author: BOWEN, Judge.

text:
    George RAYBURN v. STATE.
    3 Div. 894.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.
    Rehearing Denied Oct. 31, 1978.

      George W. Cameron, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

This is an appeal from a judgment of the Circuit Court of Butler County denying George Rayburn’s application for a writ of habeas corpus. Rayburn is in custody under an extradition warrant issued by the governor of this state ordering his return to the State of California from which he fled after pleading guilty and nolo contendere to two separate charges of grand theft.

I

Rayburn contends that the rendition warrant of the Governor of Alabama is insufficient and does not recite the necessary jurisdictional facts because it states that he is charged “by complaint, information and supporting papers”.

In Alabama, no requisition warrant for the arrest and return of a fugitive from justice shall be recognized by the governor of this state unless the demand is in writing and accompanied by “a copy of an indictment found, or by an information supported by affidavit . . . or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereon”. Section 15-9-31, Code of Alabama 1975. Before a rendition warrant is issued, the documents presented by the demanding state must show, among other things, that the accused is “lawfully charged by indictment or by an information filed by a prosecuting officer and supported by affidavit to the facts, or by an affidavit made before a magistrate in that state, with having committed a crime under the laws of that state”. Section 15-9-33, Code. These two sections operate as a guide and basis for the issuance of a warrant of extradition and must be read together. State v. Rogers, 30 Ala.App. 515, 518, 9 So.2d 758 (1942).

A prima face case of legal detention is made out when the rendition warrant recites:

“(1) that there was a demand in writing for the return of the person named in the warrant as a fugitive from justice by the executive authority of the state from which he fled, (2) that the requisition was accompanied by a copy of an indictment found, or an information or an affidavit before a magistrate, substantially charging the person demanded with a crime under the laws of the state from whose justice he fled, and (3) that the copy of the indictment, information or affidavit was authenticated by the executive authority making the demand.” Morrison v. State, 258 Ala. 410, 63 So.2d 346 (1953); State v. Parish, 242 Ala. 7, 5 So.2d 828 (1941).

Thus where the rendition warrant recites all the above jurisdictional facts, a copy of the indictment, information, or affidavit need not accompany the rendition warrant itself. Morrison, supra; Chavers v. State, 41 Ala.App. 585, 143 So.2d 187, cert. denied, 273 Ala. 705, 143 So.2d 190 (1962); State v. Smith, 32 Ala.App. 651, 29 So.2d 438 (1947); Pool v. State, 16 Ala.App. 410, 78 So. 407, cert. denied, 202 Ala. 13, 79 So. 311 (1918). Without a showing to the contrary the courts must presume that the governor acted properly in issuing the rendition warrant. Harrison v. State, 38 Ala.App. 60, 77 So.2d 384, cert. denied, 262 Ala. 701, 77 So.2d 387 (1954); Denson v. State, 36 Ala.App. 216, 57 So.2d 830, cert. denied, 257 Ala. 184, 57 So.2d 832 (1951).

When the rendition warrant recites all the above jurisdictional facts, it is not necessary for the establishment of a prima facie case that the requisition warrant and the supporting papers be introduced into evidence. Shirley, supra, citing Stinson v. State, 43 Ala.App. 27, 179 So.2d 94 (1965); State v. Freeman, 42 Ala.App. 240, 160 So.2d 12 (1964); Denson v. State, 36 Ala.App. 216, 57 So.2d 830 (1951); State v. Knight, 31 Ala.App. 174, 14 So.2d 159 (1943). However if the supporting papers are introduced into evidence it becomes the duty of the court to examine them for their sufficiency notwithstanding the introduction of a proper rendition warrant reciting the necessary jurisdictional facts. Harris v. State, 257 Ala. 3, 60 So.2d 266 (1951); Aldio v. State, 44 Ala.App. 303, 208 So.2d 212 (1967); Kelley v. State, 30 Ala.App. 21, 200 So. 115 (1941).

The prima facie presumption that the governor issued a rendition warrant on proper authority which is established by the introduction into evidence of the rendition warrant reciting the proper jurisdictional facts is rebutted where the state goes further and introduces allied papers accompanying the requisition of the governor of the demanding state and these allied papers show on their face that they are insufficient to support the requisition. Baugh v. State, 275 Ala. 319, 154 So.2d 674 (1963). Even if the rendition warrant is sufficient, a defect in the supporting papers will rebut the pri-ma facie case established by that warrant. State v. West, 42 Ala.App. 678, 178 So.2d 182 (1965); Kelley, supra.

The rendition warrant in this case stated the necessary jurisdictional facts. McGahagin v. State, 41 Ala.App. 236, 131 So.2d 425 (1961). While a technical construction might denounce this warrant as deficient in not stating that the information was “filed by a prosecuting officer and supported by an affidavit to the facts”, this quoted recital is not necessary in establishing, prima facie, the legality of the prisoner’s detention. In Morrison v. State, 258 Ala. 410, 412, 63 So.2d 346 (1953), a rendition warrant was held sufficient which recited that the prisoner was charged by “affidavit and accusation” without stating that the affidavit was “made before a magistrate”. See also Pool v. State, 16 Ala.App. 410, 78 So. 407 (1918). The fact that the rendition warrant stated that the appellant was charged by complaint as well as by information did not void the warrant though it would have been insufficient to merely state that the prisoner was charged by complaint. Hagamaker v. State, 354 So.2d 851 (Ala.Cr.App.1978); Lofton v. State, 46 Ala.App. 229, 239 So.2d 901 (1970).

The rendition warrant being sufficient, it was prima facie evidence of the facts stated therein.

“And, without more, the introduction of said warrant into evidence would have operated to cause the issues in the case to resolve themselves into two, and two only, viz: (1) Was petitioner a fugitive from justice?; and (2) Is he the identical person described in the said Governor’s warrant?” Kelley v. State, 30 Ala.App. 21, 23, 200 So. 115, 117 (1941).

Since the state did introduce the supporting papers, they must be examined to determine their sufficiency.

II

Rayburn contends that such an examination will reveal that the supporting papers totally fail to meet the standards required by law and codified in Section 15-9-31 and Section 15-9-32, Code of Alabama 1975.

The supporting papers do not contain a copy of an indictment as Rayburn was not charged by use of that instrument.

An inspection reveals that a “complaint” is the only document which was executed before a magistrate. It has been held that

“a criminal complaint sworn to before a magistrate is in fact an affidavit within the meaning of the federal statute authorizing extradition upon the production of a copy of ‘an affidavit made before a magistrate.’ The great weight of authority supports this contention. (Citations omitted).” In re Martz, 83 Idaho 72, 357 P.2d 940, 943 (1960).

In Dinkelman v. State, 43 Ala.App. 177, 184 So.2d 845 (1966), the former Alabama Court of Appeals held that a “complaint” in the form of an “affidavit” properly sworn to was a sufficient compliance with the state statute authorizing extradition upon the production of a copy of an affidavit made before a magistrate. Hagamaker v. State, 354 So.2d 851 (Ala.Cr.App.1978) and Lofton v. State, 46 Ala.App. 229, 239 So.2d 901 (1970), are not in conflict with Dinkelman and Martz. Hagamaker and Lofton only hold that a rendition warrant reciting that the accused is “charged by complaint” does not comply with the statutory requirement that the accused must be charged by indictment, information, or affidavit. This is due to the basic distinction between an affidavit and a complaint.

“(A) complaint is not necessarily an affidavit, nor are they in legal practice or contemplation understood as convertible terms. For, though a complaint may be reduced to writing and subscribed, it need not necessarily be certified by the magistrate, for the fact may otherwise appear by his records. And so a complaint may be merely formal, and made or entered by one who has little, if any, knowledge about the facts, and the examination consist of the deposition of other witnesses,—State v. Armstrong, 4 Minn. 343, 344, (Gil. 251,)—While an affidavit, as the term is ordinarily used in such cases, is understood to be a sworn statement of facts or a deposition in writing, and to include a jurat which means a certificate of the magistrate, showing that it was sworn to before him, including the date and sometimes, also, the place.” State v. Richardson, 34 Minn. 115, 24 N.W. 354, 355-356 (1885).
******
“Complaint and affidavit are not convertible terms. But if the complaint sufficiently states the criminal charge and constitutes an examination so as to authorize the issuance of a warrant of arrest, and a jurat be attached, and it is properly certified by the magistrate, it will be essentially an affidavit in the meaning of the law.” 2 J. Moore, A Treatise on Extradition and Interstate Rendition § 553 (1891).

Rayburn contends that even if the complaint in this case be considered an “affidavit made before a magistrate”, it is still insufficient because it consists entirely of conclusions, does not set forth facts which would constitute a Fourth Amendment finding of probable cause, and does not state the sources of the affiant’s knowledge.

The rule is stated in 31 Am.Jur.2d Extradition § 38.

“In interstate extradition proceedings, a complaint sworn to by a person who does not pretend to have any personal knowledge of the facts, but who merely states the charge on his information and belief, is generally insufficient to support rendition of the accused. It is said that to hold otherwise would enable irresponsible people to make false charges against those with whom they are at enmity and would permit them to secure the arrest of innocent persons on papers regular in form but fraudulent in fact. But in some jurisdictions a complaint may be made on information and belief, provided the affi-ant or complainants sets forth the sources and details of the information on which it is based.”

See also Compton v. State, 152 Ala. 68, 73-74, 44 So. 685 (1907).

Under either test, personal knowledge or information and belief with the sources and details of the information, the complaint in the present case is insufficient. The complaint merely recites that “L. Harper being duly sworn complains and says” that on a given date the appellant committed a specified crime. “L. Harper” is never identified. The complaint is not made on information and belief nor is any source or detail of the information set forth.

Rayburn also alleges that the complaint, even if it be considered an affidavit made before a magistrate, is insufficient because it states only conclusions and recites no underlying facts. While there is authority to the contrary, the general rule is that

“Where the [extradition] proceeding is based on an affidavit, the affidavit must contain facts from which the governor of the asylum state may determine that there is probable cause to believe that the person demanded committed the crime with which he is charged; it should set forth the facts and circumstances relied on to prove the crime, or it must set out the alleged crime with sufficient explicitness to apprise the governor who receives it of the facts which constitute the offense, while an indictment is prima facie evidence of probable cause.” 35 C.J.S. Extradition § 14(7).

Kirkland v. Preston, 128 U.S.App.D.C. 148, 385 F.2d 670 (1967), held that an affidavit delivered to the chief executive of the asylum jurisdiction does not succeed in “charging” a crime for purposes of extradition unless the affidavit sets out facts which justify a Fourth Amendment finding of probable cause. See also Wellington v. South Dakota, 413 F.Supp. 151 (D.S.D.1976); Montague v. Smedley, 557 P.2d 774 (Alaska 1976); Hammond v. State ex rel. Davis, 244 Ark. 186, 424 S.W.2d 861, cert. denied, 393 U.S. 839, 89 S.Ct. 116, 21 L.Ed.2d 109 (1968); Pippin v. Leach, 188 Colo. 385, 534 P.2d 1193 (1975); Brode v. Power, 31 Conn.Sup. 411, 332 A.2d 376 (1974); Grano v. State, 257 A.2d 768 (Super.Ct.Del.1969); People ex rel. Kubala v. Woods, 52 Ill.2d 48, 284 N.E.2d 286 (1972); Application of Evans, 512 S.W.2d 238 (Mo.1974); Sheriff, Clark County v. Thompson, 85 Nev. 211, 452 P.2d 911 (1969); People ex rel. Davis v. Skinner, 38 A.D.2d 673, 327 N.Y.S.2d 124 (1971); State v. Hughes, 68 Wis.2d 662, 229 N.W.2d 655 (1975). Since the instant complaint states only bare conclusions it will not support a finding of probable cause.

Ill

The final test we must apply in determining whether the supporting papers are sufficient to support the rendition warrant concerns the information filed by a prosecuting officer and supported by an affidavit to the facts. The supporting papers contain two informations filed by “Mark E. Melzer, Deputy District Attorney” for “James M. Cramer, District Attorney, County of San Bernardino, State of California”. The appellant initially contends that the information is insufficient because there is no certification that Melzer is a prosecuting officer. The requisition warrant itself is signed by the Governor of the State of California and states that the information is “duly authentic and duly authenticated under the laws of the State of California”. It. is not necessary that the Deputy District Attorney be certified as a prosecuting officer. The papers accompanying a requisition for extradition need not be exemplified as required by the federal statutes; they only need be certified as authentic. Smith v. State, 45 Ala.App. 423, 231 So.2d 345 (1970); State v. Curry, 2 Ala.App. 251, 56 So. 736 (1911). The infor-mations are certified by V. Dennis Wardle, County Clerk and Ex Officio Clerk of the Superior Court of San Bernardino County, as being full, true, and correct copies of the originals on file in his office. Wardle is properly certified as being the County Clerk and Ex Officio Clerk of the Superior Court. Both informations bear the seal of the county court. This constitutes sufficient authentication.

The appellant further contends that even if the informations are proper the rendition warrant is still not supported because there is no affidavit to the facts accompanying the information.

In the District Attorney’s Application for Extradition there appears a “Factual Statement”. The facts in that statement do not concern the same victims as do the informations. The requirement that the information be supported by affidavit to the facts can only mean by affidavit to the facts supporting the particular information. For this reason alone the “Factual Statement” cannot serve as an affidavit to the facts supporting the informations.

The supporting papers do contain an affidavit filed by the District Attorney of San Bernardino County. That affidavit, in substance, merely recites that the appellant has committed a number of specified felonies in the county, that he was charged by criminal complaint, that a warrant was issued for his arrest, that the appellant pled guilty to one felony charge of grand theft and nolo contendere to another felony charge of grand theft, that when he failed to appear for Pronouncement of Judgment a bench warrant was issued for his arrest, and that the appellant is presently in the custody of the Sheriff’s Office of Butler County, Alabama. However, as with the “Factual Statement” in the 'Application for Extradition, this affidavit does not state the facts behind either information and for that reason cannot serve as the affidavit supporting the information required by the extradition statutes.

A similar question was based by the Appeals Court of Massachusetts in In re Moore, 2 Mass.App. 399, 313 N.E.2d 893 (1974). There the petitioner argued the Governor of California’s alleged failure to comply with the provisions of G.L. c. 276 § 14 which is identical in relevant part to our § 15-9-31, Code of Alabama 1975. The petitioner read this section and its federal counterpart, 18 U.S.C. § 3182, to require that a demand for rendition based on a criminal information be accompanied by an affidavit containing facts which would support a finding of probable cause against the person whose rendition is sought.

“An examination of California practice reveals that an information may be filed against an accused only after he has been examined and a finding of probable cause has been made by a magistrate. See California Constitution, art. 1, § 8; Parks v. Superior Court, 38 Cal.2d 609, 611, 241 P.2d 521 (1952). The examination provided for by California law is held pursuant to a written complaint filed in court. Wilson v. Harris, 351 F.2d 840, 843 (9th Cir. 1965), cert. den., 383 U.S. 951, 86 S.Ct. 1213, 16 L.Ed.2d 213 (1966). The accused is entitled to the assistance of counsel at the examination (California Constitution, art. 1, § 8) and has the right to cross-examine prosecution witnesses and to present witnesses in his own behalf. Jones v. Superior Court, 4 Cal.3d 660, 667, 94 Cal.Rptr. 289, 483 P.2d 1241 (1971), and cases cited. If it appears from the examination that the offense charged has been committed and that there is probable cause to believe the accused guilty thereof, the magistrate orders the accused held for trial, in which event an information is filed against him; otherwise, the accused is discharged. See Wilson v. Harris, supra.
“The California process described above differs substantially from the procedure employed in other jurisdictions. In those states which permit prosecution by information it is typically ‘a written accusation of crime preferred by a public prosecuting officer without the intervention of a grand jury.’ Anderson, Wharton’s Criminal Law and Procedure, § 1723. 41 Am.Jur.2d Indictments and Informations, § 1. See People v. Bessenger, 273 App.Div. 19, 23, 75 N.Y.S.2d 392 (N.Y.1947). In light of the nature of the usual criminal information, the reason for the affidavit requirements embodied in §§ 14 and 3182 is clear: since an information is customarily not based on a finding of probable cause, an affidavit is necessary to furnish ‘some proof of the probable guilt of the accused . . . (and) to prevent his removal on unfounded accusations.’ See In re Fritz, supra, 137 N.J.Eq. at 188, 44 A.2d at 416. That purpose is served in California by the requirement that an information be filed pursuant to a judicial determination of probable cause.
“We are of the opinion that the term ‘information’ as used in G.L. c. 276, § 14, refers to the practice, common in a number of states, of initiating criminal prosecutions on the bare accusation of a public official, and not to the more rigorous process employed by the State of California in the case at bar. We hold that California’s information procedure includes all the safeguards which the affidavit requirements of G.L. c. 276, .§ 14, and 18 U.S.C. § 3182 were intended to provide and, consequently, that supporting affidavits were not required in the circumstances of the case at bar. Finally, because the issuance of the present information was necessarily predicated upon a prior judicial finding of probable cause, the California demand met such requirements as may exist by virtue of the Fourth Amendment to the Constitution of the United States.” In re Moore, 313 N.E.2d 895, 896.

We concur in the reason and logic of the Massachusetts Appeals Court. Applying that doctrine to this case, we conclude that a supporting affidavit was not required under these circumstances. Therefore the California demand and supporting papers furnished a sufficient basis for the issuance of the rendition warrant by the governor of this state.

IV

The function of courts in extradition proceedings is statutory and is to insure that a proper formal charge exists against the accused and that he is a fugitive. Krenwinkel v. State, 45 Ala.App. 474, 232 So.2d 346 (1970). In an extradition proceeding the guilt or innocence of the accused is not presented and may not be inquired into except as it may be material in identifying the person charged and in determining whether he was a fugitive from justice. Kilgore v. State, 261 Ala. 465, 75 So.2d 126 (1954); State v. Parish, 242 Ala. 7, 5 So.2d 828 (1942); State v. Shelton, 30 Ala.App. 484, 8 So.2d 216 (1942). Except for these two purposes, evidence tending to-show guilt or innocence is irrelevant. Williams v. State, 41 Ala.App. 184, 130 So.2d 351, cert. denied, 272 Ala. 713, 130 So.2d 354 (1961). An inquiry into this issue is expressly prohibited by § 15-9-47, Code of Alabama 1975. For these reasons the court did not err in refusing to permit Rayburn to testify that he did not sign the guilty plea.

V

Rayburn contends that under the provisions of § 15-9-38(b), Code of Alabama 1975, notice of the hearing on the petition for the writ of habeas corpus must be given to the agent of the demanding state before the court can acquire jurisdiction to hear the petition. We disagree.

Section 15-9-38(b) provides in pertinent part as follows:

“when such writ (of habeas corpus to test the legality of the arrest) is applied for, notice thereof, and for the time and place of hearing thereon, shall be given to the public prosecuting officer of the county in which the arrest is made and in which the accused is in custody, and to the said agent of the demanding state.”

Rayburn cites People v. Warden of New York, 243 App.Div. 450, 277 N.Y.S. 726 (1933), for the proposition that the failure to give such notice is a jurisdictional fact and not a mere irregularity. That case actually held that

“No notice having been given to the district attorney of Bronx county from which the relator was committed, the court was without power to sustain the writ and discharge the prisoner. Failure go give such notice was not an irregularity, but a jurisdictional defect.” Warden, 277 N.Y.S. 727 (Emphasis supplied).

See also People ex rel. Schildhaus v. Dros, 14 Misc.2d 126, 178 N.Y.S.2d 656 (1958); People v. Woods, 17 Ill.App.3d 889, 309 N.E.2d 27 (1974).

In a petition for writ of habeas corpus to secure the release of a petitioner held under a contempt citation for the violation of an injunction issued in a labor dispute, it was held that the employer was an interested party and was entitled to notice of the proceedings under § 15-21-12, Code 1975. However where the writ was denied the employer was not injured by the failure of notice. Boyd v. State, 42 Ala.App. 183, 158 So.2d 116, cert. stricken, 275 Ala. 677, 158 So.2d 115 (1962). In this instance we certainly do not see how the appellant could have been injured by the failure of the receiving agent of the demanding state to receive notice.

Moreover we note that the statute does not fix the burden of giving such notice upon any specific party. In Dros, 14 Misc.2d 126, 178 N.Y.S.2d 658, the court noted that:

“The relator having failed to give notice to the district attorneys of the counties within which he was detained (Bronx) and from which he was committed (New York), no order may be made for his discharge.”

This matter of notice to the receiving agent of the demanding state is not jurisdictional. Since the appellant raised no objection concerning notice at his hearing, he cannot raise such issue on appeal. Speed v. Speed, 341 So.2d 156 (Ala.Civ.App.1976).

We have carefully searched the record and found no error prejudicial to the rights of the appellant. It is our finding that the extradition record filed with the Governor of this state fulfilled the statutory requirements and conferred the proper jurisdiction to authorize the issuance of the rendition warrant and legal detention of the appellant. Therefore the judgment of the circuit court denying Rayburn’s petition for writ of habeas corpus is affirmed.

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

author: BLOODWORTH, Justice.

license: Public Domain

text:
    In re George RAYBURN v. STATE of Alabama. Ex parte George RAYBURN.
    78-65.
    Supreme Court of Alabama.
    Jan. 5, 1979.
    Rehearing Denied Jan. 19, 1979.

      George W. Cameron, Jr., Montgomery, for petitioner.
    William J. Baxley, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen., for the State of Alabama, respondent.
   BLOODWORTH, Justice.

Certiorari was granted to review the decision of the Court of Criminal Appeals affirming the denial of a writ of habeas corpus. We affirm.

The facts are briefly, stated in the decision of the Court of Criminal Appeals. Petitioner asserts that he is being held under an extradition warrant illegally because the supporting papers do not meet the requirements of the law. The Court of Criminal Appeals found that the supporting papers were sufficient, and we agree.

Petitioner’s sole contention on certiorari is that the Court of Criminal Appeals erred in taking “judicial notice” that the laws of a foreign state, California, are different from the laws of Alabama. He argues that foreign law is presumed to be the same as the law of Alabama in the absence of proof to the contrary.

In answering petitioner’s contention, we take note that the Alabama Rules of Civil Procedure apply to habeas corpus proceedings to the extent that the practice in this matter is not provided by statute. Rule 81(a)(13), ARCP. Rule 44.1, ARCP, states that a determination of foreign law is a question of law. Foreign law no longer must be pleaded and proved as a fact. Goodman v. Director of the Department of Public Safety, 332 So.2d 396 (Ala.Civ.App.1976).

Since it is a question of law, a determination of foreign law is subject to review on appeal by the appropriate appellate court and on certiorari by the Supreme Court. See 9 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2446 (1971).

The Court of Criminal Appeals was faced with the question of the sufficiency under Alabama law of the supporting papers, accompanying the rendition warrant. It determined that there was neither an indictment nor a proper affidavit made before a magistrate among the supporting papers. The court did find that there was an information which was not supported by an affidavit to the facts, but held that the information alone was sufficient. To reach this conclusion, the court necessarily had to determine the relevant California law regarding an information.

All appellate courts must, through research, obtain knowledge of their own state’s legislative acts and judicial decisions in order to interpret statutes and apply the law to the facts. This is not “judicial notice,” as that term is used in the law of evidence, but may be more properly characterized as “judicial knowledge” gained through research. The determination of what is the forum state’s law is a fundamental part of the judicial function.

There is no justification, other than the notice requirements of Rule 44.1, for treating a question of a foreign state’s law any differently from a question of the laws of Alabama. Committee Comment, Rule 44.1, ARCP. See C. Wright & A. Miller, supra, § 2446. Determination of foreign law, like any other question of law before an appellate court, may be resolved by reference to the foreign state’s statutory and case law.

Our own research reveals that the California law in effect during all phases of this proceeding was, and is now, the same as that construed in In re Moore, 2 Mass.App. 399, 313 N.E.2d 893 (1974), the case cited and relied upon by the Court of Criminal Appeals.

We agree with the Court of Criminal Appeals that an affidavit supporting the information is not necessary in the instant case because California law requires a hearing and a finding of probable cause before an information may issue. Cal.Penal Code §§ 739, 858-872 (West 1970 & Supp.1978). The California procedure fulfills the purpose of an affidavit, which merely serves to ensure good faith in the initiation of the prosecution. Pierce v. State, 38 Ala.App. 97, 77 So.2d 507 (1954), cert. denied, 262 Ala. 702, 77 So.2d 512 (1955).

For the foregoing reasons, the decision of the Court of Criminal Appeals is due to be affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


author: PER CURIAM. BLOODWORTH, Justice. JONES, Justice BEATTY, Justice

text:
    TRANS-LUX CORPORATION, a Delaware Corporation, and Gus Roberts v. STATE of Alabama ex rel. Eugene SWEETON, Chief of Police of the City of Huntsville, Alabama.
    77-651.
    Supreme Court of Alabama.
    Jan. 19, 1979.

      Julian D. Butler and Steven R. Berry-man, of Butler & Potter, Huntsville, for appellants.
    Charles H. Younger, Huntsville, for ap-pellee.
   PER CURIAM.

This is an appeal from a judgment holding that the exhibition of the motion picture “The Opening of Misty Beethoven” in an enclosed movie theater constitutes a nuisance abatable under the Alabama Red Light Abatement Act, §§ 6-5-140 to -154 (Code 1975). The judgment permanently enjoined the defendants from exhibiting the motion picture. We affirm.

This action was commenced by Eugene Sweeton, Chief of Police of the City of Huntsville, as a private citizen, seeking both a preliminary injunction and a permanent injunction to halt the showing of the film “The Opening of Misty Beethoven” at the Trans Lux Twin Theatre in Huntsville. He alleged that the film was lewd and obscene, and that the knowing and wilful showing of such a film by the defendants constituted an abatable nuisance under §§ 6-5-140 to -154 (Code 1975).

The theater is an enclosed motion picture house showing a variety of movies for which an admission price is charged, including an occasional “X” rated film. The movie in question was shown at the Trans Lux Theatre from August 5,1977, until September 2, 1977, and from September 13, 1977, until October 3, 1977. It was stipulated that no member of the public under the age of eighteen years was admitted to view the film.

On August 13, 1977, four members of the Huntsville Police Department vice squad viewed the film at the theater. Vice squad officers viewed the film partially or in its entirety on at least three subsequent occasions. Sweeton filed his complaint on September 16, 1977. The trial judge set a hearing on the application for a preliminary injunction on September 22, 1977, but continued it until October 3,1977, on motion of the defendants, who had not been served with a summons until fifteen minutes before the hearing.

After the hearing on October 3, during which the trial judge viewed the film, he issued an order finding that “The Opening of Misty Beethoven” is “obscene under the laws of the State of Alabama * * *, and as such is not within the scope of speech protected by the First Amendment to the Constitution of the United States.” The court found that the exhibition of the obscene film constituted a public nuisance and enjoined the defendants from showing it pending a final determination on the merits. There was no express finding as to the standards followed by the trial court in determining the obscenity vel non of the film.

A final hearing was held on March 16, 1978. No new evidence was presented. The court’s order dated March 20, 1978, found that exhibiting the film constituted a public nuisance and permanently enjoined the defendants from exhibiting that specific motion picture. Defendants appealed following denial of their motion for á new trial.

Two issues are raised on this appeal. I. May the Alabama Red Light Abatement Act, §§ 6-5-140 to -154 (Code 1975), be applied to the exhibition of a single motion picture found to be obscene? II. If so, is this film, “The Opening of Misty Beethoven,” obscene? We answer both questions in the affirmative.

I.

The question of the applicability of our Red Light Abatement Act to motion pictures has been considered by this Court on one prior occasion, General Corp. v. State ex rel. Sweeton, 294 Ala. 657, 320 So.2d 668 (1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1494, 47 L.Ed.2d 753 (1976), “Sweeton L” A discussion of that case is a necessary preliminary to the resolution of the first issue presented by this appeal.

In Sweeton I, a complaint was filed under the Red Light Abatement Act by the same party who filed the action in the instant case, i. e., the Chief of Police of the City of Huntsville. The complaint alleged that the defendant had continuously shown obscene films over a period of nineteen months in the Fox Cinema Theatre, an enclosed adult movie house. The trial judge found that the movies shown were obscene and that the exhibition of the movies was a public nuisance. The court ordered that the defendant be perpetually enjoined from maintaining the nuisance, that all personal property in the theater be sold, and that the theater be closed for all purposes for one year. This court reversed. Mr. Justice Al-mon authored the plurality opinion with which Justices Merrill, Faulkner, and Em-bry concurred. Justice Maddox concurred specially, Justice Jones concurred in the result, and Chief Justice Heflin and Justices Bloodworth and Shores concurred in the result in an opinion authored by the Chief Justice. The specific holding, as stated in the plurality opinion, was that “the Alabama Red Light Abatement Act cannot constitutionally be employed to enjoin prospectively the showing of films in enclosed movie theatres to an adult audience * Sweeton I, supra, 294 Ala. at 666, 320 So.2d at 676. The constitutional defect contained in the trial court’s judgment was the closing of the theater for one year for all purposes, which amounted to prior restraint at its worst.

The plurality and the special concurrence did not close the door to all possible application of the Red Light Abatement Act to obscene movies. During the course of the opinion, the plurality made the following observations regarding the use of the Red Light Abatement Act in the area of first amendment rights (with which conclusions Justice Maddox concurred):

(1) Traditionally, continuing activity contrary to public morals or decency is a public nuisance. 294 Ala. at 663, 320 So.2d at 672-73.
(2) The use of the definition of obscenity contained in the criminal obscenity statutes is proper in this civil proceeding. 294 Ala. at 664, 320 So.2d at 673.
(3) The Miller standards are incorporated into the definitions contained in the Red Light Abatement Act. 294 Ala. at 664, 320 So.2d at 674.
(4) There is no indication that the legislature intended either to include or exclude the application of the Act to obscene material. Id.
(5) The complaining party has the burden of proof on the question of obscenity under the Act. 294 Ala. at 664-65, 320 So.2d at 674.
(6) The Act meets all requirements for prompt judicial review of any suppression of the defendant’s activities. 294 Ala. at 665, 320 So.2d at 674-75.
(7) The closing of a theater for all purposes in this situation, as required by §§ 6-5-147 and -151(b) (Code 1975), is not constitutionally permissible. 294 Ala. at 665-66, 320 So.2d at 675-76.

The plurality opinion then stated two first amendment situations in which the Act might permissibly be used, the first of which is the precise situation present in the instant case:

“The first would be where the impact of the injunction is absolutely devoid of prior restraint or chilling effect upon prospective exercises of expression other than that adjudicated as obscene. More specifically, where there has been a prompt adversary proceeding in which all the requisite constitutional standards for ascertaining the issue of obscenity have been met and the particular film has been found to be obscene; future exhibition of that particular film may well constitute a public nuisance and be permanently enjoined as such. . . . ”

294 Ala. at 666, 320 So.2d at 676.

We reaffirm Sweeton I in concluding that the Red Light Abatement Act may be used to enjoin permanently as a nuisance the exhibition of a particular motion picture found to be obscene, if the provisions of the Act ensuring prompt judicial review of the question of obscenity and providing for a prompt hearing on the merits of the permanent injunction are followed.

The initial section of the Red Light Abatement Act, § 6-5-140 (Code 1975), defines nuisance as “[a]ny place in or upon which lewdness, assignation or prostitution is conducted, permitted, continued or exists and the personal property and contents used in conducting or maintaining any such place for any such purpose.” (Emphasis added.)

We conclude that “lewdness” includes the exhibition of an obscene motion picture in a public place, such as an enclosed motion picture theater, and that a motion picture is “obscene” if it meets the definition of “obscene” contained in our criminal statutes, § 13-7-161 or § 13-7-180 (Code 1975). Section 13-7-180, as written, incorporates the guidelines set forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). This Court, by judicial construction, incorporated the Miller standards into § 13-7-161 in Pierce v. State, 292 Ala. 473, 296 So.2d 218 (1974), cert. denied, 419 U.S. 1130, 95 S.Ct. 816, 42 L.Ed.2d 830 (1975).

Examples of sexual conduct which may be found to be obscene when depicted on film are set out with specificity in § 13-7-180. While § 13-7-161 does not contain such a list, the incorporation of the Miller standards into this section supplies sufficient notice of what is obscene, i. e., patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

We reaffirm the seven principles or observations from Sweeton I, listed herein-above, including the incorporation of Miller standards into the Act. The United States Supreme Court, in Miller, invited such incorporation to provide the required specificity to statutes which would otherwise be too broad. Miller v. California, 413 U.S. at 24 & n.6, 93 S.Ct. 2615 & n.6, 37 L.Ed.2d at 430 & n.6. Accord, United States v. 12 200-Ft. Reels of Super 8mm. Film, 413 U.S. 123, 130 n.7, 93 S.Ct. 2665, 2670 n.7, 37 L.Ed.2d 500, 507 n.7 (1973). Moreover, the United States Supreme Court commented favorably upon the use of civil injunction statutes against obscene materials, provided constitutional standards are followed to determine whether or not the materials are obscene. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 54-55, 93 S.Ct. 2628, 2633-34, 37 L.Ed.2d 446, 455 (1973).

' Alabama is not the only state to sanction the use of a civil nuisance statute to combat obscenity. The Ohio Court of Appeals enjoined the exhibition of the film “Without a Stitch,” employing a civil nuisance statute almost identical to our Red Light Abatement Act, with one important exception. The Ohio Red Light Abatement Act specifically covers movie “films.” State ex rel. Ewing v. “Without a Stitch", 28 Ohio App.2d 107, 276 N.E.2d 655 (1971). A majority of this Court agreed in Sweeton I, supra, and we reaffirm today that the Alabama statute covers movies.

The Ohio Court of Appeals’ decision was modified and affirmed by the Ohio Supreme Court at 37 Ohio St.2d 95, 307 N.E.2d 911 (1974). On appeal to the U.S. Supreme Court, the defendant asserted that the Ohio nuisance statute was constitutionally defective on a number of grounds, including (1) overbreadth of the definition of nuisance through the Ohio Supreme Court’s engraft-ing upon the statute the definitions of obscenity contained in Ohio’s criminal statutes.; (2) issuance of temporary restraining orders and preliminary injunctions before a hearing; (3) prior restraint through closing of the theater for all purposes for one year; and (4) lack of assurance of prompt hearings. Appellant’s Jurisdictional Statement at 7-12. The U.S. Supreme Court dismissed the appeal for want of a substantial federal question. Art Theater Guild, Inc. v. Ewing, 421 U.S. 923, 95 S.Ct. 1649, 44 L.Ed.2d 82 (1975).

A dismissal by the U.S. Supreme Court for want of a substantial federal question is a determination on the merits of the issues presented for review. State courts are bound by the finding that a question is unsubstantial until the U.S. Supreme Court informs them otherwise. Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). Therefore, the finding in the Ewing case that the four issues listed above are not substantial federal questions provides further support for the view that the Alabama Red Light Abatement Act may be employed to halt-the exhibition of an obscene motion picture. See also Slaton v. Paris Adult Theatre I, 231 Ga. 312, 201 S.E.2d 456 (1973), cert. denied, 418 U.S. 939, 94 S.Ct. 3227, 41 L.Ed.2d 1173 (1974); Evans Theatre Corp. v. Slaton, 227 Ga. 377, 180 S.E.2d 712, cert. denied, 404 U.S. 950, 92 S.Ct. 281, 30 L.Ed.2d 267 (1971).

II.

Having determined that the Red Light Abatement Act may be applied to the exhibition of a single obscene movie, we must now determine whether or not the film “The Opening of Misty Beethoven” is “obscene.”

In Alabama, appellate courts are to make an independent determination of obscenity, regardless of the determination made by the trial court. Pierce v. State, supra.

This movie has been viewed, and the Court finds it is “obscene.” The average person, applying contemporary community standards, would find that the film, taken as a whole, appeals to the prurient interest.

The community standards considered are statewide standards. Pierce v. State, supra. Appellants complain that the appellee presented no evidence of community standards but they do not contend that they themselves were prevented from introducing such evidence. This is not a ground for reversal, however, since the complaining party need not present any “expert” testimony to prove obscenity once the allegedly obscene material is itself placed in evidence. Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973); Paris Adult Theatre I v. Slaton, supra.

The film depicts, in a patently offensive way, sexual conduct, actual and simulated, normal and perverted. There are numerous scenes of explicit sexual conduct between members of the same sex and members of the opposite sex, including cunnilingus, sexual intercourse, masturbation, and fellatio. These scenes are not isolated instances, but instead are repetitive displays of explicit sexual conduct.

The film, taken as a whole, lacks serious literary, artistic, political or scientific value. The dominant theme is the exploitation of sex and nudity. Appellants do not pretend that the movie is serious art, or expresses a serious political viewpoint or serves some serious scientific purpose. They do contend that the movie is not obscene and cite the testimony of several vice squad officers, who testified that the film was boring, funny, and softcore. But, as we have already noted, expert affirmative evidence is not required to prove obscenity once the materials themselves are placed in evidence. The film itself is the best evidence of what it represents. Paris Adult Theatre I, supra, 413 U.S. at 56, 93 S.Ct. at 2634-35, 37 L.Ed.2d at 456.

We point out, as we did in Sweeton I, that our holding today should not be considered a green light for prospective control by the Red Light Act of individual obscene films.

Application of the Red Light Abatement Act must be accompanied by strict observation of first amendment rights and safeguards. For example, the closing of the place found to be a nuisance, for all purposes for. one year, as required in §§ 6-5-147 and -151(b), cannot be applicable to first amendment rights, for this would constitute an impermissible prior restraint.

It would be desirable, although not strictly necessary, for the trial judge to explain in his order the standards he followed in determining obscenity vel non, both as an aid to appellate review as well as to avoid the appearance of arbitrary action.

To further protect first amendment rights, trial courts must follow § 6-5-149 (Code 1975), which provides that a Red Light Abatement action has priority over all other actions except injunctions. This provision ensures a prompt, final determination on the merits before a permanent injunction may issue.

The policy underlying the regulation of obscenity, whether by civil nuisance statutes or by criminal penalties, is set forth in the following excerpt from Paris Adult Theatre I v. Slaton, supra, which we feel expresses the views of the majority of the citizens of Alabama:

“In particular, we hold that there are legitimate state interests at stake in stemming the tide of commercialized obscenity, even assuming it is feasible to enforce effective. safeguards against exposure to juveniles and to passersby. Rights and interests ‘other than those of the advocates are involved.’ Breard v. Alexandria, 341 U.S. 622, 642, 71 S.Ct. 920, 932, 95 L.Ed. 1233 (1951). These include the interest of the public in the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself. The Hill-Link Minority Report of the Commission on Obscenity and Pornography indicates that there is at least an arguable correlation between obscene material and crime. Quite apart from sex crimes, however, there remains one problem of large proportions aptly described by Professor Bickel:
‘It concerns the tone of the society, the mode, or to use terms that have perhaps greater currency, the style and quality of life, now and in the future. A man may be entitled to read an obscene book in his room, or expose himself indecently there We should protect his privacy. But if he demands a right to obtain the books and pictures he wants in the market, and to foregather in public places — discreet, if you will, but accessible to all— with others who share his tastes, then to grant him his right is to affect the world about the rest of us, and to impinge on other privacies. Even supposing that each of us can, if he wishes, effectively avert the eye and stop the ear (which, in truth, we cannot), what is commonly read and seen and heard and done intrudes upon us all, want it or not.’ 22 The Public Interest 25-26 (Winter 1971). (Emphasis added.)”
“As Mr. Chief Justice Warren stated, there is a ‘right of the Nation and of the States to maintain a decent society . . ,’ Jacobellis v. Ohio, 378 U.S. 184, 199, 84 S.Ct. 1676, 1684, 12 L.Ed.2d 793 (1964) (dissenting opinion). See Memoirs v. Massachusetts, 383 U.S. 413, 457, 86 S.Ct. 975, 996, 16 L.Ed.2d 1 (1966) (Harlan, J., dissenting); Beauharnais v. Illinois, 343 U.S. 250, 256-257, 72 S.Ct. 725, 730-731, 96 L.Ed. 919 (1952); Kovacs v. Cooper, 336 U.S. 77, 86-88, 69 S.Ct. 448, 453-454, 93 L.Ed. 513 (1949).” [Footnotes omitted.]

413 U.S. at 57-60, 93 S.Ct. at 2635-36, 37 L.Ed.2d at 457-58.

AFFIRMED.

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

BLOODWORTH and SHORES, JJ., concur specially.

JONES and BEATTY, JJ., dissent.

BLOODWORTH, Justice.

(concurring specially.)

Because I concurred in Chief Justice Hef-lin’s special concurrence in General Corp. v. State ex rel. Sweeton, 294 Ala. 657, 320 So.2d 668 (1975) (Sweeton J), I should explain why I am now concurring in this opinion.

I continue to adhere to the views expressed by Chief Justice Heflin that the definitional infirmities in the Alabama Red Light Abatement Act may not be cured by judicial construction because the United States Supreme Court, in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), specifically invited judicial construction as a method of supplying the required specificity in an obscenity statute, but not in a Red Light Abatement Act, which Acts have consistently been applied to houses of prostitution, etc., sought to be abated as public nuisances. See, e. g., State ex rel. Cahalan v. Diversified Theatrical Corp., 396 Mich. 244, 240 N.W.2d 460 (1976), and cases therein cited.

In Cahalan, supra, the Michigan Supreme Court specifically refused to apply the Michigan Red Light Abatement Act to motion picture theaters. The Michigan act is almost identical to the Alabama act. California, Illinois, Iowa, New Mexico, and Pennsylvania have also refused to apply Red Light Abatement acts to motion picture theaters. People ex rel. Busch v. Projection Room Theater, 17 Cal.3d 42, 130 Cal.Rptr. 328, 550 P.2d 600, cert. denied, 429 U.S. 922, 97 S.Ct. 320, 50 L.Ed.2d 289 (1976); People v. Goldman, 7 Ill.App.3d 253, 287 N.E.2d 177 (1972); State ex rel. Faches v. N.D.D., Inc., 228 N.W.2d 191 (Iowa 1975); State ex rel. Murphy v. Morley, 63 N.M. 267, 317 P.2d 317 (1957); Commonwealth v. MacDonald, 464 Pa. 435, 347 A.2d 290 (1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976).

So far as I have been able to determine, Alabama is the only state which has applied a Red Light Abatement Act to “movie theaters” when the latter term is not specifically referred to in the act itself. Nevertheless, a majority of this Court having committed the Court to this view in Sweeton I, I am bound to follow the majority and therefore concur in this opinion.

SHORES, J., concurs.

JONES, Justice

(dissenting):

I dissent. My views are expressed in my dissenting opinion in McKinney v. City of Birmingham, 292 Ala. 726, 296 So.2d 236 (1974).

BEATTY, Justice

(dissenting):

I was not a member of this Court when General Corporation v. State ex rel. Sweeton, 294 Ala. 657, 320 So.2d 668 (1975), i. e., Sweeton I, was decided. Consequently, I believe my analysis of the portions of that opinion which underlie the majority position today is proper and I feel adds weight to my dissent here. My reasons for dissenting are varied. The first portion is directed toward the misapplication of the law which the majority of this Court is working with. The second aspect of my dissent contains the reasons why I feel the law which this Court has not stated should govern this and all cases dealing with the unique freedom of expression possessed by American citizens.

I.

First, I do not believe that the Red Light Abatement Act, § 6-5-140, et seq., Ala. Code 1975 was intended by the Alabama Legislature to apply to obscenity.

Before today the first occasion in which such an act was held to cover the amorphous area of “obscenity” was in Sweeton I. That holding was against the full weight of authority across this land (as Mr. Justice Bloodworth points out in his concurrence today). Further, and perhaps more importantly, before Sweeton I the Alabama case law approved the application of the Red Light Abatement Act only to places of prostitution. See e. g., Ridge v. State ex rel. Tate, 206 Ala. 349, 89 So. 742 (1921) (Act applicable to a hotel or disorderly house wherein lewdness, assignation and prostitution occurred, and which was a source of venereal disease menacing the public health); and Brown v. State ex rel. Wright, 222 Ala. 623, 133 So. 913 (1931) (place of assignation and prostitution). Our case law has expressly held the Act not applicable in the following areas:

1. Act not applicable to a “honky tonk” where there is dancing and drinking on Sundays, and after 11 o’clock P.M. on week nights. Howard v. State ex rel. Andrews, 238 Ala. 185, 190 So. 278 (1939).
2. Statute inapplicable to gambling nuisances. Young v. State ex rel. Almon, 253 Ala. 312, 45 So.2d 29 (1950).
3. Situation where alcoholic beverages were being sold in a location not zoned for it held not within definition of nuisance under Tit. 7, § 1091, Ala.Code 1940 (presently § 6-5-140, Ala. Code 1975). Kendrick v. King, 263 Ala. 487, 83 So.2d 241 (1955).
4. Charging by Finance Corporation of excessive and usurious interest not within the statute. State ex rel. Powell v. General Acceptance Corporation, 269 Ala. 627, 114 So.2d 920 (1959).

I would be remiss if I did not point out that several cases from this Court have held that the “padlock and bond procedures” authorized by present §§ 6-5-147, 148, are also contained within the broad provisions applicable to liquor nuisances. Ex parte Hill, 229 Ala. 501, 158 So. 531 (1935); Joiner v. State, 232 Ala. 522, 168 So. 885 (1936); Ex parte Harvell, 235 Ala. 63, 177 So. 345 (1937); Garrett v. State ex rel. Matthews, 235 Ala. 457, 179 So. 636 (1938). However this was not to say the reverse, that the broad provisions in the liquor or public nuisance statute are included within the narrow provisions of the Red Light Abatement Act. In no way did the Court in these liquor nuisance cases interfere with its holdings in Howard, supra, and in Kendrick, supra. This is clear from the language of Ex parte Hill, supra, approved by the cases cited above which followed:

Article 2, chapter 325, Code [1923], beginning with section 9280 [presently Tit. 6, Chap. 5, Art. 9, Div. 2, Ala.Code 1975, beginning with § 6-5-140], refers to a certain type of nuisance, as there specifically defined, whereas article 6 of chapter 167, beginning with section 4671 [presently Tit. 28, Chap. 4, Art. 10, Ala.Code 1975, beginning with § 28-4-220], relates peculiarly to liquor nuisances. There is a distinct proceeding in respect to the former (Brown v. State, 222 Ala. 623, 133 So. 913 [1931]) not applicable to the latter. (emphasis added)

We see then that when Sweeton I was decided, there was no binding or persuasive authority before the Court which would point to the applicability of the Red Light Abatement Act to an obscene motion picture, nor had we ever found theretofore that the legislature intended for anything to be covered by the Act other than what was specifically mentioned in the Act, “lewdness, assignation, or prostitution.” This specific definition is extremely important. On this issue Sweeton I cited a particular Illinois decision, People v. Goldman, 7 Ill.App.3d 253, 287 N.E.2d 177 (1972). There “it was held that, as used in its statute [strikingly comparable to our own], ‘lewdness’ was a synonym for prostitution and therefore the Act did not apply to the activity there sought to be enjoined (a ‘por-noshop’).” The holding in People v. Goldman, supra, was not a chance one. That case stated:

It appears to us too, that this statute is aimed solely and only at houses of prostitution. Only if we can equate the statutory ‘lewdness’ with ‘obscenity’, would we be justified in characterizing ‘places’ for its dissemination and display as public nuisances. Obviously, the words ‘assignation’ or ‘prostitution’ in the statute, even with considerable stretching, can hardly be said to cover obscenity. Possibly ‘lewdness’ in a given context might cover ‘obscenity’ as defined in the Code — a thing is obscene if its predominant appeal is to prurient interest, and if it goes substantially beyond customary limits of candor — but not here, as we interpret its meaning. The word ‘lewdness’ is in disjunctive seriatim with ‘assignation or prostitution’. That aid to statutory construction, noscitur a sociis, i. e., associated words are of assistance in determining the exact meaning to be given a certain word, prevails here, in our opinion. Legislative words are not inert and derive vitality from the obvious purposes at which they are aimed. To fix purpose, we must read text in context and if a word is known by the company it keeps, then ‘lewdness’ is synonymous with prostitution. This aid contemplates that where two or more words of analogous meaning are employed together in a statute, they are understood to be used in their cognate sense, to express the same relations, and give color and expression to each other. For example, an ‘assignation’ could be an innocent appointment, a chaste tryst, or a rendezvous (even with destiny), at least those are meanings that can be so ascribed to it, but not here in its context with ‘lewdness’ and ‘prostitution’. Thus ‘assignation’, a euphemism coined years ago to protect the hypersensitive, is synonymous with ‘prostitution’. So, too, with ‘lewdness’ — it must equate with ‘prostitution’, and ‘assignation’ in the sense just described, if we are to follow the rule of noscitur a sociis and adopt that sense of the word which best harmonizes with its setting.

Besides noscitur a sociis there is another intrinsic aid to statutory construction, ejus-dem generis, which adds more light on the proper construction of this statute’s definition of “nuisance.” Professor Sands, in 2A Sutherland Statutory Construction, § 47.17 (4th ed. 1973) defines ejusdem generis (also called Lord Tenterden’s Rule) in this fashion:

Where general words follow specific words in an enumeration describing the legal subject, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words. [Citing among others, the case of Goode v. Tyler, 237 Ala. 106, 186 So. 129 (1939)]. Where the opposite sequence is found [as is the case with the Alabama Red Light Abatement Act], i. e., specific words following a general, the doctrine is equally applicable, restricting application of the general term to things that are similar to those enumerated.
The doctrine of ejusdem generis is an attempt to reconcile an incompatability between specific and general words in view of other rules of construction that all words in a statute are to be given effect, if possible; that parts of a statute are to be construed together; and that the legislature is presumed not to have used superflous words. . . . The rule ‘accomplishes the purpose of giving effect to both the particular and the general words, by treating the particular words as indicating the class [as in prostitution], and the general words [as in lewdness and assignation] as extending the provisions of the statute to everything embraced in that class, though not specifically named by the particular words.’ (emphasis added)

If noscitur a sociis and ejusdem generis are applied to the Alabama Red Light Abatement Act, and I see no reason why they should not be, then in no way can the terms “lewdness, assignation, or prostitution” which specifically define the “nuisance” within that Act, be applied to an obscene motion picture. Therefore, the attempt by the majority in the present case to take the single term “lewdness” from the context of “assignation and prostitution”; add it to the “obscene” definition contained in our criminal statutes and point it in the direction of a motion picture is ludicrous. “Lewdness” at the time in which this statute was enacted only appeared in this Court’s opinions in a prostitution context. For example the case of Haygood v. State, 98 Ala. 61,13 So. 325 (1892) defined “prostitution” in this manner:

A prostitute is a female given to indiscriminate lewdness for gain. In its most general sense, prostitution is setting oneself to sale, or of devoting to infamous purposes what is in one’s power. In its most restricted sense it is the practice of a female offering her body to an indiscriminate intercourse with men. [Quoting State v. Stoyell, 54 Me. 24.] (emphasis added)

That opinion cited the case of Commonwealth v. Cook, 12 Metc. (53 Mass.) 93 for language which used the term “place of assignation ” in the same sense as a “house of ill fame ” or elsewhere, in which a person becomes a prostitute. Oddly enough, the terms which I am seeking to define here, all are used in this one brief case in defining “prostitution.” This lends weight to the premise that the doctrines of noscitur a sociis and ejusdem generis would themselves defeat the majority construction of the statute.

In Sweeton I Chief Justice Heflin gave the majority another reason why the Alabama Red Light Abatement Act could not have been intended by the legislature to apply to obscenity:

[T]he majority opinion goes beyond statutes designated to control obscenity and attempts to make the Alabama Red Light Abatement Act a weapon against ‘hardcore pornography.’ Obviously, the legislature felt that this act was not an obscenity control statute. This act was passed in 1919 and was on the books when the 1961 Obscenity Act was passed. The 1961 Obscenity Act possesses all of the injunctive relief features which the majority opinion would give to this act. See Title 14, §§ 374(5)-(11), Code of Alabama, 1940, as amended (1958 Recompiled —1973 Cumulative Supp.). .

However, the plurality opinion of Sweeton I disposed of that issue in this fashion:

Appellant argues . . . that notwithstanding curative judicial construction, the legislature did not intend the Alabama Red Light Abatement Act to be applicable. There is a substantial amount of persuasive authority for this proposition from judicial interpretation in sister states of their respective Red Light Abatement Acts strikingly comparable to our own. . . [I]n Gulf States Theatres of Louisiana v. Richardson [287 So.2d 480 (La.Sup.Ct.1974)], the Louisiana Supreme Court reasoned that its public nuisance statute passed in 1918, only one year prior to our own, was originally designed to control prostitution and gambling and therefore could not be used in the First Amendment area. The court also emphasized the fact that the statute contained virtually no standards for making judicial determinations of obscenity. Accord, Southland Theatre, Inc. v. State ex rel. Tucker, [254 Ark. 639], 495 S.W.2d 148 (1973); Harmer v. Tonlyn [Tonylyn] Productions, Inc., 23 Cal.App.3d 941, 100 Cal.Rptr. 576 (1972).
However, from the broad language of Tit. 7, § 1091, Code, supra, there is no indication of any legislative intent to either include or exclude its application to obscene material. Controlling here is the fact that the Alabama Red Light Abatement Act has been construed as being merely declaratory of the common law, Duncan v. City of Tuscaloosa, 257 Ala. 574, 60 So.2d 438 (1952), and, as previously noted, acts at common law contrary to public morals were considered as public nuisances and subject to abatement as such, (emphasis added)

If it was controlling that the Act in question has been construed as being, merely declaratory of the common law, then the majority in Sweeton I was definitely wrong when it found the statute applicable to obscenity. This follows because Duncan v. City of Tuscaloosa, supra did not construe the Red Light Abatement Act definition of “nuisance ” as being declaratory of the common law, but merely found that the definition of nuisance and the distinction between public and private nuisances found within §§ 1081 and 1084 of Tit. 7, Code of 1940 (presently Tit. 6, Chap. 5, Art. 9, Div. 1, §§ 6-5-120,121, Ala.Code 1975) are declaratory of the common law. Those sections are totally divorced from the Red Light Abatement Act which falls within a separate division in Article 9 and which contains its own separate definition of nuisance. A perusal of the two definitions shows that in no way does the narrow definition of “nuisance” in § 6-5-140 of the Red Light Abatement Act parrot the broad, general common law definition of “nuisance” in § 6-5-120:

A ‘nuisance’ is anything that works hurt, inconvenience or damage to another. The fact that the act done may otherwise be lawful does not keep it from being a nuisance. The inconvenience complained of must not be fanciful or such as would affect only one of a fastidious taste, but it should be such as would affect an ordinary reasonable man.

Section 6-5-140, on the other hand, defines nuisance as “[A]ny place in or upon which lewdness, assignation or prostitution is conducted, permitted, continued or exists . .” We harken back to this Court’s findings in Ex parte Hill, supra. “Article 2, chapter 325, Code [1923], beginning with section 9280 [presently Tit. 6, Chap. 5, Art. 9, Div. 2, Ala.Code 1975, beginning with § 6-5-140], refers to a certain type of nuisance, as there specifically defined . . .” (emphasis added). Howard v. State ex rel. Andrews, supra, also makes clear from its language that only the provisions of Div. 1 of Art. 9, Chap. 6, Tit. 6, Ala.Code 1975 are declaratory of the common law:

As a bill to enjoin a public nuisance within the definition of § 9271 of the Code [1923], Chapter 325, Article 1 [presently Tit. 6, Chap. 5, Art. 9, Div. 1, § 6-5-120, Ala.Code 1975] which is merely declaratory of the common law, the bill is without equity. Such bill can only be entertained when it is filed by the State on relation of the Attorney General, or by a private individual in his own name who suffers special injury or damage different in kind from that suffered by the public generally, (citations omitted)
The proceedings to abate nuisances provided for in Article 2, Chapter 325, §§ 9280-9298 [presently Tit. 6, Chap. 5, Art. 9, Div. 2, §§ 6-5-140 — 154, Ala.Code 1975], are limited to nuisances as defined by said § 9280, as follows: ‘For the purpose of this article, the terms place, person, nuisance are defined as follows: Place shall include any building, erection, or place or any separate part or portion thereof or the ground itself; person shall include any individual, corporation, association, partnership, trustee, lessee, agent or assignee; nuisance shall mean any place as above defined in or upon which lewdness, assignation, or prostitution is conducted, permitted, continued, or exists, and the personal property and contents used in conducting or maintaining any such place for any such purpose.’ [Italics supplied.]

Thus having shown that the Red Light Abatement Act was not intended by our legislature to be applied to this situation, i. e., “obscenity,” I can only assume that this Court engaged in creative writing, i. e., judicial legislation, to hold that it did, both in Sweeton I (where this Act was said to have been found merely declaratory of the common law) and today in Sweeton II (where the per curiam opinion takes “lewdness” out of its context and states that it includes the exhibition of an obscene motion picture in a public place). I must reluctantly state that in my opinion this Court in these cases overstepped its authority under our Constitution and legislated an obscenity statute where there was none before.

This Court also erred in Sweeton I, and errs today, in its conclusion that the Miller, supra standards are properly applicable to the Red Light Abatement Act. I read Miller, supra to confine the scope of regulation of expression to depictions or descriptions of sexual conduct specifically defined in the applicable state law “as written or authoritatively construed.” This, I believe, does not mean that a Red Light statute such as that before us can be changed into an obscenity statute by judicial construction; it merely means that an obscenity statute on the books such as § 13-7-160, et seq. which lacked a specific enough definition of the obscene expression (sexual conduct) sought to be regulated, could be construed specifically by the courts if the legislature did not itself do so. Chief Justice Heflin remarked much the same in his special concurrence in Sweeton I:

I interpret Miller as limiting judicial construction engraftments to statutes designed to specifically control obscenity. In my opinion the majority opinion goes beyond the pale of permissible judicial construction and crosses over into the realm of exclusive legislative drafting by attempting to apply the same reasoning as was applied in Pierce [v. State, 292 Ala. 473, 296 So.2d 218 (1974)].

The majority’s interpretation of Miller is strange indeed, for it as much as admits today that the Red Light Abatement Act was not intended by the legislature to cover obscenity when they construe the word “lewdness” to include an obscene motion picture, and then construe the Act to contain the definition of “obscene” found, not in the Act construed, but in the criminal obscenity statute, § 13-7-160, et seq., itself construed in light of and engrafted with the standards of Miller. Such an incestuous mating of case law guidelines, criminal obscenity statutes, (themselves containing those same guidelines) and a “place of prostitution” statute can no more offer notice to the potential offender, can no more warm the chill that will numb the freedom of expression hereafter, can no more justify the holding here and in Sweeton I than we could justify the suppression of all expression. My own belief is that the Miller guidelines, and the engraftment of the obscenity definitions of § 13-7-161, and/or § 13-7-180 cannot cure the definitional infirmities of the Red Light Abatement Act when applied to a motion picture.

II.

My problems with the majority decision go much deeper than the obvious statutory infirmities of the Red Light Abatement Act when applied to an “obscene” motion picture. I perceive a fundamental disagreement over the role of government in that area of speech and expression called “obscenity.” One properly may ask: What is the proper relationship between the First Amendment and government?

In explaining the sweep of the First Amendment’s limitation on the federal government when he offered the Bill of Rights to Congress in 1789, James Madison is reported as having said: “The right of freedom of speech is secured; the liberty of the press is expressly declared to be beyond the reach of this government. . . . ” (emphasis added) Hugo L. Black, A Constitutional Faith, at 46 [hereinafter Black] (1968) citing 1 Annals of Congress, 141 (1857) [1789-96]. The freedoms enumerated in the first ten amendments to our federal Constitution are beyond the reach of government because they were not granted or created by that Constitution as was our federal government, but were only guaranteed by it. There is a fundamental difference that helps me explain why I believe the right of speech and expression is absolute and unassailable by Congress, by courts, or any other area of government. To grant is to give — and the power to give in the realm of political theory is the power to take away. To guarantee on the other hand, is to protect something already in existence and in a political sense to recognize its unassailable character. Our founding fathers obviously believed that these freedoms were fundamental and basic to a free society. Their actions in guaranteeing these freedoms by incorporation into the same document that created our mechanism of government was meant to reassure the people that their government could never limit, or in any way take from them these rights. They were in effect saying “thus far shaip] government go, and no farther.” In fact, it has been stated by many learned men that the true end of government is the protection of such rights:

Government itself was formed so ‘that every member of society may be protected and secured in the peaceable, quiet possession and enjoyment of all those liberties and privileges which the Diety has bestowed upon him.’ The end of government, in sum, [is] the preservation of liberty. Gordon S. Wood, The Creation of the American Republic, 1776-1787 [hereinafter Wood] (1969) at 21-22, citing West, A Sermon Preached . May 29th 1776, in John W. Thornton, ed., The Pulpit of the American Revolution: Or, the Political Sermons of the Period of 1776 (Boston, 1860), 274.

It was to this end that our federal Constitution was made the supreme law of the land. The prescient writing of Thomas Tudor Tucker suggests the political thought surrounding this event:

The constitution should be the avowed act of the people at large. It should be the first and fundamental law of the State, and should prescribe the limits of all delegated power. It should be declared to be paramount to all acts of the legislature, and irrepealable and unalterable by any authority but the express consent of a majority of the citizens collected by such regular mode as may be therein provided. Tucker, Conciliatory Hints, Attempting by a Fair State of Matters, to Remove Party Prejudice, Charleston St. Gazette of S.C., Sept. 21, 1786, cited in Wood, at 281.

In a very real sense the Constitution and the rights it protects constitutes a contract between those who govern and those who are governed. The clear language of the First Amendment says that Congress (and the states through the Fourteenth Amendment) shall make no law abridging freedom of speech. There are no exceptions made for obscenity, no indication that only political speech is protected. And with good reason. As a native Alabamian once expressed it: “It is not difficult for ingenious minds to think up ways to escape even the plain prohibitions of the First Amendment. This same kind of ingenuity existed in the days of Rome. For example, it is said that Augustus punished people for criticizing the Emperor by the simple device of calling such criticism obscene.” Black at 47. Our founding fathers knew the difficulties that would arise if there were only a limited guarantee of this freedom:

They knew what history was behind them; they were familiar with the sad and useless tragedies of countless people who had had their tongues plucked out, their ears cut off or their hands chopped off, or even worse things done to them, because they dared to speak or write their opinions. Black at 46.

I am aware that in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), the United States Supreme Court stated that the First Amendment was not absolute, that it gave no absolute protection to every utterance. As a member of this Court I must respectfully attorn myself to the authority of that decision, however that does not mean that I have surrendered my right to analyze it, indeed to criticize it in the direct context of the First Amendment.

In support of its interpretation of Roth, supra, the United States Supreme Court stated that at the time the Amendment was adopted thirteen of fourteen states had libel and profanity laws on the books and thus in light of this history the unconditional phrasing of the Amendment was not intended to protect every utterance. However, mindful of the political context and the contractual nature of the Constitution it is more likely that if the Amendment was meant to be limited it would have been limited expressly, as in a contract. If then, the Constitution and the rights therein guaranteed are in essence a contract between the people and the government, and the language of that contract means what it plainly says, then the Congress of the United States and the legislatures of the states have no legal authority to abridge the freedom of speech. If they have no such authority then laws enacted by them attempting to so abridge are null and void and this Court and other courts of the land — sworn to uphold the Constitution — must so recognize. In this particular case, then, even if the Red Light Abatement Act were properly applicable to pornographic motion pictures, it would be an improper restriction on the right of free expression.

I believe, however, that there is a role for government in this area. But the role government must play is not one of determining what is a misuse of the right of expression for that is censorship, but in seeing that an atmosphere does not arise that results in a disuse of that right. “It is not for [government] to cleanse public debate or to act as arbiters of taste.” Fah-ringer and Brown, The Rise and Fall of Roth — A Critique of the Recent Supreme Court Obscenity Decisions, 62 Ky.L.J. 731, at 767 (1973-74). A quote by Mr. Justice Black aptly describes what is behind the actions of the majority of this Court today: “[Censorship, even under the guise of protecting people from books or plays or motion pictures that other people think are obscene, shows a fear that people cannot judge for themselves.” (emphasis added) Black at 47.' Their actions are also a confession that other significant social forces— the press, churches, civic clubs, and other motivating forces in society, have failed to influence such forms of expression; that somehow by default government has become the moral babysitter of mature adults, leaving the courts to decide what people ought to think, ought to read, or ought to see in a motion picture. Aside from the fact that this is the kind of role the Constitution denies to government, it is a role for which we, as judges, are ill-equipped. For example, the tests used by the federal and state courts to decide what is obscene have changed as often as ladies’ hemlines. Mr. Justice Brennan, the author of Roth, supra, since that decision has thrown up his hands in resignation to the fact that it is virtually impossible for the courts to divide the obscene from other speech. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). One portion of the Miller, supra test provides for the application of community standards in deciding whether or not expression is obscene. The impossibility of delineating the community standard has been apparent from the beginning. Even then, apart from the constitutional prohibition against our pontification in this area, I would have us leave it to the marketplace simply because of our own inadequacy to perceive for all citizens what is worthy of protection and what is not. Mr. Justice Brennan saw several problems stemming from attempts to divide the protected from that not protected. 1) The vague standards applied in the obscenity area fail to provide adequate notice. The Fourteenth Amendment requires that all criminal laws provide fair notice of “what the State commands or forbids.” 2) Vague standards often result in a statute being overbroad, exposing protected as well as unprotected speech to prosecution. There is thus a “chilling effect” on. the use of protected speech. 3) Last, because the standards are vague, all cases [civil and criminal] are marginal and unpredictable and must be decided case by case. This is a burden on the state as well as the federal judicial machinery. Paris Adult Theatre v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) (Brennan dissenting).

That I firmly believe in the restriction against governmental intrusion on the area of expression should not be taken as evidence that I am in favor of lewdness or debauchery in any form or fashion. Without condoning such expression, I recognize nevertheless that other citizens may believe it plays a role in the shifting process of public values. A free society, and the individual citizens who make up that society, under our Constitution must be free to choose between the wholesome and the unwholesome, and I have faith that they themselves are more capable of making that choice than a few appointed or elected judges are capable of making it for them. I believe that such a conclusion is inescapable under the United States Constitution. The right to make that choice in any case, therefore, was guaranteed by the First and Fourteenth Amendments and this Court, and all courts, should recognize that in this area we are not meant to wander. I do recognize however that a person must be able to choose. Therefore I would not object to the Court’s protection of those unable to competently make a choice or those unwilling to make a choice. The United States Supreme Court cases, Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), and Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) pointed to a possible holding which unfortunately for all never came to pass. That holding might have been that possession, distribution and exhibition of sexually explicit materials are all constitutionally protected, provided that children are not exposed and that the materials are not thrust upon unwilling adults. See Annot. Amendment 1 — Religion, Free Speech, Etc.: Obscenity, Constitution of the United States of America, Annotated (1973), at 1017-1018. Such a holding by this Court under our own free speech provisions, Art. I, § 4, Ala. Const. of 1901, or by the Supreme Court of the United States, would do away with such unworkable standards with which we have annointed ourselves, and would make it possible to deal with such cases from a fairly objective position.

This expression of my views on the constitutional aspect of this case has been an attempt to make our judicial actions consonant with what I believe to be the mandate of the United States Constitution and, accordingly, is stated in that spirit.

      . A cumulative obscenity law, passed in 1969, was codified at Tit. 14, § 374(16j)-(16o), contained in the 1973 cumulative supplement to the 1940 Code (Recomp. 1958). The statute, which also contained a detailed list of sexual conduct, was not carried over into the 1975 Code.

      . Volume 22 of Alden’s Manifold Cyclopedia (Revised 1890) defines “Lewdness” as “lustful licentiousness; debauchery; unchastity.” Interestingly enough Volume 31 of that same work defines “Prostitution ” as “common lewdness for hire.”


author: WRIGHT, Presiding Judge.

text:
    WIREGRASS COMPREHENSIVE MENTAL HEALTH CLINIC, INC. v. Victoria F. PRICE.
    Civ. 1549.
    Court of Civil Appeals of Alabama.
    Sept. 27, 1978.
    Rehearing Denied Oct. 25, 1978.
    G. M. Harrison, Jr. of Merrill & Harrison, Dothan, for appellant.
    Edward M. Price, Jr. of Farmer, Farmer & Price, Dothan, for appellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case.

Defendant appeals from judgment granting plaintiff summary judgment.

Plaintiff is the widow of Charles D. Price, III. Mr. Price was killed by a train while driving his automobile over a railroad crossing at about noon on August 30,1977, in the town of Ashford, Alabama. Mr. Price was employed by defendant as a counselor. He usually worked in the main office in Do-than, but in May of 1977, he was assigned to work on Tuesday of each week at a branch office in Ashford. Ashford is some ten miles from Dothan. Price was reimbursed fifteen cents per mile for travel expense when he went to work in Ashford. On the day of his death, Price worked in his office in Ashford until noon. He was driving his automobile to a nearby restaurant where he customarily ate his lunch when he was killed. There was some testimony by the police chief of Ashford that he was going to join Price for lunch as he had on other days and that Price had counseled with him about his marital problems on such occasions. However, his affidavit and a previous deposition tended to conflict. There was no specific appointment to meet for that purpose on the day of his death.

Each party moved for summary judgment. Written briefs were submitted on the issue of whether Price was killed by accident in the course of and arising out of his employment. The trial court entered judgment for plaintiff and in doing so made the following statements:

“The court is of the opinion that these facts establish that the injuries resulting in Price’s death arose out of and in the course of his employment with defendant as a matter of law. The court reaches this decision because all of the undisputed facts considered as a whole leave no rational conclusion except that but for Price’s employment with defendant, in all likelihood, he would not have been where he was at the time of his death and would not have been subjected to the danger which killed him. The fact that Price’s travel expenses were being paid at the time of his death also weighs heavily in the reaching of this decision.” [Emphasis added.] (R.54)

We find the trial court was in error in applying the law to the facts. The application by the court of the “but for” principle enunciated in its judgment is not a rule of law and is not appropriate as a basis for determining whether deceased was in the course of his employment at the time he was killed. It certainly cannot be a valid indicator of “arising out of” his employment. The statute requires that the injury or death result from both elements or conditions, i. e., it must “arise out of” and occur “in the course of” the employment. § 25-5-51, Code of Alabama (1975). These conditions or terms are limited in application in any case by the provisions of § 25-5-1(9) which state inter alia:

“(9) Injuries by an accident arising out of and in the course of his employment. Without otherwise affecting either the meaning or interpretation of such clause, such clause does not cover workmen except while engaged in or about the premises where their services are being performed or where their service requires their presence as a part of such service at the time of the accident and during the hours of such service as such workmen,

Our review of the affidavits and depositions submitted in support of plaintiff’s motion for summary judgment indicates they fail to prove without material issue of fact that Price died as a result of an accident occurring while in the course of his employment and arising out of his employment.

Our supreme court has defined the phrases “in the course of” and “arising out of.” Union Camp Corporation v. Blackmon, 289 Ala. 635, 270 So.2d 108 (1972); Massey v. United States Steel Corporation, 264 Ala. 227, 86 So.2d 375 (1956); Wooten v. Roden, 260 Ala. 606, 71 So.2d 802 (1954). It has said “in the course of” refers to time, place and circumstances. If an injury occurs within the period of his employment, at a place where he may reasonably be while he is reasonably performing the duties assigned, such injury may be said to have occurred in the course of his employment. The court has also said that the phrase “arising out of” involves the idea of a causal relationship between the employment and the injury.

The referred-to statements of the court were made in the case of Wooten v. Roden, and have been repeated in subsequent cases. More directly to the point, the court in Wooten quoted from the case of F. Becker Asphaltum Roofing Co. v. Industrial Commission, 333 Ill. 340, 164 N.E. 668, 670 as follows:

“The injury contemplated by the act must have had its origin in some risk of the employment. It must arise out of and in the course of the employment or be incident thereto ... a risk is incident to the employment when it belongs to or is connected with the duties a workman has to perform under his contract of service. .
“. . . It is not enough that the injured person may be present at the place of the accident because of his work unless the injury is the result of some risk of the employment.”

This last quoted sentence can only be considered as a denial of the application of the “but for” principle espoused by the trial court.

It is the general rule that accidents occurring while an employee is traveling to and from work are not considered as arising out of and in the course of employment. Gilmore v. Rust Engineering Co., 289 Ala. 46, 265 So.2d 591 (1972). Exceptions to the general rule have arisen where the employer furnishes transportation to and from work, Bell v. General American Transportation Corp., 52 Ala.App. 123, 290 So.2d 184 (1973); or where the employee performs some service en route or at home. Patterson v. Whitten, 57 Ala.App. 297, 328 So.2d 301 (1975). Though the employer paid mileage to Price from Dothan to Ashford and return, it does not bring this case within the exception. The accident did not happen while traveling to or from Ashford. The accident occurred while Price was going from his place of employment to a restaurant for lunch. Unless he was making the trip as a service to his employer under his contract of employment, Price was not in the course of his employment. There was evidence attempting to show that to be the case. However, such evidence could only raise an issue of fact to be resolved at trial as to whether he was in the course of his employment. If there is an issue of material fact, summary judgment is improper. Imperial Group, Ltd. v. Lamar Corporation, 347 So.2d 988 (Ala.1977). .

We have said that being in the course of his employment is not enough. The supreme court in Union Camp found the deceased to have been in the course of his employment when he was killed in an automobile collision while on his lunch time for which he was paid and during which he was subject to recall to the job. However, the court determined that his death did not arise from any risk or danger incidental to the character of his employment. It said that the risk from which his death occurred was a risk shared by anyone riding in an automobile and did not arise from his employment.

In view of the decision of Union Camp, could the death of Price arise from or out of some risk inherent in or connected with his employment? To put it another way, was his employment the source and cause of his death? The answer to that question may lie in the application of the “street risk” doctrine. The Alabama concept of that doctrine is that an accident may be said to arise out of one’s employment if the duties of his employment are such as to require him to be continually or frequently in or upon the street or highway and he is injured from such risk. United Service Insurance Co. v. Donaldson, 254 Ala. 204, 48 So.2d 3 (1950).

Plaintiffs contend the “street risk” doctrine applies without material issue of fact. We do not agree. There is conflict in plaintiff’s own evidence. In any event, from the judgment, there is no indication that the trial court considered the application of the law of the “street risk” doctrine to the evidence.

We find that summary judgment was improper in this case and must be set aside.

REVERSED AND REMANDED.

BRADLEY, J., concurs.

HOLMES, J., concurs in the result.


author: SHORES, Justice.

text:
    In re WIREGRASS COMPREHENSIVE MENTAL HEALTH CLINIC, INC. v. Victoria F. PRICE. Ex parte Victoria F. PRICE.
    78-147.
    Supreme Court of Alabama.
    Jan. 26, 1979.
    Edward M. Price, Jr. of Farmer, Farmer & Price, Dothan, for petitioner.
    G. M. Harrison of Merrill & Harrison, Dothan, for respondent.
   SHORES, Justice.

In denying this writ, we agree that summary judgment was improper. In doing so, we do not pass upon the quality or quantity of evidence respecting the issue of liability.

WRIT DENIED.

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


text:
    Ruth Adams WELLS v. Joseph Wesley WELLS.
    Civ. 1601-X.
    Court of Civil Appeals of Alabama.
    Jan. 17, 1979.
    Maury D. Smith, Montgomery, for appellant.
    Truman Hobbs, Montgomery, for appel-lee.
   WRIGHT, Presiding Judge.

This is an appeal by the wife and cross-appeal by the husband from the alimony provisions of a judgment of divorce. The issue in each appeal is whether the trial court abused its discretion in the grant of alimony.

The parties were married for some fifty years. They reared three sons of their own and a daughter of the wife by a prior marriage. The husband is seventy-eight and the wife is seventy-four years of age.

Prior to selling, the husband was for many years in the lumber and building business. In recent years, he was very successful in business and accumulated a sizea-ble estate. He freely shared good fortune with his wife while she maintained the home. Prior to the separation, they had enjoyed a very comfortable style of living. We set out hereafter a compilation of the assets (stipulated or undisputed) owned by each after the divorce decree. It is stipulated that the assets of the wife were derived from the earnings of the husband.

ASSETS OF RUTH A. WELLS
Certificates of Deposit $110,000
Savings account (Union Bank) 31,000
Checking account (UBT) 7,000
Alabama Power Company bonds 10,000
Southern Company stock (200‘ shs) 3,400
1971 Cadillac automobile 4,000
Jewelry (appraised value) 88,425
Furs (appraised value) 4,900
Fine arts 18,400
Silver 20,254
Cash surrender value of life insurance 7,986
Lots in Florida 18,000
Furnishings in house 76,000
Residence, formerly jointly owned by parties 140.000
$539,365
ASSETS OF J. W. WELLS. SR.
Certificates of deposit & DeLoach note $425,000
Wells-Pinkston Building 40,000
First National Bank of Mobile stock 3,888
Lots in Mississippi 12,500
Ford automobile 3,000
ASSETS OF J. W. WELLS. SR. — Cont’d.
Crescent Corporation 437
Cash in bank ’ 12.000
$496,825

In 1950, the husband began an extra-marital affair with his secretary which he admits lasted for some twenty years. Their sexual relationship ended with a prostate operation in 1971. He still employs the secretary and they have a social relationship outside of business hours. The wife has known of the affair with the secretary for many years but testified she endured it for the sake of the children. However, her forbearance ended in 1976 when she learned that the husband had endorsed the application of the secretary for membership in a country club. This knowledge apparently precipitated separation and action for divorce by the wife.

After oral hearing the court granted a divorce without stating a ground on April 3, 1978. The judgment vested title to the real and personal property respectively as indicated by the compilation set out above. The husband was ordered to pay the wife $1,200 in monthly alimony beginning May 1, 1978. He was required to maintain Blue Cross coverage on the wife, pay the costs of court and $5,381.15 to the wife’s attorney for his service and expense.

After hearing and argument on a motion for new trial filed by the husband, the court on July 7, 1978 reduced the previously ordered monthly alimony of $1,200 to $750 effective October 1, 1978.

The wife appeals from the judgment of July 7, 1978 and submits the issue of whether the reduction from the original award of $1,200 per month to the amount of $750 per month constituted an abuse of discretion. We hold that the reduction was not an abuse of discretion.

It is evident that the grant of $1,200 per month as alimony was based upon the testimony that such monthly sum had been given by the husband to the wife for several years to operate the household wherein they both lived. In view of the large estate of the wife with an annual income of some $15,000, without reduction of the estate, this court cannot find that the court abused its discretion by the reduction. The fact that the setting of the award came after reconsideration of the testimony is of no consequence. The court was empowered to reconsider its original judgment and enter a new judgment upon the timely motion of defendant. Rule 59, ARCP.

Cross-Appeal

Defendant on his cross-appeal contends that the court abused its discretion in requiring payment of alimony in any amount and in vesting title to the home entirely in the plaintiff.

The evidence disclosed that many years ago the defendant made the plaintiff a partner in his business. Though defendant operated the business as he saw fit without any active participation by the wife, she apparently was on record as a partner. When the partnership later acquired stock in corporations, she was the owner of a portion of such stock. When the stock was subsequently sold, she received or was credited with a share of the funds from the sale. Though it is acknowledged that most of the assets of the wife shown by the compilation set out above were realized through the business acumen and active management of the affairs of the partnership by defendant, such assets were in law the separate property of the plaintiff before the decree of the court. Even the defendant recognized that fact. It is accurate to say that the only asset of the wife listed above in which defendant claims any interest is the home and perhaps its furnishings. He has apparently long recognized all the other property, real and personal, to be plaintiff’s separate estate and the income therefrom to be hers to do with as she pleased. He recognized his obligation to provide support of the domicile from his own income.

The common-law obligation of the husband to support his wife from his own funds is derived from the marital relationship and does not end with a divorce. Davis v. Davis, 279 Ala. 643, 189 So.2d 158 (1966). Though the wife may have a separate estate, so large as to be sufficient to provide some support, it is not conclusive of her right to alimony. If her estate does not provide income to maintain her in the manner to which she is accustomed, she is not required to change the nature of the corpus of her estate. Steiner v. Steiner, 254 Ala. 260, 48 So.2d 184 (1950). If the husband has the financial ability to provide alimony, particularly when he has been guilty of wanton conduct in the marriage, the award of alimony may be liberal. Isom v. Isom, 273 Ala. 599, 143 So.2d 455 (1962).

We know of no comparable case recorded in this state where the wife had a separate estate of the magnitude of Mrs. Wells, derived from her husband’s business efforts prior to a division of property by the court. It is evident that the estate of the wife, even without further conversion into an income producing state, can provide income sufficient to sustain her in a moderate standard of living. Whether it is sufficient to sustain her in the manner to which she was accustomed during her marriage is a question of fact for the trial court. That court has determined that she is entitled to contribution from defendant in the monthly sum of $750. The husband’s income from his estate is sufficiently large to afford the ordered payment of alimony. Upon review we cannot reverse the court’s exercise of discretion because it is not so contrary to or unsupported by the evidence as to be clearly wrong and unjust. Watson v. Watson, 45 Ala.App. 306, 229 So.2d 807 (1969). We therefore affirm the judgment of the trial court.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.