author: INZER, Presiding Justice,

text:
    Charles Ray JOHNSON v. STATE of Mississippi.
    No. 49703.
    Supreme Court of Mississippi.
    June 1, 1977.

      Paul Kelly Loyacono, Loyacono & Field, Oscar P. LaBarre, Vicksburg, for appellant.
    A. F. Summer, Atty. Gen., by Billy L. Gore, Special Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, SMITH and BROOM, JJ.
   INZER, Presiding Justice,

for the Court:

Appellant Charles Ray Johnson appeals from the Circuit Court of Warren County wherein he was indicted for murder but was convicted of manslaughter and sentenced to serve a term of eighteen (18) years in the Mississippi State Penitentiary.

Appellant was indicted for the January 1, 1976, murder of Norman Williams, his fifty-four-year-old cousin and owner of a small grocery store known as “Norman’s Grocery.” Eighteen-year-old Johnson admitted killing Williams by strangulation, but claims self-defense in that Williams was attempting to commit an act of sodomy upon his person.

The deceased’s body was discovered the next morning by a bakery routeman while making his usual delivery. Sheriff Carl Barrett was the first officer to arrive at the scene of the crime. He observed the unclothed decedent'lying on his back with his head a little off the edge of the crumpled bed. An inspection of the grocery store area adjacent to the living quarters of the deceased revealed that the locks to the cash register were missing and the drawer was open. No money was found in the store at that time. Williams’ automobile was also missing from the premises, but was quickly located in front of a local motel. Johnson was arrested and, when asked why he had killed Norman Williams, the appellant replied that the decedent had tried to have sexual relations with him so he choked Williams until he stopped moving. After Johnson’s arrest, some sixteen dollars in pennies was found beneath the mattress in the motel room. The appellant also produced the car keys to Williams’ automobile.

Dr. Leo J. Scanlon, pathologist, performed the autopsy on the decedent. Dr. Scanlon testified that the victim’s larynx had been totally crushed which caused death by instantaneous asphyxiation. The decedent would have lost consciousness approximately thirty to forty seconds prior to the fatal crushing and, in the interval between the crushing and the blackout, he would have been physically weakened and unable to resist an attack. The blood alcohol level of the victim was .Í45 at the time of autopsy.

Johnson took the stand in his own behalf and his version of the facts on the night in question are as follows. He testified that on the evening of January 1, 1976, he telephoned Williams to inquire about his Christmas, and Williams invited Johnson to come out and have a drink with him. The decedent offered to drive out and get Johnson, which he did around 8:30 or 9:00 p. m. They watched a football game on television and drank a large quantity of bourbon and beer. Williams showed no signs of intoxication, but appellant stated that he himself was intoxicated. Johnson began feeling dizzy and nauseous and got into bed, after first removing his pants and shirt. Thereafter, he passed out. The next thing Johnson remembered is that Williams was attempting to commit an unnatural act upon his person. He became frightened, knocked Williams away, and a struggle ensued between the two men. Johnson then stated that he choked Williams “until he quit fighting me. He quit fighting me and I let him alone.” He then ran into the store, stole the bag of pennies, fled in the decedent’s automobile.

The state introduced evidence to contradict the testimony of the defendant. A fifteen-year-old customer of Norman’s Grocery testified that on the evening of January 1,1976, at approximately 10:30 or 11:00 he went to the grocery to make several small purchases. Because the store was closed, he went around to the back to the living quarters and Williams let him in. This witness observed Williams sitting on the bed, fully clothed, reading a newspaper and watching television. The news was just going off the air. He went into the grocery part of the building, made his purchases, talked to Williams for a few minutes and then left. He neither observed nor heard anyone else in either part of the building. The next morning he learned that Williams was dead.

Argument is made by appellant that the Weathersby Rule should be the controlling law in the case at bar. This rule, as set out in Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933), states 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)

This rule simply makes it mandatory for the court and jury to accept the testimony of the defendant who testifies that the defendant acted in self-defense where there is no testimony to contradict his version of the homicide, and where there are no physical facts or evidentiary circumstances on which a contrary finding could be reasonably predicated. Gordan v. State, 258 So.2d 752 (Miss.1972).

On the other hand, if 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. Carroll v. State, 196 So.2d 878 (Miss.1967).

As we view the record, there are numerous contradictions between the testimony of the State’s witnesses and the testimony of appellant, as well as physical facts which would preclude the application of the Weathersby Rule. Additionally, in viewing the scene of the crime from the exhibit photographs, such evidence tends to negate appellant’s version of the affray — that a violent death struggle took place in the room prior to the homicide. Moreover, the actions of the appellant after the crime were not consistent with an innocent man. Johnson ransacked the grocery store, stole all available money, fled in decedent’s automobile, and never reported the incident to the authorities. In McElwee v. State, 255 So.2d 669 (Miss.1971), this Court stated the following:

It is true that appellant was the only eye witness to the shooting, but his own voluntary statement to the sheriff and the investigator to some extent contradicted his testimony given at the trial. These contradictions together with the fact that appellant immediately left the scene and never reported the incident to the sheriff or any one else, were sufficient to take the case out of the Weathersby rule. (255 So.2d at 671)

We therefore, hold that Johnson’s guilt or innocence was a matter of fact and a question for the jury.

Next, appellant contends that to be sodomized unwillingly is to “suffer great bodily harm” and, therefore, the killing was within the meaning of the justifiable homicide statute. § 97-3-15, Miss. Code Ann. (1972). Argument by appellant is not persuasive, but even if it were, the question of the reasonableness of the force used to repel the sexual attack then becomes a jury issue. See Burns v. State, 228 Miss. 254, 87 So.2d 681 (1956). In the case at bar, the jury undoubtedly passed upon this issue and reduced the murder indictment to a conviction of manslaughter.

Appellant contends that it was reversible error for the sheriff to judge for the jury the actions of the defendant/appellant. The colloquy complained of took place during direct examination of Sheriff Paul Barrett when the witness was reiterating the conversation which took place between himself and Johnson immediately after the arrest. Any alleged error was cured with the granting of Instruction D-2 which instructed the jury that the appellant was to be judged in the light of the surrounding circumstances then apparent to him.

Next appellant cites three instances wherein the trial judge allegedly assisted the prosecution to his prejudice, none of which has any merit. The rule is aptly stated in Hannah v. State, 336 So.2d 1317 (Miss.1976), “There is no way a judge can conduct a trial in silence, nor do we think it can be logically argued that his every word is a comment on the evidence.” (336 So.2d at 1323.)

Argument is made that during the trial, certain events brought to light an intentional breach of the court’s order to produce and that the action of the prosecution and its witnesses in withholding several photographs was a violation of their oath as prosecutors. Since the photographs were found during trial and introduced into evidence, we are of the opinion that appellant suffered no prejudice.

Lastly, appellant contends that the trial court erred in allowing impeachment of the defendant on a nonmaterial issue. Mr. W. M. Connerly was called as a rebuttal witness by the prosecution to refute Johnson’s testimony that he had not seen Williams during the holidays until the day of the homicide. Over objection, Con-nerly testified that he saw appellant at Norman’s Grocery on December 26, 1975, and that appellant informed him that he was spending a few days with his cousin. Connerly’s testimony was offered to rebut Johnson’s statement and we cannot say that the trial judge abused his discretion in admitting this testimony. Complaint is also made that this witness remained in the courtroom during trial. We have repeatedly held that the enforcement of the rule is a procedural matter solely within the discretion of the judge. Butler v. State, 320 So.2d 786 (Miss.1975).

After a careful examination of the record, we find no reversible error and for the reasons stated this case is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author:
EMBRY, Justice.
      JONES, Justice

license: Public Domain

text:
    John A. UNZICKER et al. v. STATE of Alabama et al.
    SC 1945.
    Supreme Court of Alabama.
    May 6, 1977.
    Rehearing Denied June 24, 1977.
    James W. Tarlton, III, and Raymond A. Corcoran, Mobile, for appellants.
    William J. Baxley, Atty. Gen., and Lucian L. Smith, Jr., and Robert A. Macrory, Asst. Attys. Gen., for appellees George C. Wallace, Governor of Ala., and the Ala. Dept, of Conservation and Natural Resources.
   EMBRY, Justice.

This appeal is primarily concerned with whether or not the action is one against the State and therefore prohibited by Article 1, § 14, Constitution of 1901. We hold it is not prohibited as to other defendants than the State and reverse the trial court for granting motions to dismiss of those other defendants.

Under threat of condemnation, Alice Unzicker, a 79 year-old widow, entered negotiations with the State of Alabama through its Highway Department, to convey a right-of-way across property she owned in fee simple located in Mobile County. The written agreement, to deed a right-of-way, signed by Mrs. Unzicker, in 1964, provided in pertinent part:

“1. That a certain tract of land known as Tract Number 63, a description of which is attached hereto and made a part hereof, shall be deeded by the party of the second part to the party of the first part for the purpose of construction of a public road.
“2. The party of the first part shall pay to the party of the second part the sum of $13,055.00 Dollars upon the proper execution and delivery of a deed granting right-of-way over and across said tract free of all encumbrances, except as indicated in Paragraph 3 and/or 4 hereof.” (emphasis supplied).

Subsequently, in the same year, Mrs. Unzicker executed a deed supplied by the State, through its Highway Department, conveying a fee simple interest in Tract 63. The State paid the grantor $13,055, requested the tract be stricken from the condemnation proceedings and it was. Mrs. Unzicker died in 1967, leaving a will in which she devised all her real property to two of the plaintiffs in this case, John A. Unzicker and William L. Unzicker, Jr. In 1971, William Unzicker, Jr., conveyed, by deed, a V6th interest each in this property to William Un-zicker, III, Patricia Unzicker, and Jane and David Boyd. The four last-named persons are also plaintiffs to this action. In 1972, the State of Alabama, through its Commissioner of Conservation, Claude Kelley, executed an oil, gas and mineral lease on the property to C. Barry Greer who later assigned the lease to Getty Oil Company.

The Unzickers filed their action seeking a declaratory judgment to the effect that: the deed from Alice Unzicker to the State be construed to reflect that the State acquired only a right-of-way or easement; that plaintiffs are the fee simple owners of all the oil, gas and minerals in said property; that Tit. 19, §§ 1, et seq., Code, be construed so as to permit the State of Alabama in the exercise of eminent domain to acquire only so much of an estate as may be reasonably necessary; and the same statute is unconstitutional insofar as it permits the acquisition of a fee simple title.

The action was filed against the State of Alabama, Getty Oil Company, Claude Kelley as Commissioner of Conservation, George C. Wallace as Governor, and Ray Bass as State Highway Director. All defendants filed motions to dismiss, all were granted, either initially or on motions to reconsider. No evidence was heard by the court. Plaintiffs appeal.

There are five questions to be dealt with on this appeal: 1. Is the action against the State and therefore prohibited by § 14, Art. 1, Const, of 1901? 2. May the State condemn or purchase, in fee, real property for road purposes? 3. Under the allegations of their complaint, are plaintiffs entitled to attempt proof of fraud practiced upon their predecessor in title? 4. Do the pleadings show that plaintiffs have no standing to maintain the action? 5. Do the pleadings show the action is barred by the statute of limitations or by application of the doctrine of laches?

Two, three, four and five present genuine issues of material facts raised by the pleadings, that can be resolved only by trial of those issues and cannot be disposed of on motions to dismiss. Bowling v. Pow, 293 Ala. 178, 301 So.2d 55 (1974). That being true, and since the action against other parties than the State is not one against the State, there are no valid grounds to support the trial court’s dismissal of the complaint; therefore we reverse.

Article 1, § 14, Constitution of Alabama of 1901 states:

“That the State of Alabama shall never be made a defendant in any court of law or equity.”

As a general proposition, an action involving property in which the State has a definite right or interest and in which a decree rendered would bind the State, is one against the State and cannot be maintained without its consent. Aland v. Graham, 287 Ala. 226, 250 So.2d 677 (1971); Southall v. Stricos Corporation, 275 Ala. 156, 153 So.2d 234 (1963). To the extent that the State of Alabama is impleaded as a defendant in this action, the action is prohibited by the Constitution. But, in a proper case, this same immunity will not extend to the officers of the State acting in their representative capacities.

In their complaint plaintiffs state:

“This is an action arising under the Declaratory Judgments Act, Code of Alabama, Title 7, Sections 156, et seq. to determine the rights of the parties as set forth hereinafter.
# * * * * *
“Plaintiffs aver * * * that the acquisition of said [Mrs. Unzicker’s] property by the State of Alabama was pursuant to the right of eminent domain set forth in Code of Alabama, Title 19 * * * that the acquisition of a fee simple title exceeded the authority granted the State of Alabama for the acquisition of rights of way * * * that if the State of Alabama were permitted to acquire a fee simple title * * * such action would constitute a fraud on the grantor in said deed * * * ”

With respect to the oil, gas and mineral lease executed by Claude Kelley, as Commissioner of Conservation, and approved by Honorable George C. Wallace, as Governor, plaintiffs alleged their acts “ * * * constituted an illegal assertion * * * of a purported claim by them on behalf of the State * * *. The acts of the Defendants were beyond the scope of their authority and under a mistaken interpretation of law governing eminent domain * * * and constituted acts not within their authority and which were injurious to the rights of others.” They further contend the Eminent Domain Statute was unconstitutionally applied so as to amount to a taking of property without due process of law.

While the State itself may not be made a party to such action, it does not necessarily follow that its officers, Ray Bass, Claude Kelley and Governor Wallace, in their respective capacities, are also immune. The essence of plaintiffs’ complaint is that these officers of the State acted fraudulently, in bad faith, beyond their authority, or acted under a mistaken interpretation of the law. Such allegations bring this case within those not protected by Section 14 of the Constitution. Wallace v. Board of Education of Montgomery Co., 280 Ala. 635, 197 So.2d 428 (1967); Engelhardt v. Jenkins, 273 Ala. 352, 141 So.2d 193 (1962); Finnell v. Pitts, 222 Ala. 290, 132 So. 2 (1930).

Defendant Getty Oil Company’s motion to dismiss was among those granted. As this is an action for declaratory judgment to determine the rights of parties under a deed to the land on which the lease was executed, and to declare that lease void, then Getty Oil Company, as assignee of the lease, possesses a material interest in the subject matter of the suit sufficient to make Getty Oil a proper party to the action. Tit. 7, § 166, Code of Ala. (1940).

Motion to dismiss the State of Alabama as party defendant was properly granted. Motions to dismiss the other defendants were improperly granted.

REVERSED AND REMANDED.

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

JONES, J., dissents.

JONES, Justice

(Dissenting):

I respectfully dissent.

The State of Alabama should not be dismissed as a defendant. I agree with the majority opinion that Art. 1, § 14, of our Constitution prohibits the naming of the State as a defendant in a law suit. This section, however, if applied in the instant case, will result in a direct conflict with both §§ 13 and 23 of Art. 1, Constitution of Alabama.

§ 23 provides that the State’s right of eminent domain shall not abridged, but private property shall not be taken without just compensation. To follow the majority’s rationale would allow the State to en-largen, and abuse, its inherent power of condemnation without fear of legal recourse. Indeed, if the allegations of the plaintiff stated in the complaint are taken as true, that is what happened here.

Because this is an appeal from a motion to dismiss (Rule 12(b)(6)), we are required to treat the allegations of the complaint as true; and, if true, the State has not only broadened beyond constitutional limits its power of eminent domain, but it has also violated the due process of law requirement as set out in Art. 1, § 13. This fundamental concept of our law states:

“That all courts shall be open; and that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay.”

It is plaintiffs’ contention that their predecessor in title, Mrs. Unzicker, conveyed this property to the State under threat of condemnation. The State’s constitutional right to take the property was limited to that interest necessary for a public highway or right of way. This was no arm’s length sale. Had title passed through the condemnation proceeding, the State could not have acquired title to any interest beyond that necessary and incident to the public taking. Thus, contend the plaintiffs, the State’s enlargement of this interest (that is, a fee simple title to include oil and mineral rights) was acquired through the wrongful or mistaken conduct of agents of the State.

If these allegations are true, and they must be so considered for the purpose of this review, either the State of Alabama is subject to being made a party defendant or all of the appellees (the State and its agents) are entitled to be dismissed. And this for the reason as stated in Southall v. Stricos Corp., 275 Ala. 156, 153 So.2d 234 (1963):

“Section 14 of the Constitution provides that the State shall never be made a defendant in any court of law or equity. The State cannot consent to such a suit. Section 14 not only prevents a suit against the State, but against its officers and agents in their official capacity, when a result favorable to the plaintiff or complainant would directly affect a [contrary] or property right of the State.”

Mr. Justice Merrill, speaking for the Court in Aland v. Graham, 287 Ala. 226, 250 So.2d 677 (1971), relied on Southall in dismissing a suit against various agents of the State. There, he outlined four general categories of actions that do not come within the prohibition of § 14:

“(1) Actions brought to compel State officials to perform their legal duties . (2) Actions brought to enjoin State officials from enforcing an unconstitutional law ... (3) Actions to compel State officials to perform ministerial acts . (4) Actions brought under the Declaratory Judgments Act, Tit. 7, § 156 et seq., Code 1940, seeking construction of a statute and how it should be applied in a given situation. . . . ”

The dilemma is obvious. § 14 of the State Constitution prohibits making the State a party and our case law applies this prohibition,- except in four general categories of actions, to State officials. Literally construed, then, these plaintiffs cannot proceed against either the State or state officials because a result favorable to the .plaintiffs would directly affect a property right of the State.

The majority opinion would allow the suit to proceed only against the individual defendants on the precedent of Engelhardt v. Jenkins, 273 Ala. 352, 141 So.2d 193 (1962). The Jenkins’ Court upheld the right of a property owner to enjoin the State Highway Director from the taking of private property without payment of compensation, stating: “ . . .no sort of rationale can bring the case within the ban of § 14 of our constitution, prohibiting suits against the State or its agencies.” The State was not made a party in Jenkins, only Englehardt, as Highway Director.

On their face, then, Aland and Jenkins are incongruous. But they need not be so construed. The exceptions set out in Aland are exceptions to the general rule that where the State cannot be made a party, neither can its officers or agencies if the result is to affect a property right of the State. If the situation posed in Jenkins comes within this rule and the exceptions are hot applicable (clearly the case because title to property claimed by the State was the subject matter of the suit), the holding in Jenkins is incompatible with Aland. But this presupposes that Jenkins fits the rule. We need not concern ourselves with the exceptions to the rule unless the case falls within the scope of the rule in the first instance, and Jenkins does not so fall.

There are two rationales, equally persuasive, for exempting condemnation claims from the immunity umbrella of § 14, Alabama Constitution.

(1) The first may be called the “accommodation” theory. Where two constitutional rights are invoked which conflict, one must of necessity give way to the other. The choice is simple. Under our form of government, the power of the State must accede to the constitutional guarantee of individual citizens, the very source of governmental power. While our State Constitution is apparently ample to insure the property owner an adequate remedy against the State for abuse of the power of eminent domain, we could not escape the same conclusion under the “due process” clause of the Fourteenth Amendment of the United States Constitution.

That the power of the sovereign (or authorized private persons or corporations) to take private property is awesome and greatly subject to abuse was recognized early in both Federal and State cases.

The United States Supreme Court in United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171 (1882), stated:

“The citizen here knows no person, however near to those in power, or however powerful himself, to whom he need yield the rights which the law secures to him when it is well administered. When he, in one of the courts of competent jurisdiction, has established his right to property, there is no reason why deference to any person, natural or artificial, not even the United States, should prevent him from using the means which' the law gives him for the protection and enforcement of that right.
i( ‡ ‡ *
“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest are creatures of the law, and are bound to obey it.
ii * * *
“Shall it be said, in the face of all this, and of the acknowledged right of the judiciary to decide in proper cases, statutes which have been passed by both branches of Congress and approved by the President to be unconstitutional, that the courts cannot give a remedy when the citizen has been deprived of his property by force, his estate seized and converted to the use of the government without lawful authority, without process of law, and without compensation, because the President has ordered it and his officers are in possession?
“If such be the law of this country, it sanctions a tyranny which has no existence in the monarchies of Europe, nor in any other government which has a just claim to well-regulated liberty and the protection of personal rights.”

This Court in East and West Railroad Company of Alabama v. East Tennessee, Virginia & Georgia Railroad Company, 75 Ala. 275 (1882), observed:

“The owner of the land has the right to say that, unless they keep within the strict limits prescribed by law, they shall not disturb him in the possession and enjoyment of his property. The power is so capable of abuse and those who are invested with it are often so prone to its arbitrary and oppressive exercise, that a court of equity, without inquiring whether there is irreparable injury, or injury not susceptible of adequate redress by legal remedies, will intervene for the protection of the owner.”

As stated in Birmingham Traction Co. v. Birmingham Railway and Electric Co., 119 Ala. 129, 24 So. 368 (1898):

“Whenever any person, corporation or authority vested with the power of eminent domain, undertakes to exercise such power, by appropriating private property to its own use or benefit, without first complying with the constitution, a court of equity has jurisdiction to enjoin such undertaking, until compensation has been first paid to the owner . . . .”

Witness further the following language from the early case of Smith v. Inge, 80 Ala. 283 (1885):

“The State ... in the exercise of its right of eminent domain, could not constitutionally condemn private property to such uses, without a regular judgment of condemnation, in a proper judicial proceeding, first making payment of just compensation to the owner. Such is now, and has always been the express or implied requirement of our Constitution.”

Rationally, there is a second basis for excepting the State from § 14 in claims arising out of the State’s exercise of its right of condemnation. This rationale partakes of certain common elements of the doctrine of estoppel. The State cannot, on the one hand, proceed to take private property as that right is constitutionally proscribed; and, on the other hand, invoke another constitutional provision to avoid liability for its violation of the very proscription imposed in the exercise of its right to take the property. In other words, having invoked one constitutional right — the right to take private property — the State cannot now invoke another constitutional right to avoid a remedy for its abuse in the exercise of the first right.

These two lines of reasoning — though considered separately for conceptual purposes, merge into, and proceed from, a single premise: Constitutionally guaranteed rights are viable and meaningful only where the law provides an adequate remedy for their enforcement. In the case at bar, the constitutional right in issue would be rendered a shambles if the suit cannot be maintained against the State and its agencies.


author: MADDOX, Justice. JONES, Justice

text:
    Myrtle DAVIS v. STATE of Alabama et al.
    SC 2025.
    Supreme Court of Alabama.
    May 6, 1977.
    Rehearing Denied June 24, 1977.

      Donald M. Phillips of Henley & Clarke, Northport, for appellant.
    Lucian L. Smith, Jr., and John W. Hart-ley, Jr., Montgomery, for State of Ala. and Ray D. Bass, Director of the State Highway Dept.

      John A. Russell, III, of Hubbard & Wal-drop, Tuscaloosa, for City of Northport, Ala.
   MADDOX, Justice.

This is an appeal by plaintiff, Mrs. Myrtle Davis, from a summary judgment granted in favor of defendants, the State of Alabama, Ray D. Bass, State Highway Department, and the City of Northport.

Mrs. Davis sought $25,000 damages for the impairment of her right of access, caused by a lowering of the street in front of her home. She had claimed that right of access is a property right which could not be taken without just compensation. The only question we decide is the appropriateness of summary judgment.

In 1974, the State began a highway project (No. F-95-11) to rework Bridge Avenue, later named Lurleen B. Wallace Boulevard, in Tuscaloosa and Northport to convert the avenue from two to four lanes. Bridge Avenue was to be tied in at 19th Street in Northport. Both cities passed resolutions acknowledging the need for the road improvement. In order to provide sufficient room to change Bridge Avenue from two to four lanes, an additional right of way was required. Also, some of the city streets in Northport which intersected Bridge Avenue were in a grade or incline which necessitated reworking these streets to lower grades to accommodate the new Lurleen B. Wallace Boulevard.

Mrs. Davis owned a house and lot on 17th Street. Although there was no construction on 17th Street, it was necessary to lower 17th Street to meet the grade of Bridge Avenue. Prior to the construction along Bridge Avenue, Mrs. Davis and her neighbor to the left shared a joint driveway over a culvert which bridged an open ditch on the north side of 17th Street.

State representatives and a state hired contractor secured written permission from Mrs. Davis and her neighbor to do work outside 17th Street’s right of way for the purpose of tying their drive back into 17th Street, after the grade was lowered. At Mrs. Davis’ request, the drive was paved by the State’s contractor on June 19,1975, and a curb and gutter were added. Subsequently, Mrs. Davis’ neighbor, with whom she had previously shared the driveway, placed a white stripe down the property line in the drive and erected an iron fence which prohibited Mrs. Davis’ use of her neighbor’s part of the drive. There is evidence submitted in opposition to the motions for summary judgment that Mrs. Davis can no longer use the driveway.

Mrs. Davis contacted the State and City officials. Engineers were dispatched and after studying the property, they concluded that Mrs. Davis did not possess a sufficient amount of property, and that any attempt to cut a new drive would not relieve her situation. The State and City made no further attempt to improve the drive and Mrs. Davis filed this complaint.

The State and City moved for summary judgment, accompanying their motions with an affidavit by Carl T. Guin in which he states that he was project engineer for the Alabama Highway Department on the project in question. Guin further states that no right of way for the project was acquired from Mrs. Davis and that at the request of Mrs. Davis, the Highway Department had its contractor grade and pave an existing joint driveway shared by her and her neighbor. In his affidavit, Guin stated that Mrs. Davis inspected the work done upon the driveway and gave her verbal approval, but that she later told him she was not satisfied with the driveway because her neighbor was parking in such a manner to prevent her from using the driveway.

In opposition to the motions for summary judgment, Mrs. Davis filed her affidavit on rehearing along with exhibit photographs reflecting the condition of her property before and after the driveway was paved. In her affidavit, she states that access to her property has been severely restricted since the grade was lowered in front of her house. She also claims that prior to the lowering of the grade on 17th Street, she could get to her property on her own lot without the joint use of the driveway.

She also stated that “before 17th Street was lowered in front of my house, the joint driveway between my house and the adjoining property owned by Jewel Beams was primarily on my property and there was two ruts on my side of the property line and one rut on the side of Jewel Beams. When the Highway Department lowered my driveway, they filled dirt on one rut of my driveway and built it up and then put the driveway primarily on the Beams’ property.”

After considering the pleadings and affidavit in support of, and in opposition to, the motion for summary judgment, the trial judge granted summary judgment for the State, Bass, and the City. We hold this was error.

The basic issue in this case is whether the defendants have taken the property of Mrs. Davis by depriving her of access to and from her land. Mrs. Davis claims they have and that this constitutes a wrongful taking without prior compensation which she says violates Article I, § 23 of the Alabama Constitution of 1901, which provides, in pertinent part:

“ * * * [Pjrivate property shall not be taken for, or applied to public use, unless just compensation be first made thereof . . . .”

Mrs. Davis further says that the defendants are liable under Art. 12, § 235 of the Alabama Constitution. Section 235 reads, as follows:

“Municipal and other corporations and individuals invested with the privilege of taking property for public use, shall make just compensation, to be ascertained as may be provided by law, for the property taken, injured, or destroyed by the construction or enlargement of its works, highways, or improvements, which compensation shall be paid before such taking, injury, or destruction.”

The State counters that Section 235 applies only to municipal and other corporations and any other individuals invested with the privilege of taking property for public use, and not to the State. Although the State is correct in pointing out that Section 235 provides for consequential damages and that the section does not include the State among those to be held accountable, the argument is not persuasive. Mrs. Davis does not argue that her damages resulted as a consequence of an actual taking of her real property; she contends that her right of access is a property right which cannot be taken or materially interfered with without just compensation. We agree.

In St. Clair County v. Bukacek, 272 Ala. 323, 131 So.2d 683 (1961), this Court cited with approval the case of Blount County v. McPherson, 268 Ala. 133, 105 So.2d 117 (1958), which stated:

“ ‘The overwhelming weight of authority is that the owner of land abutting on a street or highway has a private right in such street or highway, distinct from that of the public, which cannot be taken or materially interfered with without just compensation. Access to the highway is one of these private rights and is a property right, and the interference with the right of access of an abutting owner is an element of damage. 29 C.J.S. Eminent Domain §§ 105, 122 and 167; 39 C.J.S. Highways § 141, p. 1081. We have held that “access to a public highway is an incident to the ownership of land abutting thereon,” City of Bessemer v. Brantley, 258 Ala. 675, 65 So.2d 160; and interference with such access is an element of damages. Hooper v. Savannah & Memphis R. Co., 69 Ala. 529.’ ”

272 Ala. at 328, 131 So.2d at 687. See, Chichester v. Kroman, 221 Ala. 203, 128 So. 166 (1930); State v. Payton, 273 Ala. 49, 134 So.2d 198 (1961).

Mrs. Davis further claims that the State Highway Department had no legislative authority to lower the grade of 17th Street in that this street is a public city street and it does not connect a state highway and, therefore, the State depended upon the authorization by the City of Northport in undertaking this project. The duties and powers of the Alabama State Highway Department are set forth in Tit. 23, § 3, Code, which states, in relevant part:

“It shall be the duty of the department to designate the roads to be constructed, repaired and maintained and to construct, standardize, repair and maintain roads and bridges of this state; and it shall have authority to make contracts or agreements to construct, or pave the roadway only of the street or streets which will serve to connect the state highway constructed or repaired by the highway department, within any town, or municipality, in the state of Alabama;

Mrs. Davis contends that the phrase, “streets which will serve to connect the state highways" refers only to those city streets joining two state highways or cities. On the other hand, the City’s position is that Title 23, § 3, Code of Alabama, is authority for the State to lower the grade on and prepare a proper junction of a city street which connects with a state highway. In St. Clair County v. Town of Riverside, 272 Ala. 294, 128 So.2d 333 (1961), this Court held that the “Highway Department has authority to construct and maintain city streets if they are roads of connection within the state Highway system.” 272 Ala. at 296, 128 So.2d at 335. Suffice it to say that a material question of fact exists whether 17th Street is a “road or connection.”

Mrs. Davis alleges that the City directed and authorized the State Highway Department to act on its behalf in altering and changing the grade of 17th Street. The facts and circumstances surrounding the City’s participation in State Highway Project (No. F-95 11) were set forth in the affidavit of the Mayor of Northport, J. D. Quarles. The Quarles’ affidavit states that the only action taken by the City in regard to the project was to pass a resolution consenting to the construction of this project and approving the state project and location thereof. It is apparent from the affidavit of Mrs. Davis that she disputes the City’s claim that it only consented to the construction of the project by passing a resolution. More importantly, she contends that the City not only gave consent to the State Highway Department to alter the grade of a city street but also that the City directed and authorized the State Highway Department to act in its behalf in altering and changing the grade of 17th Street. Obviously, these are material facts which are disputed.

We have viewed the evidence in a light most favorable to Mrs. Davis, as required by Rule 56, ARCP, and we find that the motion for summary judgment filed by the State of Alabama was properly granted as this action brought against the State is prohibited by Art. 1, § 14, Constitution of Alabama of 1901. See Unzicker et al. v. State of Alabama, Ala.Sup., 346 So.2d 931 (decided May 6, 1977). However, we find that there is a scintilla of evidence in support of Mrs. Davis’ claims against both the State Highway Director, Ray Bass, and the City of Northport, and therefore, the judgment of the trial court, in granting summary judgment as to these two defendants, is reversed.

AFFIRMED, IN PART; REVERSED, IN PART; and REMANDED.

TORBERT, C. J., and BLOODWORTH, FAULKNER, ALMON, SHORES and EM-BRY, JJ., concur.

JONES, J., dissents.

BEATTY, J., not sitting.

JONES, Justice

(dissenting).

I disagree that the State cannot be sued on the grounds which I set out in my dissent in Unzicker et al. v. State of Alabama, Ala.Sup., 346 So.2d 931 (decided May 6, 1977).


author: MADDOX, Justice.

text:
    Kenneth G. ROBINSON, II, et al. v. COMPUTER SERVICENTERS, INC., et al.
    SC 2078.
    Supreme Court of Alabama.
    May 6, 1977.
    Rehearing Denied June 24, 1977.

      W. Eugene Rutledge, Anniston, for appellants.
    James A. Harris, Jr., and Thomas H. Brown, Birmingham, for appellees.
   MADDOX, Justice.

This appeal basically involves two questions:

1. Gan an appeal be taken from the grant of a permanent injunction in a case before final disposition of the entire case?
2. Can a “non-competition” clause in an employment contract be enforced by an employer who at the time the contract was made had the intent to fire the employee as soon as it could find a replacement?

Appellees, Computer Servicenters, Inc., A. Derrill Crowe, Lamar M. Campbell, and Walter F. Scott filed this action on May 10, 1976, for injunctive relief to prevent appellants, Kenneth G. Robinson and K. G. Robinson and Associates from competing with Computer Servicenters, Inc. in violation of Non-Compete Agreements between Robinson and CSI. CSI also sought to have a subscription agreement in the employment contract specifically enforced.

Robinson had previously filed a derivative action on January 6, 1976, in the United States District Court for the Northern District of Alabama against CSI, its directors and chief executive officers, and Sterne, Agee & Leach, Inc. The federal court action was still pending at the time of trial of this action. (C.A. No. 76-H-0012-S).

Robinson filed his answer in this state action and demanded a jury trial. He also amended his answer to allege a counterclaim, wherein he asked for damages for the alleged breach of, and fraud surrounding, the employment contract with CSI.

On September 16, 1976, the trial court entered its decree which is the subject of this appeal. The decree states that the court had “severed” Robinson’s counterclaim pursuant to the provisions of Rule 42. The decree ordered that the subscription claim by CSI involved questions as to which the parties are entitled to a jury trial; that CSI was entitled to enforce by injunction the Non-Compete Agreement in a 1969 employment contract between the parties; that CSI was entitled to enforce an identical clause in a 1975 employment contract between the parties. The trial court concluded that Robinson had competed with CSI from the date of his termination, January 16, 1976, and ordered that he not compete with CSI for one year from the date of entry of the decree..

Robinson filed his appeal and filed a motion to stay the injunction pending appeal. CSI filed a motion to dismiss the appeal. On January 6, 1977, CSI filed a motion to strike Robinson’s brief, or portions thereof, and renewed its motion to dismiss the appeal.

Computer Servieenters, Inc. is a general data center organization engaged in the business of providing data processing services to customers. In January of 1969, employee Robinson contracted with a predecessor corporation to CSI that he would serve as the corporation’s chief executive officer for two years. The contract was renewed automatically for two-year periods unless it was terminated in writing by either party at least 90 days prior to its expiration. In May of 1970, the predecessor corporation was merged into CSI and Robinson continued as president under the 1969 contract. In paragraph 8 of this contract, Robinson covenanted and agreed that he would not compete with CSI for a period of two years after the termination of his employment with it.

In November of 1974, Robinson gave CSI notice that he did not intend to renew his employment contract. Robinson testified that the contract expired in February, 1975. From February, 1975, to some time in June, 1975, Robinson served as president of CSI on a terminable at-will or month-to-month basis. In June of 1975, he entered into another employment contract with CSI which contained an identical non-compete agreement as had the 1969 contract. In September, 1975, CSI advised Robinson another person would become chief executive officer of CSI; Robinson was placed on a “leave of absence.’’ On January 6, 1976, Robinson filed the federal court action previously mentioned against CSI and other defendants. In January, 1976, he was terminated by CSI.

A short time after his termination by CSI, in “about February” of 1976, Robinson entered into business for himself as Kenneth G. Robinson & Associates. This enterprise was a consulting service and relates primarily to the utilization of computers and data processing equipment. In 1976, CSI performed primarily medical data processing services for medical groups, which related to medical billing for doctors. In connection with his “consulting” business, Robinson acted as sales representative for a firm that manufactured “mini” computers, which could be utilized as in-house computers to perform billing services, and could replace the services performed by computer service bureaus like CSI. There was some evidence that, as part of his new consulting business, Robinson or his associate presented the “mini” computer program to CSI customers in Birmingham, and, if accepted by them, the “mini” system would alter or replace any need for CSI’s services. With respect to one CSI customer, Virginia Orthopedics, Robinson had negotiated a three-year contract between Virginia Orthopedics and CSI, on CSI’s behalf, in August, 1975. However, after being terminated by CSI and entering business for himself, Robinson recomménded an in-house system to Virginia Orthopedics — knowing that if they purchase it, their need for CSl’s services would be eliminated. Robinson also recommended an in-house system to other CSI customers with the knowledge that if it was accepted, they would discontinue their relationship with CSI.

There was evidence that the in-house computer system sold by Robinson competes with CSI in the sense that if a customer accepted the in-house system, it would no longer have any need for the services of CSI.

I

First, we address the question whether Rule 54(b) ARCP has any application to an order granting a permanent injunction. We hold that it does not.

The time within which an appeal must be taken from an order sustaining, dissolving or discharging an injunction and from an order granting or refusing a writ of injunction, has now been changed by Rule 4, ARAP, but the right to appeal is still governed by statute.

The notice of appeal from the order granting the permanent injunction was taken within 14 days as provided for in Rule 4, ARAP; therefore, the motion to dismiss the appeal is denied.

II

The second issue is whether the trial judge should have issued an injunction against Robinson. We think not. Contracts restraining employment are looked upon with disfavor, because they tend not only to deprive the public of efficient service, but tend to impoverish the individual. Hill v. Rice, 259 Ala. 587, 67 So.2d 789 (1953). The courts will not specifically enforce, as of course, the naked terms of a negative covenant in a personal service contract restricting other employment, unless, supporting the affirmative promise, the employer has a substantial right unique in his business which it is the office of the court to protect, and the restriction laid upon the employee has a reasonable relevancy to that result, and imposes no undue hardship. Hill v. Rice, supra.

The testimony in this case shows that the directors of CSI, at the time they authorized the contract with Robinson which they seek to enforce, intended to dismiss him as soon as a replacement could be found.

In Hill v. Rice, this court said each particular contract must be tested by determining on the facts of the particular case whether the restriction upon one party is greater than is reasonably necessary for the protection of the other party.

Testing the restrictive contract here under the particular facts of this case, it is obvious that it would be inequitable and unreasonable to enforce a contract which the employer did not intend to keep.

In finding the restrictive contract unreasonable, we have considered the fact that the testimony shows that the directors intended to replace Robinson as soon as a replacement could be found even during the time of his employment under the 1969 contract. CSI claims that it can enforce the negative covenant of the 1969 contract even if it should fail in the 1975 agreement. Under the Hill v. Rice test, this argument is not persuasive, especially when viewed against the backdrop of the particular facts of this case, as Hill v. Rice states every contract must be tested.

Furthermore, even though Robinson’s new business venture could cause CSI to lose some of its clients, it does not necessarily follow that Robinson violated the non-compete clause. For example, a person years ago could have owned an ice-making business. An employee could have sold ice to many customers and could have signed a non-compete agreement. He leaves that employment voluntarily or involuntarily. Should he be enjoined from selling refrigeration equipment to businesses and homeowners because that would decrease the demand for ice? The answer is obvious. Robinson, as we understand his business, is attempting to sell a product that would surely eliminate the customer’s future need for CSI service, but he is not engaged in the same service.

The record shows that because of advancements in data processing technique, many organizations could utilize in-house computers and would no longer have to contract out their data processing needs.

In view of the facts of this case, we find the trial court should not have granted the extraordinary injunctive relief. The judgment is reversed and the cause is remanded.

REVERSED AND' REMANDED.

TORBERT, C. J., and FAULKNER, SHORES and BEATTY, JJ., concur.

      . Title 7, § 757, Code.

      . Title 7, § 1057, Code.


author: ALMON, Justice.

text:
    In re Larry THORNTON v. BADGER NORTHLAND, INC., a corporation, et al. Cause No. 75-43-E.
    CER-8.
    Supreme Court of Alabama.
    May 20, 1977.
    C. Neal Pope, Phenix City, Edward L. Hardin, Jr., of Hardin, Stuart & Moncus, Birmingham, for Larry Thornton.
    Clarence L. McDorman, Jr., Birmingham, for Badger Northland, Inc.
    John M. Milling, Jr. and Thomas C. Sullivan, Montgomery, for Southeastern Silo Co., Inc.
   ALMON, Justice.

The United States District Court for the Middle District of Alabama, Eastern Division, certified the following question to this court. Rule 18, Alabama Rules of Appellate Procedure: Does the one-year statute of limitations run against a married male between the age of 18 and 21? We hold that it does.

The appellant, Thornton, was injured on July 1, 1968, while working with a forage blower. His injury was allegedly proximately caused by the negligent manufacture and distribution of the forage blower by the appellees, Badger Northland, Inc., and Southeastern Silo Company. At the time of the accident, the appellant was 14 years old. He became 18 years old on August 12, 1971. On October 15, 1972, appellant was married, and on August 12, 1974, he became 21 years of age. On June 23, 1975, he filed a complaint for his personal injuries. The filing of the complaint thus occurred within a one-year period after the plaintiff reached 21 years of age but after the expiration of a one-year period following his becoming a married 18-year-old.

Tit. 7, § 26, Code of Alabama 1940, Recompiled 1958, provides for a one year statute of limitations:

“The following must be commenced within one year: . . . Actions for any injury to the person . . . .”

An exception to this provision is found in Tit. 7, § 36, Code, supra:

“§ 36. Additional time allowed infants, etc. — If any one entitled to bring any of the actions enumerated in this chapter, or to make an entry on land, or defense founded on the title to real property, be, at the time such right accrues, within the age of twenty-one years, or insane, or imprisoned on a criminal charge for any term less than for life, he or she shall have three years, or the period allowed by law for the bringing of such action if it be less then three years, after the termination of such disability to bring suit, or make entry or defense; but no disability shall extend the period of limitations so as to allow such action to be commenced or entry or defense made, after the lapse of twenty years from the time the cause of action or right accrued.” (Emphasis added.)

The specific question before us is whether Tit. 34, § 76(1) Code, supra, alters the exception extended to “any one . . . within the age of twenty-one years . .

“§ 76(1). Married men and widowers over eighteen years relieved of disabilities of minority. — The marriage of any male person in this state, who is under twenty-one and over eighteen years of age, or any male person who becomes a widower in this state, who is under twenty-one and over eighteen years of age, or, at the arrival at the age of eighteen years of any married male person, or widower in this state, has the effect immediately to remove his, or their disabilities of minority ; and thereafter he has the same legal rights and abilities as married male persons, or widowers over twenty-one-years of age.
“This section shall apply to a person who married before the effective date, but shall not abrogate any defense or abridge any remedy available to him pri- or to such date.” (Emphasis supplied.)

Cf. Tit. 27, § 17, Code, supra.

Appellant has presented in brief several cases from other jurisdictions where courts have held that the marriage of a party between 18 and 21 does not affect the “within the age of twenty-one years” exception to the running of the statute of limitations. E. G., Tavernier v. Weyerhaeuser Co., 309 F.2d 87, 91 A.L.R.2d 1268 (9th Cir., 1962); Edmonds v. Union Pacific Railroad Co., 294 F.Supp. 1311 (D.Kan., 1969); Gifford v. Saunders, 207 Kan. 360, 485 P.2d 195 (1971); Jones v. Hartford Accident & Indemnity Co., 132 Ga.App. 130, 207 S.E.2d 613 (1974); Stephens v. Stephens, 85 Wash.2d 290, 534 P.2d 571 (1975). (For an annotation on the subject, see 91 A.L.R.2d 1272, including the Later Case Service.)

The statutes dealt with in each of these cases are distinguishable from our married man’s statute (Tit. 34, § 76(1)). In Tavernier, Edmonds, and Gifford (Edmonds and Gifford deal with the same statute), the “within the age of 21 years” exception was held not to be affecl-J by deeming married persons to be of the “age of majority.” In Jones the statute gave married 18-year-olds the right to “maintain an action and contract to settle claims in his own name”, and in Stephens the statute gave 18-year-olds, whether married or not, the right to “sue and be sued on any action to the full extent as any other adult person . . . .”

In contrast our married man’s statute not only removes the “disabilities of minority,” but also specifies that “thereafter he has the same legal rights and abilities as married male persons . . . over twenty-one years of age.” Our task is to determine the intent of the legislature. With our statute we are not left with the question of whether the legislature meant “twenty-one years of age” to mean the same thing as “age of majority” or “disabilities of minority.” It went on to use the exact terms, “twenty-one years of age.”

Furthermore, from the last sentence in Tit. 34, § 76(1), the legislature clearly realized that the statute could abridge possible remedies, as it provided that it should apply to one who married before the effective date of the statute, but “shall not . abridge any remedy available to him prior to such date.”

Appellant would have us limit the wording of the statute because Tit. 7, § 36, may not be the only statute affected. He argues that it would also affect Tit. 61, §§ 1 and 2 which allow “[ejvery person of the age of twenty-one years” to will real estate, and “persons over the age of eighteen years” to will personalty, respectively; Tit. 47, § 154(1) the Uniform Gifts to Minors Act, which defines a minor as a person “under the age of 21;” and Tit. 14, § 17(1) which prior to Tit. 27, § 28 (see footnote 1) made it unlawful for a person “under 21 years of age” to purchase alcoholic beverages. While we refrain from indicating what, if any, effect this decision will have on the above statutes, we do note that a distinct difference may exist between the civil statutes of Tit. 61 and Tit. 47, and the criminal statutes in Tit. 14. See Coker v. State, 91 Ala. 92, 8 So. 874 (1890).

In Randolph v. Kessler, 275 Ala. 73, 152 So.2d 138 (1963) this court concluded that a married man over 18 is not required to defend by next friend (Tit. 7, § 102), but rather, may defend in his own name. This court held in Lee v. Wood, 85 Ala. 169, 4 So. 693 (1887) and Spann v. First Nat. Bank of Montgomery, 240 Ala. 539, 200 So. 554 (1941), that statutes of limitations run against an infant who has had a guardian appointed for him capable of acting.

“As a general rule, statutes of limitations do not run against those laboring under a personal liability, such as infancy, —Code [of 1886], § 2624 [now Tit. 7, § 36].
“This rule, however, does not apply to infants, or other persons disabled, who have a trustee capable of suing.” Lee v. Wood, 85 Ala. at 170, 4 So. at 693.

We similarly see no reason why the statute of limitations should not run against a married man when he has the right to sue in his own name. Cf. Stephens, supra.

We hold, based on Tit. 34, § 76(1), that the one-year statute of limitations runs against a married man between the age of 18 and 21. •

QUESTION ANSWERED.

All the Justices concur.

      . Tit. 27, § 28, Code Of Alabama 1940, Recompiled 1958, 1975 Interim Supplement, providing that “laws which read ‘under the age of twenty-one years’ hereafter shall read ‘under the age of nineteen years,’ ” is inapplicable to this case.

      . A similar provision for married women is found in Tit. 34, § 76, Code, supra.

      . For a married woman, see Hays v. Bowdoin et al., 159 Ala. 600, 49 So. 122 (1909).


text:
    J. H. SNIDER et al. v. ALABAMA POWER COMPANY.
    SC 1928.
    Supreme Court of Alabama.
    June 3, 1977.

      John R. Phillips for Phillips & Watson, Anniston, for appellants.
    H. Hampton Boles for Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellee.
   MADDOX, Justice.

This is an appeal from a final decree entered in favor of appellee, Alabama Power Company, against appellants, J. H. Snider, Gartice Snider, H. M. Fagan, Jr., Leola Fagan, and Mrs. W. E. Thompson. We affirm.

On September 8, 1972, Alabama Power Company filed a bill of complaint in the circuit court of Calhoun County, in equity, against appellants, seeking to enjoin them from interfering with Alabama Power’s electric transmission line easement and to require appellants to remove a commercial building from the easement. It is undisputed that appellants constructed, in 1972, and presently maintain and own, the building in question, and that this building is situated directly under Alabama Power’s 44,000 volt transmission line.

Alabama Power claims ownership of the right of way through a 1915 deed and, alternatively through prescription. By instrument, dated September 16,1915, Thomas Owens conveyed a transmission line easement to Alabama Power over and across the following land in Calhoun County:

“Vacant lot or parcel of land at Weaver’s Station located on the South side of the public road and bounded on the east by a lot with Storehouse on it belonging to J. H. Fite, on the South by an alley, on the west by lot with storehouse on it known as Elgan Store. Said lot being a part of the NE Vi of NE Vi of Sec. 5, T 15, R. 8 E.”

Appellants point out, however, that the property description contained in the 1915 deed shows the easement to be in the NE Vi of the NE Vi of Section 5, Township 15, Range 8 East, whereas in paragraph 5 of Alabama Power’s complaint, the easement is shown to be in the NE Vi of the SE Vi of Section 5, Township 15 South, Range _ 8 East. Even though the description in the 1915 conveyance recites that the lot is in the “NE Vi of NE Vi of Sec. 5 . . .,” Alabama Power contends that the numerous exhibits and testimony introduced during the trial below establish that the correct description of the lot was located in the NE Vi of the SE Vi of Sec. 5.

The trial court, after hearing the evidence ore tenus, ruled in favor of Alabama Power and ordered appellants to remove the building from Alabama Power’s right of way. The final decree of the lower court reads, in pertinent part:

“1. The plaintiff, Alabama Power Company, is the owner of an easement or right of way over the strip of land described in Paragraph 5 of the Bill of Complaint filed herein; that said right of way or easement is for the purpose of constructing, operating and maintaining electric transmission lines and appliances necessary or convenient in connection therewith; that the width of such easement or right of way, though not stated in the instrument granting the right of way to plaintiff, is thirty (30) feet and that such width is a reasonable, convenient, and accessible width fór the right of way and uses thereof.
“2. That the plaintiff, Alabama Power Company, is the owner of the right of way thirty (30) feet in width described below and in Paragraph 5 of the Bill of Complaint through the conveyance from Thomas Owens by deed dated September 16, 1915, and recorded in Book 177, Page 512 in the office of the Judge of Probate of Calhoun County, Alabama; and in the alternative, through prescription; said right of way being described as follows: (Description).
“3. That the defendants, J. H. Snider and H. M. Fagan, constructed or had constructed a concrete block building and related facilities designed and intended to be used for commercial purposes on the land involved in this suit at a point almost directly beneath the 44,000 volt transmission line of plaintiff; that said structure conflicts with and materially interferes with the paramount rights of plaintiff to maintain the right of way for the purposes stated in that: (a) such structure constitutes a hazard to plaintiff’s transmission lines; (b) restricts and obstructs the full and free enjoyment of said easement; (c) may, if allowed to continue for the descriptive period, extinguish pro tanto, a portion of plaintiffs right of way area; and (d) increases plaintiff’s risk of and exposure to claims for damage to property, injury or death of persons arising out of full enjoyment by plaintiff of its right of way across the land of defendants.
“It is, therefore, ORDERED, ADJUDGED and DECREED by the Court as follows:
“1. The relief prayed for by plaintiff in its Bill of Complaint be and the same is hereby allowed.
“2. Plaintiff, Alabama Power Company, is the owner of an easement or right of way thirty (30) feet in width as described in Paragraph 5 of its Bill of Complaint filed herein and such title in plaintiff is forever determined and quieted against defendants and anyone claiming under defendants or any of them.
“3. Defendants, J. H. Snider and H. M. Fagan, Jr. and their respective wives, agents, servants, employees, successors and assigns, and all persons in active concert or participation with them, be and the same are hereby:
“(a) permanently enjoined and restrained from maintaining or allowing to remain on plaintiff’s said right of way or easement any building or any portion of any building, structure, shed or improvement which encroaches upon, exists on or extends over onto the plaintiff’s said right of way; and
“(b) The said defendants, Mr. and Mrs. J. H. Snider and Mr. and Mrs. H. M. Fagan, Jr., are hereby commanded, ordered and directed to remove or have removed from the plaintiff’s said right of way area, without expense to the plaintiff, said concrete block structure and the facilities thereto attached and any and all buildings, sheds or improvements now existing-within such right of way as herein-before described and that such removal shall be completed not later than 45 days from the date of the decree, all at the expense of the said defendants.”

The basic issue to be determined is whether there is sufficient evidence to support the lower court’s finding that Alabama Power acquired an easement or right of way across the property of the appellants by deed or prescription, and if so, does the appellants’ use of the servient estate interfere with the Alabama Power’s use of the right of way?

Alabama Power concedes that the , description in the 1915 deed contains two incorrect designations. The two errors contained in the description are:

(1) The description recites that the lot is in the NE Vi of NE (4 of Sec. 5, when in fact, the lot is situated in the NE V4 of the SE (4 of Sec. 5; and

(2) The description recites that the lot is bounded on the east by a lot with storehouse on it belonging to J. H. Fite, when the lot belonging to J. H. Fite was located on the west side of the lot.

It is Alabama Power’s position that the improper designation of the quarter-quarter section in the deed is self-correcting through other particular references in the description, such as the reference to “Weaver’s Station,” Alabama; and that the improper designation of J. H. Fite’s store as being on the east rather than to the west of the lot in question should be disregarded in favor of the other correct and consistent portions of the description.

In reviewing the reconstructed record, we find that there is sufficient evidence to support the trial court’s finding that the 1915 deed to Alabama Power constituted a valid grant of a right of way to Alabama Power. In addition, we find that there is sufficient evidence to support the lower court’s finding .that Alabama Power established ownership through prescription.

Appellants contend that Alabama Power is claiming a 30 foot right of way across appellants’ business property and since the total width of their lot is 42 feet, they would be left with only 12 feet frontage on Main Street. Appellants contend that there is ample room on each side of appellants’ building to place equipment in order to safely maintain and repair the transmission line. Alabama Power concedes that the exact location of the right of way is not described by metes and bounds in the 1915 deed, but claims that it is entitled to the 30 feet under the authority of Alabama Power Co. v. Ray, 260 Ala. 506, 71 So.2d 91 (1954), in which this Court stated:

“When a conveyance of a right of way does not describe or define it by metes and bounds, the grantee is entitled to a convenient, reasonable and accessible way, dependent upon the condition of the place and the purpose for which it was intended and the nature of the acts of those having the right of user, and reasonable as respects the rights of the grantor, as well as the grantee. Birmingham Realty Co. v. Birmingham Belt R. Co., 250 Ala. 623, 35 So.2d 503; Ellard v. Goodall, 203 Ala. 476, 83 So. 568; Western Union Tel. Co. v. Louisville & N. R. Co., 202 Ala. 542, 81 So. 44; Looney v. Blackwood, [224 Ala. 342, 140 So. 400], supra; Long v. Gill, [80 Ala. 408] supra.” 260 Ala. at 509, 71 So.2d at 93.

Alabama Power offered ample evidence to establish what would constitute a reasonable, convenient and accessible way, which we find sufficient to support the trial court’s finding that, under the circumstances of this case, a reasonable, convenient and accessible right of way at the location in question requires a width of 30 feet.

There can be no question concerning the intended purposes of this right of way as they are clearly stated in the granting instrument, which read:

“ * * * the right to construct, operate and maintain its lines of poles and towers, as located by the final location survey heretofore made by said Company, for the transmission of electric power, with the right to string thereon from time to time electric power and telephone wires upon, over and across the following described land situated in Calhoun County, Alabama. . . .
******
“Together with all the rights and privileges necessary or convenient for the full enjoyment or use thereof, including the right of ingress and egress to and from said lines; and also the right to cut and keep clear all trees that may injure or endanger said lines.
“TO HAVE AND TO HOLD the same to the said Company, its successors and assigns forever.”

Alabama Power contends that appellants, as owners of the servient estate, may use their lot in any manner for any purpose consistent with the enjoyment of the easement of Alabama Power, the owner of the dominant estate, but appellants must abstain from any acts inconsistent with the proper enjoyment of the easement by Alabama Power Co. Brown v. Alabama Power Co., 275 Ala. 467, 156 So.2d 153 (1963); Collins v. Alabama Power Co., 214 Ala. 643, 108 So. 868 (1926).

The trial court correctly found that the construction of the appellants’ building in the right of way directly beneath the 44,000 volt transmission line would constitute (a) a material and unlawful interference with the prior subsisting dominant right of way of Alabama Power over the lot; (b) wrongfully restrict and obstruct the full and free enjoyment of said right by Alabama Power; (c) unlawfully reduce the right of way area of Alabama Power; (d) may, if allowed to continue for the prescriptive period, extinguish a portion of Alabama Power’s right of way area, and (e) increase Alabama Power’s risk of and exposure to claims for damages to property or injury to or death of persons arising out of the full enjoyment by Alabama Power of its right of way over this lot.

Appellants contend that they had a right to a trial by jury. We disagree. The complaint filed by Alabama Power prayed for a permanent injunction ordering appellants to remove a concrete block building from its electric transmission line right of way. Clearly, the circuit court had jurisdiction to enjoin the obstruction of a private easement. Brown v. Alabama Power Company, supra; Alabama Power Company v. Ray, supra.

Appellants further contend that the transcript in the case at bar was never prepared and the court reporter destroyed his notes of the proceedings and, although the parties had made an effort to reconstruct a record, it is “almost an impossibility to reconstruct a record of what went on at the time.” Accordingly, appellants claim that the trial court erred in not granting them a new trial.

Pursuant to an order of this Court dated August 3, 1976, the parties reconstructed a new record. Under the circumstances, reconstruction of the record on appeal by the parties is an accepted procedure when the official record is unavailable. Rule 10(d) and (e), ARAP.

The judgment of the trial court is affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER, SHORES and BEATTY, JJ., concur.


author: ALMON, Justice. JONES, Justice

text:
    Michael Wayne McMULLAN, a minor who sues through his father and next friend, Larry Eugene McMullan and Larry Eugene McMullan v. Jerome BUTLER.
    SC 1978.
    Supreme Court of Alabama.
    June 3, 1977.

      Rodney B. Slusher, Florence, for appellant.
    Robert E. Jones, Florence, for appellee.
   ALMON, Justice.

Larry Eugene McMullan, appellant, sued Jerome Butler, appellee, on behalf of himself and'his 14 year old son, Michael Wayne McMullan, appellant. Michael sustained neck injuries when he allegedly slipped on a wooden platform which had mud and water on it while diving into the backyard pool about 3 feet in height and about 12 feet wide. Butler’s two boys were swimming with Michael at the time. Appellants admit that Michael was a social guest.

In the appellants’ complaint, they alleged that Appellee Butler “negligently, carelessly, recklessly, and knowingly failed to care for, control and supervise” Michael McMul-lan while he was swimming in the appel-lee’s pool and failed to properly install, maintain and operate the pool. The trial court granted appellee’s motion for summary judgment based on the depositions of the appellants and appellee. We affirm.

Appellants request that we abolish the status classification of trespassers, licensees, and invitees in land occupancy cases. Rather, they would require the owner or occupant to use reasonable care under all the circumstances for the protection of any person who should come on the land. A number of states and the District of Columbia have drafted such a rule of law or a modified version of it into their common law; e. g., Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (1968); Pickard v. City and County of Honolulu, 51 Haw. 134, 452 P.2d 445 (1969); Smith v. Arbaugh’s Restaurant, 152 U.S.App.D.C. 86, 469 F.2d 97 (1972); Mile High Fence Company v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971); Mounsey v. Ellard, 363 Mass. 693, 297 N.E.2d 43 (1973); Mariorzeni v. DiPonte, Inc., 114 R.I. 294, 333 A.2d 127 (1975). See also Sargent v. Ross, 113 N.H. 388, 308 A.2d 528 (1973) for a similar result in landlord-tenant law. Our sister state of Florida has not gone as far as others, but applies the duty of reasonable care to “licensees by invitation.” Wood v. Camp, 284 So.2d 691 (Fla., 1973). See also Peterson v. Balach, 294 Minn. 161, 199 N.W.2d 639 (1972); and Conn.Gen.Statute, Rev. to 1977, § 52-557a. We note, however, that this “trend” to abolish or alter land occupancy classifications continues to be the minority position in this country. 25 A.L.R.2d 598 and LCS; 32 A.L.R.3d 508.

In Alabama a social guest is a licensee. Morgan v. Kirkpatrick, 276 Ala. 7, 158 So.2d 650 (1963). The duty owed a licensee by an owner of premises is not to willfully or wantonly injure him, or not to negligently injure the licensee after discovering he is in peril. While exceptions to this rule do exist, appellants do not contend on appeal that they fall under any of the exceptions. Hickey v. Charlton, Ala., 335 So.2d 389 (1976) (attractive nuisance); Tolbert v. Gulsby, Ala., 333 So.2d 129 (1976) (dangerous instrumentality); Standifer v. Pate, 291 Ala. 434, 282 So.2d 261 (1973) (duty to supervise). The reason for this rule is the belief that a guest should not expect better than what the host has, but should, rather, accommodate himself to the conditions of his host. Morgan, supra. We believe the situation before us falls logically within the scope and reasoning of the rule.

“. . . I do not think it unreasonable or unfair that a social guest (classified by the law as a licensee, as was plaintiff here) should be obliged to take the premises in the same condition as his host finds them or permits them to be. Surely a homeowner should not be obliged to hover over his guests with warnings of possible dangers to be found in the condition of the home (e. g., waxed floors, slipped rugs, toys in unexpected places, etc., etc.) . . .” Rowland v. Christian, supra, 69 Cal.2d at 121, 70 Cal.Rptr. at 105, 443 P.2d at 569, dissenting opinion of Justice Burke.

The judgment in this cause is therefore affirmed.

AFFIRMED.

BLOODWORTH, MADDOX, FAULKNER, SHORES, EMBRY and BEATTY, JJ., and Retired Circuit Judge, sitting by designation of the Chief Justice, concur.

JONES, J., dissents.

JONES, Justice

(dissenting):

I respectfully dissent.

For a scholarly analysis on landowner liability in Alabama, see Gusty Yearout’s article, “Landowners Responsibility to Children,” Alabama Defense Lawyers Journal, April, 1977, p. 76.

      . See Tit. 47, § 281 et seq., Code of Alabama 1940, Recompiled 1958.


author: FAULKNER, Justice.

text:
    Louis S. WOLSEY v. AETNA CASUALTY & SURETY CO. et al.
    SC 2068.
    Supreme Court of Alabama.
    June 3, 1977.
    John T. Roach, Jr., Birmingham, for appellant.
    S. R. Starnes and William A. Davis III, Birmingham, for appellee, USF&G.
    Thomas R. Elliott, Jr., Birmingham, for Aetna Casualty & Surety Co.
   FAULKNER, Justice.

This is an appeal from a declaratory judgment holding that an insurance company had an obligation to defend the president of a corporation but not the foreman. We affirm.

On April 12, 1974, Louis S. Wolsey filed suit against Albert S. Naughton, president of Naughton Equipment Company, and Thomas E. Butler, a foreman, for damages for personal injuries received in a construction accident while employed by Naughton Equipment Company. Aetna Casualty & Surety Company, which had a workmen’s compensation policy covering Naughton Equipment Company, filed a complaint for declaratory judgment in the Circuit Court of Jefferson County against Naughton, Butler, Wolsey and United States Fidelity & Guaranty Company (USF&G) which had a policy covering Naughton Equipment Company, to determine whether Naughton and Butler were due to be defended under Aetna’s or USF&G’s policy. Trial was held ore tenus and the court found that Aetna had no obligation or duty to defend either but that USF&G had a duty to defend Naughton but not Butler. Wolsey appeals the finding that USF&G had no duty as to Butler.

In pertinent part the USF&G policy reads as follows:

“II PERSONS INSURED
Each of the following is an Insured under this insurance to the extent set forth below:
* * * * # *
(c) if the Named Insured is designated in the declarations as other than an individual, partnership or joint venture, the organization so designated and any executive officer, director or stockholder thereof while acting within the scope of his duties as such . . .”

The sole issue is whether Butler, a foreman, was an executive officer within the meaning of the USF&G policy so as to make him an insured under that policy. We hold that in this case the foreman was not an executive officer under the meaning of the insurance policy and was not due to be defended by USF&G.

The evidence was that Butler was employed by Naughton Equipment Company as a foreman and welder; he was paid on an hourly basis; he was not an officer, director or stockholder of the company; and he had no authority to make corporate policy or to make contracts on the company’s behalf.

We adopt the principle expressed in numerous Louisiana cases that an executive officer exercises managerial responsibility for the affairs of the corporation generally, while an employee does not. Annot., 39 A.L.R.3d 1434 (1971) (citing, inter alia, Bruce v. Travelers Ins. Co., 266 F.2d 781 (5th Cir. 1959); Guillory v. Aetna Ins. Co., 415 F.2d 650 (5th Cir. 1969); Employers’ Liab. Assurance Corp. v. Upham, 150 So.2d 595 (La.App.1963)). Applying this principle to the evidence, it is clear that Butler was only an employee, not an executive official. Such a finding is not contradictory of U. S. Fire Ins. Co. v. McCormick, 286 Ala. 531, 243 So.2d 367 (1970).

Since the evidence does support the finding that Butler was not an executive officer within the meaning of the USF&G policy and since, under the ore tenus rule, every presumption will be indulged in favor of the trial court and its findings will not be disturbed unless plainly erroneous, we affirm.

AFFIRMED.

MADDOX, ALMON, SHORES and BEATTY, JJ., concur.


author: SHORES, Justice.

text:
    John B. POLLARD et al. v. GUARANTY PEST CONTROL, INC.
    SC 2135.
    Supreme Court of Alabama.
    June 3, 1977.

      J. M. Sides and Ronald S. Held for Ly-brand, Sides, Hamner, Oglesby & Boozer, Anniston, for appellants.
    James B. Morton, Birmingham, for appel-lee.
   SHORES, Justice.

In January, 1964, John B. and Patricia J. Pollard bought a house in Calhoun County. In 1967, they entered into a contract with Dixie Exterminators, Inc. wherein Dixie agreed to chemically treat the house and warrant that it would remain free of termite infestation during the contract period. The contract had an annual renewal clause and was renewed by the Pollards each year. Dixie assigned the contract to Guaranty Pest Control in 1969. The Pollards accepted this arrangement and forwarded renewal payments to Guaranty. In the Spring of 1971, termite infestation was discovered in a storage room area located behind the carport. Guaranty sent a representative to inspect the damage and subsequently rebuilt the storage room. Additional problems developed such as wall-ceiling separation, separation of the kitchen cabinents from supporting walls, and sagging floors. There was also a problem in the bathroom. According to Mrs. Pollard, she called upon her homeowners’ insurance to see if it would take care of the damages, but it would not take care of water damage “unless it was sudden.”

Thereafter, the Pollards brought this suit against Guaranty alleging that the damage to the house resulted from termite infestation. They sought $50,000 damages. Guaranty denied liability and the cause was tried to the trial judge, without a jury. After hearing the evidence, the court entered a judgment for Guaranty. The Pollards appeal, contending that the judgment of the trial court is palpably wrong and contrary to the great weight of the evidence.

As we have said so often, generally where conflicting evidence is heard ore tenus by a trial judge, every presumption will be indulged in favor of his finding of fact and will not be disturbed on appeal unless plainly and palpably erroneous. Johnson-Rast & Hays, Inc. v. Cote, 294 Ala. 32, 310 So.2d 885 (1975); Rafield v. Johnson, 294 Ala. 235, 314 So.2d 695 (1975); Smith v. Gill, 293 Ala. 736, 310 So.2d 214 (1975). Stated differently, where the evidence is in conflict and is heard orally without a jury, the trial court’s judgment, based upon conflicting evidence, is clothed with a presumption of correctness. Employers Insurance Co. of Alabama v. Lewallen, 293 Ala. 574, 307 So.2d 689 (1975).

In this case, Guaranty took the position throughout the trial that the damage to the house was caused by water and fungus rot rather than termite infestation. In support of this position, Guaranty introduced the testimony of two expert witnesses from the State Department of Agriculture who were called by the Pollards. Both experts testified that they found no active termites in the Pollards’ home and that, upon examining photographs of wood debris removed from underneath the house, the wood seemed to be damaged by water rot rather than termite infestation. In addition, one of the experts testified that he found no evidence of termite damage to the seals or joists or any other structural damage. Guaranty would be liable only if the damage to the house was caused by termites. There was evidence that it was not caused by termites but was, in the opinion of these expert witnesses, caused by water rot or fungus.

It is apparent then that the trial court had credible evidence before it which was in conflict with the position taken by the Pollards and which supports its decision in favor of Guaranty. We cannot say, therefore, that the decision is clearly erroneous or manifestly unjust. It is, therefore, due to be affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX, FAULKNER and BEATTY, JJ., concur.


author: JONES, Justice.

text:
    The DRUMMOND COMPANY, a corporation and Taylor Coal Company, Inc., a corporation v. Charles A. BOSWELL, as Commissioner of Revenue of the State of Alabama.
    SC 2234.
    Supreme Court of Alabama.
    June 3, 1977.

      John E. Grenier, Birmingham, for appellants.
    William J. Baxley, Atty. Gen., Willard W. Livingston, Counsel, Dept, of Revenue and Asst. Atty. Gen. and John J. Breckenridge, Asst. Counsel, Dept, of Revenue and Asst. Atty. Gen., for appellee.
    Robert G. Tate and Joseph W. Letzer, Birmingham, for Ala. Mining Institute, S. Eason Balch, Jr. for Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for Alabama Power Co., amicus curiae in support of appeal.
   JONES, Justice.

This case involves the validity of Act No. 1005, Acts of Alabama, Regular Session, 1975, Vol. III, p. 2031, a local tax where-under the legislature directly levied an excise or privilege tax of 20 cents per ton on coal severed in Cullman County. The Act, in pertinent parts, states:

“Section 2. There is hereby levied, in addition to all other taxes imposed by law, an excise and privilege tax on every person severing coal within Cull-man County. The tax shall be paid to the Commissioner by every producer who severs coal within Cullman County at the rate of 20 cents per ton of coal severed.” “Section 7. The net proceeds of the tax levied pursuant to this act shall be used exclusively for the paving, of county roads in Cullman County; and on or before the tenth day of each month, the state revenue department shall pay over to the state highway department the net proceeds of the tax collected hereunder during the preceding month. Such funds shall be maintained by the state highway department in a separate account and used by such department solely for the purpose of paving, of roads in Cullman County.”

Drummond Coal and Taylor Coal companies, taxpaying appellants, contend that this Act is violative of Art. 4, § 105, of the Constitution of Alabama 1901, and thus void. This section states:

“No special, private, or local law, except a law fixing the time of holding courts, shall be enacted in any case which is provided for by a general law, or when the relief sought can be given by any court of this state; and the courts, and not the legislature, shall judge as to whether the matter of said law is provided for by a general law, and as to whether the relief sought can be given by any court; nor shall the legislature indirectly enact any such special, private, or local law by the partial repeal of a general law.” ‘

It is the position of the Taxpayers that this Act contravenes or conflicts with Title 51, § 431, Code, a general law which, in pertinent parts, provides:

“(15). There is hereby levied, in addition to all other taxes imposed by law, an excise and privilege tax on every person severing coal within Alabama. This tax shall be paid to the commissioner by every producer who severs coal within Alabama at the rate of 13.5<p per ton of coal severed.
“(23). No political subdivision of the state of Alabama, including counties, cities, special taxing districts, or other taxing instrumentalities shall levy a tax upon the excise or privilege of severing coal in Alabama. It is the intent hereof, that all taxing authority upon the excise or privilege of severing coal as is granted in section 431(15) of this title shall inure to the state of Alabama exclusively.”

The Taxpayers’ constitutional attack is on two fronts:

1) The local Act is constitutionally offensive in that the “political subdivision” prohibition of subsection (23) of § 431 is violated; and this for the reason that local legislation passed by the “courtesy” procedure is tantamount to passage by a political subdivision.
2) Art. 4, § 105, of the Constitution of Alabama is violated because Act No. 1005 is local legislation which conflicts directly with a general law—Tit. 51, § 431—and should be rendered void.

It should be noted, at the outset, that this Act was passed by the legislature and duly enrolled; thus, it is not an Act passed by a political subdivision. Counsel for the Taxpayers and Amicus Curiae argue that this Act was passed by legislative courtesy and the practical effect of this alleged courtesy was that the Act was passed by a political subdivision. This we cannot accept. Even in the context of “legislative courtesy,” acts which are passed by both houses, signed by the Governor (or otherwise become law under Section 125, Constitution of Alabama), and regularly enrolled do not acquire the status of legislation by a political subdivision. If otherwise valid, the application of legislative courtesy in its passage carries no taint, in itself, of invalidity.

On the other hand, we reject the State’s insistence that § 105 prohibits local legislation only in cases specifically enumerated in § 104. Our cases are clear that a local law must satisfy both §§ 104 and 105. The test under § 105 is:

“ . . . [whether] the object of the local law is to accomplish an end not substantially provided for and effectuated by a general law, notwithstanding there is a general law dealing with the subject or system affected by the local law.” Polytinsky v. Wilhite, 211 Ala. 94, 99 So. 843 (1924).

Thus, the remaining issue is a narrow one: Does Tit. 51, § 431—the general coal severance taxing Act—which provides the source and the objects of expenditure of the proceeds of the tax, in operation with § 105 of the Constitution, render void local Act No. 1005, which- provides the same source but different objects of expenditure of the proceeds of the tax? Ultimately, then, we must decide if the use of the proceeds from this tax for highway maintenance in Cull-man County, as provided in local Act No. 1005, is substantially and materially different in the end to be accomplished from the general law which provides for use of the proceeds from the same source for retirement of State Dock bonds.

The Taxpayers contend that “it is the identity of subject matter of the two acts [Act No. 1005 and Tit. 51, § 431] which is fatal to the Cullman Severance Tax, the local act.” The test as stated in this contention is too narrow and the conclusion is not supported by our case law. It is not the broad, overall subject matter which is looked to in determining whether the local act, taken together with the general law, is violative of § 105; rather, it is whether the object of the local law is to accomplish an end not substantially provided for and effectuated by a general law. Indeed, the word “subject” does not appear in § 105. The exact wording is: “No special, private, or local law . . . shall be enacted in any case which is provided for by a general law. ...”

This constitutional proscription, as stated in Standard Oil Co. of Kentucky v. Limestone County, 220 Ala. 231, 124 So. 523 (1929), had been previously considered by this Court:

“Suffice to say it is fully settled that this section does not forbid local legislation on subjects not prohibited by section 104, merely because a general law deals with the same matter. If, in the judgment of the Legislature, local needs demand additional or supplemental laws substantially different from the general law, the Legislature has power to so enact. Courts are charged with the duty to determine whether there is a substantial difference between the general and the local law, but cannot invade the legislative domain to determine whether a county should have a local law substantially different and in addition to the state law.” 220 Ala. at 235, 124 So. at 526.

In Limestone, the Court was faced with a problem similar to the instant case. The Legislature in 1923 had passed a general law imposing a gallonage tax of 2 cents on motor fuels and a later act divided this money equally between the 67 counties of the State for the construction and maintenance of bridges and public roads. The Legislature, in 1927, then passed a local act authorizing the Court of County Commissioners of Limestone County to levy an additional 3-cent tax on all motor fuels in Limestone County.

The taxpayers in Limestone contended in brief:

“It [the tax] violates section 105 of the Constitution, providing that no special, private, or local law shall be enacted in any case provided for by general law.” 220 Ala. at 233, 124 So. at 526.

Mr. Justice Bouldin, speaking for the Court, responded, saying:

“Certainly the 3-cent gallonage tax in the Limestone County Act is not the same tax levied by the general law. It is an additional tax.” 220 Ala. at 236, 124 So. at 526.

We find no significant distinction between a valid local act which assesses an additional tax on gasoline and a local act which assesses an additional tax on the severance of coal.

Likewise, in In re Opinion of the Justices, 266 Ala. 363, 96 So.2d 634 (1957), this Court opined that an additional automobile license tax imposed by Lauderdale County in face of a general law licensing the use of automobiles was not constitutionally proscribed. See also Steadman v. Kelly, 250 Ala. 246, 34 So.2d 152 (1948).

The policy argument that Cullman County is benefiting at the expense of the rest of the State (the principal market for coal being outside Cullman County) is a compelling one. But it cannot overcome the constitutional grant of legislative power to make such policy decisions.

We are also impressed with the contention, from the standpoint of policy, that a lack of uniformity in the levying of this tax from one coal-producing county to another is undesirable in a growing and essential State industry. But, here again, this is a policy argument to be addressed to the legislature.

It must be remembered that one of the predominant themes of the Constitution of Alabama of 1901 is found in the restrictions placed on home rule. Power denied to local governments is reserved to the State Legislature; and, subject only to constitutional proscriptions, the Legislature is free to determine policy and enact local laws accordingly. State v. Steele, 263 Ala. 16, 81 So.2d 542 (1955).

AFFIRMED.

BLOODWORTH, MADDOX, FAULKNER, ALMON and BEATTY, JJ., concur.

TORBERT, C. J., and SHORES and EM-BRY, JJ., dissent.

      . The following note appears on p. 2033 at the conclusion of the Act: “This Act became a law under Section 125 of the Constitution on October 10, 1975 without approval by the Governor.”

      . The issue of the amount of the tax as being capricious and confiscatory is not raised.