgment of a district court is to be modified or reversed and one judge dissents, the case shall be reargued before a panel of at least five judges prior to rendition of judgment, and a majority must concur to render judgment.”

      . If a rehearing were granted, thus vacating the appellate court judgment, then the provisions of Section 8(B) would arguably apply to require a unanimous decision finally reversing the trial court.


author: JOHN C. LOVE, Jr., Commissioner

text:
    In the Matter of the Last WILL and Testament of William E. PALMER, Deceased. Louis BAKER et al. v. Barron HARPOLE, Administrator, et al.
    No. 50268.
    Supreme Court of Mississippi.
    May 31, 1978.

      Laurence Y. Mellen, Cleveland, Mcllwain, Mcllwain & Cox, Willard L. Mcllwain, Greenville, Levingston, Jacks, Levingston & Land, John W. Land, Cleveland, for appellants.
    Robert W. King, Jackson, for appellees.
    Before SMITH, P. J., SUGG and BROOM, JJ., and LOVE, Commissioner.
   JOHN C. LOVE, Jr., Commissioner

for the Court:

The Chancery Court of Sunflower County entered its decree admitting the Will attached hereto as Annex A to probate in solemn form. The decree probated the Will in its original form together with a Codicil which named another Executor. From this decree, appellants, who are some of the heirs-at-law of the Testator, appealed. The principal appellee here is one of the charitable beneficiaries named in the Will.

The Testator, a college graduate, and his wife executed virtually identical Wills on April 1, 1968, with the only difference between the Wills being that where he named her as the beneficiary, she named him. The wife predeceased the Testator in 1973. The Will of the Testator as well as the Will of his wife, together with a Codicil which he executed on May 6, 1975, were found after the death of the Testator on June 27, 1976, in a box under his bed where he had previously told his nephew that it was kept. The Codicil provided for the appointment of a new Executor and set the fee of the Executor and limited the expenses to be incurred by the Executor. The Testator and the nephew were the only parties with access to the house and this nephew was not an heir-at-law since his father, the brother of the Testator, was still living. It is further noted that the amount of the devise under the Will to this nephew’s father was virtually the same as his share as an heir-at-law would be. Prior to his death, on different occasions the Testator had stated to different parties that he intended for his estate to go in a manner different from that provided by the original Will and there was found with the Will another document in the Testator’s handwriting which indicated an intent for assets to go in a manner different from that provided in the Will, but the document was not signed.

The parties stipulated that the Will was validly executed on April 1, 1968; that the Codicil was validly executed on May 6, 1975; and that the words written on the Will were in the Testator’s handwriting. There was no evidence as to when the writing and markings were placed on the Will.

The Chancellor’s opinion clearly indicates that his decision admitting the Will to probate was based on the fact that he thought the Testator intended to die testate and that he reached this conclusion because of the 1975 Codicil which he felt established an intent to die testate. This is clear from a statement in the opinion that “The one thing that clearly shines through here is from the Codicil. . . . ” It is also clear from the opinion that the Chancellor did not consider any presumptions relative to the markings on the Will.

We agree that as of the date of the Codicil the Testator intended to die testate, but from the facts here we cannot agree that the Will should have been admitted in its original form. Mississippi Code Annotated, Section 91-5-3 (1972) clearly authorizes a total or partial revocation by either cancellation or obliteration, though it appears that the Chancellor felt that the revocation had to be total or not at all. The general law relative to cancellation or obliteration, as found in 95 C.J.S. Wills § 280, is as follows:

Usually in legal as well as in common acceptance cancellation is accomplished by the drawing of lines over or across words with the intent to nullify them and the form and extent of the lines are totally unimportant as long as they are a physical token of the intent to revoke.
Revocation by obliteration may be effected by erasing, drawing lines across the signatures of the testator and the witnesses, or blotting out the words of the will. Obliteration does not require the effacing of the letters of the will so completely that they cannot be read.

Having examined the Will now before the Court which is attached as Appendix A hereto, and in view of the standards above set out, it must be concluded that the markings on this Will are sufficient to accomplish a partial revocation by cancellation and obliteration. The extent of these markings causes us to reject the argument that they were made simply for the purpose of providing a rough draft of changes that were merely contemplated. Thus we must determine whether this was done by the Testator with the intent to revoke or partially revoke the Will, for the law is clear in this state that this is a necessary element of effective revocation. Livelar v. Arnold, 233 So.2d 760 (Miss.1970); McCormack v. Warren, 228 Miss. 617, 89 So.2d 702 (1956).

Relative to this proof of intent to revoke and of the fact that it was done by the Testator, we find a presumption that the lower court apparently did not consider applicable here which is stated in 79 Am. Jur.2d, Wills, Section 607, as follows:

It is generally agreed that if the Will produced for probate which is shown to have been in the custody of the Testator after its execution was found among the Testator’s effects after his death in such a state of mutilation, obliteration, or cancellation as represents a sufficient act of revocation within the meaning of the applicable statute, it will be presumed in the absence of evidence to the contrary that such act was performed by the Testator with the intention of revoking the instrument.

One of the cases establishing this presumption is the Mississippi case of Whitehead v. Kirk, 104 Miss. 776, 61 So. 737, sugg. of error overruled 104 Miss. 823, 62 So. 432 (1913). Applying this presumption to the facts we have here, especially the facts relative to the custody of the Will, the extent of the markings and the statements of the Testator, we must conclude that the Testator intended to revoke those portions of the Will over which he had made the markings that appear on the Will. This is a rebuttable presumption which was recognized in the case of Adams v. Davis, 233 Miss. 228, 102 So.2d 190 (1958), but we find the facts there quite distinguishable from those here. It appears to this Court that under the law as set out above, it must be concluded that the Testator made the marks on the Will and that he did so in a manner sufficient to accomplish a partial revocation of the Will by obliteration and cancellation.

We, therefore, conclude that the decree rendered below should be reversed and a judgment rendered here for the appellants; that all of those portions of the Will through which lines were drawn, being Items IV and VI of the Will, were effectively revoked; that the provisions written on the Will relative to the W. F. Bond Home for Older Men and those written on the separate document relative to the sale of the place, are invalid, not having been signed by the Testator; that the remaining portions of the Will are valid; that the Codicil naming Harpole as Executor is valid; that the devise to the wife in Item II has lapsed; that there being no valid or effective residuary clause, the assets of the estate should go to the heirs-at-law as provided by the law of this state; and that the Executor should be governed by all the provisions of the Will and Codicil which are not hereby declared to have been revoked by Testator; and that this cause should be remanded to the lower court for carrying out the provisions hereof.

REVERSED AND JUDGMENT ENTERED HERE FOR APPELLANTS; CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

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

APPENDIX A

      . Sitting pursuant to Chapter 40, Laws of 1976. The above opinion is adopted as the opinion of the Court.


author: BOWLING, Justice,

text:
    Wilmer BOWEN et ux. v. John H. BIANCHI et al.
    No. 50291.
    Supreme Court of Mississippi.
    May 31, 1978.
    Dale, Hathorn & Clark, Joseph Dale, Prentiss, for appellants.
    Patterson, Harper, Mallette & Bellan, C. E. Harper, Jackson, Donald G. Kruger, Prentiss, Allen & Allen, Robert 0. Allen, Donald B. Patterson, Brookhaven, for ap-pellees.
    Before ROBERTSON, LEE and BOWLING, JJ.
   BOWLING, Justice,

for the Court.

Wilmer Bowen and wife were complainants under a bill of complaint filed against John H. Bianchi and others in the Chancery Court of Jefferson Davis County. Each defendant filed a special demurrer to the bill of complaint. All demurrers were sustained by the lower court and an appeal was granted.

Under the allegations of the bill of complaint, all of which we assume are true in considering the cause, complainants sought to cancel certain mineral interest conveyances held by the defendants involving forty acres of land in Jefferson Davis County. It was alleged that these instruments all constituted clouds on complainants’ title and should be cancelled and set aside.

The bill of complaint alleged that on November 17, 1942, G. C. Sims, then owner of the property, entered into a contract with complainant Wilmer Bowen, under the terms of which Sims agreed to sell and Bowen agreed to purchase the property in question. Under the terms of the contract, a copy of which was attached to the bill of complaint, the total consideration for the sale and purchase was $500, to be paid over a period from the date of the contract to May 15, 1946, with payments of $100 each, the first to be made at the time of executing the deed, and succeeding payments due annually on May 15, 1943, 1944, 1945 and 1946, with all payments to bear interest at the rate of eight percent per annum. The contract then provided that upon receiving the May 15, 1946, payment, G. C. Sims would execute and deliver to Bowen a warranty deed to the property. In the event of default in the payments, those already paid would be considered as earnest money and rent.

It was alleged that under and by virtue of the contract, G. C. Sims gave up all possession of the land and then complainants immediately entered into possession and began construction of a residence thereon; that complainants have continued in uninterrupted possession and use of all the land from the date of the contract until the present time; that G. C. Sims never was in possession of said land or any part thereof after November 17, 1942.

It was alleged that on February 22,1945, a purported mineral right and royalty transfer instrument was executed by G. C. Sims and wife to C. Fred Morgan, and at that time complainants were in full possession of all the land and had constructed and were using the residential building as their home, together with other buildings on the said land; they had fenced the land and were farming a portion thereof. It was alleged that all this possession was sufficient notice to put the said C. Fred Morgan on inquiry which would have revealed the existence of the land purchase contract and the interests of the complainants.

It was alleged that all payments were made under the contract and on August 20, 1946, G. C. Sims and wife, P. L. Sims, carried out the obligation of the contract by executing to the Bowens a warranty deed to the subject property. Allegations were made that the defendants in the suit were bound by the terms of the land purchase contract and, therefore, “took nothing” by virtue of their instruments.

It was alleged that the complainants did not have knowledge of the execution, recor-dation, or existence of any of the purported mineral right and royalty transfer instruments received and held by the defendants derivatively from the instrument executed by Sims and wife to C. Fred Morgan; that at no time during the period set out in the bill of complaint had the complainants been disturbed in their possession of the property and had no reason to believe that they did not own the mineral interests.

The special demurrers filed by the defendants raised the issue that the cause of action set out in the bill of complaint was barred by the statute of limitation as set out in Mississippi Code Annotated sections 15-1-7 and 15-1-9 (1972). The lower court agreed with these contentions and entered its decree sustaining all demurrers as being barred by the above set out statutes of limitation.

Appellees (defendants below) contend that the instrument executed in favor of C. Fred Morgan on February 22, 1945, was at most a voidable instrument and as it was immediately recorded in the office of the chancery clerk, appellants had constructive notice of the instrument and the ten-year statutes of limitation began to run on the date of recordation.

Appellants contend that by taking complete possession of the property pursuant to the contract of November 17,1942, and the manner of possession which was clearly evident on February 22, 1945, the date of the mineral instrument to Morgan, put Morgan on notice of appellant’s claim to the property, including the minerals, under the terms of the contract and that any inquiry would have revealed appellants’ right to the surface and minerals under the contract. They contend that the mineral instrument to Morgan was void as Sims had conveyed the surface and the minerals to appellants upon the execution of the contract; that because of the void instrument and the open, full and complete possession of the property, the statutes of limitation set out in the demurrers are not applicable. We agree with these contentions of appellants.

Appellees rely primarily on the following cases: Aultman v. Kelly, 236 Miss. 1, 109 So.2d 344 (1959); Neal v. Teat, 240 Miss. 35, 126 So.2d 124 (1961); Dent v. Calhoun, 326 So.2d 320 (Miss.1976); Cooley v. Cooley, 328 So.2d 57 (Miss.1976); and Robinson v. Rhodes, 236 So.2d 746 (Miss.1970).

Appellants correctly contend that the facts and opinions in these cases differ from the case at bar. We need to analyze those cases. In Aultman, supra, the heirs of one Raphael C. Cuevas, deceased, sought to cancel a mineral deed executed by Cuevas on April 30, 1945, to Ferris E. Tate. The suit charged that Cuevas was mentally and physically unable to execute the instrument and that he thought he was signing a lease rather than a mineral deed. It was alleged that Tate secured the deed from Cuevas by fraud and, therefore, the deed was voidable. The distinction between Aultman and the present case is that the alleged fraudulent mineral deed was secured from the owner of the property at a time when he was in actual possession thereof.

In Neal v. Teat, supra, the same ownership and possession situation existed as in Aultman. The bill in chancery was filed by Oscar Neal and wife, Hattie Neal, alleging that the agents of the defendant Teat fraudulently obtained from them a deed to an undivided one-half interest in and to the oil, gas and other minerals under the property in question. Again, as in Aultman, the alleged fraudulent and voidable instrument was secured from the owners in' possession. The Court in holding that the two statutes of limitation in question barred the suit, made several observations:

The application of Code Sections 709 and 710 [now Sections 15-1-7 and 15-1-9, Code of 1972] to cases involving suits for the cancellation of instruments creating the peculiar estate that the owner of a severed mineral interest holds presents some difficulties. The question now before the Court was first presented in Hunt v. Davis, 208 Miss. 710, 45 So.2d 350, but the Court found other grounds for the disposition of that case and pre-termitted consideration of the application of Code section 710 with the observation that the question was interesting but perplexing.

Other interesting observations made by the Court in Neal were:

A person who owns property, and who is in possession of it, has more than a right of action. He has everything the law can give him, and it is unnecessary that he resort to a suit to gain back that which he has never lost. Neither of the statutes of limitations referred to may be invoked in a suit where (1) the complainant holds title, (2) has the actual or constructive possession of the property, and (3) the defendant, whose claimed adverse interest is sought to be cancelled, is not in possession. In short, statutes of limitations do not begin to run against a person who has (1) a good title, and (2) actual or constructive possession of lands, until an adverse entry has been made.
. One of the areas in which the advent of the severed mineral estate creates new problems in applying established rules of law is that of possession — the dominant factor in the results reached in each of that line of cases beginning with Dingey v. Paxton, supra [60 Miss. 1038 (1883)].

It is obvious in Neal that the paramount consideration by the Court was that the persons allegedly defrauded and who brought the suit not only owned but were in full possession of the entire property at the time they executed the alleged voidable instrument.

In Dent v. Calhoun, supra, Estella Zinnerman, on May 26, 1955, conveyed the entire mineral interest in the land in question to Windham and Calhoun. This instrument was filed for record on May 27, 1955. Zin-nerman did not get title to the property until a forfeited tax land patent was conveyed by the State on June 9, 1955. On June 11,1955, Zinnerman conveyed the land to appellant Dent. The suit was filed by Dent against Windham and Calhoun to cancel their mineral instrument as a cloud. The chancellor found that as a fact Dent learned of the mineral deed within a few days after its execution but waited until more than ten years elapsed before filing suit. It was clear that this voidable deed with the knowledge of its execution by Dent set in motion the statutes of limitation.

In Cooley v. Cooley, supra, the facts presented to the lower court were not set out. However, the Court held that the statutes of limitation as applied in Neal and Dent were applicable. It is significant that the opinion stated:

The issue before the Court is whether a landowner’s suit to cancel mineral deeds on the ground of fraud is barred by limitations after notice of constructive possession is proclaimed by filing the mineral deeds for record upon the land rolls of the county. (Emphasis supplied).

This indicates that the suit also involved a claim by an owner in possession who executed an alleged voidable instrument while in that status.

In Robinson v. Rhodes, supra, the question now before the Court was not reached, and the case obviously does not apply here.

Now let us look at the authorities applicable to the contentions of appellants; that is, that the statutes of limitation in question do not apply here because (1) the mineral instrument in question was void and not voidable; (2) it was secured by fraud from appellants, but if any fraud, it was by Sims, the original owner and/or Morgan, and (3) after November 17, 1942, the date of the contract, appellants were in full, sole and complete possession of the relatively small tract of land, had built their residence thereon, and were living on the land and working it that the time the mineral instrument was executed and delivered from Sims to Morgan; and (4) any reasonable inquiry would have caused anyone to ascertain the true facts of possession and their claim to the property and minerals under the contract.

At the outset, it might be argued that the “contract” did not operate as a conveyance to appellants of all surface and mineral rights as in a deed. This principle was discussed and settled in the early case of Taylor v. Lowenstein, 50 Miss. 278 (1874), where the Court said:

It has been accepted as the settled law in this state, since the case of Dixon v. Lacoste, 1 S. & M. [70] 101, that the occupancy and open possession of land under an unregistered deed of conveyance or bond for title or other contract of sale, imparts notice to creditors and subsequent purchasers, and gives them the same protection as though these written memorials of title had been recorded. (Emphasis supplied).

The above principle was affirmed in Stevens v. Hill, 236 So.2d 430 (Miss.1970); Gulf Refining Co. v. Travis, 201 Miss. 336, 29 So.2d 100 (1947); Russell v. Scarborough, 155 Miss. 508, 124 So. 648 (1929); and Stovall v. Judah, 74 Miss. 747, 21 So. 614 (1897).

The principal case on the issues before the Court appears to be Gulf Refining Co. v. Travis, supra. There, G. B. Travis conveyed the property in question to his daughter, Mrs. J. H. Hooks. She was a nonresident of the State of Mississippi but immediately placed a tenant on the property who established and retained possession while living on and working the land. After the conveyance to his daughter, G. B. Travis executed a mineral deed to another party. This deed was recorded but Mrs. Hooks did not record her deed of conveyance for approximately ten years. The Court, in holding that the statutes of limitation did not apply because of the possession of Mrs. Hooks through her tenant and subsequent grantee, made the following statements, to wit:

. Mrs. Hooks was in the actual occupancy of the land by her tenants when the mineral lease and the mineral deeds were made by Mr. Travis in 1937, and these tenants also knew that Mrs. Hooks and not Mr. Travis was the owner. An inquiry of the tenants in possession at the dates mentioned in this paragraph would have disclosed her ownership to any prospective purchaser.
But the persons or agents who procured the mineral deeds and leases aforementioned did not go to the land or upon it, nor did they send any person to do so. No information about it otherwise was obtained by them.
The salient facts above stated are either undisputed or else are shown by evidence sufficient to support the finding upon the facts in favor of appellee by the chancellor. They present the first contention earnestly pressed by appellants, that it is immaterial whether Mrs. Hooks was in actual possession of the land by her tenants at the time appellants acquired their mineral leases and mineral deeds afore-stated, because, as appellants contend, the registration statutes as amended by Chap. 239, Laws 1924, Sections 2146, 2147, and 2148, Code 1930, same sections 867, 868, 869, Code 1942, give priority in title to the holder who first files his deed for record in the absence of actual notice to him.
For a century, beginning as far back as Dixon v. Doe, ex dem. Lacoste, 1 Smedes & M. 70, and through a uniform line of decisions on down to Beauchamp v. McLauchlin, 200 Miss. 83, 25 So.2d 771, decided in 1946, it has been consistently held that the registration statutes do not affect an owner in possession by himself or by his tenants, and that his actual possession is all the notice necessary to any prospective purchaser.
If we were to sustain the contention now made by appellants on this point, we would open up one of the most profitable fields for legalized plunder that could well be imagined.
Moreover, there have been a number of cases before this Court in the twenty-two years since the passage of Chapter 239, Laws 1924, wherein the stated rule as to the effect of actual possession has been continued to be maintained. One of these is Kalmia Realty & Ins. Co. v. Hardy, 164 Miss. 313, 145 So. 506, 507, wherein it was suggested that the rule previously maintained as to the effect of actual possession as notice should be modified, and the Court responded that “No hardship can result from refusing to modify the rule and continuing to hold persons who desire to purchase or obtain liens on property to the necessity of ascertaining whether or not it is in the possession of a person other than its owner; and, if so, what the title of the possessor is, and, if he claims under another, what the title of such other is.”

It is conceded by the parties and is alleged in the bill of complaint that no actual possession of the minerals under the subject property was taken by the original grantee,’ or his subsequent grantees or assigns. In the case of Continental Oil Co. v. Walker, 238 Miss. 21, 117 So.2d 333 (1960), involving the setting aside of a forged mineral deed, this Court, in affirming the lower court’s action is setting the deed aside, said:

In addition to contending that the proof is insufficient to establish the forgery, the appellant, Continental Oil Company, also contends that this action is barred by the statutes of limitation, Sections 709 and 710 of the Mississippi Code of 1942 [now sections 15-1-7 and 15-1-9, Code of 1972]. It is sufficient to say with respect to this contention that the statutes relied upon have been held by this Court not to apply except where the person invoking the same has been in adverse possession of the land against the true owner. Kennedy v. Sanders, 90 Miss. 524, 43 So. 913. Of course, it is undisputed in this record that the minerals herein involved have never been taken possession of by Continental Oil Company.

Therefore, we conclude that the learned chancellor erroneously applied Mississippi Code Annotated sections 15-1-7 and 15-1-9 (1972), to the admitted alleged facts of the bill of complaint. He should have overruled the demurrers and tried the issues under the bill of complaint and answers or other pleadings by the appellees. The cause is therefore reversed and remanded.

REVERSED AND REMANDED.

ROBERTSON and SMITH, P. JJ., and SUGG, WALKER, BROOM, LEE and COF-ER, JJ., concur.

PATTERSON, C. J., took no part.


text:
    Eleanor Clausen HOWELL v. STATE of Mississippi
    No. 50377.
    Supreme Court of Mississippi.
    June 14, 1978.
    John E. Shaw, Kosciusko, for appellant.
    A. F. Summer, Atty. Gen., by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Attala County; Clarence E. Morgan, Jr., Judge.

Before ROBERTSON, P. J., SUGG and BROOM, JJ., and FLOYD J. LOGAN, Commissioner.

Affirmed.


text:
    Elmer K. JACKSON and Johnny Hisaw v. STATE of Mississippi.
    No. 50365.
    Supreme Court of Mississippi.
    June 14, 1978.
    Eaves & Eaves, G. Jyles Eaves, Henry C. Wood, Louisville, for appellants.
    A. F. Summer, Atty. Gen., by Catherine W. Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Winston County; Clarence E. Morgan, Jr., Judge.

Before ROBERTSON, P. J., and SUGG and BROOM, JJ.

Affirmed.


text:
    Louise Kitchens PATTERSON et al. v. Earnest HARRIS et al.
    No. 50416.
    Supreme Court of Mississippi.
    June 14, 1978.
    Tullos & Tullos, Eugene C. Tullos, Raleigh, for appellants.
    B. L. Riddick, Jackson, for appellees.
   Appeal from Circuit Court, Copiah County; Joe N. Pigott, Judge.

Before ROBERTSON, P. J., and SUGG and BROOM, JJ.

Affirmed.


text:
    DIAZ DEVELOPMENT CORPORATION v. Mississippi STATE HIGHWAY COMMISSION.
    No. 50318.
    Supreme Court of Mississippi.
    June 14, 1978.
    Sekul, Hornsby, Wallace & Teel, Walter W. Teel, Thomas L. Wallace, Biloxi, for appellant.
    Gillespie & Weinberg, Virgil Gillespie, Gulfport, for appellee.
   Appeal from Circuit Court, Harrison County; Floyd J. Logan, Judge.

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

Affirmed.

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


text:
    BAY SPRINGS PLUMBING COMPANY, INC. v. John MADDOX.
    No. 50431.
    Supreme Court of Mississippi.
    June 14, 1978.
    Oates & Houston, R. K. Houston, Jr., Bay Springs, for appellant.
    Bobby L. Shoemaker, Bay Springs, for appellee.
   Appeal from Circuit Court, Jasper County; George B. Grubbs, Judge.

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

Reversed and Remanded.

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


text:
    ALLENWOOD CORPORATION v. MASONITE CORPORATION.
    No. 50354.
    Supreme Court of Mississippi.
    June 14, 1978.
    Roberts, Young, Stelly & Rosetti, Herbert J. Stelly, Sr., Gulfport, Parsons & Matthews, Wiggins, for appellant.
    Henley, Lotterhos, Bennett & Sulser, Floyd M. Sulser, Jr., Jackson, Newton & Shelton, Robert S. Newton, Wiggins, for appellee.
   Appeal from Chancery Court, Stone County; Frank W. Alexander, Chancellor.

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

Affirmed.

PATTERSON, C. J., ROBERTSON, P. J., and WALKER, LEE, BOWLING and COF-ER, JJ., concur.


author: SMITH, Presiding Justice,

text:
    Randolph GARNER v. STATE of Mississippi.
    No. 50598.
    Supreme Court of Mississippi.
    June 14, 1978.

      William E. Hathorn, Prentiss, for appellant.
    A. F. Summer, Atty. Gen. by Calvin Coolidge Williams, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, WALKER and COFER, JJ.
   SMITH, Presiding Justice,

for the Court:

Randolph Garner was convicted of manslaughter in the Circuit Court of Jefferson Davis County and sentenced to twenty years imprisonment. He has appealed, assigning for reversal the following ground:

The verdict of the jury was contrary to the overwhelming weight of the evidence.

The record reflects that Garner is totally blind. Nevertheless, he owned and operated a small mercantile establishment in Prentiss, where drinks, candy, gum, antiseptics and similar articles were sold. On the occasion of the homicide, which resulted in Garner’s prosecution, the owner was seated in the corner of his store, near a heater, and there were some nine other people also in the store. These people were engaged generally in talking, drinking whiskey and listening to music being played on the jukebox. At about 9:00 p. m. Garner announced that he was going to close and asked everyone to leave. He put fifty cents in the jukebox and informed those present that when the music had concluded, which the fifty cents paid for, they should all leave. When the music stopped, however, one Bourn put another quarter in the machine. In the meantime Garner had turned it off and when it failed to play Bourn asked Garner for his quarter back. Garner refused, telling him he should have known better as everyone had seen him turn off the machine. At that moment someone said, “I wouldn’t do that if I were you” and someone “brushed” against Garner. At this, Garner seized his pistol and fired three times, he said with the intention of scaring people away from him. One Dykes was hit in the neck by one bullet and slumped to the floor. Dykes got up, ran out of the store and died as the result of his wound.

At his trial, Garner’s defense was self-defense. Being blind, he claimed that the circumstances related above caused him to believe and apprehend that his life was in danger and that he had “fired into the air” in self-defense for the purpose of scaring away a potential attacker.

Testimony showed that the bullet which killed Dykes, who had not been a party to the disagreement over the quarter, had entered his neck with a downward trajectory. There was no evidence of threats or of any aggressive move by anyone toward Garner.

In nowise do we discount the uncertainty and fear that a man who is totally blind, as Garner was, must experience when he apprehends, perhaps groundlessly, that someone may be preparing to attack him, but the firing of his pistol by Garner, under the circumstances in evidence, in a room filled with people, which resulted directly in the death of one of them, made the question of Garner’s guilt or innocence one for determination by the jury.

In Rush v. State, 278 So.2d 456, 459 (Miss.1973), the Court reviewed the question:

Contention is made for appellant that this instruction denied him his constitutional right of self-defense. This instruction was approved by this Court in the case of Hartfield v. State, 176 Miss. 776, 170 So. 531, (1936). Said instruction does not in fact require that the accused must know that the danger is actual and imminent. It is not sufficient to the defense of one confronted with in this case that imminent and immediate danger would be apprehended only by a coward or by one who is at the time unduly frightened out of his senses. As stated by this Court in Hartfield, supra, the correct rule as contained in the last quoted instruction is that:
The apprehension of such danger must be real and such as would or should, under the circumstances, be entertained by a reasonably well-disposed man of average prudence; and whether the accused has, in a particular case, measured up to that standard of conduct is a question to be submitted to, and decided by, the jury

See also Entrican v. State, 309 So.2d 851 (Miss.1975); Stennis v. State, 234 So.2d 611 (Miss.1970); Yarber v. State, 230 Miss. 746, 93 So.2d 851 (1957); Chester v. State, 216 Miss. 748, 63 So.2d 99 (1953); Pitts v. State, 211 Miss. 268, 51 So.2d 448 (1951); Spivey v. State, 47 So.2d 855 (Miss.1950); Bell v. State, 207 Miss. 518, 42 So.2d 728 (1949).

We are forced to conclude that the evidence was sufficient to support the verdict of the jury in finding Garner guilty of manslaughter. No prejudicial error having occurred in the trial, the conviction and sentence are affirmed.

AFFIRMED.

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


author: EMBRY, Justice.

text:
    STATE of Alabama on relation of John C. EAGERTON, III, et al. v. Paul C. CORWIN et al.
    SC 2562.
    Supreme Court of Alabama.
    Dec. 22, 1977.
    James L. Shores, Jr., Birmingham, for appellants.
    Thomas W. Thaggard and Charles S. Coody, Montgomery, for appellees.
   EMBRY, Justice.

This is an appeal from a judgment in a quo warranto action that upheld the right of a member of the Alabama Real Estate Commission residing in the same Congressional District with another member to continue to hold office until his term expired later in the year of the judgment (1977). This event has occurred and a successor has been named who resides in a different Congressional District from any other member.

This action was brought in the name of the State of Alabama, on the relation of John C. Eagerton, III, and by John C. Eagerton, III, as plaintiffs against Paul C. Corwin and Stancil King, defendants, pursuant to Title 7, Chapter 33, Code (1940). The relief sought was a judgment holding Corwin and King to be guilty of usurping, or intruding into, or unlawfully holding or exercising the office of a member of the Alabama Real Estate Commission and excluding each of them from such office.

The parties entered into the following stipulation:

“1. The Defendant, Paul C. Corwin (“Corwin”), was first appointed to serve as a member of the Alabama Real Estate Commission (herein “the Commission”) on November 10, 1969, to serve a five-year term.
“2. At the time of Corwin’s appointment, at the present time, and at all times in between, Corwin was a resident of Montgomery County, Alabama.
“3. Montgomery County, Alabama, is, and at all times relevant to this action, has been, in the Second Congressional District of Alabama.
“4. On January 19, 1972, Houston County, Alabama, was made a part of the Second Congressional District of Alabama.
“5. The Defendant, Stancil King, was appointed to serve as a member of the Commission on December 4, 1972, to serve a five-year term.
“6. At the time of his appointment, and at all times relevant to this action, the Defendant, Stancil King, was a resident of Houston County, Alabama.
“7. Corwin’s first term expired September 30, 1974, and he was appointed to serve a second term on November 8,1974.
“8. Both Defendants claim to be duly appointed members of the Commission since the time of their respective appointments.
“9. The required qualifications for members of the Commission are governed by Ala.Code Tit. 46, § 311(4) (1958) (Cum.Supp.1973); which was Act 422 that became effective October 1, 1972.”

Other evidence was adduced which in view of the decision to follow, we do not deem necessary to comment upon. After submission to the trial court without a jury, judgment was entered which in pertinent part reads:

“2. Under the Constitution of Alabama, the Alabama Legislature had authority to provide as it did in Title 46, § 311(4) of the Code of Alabama, that no two members of the Commission shall reside in the same Congressional District.
“3. This Court determines that in this quo warranto action involving the appointment and authority of members of a public regulatory agency, the Court must consider the public interest in fashioning relief to be granted. This Court is of the opinion and finds that the orderly administration of the Alabama Real Estate Commission requires that the Defendants, Paul C. Corwin and Stancil King continue to serve for the terms for which they were appointed without interference by this Court. This conclusion finds additional support in the fact that Mr. King’s term will expire in a matter of months later this year.
“4. On the expiration of the current term of Mr. Stancil King, the requirements of Title 46, § 311(4) of the Code of Alabama shall be strictly adhered to and, thereafter, this Court will not permit any two members from the same Congressional District to serve at the same time on the Alabama Real Estate Commission.
“5. This Court shall retain jurisdiction of this matter to insure compliance with the terms of this decree.”

The statutory provision cited in the judgment reads:

“Real estate commission created; appointment; terms; compensation, etc., of members; organization. — (a) * * * Nor [Not] more than one member from any congressional district shall be appointed to serve at the the same time. * * * "

The contentions of the parties on this appeal are found in their respective briefs and as argued orally. Appellants say:

“Where the Legislature mandates specific qualifications for appointment to an administrative office appointment by the executive of one who does not meet those qualifications is contrary to the public welfare and a nullity.”

Appellees say:

“A. An order which abstains from adjudicating any issue, but merely continues the status quo is not a final order from which an appeal may be taken.
* * * * * *
“B. John C. Eagerton, III has no interest in the outcome of this litigation and, accordingly, he cannot maintain it. * * * * * *
“C. Quo warranto does not lie to test the manner in which an office was obtained.
* * * * * *
“D. The Legislature redistricted the state for the sole purpose of electing Congressmen and not to change restrictions on the Governor’s appointment power.
“E. The restriction on the Governor’s appointment power is unconstitutional as applied to Corwin and King.
******
“F. Corwin’s Board Membership is valid.”

Shortly before this appeal was argued and submitted in this court the term of Stancil King as a member of the Commission expired and a successor was appointed by the Governor so that no longer do two members reside in the same Congressional District. As a consequence a motion to dismiss this appeal as being moot was filed. As we see no interests of the public, or the litigants, to be served by writing to the merits of this appeal as they were addressed by the parties. We will grant the motion and dismiss the appeal as calling for decision on a moot question.

As the case stands before us now, there is no justiciable controversy between Eagerton and Corwin and King, involving § 311(4), Tit. 46. The controversy ceased to exist when King’s term as a member of the Commission expired, therefore there are no existing facts which frustrate the legislative intent as expressed in § 311(4). No longer is more than one member from any Congressional District serving at the same time on the Commission. This renders this case moot. A case is moot when there is no real controversy and it seeks to determine an abstract question which does not rest on existing facts or rights. Postal Telegraph—Cable Co. v. City of Montgomery, 193 Ala. 234, 69 So. 428 (1915); American Federation of State, County and Municipal Employees v. Dawkins, 268 Ala. 13, 104 So.2d 827 (1958).

We have held that where an event occurs which renders a case moot prior to this court considering the appeal it will be dismissed because a decision is not necessary. Chisolm v. Crook, 272 Ala. 192, 130 So.2d 191 (1961); Weathington v. City of Birmingham, 293 Ala. 652, 309 So.2d 430 (1975).

In Weathington, quoting from Dawkins, this court said:

“ ‘ * * * The function or duty of a judicial tribunal is to determine real controversies relative to the legal rights of persons or property, which are actually involved in the particular case * * * ’

This case does not present a situation where there is likelihood of repetition of the situation giving rise to this litigation: appointment of two members of the Commission from the same Congressional District. Neither does it appear that the requirements of § 311(4) will not be strictly adhered to in the future. The judgment of the trial court is quite clear on this point. Thus we do not have the factors militating against mootness that were present in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147; and Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1684, 94 S.Ct. 1694, 40 L.Ed.2d 1.

A decision by this court in this case would accomplish nothing.

APPEAL DISMISSED.

TORBERT, C. J., and FAULKNER, JONES and ALMON, JJ., concur.


author: JONES, Justice. BEATTY, Justice SHORES, Justice

text:
    Martin W. McWHORTER et al. v. STATE of Alabama BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS AND LAND SURVEYORS on the relation of William J. BAXLEY, as Attorney General of Alabama.
    SC 2785.
    Supreme Court of Alabama.
    March 10, 1978.
    Rehearing Denied June 9, 1978.

      Hobart A. McWhorter, Jr., Birmingham, for appellant, Martin W. McWhorter.

      William J. Baxley, Atty. Gen. and Carol J. Smith, Asst. Atty. Gen., for appellee.
    Randolph P. Reaves, Montgomery, for amicus curiae, State of Ala. Bd. of Examiners in Psychology.
    Robert T. Meadows, III, Montgomery, for amicus curiae State of Ala. Bd. for Registration of Architects.
   JONES, Justice.

This case concerns whether use of the term “engineering” in a business trade name, by a party who is not a registered engineer and who employs no registered engineers, is a per se violation of Tit. 46, § 128(1), et seq., Ala.Code (1973 Supp.) , the statute which regulates the engineering profession in this State. The trial Court held that such inclusion was a per se violation and issued an injunction permanently enjoining its use. As modified by this opinion, the judgment below is affirmed.

Martin W. McWhorter, Appellant, is a machinery repairman doing business under the trade name “McWhorter Engineering Company.” While operating under this name, he modifies air compressors which are used iil filling air tanks used by scuba divers ana fire departments. His checking account is listed under his business name; his checks bear this name; and he uses a stamp with this title. Furthermore, he advertizes in the telephone directory “yellow pages” (listed under “Diving” and “Divers’ Equipment & Supplies” — not under “Engineers”) and in Skindiver Magazine using this same trade name. It is uncontested, however, that McWhorter is not now, nor has he ever been, a registered engineer. Moreover, it is stipulated that he has never contended that he was a registered engineer, and has never been engaged in the practice of engineering.

Appellee, the State of Alabama Board of Registration for Professional Engineers and Land Surveyors, first contacted McWhorter about use of the term “engineering” in his trade name in 1963 or 1964. From that time forward, they were in continuous contact. This suit to enjoin use of the allegedly illegal trade name was brought on July 12,1974. Following trial, the Court entered an order finding McWhorter’s use of the term “engineering” in his trade name to be a per se violation of Tit. 46, § 128(1), et seq., Code, and permanently enjoined his future use of the term.

The question presented for review queries whether use of the unmodified term “engineering” in a business trade name, by a non-registrant who does not practice the engineering profession, constitutes a per se violation of Tit. 46, § 128(1), et seq., Code. Because the question concerns a per se violation, a detailed analysis of the particular facts of this case would be irrelevant and, thus, will not be undertaken.

Initially, we must clarify the constitutional basis for regulatory statutes such as these presently under consideration. As is stated in § 128(1), the entire chapter was enacted to protect the public and “safeguard life, health and property.” Therefore, these sections are constitutional on their face because they are legitimate exercises of the State’s police powers. Southern Metal Treating Company, Inc. v. Goodner, 271 Ala. 510, 125 So.2d 268 (1960). See also Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975); State ex rel. Attorney General v. Spann, 270 Ala. 396, 118 So.2d 740 (1959); 53 C.J.S. Licenses §§ 4, 6; and 59 Va.L.Rev. 1097 (1973).

The principal question before us, then, concerns the interpretation and application of these statutes. As in all cases in which we are called upon to interpret a legislative enactment, the underlying consideration is to ascertain and effectuate the intent of the Legislature as expressed in the statute. Tillman v. Sibbles, 341 So.2d 686 (Ala.1977); and 73 Am.Jur.2d, Statutes, § 145. In arriving at a determination of legislative intent, the entire Act must be examined and construed as a whole, and, if possible, every word in it given effect. Tillman, supra. Furthermore, statutes which relate to closely allied subjects may be regarded as in pari materia. State of Alabama Board for Registration of Architects v. Jones, 289 Ala. 353, 267 So.2d 427 (1972); and 73 Am.Jur.2d, Statutes, §§ 158, 187-89. It is also proper to consider the particular evils at which the legislation is aimed, and the design, motive, purpose, and subsequent actions of the Legislature. See generally 73 Am.Jur.2d, Statutes, §§ 155, 157-58.

Upon examination of the sections presently before us, it becomes apparent the Legislature intended the Act to cover the instant situation. By enacting these statutes, the Legislature was seeking to protect the public from both active and unintentional misrepresentations which could cause harm to public health, safety and property. For this reason, if we determine that use of the word “engineering” in a business name by a non-registrant is misleading, the Legislature would have intended these sections to prohibit the use of such term.

Under § 128(1), before one’s conduct becomes prohibited, he must either hold himself out or by some means tend to convey the impression that he is a professional engineer. McWhorter’s primary contention is that the mere inclusion of the term “engineering” in a business name does not connote the professional status required to come under this chapter. The fallacy in this argument, however, becomes evident upon a closer examination of the applicable Code sections.

Title 46, § 128(1), Code (1973 Supp.), provides:

Practice of engineering and land surveying regulated. — In order to safeguard life, health and property, no person in either public or private capacity shall practice or offer to practice engineering . , unless he shall first have submitted evidence that he is qualified so to practice and shall be registered by the board as hereinafter provided or unless he is specifically exempted from registration under the provisions of this chapter. It shall be unlawful for any person to practice or offer to practice in this state, engineering . . . , as defined by this chapter, or to use in connection with his name or otherwise assume, use, or advertise any title or description tending to convey the impression that he is a professional engineer . . . , unless such person has been duly registered or is exempt from registration under the provisions of this chapter. Provided, that any person whose firm name shall have contained the word “engineer,” “engineers,” or “engineering,” or words of like import, for more than fifteen years before September 12, 1966 shall not be prohibited from continuing the use of such word or words in his firm name.

This section is followed by pertinent definitions contained in § 128(2):

Definitions. — As used herein the following words and phrases shall have the following meaning unless the context otherwise requires:
(b) Engineer or professional engineer. — The term ‘engineer’ or ‘professional engineer’ shall mean a person who, by reason of his special knowledge of the mathematical and physical sciences and the principles and methods of engineering analysis and design, acquired by professional education and/or practical experience, is qualified to practice engineering as hereinafter defined, and has been registered by the board as a professional engineer.
(g) Practice and offer to practice. — A person shall be construed to practice or offer to practice engineering . . ., within the meaning and intent of this chapter, who offers to or does as a profession practice any branch of engineering .; or who by verbal claim, sign, advertisement, letterhead, card, or in any other way represents himself to be a professional engineer, or through the use of some other title implies that he is a professional engineer; or who represents himself as able to perform or who does perform any engineering service.

In trying to discern the legislative intent, several points render the conclusion inescapable that these sections, per se, condemn utilization of the term “engineering” in McWhorter’s present trade name, even without the presence of the modifying term “professional.”

1. The Act must be read and construed as a whole. Tillman, supra. In so doing, it will be noted that the terms “engineer” and “professional engineer” are used seemingly interchangeably. Also, the enforcement provisions do not even mention the word “professional.” If the term “professional” was a necessary appendage of the word “engineer,” the ambit of these sections would be small indeed. Such restrictive application would prevent utilization of this Act under circumstances where it was clearly intended. The Legislature obviously did not intend its application to be so confined. Moreover, § 128(1) proscribes use of “any title or description tending to convey the impression that he is a professional engineer.” (Emphasis added.)

2. Section 218(2)(b) defines “engineer” and “professional engineer” in the same terms. If different meanings had been intended, the Legislature would not have defined the two in identical phraseology. As commonly understood, the two certainly are not synonymous; as used in the statute, however, their meanings coalesce. It is well recognized that when the Legislature defines the language it uses, its definition is binding upon the courts, even though this definition does not coincide with the ordinary meaning of the words used. See generally Sutherland, Statutory Construction, §§ 20.08, 27.02. Therefore, the two words, as used in the statute, must be deemed synonymous.

3. The entire chapter, as originally enacted, utilized the term “professional engineer” almost exclusively. See Tit. 46, §§ 129, 130, Ala.Code (1940) (Recomp. 1958). These provisions were repealed and much of the phraseology modified by the sections codified in the 1973 Code Supplement. Included within these new sections is substantial use of the terms “engineer” and “engineering” without the preceding modifying term “professional.”

When statutes are amended or replaced by succeeding legislation, the Legislature often seeks to clarify previously ambiguous provisions. These subsequent acts by the Legislature must be considered in trying to determine the intent of the legislation. 73 Am.Jur.2d, Statutes, § 178. The instant revisions evidence the legislative intent that use of the single word “engineering” is itself condemned when used by a non-registrant in his trade name.

In addition, the 1961 revision created § 128(2)(g) and, in so doing, defined the terms “practice” and “offer to practice.” 1961 Ala. Act, p. 1977. This section discloses the broad range the Act was intended to cover because it prohibits any unauthorized representation or implication that one is a professional engineer. Use of the term “engineering” in McWhorter Engineering Company at least implies that McWhorter, or an employee, is a professional engineer. See T. V. Engineers, Inc. v. District of Columbia, 166 A.2d 920 (D.C.Mun.App.1961): Louisiana State Board of Registration for Professional Engineers and Land Surveyors v. Young, 223 So.2d 437 (La.App.1969); State Board of Examiners for Architects and Engineers v. Standard Engineering Co., 157 Tenn. 157, 7 S.W.2d 47 (1928); and State Board of Registration for Professional Engineers v. Wichita Engineering Co., 504 S.W.2d 606 (Tex.Civ.App.1973). Therefore, McWhorter’s use of the word “engineer” in his trade name comes within the prohibitive provisions of the statute.

4. Perhaps the most striking evidence of the intent of the Legislature can be found in the 1966 revision of § 128(1). 1966 Ala. Acts, p. 462. This modification added the grandfather clause at the end of the section. By its terms, the statute does not apply to firms which had used the words “engineer,” “engineers” or “engineering” in their names for more than fifteen years before September 12, 1966. The obvious implication of such exemption is that all other firms cannot use the listed words without first registering with the Board. There would have been no need to permit the continued use of these words unless the Legislature intended use of them, by firms not exempted, to be violative of the law regulating the practice of engineering.

Furthermore, it must be noted that McWhorter’s trade name contains no modifying or explanatory terms which could dispel its misleading character. For this reason, we do not speak to that issue. At the same time, however, we should point out that a more generic meaning could be gained by using such modifying terms. (Examples of this are “sanitation” engineer and “custodial” engineer.) When modifying or explanatory words are present, the inference of professionalism may or may not be present, and the public may or may not be misled or deceived. These, of course, would be questions properly addressed to the finder of facts. Absent such words, however, the term “engineer,” as a matter of law, necessarily implies a professional status under our statutes, regardless of the intent of the individual.

We hold that the Legislature intended a non-registrant’s use of the unmodified term “engineer” in his trade name to be a per se violation of this Act. When the Act is read as a whole, and applied to the facts here stipulated, no other conclusion is plausible. See Louisiana State Board, supra.

We turn now to McWhorter’s second contention. He argues that the statute, by preventing the use of his trade name, unconstitutionally deprives him of his freedom of speech. The cases cited in support of this proposition, however, are inap-posite in that they specifically hold that such freedom, though applicable in a commercial forum, does not protect speech which tends to be misleading. Speech that is “false, deceptive or misleading of course is subject to restraint.” Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 2708, 53 L.Ed.2d 810, 835 (1977). See also Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). Therefore, because these statutes operate within the permissible police powers of the State and do not abridge McWhorter’s freedom of speech, the Act, on its face and as applied, does not violate any provision of the State or Federal Constitution.

“This is particularly so where . the Act does not prevent him from conducting the business in which he says that he is engaged, but only prevents him from using certain titles. Under the Act, the use of these titles is limited to those who have demonstrated to an appropriate state authority their qualifications to practice . . . engineering . . . This is a means whereby the public can be assured that those with whom they deal have met the state’s qualifications. If this be a limitation of free speech, . it is not a type of limitation prohibited by the federal constitution.” Smith v. California, 336 F.2d 530, 534 (9th Cir. 1964).

Therefore McWhorter’s use of the term “engineering” in his trade name is prohibited by the Act because it implies he is a licensed professional engineer. For this reason, so much of the trial Court’s order that imposes an injunction upon the present use of the term “engineering” in his trade name is affirmed. There is merit, however, in Appellant’s contention that the permanency of the injunction is not properly conditioned upon the failure of his future compliance with the provisions of the Act. He is not denied the right to continue his business if he continues it under a name not calculated to mislead the public; nor is he deprived of his trade name if he sees fit to qualify to practice engineering under the statutory provisions.

AFFIRMED AS MODIFIED.

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

BEATTY, J., concurs specially.

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

BEATTY, Justice

(concurring specially).

The majority opinion squarely confronts the only issues raised on appeal. I reserve judgment on other issues of a constitutional nature which, I believe, might have been raised regarding the statutes in question, particularly Tit. 46, § 128(1) (Supp.1973) (now Code of Ala. 1975, § 34-11-2).

SHORES, Justice

(dissenting):

McWhorter is engaged in a business which consists of modifying air compressors which are attached with filtering systems and sold for use in filling air tanks used by skin divers and fire departments. His business does not entail the practice of engineering.

McWhorter lists his name in the yellow pages only under “Divers” and “Divers’ Equipment & Supplies.” He does not, and never has, listed his business name under any of the approximately thirty-five categories of “Engineer” listed in the yellow pages. He has done business since 1952 in a building which bears no sign. He has no walk in trade. No one has ever inquired of McWhorter if he was or is a professional engineer. Although he uses the trade name “McWhorter Engineering Company,” McWhorter has never done anything else to convey the impression that he is a licensed engineer.

The statutory prohibition is:

. It shall be unlawful for any person ... to use in connection with his name ... or advertise any title or description tending to convey the impression that he is a professional engineer . . . .” (Emphasis Supplied) (Title 46, § 128(1), Code 1973 Supp.)

The trial court held that the use of the word “engineering” in McWhorter’s trade name was a per se violation of the statute. The majority affirms.

I cannot agree. The use of the word “engineering” may or may not create an impression that one is qualified to render engineering services which cannot be rendered by one not licensed to do so.

The prohibition in the statute, insofar as trade names are concerned, is confined to the use of a name, title or description “tending to convey the impression that he is a professional engineer.”

The prohibition specified is conveying the impression of being a professional engineer.

In § 128(2)(g), “Practice and offer to practice ” is defined as follows:

“A person shall be construed to . offer to practice engineering within the meaning and intent of this chapter . . . who by verbal claim, sign, advertisement, letterhead, card, or in any other way represents himself tó be a professional engineer, or through the use of some other title implies that he is a professional engineer . . . (Emphasis Supplied)

The majority holds that the legislature used the words “engineer” and “professional engineer” synonymously. Two courts have rejected this argument which was advanced in cases involving statutes similar to ours. North Carolina State Board of Registration for Professional Engineers, etc. v. Intern. Business Machines Corp., 31 N.C.App. 599, 230 S.E.2d 552 (1976); State v. T. V. Engineers of Kenosha, Inc., 30 Wis.2d 434, 141 N.W.2d 235 (1966).

I believe our legislation specifically prohibits the use of the words “professional engineer” in a title or trade name by one not a licensed engineer. I further believe that before one can be successfully prosecuted or enjoined for using the word “engineer,” the burden is on the State (Board) to show by the evidence that the use of that word has misled or tended to mislead the public that the user of the word “engineer” is offering to practice the profession of engineering. The mere use of the word “engineer” in a trade name does not, in and of itself, “tend to convey the impression that he is a professional engineer.”

The Board put on no evidence that the use of engineering in the trade name of this appellant tended to mislead anyone. To the contrary, the State conceded that no one has been misled. Its sole argument is bottomed on the proposition that this statute has foreclosed the use of this word to all except licensed engineers or unlicensed engineers who have presumably misled the public for more than fifteen years.

Such a holding runs counter to what the legislation provides. It forbids the practice or offer to practice engineering by one not licensed. It also forbids the use of words in names, advertising, etc. which tend to convey the impression that one is a professional engineer. The use of the word “engineer” or “engineering” in one’s title or advertising does not per se constitute the practice nor the offer to practice engineering.

As the majority notes, this statute carries both civil and criminal penalties. The Board, therefore, has the burden of showing either that McWhorter has practiced or offered to practice engineering without a license to do so, or that the use of the word “engineering” in his trade name has tended to or did mislead members of the public. It has done neither.

I would reverse and remand.

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

      . § 34-11-2, et seq., Ala.Code 1975.

      . § 34-11-1(2), (7), Ala.Code 1975.

      . This Act carries with it both criminal and civil sanctions. Section 128(8)(d) [§ 34—11—35(d), Ala.Code 1975], under which this cause was brought, provides:
      The board, for good cause, is authorized to apply for relief by injunction, without bond, to restrain any person . . from the commission of any act which is prohibited by this chapter.
      Section 128(23) [§ 34-11-15, Ala.Code 1975] provides, inter alia:

        Violations and penalties. — (a) Any person who shall practice, or offer to practice, engineering ... in this state without being registered or exempted . . . shall be guilty of a misdemeanor .


author: PER CURIAM. JONES, Justice

text:
    ALABAMA POWER COMPANY, a corporation v. ALABAMA PUBLIC SERVICE COMMISSION et al.
    SC 2052, 2098.
    Supreme Court of Alabama.
    April 7, 1978.
    Rehearing Denied June 9, 1978.

      John Bingham, Birmingham, for Steiner, Crum & Baker, and Lange, Simpson, Robinson & Somerville, and Balch, Bingham, Baker, Hawthorne, Williams and Ward.
    Maurice F. Bishop, Birmingham, for Honorable George C. Wallace, as Governor of the State of Alabama.
    William J. Baxley, Atty. Gen., and Jerry Weidler, Asst. Atty. Gen., Carl L. Evans, Montgomery, for appellee, Alabama Public Service Commission.
    Donald W. Stewart, Anniston, for individual intervenors.
    On rehearing James D. Brooks, Mobile, for appellees-intervenors.
    Richard S. Riley and Alton B. Parker, Jr., amicus curiae, Birmingham, for Community Chest, United Way of Jefferson, Shelby and Walker Counties, et ah, in opposition to disallowance of charitable contributions for rate making purposes as contained in Commission’s order which was affirmed by trial court.
    James C. Barton and Gilbert E. Johnston, Jr., amicus curiae, Birmingham, for Alabama Press Association, et al., in support of right of Power Company to charge its advertising as an operating expense.
   ON REHEARING

PER CURIAM.

The original opinion and each special concurring and dissenting opinion are hereby withdrawn, and the following opinions are substituted therefor.

On November 26, 1975, Alabama Power Company filed with the Public Service Commission a revised schedule of increased rates and charges for a $106.9 million annual increase based on its test year, beginning July 1,1974, and ending June 30,1975. The Commission issued a zero order dated June 25, 1976, stating that “the said schedules filed herein on November 26, 1975, should be rejected and cancelled.” The Commission supplemented its order with an opinion dated July 12, finding that under its existing rates, the Company was earning a return on its rate base of 6.37%, and a return to its common equity of 13.17%.

The Company appealed the Commission’s order to the Circuit Court of Montgomery County. The trial judge set aside the order and remanded the case to the Commission with instructions to:

“Fix and allow rates and charges which will provide 2.27 times interest coverage on first mortgage bonds outstanding at the end of the test period (at June 30, 1975), plus those proposed to be outstanding at the end of the year immediately following the test period (June 30, 1976) in the total amount of $1,233,014,000 with an annual interest requirement of $94,-552,156.”

On August 23, the Commission granted a $23.3 million increase pursuant to the court order (see PSC order of August 23, 1976, Appendix) without specifying the rate of return after remand. The Company appealed that order to the Circuit Court, requesting $53.4 million. The trial court upheld the Commission, but it did permit the Company $30.1 million supersedeas. This is the difference between the increase granted and the amount the Company says should have been granted ($53.4 million less $23.3 million).

1

To this court the Company appealed the circuit court order, alleging confiscation. Thus, confiscation is the principal issue for review. On this issue, the court has a broad scope of review, but this Court neither makes the rates, nor substitutes its judgment for that of the legislative agency fixing the rates. In City of Birmingham v. Southern Bell Telephone & Telegraph Co., 234 Ala. 526, 176 So. 301 (1937), this Court stated:

“The Legislature may fix the rates or it may empower an agency, such as the Public Service Commission, to act in its stead in this regard. In either event, the courts are open for one who complains that by the exercise of the rate-making power he has been deprived of property without due process of law or that his private property has been taken for public use without just compensation. The courts act, therefore, for the purpose of holding the exercise of this legislative power within constitutional limits (Const.1901, §§ 13, 23), but not for the purpose of making rates or substituting their judgment for that of the legislative agencies.”

Cf. State of Alabama v. Alabama Public Service Commission, 293 Ala. 553, 307 So.2d 521 (1975).

Regarding confiscation, this Court has listed and discussed a number of controlling principles. See Alabama Public Service Commission v. Southern Bell Telephone & Telegraph Co., 253 Ala. 1, 42 So.2d 655 (1949); General Telephone Company of the Southeast v. Alabama Public Service Commission, Ala., 335 So.2d 151 (1976); Alabama Public Service Commission v. South Central Bell Telephone Co., Ala., 348 So.2d 443 (1977).

When the grain is separated from the chaff, the sole question is, has the Legislature unconstitutionally denied the utility just and reasonable compensation — a fair return on its property. We hold that it has not.

The court-ordered increase covering bond interest was granted after the Commission adopted the Company’s rate base of $2.7 billion, computed pursuant to Alabama Gas Corp. v. Wallace, 293 Ala. 594, 308 So.2d 674 (1975). In its original order, the Commission granted a return to equity of 13.17%. After remand, the return is said to be 13.88%. This is higher than the return earned by the electric utility industry over a 10-year period — 1964-1974. Statistical evidence shows that the industry rate of return has never exceeded 12.7%. Alabama Power Company’s return ranged from. a high of 12.5% in 1965 to a low of 8.6% in 1974. In 1975, the Company’s return was 11.6%. The rate of return for the forty largest electric utility companies in the country ranged from 12.5% in 1969 to 10.7% in 1975. In Alabama Public Service Commission v. Southern Bell Telephone & Telegraph Co., this Court said that “the rate of return must be equal to that generally being earned by others in the same general locality in business undertakings attended by corresponding risks and uncertainties,” citing the rule from Bluefield Waterworks and Improvement Co. v. Public Service Commission, 262 U.S. 679, 43 S.Ct. 675, 67 L.Ed. 1176. The return to equity granted by the Commission is just and reasonable. In General Telephone Co. of the Southeast, a return to equity of 11.05% was considered to be just and reasonable.

The Company’s rate base was adopted by the Commission without any opposition from intervenors. Using that rate base, the Commission found that 6.37% is a fair and reasonable rate of return on the statutory rate base. This was computed by dividing the earnings requirement (found by the Commission to be $173,237,375 by the rate base ($173,237,375 - $2.7 billion). In General Telephone Co. of the Southeast, an argument between the parties was whether a 7.36% return on rate base would result in an 11.05% return on equity.

We have reviewed the testimony of the Company’s expert witness who said that the Company should be afforded the opportunity to earn no less than 7.31% on the rate base. This testimony came before the appeal to the Circuit Court. After remand and the granted increase of $23.3 million, the overall return is close to the return suggested by the witness.

After considering the evidence, we opine that the rate of return on rate base found by the Commission is just and reasonable.

The rate base included construction work in progress amounting to $807 million. The Company says in brief that “the ‘Construction Work in Progress-Allowance for Funds Used During Construction . . . ’ treatment adopted by the Commission without any explanation, discussion or reason results in confiscation . . . ” The Company cannot have its cake and eat it, too. It is proper to include construction work in progress in the rate base. But, where this item is included, the Allowance for Funds Used During Construction must be eliminated to prevent a double return. Alabama Public Service Commission v. Southern Bell Telephone & Telegraph Co. The Commission’s treatment of this item did not result in confiscation. It has authority to establish accounting principles to be used by utilities under its jurisdiction. Tit. 48, §§ 41-42, Code of Alabama.

At the outset we said that confiscation was the principal issue for review. However, the Company, in brief, listed a number of items, and discussed them under the title of “Lack of a Fair Hearing; Arbitrariness.” We pretermit discussion of all of those items, as we do not consider them to be dispositive of the principal issue.

We have examined the evidence, and upon considering it, do not find that the return, fixed by the Commission, amended by court order, is unjust, unreasonable, or confiscatory, except that a majority of the court is of the opinion that the Commission erred in disallowing advertising costs as will be shown in part III of this opinion.

II

The Company has been very generous in giving to charity. It has deducted its contributions as an operating expense. The Commission disallowed these as operating expenses deducted from operating revenues in determining the rate base during the test year. This action is alleged to be arbitrary.

While the charitable contributions are commendable, we are not aware of any reason why the consumer should make the contribution as opposed to the investor. Logic tells us that charitable contributions are not an operating expense. The Company, being a monopoly, can operate without deducting charitable donations as an operating expense.

We hold that charitable contributions are not a proper operating expense for a utility, and the Commission’s action was without error.

Ill

Although subject to regulation by the government, a utility, like any corporation, should be allowed to operate consistent with the free enterprise system to the extent possible.

Advertising is of vital importance to corporations in establishing and maintaining their public image, as well as in educating the consuming public. As such, it is a responsibility of the duly authorized manager of a utility to decide the type, quantity, or form of advertising which would most benefit the corporation in its continued growth. The Utility has the initial right to decide the amount and type of advertisement which comports with good management practices. The function of the Alabama Public Service Commission is that of regulation, and not of management. Petition of New England Tel. & Tel. Co., 115 Vt. 494, 66 A.2d 135 (1949). The Commission should not be allowed to interfere with the proper operation of the utility as a business concern by usurping managerial prerogatives.

The Supreme Court of the United States, in West Ohio Gas Co. v. Comm’n. (No. 1), 294 U.S. 63, 55 S.Ct. 316, 79 L.Ed. 761 (1935), said:

“. . . A business never stands still. It either grows or decays. Within the limits of reason, advertising or development expenses to foster normal growth are legitimate charges upon income for rate purposes as for others.
When a business disintegrates, there is damage to the stockholders, but damage also to the customers in the cost or quality of service.” (294 U.S. at 72, 55 S.Ct. at 321.)

Traditionally, courts have been reluctant to exclude such charges from operating costs. Newton v. Consolidated Gas Co., 258 U.S. 165, 42 S.Ct. 264, 66 L.Ed. 538 (1922); New England Tel. Co. v. Department of Pub. Util., 360 Mass. 443, 275 N.E.2d 493 (1971); Central Maine Power Co. v. Public Util.Comm’n., 153 Me. 228, 136 A.2d 726 (1957); Public Serv. Co. of New Hampshire v. State, 102 N.H. 150, 153 A.2d 801 (1959). Many state utility commissions have taken this position as well. Re Hilo Elec. Light Co., 6 P.U.R. 4th 195 (Hawaii Pub.Util.Comm’n 1974); Re Interstate Power Co., 97 P.U.R. 3d 6 (Iowa Commerce Comm’n 1974); Re Kansas City Power & Light Co., 6 P.U.R. 4th 321 (Kan.Corp.Comm’n 1974); Re Consolidated Edison of New York, 41 P.U.R. 3d 305 (N.Y.Pub.Serv.Comm’n 1962).

Title 48, § 52, as amended, entitles the utility to “such just and reasonable rates as will enable it at all times to fully perform its duties to the public and will, under honest, efficient and economical management, earn a fair net return on the reasonable value of its property devoted to the public service.” Advertising, under honest, efficient and economical management, can be an operating expense and reasonable advertising costs expended by a public utility should be allowed.

Therefore, the judgment of the circuit court, insofar as it affirms the disallowance by the Public Service Commission of reasonable advertising costs, must be reversed and the cause remanded to the circuit court with directions to remand the cause to the Public Service Commission for further proceedings not inconsistent with this opinion.

APPLICATION FOR REHEARING GRANTED; ORIGINAL OPINION WITHDRAWN. AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED WITH DIRECTIONS.

FAULKNER and EMBRY, JJ., concur in Part I.

TORBERT, C. J., and BLOODWORTH, MADDOX, JONES, ALMON, SHORES and BEATTY, JJ., concur in the result of Part I.

FAULKNER and EMBRY, JJ., concur in Part II.

TORBERT, C. J., and BLOODWORTH, ALMON, SHORES and BEATTY, JJ., concur in the result of Part II.

MADDOX and JONES, JJ., dissent as to Part II.

TORBERT, C. J., and MADDOX, JONES, ALMON and SHORES, JJ., concur in Part III.

BLOODWORTH, FAULKNER, EMBRY and BEATTY, JJ., dissent as to Part III.

JONES, Justice

(dissenting in Part II).

As to the contribution issue, I dissent and I would add the following. Private, investor-owned corporations are still permitted to operate public utility companies in Alabama. While these companies are govern-mentally regulated monopolies, they are not government owned; and, as nearly as possible, consistent with public interest, they should be permitted to operate within the free enterprise system, which includes public relations and competitive-type advertising.

Charitable contributions are an integral part of the composite advertising program. Then, too, there is the matter of corporate good citizenship. Does the mere fact that Alabama Power Company is a monopoly, selling its primary product (electricity), place it in such peculiar posture that the maintenance of a good corporate image is of no public benefit? It would be difficult to imagine that either advertising costs or charitable contributions could be handled with such reckless abandon by corporate management as to constitute an abuse to the public detriment. I would hold that First Amendment rights and the principles of free enterprise, even in the context of a monopoly, require that both advertising and charitable contributions should have been allowed as an operating expense, provided they were incurred “under honest, efficient and economical management.”

In all other respects, I concur in the opinion of the majority.

MADDOX, J., concurs.