author: GULOTTA, Judge. REDMANN, Judge BOUTALL, Judge SCHOTT, Judge

text:
    James A. MOREAU v. Richard A. TONRY, the First Congressional District Democratic Executive Committee and Honorable Paul J. Hardy, Secretary of State of Louisiana.
    No. 8222.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 21, 1976.
    Writs Granted Oct. 21,1976.
    Luke A. Petrovich, Buras, Sidney W. Pro-vensal, Jr., Gibson Tucker, Jr., Jerald N. Andry and Gilbert V. Andry, III, New Orleans, for plaintiff-appellant.
    Martzell & Montero, John R. Martzell, New Orleans, Thomas M. McBride, III, Chalmette, for defendant-appellee-cross appellant, Richard A. Tonry.
    Before SAMUEL, REDMANN, LEM-MON, GULOTTA, STOULIG, BOUTALL, SCHOTT, MORIAL and BEER, JJ.
   GULOTTA, Judge.

In this Congressional second primary election contest, James Moreau claims 1) that elimination of the fraudulent and illegal votes cast for his opponent, Richard Tonry, would result in Moreau’s receiving a majority of the legal votes cast, thereby entitling him to be certified as the Democratic nominee; or, alternatively, 2) that fraud and illegality were so widespread and systematic that the results of the election are unreliable and a new election should be ordered.

It is Moreau’s contention that fraudulent votes, well in excess of Tonry’s 184-vote majority tabulated by the Clerks of Court, were cast in voting precincts controlled by Tonry commissioners and supporters and that the result of the election would be changed if those fraudulent votes were eliminated.

According to Moreau, in 15 voting precincts in St. Bernard Parish, 616 more votes were cast on the machines than the total number of persons listed on the precinct registers as having voted; and, the names of persons who did not appear at the polling places to vote were entered on poll lists, and votes in a corresponding number were voted on machines in those precincts.

Moreau claims that in the suspect precincts, and particularly three of those precincts, the names of persons who had not appeared at the precinct to vote were placed on the poll lists, were voted on the machines, and no signatures were entered on the precinct registers; further, that persons’ names were entered on the poll lists and a corresponding number of votes were cast on the machines when, in fact, the persons named on the poll lists were not registered in that precinct; also, that persons’ names were entered twice on the poll lists and votes were cast in corresponding numbers. He claims that 146 forgeries were made in the precinct registers, and a corresponding number of votes were cast on the machines. These forgeries, Moreau contends, are in addition to the 616 fraudulent votes cast. He claims, further, that the names of three deceased persons were forged and votes cast for those deceased persons. According to Moreau, when these fraudulent votes are eliminated, he, as recipient of the majority of the legal votes cast, is entitled to be declared the Democratic nominee. Alternatively, he contends that if the proven frauds and irregularities are of such a “serious nature” as to deprive the voters of the free expression of their will, the election should be set aside and a new election ordered.

In dismissing Moreau’s suit, the trial judge concluded that 74 illegal or fraudulent votes had been cast in favor of Tonry; and, after eliminating and deducting those votes from Tonry’s total, he declared Tonry the Democratic nominee. In oral reasons for judgment, the trial judge concluded that 51 forgeries were proved from the testimony of Gilbert J. Fortier, Jr., a handwriting expert. He further concluded that in Ward 3, Precinct 6 of St. Bernard Parish, all five commissioners were Tonry supporters who had invoked the Fifth Amendment of the United States Constitution and refused to testify concerning the practices in that precinct during the election conducted on October 2, 1976. Based on a showing that 23 votes were cast on the voting machines in excess of the number of signatures in that precinct register, the judge isolated those excess votes and purged them from the Tonry total in that precinct. Any additional claims of irregularity, illegality or fraudulent voting were rejected by the trial judge. He further rejected Moreau’s alternative plea to set aside the election.

While we are in agreement with the conclusion reached by the trial judge that a number of illegal votes were cast, the record discloses a different total of votes which can be identified. Our consideration of the testimony leads us to conclude that in one precinct (Ward 3, Precinct 6) 41 forged votes were cast according to the handwriting expert. Of those 41, three were forgeries of deceased persons who were voted in St. Bernard Parish. In addition, one voter who appeared at the polls testified that a Tonry commissioner entered the voting machine with him, and the commissioner cast a vote for Tonry when the voter did not desire to do so. Further, in another precinct, one witness testified that he cast a vote and signed the register on behalf of his wife who did not appear at the precinct. These forged and thus illegal votes total 43.

We reject Moreau’s contention that because of irregularities in the 15 suspect precincts where a greater amount of votes were cast on the voting machines and names were placed on the poll lists in excess of the signatures on the precinct registers, those votes totalling 616 should be eliminated and deducted from the Tonry vote. It is clear that a tabulation of Michael M. Chauppette, the internal auditor for Plaquemines Parish, showed 616 more votes cast on the voting machines than signatures on the precinct registers in the 15 suspect precincts. According to Chauppette, examination of the names appearing on the poll lists in the particular precincts were checked against the precinct registers in those precincts, and where no corresponding signature appeared on the precinct register or no registration card was contained for that person in the precinct register, those names were totalled. Also, where a person’s name was listed twice on the poll list, these instances were noted.

Tonry contends that the authenticity of the discrepancies as they apparently appear on the tally sheets can be proved only by a comparison of the signatures on the poll lists with the precinct registers in each precinct, and that it is plaintiff’s burden to correlate the claimed fraudulent entries on the poll lists with the precinct registers showing that no corresponding signatures were entered on the precinct registers or that persons were not registered, notwithstanding that the precinct registers are available for inspection by the court. He further contends that it is not the court’s responsibility to ferret out this connecting evidence and to supply the proof to establish authenticity of plaintiff’s claim. We reject this argument.

In Dowling v. Orleans Parish Democratic Committee and O’Hara, 235 La. 62, 102 So.2d 755 (1958), the court stated that a contestant (seeking to be declared the nominee) must show that but for fraud and irregularity, he would have received a majority of the legal votes cast; or a contestant (seeking to set aside an election) must show that the illegalities and fraud were “of such a serious nature as to deprive the voters of the free expression of their will” requiring a nullity of the election. See also Lewis v. Democratic Executive Committee of Eunice, 232 La. 732, 95 So.2d 292 (1957).

It is clear that in certain precincts in St. Bernard Parish illegal votes were cast. These fraudulent practices cannot be condoned under any circumstances and must be ferreted out if we are to insure that the free and honest expression of the will of the electorate is reflected in the democratic process.

In three precincts alone, 315 more votes were cast on the machines than signatures entered on the precinct registers. However, these illegal votes cannot be identified and purged from the total vote received by Tonry since sufficient proof did not establish that all of the commissioners in those precincts were Tonry supporters or Tonry commissioners. Under the circumstances, no inference can be made that these illegal votes were cast for Tonry. See Dowling, supra. We cannot deduct the illegal votes from the Tonry total. We reject, therefore, Moreau’s claim that he is entitled to be declared the Democratic nominee.

We are quick to point out that no claim is made nor is it indicated that Tonry was a party to, participated in or condoned any of the proven illegal acts. It is not our intention to imply that our finding of illegal votes being cast reflects adversely on the character or reputation of either one of the two candidates.

Having so concluded, we now turn to a consideration of Moreau’s alternative plea that a new election should be called because of allegations of widespread and systematic fraud. The Louisiana Supreme Court, in Lewis, supra, indicated that where fraud or illegality existed to such an extent as to deprive the voters of the free expression of their will, the election will be set aside. The court stated:

“* * * [If] the alleged fraud and irregularities were so gross as to make it evident that the electors did not have an opportunity to freely express their will, plaintiff would state a cause of action for annulment of the entire election even though he might not be able to prove that he would have been nominated but for such frauds and irregularities. * * * ”

The primary thrust of contestant’s alternative claim centers primarily around four precincts in Wards 3 and 4 of St. Bernard Parish. As hereinbefore pointed out, the record clearly establishes in Ward 3, Precinct 6, that 42 fraudulent votes were cast. The Chauppette audit graphically points out that in Ward 4, Precinct 1, 114 more votes were cast on the voting machines and were entered in the poll lists than signatures on the precinct register. In that precinct, the machines registered (including absentee votes) a total vote of 1,163. Approximately 10% of the votes registered in that precinct were cast without signatures appearing on the precinct register. Likewise, in Ward 4, Precinct 2, 178 more votes were cast on the voting machines and were entered in the poll lists than signatures on the precinct register. In that precinct, the machines registered a total vote of 1,002. Approximately 18% of the votes registered in that precinct were cast without signatures appearing on the precinct register.

The discrepancies revealed by Chaup-pette’s audit include numbers of votes cast in excess of signatures on the precinct registers and votes cast in the names of persons for whom there were no registration cards in the precinct register, and, in some instances, duplicate names on the poll lists for which corresponding votes were cast.

While we are aware of (and take judicial notice of) the fact that voting machine totals and registration book totals are not always equal, common sense compels the conclusion that the discrepancies in the instant case cannot be categorized as coincidental or as “honest error”. We conclude that it is not reasonable for such discrepancies to exist — particularly in light of the proven instances of fraud, illegality and irregularity hereinabove discussed in some detail.

Although these illegal votes cannot be attributable to one candidate or the other, nevertheless, the extent of the discrepancies in the three suspect precincts totalling 315 votes, when considered in light of the proven incidents of fraud and forgery, cannot be included in the vote total. The number of illegal votes exceeds the 184-vote majority of Tonry.

This conclusion is further augmented by applying the same reasoning to the evidence adduced in behalf of Tonry by his able counsel to the effect that the same type of discrepancies existed in the 28th precinct of Ward 8 of Orleans Parish, where 559 votes were cast and the number of votes exceeded the number of signatories to the precinct register by 116 — a percentage of approximately 20%.

Illegalities such as occurred in Ward 3, Precinct 6 and in Ward 4, Precincts 1 and 2, where votes were cast in the names of persons who in some cases were not even registered, or whose names were not signed to the precinct register, or where duplications on poll lists occurred, are of such serious nature that these practices will not be condoned or tolerated under any circumstances. We, therefore, conclude that the practices hereinabove described were just as effective in preventing the voters from expressing their will as if they had been restrained from such expression, in view of our finding that the total of the votes cast is inaccurate since it includes a sufficient number of illegal votes as to render the final outcome doubtful.

As the Supreme Court stated in Dowling and Lewis, where the illegalities in an election are of such a “serious nature” as to deprive the voters of the free expression of their will, the election will be set aside and nullified. The illegal practices were of such serious nature in the instant case.

Accordingly, the judgment of the trial court is annulled and set aside. It is further ordered and decreed that the Democratic 2nd Primary Election for Representative in Congress for the 1st Congressional District held on October 2, 1976, is annulled, and the certification of the Democratic nominee resulting therefrom is vacated and set aside.

ANNULLED AND SET ASIDE.

REDMANN and BOUTALL, JJ., concurs with written reasons.

SCHOTT, J., concurs with additional reasons.

MORIAL, J., specially concurs for the reasons assigned by REDMANN, J.

REDMANN, Judge

(concurring).

Few candidates indeed could muster the forces that mastered the foulness of this election. A simple tallying of signatures on precinct register cards to compare with votes on voting machines is, however, within the reach of a reasonably knowledgeable candidate. I would therefore prefer to annul this apparent 184-vote victory because of the admitted 616 votes for which there are no voters’ signatures in the precinct registers. In future election contests, candidates (and their commissioners) should know that a vote on the machine without a voter’s signature in the precinct register (or other lawful support) will not be allowed to decide an election. (See dissent, 288 So.2d 686, 688-689, in Garrison v. Connick, La. App. 4 Cir. 1974, 288 So.2d 681, reversed, La., 291 So.2d 778.)

BOUTALL, Judge

(concurring).

I concur with the result of the majority opinion herein and I am in substantial agreement with the thoughts expressed therein. However, as I have stated in my dissent in the case of Garrison v. Connick, 288 So.2d 681 at page 686, I cannot agree that mere failure of a voter to sign the precinct register is sufficient ground of itself to consider the nullity of an election, to which I add that such a vote should not be imputed against the victor as an additional penalty to an irregular vote, but the circumstances of this case are such as to require a conclusion that the large numbers of unsigned registration cards, when considered with the other evidence presented, is persuasive to a conclusion that the result of this election was based upon the types of irregularities denounced by the statute. L.R.S. 18:364(B). Of the fifteen precincts complained of in the petition, some four were used in argument as particular target precincts, and in those precincts, the largest amount of irregularities occurred. My own examination of the evidence in those four precincts convinces me that there were at least 259 irregular and fraudulent votes cast therein. I particularly rely upon the forged signatures of voters and the large amount of voters for whom no registration card appears. Accordingly I ascribe to the majority opinion.

However, having reached the conclusion that the result of the election should be annulled, I find, and I suppose that the majority of this court has some difficulty, that because of the time frame involved in this particular election process, there is insufficient time to order that a new primary election be held for the nomination of the Democratic Candidate. Under the provisions of L.R.S. 18:362, L.R.S. 18:1072, and the holdings of the cases of Downs v. Pharis, 240 La. 580, 124 So.2d 553, and Plessala v. Landry, La.App., 244 So.2d 298, there is ample authority for this court to have declared that the issue before it was moot, because no effective remedy can be offered at this late date by way of a judicial declaration ordering a new election. The result therefore was that the statutory provisions provided for the name of one of the candidates to be declared the nominee and placed upon the ballot in time for the general election. The order of the Louisiana Supreme Court dated October 13, 1976 in this case delayed absentee voting in this election until further orders of that court. As I see it, this order has the effect of removing this case from the limitations imposed by the Downs case (this being a Supreme Court decision we are bound by its holding) and the statutory law. If the intention of that court was to remove the question of mootness in this case, then it appears to me that the Supreme Court should announce that Downs is overruled and make a clear delineation as to what the statutory procedure to be followed is in a case such as this, where the very holding of the general election is now cast in doubt by the inability of the prospective absentee voters to cast their ballots. Whether or not the former procedure was fair to a particular candidate, it at least was certain as to his being placed upon the ballot timely for the general election. Perhaps a legislative remedy is needed in such circumstances but the stay order has caused uncertainty at least in my mind. In any event, I presume that the provisions of L.R.S. 18:362 still apply to this case.

SCHOTT, Judge

(concurring with additional reasons):

In LaCaze v. Johnson, 310 So.2d 86 (La. 1974), the Supreme Court refused a writ where the trial court had nullified an election in which there was a difference of 44 votes between the two candidates out of a total of approximately 122,000 votes cast because of the malfunction of a single voting machine which failed to register 144 votes.

The instant case is analogous in that there was a difference between the two candidates of 184 votes and a breakdown of the human election apparatus in Ward 4, Precinct 2 of St. Bernard Parish, which resulted in 178 votes being cast for one candidate or the other over and above the number of signatures placed on the precinct register and in Ward 3, Precinct 6, where there were 41 forged signatures on the register and 23 votes cast in excess of signatures placed.

Ordinarily a minor discrepancy between the number of votes cast and the number of signatures would not provide a basis for nullifying an election because it is virtually impossible to eliminate human error from the election procedure. For that reason the figure of 616 developed by plaintiff as the overall difference among 15 precincts is not persuasive, especially when one considers how little the overage was in certain precincts. For instance, in Ward 1, Precinct 3, there were only 14 votes in excess of the 693 signatures, and in Ward 1, Precinct 4, only 10 in excess of the 734 signatures. However, the problem in Ward 4, Precinct 2, is quite different. There the 178 excessive votes constituted almost 20% of the total votes cast. It is inconceivable that a group of election commissioners could have permitted so many illegal votes to be cast by mistake. If nothing more, this constitutes a gross malfunction on the part of the commissioners, no less disruptive to the election than the malfunction of the machine in the LaCaze case.

The record indicates that the discrepancy in Ward 4, Precinct 2, is not merely the result of neglect but rather is the result of fraud. There are a number of names on the poll list which do not appear to identify with any of the registered voters in the precinct, and there are three signatures which are repeated indicating that these individuals were allowed to vote twice. When the commissioners were called as witnesses in the trial court four out of five refused to testify, invoking the protection of the Fifth Amendment of the Constitution of the United States, protecting one against self-incrimination. The fifth commissioner originally refused to testify on the same ground and then recanted, but his testimony is not worthy of belief on the critical point. He stated that the reason for the 178 excessive votes was the crowd which presented themselves for voting during half time and at the conclusion of a football game. Even if believable this explanation is not an excuse for such gross malfeasance in the performance of his duties.

As to the other four, their invocation of the Fifth Amendment as an excuse for refusing to testify in this civil case compels me to infer that wrong doing was committed by them. This is not to say that such wrong doing should be attributed to either candidate, but the circumstances demonstrate that it was not merely neglect which caused the illegal votes to be case but fraud on the part of these commissioners.

The trial judge deducted from Tonry’s total the 23 excessive votes found in Ward 3, Precinct 6, along with votes connected with 51 forged signatures, on the apparent basis that since the election commissioners in that precinct were called by Moreau their invocation of the Fifth Amendment afforded a basis for the conclusion that fraud was committed by the commissioners in Tonry’s behalf. I can not agree with this conclusion. I agree that there is an inference of fraud on the part of the commissioners who refused to testify but there is no evidence to show in whose behalf the fraud was committed. I would not deduct these votes from Tonry’s total.

On the other hand, it is clear that gross fraud was committed in Ward 3, Precinct 6, in the form of the 41 forged signatures being placed on the precinct register. In addition, these commissioners permitted three individuals to vote twice and one to vote three times, and three votes were cast in the names of deceased persons. There were 23 more votes put through the machine than signatures collected. While this discrepancy of 23 votes standing alone might ordinarily be explained by innocent human error, but under the circumstances of gross fraud prevailing in this precinct I would eliminate these 23 votes. When the 41 forgeries and the 23 illegal votes from Ward 3, Precinct 6, are added to the 178 illegal votes from Ward 4, Precinct 2, there is a sufficient number of votes missing from the total count so that either of the candidates could have been the winner.

I joined in the majority opinion and decree and concur in the result declaring the election null and void.

      . See LSA-R.S. 18:1193(B).

      . Ward 3, Precinct 6, St. Bernard Parish; Ward 4, Precinct 1, St. Bernard Parish; and, Ward 4, Precinct 2, St. Bernard Parish.

      .The deceased persons are 1) Frances L. Hen-ritzy, 2) Leonard W. Miller, died November 1, 1974, and 3) Irene B. Strauch, died August 10, 1976.

      . Those precincts are as follows: Ward 1, Precinct 1, Precinct 3, Precinct 4; Ward 2, Precinct 1, Precinct 2, Precinct 5, Precinct 6; Ward 3, Precinct 1, Precinct 2, Precinct 3, Precinct 4, Precinct 6; Ward 4, Precinct 1, Precinct 2, Precinct 3.


source: Caselaw Access Project

author: CULPEPPER, Judge.

license: Public Domain

text:
    Shelby Jean Truax ZAUNBRECHER, Plaintiff and Appellee, v. Stephen ZAUNBRECHER, Defendant and Appellant.
    No. 5780.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 28, 1976.
    Young & Burson by I. J. Burson, Jr., Eunice, for defendant-appellant.
    Pugh, Buatt, Landry & Pugh by Lawrence G. Pugh, Jr., Crowley, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and HUMPHRIES, JJ.
   CULPEPPER, Judge.

ON MOTION TO DISMISS THE APPEAL

The appellee and defendant in rule, Shelby Jean Truax Zaunbrecher, moves to dismiss the appeal of the appellant and plaintiff in rule, Stephen Zaunbrecher, on the grounds that the appellant’s appeal was not timely perfected.

We dismiss the appellant’s appeal.

The pertinent facts, succinctly stated, are as follows:

On April 26, 1976, written reasons were rendered denying appellant’s rule for a reduction in child support payments. A final judgment was signed and rendered on May 4, 1976, and notices of judgment were mailed on May 7, 1976. The appellant did not petition for and perfect his appeal until August 3, 1976.

Articles 3942 and 3943 of the Code of Civil Procedure clearly provide that an appeal from a judgment awarding alimony must be taken within 30 days from the. applicable date provided in Article 2087[1]-[3] of the Code of Civil Procedure. Our jurisprudence has interpreted Article 3943 as governing all appeals concerning alimony, including those that merely deny a rule to reduce it. Malone v. Malone, La., 282 So.2d 119 (1973); and Picnich v. Picnich, 271 So.2d 670 (La.App. 1st Cir. 1972).

Under Article 2087[1] the appellant’s time in which to apply for a new trial expired on May 18, 1976. Counting 30 days from May 18, 1976, the appellant’s time in which to perfect his appeal under the provisions of Article 3943 expired on June 17, 1976. Since the appellant did not perfect his appeal until August 3, 1976, his appeal was not timely and therefore must be dismissed.

APPEAL DISMISSED.


author: SAMUEL, Judge.

text:
    Robert V. WHITTAKER v. VETSHER, INC. and Century National Bank of New Orleans.
    No. 7811.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 29, 1976.
    Montgomery, Barnett, Brown & Read, Stanley McDermott, Jr., New Orleans, for appellant.
    W. Monroe Stephenson, New Orleans, for appellee.
    Before SAMUEL, LEMMON and BOU-TALL, JJ.
   SAMUEL, Judge.

On May 20, 1976, appellee Vetsher, Inc. filed a motion to dismiss the suspensive appeal taken herein. By judgment of this court handed down June 9, 1976, we dismissed that motion. Appellee then filed an application for a rehearing which, in accordance with Rule XI, § 6, Uniform Rules, Courts of Appeal, we did not consider. Thereafter, appellee filed another motion to dismiss. The second motion is based on the fact that the amount of the appeal bond had not been fixed by the trial court in its order of appeal.

The first motion to dismiss was based on an insufficiency of the bond furnished. However, in a supplemental brief filed in support of the first motion prior to the date of our June 9, 1976 judgment dismissing that motion, appellee argued as an additional ground that the amount of the appeal bond had not been fixed by the trial court in its order of appeal and that the appeal also must be dismissed on that ground.

As the ground urged in the second motion was considered prior to our judgment dismissing the first motion, the second motion amounts to nothing more than an application for a rehearing, a procedure prohibited by our Rule XI, § 6.

For the foregoing reasons, the second motion to dismiss the appeal also is denied.

MOTION DENIED.

      . 333 So.2d 689.

      . In pertinent part § 6 reads: “An application for rehearing will not be considered when the judgment of the court has merely overruled a motion to dismiss an appeal . .

      . In both motions mover relied on Watson v. Schmidt, 172 La. 761, 135 So. 232. But see the later Supreme Court case of Magnolia Petroleum Co. v. Marks, 223 La. 662, 66 So.2d 585.


author: MORIAL, Judge.

text:
    Thomas D. KNIGHT and his wife Carolyn Knight v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY-DRIVERS LICENSE DIVISION.
    No. 7589.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.
    Harold E. Kytle, Kenner, for plaintiffs-appellants.
    Foye L. Lowe, Jr., Baton Rouge, for defendant-appellee.
    Before STOULIG, BOUTALL and MORIAL, JJ.
   MORIAL, Judge.

The court has reviewed the record and determined that:

(1) the judgment of the district court is based on findings of fact which are adequately supported by the record.
(2) while the decision is important to the litigants, an opinion would have no prece-dential value. See LSA-R.S. 32:414; 32:668; Burns v. Department of Public Safety, Driver’s License Division, 328 So.2d 819 (La.App. 1 Cir. 1976); Berger v. Department of Public Safety, 327 So.2d 705 (La.App. 1 Cir. 1976), writs refused, La., 330 So.2d 310; State of Louisiana v. Love, 312 So.2d 675 (La.App. 2 Cir. 1975), writ denied, La., 317 So.2d 627 (1975); Vicknair v. State of Louisiana, Department of Public Safety, 303 So.2d 226 (La. App. 4 Cir. 1974); Gardner v. State of Louisiana, Department of Public Safety, 198 So .2d 184 (La.App. 3 Cir. 1967).

The judgment is affirmed. Findings of fact are attached.

AFFIRMED.

FINDINGS OF FACT

At the time of trial the parties entered into the following stipulation:

1. Plaintiff, Thomas Knight, was twice adjudicated guilty of driving while intoxicated.

2. Plaintiff, Thomas Knight, was first adjudicated guilty of driving while intoxicated following a plea of guilty on May 29, 1973 in the Traffic Court of New Orleans.

3. Plaintiff, Thomas Knight, was unrepresented by counsel when he plead guilty on May 29, 1973.

4. Plaintiff, Thomas Knight, was adjudicated guilty of driving while intoxicated a second time on November 13, 1974 in the first Parish Court of Jefferson.

5. Plaintiff, Thomas Knight, was represented by counsel on November 13, 1974 when he was adjudicated guilty of driving while intoxicated.

6. At the time of his conviction on November 13, 1974, plaintiff, Thomas Knight, was not tried under the criminal law of Louisiana as a second offender.

7. Plaintiff is a diesel mechanic.

8. Plaintiff’s work requires him to use, drive and operate automobiles and trucks.

From our examination of the record we make the following findings of fact:

9. Thomas Knight held a valid Louisiana chauffeur’s license No. 2246463.

10. Carolyn Knight holds a valid Louisiana driver’s license No. 1666242.

11. Plaintiffs jointly own an automobile to which Louisiana registration plate and registration certificate No. 389B670 were issued.

12. On March 27, 1975, Thomas Knight received an Official Notification of Withdrawal of Motor Vehicle Privileges suspending his operator’s license for one year because of “Driving While Intoxicated (2nd offense)” and directing him to return to the Department of Public Safety his operator’s license, registration plates and registration certificate.

13. Thomas Knight requested an administrative hearing in accordance with LSA-R.S. 32:668 to contest the suspension of his operator’s license.

14. Thomas Knight was granted an administrative hearing in accordance with LSA-R.S. 32:668, 32:414 E on June 5, 1975.

15. Thomas Knight through counsel filed a motion to quash the attempt of the State of Louisiana to revoke his operator’s license based upon Article 1 § 4 and Article 1 § 19 of the Louisiana Constitution of 1974.

16. At the administrative hearing Thomas Knight identified himself as having been adjudicated guilty of driving while intoxicated on May 29, 1973 and again on November 13, 1974.

17. The suspension of Thomas Knight’s operator’s license was affirmed by the hearing officer on June 5, 1975.

18.A judicial review of the administrative hearing was held on November 4, 1975 and the district court dismissed plaintiff’s suit.


text:
    Sue Buford GANDY v. Thomas Howard GANDY.
    No. 48926.
    Supreme Court of Mississippi.
    Oct. 19, 1976.
    Adams, Forman, Truly, Ward, Smith & Bramlette, Everette Truly, Natchez, for appellant.
    Zuccaro, Riley, Pintard & Brown, Oliver M. Hornsby, J. Walter Brown, Jr., Natchez, for appellee.
    Before PATTERSON, P. J., and SUGG and WALKER, JJ., and COFER, Commissioner.
   Affirmed.


text:
    Mr. and Mrs. J. D. FARRIS, owners and sole proprietors of Veteran Cab Company, Inc. v. Frances Norman JACKSON.
    No. 48876.
    Supreme Court of Mississippi.
    Oct. 19, 1976.
    Ellis J. Farris, Vicksburg, Roland C. Lewis, Jackson, for appellants.
    Watkins B. Duggins, Jr., Vicksburg, David H. Nutt, Jackson, for appellee.
    Before PATTERSON, P. J., and SUGG and WALKER, JJ.
   AFFIRMED.


text:
    Mary BREWER (Ballard) v. STATE of Mississippi.
    No. 49375.
    Supreme Court of Mississippi.
    Oct. 19, 1976.
    Pennington, Walker & Turner, Bennie L. Turner, West Point, for appellant.
    A. F. Summer, Atty. Gen. by Ben H. Walley, Asst. Atty. Gen., Jackson, for ap-pellee.
    Before PATTERSON, P. J., and SUGG and WALKER, JJ.
   AFFIRMED.


text:
    J. D. KITCHENS v. STATE of Mississippi.
    No. 49351.
    Supreme Court of Mississippi.
    Oct. 19, 1976.
    King & Arnold, Calvin R. King, Durant, for appellant.

      A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   AFFIRMED.

PATTERSON and INZER, P. JJ., and SMITH, SUGG, WALKER and BROOM, JJ.


text:
    Jimmie Lee LEWIS v. Ruby Faye LEWIS.
    No. 49069.
    Supreme Court of Mississippi.
    Oct. 19, 1976.
    George G. Williamson, Edward A. Williamson, Mendenhall, for appellant.
    No briefs filed on behalf of appellee.
    Before GILLESPIE, C. J., and SUGG and WALKER, JJ.
   REVERSED IN PART AND REMANDED.

PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, BROOM and LEE, JJ., concur.


text:
    G. L. LOCKETT v. Frances C. LOCKETT.
    No. 49070.
    Supreme Court of Mississippi.
    Oct. 19, 1976.
    George G. Williamson, Edward A. Williamson, Mendenhall, for appellant.
    No briefs filed on behalf of appellee.
    Before GILLESPIE, C. J., and SUGG and WALKER, JJ.
   REVERSED IN PART AND REMANDED.

PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, BROOM and LEE, JJ., concur.


text:
    Curtis Lee DUNLAP v. STATE of Mississippi.
    No. 49397.
    Supreme Court of Mississippi.
    Oct. 19, 1976.
    Schissel & Harrigill, W. S. Stuckey, Jr., Greenwood & Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, P. J., and SUGG and WALKER, JJ.
   AFFIRMED.

GILLESPIE, C. J., INZER, P. J., and SMITH, ROBERTSON, BROOM and LEE, JJ., concur.


author: LEE, Justice,

text:
    Paul McWilliams v. STATE of Mississippi.
    No. 49339.
    Supreme Court of Mississippi.
    Oct. 19, 1976.
    Rehearing Denied Nov. 9, 1976.
    Farese, Farese & Farese, Anthony T. Farese, Ashland, for appellant.
    A. F. Summer, Atty. Gen. by Ben H. Walley, Asst. Atty. Gen., and Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   LEE, Justice,

for the Court:

Paul McWilliams was convicted of manslaughter in the Circuit Court of Union County, and was sentenced to serve a term of eight (8) years in the state penitentiary. He appeals here from that judgment and sentence.

Appellant assigns as errors that (1) the court erred in refusing to direct the jury to return a verdict of not guilty and in refusing to grant a peremptory instruction of not guilty under the Weathersby Rule, and (2) the court erred in refusing instructions requested by the appellant.

Williams “Bones” Shorter was stabbed to death in a parking area between Forte School and the Tropicana (pool hall) in New Albany about 8:30 P.M. on August 18, 1974. Appellant, accompanied by his girlfriend, Pearl McIntyre, had backed his car into the school side of a road between the school and the Tropicana and was standing outside the car laughing and talking. They were joined by Arnetta Cook and Deborah Fitzpatrick, who backed their car next to the McWilliams vehicle. A little later, Shorter drove up and parked approximately fifteen (15) feet from those vehicles; he was accompanied by Margaret Foote.

Shorter wanted to talk to Pearl McIntyre, and he called to her several times, whereupon, appellant told him that, if he wanted to talk to “that woman,” to come over here and get her. Shorter got out of the car, walked over to appellant and Pearl McIntyre, told appellant that he and Pearl were friends and that he wanted to talk with her, and a scuffle ensued between him and appellant. Although the persons present were within a few feet of appellant and Shorter, they were in and out of the shadows and no witness actually saw appellant stab Shorter. The witness Pegues tried to stop the scuffle, but then retreated, remarking in the presence of all that he knew Shorter had a gun. During the scuffle, Shorter staggered backward, after which appellant was seen with the knife in his hand, and then Shorter pulled a gun out of his belt. Pearl McIntyre ran between the two fighters, Shorter went back to his car, fell, and died shortly thereafter.

I.

Did the trial court err in refusing to grant a peremptory instruction of not guilty based upon the Weathersby Rule?

The Weathersby Rule is an old and well-established principle of law first applied in Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933), and is stated as follows:

“It has been for some time the established rule in this state that where the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.” 165 Miss. at 209, 147 So. at 482.

The rule has been quoted and relied upon often, but seldom sustained as being applicable to the facts of particular cases. In Carson v. State, 261 So.2d 462 (Miss.1972) and Gordon v. State, 258 So.2d 752 (Miss. 1972), the Court restated the rule:

“The Weathersby Rule has been accepted by this Court in many cases since it was announced. Some of the late cases on this rule are Wilson v. State, 199 So.2d 445 (Miss.1967); Kinkead v. State, 190 So.2d 838 (Miss.1966); and Aven v. State, 246 Miss. 839, 152 So.2d 924 (1963). This rule simply makes it mandatory for the court and jury to accept the testimony of the defendant and his witnesses who testify that the defendant acted in self-defense where there is no testimony to contradict their version of the homicide and where there are no physical facts or evi-dentiary circumstances on which a contrary finding could be reasonably predicated.
On the other hand, where there are circumstances shown in the evidence which materially contradict the defendant’s version of self-defense the jury is not required to accept his version but may consider his version of self-defense along with the conflicting evidence in determining the guilt or innocence of the defendant.” 261 So.2d at 464, 258 So.2d at 754.

We think that the physical facts and testimony contradict appellant’s version of the homicide, that all the evidence constitutes a guilt question for the jury, and that the Weathersby Rule is not applicable.

(1) Shorter walked over to appellant and his girlfriend at the invitation, even solicitation, of appellant.

(2) Appellant says there were no eyewitnesses to the actual stabbing, but Margaret Foote testified that they began fighting, that deceased staggered back, went to his pocket and pulled his gun, and Pearl jumped in front of them, ending the altercation. The inference is that deceased staggered backward as a result of being stabbed, and it was not until afterwards that he pulled his gun. At that time, Margaret Foote saw the knife in appellant’s hand.

(3) Deborah Fitzpatrick testified that appellant told deceased to come over there if he wanted to talk with Pearl, that deceased told McWilliams he and Pearl were friends, that McWilliams began to get mad and that McWilliams shoved first. She saw the knife in appellant’s hand and then saw Shorter pull his gun out of his pocket. She testified that she did not see appellant stab Shorter the first time, but that appellant was going to stab him a second time and she saw that (when Pearl McIntyre jumped between them).

(4) On cross-examination, appellant stated that the stabbing and scuffle were over before the gun was pulled.

We are of the opinion that all the facts in the case present a question for the jury to determine whether or not the defendant’s version of the incident was true and whether or not he acted in self-defense. The trial court correctly refused to direct a verdict of not guilty and correctly refused the peremptory instruction of not guilty.

II.

Did the trial court err in refusing appellant’s requested Instructions Nos. 5, 7, 8,10 and 14?

Appellant requested nine instructions, all dealing with self-defense. Instructions requested by appellant and granted by the court on the theory of self-defense were Instructions Nos. 6, 9, 11 and 12, and those instructions fully and adequately instructed the jury on the law of self-defense. Instructions Nos. 5, 7, 8, 10 and 14 requested by appellant and refused by the court were repetitious and embodied the same theory and principle of self-defense stated in the given instructions. ■ The trial court is not required to instruct the jury over and over on a principle of law, even though some variations are used in the different instructions. All instructions granted by the trial court, both for the State and the appellant, fully and correctly submitted the issue of self-defense to the jury, no prejudice resulted to the appellant, and the trial court committed no error in refusing same. Holmes v. State, 201 Miss. 509, 29 So.2d 312 (1947).

This case, therefore, must be and it is affirmed.

AFFIRMED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER and BROOM, JJ., concur.


author: WALKER, Justice,

text:
    John W. FORTENBERRY v. Vickie Diane FORTENBERRY.
    No. 49071.
    Supreme Court of Mississippi.
    Oct. 19, 1976.

      George G. Williamson, Edward A. Williamson, Mendenhall, for appellant.
    Stubbs & Evans, W. Terrell Stubbs, Men-denhall, for appellee.
    Before GILLESPIE, SUGG and WALKER, JJ.
   WALKER, Justice,

for the' Court:

In this uncontested divorce proceeding, the defendant wife had moved to another state taking the minor children of the marriage with her. Process was had on her by publication, and no answer, cross-bill, or any pleading asking for support of the minor children was filed by the defendant.

It was error for the court arbitrarily to fix the sum of $75.00 per month that the father should contribute to the children’s support.

Due process of law required that appellant be given fair notice by an appropriate pleading that the question of support would be under consideration. In the case of Wansley v. Schmidt, 186 So.2d 462 (Miss. 1966), Justice Smith, speaking for the Court, said:

[T]he chancery court has the inherent power, and it is its duty, where the issue is before the court by proper pleadings, supported by competent evidence, in proceedings in which it has jurisdiction of the parties and subject matter, to make such orders and decrees from time to time as will protect and promote the best interests of minor children. (186 So.2d at 465). (Emphasis added).

In that case, the chancellor had increased a child support award without any pleading requesting it. All parties were before the court on a petition for change of custody due to an alleged change of circumstances. This Court concluded:

Although the allowance as fixed by the chancellor does not appear excessive, in view of that evidence in the record, due process required that appellant have fair notice from an appropriate pleading that an increase in the amount of the support award was being sought and was under consideration, so that he might have reasonable opportunity to offer evidence touching both the needs of the children and his ability to pay. (186 So.2d at 465).

See also Barnes v. Barnes, 317 So.2d 387 (Miss.1975); Griffith, Mississippi Chancery Practice § 565 (2d ed. 1950).

It is true that the chancery court is authorized under Mississippi Code Annotated section 93-5-23 (1972) to make such order as is deemed equitable and just with respect to the support of minor children of a marriage. However, this may only be done after a full and complete hearing, after due notice of the purpose of the hearing, at which the parties have an opportunity to call witnesses in their behalf and be heard by themselves or counsel.

Praiseworthy as the chancellor’s actions were in attempting to provide for the support of these minor children, to do so without any pleading praying for same arbitrarily deprived appellant of due process.

There is nothing to prevent the mother of these out-of-state children from petitioning the lower court for child support or to seek child support under the Uniform Reciprocal Enforcement of Support Law. Miss.Code Ann. §§ 93-11-1 to -65 (1972).

The decree appealed from is reversed and the cause is remanded with directions to the trial court to amend the decree by striking therefrom the award of support and maintenance of the minor children.

REVERSED IN PART AND REMANDED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, BROOM and LEE, JJ., concur.


author: GILLESPIE, Chief Justice,

text:
    PETRO GRANDE, INC., et al. v. TEXAS PACIFIC OIL COMPANY, INC., et al.
    No. 48912.
    Supreme Court of Mississippi.
    Oct. 19, 1976.
    Green, Cheney, Jones, Hughes, McKibben & Stack, Dale H. McKibben, Morse & Morse, Dan W. Morse, Jackson, for appellants.
    Brunini, Grantham, Grower & Hewes, John M. Grower, Edmund L. Brunini, Jr., Charles P. Adams, Jr., A. F. Summer, Atty. Gen., by P. L. Douglas, Asst. Atty. Gen., Jackson, for appellees.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   GILLESPIE, Chief Justice,

for the Court:

This is an appeal by Petro Grande, Inc., and Robinson Resource Development Company, Inc. (Robinson), from an order of the Chancery Court of the Second Judicial District of Jasper County, Mississippi, which affirmed an order of the Mississippi State Oil & Gas Board (Board). The Board’s order approved a petition of Texas Pacific Oil Company, Inc. (Texas), for the establishment of a plan of unitizing a part of the Lake Como Oil Field located in Jasper County, which produces from the Smack-over sands. The unit thus formed is designated as the Smackover Unit. For reference purposes, the reporter will reproduce herewith a map of the Smackover Unit and the Petro Grande Massey drilling unit which was left out of the Smackover Unit.

Two companion cases have been decided by this Court. In Texas Pacific Oil Company, Inc., et al. v. Petro Grande, Inc., 328 So.2d 660 (Miss.1976), it was held that (1) surface acreage content was the proper basis for allocating allowable production of oil and gas between the Smackover Unit and the non-unitized Petro Grande Massey well; (2) that the evidence supported the field rules prescribing the contributing value to the unit as a basis of allocating production among the members of the unit, and (3) that the use of surface acreage as a basis of allocating daily allowable production of oil and gas between unitized drilling units and the individual non-unitized drilling unit, sharing a common source of oil, did not deny the individual unit owners equal protection of the laws.

In State Oil & Gas Board v. Brinkley and Petro Grande, Inc., 329 So.2d 512 (Miss. 1976), the Court upheld an order of the Board denying Petro Grande, successor to Brinkley, the right to forced integration of the S-V2 of the NE-V4 of Section 9, Township 1 N, Range 11 E, with the N-V2 of the NE-Vi of said section 9 into a proposed 160-acre drilling unit with permission to drill. These two companion cases resolve a substantial portion of the controversy between Petro Grande and Robinson on the one hand and Texas on the other.

Texas drilled and completed the Jackson No. 1 well in 1971, and discovered the Lake Como field producing from the Smackover sands at depths below 17,000 feet. Thereafter four other producing wells were drilled within the area found by the Board to constitute the productive limits of the Smackover pool. All of these wells were drilled by Texas except the irregular shaped Massey unit located in the southeast corner of the field, which was drilled by Petro Grande. Texas is the owner of fifty-nine percent of the working interest in the four wells it drilled and operates. Appellant Robinson owns about eleven percent working interest in the four Texas wells and a similar interest in the Petro Grande Massey unit.

The necessary percentage of working and royalty interest owners agreed to Texas’ proposed unit operation of the Smackover pool. As noted on the attached plat, the Smackover pool in question is contained on the north and east by a fault line running from northwest to southeast. There is no contention made on this appeal concerning the location of this fault line. The Board found that on the southwest the limits of the productive area of the Smackover oil pool is a somewhat curved fault line running generally from northwest to southeast, intersecting the northeast fault line in section 10. The location of this fault line is at issue on this appeal. There is no issue as to the limits of the Smackover pool other than the southerly fault line. It will be noted that in addition to the five producing wells shown on the plat within the Smackover pool, four dry holes were drilled outside the producing area. Two other wells located north of the north fault line produced from another level but not from the Smackover pool involved in this case. The field was drilled on 160-acre drilling units.

I.

The main issue before the Court, as we view the case, is whether the Board failed to follow the statute in ordering forced unitization of the Smackover pool because all drilling units of the field had not been drilled.

The 1972 Act [Mississippi Code Annotated section 53-3-103 (1975 Supp.)] under which the Board was operating at the time this forced unit was formed provides in part as follows:

No field unitization shall be approved by the board until each drilling unit of the field has been drilled; however, the board is hereby authorized to waive the requirement that each and every drilling unit be drilled upon a finding of fact that it is not economically feasible for a specific drilling unit to be drilled.

At the time the Smackover Unit was formed, Petro Grande, who had acquired the lease on the S-V2 of the NE-Vi of section 9 after Texas had drilled the dry hole in the SW-Vi of the NE-Vi, was prosecuting a petition to force integration of all interests in the NE-Vi of section 9, and to let them, Petro Grande, drill it. Petro Grande had a small working interest in the N-V2 of the NE-Vi of the section but most of it was owned by Texas.

All witnesses who were asked about it, including Texas’ chief witness, Caskey, said that a well drilled at a regular location on the NE-Vi of the NE-Vi of section 9 would be a commercial well. There is no proof to the contrary.

We are of the opinion that it was within the Board’s power to force unitization of the Smackover field without requiring any further drilling in the NE-Vi of section 9, provided, the other statutory requirements were met. The dry hole drilled in the SW-Vi of the NE-Vi of section 9 is sufficient to meet the statutory requirement that each drilling unit of the field must be drilled. The statute does not require the drilling of a commercially producing well from the Smackover pool. We are of the opinion that the Pittman well, which was dry, satisfies the requirements of the statute.

In Brinkley, supra, the Board’s order denying Petro Grande’s petition to force integration of all interests in the NE-Ví, while not necessarily decisive of the question before the Court, is based on essentially the same geological findings as the instant case.

II.

Did the Board err in finding that Texas had drilled a sufficient number of wells to a sufficient depth and at such location as may be necessary for the Board to approve the boundaries of the unit and determine that the pool had been reasonably developed according to the spacing pattern approved by the Board?

Code section 53-3 — 103 provides in part as follows:

The operators of such unit shall have drilled a sufficient number of wells to a sufficient depth and at such locations as may be necessary for the board to approve the boundaries of the unit and determine that the field, pool or pools have been reasonably developed according to a spacing pattern approved by the board.

Petro Grande and Robinson contend that there is confusion and conflict in the evidence as to the southern boundary of the Smackover pool, especially at its eastern end. We agree that the testimony is in sharp conflict as to the location of the southern fault line. The testimony of Tom Caskey, a petroleum geologist for Texas, substantially corroborated by Alan Jackson, a consulting geologist, was sufficient to justify the Board’s finding concerning the boundaries of the unit, and their finding that the pool had been reasonably developed. The conflicts in the testimony were resolved by the Board in favor of Texas. This is consistent with that said in Brinkley, supra, as follows: “It was for the Board, as trier of facts, to decide the conflicts of testimony given by the geologist who testified for Texas Pacific and the geologist who testified for Petro Grande.” 329 So.2d at 514.

Again, we note the scope of judicial review of the acts of an administrative body as restated in Brinkley, as follows:

The test to be applied by an appellate court to a decision of a commission or administrative agency is whether such decision is supported by substantial evidence or whether such action is arbitrary, capricious, unreasonable or an abuse of discretion. 329 So.2d at 515-516.

Other arguments are advanced by Petro Grande and Robinson, which we have carefully considered, including the contention that the unit as formed is basically unfair to Petro Grande and Robinson. But we are of the opinion that these were arguments for the State Oil & Gas Board and this Court has no authority to reverse the action of the Board in these respects.

AFFIRMED.

All Justices concur.

[See following illustration]


author: MADDOX, Justice.

text:
    STATE of Alabama on the relation of Irvine C. PORTER, Chairman of the Unauthorized Practice of Law Committee of the Alabama State Bar, and Irvine C. Porter, Individually, v. ALABAMA ASSOCIATION OF CREDIT EXECUTIVES, a corporation.
    SC 1496.
    Supreme Court of Alabama.
    July 16, 1976.
    As Modified On Denial Of Rehearing Sept. 10, 1976.
    Marvin Cherner, Birmingham, for appellants.
    Charles Cleveland, Birmingham, for ap-pellee.

      Drayton T. Scott, Birmingham, for Commercial Law League of America and the National Assn, of Credit Management, ami-cus curiae.
   MADDOX, Justice.

This is a “quo warranto” proceeding brought in the name of the State of Alabama on the relation of Irvine C. Porter, the Chairman of the Unauthorized Practice of Law Committee of the Alabama State Bar Association. The jury found that by virtue of its collection business, the Association is engaged in the unauthorized practice of law. The trial judge ordered the Association to refrain from certain activities but allowed it to continue collecting “undisputed and uncontested delinquent accounts.” Both parties appealed.

The Association is an organization of approximately 700 businesses in Alabama which extends credit to other businesses. It has five offices and is engaged in business throughout the state. It provides its members with credit reports, a pre-collection service, and a collection service. A member can obtain a credit report on a customer or potential customer for a fee ranging between $3 and $5.25. The report is limited to the actual experience other Association members have had in obtaining payment from the person or entity whose credit standing is being reported.

The pre-collection service consists of two form letters the Association sends the debt- or. The first letter seeks to have the debt- or make payment directly to the creditor. If payment is not made within 15 days, the second letter is sent. When this service is used, the member is charged a fee but the account is not considered as placed with the Association for collection.

Upon filling out a form, a member can turn an account over to the Association for collection. If payment is made after one letter, and within ten days, there is no charge to the member. If not, the Association mails a series of form letters and in some cases, makes telephone calls to the debtor. If the Association cannot collect the amount, an employee calls the member and asks what he wants done with the account. If the member wants to turn the account over to an attorney, but does not have one, the Association will send the account to one of the attorneys who is a member of the Association. When the Association forwards the account to an attorney, it uses a form letter setting forth the suggested fee to be charged by the attorney and advises the attorney that the creditor has authorized remittance of the amount collected to be made to the Association. The Association charges a “follow-up fee” equal to 5% of the total amount collected by the attorney.

Based upon the jury’s determination that the Association was engaged in the unauthorized practice of law, Judge Haley entered the following order:

“IT IS FURTHER ORDERED AND ADJUDGED by the Court that the defendant, Alabama Association of Credit Executives, and every officer, agent or employee of said corporation, be and is hereby required to cease and desist, and in the future to refrain from doing itself or assisting any other person, either directly or indirectly, in doing any of the following:
“1. By letter, telephone or other means of communication, make any threat to any person, either expressed or implied, that a legal action or process of any kind whatsoever will be brought or contemplated in order to recover from such person or have such person pay any debts or other obligations owed by such person or claimed to be owed by such person to any other person, firm or corporation;
“2. Employ on behalf of any other person, any attorney to represent such person or receive on behalf of any person, any recoveries or collections of any such accounts or other obligations made by any attorneys for such other person;
“3. Accept employment from any attorney to recover or attempt to recover any amounts owed by any person to any other person;
“4. Employ any other person, firm or corporation for the purpose of collecting or attempting to collect in an unauthorized manner, any obligation or debt owed by any person to any other person;
“5. Undertake to settle, adjust, compromise or collect any amount due from any person whenever any dispute or question shall arise with respect to such indebtedness.
“The defendant may collect undisputed and uncontested delinquent accounts so long as its efforts in so doing do not transgress the other provisions of this Order.” [Emphasis added.]

On appeal to this Court, Porter contends that the italicized portion of the trial court’s judgment should have been deleted and the Association should have been restrained from directly or indirectly engaging in the collection of defaulted accounts. The Association, in its cross-appeal, challenges the remaining portions of Judge Haley’s order.

The first question we will address is the issue raised by Porter: Does the mere collection of undisputed and uncontested delinquent accounts for another by one who is not a licensed attorney constitute the unauthorized practice of law in Alabama? Judge Haley ruled that such activity does not constitute the practice of law. We agree.

The controlling statute is Title 46, Code of Alabama 1940, § 42 (Recomp.1958). It provides in pertinent part:

“Who may practice as attorneys.—Only such persons as are regularly licensed have authority to practice law. For the purposes of this article, the practice of law is defined as follows: Whoever, . (d) as a vocation, enforces, secures, settles, adjusts or compromises defaulted, controverted or disputed accounts, claims or demands between persons with neither of whom he is in privity or in the relation of employer and employee in the ordinary sense; is practicing law. . . . ”

Porter contends that by passing this statute, the Legislature intended to prohibit the out-of-court collection of defaulted accounts on behalf of creditors by those not licensed to practice law. We do not think so.

We believe the Legislature intended to insure that laymen would not serve others in a representative capacity in areas requiring the skill and judgment of a licensed attorney. The words used by the Legislature were “ . . . enforces, secures, settles, adjusts or compromises controverted or disputed accounts . . ” Had the Legislature intended to prohibit collecting, it could have so stated.

Our ruling is consistent with the rule followed in other jurisdictions. The rule is stated in the annotation, Operations of Collection Agency as Unauthorized Practice of Law, 27 A.L.R.3d 1152, 1156, as follows:

“It appears to be well settled that a collection agency in making a peaceful collection of a claim or in making a friendly adjustment of a bill without resort to a court of law does not engage in the unauthorized practice of law. In other words, the operation of a collection agency by and in itself does not constitute the practice of law.”

As to Porter’s appeal, we affirm.

As stated above, the Association challenged the remaining provisions of Judge Haley’s order. We will treat each section in his order seriatim.

Judge Haley properly prohibited the Association from threatening debtors that legal action would be brought or contemplated if the debt was not paid. As stated in In re Lyon, 301 Mass. 30, 16 N.E.2d 74, 76 (1938):

“To determine whether a law suit may properly be commenced, arid therefore whether it is justifiable to threaten to commence it, requires special knowledge of the legal elements constituting a cause of action. To make a business of acting for or advising others in these matters partakes of the practice of law. . . ”

The next question is whether the Association can forward accounts from its members to attorneys. The trial judge enjoined this practice. We modify his prohibition of this activity.

In State ex rel. Porter v. Dun & Bradstreet, Inc., 352 F.Supp. 1226 (N.D.Ala. 1972) aff’d mem., 472 F.2d 1049 (5th Cir. 1973), the Court found that it was not an unauthorized practice of law for a collection agency to forward a claim to an attorney the agency selected at the request of the creditor, since in that case, it was established that once the agency forwarded the claim, it gave no advice to the attorney and exercised no control over the attorney. The agency did not receive a share of the attorney’s fee. We believe Dun & Bradstreet states the general rule.

Collection agencies can forward a creditor’s accounts to an attorney for collection so long as the creditor gives the agency such authority in writing and the attorney-client relationship is established between the creditor and the attorney. The American Bar Association Committee on Unauthorized Practice of Law adopted a Statement of Principles relating to collection agencies on May 4, 1937. It provides in pertinent part:

“1. A collection agency may engage in the business of collecting past-due accounts for customer-creditors (hereinafter ‘creditors’) provided, however, that the agency may not:
“(f) Employ or terminate the services of attorneys or arrange the terms or compensation for such services on behalf of creditors without written authority to do so; .
“4. When authorized by a creditor, it is proper for an agency as agent for the creditor, to conduct correspondence of a routine nature (such as inquiries and reports with respect to status of the claim) on behalf of the creditor with the attorney to whom the creditor’s account has been transmitted for collection, and, in general, to carry on activities similar to those ordinarily carried on by the collection department of a creditor organization provided that the attorney shall be free at all times to communicate with the creditor and provided further (i) that the agency may not attempt to control or in any wise suggest or imply that it has any right to control the actions of the attorney or otherwise interfere with the attorney-client relationship between the creditor and the attorney, and (ii) that decisions as to the manner in which the claim is to be handled by the attorney, whether suit is to be brought, the claim is to be compromised or settled, whether the claim is to be returned, and any other matters requiring the decision of the creditor shall in each instance be left solely to the creditor and the attorney in direct communication with each other when the attorney so desires and the attorney shall be so advised in the forwarding letter. Copies of correspondence between the attorney and the agency need not be forwarded to the creditor unless the creditor requests otherwise. When the agency receives from the attorney an accounting concerning a collection made by the attorney, such accounting or the details thereof shall be promptly transmitted by the agency to the creditor.” [Emphasis added.]

The following amendment was added February 18, 1968:

“RESOLVED, that it is improper for a collection agency to forward a claim for collection or other purpose to a lawyer having any proprietary or monetary interest either directly or indirectly in the agency, except that forwarding to an attorney shall not be precluded because of his minority stock interest in a publicly owned corporation.” IV Martindale-Hub-bell Law Directory 75c, 76c (1976).

We recognize that if not done properly, forwarding accounts can create a conflict of interests, but if an agency or person adheres to the statement of principles quoted above, any potential conflict of interests will be eliminated and a possible public interest served. In fact, allowing collection agencies to forward accounts has been said to be in the public interest. In an opinion of the American Bar Association Standing Committee on the Unauthorized Practice of Law, the following view was expressed:

“It should be noted that many claims which are forwarded to attorneys for collection go to attorneys remote from the residence of the client. It is obvious that the client, who may never have had a claim for that locality, has not the facilities for selecting an attorney equipped and capable of handling collections. If the public prefer to have collection agencies, which through years of experience have these facilities, forward claims, it is both impracticable and impossible for the bar to insist that the public must find a different way of handling its business in this field. To prohibit the public from authorizing collection agencies to forward claims, and to insist that collection agencies must return claims to their owners under all circumstances, and to compel owners to find lawyers to handle them, are beyond the power and proper province of the bar.” 36 Unauthorized Practice News, 43, 45 (June 1972).

We hold, therefore, that a collection agency can forward accounts to attorneys, if it follows the guidelines we have set out in this opinion.

The agency challenged the prohibition against its accepting employment “from any attorney to recover amounts owed by any person to any other person.” We construe this provision as preventing attorneys from using the agency to assist in collecting accounts which they have accepted for collection. It is not to be viewed as prohibiting an attorney from using a collection agency to recover his own personal debts. Otherwise, the prohibition is valid.

The agency further contends generally that to the extent that its activities constitute the practice of law, these activities are protected under the Constitution. The Association cites the following cases: NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Broth. of RR Trainmen v. Virginia, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964); United Mine Workers of America v. Illinois State Bar Asso., 389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967). We believe these cases are distinguishable from the case at bar.

Having examined each of the agency’s specification of error on cross-appeal, we find none, except as noted. The cause is affirmed, in part, and reversed, in part, with instructions that the order be modified to conform to the holding made herein.

AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED, WITH DIRECTIONS.

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

ON REHEARING

On original deliverance we said: “We believe Dun & Bradstreet states the general rule, which we adopt, and which would prohibit the 5% “follow-up fee.” That sentence has been amended in the original opinion to read as follows: “We believe Dun & Bradstreet states the general rule.”

OPINION MODIFIED: APPLICATION FOR REHEARING OVERRULED.

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


author: OVERTON, Chief Justice.

text:
    Patricia Lynn CAMERON, Petitioner, v. STATE of Florida, Respondent.
    No. 45376.
    Supreme Court of Florida.
    July 8, 1976.
    Rehearing Denied Nov. 15, 1976.
    Robert J. Buonauro, Orlando, for petitioner.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for respondent.
   OVERTON, Chief Justice.

This is a petition for writ of cer-tiorari to review the decision of the Fourth District Court of Appeal reported at 291 So.2d 222 (Fla.App. 4th, 1974). The District Court certified the following question:

“Does the failure to grant a preliminary hearing unto a defendant in a criminal case where there has been an information filed constitute reversible error ?”

We have jurisdiction.

The petitioner was charged by information on December 5, 1972, with possession of marijuana. She subsequently entered a plea of not guilty and on December 21, 1972, filed a motion for preliminary hearing pursuant to Rule of Criminal Procedure 3.122 (1972). The trial court denied the motion and subsequently the petitioner filed a motion to suppress tangible evidence which was also denied. The District Court affirmed without opinion the issues concerning the motion to suppress.

Subsequent to the certification of the question, the Supreme Court of the United States answered the question in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed. 2d 54 (1975). We implemented the decision by amending this Court’s Rule of Criminal Procedure 3.131, 309 So.2d 544 (1975).

The record in this cause concerning the petitioner’s application for bail on appeal reflects that she was not in custody. The denial of a preliminary hearing under the circumstances of this cause was correct and is affirmed.

Accordingly, the writ of certiorari is discharged.

ROBERTS, ADKINS, BOYD and ENGLAND, JJ., concur.

      . Ma.Const., Art. V, 3(b) (3).


author: BY THE COURT.

text:
    THE FLORIDA BAR, Complainant, v. Normon F. SOLOMON, Respondent.
    No. 48850.
    Supreme Court of Florida.
    Sept. 23, 1976.
    Rehearing Denied Oct. 15, 1976.
    Jack F. Durie, Jr., Bar Counsel, Miami, and John A. Weiss, Asst. Staff Counsel, Tallahassee, for complainant.
    Robert L. Achor, and William A. Meadows, Jr., of Rollins, Peeples & Meadows, South Miami, for respondent.
   BY THE COURT.

This matter is here to review the report of a referee in a bar disciplinary matter finding Norman F. Solomon guilty of violating the Code of Professional Responsibility and recommending a one year suspension from practice, with proof of rehabilitation required for readmission. On review of the amended report, Solomon does not challenge the referee’s findings as to guilt, and having reviewed the record independently we conclude that these findings are supported in the record.

Solomon asks us to reduce the recommended discipline from a one year suspension to a public reprimand, on the grounds:

1. that his only misconduct, a 1973 misdemeanor conviction for failing to file a 1969 federal income tax return, occurred at least six years ago;

2. that unrebutted evidence was presented to the referee demonstrating that he has led an exemplary professional life since his income tax conviction; and

3. that in comparable cases before this Court a public reprimand has been issued for the failure to file an income tax return.

The Florida Bar urges that we uphold the referee’s disciplinary recommendation on the grounds:

1. that the time delay from Solomon’s tax conviction until our review of the referee’s amended report was not attributable to delays chargeable to the Bar, but rather arose from protracted proceedings which moved as expeditiously as counsel for both sides would allow; and

2. that prior decisions of this Court have approved suspensions from the practice of law in cases where a conviction for failure to file an income tax return follows prior breaches of professional discipline, a situation which exists here.

We have consistently held that prior disciplinary action is relevant to the imposition of discipline for breach of the Code of Professional Responsibility. E. g., The Florida Bar v. Poller, 203 So.2d 323 (Fla.1967). And see Fla. Bar Integr. Rule, Article XI, Rule 11.06(9)(a)(4). None of the “failure to file” cases cited by Solomon involved prior offenders.

On the other side, we take note of Solomon’s contention that he has demonstrated on the record a showing of fitness to practice law and moral character from the time of his federal tax conviction to date. That period of professional integrity is also relevant. As the Bar’s contentions point to suspension as appropriate discipline for multiple breaches of professional conduct, so too does Solomon’s showing point to mitigation. A showing that an attorney has been contrite, honest, professional and well-behaved during the pendency of disciplinary proceedings against him does not, however, fully abrogate the need for discipline.

As in The Florida Bar v. Childs, 195 So.2d 862 (Fla.1967), we affirm the referee’s finding of guilt and direct that Solomon be suspended from the practice of law for a period of six months, effective December 1, 1976. Additionally, we direct that Solomon be eligible for reinstatement upon showing proof of rehabilitation, application for which may be filed at any time after the expiration of 90 days from the effective date of his suspension. We further direct in this proceeding, and recommend in all future bar proceedings of a similar nature, that The Florida Bar return to this Court with its recommendations for or against the termination of suspension not later than the date on which a Court-ordered suspension would terminate by lapse of time alone.

Costs in the amount of $1,206.26 are hereby taxed against Respondent.

OVERTON, C. J., ROBERTS, BOYD and ENGLAND, JJ., and MILLS, District Court Judge, concur.

      . Solomon was given a private reprimand in 1970 and again in a different matter in 1974. He was also suspended from practice before the U.S. District Court for the Southern District of Florida in 1967 for “willful interference with the administration of justice.” The Bar notes that Solomon also admitted before the referee that he had failed to file federal income tax returns for the years 1966 through 1968.


author: OVERTON, Chief Justice. ENGLAND, Justice ROBERTS, Justice

text:
    Charles H. WEBER, as citizen, taxpayer, and elector of the State of Florida, Appellant, v. Bruce A. SMATHERS, as Secretary of State of the State of Florida, and the Sunshine Amendment, Inc., Intervenor, Appellees.
    No. 50327.
    Supreme Court of Florida.
    Oct. 11, 1976.

      See also, Fla., 338 So.2d 825.
    Hugh M. Taylor, Quincy, of Bryant, Dickens, Franson & Miller, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., James D. Whisenand, Deputy Atty. Gen., William C. Sherrill, Jr., Asst. Atty. Gen., Tallahassee, and Donald M. Middlebrooks, Gen. Counsel, Orlando, for appellee.
    John E. Mathews, Jr., and Jack W. Shaw, Jr., of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for interve-nor.
   OVERTON, Chief Justice.

This cause is before us on appeal from a circuit court order of dismissal with prejudice that directly construed provisions of the Florida Constitution. We have jurisdiction.

On July 29, 1976, appellee/defendant Bruce Smathers, Secretary of State, certified that enough electors had signed a petition to place on the ballot for the upcoming general election the following proposed amendment to the Florida Constitution:

“Article II, Section 8 is created to read:
“Ethics in Government — A public office is a public trust. The people shall have the right to secure and sustain that trust against abuse. To assure this right:
“(a) All elected constitutional officers and candidates for such offices and, as may be determined by law, other public officers, candidates, and employees shall file full and public disclosure of their financial interest.
“(b) All elected public officers and candidates for such offices shall file full and public disclosure of their campaign finances.
“(c) Any public officer or employee who breaches the public trust for private gain and any person or entity inducing such breach shall be liable to the state for all financial benefits obtained by such actions. The manner of recovery and additional damages may be provided by law.
“(d) Any public officer or employee who is convicted of a felony involving a breach of public trust shall be subject to forfeiture of rights and privileges under a public retirement system or pension plan in such manner as may be provided by law.
“(e) No member of the legislature or statewide elected officer shall personally represent another person or entity for compensation before the government body or agency of which the individual was an officer or member for a period of two years following vacation of office. No member of the legislature shall personally represent another person or entity for compensation during term of office before any state agency other than judicial tribunals. Similar restrictions on other public officers and employees may be established by law.
“(f) There shall be an independent commission to conduct investigations and make public reports on all complaints concerning breach of public trust by public officers or employees not within the jurisdiction of the judicial qualifications commission.
“(g) This section shall not be construed to limit disclosures and prohibitions which may be established by law to preserve the public trust and avoid conflicts between public duties and private interests.
“(h) Schedule — On the effective date of this amendment and until changed by law:
“(1) Full and public disclosure of financial interests shall mean filing with the secretary of state by July 1 of each year a sworn statement showing net worth and identifying each asset and liability in excess of $1,000 and its value together with one of the following:
“a. A copy of the person’s most recent federal income tax return; or
“b. A sworn statement which identifies each separate source and amount of income which exceeds $1,000. The forms for such source disclosure and the rules under which they are to be filed shall be prescribed by the independent commission established in subsection (f), and such rules shall include disclosure of secondary sources of income.
“(2) Persons holding statewide elective offices shall also file disclosure of their financial interests pursuant to subsection (h)(1).
“(3) The independent commission provided for in subsection (f) shall mean the Florida Commission of Ethics.”

Appellant/plaintiff Charles S. Weber on September 23, 1976, filed suit to enjoin ap-pellee Smathers from doing the administrative acts necessary to put the Sunshine Amendment before the people for their approval or rejection. It was dismissed with prejudice. Appellant appeals and contends that the proposed amendment violates Article XI, Section 3, of the Florida Constitution, because it embraces more than one subject. He further contends it violates Article XI, Sections 3 and 5, because it attempts to revise several articles other than the one it purportedly amends. Finally, appellant contends the appellee violated Section 101.161, Florida Statutes, when he approved the wording of the substance of the amendment that it is to appear on the ballots.

This Court has been presented, on a number of previous occasions, with the critical decision of determining whether a constitutional amendment may be properly placed on the ballot. Previous decisions of this Court have removed amendments from the ballot, but we have historically declined to interfere with the right of the people to vote upon a proposed constitutional amendment absent a showing in the record that the proposal is “clearly and conclusively defective.” Goldner v. Adams, 167 So.2d 575 (Fla.1964). We must keep in mind the words of Mr. Justice Terrell in Gray v. Golden, 89 So.2d 785, 790 (Fla.1956), wherein he stated:

“. . . [W]e are dealing with a constitutional democracy in which sovereignty resides in the people. It is their Constitution that we are construing. They have a right to change, abrogate or modify it in any manner they see fit so long as they keep within the confines of the Federal Constitution. The legislature which approved and submitted the proposed amendment took the same oath to protect and defend the Constitution that we did and our first duty is to uphold their action if there is any reasonable theory under which it can be done. This is the first rule we are required to observe when considering acts of the legislature and it is even more impelling when considering a proposed constitutional amendment which goes to the people for their approval or disapproval. . .”

There is no showing by the appellant Weber that the instant amendment is clearly and conclusively defective. Neither the wisdom of the provision nor the quality of its draftsmanship is a matter for our review.

It is contended by the appellant that Adams v. Gunter, 238 So.2d 824 (Fla.1970), which expressly required the amendment of thirty-three other constitutional sections, and Rivera-Cruz v. Gray, 104 So.2d 501 (Fla. 1958), which involved a “daisy chain” of fourteen interdependent amendments, apply and are controlling in the instant case. We disagree. The proposed amendment is sufficiently complete within itself, requir-. ing no other amendment to effect its purpose.

We hold the provisions of the proposed amendment are sufficiently related to withstand an attack that they embrace more than one subject. Further, the proposed amendment, if adopted, will not conflict with other articles and sections of the Constitution, and the wording that is to appear on the ballot is legally adequate.

The order of the trial court is affirmed. In view of the emergency nature of this proceeding, rehearing is dispensed with.

It is so ordered.

ADKINS, BOYD and HATCHETT, JJ., concur.

ENGLAND, J., concurs with opinion in which ADKINS and SUNDBERG, JJ., concur.

ROBERTS, J., dissents with opinion.

ENGLAND, Justice

(concurring).

The language which is pivotal to our decision in this case, reciting that an amendment or revision of the Constitution by initiative “shall embrace but one subject” , obviously means different things to different, reasonable people. Appellants view it narrowly and suggest that the proposed amendment embraces at least five “subjects” ranging from financial disclosure by public officials to limitations on lobbyists and civil penalties on non-governmental employees. Appellees view it broadly and suggest the amendment embraces only “ethics in government”, one subject. Neither offers us any precise historical data as to why this limiting phraseology was selected when it was adopted by the Legislature and submitted to the people for their approval in 1972.

In the absence of guidance from the framers of the phrase, it becomes our responsibility to select one or the other interpretation not only looking back on its development as best we can and with a view to its applicability in this case, but as well with a concern for future cases where the right of initiative may be exercised. More for this last reason than for the others, I deem it appropriate to express my understanding of the term “one subject” in this provision of the Constitution.

When Article XI of the 1968 Constitution was adopted, Section 1 authorized legislative-sponsored changes to a “section”, to one or more “articles”, or to “the whole” of the Constitution; Section 2 authorized “revision of [the] constitution” or “any part” in ten years and each twentieth year thereafter; and Section 4 authorized a “revision of the entire constitution” by constitutional convention upon petition of the people. Section 3 at that time authorized “amendments to any section” of the Constitution by initiative. Following this Court’s decision in Adams v. Gunter, 238 So.2d 824 (Fla.1970), which distinguished an amendment from a revision, Section 3 was amended to authorize the revision or amendment “of any portion or portions” of the Constitution, provided that the revision or amendment was limited to “one subject”.

As I construe the 1972 change in light of what was present in the Constitution before, what was retained in other sections, and Adams, it seems to me obvious that the 1972 change was designed to enlarge the right to amend the Constitution by initiative petition. The choice of the word “portion”, however, could not have been intended to be so sweeping as to authorize an initiative revision of the “whole” or the “entire” Constitution, considering that the people had given the Legislature and had themselves retained that broader power in Sections 1 and 4. It follows, I believe, that the power of initiative was consciously extended to multi-section and multi-article revisions short of a complete reworking of the entire document.

From this I conclude that the “one subject” limitation was selected to place a functional, as opposed to locational, restraint on the range of authorized amendments. We are not advised what functional limitation might have been intended, but surely in light of 1968 concerns over populist overhauls by non-deliberative petitions we can deduce an intention to restrain initiative in a manner comparable to restraints on the Legislature. The same term, of course, appears in Article III, Section 6, which states that laws developed in the Legislature “shall embrace but one subject.” It makes a great deal of sense to me to view the same phraseology in the Constitution, operating in both cases as a functional limitation on our written laws (one statutory, the other organic), as having the same meaning. At least no justification for a differentiation is here made to appear.

If it is reasonable to conclude that the limitation in Section 3 of Article XI parallels that in Section 6 of Article III, then this case becomes easier to resolve. There is gloss aplenty on the “one subject” limitation for legislation, and we know that widely divergent rights and requirements can be included without challenge in statutes covering a single subject area. On this basis I have no trouble upholding the amendment’s concern with “ethics in government” as a single subject suitable for initiative.

Perhaps, as Justice Roberts infers, the. Constitution will be subject to potentially devastating effects from multiple initiative petitions having subjects framed as broadly as the mind can devise. There remains to protect against that, of course, the very formidable procedural requirements for sustaining an initiative drive. But beyond even that, the simple fact is that in 1972 the people of Florida made it clear that they no longer wanted their initiative rights confined in the 1968 straight jacket (the “any section” limitation), and the wisdom of their decision is simply irrelevant to our task.

ADKINS and SUNDBERG, JJ., concur.

ROBERTS, Justice

(dissenting).

I respectfully dissent for the reasons stated in Adams v. Gunter, 238 So.2d 824 (Fla. 1970), which enjoined off the ballot a proposed constitutional amendment by petition to provide for a unicameral legislature; nor do I think the rationale of that decision was materially changed by the 1972 amendment to Section 3, Article XI, Florida Constitution. The Gunter opinion was authored by the former distinguished Justice E. Harris Drew and concurred in by the late Justice Campbell Thornal and also the current Justice James C. Adkins and Justice Roberts. If this is to be a stare decisis Court, I cannot find any logical reason to recede from that opinion so soon after it was adopted. The rapid abandonment of former precedents of the Court not only confuses the law but has the ultimate effect that the case law of Florida is like a railroad ticket, “Good for one trip only and subject to change at any moment.” I do not for one moment question the sincerity of the Governor in sponsoring the so-called Sunshine Amendment nor the nobleness of his purpose. Like “motherhood,” every right thinking person favors honesty in government but, is the popular name of a popular subject sufficient reason for the Court to blind itself to the clear mandate of the Constitution of 1968 so recently adopted? I think not. There is little doubt that it was the clear intent of the authors of the initiative provision and its amendment that it be more restrictive and more difficult to amend the Constitution by the initiative method rather than Legislative Resolution or a Constitutional Convention in order to prevent the disturbance of other sections of the charter by taking a popular subject as a vehicle and do damage to other sections in the fine print. It should be more difficult by the initiative. Where an amendment is by Legislative Resolution or Resolution of a Constitutional Convention, there are always public hearings, committee studies, and public debate in developing the format of the proposal, whereas, under the initiative section involved here, it only takes one person, not even required to be a resident of the State, nor learned in the law, to pencil an amendment, giving it a popular name, get the signatures, and place it on the ballot without any such committee action, study or debate. The late and revered Justice Terrell once said, “It is hard to amend the Constitution and it ought to be hard.”

Significantly, the Constitution of the United States in 200 years has been amended only 26 times, whereas, the Constitution of Florida, carefully prepared following a two-year study and which became effective as recent as 1969, has already been amended 14 times with nine proposed amendments on the ballot in November, 1976. If all of these should be adopted, the recent 1968 Constitution of Florida would have been amended 23 times in seven years in contrast to the Constitution of the United States being amended only 26 times in 200 years. We can well take judicial notice that there is already on the statute books of this State, a law recently enacted by the Legislature, after committee study, public hearings, and floor debate, which is as protective of the people as the proposed amendment. We also take judicial notice that there will be another constitutional revision in less than two years and if further restriction is needed beyond that presently provided by the Legislature, it can be done at that time.

I close this dissent with a pronouncement by the late Justice Campbell Thornal in Adams v. Gunter, supra, in which he said:

“It would be easy to do as appellee urges us to do by transferring to the electorate the burden of making our decisions on an idealistic pronouncement ‘to let the people decide.’ This, however, is not, in my view, the fulfilment of our judicial responsibility. It is often much more difficult for us as judges to make a stand and ‘do the people’s will’ when the responsibility is clearly ours under the law. It is the sort of responsibility which frequently we would as soon not have but which, nevertheless, we must assume as judicial officers.”

      . Art. V, § 3(b)(1), Fla.Const.

      . See Adams v. Gunter, 238 So.2d 824 (Fla. 1970); Goldner v. Adams, 167 So.2d 575 (Fla. 1964); Rivera-Cruz v. Gray, 104 So.2d 501 (Fla. 1958); Pope v. Gray, 104 So.2d 841 (Fla.1958); Gray v. Golden, 89 So.2d 785 (Fla. 1956); City of Coral Gables v. Gray, 154 Fla. 881, 19 So.2d 318 (1944); Collier v. Gray, 116 Fla. 845, 157 So. 40 (1934); Gray v. Moss, 115 Fla. 701, 156 So. 262 (1934); Gray v. Winthrop, 115 Fla. 721, 156 So. 270 (1934); Gray v. Childs, 115 Fla. 816, 156 So. 274 (1934); and, Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963 (1912).

      . See Adams v. Gunter; Rivera-Cruz v. Gray; City of Coral Gables v. Gray; Gray v. Childs; Crawford v. Gilchrist; supra note 2.

      . Gray v. Childs, 115 Fla. 816, 156 So. 274 (1934).

      . Art. XI, § 3, Fla.Const.

      . In fairness to counsel it should be said that the time available to develop arguments and resource material germane to this case was extremely limited. The suit was brought in late September and all parties knew that it would be necessary to resolve this controversy before approval, preparation and distribution of ballots for the November general election. As a consequence neither counsel nor the Court have had an opportunity to develop the case as thoroughly as they might choose.

      . See Justice Roberts’ dissenting opinion in this case.

      . Appellant notes that this provision also allows legislation to embrace matters “properly” connected with the one subject, but that Article XI, Section 3 also allows initiative amendments to embrace only matters “directly” connected with the one subject. This distinction is not critical here, however, since the debate between the parties involves the number of “subjects” in the proposal before us and not its peripheral “matters”.

      . See, among others, Bd. of Pub. Inst. of Broward Cty. v. Doran, 224 So.2d 693 (Fla.1969); State ex rel. Landis v. Thompson, 120 Fla. 860, 163 So. 270 (1935); Fine v. Moran, 74 Fla. 417, 77 So. 533 (1917); Ex Parte Knight, 52 Fla. 144, 41 So. 786 (1906). Where provisions in the present constitution closely follow those in predecessor constitutions it is proper to refer to decisions interpreting the earlier documents. In re Advisory Opinion to the Governor, 112 So.2d 843 (Fla. 1959).

      .Note, for example, the range of filings, penalties, rights limitations and forfeitures encompassed in the corporations law (Chapter 75-250, Laws of Florida) and the probate law (Chapter 75-220, Laws of Florida) recently adopted by the Legislature.