author: PER CURIAM.

text:
    The CITY OF BIRMINGHAM, a Municipal Corp. v. The MEAD CORPORATION, a corporation, et al.
    77-735.
    Supreme Court of Alabama.
    May 25, 1979.
    Rehearing Denied July 6, 1979.
    James L. North, Frank M. Young, III, Philip W. Norwood, Birmingham, for appellant.
    Norman K. Brown, Bessemer, for The Mead Corp., appellee.
    J. Fred Powell and William F. Murray, Jr., Birmingham, for United States Steel Corp., appellee.
    Irvine C. Porter and James W. Porter, II, Birmingham, for appellee-defendant and counter-claimant, City of Homewood.
    Kenneth Perrine, Birmingham, for Mason Corp., a corp., W. T. Mayfield, Jr., Mary Clyde Mayfield, W. C., Renneker, Ann M. Renneker, individuals, Mayfield Mfg. Co., Inc., a corp.
   PER CURIAM.

This litigation has been before this court several times. City of Homewood v. State of Alabama ex rel. City of Birmingham, 358 So.2d 424 (Ala.1978); Mead Corporation v. City of Birmingham, 350 So.2d 419 (Ala.1977); Mead Corporation v. City of Birmingham, 295 Ala. 14, 321 So.2d 655 (1975). It concerns the validity of an annexation. election conducted by the City of Birmingham in the Oxmoor Valley region of Jefferson County on March 8, 1975. This election was conducted under the auspices of the Judge of Probate of Jefferson County pursuant to the provisions of Article 2, Chapter V, Title 37, Code 1940, Recompiled 1958 (Now Code 1975, §§ 11-42-40 through 11-42-88).

Pursuant to statutory requirement, the annexation was officially commenced by the adoption of Birmingham City Council Resolution No. 146-75 on February 4, 1975. After this resolution was adopted, but before the conduct of the election, the City of Homewood attempted a number of consensual annexations under the provisions of Title 37, § 137(1), Code 1940 (1973 Cum. Supp.). All of these attempted annexations have since been set aside and held void by the Circuit Court of Jefferson County).

Birmingham brought an action against Homewood seeking to enjoin the annexation by Homewood of any property lying within the Oxmoor territory, the subject of the February 4, 1975, City Council Resolution. Homewood responded that the scheduled Oxmoor Annexation would be invalid and asked the court to enjoin the conduct of that election by the City of Birmingham. Certain property owners, but not voters, in the Oxmoor territory moved to intervene in that litigation.

On the same date that Homewood filed what was denominated a third-party complaint, the Mead Corporation filed an independent action in the Bessemer Division of Jefferson Circuit Court against Birmingham and others attacking the legality of the forthcoming election. The judge of the Bessemer Division entered a temporary restraining order and preliminary injunction prohibiting the conduct of the election. United States Steel Corporation later moved to intervene in this litigation, which intervention was allowed.

In the meantime, Birmingham sought the dissolution of the injunctive order before the Bessemer Division. The court refused to dissolve that injunction and Birmingham petitioned this court for extraordinary relief and, by order dated March 6, 1975, in SC 1158 — Ex parte: City of Birmingham, a Municipal Corp., Petition to Stay or set Aside Temporary Restraining Order, this court ordered that the Oxmoor Annexation election be held as scheduled on March 8, 1975, The election was then conducted and the voters in the Oxmoor territory voted to come into the City of Birmingham by a vote of 60 to 1. The probate judge then entered a Declaration of Result of Annexation Election to this effect on March 19, 1975.

Following the conduct of the Oxmoor Annexation election and Birmingham’s successful petition to this court for a writ of mandamus directed to the judge of the Bessemer Division, the litigation commenced there by Mead was transferred to the Birmingham Division for trial. See: Mead Corporation v. City of Birmingham, 295 Ala. 14, 321 So.2d 655, supra. Thereafter, by agreement of the parties, the Mead litigation was scheduled to be tried to conclusion before any hearing of the Homewood litigation.

The Mead litigation was tried in Jefferson County Circuit Court on September 28, 1976, and continuing on October 28, 1976. Thereafter, in a judgment and final decree dated December 21, 1976, the Honorable William C. Barber, Circuit Judge, found in favor of Birmingham and against Mead and U.S. Steel and directed that a final order of annexation be entered by the Judge of Probate of Jefferson County decreeing that the Oxmoor territory forthwith be incorporated into and become a part of Birmingham. Mead and U.S. Steel appealed to this court from that judgment. The final decree entered by Judge Barber is set out verbatim in Justice Maddox’ dissenting opinion in Mead Corporation v. City of Birmingham, 350 So.2d 419, at 422-428, supra.

On petition of parties involved in the Homewood litigation (SC 2383 — Ex parte: Mason Corporation, an Alabama Corp., et al.), this court entered an order on March 1, 1977, enjoining Birmingham or any other party from undertaking any action with respect to the Oxmoor territory in furtherance of the final order of annexation entered in the probate court pending the conclusion of the Homewood litigation still pending before Judge Barber in the Jefferson County Circuit Court.

Upon a hearing of the consolidated Mead litigation appeal, 350 So.2d 419, supra, this court did not reach the substantive issues raised by the parties because it held that the trial court was without jurisdiction to issue its final decree of December 21, 1976, due to the absence from the Mead litigation of the City of Homewood, which the court held was an indispensable party as a result of its claim to certain property in the Ox-moor territory by virtue of its purported annexation following the resolution passed by the Birmingham City Council. This court remanded the Mead litigation for further proceedings before the Circuit Court of Jefferson County with Homewood joined as a party.

On remand, the Mead litigation and the Homewood litigation were consolidated, which the majority had suggested in the Mead appeal, and resulted in a final decree entered on June 14, 1978. In this decree, the trial court held the annexation invalid and addressed only two issues: The sufficiency of the legal description of the land sought to be annexed and the reasonableness of the annexation. The City of Birmingham again appealed. We reverse and render.

The trial court found that the description of the land to be annexed was vague, indefinite and uncertain and, for that reason, the annexation was void. We disagree. While the description is not perfect, it does sufficiently describe the property to be annexed so that it is capable of being located on the ground. While it may be true that it is necessary to look to memo-’ rials such as county maps and general surveys of the state to locate the property on the ground, this is not a sufficient reason for voiding the annexation. In Foshee v. Kay, 197 Ala. 157, 72 So. 391 (1916), this court held that, although the legal description utilized in an incorporation proceeding was incorrect in that it stated that the property in question was in Township 20 instead of Township 21, this error was inconsequential because other available evidence showed that the property to be incorporated was not incapable of being located on the ground. The appellees, in fact, do not contend that the property cannot be located, they simply assert that it would be difficult to do. This is not the test. In 2 McQuillin, Municipal Corporations (1966 Ed.), § 7.31, the test is stated as follows: “. . . The description should be sufficient, so that the affected territory may be ascertained . . . ” The appellees, themselves, have demonstrated that the territory can be ascertained.

The trial court applied the proper standard on the first trial of this issue and said:

“ ‘The Court has evaluated the testimony of two expert witnesses concerning this point . . Each witness reviewed the legal description and noted certain ambiguities, each of which was discussed in some detail.
“ ‘Substantial accuracy (not perfection) is all that is required in an annexation description. See generally State v. City of Birmingham, 167 Ala. 651, 52 So. 461 (1910). At trial Professor Turner concluded that the legal description of the Oxmoor Area was sufficient and valid and was capable of being staked and located on the ground in a survey. The Court agrees and concludes that the legal description is accurate, valid and capable of location on the ground, with closure.
“ ‘Plaintiffs also argue, in connection with this point, that the legal description is complicated and could not be understood by a layman. This is quite true since it is virtually impossible to write any legal description embracing twenty-five (25) miles of boundary over diverse and widely varying terrain, in language which would be comprehensible to a layman. However, this is not the test. The legal description of the Oxmoor Area sets forth precisely the configuration of the territory purported to be annexed by use of a metes and bounds description which can be identified and located by a land surveyor on the ground, and this description is more than adequate.

From a careful reading of the decree rendered on remand of this cause, we are convinced that the trial court believed it was required to reverse its finding on the adequacy of the legal description because of the majority holding in City of Birmingham v. Community Fire District, 336 So.2d 502 (Ala.1976). We can understand the trial judge’s position, but we do not think the Community Fire District case compelled him to reverse his prior holding. That case stands only for the proposition that where the city excluded inhabitants by gerrymandering the boundaries, its action was unreasonable, and subject to judicial review. It does not stand for the proposition that where the proposed area to be annexed is irregular in shape, it is subject to judicial review. To the contrary, City of Dothan v. Dale County Commission, 295 Ala. 131, 135, 324 So.2d 772 (1975), states the law as it still exists in this state:

“We know of no statutory mandate that the municipal boundaries of all territories sought to be annexed must form a regular shape. Tit. 37, § 135(10) does require that such annexed territory ‘form a homogeneous part of the city or town.’ But, this is not to imply that homogeneity demands regularity of shape of the boundaries of the municipality.
“Had the legislature been so disposed as to require all municipalities to possess boundaries of uniform and regular width and length it might have said so.”

We hold, therefore, that the trial court correctly applied the law on the first trial of this cause and reverse its current finding that the description of the land to be annexed is so vague and indefinite as to make the annexation void.

If we surmise that the trial court felt bound by the decision in Community Fire District, supra, to reverse its prior findings on the description issue, we need only read the decree of June 14,1978, to know that it felt bound to hold the annexation void as unreasonable under that decision. The decree, itself, says:

“Although the legislature has delegated to municipalities the power to alter or extend boundaries, the principle is now firmly settled in Alabama that the power of annexation is not without limitation, but is subject to the test of reasonableness. In City of Birmingham v. Community Fire District, supra, the Alabama Supreme Court stated ‘that an unreasonable annexation is invalid and subject to judicial scrutiny’. . . .”

The court then went on to hold that the annexation procedure utilized by the City of Birmingham in this case violated the rule of reason enunciated in Community Fire District, supra. Again, we can appreciate the trial judge’s difficulty in applying the standard alluded to in Community Fire District. There is language in that opinion which would seem to support the trial court’s conclusion. However, we cannot read that decision to change the long-established and not frequently challenged rule that, in annexing territory, a city acts in its legislative capacity; and generally, if the municipality acts within its delegated authority, the wisdom or expediency of the annexation is not a concern of the courts. 1 Yokley, Municipal Corporations (1956 Ed.), § 34. In this case, it is not questioned that the City of Birmingham followed the statute which provided for the procedure utilized in this annexation. The legislature delegated the authority to the City and it enacted an ordinance which in all respects comports with the statute. In doing so, it determined that it would best serve the needs of the City to annex the property involved in this litigation. In such circumstances, we cannot say that the City acted unreasonably:

“The general rule is that if the reasonableness of a proposed annexation is fairly debatable, the courts will defer to the judgment of the council in enacting the annexation ordinance
“The legislative body of a municipality is given a very broad discretion in the determination of the necessity of the reasonableness of an annexation, and it has been repeatedly held that the courts will interfere only to correct an abuse of that discretion. . . .”1 Yokley, Municipal Corporations, § 34, supra.

It is true that this court recognized a rule of reasonableness in Community Fire District that it was not intended to permit the court to substitute its judgment for that of the legislative body. We agree with the rule announced by the Supreme Court of Missouri on the question of reasonableness in State ex inf. Mallett v. Joplin, 332 Mo. 1193, 1205, 62 S.W.2d 393, 398 (1933):

“. . .It was not for the trial court to decide whether, upon the facts shown to exist, the extension of the boundaries was necessary, but to determine whether ,or not, upon the facts shown to exist, reasonable men would differ as to the necessity of the extension. If the question of whether or not the territory involved should be included within the city limits was fairly debatable, that is, if there was substantial evidence each way so that reasonable men would differ about its necessity, then the decision of that question was for the city council and the city electorate and not for the court.

See also: Washington v. City of Birmingham, 364 So.2d 1151 (Ala.1978).

We agree with the City of Birmingham and some, if not all of the appellees, that the facts in this case are not in substantial dispute. The question is whether the trial court correctly applied the law to those facts. We hold that it did not and reverse with instructions that a decree be entered holding the annexation of the Oxmoor territory valid.

REVERSED AND REMANDED WITH DIRECTIONS.

All the Justices concur.

       As indicated in 2 McQuillin, Municipal Corporations, Section 7.05, it is clear that the description of corporate boundaries is not required to have the particularity ordinarily found in deeds.” (350 So.2d at 426, 427)


source: Caselaw Access Project

author: BLOODWORTH, Justice. JONES, Justice

license: Public Domain

text:
    Phyllis EVERAGE v. Mattie Lee GIBSON et al.
    77-656.
    Supreme Court of Alabama.
    June 1, 1979.
    Rehearing Denied July 6, 1979.

      Judy W. Hammond and William M. Hammond, Troy, for appellant.
    Robert W. Barr of Gibson & Barr, Troy, for appellees Willie Anne Golden, Billy Lamar Gibson and for Wayne Gibson and Billy Lamar Gibson as guardians of Thomas Marshall Gibson.
    Thad Yancey, Jr., of Cervera & Yancey, Troy, Guardian ad Litem for Thomas Marshall Gibson, appellee.
    Keith Watkins, Troy, for appellee, Troy Bank & Trust Co.
   BLOODWORTH, Justice.

Intervenor Phyllis Everage appeals from judgment that she has no interest in the real estate of Paul Lamar Gibson, deceased, and is not entitled to any proceeds from the sale of the lands for division. We affirm.

Paul Lamar Gibson died intestate on June 18, 1972, survived by his widow, Mattie Lee Gibson, and four children, William Paul Gibson, Willie Anne Gibson Golden, Billy Lamar Gibson, and Thomas Marshall Gibson. Appellant Phyllis Everage, born March 23, 1932, also claims to be the daughter and eldest child of Paul Lamar Gibson, deceased.

On June 28, 1977, Mattie Lee Gibson and Billy Lamar Gibson filed a complaint to sell land for division, naming as defendants the other three Gibson children. The real estate sought to be sold included 507 acres owned by Paul Lamar Gibson at his death. J. P. Lester Sawmill, Inc., intervened, claiming an interest in the timber on the land. A sale was ordered upon a stipulation of the parties. After confirmation of the sale, but before distribution of the proceeds, Phyllis Everage intervened, alleging that she was an illegitimate daughter of Paul Lamar Gibson, deceased, and claiming a child’s share of the real and personal property of the decedent. Ms. Everage subsequently filed a motion to vacate the judgment of sale because she, as a joint owner of the lands, was an indispensable party and had not been joined in the suit.

The evidence was in conflict on the issue of Ms. Everage’s relationship to the decedent. After a hearing ore tenus, the trial judge ruled that she had no interest in the real estate of Paul Lamar Gibson, deceased. The judgment reads, in pertinent part, as follows:

“The rules of property pertaining to descent of property by illegitimate children has been settled by judicial decision and legislative enactment in Alabama since 1824. People have entered into transactions upon reliance of those settled rules of property. The law of Alabama and rights of Phyllis Everage to the subject property became fixed with the death of Paul Lamar Gibson.
“Whether Trimble v. Gordon is apt authority is not decided. Retroactive application of the rule of Trimble to the status between the parties would have a detrimental effect on the administration of justice and property rights in Alabama. The court adheres to those settled decisions of Alabama pertaining to descent of property by illegitimate children and leaves corrective measures, if any, to the legislature.
“IT IS, THEREFORE, ORDERED AND ADJUDGED BY THE COURT AS FOLLOWS:
“1. That Phyllis Everage does not have any interest in the real estate of Paul Lamar Gibson and is not entitled to any proceeds of the sale of lands for division among joint owners held April 14, 1978, and her claims for relief in the original and amended complaint, separately and severally, are denied.
“2. That Phyllis Everage is not entitled to vacate the judgment of sale and order of confirmation. Motion to vacate is denied.”

The issue on this appeal, raised at trial by amendment to appellant’s intervention complaint, is whether the system relating to intestate succession in Alabama violates equal protection of the law guaranteed by the fourteenth amendment to the United States Constitution and §§ 1 and 35 of the Alabama Constitution, by invidiously discriminating on the basis of illegitimacy. We find no equal protection violation with respect to either the United States or Alabama Constitutions.

At the outset, we note that the trial court made no finding that appellant was or was not biologically related to Paul Lamar Gibson, deceased. The appellees argue that a finding that she is not the decedent’s daughter should be presumed from the judgment, and that she therefore may not attack the constitutionality of the statutes of descent and distribution on this appeal because of lack of “standing.”

Our rule is that, where the trial judge does not make express findings of fact, this Court will assume that he found facts necessary to support his judgment, unless the finding would be clearly erroneous and against the great weight and preponderance of the evidence. Lipscomb v. Tucker, 294 Ala. 246, 314 So.2d 840 (1975). It is apparent from the wording of the judgment quoted above that a finding that appellant was not biologically related to the decedent is unnecessary to support the result reached. We need not presume that the trial judge made such a finding, and, therefore, appellant is not precluded on this ground from asserting her constitutional argument because of lack of “standing.”

Appellant contends, on this appeal, that our review of this case is controlled by Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977). We disagree. To the contrary, we find that our statutory system is more akin to the New York statute held constitutional in Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978).

In Trimble, the United States Supreme Court declared unconstitutional an Illinois statute which provided that an illegitimate child could inherit from his mother, but could inherit from his father by intestate succession only if the child’s parents married and the father acknowledged the child as his own. The father in Trimble had neither married the mother nor acknowledged the child as his daughter, but he had been found to be her father in a paternity suit. The Illinois courts nevertheless excluded the child as a distributee of her father’s estate, based upon the statute. The United States Supreme Court reversed, holding that the statute discriminated against illegitimate children in violation of the equal protection clause of the fourteenth amendment. The classification was found not to be substantially related to a permissible state interest. Because the statute unnecessarily restricted its operation to circumstances where both acknowledgment and marriage of the parents existed, it was constitutionally flawed and ignored “some significant categories of illegitimate children of intestate men [whose] inheritance rights can be recognized without jeopardizing the orderly settlement of estates or the dependability of titles to property passing under intestacy laws.” 430 U.S. at 771, 97 S.Ct. at 1465, 52 L.Ed.2d at 40.

Subsequently, in Lalli, the Court concluded that a New York intestate succession statute did not violate the equal protection clause of the fourteenth amendment. That statute provides that an illegitimate child may not inherit from his father unless the paternity of the father is declared by a court during the father’s lifetime. The procedural requirements placed on illegitimate children by this statute were found to bear a reasonable relationship to the substantial state interest of providing for the just and orderly disposition of intestate property.

As Mr. Justice Powell, writing the plurality decision for the Court in Lalli, so clearly points out, “The primary state goal underlying the challenged aspects of § 4-1.2 is to provide for the just and orderly disposition of property at death. We long have recognized that this is an area with which the States have an interest of considerable magnitude.” He continues, “This interest is directly implicated in paternal inheritance by illegitimate children because of the peculiar problems of proof that are involved. Establishing maternity is seldom difficult.” On the other hand, “[p]roof of paternity, by contrast, frequently is difficult when the father is not part of the formal family unit. ‘The putative father often goes his way unconscious of the birth of a child. Even if conscious, he is very often totally unconcerned because of the absence of any ties to the mother. Indeed the mother may not know who is responsible for her pregnancy.’ ” Mr. Justice Powell alludes to the difficulties of serving an illegitimate with process in the course of probating a will and poses this query from the New York case of In re Flemm, 85 Misc.2d 855, 859, 381 N.Y.S.2d 573, 575-76 (Sur.Ct.1975): “ ‘How does one cite and serve an illegitimate of whose existence neither family nor personal representative may be aware? ’ ” Moreover, “ ‘And of greatest concern, how [to] achieve finality of decree in any estate when there always exists the possibility however remote of a secret illegitimate lurking in the buried past of a parent or an ancestor of a class of beneficiaries? ’ ” Mr. Justice Powell points out that the accurate resolution of claims to paternity is enhanced “by placing paternity disputes in a judicial forum during the lifetime of the father.” Requiring the order to be issued during the father’s lifetime, he suggests, “permits a man to defend his reputation against ‘unjust accusations in paternity claims,’ ” and, therefore, “[fraudulent assertions of paternity will be much less likely to succeed . . . Lalli, supra, 439 U.S. at 268-271, 99 S.Ct. at 524-26, 58 L.Ed.2d at 511-13.

The provisions setting out the order of intestate succession to real estate in Alabama are found in Code 1975, § 43-3-1. Real estate descends first to the children of the intestate, or their descendants. “Children,” as used in this statute, has been held to mean legitimate children. Williams v. Witherspoon, 171 Ala. 559, 55 So. 132 (1911). Section 43-3-7 provides that every illegitimate child is considered to be the heir of his mother. The effect of this section is to make an illegitimate child the “heir of his mother as if he were born in lawful wedlock; that is, fully legitimates him for the purpose of heirship and succession.” Foster v. Lee, 172 Ala. 32, 55 So. 125 (1911).

We have concluded that there are three situations in Alabama in which a child born out of wedlock may inherit from his intestate father, short of having been adopted by the father. In the first, the child is “legitimated” by the marriage of the parents and recognition of the child by the father as his own. Code 1975, § 26-11-1. Recognition must be unambiguous and clear in its character. Howard v. Pike, 290 Ala. 213, 275 So.2d 645 (1973).

In the second, the child is “legitimated” by the father’s written declaration, attested by two witnesses, which is filed in the office of the probate judge. Code 1975, § 26-11-2.

The third situation is a “judicial determination of paternity.” Code 1975, §§ 26-12-1 et seq. Although the statutory scheme subsumes the use of the state to prosecute the action with the putative father as defendant, the proceeding itself is civil in nature, and the measure of proof to establish paternity is identical to that in other civil cases. Keener v. State, 347 So.2d 398 (Ala.1977). The basic purpose of the paternity statute is to judicially determine the paternity of an illegitimate child. State ex rel. Moore v. Strickland, 289 Ala. 488, 268 So.2d 766 (1972). Once paternity is determined, the defendant is considered “to be the father of such child and thenceforth shall be subject to all obligations for the care, maintenance and education of such child [the same as] the father of a legitimate child of like age and capacity.” Code 1975, § 26-12-4.

Although Alabama case law has not previously recognized that the child is “legitimated” by this proceeding, we find that the judgment of paternity serves the same state purpose as “legitimation” in establish-, ing the right to intestate succession. Thus,, the statement by this Court in Moore v. Terry, 220 Ala. 47, 124 So. 80 (1929), that a “bastard who is not legitimated may only of course inherit from his mother or her descendants, even though his paternity is satisfactorily shown,” is too broad and is expressly disapproved.

We hold that the adjudication of paternity in a proceeding under § 26-12-1 et seq. is sufficient state expression by which to obtain the legitimation of an illegitimate child in order that it may inherit from the intestate father’s estate in the same manner as a legitimate child.

Even in Trimble, the United States Supreme Court recognized that

“. Sherman Gordon was found to be the father of Deta Mona in a state court paternity action prior to his death. On the strength of that finding, he was ordered to contribute to the support of his child. That adjudication should be equally sufficient to establish Deta Mona’s right to claim a child’s share of Gordon’s estate, for the State’s interest in the accurate and efficient disposition of property at death would not be compromised in any way by allowing her claim in these circumstances. . . .” [Emphasis supplied.]

430 U.S. at 772, 97 S.Ct. at 1466, 52 L.Ed.2d at 40-41.

Thus, we find that Alabama’s statutory system regarding illegitimate children and intestacy bears a substantial relation to the purpose of the entire statutory system governing descents and distribution. That purpose is to provide for the orderly and certain distribution of an intestate’s property with as little delay as is compatible with a just determination of the extent of property to be distributed, the rights of those who are to receive the property, and the claims of others to the estate. Long ago we abandoned as one of the purposes of this system the common law basis for excluding illegitimates from inheritance, which is to discourage illicit sexual intercourse. Butler v. Elyton Land Co., 84 Ala. 384, 4 So. 675 (1888).

Our statutes seek to avoid the uncertainty and potential for fraud inherent in permitting a person to claim paternity on the part of the intestate after the purported father has died and, in many instances, decades after the alleged child’s birth.

To summarize, in order to claim the right to inherit from the intestate father’s estate, a child born out of wedlock may prove legitimation by the marriage of his parents plus a clear and unambiguous recognition of the child by the father. Or, such child may introduce a written, attested, and filed declaration of legitimation. Finally, the child may show a judicial determination of paternity made within two years of birth and during the father’s lifetime.

We believe such a system as we have delineated adequately deals with the “peculiar problems of proof” encountered in establishing paternity and works “to ensure the accurate resolution of claims of paternity and to minimize the potential for disruption of estate administration,” as pronounced in the latest United States Supreme Court decision in Lalli, supra, 439 U.S. at 271, 99 S.Ct. at 526, 58 L.Ed.2d at 513.

In the instant cause, the record discloses no proof of either of the first two alternatives, although both were viable subsisting legal methods of obtaining “legitimation” during the intestate’s lifetime. There was no proof of a judicial determination of paternity obtained during the intestate’s lifetime. The only proof offered was an attempt to show “recognition” by the intestate.

There remains for consideration the applicability of the judicial declaration which we make today that a judicial determination of paternity under Code 1975, § 26-12-1, et seq., passes constitutional muster against the claim made under the “equal protection” clause and is in accord with the most recent pronouncements of the United States Supreme Court in the decisions of Trimble and Lalli, supra. Since appellant offered no proof of a judicial determination of paternity (under the then subsisting “bastardy statutes,” i. e., Tit. 6, Code of Alabama 1940, in large measure correlative to our present § 26-12-1, et seq.), the issue as to whether she can claim the benefit of our declaration today of the third alternative is not before us.

For the foregoing reasons, this cause must be affirmed. The motion to dismiss the appeal filed by some of the appellees who were purchasers at the sale for division is overruled.

MOTION TO DISMISS APPEAL OVERRULED.

AFFIRMED.

TORBERT, C. J., and MADDOX, AL-MON, SHORES, EMBRY and BEATTY, JJ., concur.

FAULKNER and JONES, JJ., dissent.

JONES, Justice

(dissenting):

I respectfully dissent. This is a curious— very curious — opinion. The anomaly lies not so much in its essential holding (i. e., its interpretation of the determination of paternity proceeding statute, § 26-12-1, et seq., to comport to constitutional standards), but in its application of this new interpretation so as to have binding effect upon this Appellant. On the one hand, the opinion is laudatory in rendering a previously unconstitutional statutory scheme of intestate succession as applied to illegiti-mates into a constitutionally acceptable scheme through its inclusion of a third rationally related method of legitimation for intestacy succession purposes. Then, in my view, the opinion itself makes an unconstitutional application of this new interpretation by declaring the paternity statute, as now interpreted, was available to this Appellant; and, having not availed herself of these proceedings, she loses.

Let me explain. There is no debate that, at all times pertinent to this case (indeed, from the inception of our State to the date of release of this opinion), a bastard child could be legitimated for purposes of inheriting from his or her intestate father by only two methods. Nothing is more settled in our law than 1) legitimation by marriage of the child’s parents and recognition of the child by the father (§ 26-11-1), and 2) legitimation by written declaration of father (§ 26-11-2), are exhaustive of the available procedures. The cases are too legion to bear citation, but the language from Bagwell v. Powell, 267 Ala. 19, 99 So.2d 195 (1957), is illustrative:

“. . . There are only two procedures which serve to legitimate a bastard and make him capable of inheriting from his father. They are section 10, Title 27, Code, by the putative father marrying the mother and recognizing his paternity of the child; and pursuing the course provided for in section 11, Title 27, supra. Lingen v. Lingen, 45 Ala. 410.”

See, also, Moore v. Terry, 220 Ala. 47, 124 So. 80 (1929).

That § 26-12-1, et seq., the determination of paternity proceedings (i. e., until today), were intended, so interpreted and utilized solely as a procedure for adjudicating the reputed father’s obligation for the support for dependent children is equally clear:

1)It is not included within Chapter 11 of the Code dealing with legitimation;

2) The only reference in these sections to “legitimate” is in the context of the reputed father’s obligations for the care, maintenance and education as being “the same which are or shall be imposed by law upon the father of a legitimate child”; and

3) An action under these Code provisions is brought in the name of the State, prosecuted by the District Attorney, and “said to be quasi-criminal in character.” (Hunter v. State, 293 Ala. 226, 301 So.2d 541 (1974)).

It is not my point that this Court should not now alter its interpretation of the paternity proceedings statutes to come within the guidelines of our State and Federal constitutionally mandated equal protection guarantees. Indeed, this Court is faced with one of two choices, either of which is a viable alternative:

1) Declare our present statutory scheme unconstitutional and leave any corrective action to the legislature; or

2) Construe our paternity statutes as a third method of legitimation.

I join the other members of the Court in opting for the latter choice. (Although not entirely analogous, the reading of the Miller standards into our pornography statute is a closely related example of this type of case law interpretation to render valid an otherwise unconstitutional statute. Pierce v. State, 292 Ala. 473, 269 So.2d 218 (1974).

I should say in passing, however, that I would permit the action to be instituted by the child, or parties on behalf of the child other than the District Attorney, eliminate the “two years after birth of child” requirement, and retain the “during lifetime of the father” requirement.

My point of difference, then, though crucial to the outcome of this case, is a narrow one. I dramatize this difference by posing the question: How can a statute, altered and thus rendered constitutional by this Court’s interpretation as of the date of this opinion, be held applicable to this Appellant so as to deny her relief for her earlier noncompliance?

The answer must begin with the source of the problem. The pertinent intestacy statutes are § 43-3-1, Ala.Code 1975, which in pertinent part, reads:

The real estate of persons dying intestate, as to such estate descends .
(1) To the children of the intestate

and § 43-3-7, which states:

Every illegitimate child is considered as the heir of its mother, and inherits her estate in whole or in part, as the case may be, in like manner as if born in lawful wedlock.

The word “children” in § 43-3-1 is interpreted to mean “legitimate children.” Williams v. Witherspoon, 171 Ala. 559, 55 So. 132 (1911); see, also, Hunt v. United States Steel Corp., 274 Ala. 328, 148 So.2d 618 (1963). Therefore, while illegitimate children of female intestates are provided for, illegitimate, unlike legitimate, children of male intestates are denied inheritance rights under our statutory scheme.

At this point we are clearly within the equal protection prohibition of Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977). Our statutory scheme for intestacy succession — permitting a legitimate but not illegitimate child to inherit from his intestate father — results in invidious discrimination on the basis of illegitimacy. This does not mean, however, that the States are not allowed considerable latitude in regulating the standard of proof required of illegitimate children who would inherit from their fathers by intestate succession.

This is the precise issue addressed by the United States Supreme Court in Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978). Lalli addressed the equal protection challenge to a New York statute (§ 4-1.2 of New York’s Estates, Powers, and Trusts Law), which permits an illegitimate child to inherit “. from his father if a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity . . .(The statute also provides that the “proceeding [be] instituted during the pregnancy of the mother or within two years from the birth of the child.” This latter requirement was not included in Appellant’s grounds of constitutional attack, and thus not addressed by the Lalli Court (see footnote 5, 439 U.S. 267, 99 S.Ct. 524, 58 L.Ed.2d 510).)

Lalli compared the Illinois statute invalidated in Trimble with the validated portion of the New York statute:

“The Illinois statute in Trimble was constitutionally unacceptable because it effected a total statutory disinheritance of children born out of wedlock who were not legitimated by the subsequent marriage of their parents. The reach of the statute was far in excess of its justifiable purposes. Section 4-1.2 does not share this defect. Inheritance is barred only where there has been a failure to secure evidence of paternity during the father’s lifetime in the manner prescribed by the State. This is not a requirement that inevitably disqualifies an unnecessarily large number of children born out of wedlock.” Lalli 439 U.S. at p. 273, 99 S.Ct. at p. 527, 58 L.Ed.2d at p. 514.

Lalli, in answering affirmatively the question, “whether the discrete procedural demands that § 4-1.2 [to the extent challenged] places on illegitimate children bear an evident and substantial relation to the particular state interests this statute is designed to serve”, observed:

“The.primary state goal underlying the challenged aspects of § 4-1.2 is to provide for the just and orderly disposition of property at death.”

In the instant case, the trial Court correctly acknowledged the unconstitutionality of our intestate succession statute, but denied Appellant relief, concluding that Trim-ble should not be applied retroactively. (Appellant’s reputed father died before Trimble.)

On appeal, this Court proceeds on the same initial premise of invalidity of our succession statutes and the inadequacy of our two traditionally recognized legitimization procedures. Then, its opinion takes our determination of paternity procedure statutes (in some respects similar to New York’s Lalli statute) and purports to en-graft constitutional standards thereon. Finally, concluding that the record supports this Appellant’s noncompliance with these standards (i. e., the record shows no offer of proof of an adjudication of paternity under § 26-12-1, et seq.), the opinion affirms the trial Court’s rejection of Appellant’s claim.

I reemphasize that my dissent does not concern itself with the engrafting of valid guidelines on an otherwise unconstitutional statute, even to the extent of broadening the statute’s historic purpose. This approach, in my opinion, is entirely proper in light of Trimble and Lalli, and because of the equal protection mandate of our State Constitution.

My point of disagreement is two-fold:

1) The standards engrafted into § 26-12-1 fall short of the equal protection guarantees of both the State and United States Constitutions. While abstract “fairness” of a State law is not the focus of equal protection scrutiny, the statute’s relation to the State interests it is intended to promote should not be so tenuous as to lack the rationality contemplated by the equal protection mandate of our Constitutions, State and Federal. In my opinion, the “within two years of the birth of the child” requirement does not meet the latter test. Likewise, the restrictions that the proceedings be instituted in the name of the State and prosecuted by the District Attorney serve no legitimate (no pun intended) State interest. In contrast, the “within the lifetime of the father” requirement is directly and rationally related to the proof of legitimacy as it in turn relates to the orderly procedure for the disposition of intestate estates; and

2) My second point of disagreement, though perhaps of lesser importance in the total development of this area of the law, is of even greater importance than the first point as it relates to the application and disposition of the instant appeal. I came away from our Court’s original discussions of this case recognizing my inability to articulate the reasons for my disagreement with the ultimate holding of the opinion to affirm the judgment of the trial Court. Apparently, I left the erroneous impression that I felt the judgment appealed from should be reversed in order to allow Appellant further opportunity to prove an adjudication of paternity as provided under § 26-12-1, et seq. Because of this misunderstanding, I am constrained to “go at it” another way.

It is inescapable it seems to me, that this opinion’s affirmance of the trial Court’s rejection of Appellant’s claim is based necessarily on one of two theories:

1) Either this Court is saying that inherent in our paternity statute from its inception (the old Bastardy Act codified in Tit. 27, Chapter 2A, Code of Alabama 1940 (Re-comp. 1958); and Tit. 6, Code of Alabama 1940) is this third method of proof of legitimacy for intestate succession purposes, and this Appellant loses because of her noncompliance therewith (coupled with lack of proof of compliance with either of the other two); or

2) Acknowledging the statute’s original constitutional infirmity, we now engraft constitutional standards into the statute and hold them applicable to this Appellant. Having failed to show, compliance with these standards, as of this date engrafted into the statutory scheme, she loses.

Although the opinion itself gives no express hint as to which of these optional theories its affirmance is based upon, I suggest that option number 1 should be dismissed summarily. Indeed, I included this option because it is the only possible basis for affirmance other than the theory contained in option number 2. For the opinion to even imply (or for others to infer from the opinion) that our paternity statute, or its ancestry, has ever been considered as having any purpose beyond its “dependency” scope would be nothing short of impugning the integrity of this Court. No one in his right mind would do this, much less the Court itself.

So, we turn to option number 2. Necessarily, then, the Court is saying this Appellant should have anticipated that sometime in the future this determination of paternity proceeding would be judicially enlarged to include within its scope and purpose the means of proof of legitimacy for purposes of intestacy succession. Stated another way, the burden was upon her not to rely upon prior judicial interpretation of the legitimation statutes (§§ 26-11-1, 2); and she bore the burden of not anticipating that this Court, given the appropriate circumstances, would not construe this determination of the paternity statute in such manner as to broaden its scope and purpose to permit illegitimates to inherit if proof of paternity were established in accordance with this statute. (The opinion cites no authority for such an ex post facto application for this broadened standard of proof to the present case; and I suggest for good reason — there isn’t any.)

The difficulty is intensified because, unlike the challenged New York statute in Lalli, our paternity statute is not an inheritance statute. Section 4-1.2(2) of the New York Code begins with the language, “An illegitimate child is the legitimate child of his father so that he and his issue inherit from his father if a court of competent jurisdiction has . . . That this New York statute, if constitutionally sound, had binding effect upon the illegitimate claimant in Lalli is unquestioned.

Here, our paternity statute, before the date of this opinion, had no application to intestate succession because it is not an inheritance statute. It does not by its terms, nor by judicial construction, legitimate illegitimate children, nor does it permit illegitimate children to inherit from their fathers. Nonetheless, acknowledging the posture of our present law, this opinion 1) rectifies the old “children” means “legitimate children” status of our inheritance statute; 2) broadens the determination of paternity statute to provide what it perceives as a 'constitutionally valid standard of proof as a condition precedent to an illegitimate’s right of intestacy succession to the father’s estate; and 3) affirms the trial Court’s denial of Appellant’s claim because of her noncompliance with this newly-fashioned standard of proof.

I summarize my dissent:

1) Section 26-12-1, et seq. (which is left intact by this Court’s opinion as to each of its essential elements), is overly restrictive to the exclusion of significant numbers of illegitimates, which restrictions bear no rational relation to the State’s legitimate interests served thereby; and

2) A standard of proof of paternity for purposes of meeting the definition of “child” cannot be fashioned as of the date of this decision and at the same time hold this claimant to the burden of prior compliance with such standards.

I would modify the paternity statute (as it relates to the specific burden of proof in issue) by eliminating the “two years after birth,” the “instituted in the name of the State,” and the “prosecuted by the district attorney” requirements. This would mean that an illegitimate child could inherit from his father and mother to the same extent and to the same degree as a legitimate child if 1) its illegitimate status were changed to that of a legitimate child by virtue of compliance with §§ 26-11-1, 2; or 2) if a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring the claimant’s paternity. (I would, of course, leave this statute unaltered with respect to its utilization for traditional purposes of dependency (i. e., for adjudication of paternity for purposes of the reputed father’s obligation for the care, maintenance, and education of the child).)

I would then apply this holding prospectively; that is, I would apply the requirement of this standard of proof to all cases in which the reputed father’s death occurred subsequent to the date of this opinion; and I would reverse the instant judgment and remand this case for a further hearing on .the issue of paternity.

FAULKNER, J., concurs.

      . The statutes in question are Code 1975, §§ 26-11-1, 26-11-2, 26-12-1 to -9, 43-3-1, and 43-3-7.

      . Although appellant contended at trial that the statutory system also invidiously discriminates on the basis of sex, this contention has not been renewed on appeal.

      .Thus, there is no issue here of “standing” as there was in Coleman v. Sparkman, 377 So.2d 977 (Ala.1979).

      . The New York statute required that such action be brought within two years of the birth of the child, just as Alabama requires. See Note 5.

      . This action must be commenced within two years of the birth of the child. Code 1975, § 26-12-7. The constitutionality of this limitation is not questioned on this'appeal, nor was it an issue in Lalli. See 439 U.S. at 267 n.5, 99 S.Ct. at 524 n.5, 58 L.Ed.2d at 510 n.5.


text:
    B. D. PETERSON and American Fitness Center of Alabama, Inc., an Alabama Corporation v. JEFFERSON COUNTY et al.
    77-718.
    Supreme Court of Alabama.
    June 8, 1979.
    Rehearing Denied July 6, 1979.
    Douglas Corretti and Frank E. Lankford, Jr., J. Howard Perdue, Jr., Birmingham, for appellant, B. D. Peterson.
    Jack E. Held, Birmingham, for appellant, American Fitness Center.
    Edwin A. Strickland, County Atty., Birmingham, for appellees.
   PER CURIAM.

B. D. Peterson and American Fitness Center of Alabama, Inc., appeal from a judgment of the Jefferson County Circuit Court denying injunctive relief and rejecting a claim for damages. We affirm.

The pertinent facts out of which this controversy arises are, in large part, set out in the final decree (as amended) of the Circuit Court:

“This cause presents a justiciable controversy which is properly brought in a Court of Equity. The action is brought by two Plaintiffs. Plaintiff, Peterson, is an individual who is the owner of improved real property situated in Jefferson County, Alabama and the corporate Plaintiff, American Fitness Center of Alabama, Inc., is an Alabama corporation. Plaintiff, Peterson, has leased to Plaintiff, American Fitness Center, the said real property with improvements. The intended use of the subject property is for a ‘fitness center’, the operation of which will entail the utilization of a considerable amount of water. The Jefferson County Commission, in the exercise of its powers, has built and does maintain the Patton Creek Waste Water Treatment Plant which is a sewage disposal facility and which serves residents and commercial establishments in the county. Because of the increase in demands for sewage treatment beyond the design capacity of the plant and its EPA permit in the area of Jefferson County which is served by the said plant, the county did, in the exercise of its administrative powers and under supervision of the Alabama Water Improvement Commission and the Environmental Protection Agency of the Federal Government, declare a moratorium upon the further burdening of the plant and its facilities by new installations, except for already approved new installations. This action was taken by the Commission on February 10, 1976. Later, on December 23, 1976, September 27, 1977, June 20, 1978, and on July 5, 1978, amendments were made to the moratorium resolution. Although it is in no way controlling on this decision, it is noted that the latter amendment included, specifically, connections, re-connections, expansions and changed uses of property and amounted to a confirmation of the general statements made in the original moratorium resolution. The intended use of the subject property as a ‘fitness center’ is a changed use. The Moratorium Committee which was established by the Jefferson County Commission allotted to the prospective user of the subject property a daily sewer allocation of 471 gallons, which was the average daily sewer use of the property for the past five years. According to the evidence, the operation of the ‘fitness center’ would require in excess of 3,000 gallons daily.

In the Bill of Complaint, as amended, the following basic legal principles are set forth as grounds for the granting by the Court of the prayers contained in the Bill of Complaint:

1. That the Jefferson County Commission was without authority to adopt the moratorium resolutions and

2. That the action of the Jefferson County Commission, through the Moratorium Committee, in the allotment of the stated gallonage to Plaintiffs for the operation of the ‘fitness center’ was arbitrary and capricious and was not based upon any lawful authority and was not governed by any resolution of the Defendants or any enabling act enacted by the Legislature of the State of Alabama, and

3. The violation by Jefferson County of sections of the United States Constitution and the Constitution of the State of Alabama and specifically that Defendants are depriving Plaintiffs of their right to equal protection under the law by not allowing Plaintiffs a sufficiency of water gallonage to enable Plaintiffs to use their said property for a ‘fitness center’ even though said real property is properly zoned for commercial use.

At the conclusion of the testimony of Plaintiffs and after each Plaintiff had rested its case, the Defendants moved the Court, orally, for a directed verdict and judgment. Since it was near the close of the day, and because the Court desired to conduct a further study of the legal issues involved, the Court delayed its ruling upon the motion until this instant date at which time the Court has announced, from the bench, its ruling upon the motion of Defendants.

Some of the questions raised by the pleadings and proof in this instant case have been treated and decided in the case of Custred, et a 1 vs. Jefferson County, et a 1 on June 16, 1978, 12 ABR 1554— S.C. 2677. With regard to the question of arbitrariness and capriciousness as raised by the pleadings in this instant case, in Custred the Supreme Court quoted from Carson Cadillac Corp. vs. City of Birmingham, 282 Ala. 312, 167 So. 794 (1936):

‘It is well-settled that courts of equity, in the absence of fraud or gross abuse, will not interfere with the exercise of discretion by administrative boards in the determination of the necessity and requirements of public accomplishment, much less control the judgment of such boards in respect to matters within the technical field of their duties and powers.’

and then stated as follows: ‘However, assuming that arbitrariness or capriciousness is equivalent to gross abuse, then the question is whether the committee’s action is supported by a scintilla of evidence which will furnish an inference that Cross Creek was properly granted a sewer connection permit.’ Under this ‘scintilla rule’, this instant Court finds much more of a scintilla of evidence upon which to base an inference that the stated actions of the Committee and Commission were legally proper.

The Court finds that the Jefferson County Commission had full legal authority to adopt the subject moratorium resolutions. The Court further finds that the activities of Defendants in the allotment of the stated water gallonage to Plaintiffs was [sic] not arbitrary, capricious or without lawful authority therefor and further that there has been no violation on the part of the Defendants on any of the constitutional rights of the Plaintiffs.

As stated by the Court from the bench, the motion of Defendants for a directed verdict and judgment is granted.

Accordingly, it is CONSIDERED, ORDERED, ADJUDGED and DECREED by the Court as follows:

ONE: A judgment is hereby rendered in favor of Defendants and against Plaintiffs and the cause is dismissed, with prejudice.

TWO: The costs of this action are taxed to Plaintiffs, for which let execution issue.”

The appellees have conceded that their motion at the close of the plaintiffs’ case was incorrectly denominated a motion for a directed verdict, but it appears that both the trial court and the parties have treated this motion as a Rule 41(b) ARCP motion, and thus, we shall consider it accordingly. See Chaney v. General Motors Corp., 348 So.2d 799 (Ala.Civ.App.1977).

The appellants contend that the trial court erred in the following respects:

1. in ruling that as a matter of law, the subject property did not fall within an enumerated exception to the moratorium resolution;
2. in considering the operative effect of a resolution of the Jefferson County Commission on July 5, 1978;
3. in failing to rule that the July 5th resolution impaired the appellants’ contractual obligations;
4. in ruling that the enforcement of the resolution was not arbitrary, capricious and violative of due process and equal protection;
5. in ruling that the allocation of 471 gallons per day was not arbitrary, capricious and violative of due process and equal protection and
6. granting the motion for directed verdict.

We have considered this sewer moratorium and the actions of the administrative body charged with its enforcement very recently, Custred v. Jefferson Cty., 360 So.2d 285 (Ala.1978) and in that case, we noted that “judicial review of administrative action is limited.” Additionally, this case was heard by the trial court sitting without a jury. The ore tenus rule applies and the trial court’s conclusions will not be disturbed on appeal unless palpably erroneous. Custred, supra.

i

The appellants urge this court to recognize that since a valid building permit was issued for the original construction of the building in question in 1963, the property is specifically excluded from the operation of the moratorium resolution by the resolution’s terms.

“Provided, however, there shall be excluded from this moratorium any sewer connection authorized by valid building permits issued prior to the date hereof by Jefferson County . . . ”

The exception noted above does include the sewer connections installed in the original construction of this building and the sewer connections which were installed in a 1966 renovation. The appellants however, are seeking an increased sewer allocation to service installations which have not been authorized by a valid building permit. The lack of a valid building permit is the very reason that this litigation was instigated. The appellants allege that when they submitted the plans and specifications for their proposed renovation to the Building Department of Jefferson County, they were informed of the necessity of applying for an exception to the moratorium. The unfavorable sewer allocation is the precipitating factor that caused this action to be filed. The trial court did not err in refusing to find that this property was not within the exclusions provided in the original moratorium resolution.

II

The appellants have raised two issues relating to the trial court’s consideration of a resolution of the Jefferson County Commission passed on July 5, 1978. In the amended final decree, the trial court rioted that its consideration of this resolution was not controlling in the decision rendered, but we do not consider it necessary to decide the propriety vel non of the trial court’s treatment regarding the resolution. The trial court rendered its decision after the appellants presented their evidence and the record indicates that the appellants introduced this resolution in evidence. (Plf. Peterson’s Exhibit # 6.) It does not seem consonant with sound principles of judicial administration to allow a party to introduce evidence and assert on appeal that the trial court erred to reversal by admitting that evidence. In 32A C.J.S. Evidence § 1040(1) (1964) the appropriate rule is stated:

“[A] party who has introduced certain evidence cannot subsequently object that . it should not be given such consideration as its natural probative value entitled it to, or that it is insufficient to sustain a judgment based thereon.” (Footnotes omitted.)

Moreover, to the extent that the appellants contend that this resolution impaired their obligations under the lease which they executed, their argument appears to be directed at the entire regulatory scheme envisioned by the original moratorium resolution instead of just the resolution of July 5, 1978. Completely disregarding the alleged amendatory nature of the July 5 resolution, the' moratorium resolution and its administration are manifestations of the sovereign’s paramount police power which has long been held to “embrace the protection of the lives, health, and the property of the citizens . . ” Van Hook v. City of Selma, 70 Ala. 361, 363 (1881) and to which private contractual obligations must yield.

“[T]he liberty of contract is not universal, and is subject to restrictions . in the exercise of [the] power to protect the safety and welfare of the people. There are manifold restraints to which every person is subject for the common good.”

(Citations omitted.) (Boone v. State, 170 Ala. 57, 63, 54 So. 109, 111 (1911).

“The police power sometimes is superi- or to . . personal and property rights. They not infrequently yield to the general welfare.”

Pickett v. Matthews, 238 Ala. 542, 546, 192 So. 261, 264 (1939).

Thus, we hold that neither the July 5, 1978, resolution nor the moratorium resolution impaired the contractual obligations embodied in the lease between Peterson and American Fitness Center, Inc.

Ill

The crux of the appellants’ due process and equal protection argument is that the moratorium resolutions do not provide for a hearing before the administrative board; the resolutions fix no ascertainable standard by which sewer allocations are determined; those standards that are actually used by the Sewer Moratorium Committee are not reasonably calculated to achieve the stated purpose and that the standard, as applied, constituted an arbitrary and capricious use of administrative discretion.

While it may be conceded that the moratorium resolution and the amendments thereto do not in haec verba contain provisions for a hearing or set out appropriate standards for determining the sewer allocations, we do not consider these omissions objectionable because the record is replete with evidence that the appellants’ application for a sewer allocation was treated in a manner entirely consistent with procedural due process. In Almon v. Morgan County, 245 Ala. 241, 16 So.2d 511 (1944), this Court noted that

“. . . the constitutional requirement of due process does not require judicial determination by a court but it may be had by an administrative tribunal, and in a summary manner, provided . . . procedural due process is accorded . . . .”
“Procedural due process, broadly speaking, contemplates the rudimentary requirements of fair play . . . which include a fair and open hearing before a legally constituted court or other authority, with notice and opportunity to present evidence and argument; representation by counsel if desired; and information as to the claims of the opposing party, with reasonable opportunity to controvert them.” (Citations omitted.)

245 Ala. at 246, 16 So.2d at 515.

In this case, the record reveals that the appellants, by counsel, applied to the Sewer Moratorium Committee for a sewer allocation. The record indicates that not only did the Committee consider the evidence presented by the appellants, but they also undertook an independent investigation.

A letter dated April 17, 1978, from Mr. Bobby Lowe to the attorney for one of the appellants is enlightening as to the exact procedure employed by the Sewer Moratorium Committee in determining this sewer allocation.

“The Jefferson County Sewer Moratorium Committee met to consider your application on behalf of Mr. B. D. Peterson for an exception to the Sewer Moratorium on the Patton System.
By letter of March 27, 1978, you informed the Committee that the subject property had been used originally for a restaurant which was abandoned after approximately two years. You advised that following the restaurant the property was occupied by Life Insurance Company of America for a number of years and that during the period of its occupancy the highest water consumption was 177,750 gallons for a three-month period. That consumption figure is so out of line with the usual water consumption for that type of activity that we checked the figures ourselves. Our investigation of the water records for the subject property includes the five-year period beginning February 1973 through February 1978. The water consumption records reflect a high of 397,500 gallons to a low of 750 gallons per quarter. There were no records of water consumption from February 1977 to date. Included within the records are three quarters of 397,500 gallons, 177,750 gallons, and 172,500 gallons respectively. Those figures are so out of line with the other quarterly water consumption figures that we requested an explanation from the Water Works Board. The Board advised us that their records reflect that there was a water leak on the premises for the above referenced three quarters which accounts for those quarters being so out of line.
The Committee also considered the fact that the last occupant of the property went through a phase-out process extending over several months.
The Committee agrees that the moratorium contemplates a right in the property owner for continued use of its ordinary sewage use, even though the premises have been vacant for more than a year. Under the foregoing facts, the Committee concluded that it would be reasonable to use the ordinary sewage use of the property for a five-year period in the calculation. Because of the fact that the water consumption figures for three periods were grossly affected by a leak in the water system, the Committee concluded it would be reasonable and proper to strike those quarters from the calculation. On the other hand, the Committee also determined that it was fair and reasonable to delete the three lowest water consumption quarters in making the calculation because of the phasing out of the last occupant. The deletion of those six quarters results in an average consumption of 42,545 gallons per quarter which translates into a figure of 471 gallons per day for the period.
Accordingly, it is the conclusion and recommendation of the Committee that the subject property be approved for sewage allocation of 471 gallons per day.”

The appellants appealed this allocation to Mr. Chriss Doss, the Jefferson County Commissioner of Public Works and he, by letter of May 5, 1978, approved the recommendation of the Sewer Moratorium Commission.

We believe that the record supplies ample evidence that the appellants were accorded at least minimal due process at both the initial application proceeding and the subsequent appeal. In his letter, Mr. Doss indicated that he considered the appellants’ evidence and arguments and that he reviewed the Committee’s recommendation in light of the appellants’ evidence and argument, however he agreed with the Committee’s recommendation. Therefore we believe that even though the moratorium resolution did not specify the hearing procedure and the allocation standard, the Committee complied with procedural due process requirements in their treatment of the appellants’ application.

We also believe that the standard employed by the Committee was reasonably calculated to achieve the stated purpose of the moratorium resolution, i. e., to regulate the volume of sewage treated at the Patton Creek plant. The appellants presented evidence which tended to indicate that the effluent released from the proposed physical fitness center would be much easier to treat than sewage from other commercial establishments, e. g., restaurants and laundries. There was also evidence that up to 50% of the water put into the physical fitness center would be lost due to evaporation. Assuming arguendo that all of this uncontroverted evidence is true, we believe that the Committee, in the exercise of its discretion, could have reasonably decided that the volume allocation method employed was the most cost-effective means of determining sewer allocations for the area treated by the Patton Creek plant. Stated simply, the purpose of the sewer moratorium was to regulate the volume of sewage treated at the Patton Creek plant and the Committee chose to use the volume of water previously used to service this facility as the touchstone for determining the allocation in this case. As noted in Custred, supra, arbitrariness and capriciousness are equivalent to gross abuse and since we do not find a gross abuse of discretion on the part of the Sewer Moratorium Committee, we deem it inappropriate to second-guess their judgment as to “ ‘matters within the technical field of their duties and power.’ ”

IV

The appellants finally contend that the action of the trial court in granting a motion for a directed verdict was improper since they presented more than a scintilla of evidence to support their claims. Rule 50(c), ARCP. While their contention may be correct when there is a jury trial, this case was tried in a non-jury setting and we consider the appellees’ motion to dismiss under Rule 41(b), ARCP. Chaney, supra. Here the trial judge is the trier of fact and he weighs the evidence and credibility of witnesses. Committee Comments, Rule 41, ARCP. This rule, considered in conjunction with ore tenus rule allows us to reverse the judgment of the trial court only where that judgment is palpably erroneous.

The judgment of the trial court is due to be affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, ALMON, EMBRY and BEATTY, JJ., concur.

FAULKNER and JONES, JJ., dissent.

MADDOX and SHORES, JJ., not sitting.

      . 360 So.2d 285 (Ala.1978)


text:
    In re Raymond HUGHES v. Madge J. HUGHES. Ex Parte Raymond HUGHES, Petitioner.
    77-440.
    Supreme Court of Alabama.
    June 8, 1979.
   PER CURIAM.

All the Justices concur, except MADDOX and SHORES, JJ., not sitting.

Prior opinions, Ala.Civ.App., 362 So.2d 910, 918.

On remand, Ala.Civ.App., 372 So.2d 845.


author: BRADLEY, Judge.

text:
    Raymond HUGHES v. Madge J. HUGHES.
    Civ. 1204.
    Court of Civil Appeals of Alabama.
    June 27, 1979.
    Rehearing Denied Aug. 8, 1979.
   BRADLEY, Judge.

The above styled cause was remanded to this court by the Alabama Supreme Court in response to the mandate of the United States Supreme Court for reconsideration in light of Orr v. Orr, 440 U.S. -, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979).

In the Orr case the United States Supreme Court held the Alabama alimony statutes unconstitutional for the reason that they denied the husband equal protection of the law. Subsequently this court rendered a decision, i. e. Orr v. Orr, - So.2d -, Civ. 1006 (Ala.Civ.App., May 30, 1979), extending the benefits of the alimony statutes equally to men as to women, thereby removing the equal protection infirmity. Thus the Alabama alimony statutes are now constitutional insofar as they do not violate the Equal Protection Clause of the fourteenth amendment to the United States Constitution.

Therefore we conclude that the decision of the trial court should be affirmed, particularly in view of the fact that the husband did not request an award of alimony, nor did he demonstrate a need for alimony; whereas the wife amply demonstrated her need for alimony and the husband’s ability to respond to that need.

After a careful reconsideration of the case in light of the directive from the Alabama Supreme Court, we affirm the judgment of the trial court. .

AFFIRMED.

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


author: PER CURIAM. ALMON, EMBRY and BEATTY, JJ.,

text:
    Ex parte Raymond HUGHES. (In re Raymond Hughes v. Madge J. Hughes).
    78-818.
    Supreme Court of Alabama.
    Sept. 28, 1979.
    Richard H. Gill, Montgomery, for petitioner.
    No brief for respondent.
   PER CURIAM.

WRIT DENIED. (Ala.Civ.App., 372 So.2d 845).

TORBERT, C. J., and BLOODWORTH, MADDOX, FAULKNER, JONES and SHORES, JJ., concur.

ALMON, EMBRY and BEATTY, JJ.,

dissent, having expressed their views in Ex parte Gartman, [MS. August 17, 1979, No. 78-245], - So.2d -.


text:
    Hubert S. ELLIOTT et al. v. Roscoe Lymon ELLIOTT.
    77-286.
    Supreme Court of Alabama.
    June 22, 1979.

      S. P. Keith, Jr., Birmingham, for appellants.
    John R. Christian, Birmingham, for ap-pellee.
   PER CURIAM.

This is an appeal by Hubert S. Elliott and five of his siblings from judgment, based upon a jury verdict, in favor of Roscoe Lymon Elliott, proponent of the will of Myrtle Whitmire Elliott. The verdict upheld the validity of the will against the contest of Hubert S. Elliott and the other contestants.

The parties to this appeal comprise seven of the nine children of the testatrix Myrtle Whitmire Elliott. The contest was filed the probate court and transferred for trial to the circuit court pursuant to statute. The issues upon which the contest was tried were whether at the time of making and executing her will decedent was possessed of the requisite mental or testamentary capacity and whether her will was the product of the undue influence of her son, the proponent, Roscoe Lymon Elliott.

Contestants urge as error to reverse the refusal of twenty-six requested written jury instructions; the overruling of objections to questions propounded to witnesses by proponent; the sustaining of an objection of proponent to an answer of a witness to a question of contestants; the overruling of contestants’ motion to set aside the verdict and for a new trial, and allowing affidavits in behalf of proponent to be filed at the hearing of the motion for new trial.

A

Regarding the alleged error in the refusal of contestants’ written requested jury instructions proponent correctly points out that this court may not consider whether refusing the instructions was error for the reason that contestants neither made objection nor assigned grounds for objection to the refusal of the trial court to give the instructions. Rule 51, ARCP states in pertinent part:

“ * * * No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection. * *

Therefore, even assuming arguendo that one, or more, of the written requested instructions was erroneous and not substantially covered in the oral charge of the trial court, error may not be predicated thereon.

Appellants complain that the trial court did not inform counsel of its proposed action upon the requested charges before argument to the jury. Here again, we must point out that failure of the trial court to comply with this requirement of Rule 51 provoked no objection from appellants. Prom aught appearing the proposed action was indicated when the word “refused” was written on each of the requested charges. Appellants say they had no opportunity to object before the jury retired. No objection was made for any alleged denial of that opportunity. No error was preserved in connection with the trial court’s actions concerning the jury instructions.

B

Issue XXVII presented for review by appellants complains of error of the trial court when it allegedly permitted a witness to testify to a conclusion regarding the testamentary capacity of the testatrix contrary to the rule as expressed in Councill v. Mayhew, 172 Ala. 295, 55 So. 314. The matter arose when the following occurred:

“Q. Okay. Now I will ask you if on June 17,1971, if you have some opinion as to the mental capacity of Myrtle Whit-more Elliott?
“Mr. Keith: We object to that.
“The Court: Overruled.
“A. Yes, I do.
“Q. And in your judgment was she of sound mind?
“A. She was absolutely of sound mind in my opinion.”

It may be readily seen this was not the conclusionary testimony condemned in Councill. There, this court stated correctly:

“It is well settled that, on the issue as to testamentary capacity, a witness, whether expert or not, cannot testify that the testator was or was not capable of making a will, because, as it is said, this is the very issue to be submitted to the jury. * * * tf

No error resulted when the objection was overruled.

Appellants’ issue XXVIII urges error in the trial court’s sustaining proponent’s objection to a witness’ answer during the following proceedings:

“Q. Now, in the late 60’s or early 70’s did you notice any change in her mental condition?
“A. Yes.
“Q. Will you explain that, please?
“A. She would talk and stare off in the distance like she didn’t know exactly where she was
“MR. CHRISTIAN: We object to her testimony about where she thought she was and her mental
“THE COURT: Sustained.
“Q. All right. Now, I’ll ask you if you noticed any changes in the late 60’s or early 70’s starting with what you observed, that which you observed?
“A. She did sometimes stare off into the distance and then come back. She would start to make a statement, and then stare off.
“Q. All right. Now, are you saying there would be long pauses?
“A. Well, I would say there would be long pauses from the expression on her face.
“Q. Explain that to the jury as best you can?
“A. On her face I could tell that she had just made a definite change in her mental capacity.
“MR. CHRISTIAN: We object to her* testifying about her mental capacity and making a definite change.
“THE COURT: Overruled.” (Emphasis ours.)

Appellants contend that the objection came too late, there was no motion to exclude, and opinion evidence of mental capacity is improper ordinarily, but, in this instance, proper to rebut illegal evidence of mental capacity previously adduced by proponent. We cannot agree. In context, the series of questions and answers show that contestants were allowed to go into the mental capacity, or soundness of mind, of testatrix aside from any alleged error regarding the one question and answer. Viewed at its worst, the ruling did not affect the substantial rights of the parties. Rule 61, ARCP. Under the rules of review of this court it cannot be treated as injurious even if, indeed, it be error. Rule 45, ARAP.

In their issue XXIX appellants say it was reversible error for the trial court to overrule contestants’ objection to the following question: “Well, assuming you were in there on either May, June or July, did you talk to her during that period of time?” The witness to whom this question was propounded had previously testified to ample facts upon which to predicate an opinion of the condition of the testatrix’s mind. He testified to having either talked with testatrix in person or by phone on an average of no less than once a month during the year 1971; further, during that year, and several years before and after, rarely did he go for a period of three weeks without seeing her. The witness went on to detail his contacts and relationship with testatrix, concluding with the opinion that she was possessed of a sound mind. Contestants argue that Allen v. Jones, 259 Ala. 98, 65 So.2d 217, supports their contention that this testimony assumed the witness was at the home of testatrix at some period in time in May, June, or July (1971) and further assumed the witness talked to her. Moreover, they say, permitting the question to be answered in that context allowed the witness to make an observation as a non-expert, who did not attest the will, concerning the mental condition of the testatrix without an opportunity to form a judgment and without stating the facts upon» which the observation is based. We do not agree. Unlike the situation in Allen, the testimony of the witness, who answered this question in this case, taken in its entirety, demonstrates not only that he stated ample facts upon which to predicate his opinion of the condition of testatrix’s mind but also that it was reasonable to assume that he had been in her home in either May, June, or July.

C

Appellants’ issue XXX complains of the trial court’s overruling of their motion to set aside the verdict and order a new trial. The argument in support of this alleged error is addressed to the verdict being contrary to the preponderance of the evidence. The argument is that the preponderance of the evidence shows the will to be the product of the undue influence exercised upon testatrix by her son Roscoe Lymon Elliott, appellee. We do not agree, the trial court did not, and neither did the jury. The presumption of correctness afforded the jury verdict is strengthened by the refusal of the trial court to grant the motion for new trial. S. S. Kresge Co. v. Ruby, 348 So.2d 481 (Ala.1977).

D

Appellants’ issue XXXI urges that it was reversible error to permit appellee to file an affidavit, and unsworn written statements of jurors in rebuttal of affidavits of three of the contestants filed with the motion for new trial when appellee’s filings came more than fifteen days after service of the motion, no extension of time was granted and no stipulation of the parties permitted the filings, all being contrary to the requirements of Rule 59(c), ARCP.

The affidavits of three of the contestants were to the effect that they saw the attorney for proponent go into the jury room, where the jurors were present, holding a paper and returned from there without the paper. These affidavits were filed with the motion on 9 November 1977. On 13 December, the day on which the motion for new trial was heard, attorney for proponent filed his affidavit denying the allqgations in contestants’ affidavits and further stating that on no occasion during the trial of this case, or at any time, had he ever entered the jury room of that particular courtroom. At the time his affidavit was filed, he filed unsworn statements of eleven of the jurors which denied the allegations of contestants’ affidavits. Over objection, these were introduced and contestants took exception but made no motion for continuance nor assigned any grounds for the objection.

In their motion for new trial contestants state the ground under consideration here thusly:

“11. For the Proponent’s attorney during the trial of the case and while jurors were in the jury room went into the jury room with some paper or papers and returned to the Courtroom without them (See attached affidavits).”

We observe that even had the occurrence not been denied by the affidavit of the attorney for proponent, there is no allegation in the ground eleven of the motion to the effect that what took place was improper conduct evidencing a sinister design or that it had any effect on the minds or sentiments of the jurors. Neither do contestants’ affidavits show such. The trial judge had a right to believe either the affidavits of contestants or that of proponent to be true. His choice is quite obvious. As it has often been stated:

“On questions of this kind, we consider the ruling of the trial court as being presumptively correct and conclude that the court acted with its sound judicial discretion in not granting a new trial on the ground now under consideration. * * * ” [No. 11] Hatcher v. Camp, 279 Ala. 475, 479, 187 So.2d 232, 235. See also, Alabama Power Co. v. Henderson, 342 So.2d 323, 326, 327 (Ala.1976).

In light of the foregoing, error, if any, in permitting introduction of the unsworn statements was harmless and did not affect the substantial rights of contestants. Rule 61, ARCP. Also, it was error without injury. Rule 45, ARAP.

Lastly, contestants urge it was fatal to the verdict to permit introduction of the affidavit and statements in behalf of proponent at the hearing of the motion for new trial more than fifteen days after service of the motion, without extension by the court for good cause shown, and absent stipulation of the parties permitting the introduction of them. We do not agree.

Time limits contained in the California Code of Civil Procedure for filing affidavits and counter affidavits with respect to motions for new trial have been held not to be jurisdictional. Clemus v. Regents of University of Cal., 8 Cal.App.3d 1, 87 Cal.Rptr. 108 (1970). See also Daudel v. Wolf, 30 S.D. 409, 138 N.W. 814 (1912) and State v. Streensland, 56 S.D. 534, 229 N.W. 395, 397 (1930). We view the time requirements of Rule 59(c) for filing affidavits and opposing (counter) affidavits as not jurisdictional. We deem the better view to be that relaxation of these requirements, in a given case, is addressed to the sound judicial discretion of the trial judge.

For the reasons assigned the judgment is due to be, and is hereby, affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, FAULKNER, ALMON and EMBRY, JJ., concur.


author: FAULKNER, Justice.

text:
    In re MASS APPRAISAL SERVICES, INC., etc. v. Bernard CARMICHAEL. Ex Parte Mass Appraisal Services, Inc.
    78-275.
    Supreme Court of Alabama.
    June 22, 1979.

      G. Griffin Sikes, Jr., Montgomery, for petitioner.
    Joel F. Dubina, Montgomery, for respondent.
   FAULKNER, Justice.

Mass Appraisal Services seeks a writ of mandamus and/or prohibition to the Honorable Judge Perry O. Hooper of the Circuit Court of Montgomery County. Judge Hooper entered an order in two consolidated cases awarding attorneys’ fees and staying further proceedings until those fees were paid. Mass Appraisal asserts that Judge Hooper was without authority in this instance to award attorneys’ fees. We agree and grant the writ conditionally.

In 1972 Mass Appraisal (formerly Hunni-cutt & Associates, Inc.) and Bernard Carmichael entered into a contract to perform mass real estate appraisals. Carmichael, unable to collect certain sums due from Macon County, retained the Montgomery law firm of Jones, Murray, Stewart, and Yarborough, P.C. to file suit against Macon County. In February, 1978, the Jones firm filed suit against Mass Appraisal in Montgomery County Circuit Court to collect attorneys’ fees incurred in the litigation with Macon County. Mass Appraisal then filed a third party complaint against Carmichael. This action among the Jones firm, Mass Appraisal, and Carmichael is one of the two consolidated cases currently pending before Judge Hooper.

Meanwhile, disputes over contract interpretation developed between Carmichael and Mass Appraisal, leading Mass Appraisal to file suit in federal district court in Birmingham. Carmichael, represented by the Jones firm, moved to transfer the federal action to Montgomery. The motion was granted on the basis of forum non conven-iens. No answer or motion for summary judgment was filed. Once in Montgomery the federal court dismissed the action without prejudice and Mass Appraisal filed an identical action against Carmichael in Montgomery County Circuit Court. On January 18, 1979, upon motion of Mass Appraisal the two actions now in Montgomery County Circuit Court were consolidated. The Jones firm then filed a motion pursuant to Rule 41(d), ARCP, for its “costs” incurred in the federal action initially filed in Birmingham. Judge Hooper granted the motion, awarding an attorneys’ fee of $2,500 and expenses of $67.28, and ordered the proceedings in the consolidated cases stayed until these sums were paid. Mass Appraisal then sought relief in this Court.

Initially we observe that jurisdiction is properly within this Court irrespective of the amount awarded by the circuit court. Section 12-3-11, Code 1975, provides:

“Each of the courts of appeals shall have and exercise original jurisdiction in the issuance and determination of writs of quo warranto and mandamus in relation to matters in which said court has appellate jurisdiction. Each court shall have authority to grant injunctions and issue writs of habeas corpus and such other remedial and original writs as are necessary to give it a general superintendence and control of jurisdiction inferior to it and in matters over which it has exclusive appellate jurisdiction . . .” [Emphasis added.]

This section must be read in conjunction with § 6.03(c) of the Judicial Article which states:

“(c) The court of criminal appeals and the court of civil appeals shall have no original jurisdiction except the power to issue all writs necessary or appropriate in aid of appellate jurisdiction of the courts of appeals.”

While it is impossible to determine what relief, if any, will eventually be granted in the consolidated cases and thus determine appellate jurisdiction, it is most likely that jurisdiction will lie in this Court and not the Court of Civil Appeals, since the amount in controversy substantially exceeds the $10,-000 jurisdictional limit of the Court of Civil Appeals. Although § 12-3-10, Code 1975, states that “[wjhere there is a recovery in the court below of any amount other than costs, the amount of such recovery shall be deemed to be the amount involved,” that provision does not place jurisdiction in the Court of Civil Appeals in this instance. [Emphasis added.] Here the circuit court has granted its award under a provision allowing “costs,” thus presenting us with the question of what that term may properly include. Consequently, mandamus must be sought in this Court since the current controversy involves a matter over which this Court will, in all likelihood, have exclusive appellate jurisdiction. Furthermore, it is apparent that mandamus is an appropriate method to raise the propriety of this interlocutory order since an eventual appeal, which may, in fact, never be taken, would not be adequate to prevent undue injury. See Evans v. Insurance Co. of North America, 349 So.2d 1099 (Ala.1977).

We now come to the question of whether or not a circuit court may award attorneys’ fees pursuant to Rule 41(d) or may include such fees in an award of “costs.” Rule 41(d), ARCP, provides:

“Costs of previously dismissed action. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order.” [Emphasis added.]

Clearly this provision authorizes an award of “costs” only. In this state attorneys’ fees are recoverable “only where authorized by statute, when provided in a contract or in an equitable proceeding where the efforts of an attorney create a fund out of which fees may be paid.” State ex rel. Payne v. Empire Life Ins. Co., 351 So.2d 538 (Ala.1977); Parker v. Jefferson Co. Com’n, 347 So.2d 1321 (Ala.1977). While Rule 41(a)(2) allows an award of attorneys’ fees by authorizing dismissal only “upon order of the court and upon such terms and conditions as the court deems proper,” the grant of power to the circuit court in subsection (d) of the same rule is limited to costs alone. There is no authority in this state to include attorneys’ fees in the term “costs.” Cincinnati Ins. Co. v. City of Talladega, 342 So.2d 331 (Ala.1977). See also Opinion of the Clerk, 347 So.2d 525 (Ala.1977). Consequently, Judge Hooper exceeded his authority by awarding attorneys’ fees under Rule 41(d) and his order of February 7, 1979, must be modified accordingly.

The writ of mandamus as prayed is due to be granted.

If, upon notification of this decision, the circuit court does not set aside the order awarding respondent attorneys’ fees and staying further proceedings and enter, in lieu thereof, an order denying attorneys’ fees, then a writ to effectuate such ends will issue upon the request of the petitioner.

WRIT GRANTED CONDITIONALLY.

TORBERT, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.


author: BEATTY, Justice.

text:
    Robert MUNCASTER v. ALABAMA STATE ETHICS COMMISSION, Melvin Cooper, Director.
    78-48.
    Supreme Court of Alabama.
    June 29, 1979.
    Robert Muncaster, pro se.
    Charles A. Graddick, Atty. Gen., and Rosa G. Hamlett, Asst. Atty. Gen., for appellees.
   BEATTY, Justice.

This is an appeal by the plaintiff, Robert Muncaster, from an order denying injunc-tive relief against the Alabama State Ethics Commission. We affirm.

The facts are uncontroverted.

On July 5, 1978 plaintiff Muncaster filed with the Democratic Party’s state headquarters his qualifying papers for that Party’s nomination for governor. Since its inception in 1974 the Alabama State Ethics Commission (Commission) has required candidates in primary elections to file statements-of economic interests within ten days of qualifying. Muncaster filed the required forms under protest and instituted the present action for injunctive relief praying in part that the material be returned to him. His two contentions before the trial court were that the disclosure requirements did not apply to candidates for their Party’s nomination, and if it did then the statute was unconstitutional because it denied Muncaster equal protection under the Fourteenth Amendment, United States Constitution. After a hearing the trial court granted the defendant’s motion for summary judgment. Muncaster appeals.

Where there is no issue of fact involved the only question on appeal from the grant of summary judgment is whether summary judgment was proper as a matter of law. Mason v. Connecticut General Life Ins. Co., Ala., 367 So.2d 1374 (1979). We hold that it was.

Code of Alabama 1975, § 36-25-15 requires in pertinent part that

(a) Within 10 days after he becomes a candidate for state office, each candidate shall file a statement of economic interests [under Code of Ala.1975, § 36-25-14] as prescribed by the commission and in keeping with this chapter at the office of the state ethics commission.
(d) Other provisions of the law notwithstanding, if a candidate for elective public office does not submit a statement of economic interests in accordance with the requirements of this chapter within 10 days after he becomes a candidate, his name shall not appear on the ballot . . . [emphasis added]

Muncaster contends that he was not a candidate for state office when he was required to comply with the above provision. He bottoms this contention upon the theory that a candidate for a Party nomination, which he admittedly was, does not become a candidate for state or elective public office until he has won that nomination, which he admittedly did not. This contention is without merit. Code of Ala.1975, § 36-25-15 applied to Muncaster even though he did not win his Party’s nomination for governor. The general definition of “candidate for public office” found within the Act at § 36-25-1(3) is:

Any person who has filed a declaration of candidacy or a petition to appear on the ballot for election as a public official, and any person who has been nominated for appointment to serve as a public official. [emphasis added]

Muncaster was required to file a “declaration of candidacy" by Code of Ala.1975, § 17-16-11 when he became a candidate for his Party’s nomination. Hence, under the plain wording of these statutes and construed pari materia, when Muncaster filed his declaration of candidacy with the state Party chairman and thus qualified for the Democratic gubernatorial nomination, he became a “candidate for public office” under the provisions of the Alabama Ethics Law.

A “candidate for state office” under § 36-25~15(a) and a “candidate for elective public office” under § 36-25-15(d) are encompassed within that broad definition. Therefore Muncaster’s filing of his declaration of candidacy triggered the necessity for his compliance with the Alabama Ethics Law, and in particular § 36-25-15(a).

Muncaster’s contention that the applicability of the Ethics Law to candidates for Party nomination denies his equal protection under the law is also untenable. The Fourteenth Amendment, U.S. Constitution forbids unequal protection of the laws. In eases such as this where no suspect classification or fundamental right is involved, all that is required is that the classification of persons similarly situated be at least rationally related to the legitimate legislative purpose. In this instance the State of Alabama has a legitimate interest in seeing that its elected officials do not have conflicts between their private interests and their official duties. Section 36-25-2. To secure this end the legislature has determined that candidates for state elective office should publicly disclose their private interests within ten days after becoming candidates. Section 36-25-15(a). The legislature has determined that persons become candidates under the Act at administratively ascertainable points of entry into the election process. That is when one has “filed a declaration of candidacy or a petition to appear . . .” [emphasis added] We hold that the classification in question is reasonable and rationally related to the legitimate, stated object. As such the statute is constitutional under the Fourteenth Amendment.

Summary judgment having been correct as a matter of law the judgment is due to be, and is, affirmed.

AFFIRMED.

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