text:
    Paul MARS v. STATE of Alabama ex rel. John T. BLACK, District Attorney.
    Civ. 947.
    Court of Civil Appeals of Alabama.
    Dec. 22, 1976.

      Terry T. Bush, Rainsville, for appellant.
    William J. Baxley, Atty. Gen., and Winston T. Lett, Asst. Atty. Gen., for appellee.
   WRIGHT, Presiding Judge.

The State of Alabama, by and through the district attorney of DeKalb County, filed a complaint in equity against Paul Mars and one 1972 Ford Thunderbird, under the provisions of Title 29, Section 247 et seq., Code of Alabama (1940), for the condemnation and forfeiture of said automobile because it had been used to transport prohibited alcoholic beverages.

In its motion to intervene Commercial Credit Corporation asserted a superior claim arising from its perfected security interest in the vehicle and denied it had any knowledge or information that Mars had a reputation for dealing in prohibited intoxicating liquors at the time it extended him a loan. The court granted permission to intervene. Mars did not contest the condemnation proceedings.

After hearing the evidence ore tenus, the trial court ordered the vehicle condemned as contraband, forfeited to the state and sold. Intervenor’s claim was denied. The trial court based its judgment on the failure of the intervenor to exercise due diligence to obtain knowledge of the use that might be made of the automobile or to take steps to prevent the same. Intervenor appeals. We affirm.

DeKalb County court records indicated Mars had eight convictions for violation of the prohibition laws — two in 1961, one in 1968, one in 1969, three in 1970, one in 1971. In February, 1976, Mars was convicted of transporting and sentenced to three years in the state penitentiary but the Court of Criminal Appeals reversed and remanded for a new trial. Mars v. State, Ala.Cr.App., 339 So.2d 104 (1976). A 1971 Dodge Polara owned by Mars was condemned as a result of that case and legal notices in regard thereto appeared in January of 1976 in a bi-weekly DeKalb County newspaper. The newspaper also reported the indictment, trial and sentencing of Mars during January and February.

Mars purchased the Thunderbird in March with a loan from intervenor Commercial Credit in Gadsden. When interve-nor financed a mobile home purchase by Mars in 1969, he had generally met his payments in a timely manner.

On the occasion of the auto loan Commercial Credit checked with a credit bureau in Ft. Payne and two credit references (his bank and a local merchant which had previously extended credit) which Mars gave on his credit application. These sources revealed Mars had a good credit rating. The credit bureau report also showed that Mars had been charged with a violation of the prohibition laws in 1969 but indicated no disposition of the case. Commercial Credit made no further inquiries about Mars.

The loan manager for Commercial Credit testified that in extending credit it was not the customary practice to check with the sheriff of another county absent some reason for suspicion, that normally they made no personal reference calls or checks of local news media, and that she did not make additional inquiries because the charge was seven years old. Employees of two other credit companies in Gadsden testified that they would have followed the same practice as intervenor in this case.

On April 25, 1976, a deputy sheriff saw Mars purchasing beer from a Gadsden distributor. When Mars came into DeKalb County an officer tried to stop him but he crossed the median on the interstate and headed back into Etowah County. A chase by officers ended when the Thunderbird crashed into a barrier. Eighteen cases of beer were found in the vehicle.

Three witnesses — the deputy, a former sheriff who was employed by the district attorney, and the DeKalb County District Court judge — all testified that Mars had a general reputation for dealing in whiskey and beer. The judge indicated this was Mars’ reputation in the community and area of the county in which he lived. The deputy indicated his judgment concerning Mars reputation in the community was based on personal encounters and what other citizens had told him.

The State thus met its burden of proof that the vehicle had been used to transport prohibited beverages. Lee v. State ex rel. Hare, 259 Ala. 455, 66 So.2d 881 (1953); Kelley v. State, 219 Ala. 415, 122 So. 638 (1929); Carter Guaranty Co. v. State, 214 Ala. 432, 108 So. 246 (1926).

In a case for condemnation of a contraband vehicle once the State has met its burden of proof, the burden is on the inter-venor to establish its superior claim and to show it had no knowledge or notice of the illegal use of the car and could not by reasonable diligence have obtained knowledge of the intended illegal use so as to prevent such use. U-Haul Company of Alabama v. State, 294 Ala. 330, 316 So.2d 685 (1975); Alabama Discount Corp. v. State ex rel. Stephens, 271 Ala. 338, 123 So.2d 416 (1960); State ex rel. Tate v. One Lexington Automobile, 203 Ala. 506, 84 So. 297 (1919). This rule was elaborated upon in Flint Motor Car Co. v. State, 204 Ala. 437, 85 So. 741 (1920);

“In other words, if the claimant knows the character of his vendee or mortgagor, and does not know or has not heard of his violating the prohibition law, or if he does not know him, ordinary prudence should suggest inquiry, and if he does not gain information that he has been considered a violator of the prohibition law, then he makes out a prima facie case of no negligence in the sale or disposition of the car, and would be entitled to a decree of nonforfeiture of his claim unless the state rebuts this prima facie case by contradictory evidence or circumstances, or by showing the happenings of subsequent events which would arouse the suspicion of a reasonably prudent man so as to cause action upon his part to prevent the further use of the property for unlawful purposes, and which he failed to prevent.

The issue presented for review is whether intervenor had knowledge or notice of the illegal use or could have obtained such by the exercise of reasonable diligence.

All the cases called to our attention by appellant intervenor are distinguishable because here there is testimony of Mars’ general bad reputation in the community for dealing in prohibited liquors and beverages. In Brandon v. State, 261 Ala. 378, 74 So.2d 606 (1954), the wife successfully intervened to claim the car since there was no evidence that the husband had such a reputation even though he had five years before been convicted for a violation of the prohibition laws. In Tittle v. State, 252 Ala. 377, 41 So.2d 295 (1949), the wife successfully intervened to claim the car since the only evidence of such bad reputation was the testimony of police officers based on prior convictions for possession. In Commercial Nat. Bank of Anniston v. State ex rel. Dormon, 251 Ala. 409, 37 So.2d 644 (1948), the bank successfully intervened to claim the car when several officers testified that McElroy had a reputation as a bootlegger among police officers while other testimony showed McElroy had a good reputation in the county in which he resided.

The rule in Alabama is that evidence of a purchaser’s bad general reputation for bootlegging or dealing in prohibited liquors tends to give notice of the probable future use of the vehicle for the illegal transportation of intoxicating liquors. Alabama Discount Corp. v. State ex rel. Stephens, supra; People’s Auto Co. v. State, 218 Ala. 553, 119 So. 662 (1929); 14 A.L.R.3d 221 at 275-85 (1967).

For the purchaser’s bad reputation to be notice or knowledge imputed to the intervenor so as to constitute culpable negligence in allowing the purchaser to obtain the vehicle, the bad reputation must be a general reputation; it must exist at the purchaser’s place of residence, or at his place of business or occupation; and it must have existed at the time the car was sold. Wright Motor Co. v. State, 214 Ala. 120, 106 So. 868 (1926). All three of these elements are present here.

The reasoning of cases such as Alabama Discount and People’s Auto is that where the purchaser has a general reputation for dealing in prohibited alcoholic beverages, the intervening claimant by the exercise of reasonable diligence should or could have obtained knowledge or notice that the vehicle might be used to violate the liquor laws. State ex rel. Randall v. Martin, 253 Ala. 487, 45 So.2d 286 (1950); 14 A.L.R.3d 221 at 275-85.

Furthermore, we find the intervenor here failed to exercise due diligence when put on notice of the prior charge of violating the prohibition laws. It should have inquired further when there was no information concerning the disposition of the 1969 case. If it had checked for that with reasonable diligence, it would have obtained knowledge of the other convictions and charges. We do not think the enactment of Title 29, Section 262, Code of Alabama (1940) in 1971 to permit the possession of small amounts of liquor and beer for private use in dry counties absolves intervenor of any responsibility to inquire further in cases where it knows of charges for violating the prohibition laws prior to 1971.

Intervenor has failed to show that by the exercise of reasonable diligence it could not have obtained knowledge or notice of such illegal use of the vehicle. See Flint Motor Car Co. v. State, supra; 14 A.L.R.3d 221 at 272-75.

We reiterate the exhortation of the United States Supreme Court in Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452, reh. denied 417 U.S. 977, 94 S.Ct. 3187, 41 L.Ed.2d 1148 (1974), for the benefit of intervenor and other credit companies:

“To the extent that such forfeiture provisions are applied to lessors, bailors or secured creditors who are innocent of any wrongdoing, confiscation may have the desirable effect of inducing them to exercise greater care in transferring possession of their property.”

Finding that the intervenor failed to exercise reasonable diligence which would have revealed knowledge of the intended illegal use of the vehicle, we affirm the dismissal of intervenor’s claim.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    Hazel SEARCY v. Bob SEARCY.
    Civ. 970.
    Court of Civil Appeals of Alabama.
    Dec. 22, 1976.
    James M. Prestwood, Andalusia, for appellant.
    Griffin Sikes, Powell & Sikes, Andalusia, for appellee.
   HOLMES, Judge.

This is a divorce case.

The sole issue on appeal is whether the trial court’s division of property was an abuse of discretion so as to require reversal. The wife, through able counsel, contends there was such abuse. We cannot agree and affirm.

The record reveals that the parties were married in 1954. Their marriage was not what one would describe as a harmonious relationship. A decree of divorce was entered in June of 1976. Both parties worked for virtually the entire marriage. The wife was employed by a mill and earned approximately $7,000 a year. The husband farmed and ran a small country store. His income was less than that of the wife. During the marriage, there was accumulated 91 acres of land, a home located on the 91 acres, a store, various personal property including household goods, farm equipment, a small amount of livestock, and automobiles.

After a hearing ore tenus, the trial judge awarded the wife a large portion of the personal property, the home place and 11 acres of land. The husband was awarded 80 acres of land and the country store. In addition, the husband was awarded certain personal property including farm equipment and livestock.

There was conflicting testimony as to the value of the respective awards. One view of the evidence would tend to show that the value of the wife’s award was approximately $14,000 and the husband’s was approximately $35,000. Another view would indicate that the awards were of approximately equal value. Under either view of the evidence, we find no abuse so as to require reversal.

As this court has stated on numerous occasions, a division of property does not have to be equal but one which is graduated to the nature of the case. Griffin v. Griffin, Ala.Civ.App., 338 So.2d 416 (1976).

Furthermore, a division of property is within the sound discretion of the trial court and the exercise of such discretion is reviewable only for determination of palpable error and abuse. Hallman v. Hallman, 51 Ala.App. 460, 286 So.2d 863. We find no such palpable error or abuse wherein as here the wife is given at least approximately one-third of the total value of the estate or at best approximately one-half of the total value of the estate. Additionally, we note that the portion awarded to the wife provides her with a homeplace and the portion awarded to the husband allows him to earn a livelihood. Clearly, under the facts of this case, such an award does not require reversal.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


author: BOOKOUT, Judge.

text:
    Peggy BRIDGES v. STATE.
    7 Div. 373.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.
    Rehearing Denied Feb. 17, 1976.

      No brief for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Assault with intent to rob; sentence: five years imprisonment.

This case is submitted upon the Attorney General’s brief and his' motion to dismiss the appeal and upon what purports to be the record proper. Counsel for the appellant has failed to file a brief. The Attorney General assigns the following grounds for dismissal:

“(a) The record contains only the ‘Order’s of the Court’ (sic), i. e. benchnotes.
“(b) The record does not contain a formal minute entry or judgment entry.
“(c) The record does not contain a formal entry of adjudication entry.”

The record shows that upon conviction and sentencing, the appellant requested probation and filed notice of appeal, and the appeal bond was set at $5,000.00. The record also shows upon application by the appellant, the trial court determined her to be indigent, and on April 15, 1975, ordered the court reporter to prepare a transcript.

The Attorney General’s motion would be well taken except for the fact that the appellant has been adjudged to be an indigent. The United States Supreme Court, the Alabama Supreme Court, and this Court have held that an indigent’s right to appeal cannot be thwarted by inaction on the part of the court reporter. Brooks v. State, 283 Ala. 459, 218 So.2d 271 (1968); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963).

In Draper, supra, the United States Supreme Court stated, in part:

“. . . In all cases the duty of the State is to provide the indigent as adequate and effective an appellate review as that given appellants with funds — the State must provide the indigent defendant with means of presenting his contentions to the appellate court which are as good as those available to a nonindigent defendant with similar contentions.”

It is the opinion of the Court that the appellant here has not been afforded adequate and effective appellate review. This cause is remanded with directions to the trial court to correct the record so as to provide this Court with a complete record proper and with a transcript of the evidence which shall be adequate for the appellant to present her contentions for review. The transcript of the evidence should be filed with the circuit clerk below within sixty days of this date, unless that period be extended by the trial court for cause pursuant to statute. A complete record shall be filed with this Court by the circuit clerk, upon receipt of the court reporter’s transcript, as provided by law.

MOTION DENIED. REMANDED WITH DIRECTIONS.

All the Judges concur.


author: PER CURIAM.

text:
    Peggy BRIDGES v. STATE.
    7 Div. 373.
    Court of Criminal Appeals of Alabama.
    June 15, 1976.
   PER CURIAM.

Order of this Court of June 1, 1976, overruling application for rehearing in the instant cause is hereby set aside. This cause is hereby restored to the rehearing docket, ex mero motu.

ON REHEARING

Application for rehearing is hereby granted. Pursuant to Rule 10(f), Alabama Rules of Appellate Procedure, a complete, and properly certified, court reporter’s transcript of the evidence in this cause is ordered to be filed with this Court as a supplement to the record now pending herein, not later than twenty-eight days (four weeks) from this date.

Our opinion dated May 4, 1976, reversing and remanding this cause is hereby withdrawn conditionally. Should the transcript of the evidence not be filed with this Court within the time limit herein specified (as the Attorney General’s affidavit on rehearing assures can be done) the reversal will be reinstated.

APPLICATION GRANTED; REVERSAL CONDITIONALLY SET ASIDE.

TYSON, HARRIS, DeCARLO and BOOKOUT, JJ., concur.

For opinion remanding with direction for preparation of transcript see 340 So.2d 1135. For opinion affirming conviction see 340 So. 2d 1137.


text:
    Peggy BRIDGES v. STATE.
    7 Div. 373.
    Court of Criminal Appeals of Alabama.
    Nov. 16, 1976.
   BOOKOUT, Judge.

Assault with intent to rob; sentence: five years imprisonment.

This is the latest in a. series of cases before this Court involving problems which certain indigent appellants have encountered in obtaining transcripts of evidence on appeal.

This case came to us originally on a record proper without a court reporter’s transcript, at which time 340 So.2d 1135 we remanded directing the transcript to be prepared as per statute. (Ms. January 20, 1976.) We then received a certificate from the circuit clerk stating, in effect, that the court reporter was in the state of Florida, could not be found, and no transcript could be filed. We reversed and remanded for a new trial. (Ms. May 4, 1976.)

The Attorney General filed an application for rehearing with supporting affidavit to the effect that the court reporter had been located in Florida and that arrangements had been made to furnish this Court with a transcript of the evidence. By per curiam order, we granted the application for rehearing and conditionally set aside the reversal pending receipt of a proper court reporter’s transcript of the evidence. (Ms. June 15, 1976.) 340 So.2d 1136. The transcript was properly filed within the time specified in our order and we now review the case on its merits.

In Pope v. State (Ms. July 16, 1976), the Alabama Supreme Court stated, in pertinent part:

“. . The Court of Criminal Appeals, on remand, can determine whether the failure to get a transcript timely filed was the fault of the defendant. If the defendant was not at fault, that court can, under its supervisory powers, compel the preparation of a correct transcript, or can allow the defendant time to prepare a succinct statement of the evidence in lieu of a transcript. See International Bro. of Teamsters, etc. v. Hatas, 287 Ala. 344, 252 So.2d 7 (1971).”

We find from the record that the failure to timely file the transcript of the evidence in this cause was not the fault of the appellant or counsel for appellant. Having received a transcript of the evidence, our pri- or opinion of May 4, 1976, reversing and remanding this cause is hereby withdrawn.

ON THE MERITS

Virgil Bonner testified that he was a customer in a St. Clair County drinking establishment around the latter part of June 1974 when he met the appellant. She asked him to dance and then asked him to go outside with her. He complied and went outside where he was set upon by appellant’s husband and one Steve Gravette. He said the two assailants were crouching behind a parked car; that they hit him twice with a baseball bat; and that one of them stabbed him in the stomach. He spent six weeks in the hospital due to that assault and was due to have another operation as a consequence.

Bonner said that as he was trying to flee the assailants, the appellant followed him, putting her hand in his pocket and attempted to take his wallet. The tavern operator came to Bonner’s rescue and held the appellant and the men at gun point until the police arrived.

Appellant testified that Bonner approached her in the tavern, and asked her to dance with him, which she did. She said she left the club around 11:30 P.M. because Bonner would not leave her alone. Appellant’s husband, her sister-in-law and Steve Gravette were at the lounge with her that night. When she went outside, she said Bonner followed her to her car, where her husband and companions were waiting for her. Both she and Bonner were “pretty loaded” and her husband was mad about Bonner dancing with her. Appellant said that upon reaching the car, her husband slapped Bonner a few times. As appellant was getting into the car, Steve Gravette suddenly appeared with a bat and hit Bonner. Appellant said she did not attempt to rob Bonner and that she and her companions had not planned to rob him. She did not know who stabbed him.

Edward Wilson, the tavern owner, testified that appellant and Bonner left the tavern together and that appellant’s husband and Gravette followed them out. He did not know who started the scuffle and did not hear any of the conversation between the parties. He only broke up the fight and held the parties for the police.

The facts were in dispute. The State made out a prima facie case which the appellant’s testimony attempts to rebut. The jury could have believed the appellant, however, it obviously chose to believe the State’s evidence that Bonner was lured outside by appellant where he was ambushed by her accomplices and that she attempted to take his wallet.

The weight and probative value of evidence is for the jury. Where there is legal evidence from which the jury can, by fair inference, find guilt, this Court has no right to disturb the verdict. Haggler v. State, 49 Ala.App. 259, 270 So.2d 690 (1972). Conflicting testimony is for the jury and a verdict rendered thereon, where a prima facie case appears, will not be disturbed on appeal. Pugh v. State, 51 Ala.App. 164, 283 So.2d 616 (1973).

AFFIRMED.

All the Judges concur.


author: CATES, Presiding Judge.

text:
    Robert Earl KIRKLAND v. STATE.
    4 Div. 428.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.
    Rehearing Denied Nov. 2, 1976.
    Adams & Bates, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Joel E. Dillard, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

Selling an automobile to hinder, delay or defraud a lien holder: sentence, four years imprisonment. Code 1940, T. 14, § 363.

On April 29, 1974, Kirkland, a used car dealer, borrowed as a “business loan” $508.00 from The Dothan Bank and Trust Company. He signed a note and a security agreement which covered as collateral a 1974 Plymouth Fury four door sedan. On September 27, 1974 he renewed the note.

However, on June 26 he had sold the car through The Auto Auction for a price of $345.00. The security agreement expressly denied the debtor authority to sell, etc., the collateral “in any manner not specifically authorized by this agreement.”

The loan officer for the Bank admitted under cross examination that he had agreed verbally to Kirkland’s having a “floor plan.” He insisted, however, that this was not in contradiction of the security agreement.

Kirkland did not testify.

Appellant’s counsel presses two points of claimed error: first, overruling the defendant’s motion to exclude the State’s evidence and second, overruling objection to the prosecutor’s referring to defendant in argument to the jury as “slippery.”

I

Both parties here cite Wiley v. State, 16 Ala.App. 93, 75 So. 641, as the touchstone for interpreting the statutory crime here charged. That case gives as required elements: (1) a sale (or removal) of personal property; (2) a written mortgage or deed of trust upon the property to which the defendant was bound; (3) the lien’s not being satisfied at the time of the defendant’s selling the collateral; and (4) no prior consent of the mortgagee to the sale.

Appellant argues that since the loan officer testified he had agreed to Kirkland’s selling cars from time to time covered by security agreements consequently a course of dealing became a part of the instant loan and mortgage. Yet the officer in each occasion testified that Kirkland was required to remit the sale proceeds to the Bank. This feature distinguished Kirkland’s “floor plan” from the one in evidence in Farris v. State, 41 Ala.App. 51, 130 So.2d 54, even if the Bank may have occasionally waived strict compliance.

The jury was, under the evidence, entitled to view the consent to sell as qualified by a promise of prompt payment of the proceeds of the sale. Therefore the trial judge did not err in overruling the motion to exclude.

II

“Slippery” no doubt carries a derivative pejorative connotation. One of its dictionary meanings is “deceitful.”

The evidence of renewing the note after the car was sold would support an inference of deceit. The test of legitimate argument is that whatever is based on a fact or facts in evidence is within the scope of proper comment in argument to the jury.

We have examined the whole record as required by Code 1940, T. 15, § 389 and consider the judgment below is to be

AFFIRMED.

All the Judges concur.


author: HEFLIN, Chief Justice.

text:
    Ex parte Robert Earl KIRKLAND.
    SC 2173.
    Supreme Court of Alabama.
    Jan. 7, 1977.
   HEFLIN, Chief Justice.

WRIT DENIED.

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


author: RICHARD L. HUNDLEY, Circuit Judge.

text:
    Georgia Mae JACKSON v. STATE.
    1 Div. 697.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1976.
    Rehearing Denied Nov. 16, 1976.
    Francis A. Poggi, Jr., Fairhope, for appellant.
    William J. Baxley, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for the State.
   RICHARD L. HUNDLEY, Circuit Judge.

Defendant maintains the circuit court erred in disallowing her pleas of former jeopardy. She based these pleas on her acquittal in the City of Fairhope Recorder’s Court of a charge of petit larceny. She contends that she was prosecuted twice for a single incident of alleged shoplifting: once by the city for petit larceny and then again by the State, in the case at hand, for grand larceny.

The State filed no motion to strike or demurrer. The issue of jeopardy was not tried before the issue of guilt was tried. The trial court simply heard arguments as to the applicability of the cases of Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435, and Smith v. City of Irondale, 293 Ala. 357, 303 So.2d 130, and then denied the pleas. The case was then put to the jury on the merits. They convicted.

This constitutes error as we have held in the case of Harmon v. State, 48 Ala.App. 521, 266 So.2d 325:

“We think the court fell into reversible error in ruling upon the plea of former conviction rather than submitting the matter on the testimony that might be offered to the jury.
“In the case of Berland v. City of Birmingham, 36 Ala.App. 488, 60 So.2d 377, the Court in speaking of this type of plea said:
“ ‘When a plea is regularly interposed it is subject to either a demurrer or motion to strike, and if neither is interposed issue must be taken on the plea. A court is without authority to overrule such plea without giving the party interposing the plea an opportunity to submit his evidence in support thereof. Coburn v. State, 151 Ala. 100, 44 So. 58; Carter v. State, 21 Ala.App. 406, 108 So. 642; Evans v. State, 24 Ala.App. 390, 135 So. 647.’ “In this case the State filed no motion to strike or demurrer to the plea of former conviction but apparently took issue thereon and the court, insofar as the record shows, did not submit the issue raised therein to the jury and no evidence was submitted by either the appellant or the State. The State’s evidence and that of appellant noted in the record is directed to the trial of the case on the merits.”

Substantially the same occurred below requiring reversal.

The foregoing opinion was prepared by Hon. RICHARD L. HUNDLEY, Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of § 38, T. 13, Code 1940, as amended; the Court has adopted his opinion as its own.

The judgment below is hereby

REVERSED AND REMANDED.

All the Judges concur.


author: EMBRY, Justice.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2201.
    Supreme Court of Alabama.
    Dec. 30, 1976.
   EMBRY, Justice.

WRIT DENIED.

HEFLIN, C. J., and BLOODWORTH, JONES and ALMON, JJ., concur.


author: B00K0UT, Judge.

text:
    Arthur Bernard HAYES, alias v. STATE.
    1 Div. 724.
    Court of Criminal Appeals of Alabama.
    Oct. 19, 1976.
    Rehearing Denied Nov. 16, 1976.

      David L. Barnett, Mobile, for appellant.
    William J. Baxley, Atty. Gen. and Jack M. Curtis, Asst. Atty. Gen., for the State, appellee.
   B00K0UT, Judge.

First degree murder; sentence: life imprisonment.

The appellant raises only one issue on appeal, and it does not concern the facts in the case. After the State and defense had rested and made their closing arguments, the defendant moved to dismiss his attorney. The appellant made various statements in the presence of the jury which might have had a tendency to prejudice him in the eyes of the jury. The trial judge denied the appellant’s motion, and he also denied the appellant’s motion for a mistrial.

The appellant’s attorney out of the presence of the jury stated to the court that the dispute arose from his decision not to allow the appellant to testify. He stated that the decision had been discussed and made months before trial and that the appellant had not objected until immediately before the trial judge was to give the oral charge. Counsel based his decision upon the fact that the appellant had previously been convicted of a crime involving moral turpitude, i. e. selling narcotics, and had served time in the penitentiary. Counsel and appellant’s father believed appellant would be impeached with such and it would severely prejudice him with the jury.

The trial judge was very complimentary of appellant’s counsel’s performance at trial, and the record discloses that appellant’s counsel performed his task adequately. The trial judge also instructed the jury to ignore the appellant’s outbursts, and he was assured they would do as instructed.

I

It is within the trial court’s sound discretion to refuse to allow a defendant to dismiss his attorney after the trial has commenced. Hamilton v. State, 270 Ala. 184, 116 So.2d 906 (1960), reversed on other grounds, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961). Such a rule is especially efficacious in the present ease where the trial was, with the exceptions of the jury charge, complete. A contrary rule would allow a defendant to postpone a decision and sentence indefinitely.

The appellant, with the knowledge that he would not be allowed to testify, had ample opportunity to dismiss his counsel before trial, but he chose not to do so. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) is, therefore, inapplicable to the present case.

II

As to the appellant’s contention that a mistrial should have been declared, we hold that one cannot purposefully create grounds for a mistrial by deliberately causing a disturbance during the trial. See Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Such a conclusion is obviously necessary, otherwise a defendant faced with imminent conviction could disrupt the trial, prejudice himself in the jury’s eyes and, therefore, be entitled to another trial.

We will not condone such and thus will not allow a defendant to benefit from his own misconduct in the courtroom. The trial judge here acted in a judicious and completely proper manner, and we find no error on his part in denying the motion for a mistrial.

AFFIRMED.

All the Judges concur except CATES, P. J., not sitting.


text:
    Ex parte Arthur Bernard HAYES.
    SC 2222.
    Supreme Court of Alabama.
    Jan. 7, 1977.
   HEFLIN, Chief Justice.

WRIT DENIED.

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


author: BOOKOUT, Judge. DeCARLO, Judge,

text:
    Clarence WILLIAMS, alias v. STATE.
    6 Div. 188.
    Court of Criminal Appeals of Alabama.
    Oct. 19, 1976.
    Rehearing Denied Nov. 16, 1976.
    Drake & Knowles, University, for appellant.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State, appellee.
   BOOKOUT, Judge.

Possession of amphetamines; three years, fine of $2,000.00. Possession of marijuana; three years, fine of $500.00.

This case was originally assigned to the author of the dissenting opinion. The facts and assignments of error are stated in detail in that dissent, and we need not repeat them here.

Appellant was arrested when police executed a search warrant on the apartment of one Anna Duncan. Appellant was present in the apartment when the search took place. No amphetamines or marijuana were found on his person or in his clothing.

The record reveals that the State failed to prove, in its case in chief, that the appellant possessed either amphetamines or marijuana. No actual possession was shown; no evidence was presented from which a jury could infer that the appellant knew of the presence of the drugs; and no constructive possession was shown.

Constructive possession could only arise where the prohibited material is found on the premises owned or controlled by the appellant. No evidence was presented showing that the appellant owned or controlled the premises here.

Possession must be shown by three attributes: (1) Actual or potential control; (2) Intention to exercise dominion; and (3) External manifestation of intent and control. Radke v. State, 292 Ala. 290, 293 So.2d 314, affirming this Court’s opinion in 52 Ala.App. 397, 293 So.2d 312 (1974); Garsed v. State, 51 Ala.App. 622, 288 So.2d 161 (1973); DeGruy v. State, 56 Ala.App. 521, 323 So.2d 406 (1975), cert. denied 295 Ala. 399, 323 So.2d 411. The evidence in the instant case is insufficient to show any of the attributes of possession as defined in those decisions and cases cited therein.

Testimony given after the State had rested its case and the motion to exclude had been presented, cannot be used to support the verdict of the jury. In considering the question as to whether the trial court correctly overruled the motion to exclude, we can only consider the evidence which was before the trial court at the time the motion to exclude was made. Livingston v. State, 44 Ala.App. 559, 216 So.2d 731 (1968); Tooson v. State, 56 Ala.App. 613, 324 So.2d 327 (1975), cert. denied 295 Ala. 426, 324 So.2d 333. At the time the motion to exclude was made, the State had only shown that the appellant was present in the apartment of some other person, dressed in rumpled clothing, sans shoes and jacket. He retrieved both his shoes and his jacket from the bedroom when placed under arrest. Whether appellant knew that prohibited drugs were in the apartment, or whether the appellant exercised some dominion or control over the apartment is left to mere conjecture and speculation. The motion to exclude should have been granted. The appellant is due a new trial.

REVERSED AND REMANDED.

CATES, P. J., and TYSON, J., concur.

HARRIS and DeCARLO, JJ., dissent.

DeCARLO, J., files dissenting opinion.

DeCARLO, Judge,

dissenting.

James C. Britton was employed as a toxicologist and laboratory director in the Tuscaloosa Division of the State Department of Toxicology and Criminal Investigation. On March 5, 1975, Sgt. Lloyd Russell of the West Alabama Narcotics Squad delivered a package to him, bearing the initials “E. W.” across the seal of the envelope. Inside the large envelope were several small envelopes containing various items received in connection with the investigation of a case involving Clarence Williams. He testified that his analysis of the envelope disclosed 150.5 grams of marijuana, 19 amphetamine tablets, a meprobamate tablet and 32 amphetamine tablets.

James L. Darnell, on March 4,1975, was a police officer with the city of Tuscaloosa and was assigned to the narcotics squad. Approximately 9:15 that morning, Darnell, along with Deputy Larry Massey, ABC Agent Walden, Joe Perkins and City Detective Thomas Elmore, went to a government housing project located in the Holt area of Tuscaloosa, Alabama. They had gone to that address pursuant to a search warrant they had for the dwelling of Anna Duncan. Upon their arrival, Darnell and Officer Massey went to the rear door of the apartment and the other officers went to the front door. Subsequently, ABC Agent Walden unlocked the rear door and he and Massey went inside the apartment. They walked into the living room and remained there until the “Miranda rights” were read to the appellant and a female, Michele Graves. At the time, the appellant was dressed in pants and a shirt but was not wearing any shoes. His clothes appeared to be rumpled and his shirt-tail was on the outside of his pants. During his search of the left rear bedroom, Darnell found a white plastic bag containing five small bags of marijuana. On the dresser in the same bedroom, he found a small manila envelope which contained 27 pink, heart shaped pills. Also, in a jewelry box on the dresser he found more pink pills and these along with the other pills and the marijuana were given to agent Walden.

Further, in one of the drawers of the same dresser a billfold, containing several sets of identification along with several credit cards bearing different names, was found. The billfold was located in the back of the drawer underneath some female under garments and some men’s socks. Darnell said that he did not determine who owned the wallet and could not say whether or not the appellant’s driver’s license was in the wallet. According to Darnell, the driver’s license bore the last name “Williams” but he did not know if the first name was “Clarence.”

During cross-examination, Darnell stated that other items of male clothing were found but he was unable to determine the ownership. Darnell said that before the appellant left the apartment, he was taken into the back bedroom to pick up his shoes and jacket. He recalled that the shoes were on the floor near the bed and the jacket was lying on some clothing on a chair or couch.

Joseph W. Perkins, Sr., on March 4, 1975, was a constable for Beat 15, in Tuscaloosa County, and around 9:00 A.M. that day was working with the West Alabama Narcotics Squad when they made the search of Anna Duncan’s apartment. He testified that upon arriving some of the men went toward the back of the house and he accompanied several of the other men to the front. They knocked several times and after hearing voices inside, the officers identified themselves and stated their purpose. After several minutes passed, and they were unable to get anyone to the door, they opened it by force. Perkins said that the first thing he noticed when he went into the apartment was a “red-headed lady” running toward the kitchen. She grabbed an object from the table and started back in the direction where he and the other officers were. She was stopped, and clutched in her hand they saw half of a marijuana cigarette. Perkins first saw the appellant when he came down the hall and turned into the living room. He stated that appellant was dressed in light colored clothing but did not believe he had any shoes on at the time. Perkins began searching the kitchen and then went into the living room, where he found a white tablet on a table and a “leather pouch” containing black capsules on the inside of a chair. These capsules, along with the white tablet, were turned over to Mr. Walden. According to Perkins, just before leaving he accompanied the appellant to the bedroom to get his shoes. The shoes were located between the bed and the dresser. Perkins did not recall whether the appellant had on socks but said appellant put on a jacket just before they left the apartment.

During cross-examination he stated that Officer Darnell and another officer came in the back door after he and the other officers came through the front door. Further he did not know whether Clarence Williams rented the apartment but was told by someone in the office of the apartment building that it was rented by Anna Duncan.

Earl Walden was a drug enforcement agent with the ABC Board and was assigned to the West Alabama Narcotics Squad. On March 4,1975, while working in that capacity, he along with other officers searched Duncan’s apartment. After entry was made he observed Michele Graves in the kitchen with her hands behind her back. He did not see anyone else at the time, but later saw the defendant in the left rear bedroom. Walden said he did not know the appellant was in the apartment until he heard another officer talking to him. Walden recalled that the defendant was wearing a printed white shirt and “blue jeans.” Appellant’s clothes appeared to be wrinkled and the top portion of his shirt was unbuttoned. Walden said that he did not believe that defendant was wearing shoes at the time.

During the search, Walden was the “evidence man” and received various items from the other agents and took pictures after they were discovered. Among the items received from the other officers were bags of marijuana, a phenobarbital tablet, amphetamine tablets, a meprobamate tablet, and a marijuana cigarette. All these items were later carried to the State Toxicologist’s Office.

Walden stated that after Williams had been warned of his constitutional rights, a billfold was found in the dresser. Appellant denied owning the billfold but said the pictures and the drivers license in it were his.

Walden recalled that the person named in the warrant was Anna Duncan and the appellant was not mentioned. He had no knowledge that appellant lived at the apartment and did not know that appellant was on the premises until he saw him there. Walden also recalled that Anna Duncan was not present at the time of the search but was charged with possession of controlled substances.

At the end of Walden’s testimony the State rested its case and the appellant, out of the presence of the jury, made a motion to exclude. Defense counsel argued that the State had failed to present a prima facie case of possession of marijuana or of possession of amphetamines. The court overruled the motion.

After the court’s ruling the proceedings were continued before the jury, and appellant called Anna Lois Duncan. It was her apartment that was searched by the Tuscaloosa Narcotics Department on the morning of March 4, 1975. She had taken her children to school about 7:30 A.M. on that date and afterwards had gone to the food stamp office where she was later arrested. Mrs. Duncan testified that the drugs found during the search belonged to her. She said Clarence Williams was a friend of hers and that she saw him once or twice a week. Duncan stated she had not seen him for two days but had talked to him on the phone the night before the search. Appellant had left his jacket at the apartment and she left a note in case he came back to get it. In the note, she told the appellant “don’t leave until I get home.” Duncan said that she had written another note in which she explained that she was wearing his jacket to the food stamp office. She maintained she had not planned to see the appellant and the note was written in the event he came by to pick up his jacket.

According to Duncan, Michele Graves was a friend who lived with her and would baby-sit with her children. Duncan stated there was no men’s clothing in her apartment but added that she had a twelve-year-old son who weighed about 130 pounds and if any clothes' were there they belonged to him. Further, she said that the appellant, “had nothing at my house, his billfold was not at my house that I know of.” Also, she denied any knowledge of what he would be doing in her bedroom and why his shoes would be under her bed.

Willie Williams was the father of the appellant and he testified that the appellant was living with him at the time of the search on March 4,1975. According to Williams, the appellant stayed at home on the night of March 3rd and he did not drive the appellant to Woodmont on the day in question.

Clarence Williams testified he was living with his father on March 4, 1975, and that after showering and dressing, his brother drove him to Anna Duncan’s apartment. It was sometime after 8 A.M. when he arrived and knocked on the door. When he received no response, he opened the door and went inside. Subsequently, Michele Graves appeared and he inquired about Anna Duncan. According to the appellant, he asked to use the bathroom and while there he heard someone, “bust in the door.” He said he became frightened and ran toward the back of the apartment. There he removed his wallet and put it in the drawer. He explained that some of the cards in the wallet were not his and that was the reason for putting the wallet in the drawer.

On cross-examination he testified that he did not have any conversation with Michele Graves other than the two inquiries. He denied having his shoes off and stated he was fully dressed. Williams maintained he did not have any jackets there other than the one he was wearing. Further, he said that the billfold contained his draft card, social security card, driver’s license, and his birth certificate. He explained that the two credit cards were found in Chicago and that some of the identification belonged to his brother, Willie Williams. He admitted that he would not talk to the officers and that he had told them his name was Willie Williams. Further, he denied any knowledge of the drugs and denied seeing Anna Duncan’s note. According to appellant, the last time he talked with Anna Duncan was the night before the search when she telephoned him at his father’s house. Duncan told him she was leaving town and that he should come by and pick up his jacket.

I

The appellant contends that the evidence presented by the State was insufficient to support a finding of guilt by the jury and the trial court erred in not granting his motion to exclude or request for the affirmative charge.

While mere presence at the scene, standing alone, is not sufficient to sustain a finding of guilt, on the charge of illegal possession of drugs, and while actual knowledge of the presence of illegal narcotics is essential in such a case, the surrounding facts and circumstances may be sufficient to establish the essential facts of knowledge, and physical or constructive possession. Rueffert v. State, 46 Ala.App. 36, 237 So.2d 520; Womack v. State, 34 Ala.App. 487, 41 So.2d 429; Parks v. State, 46 Ala. App. 722, 248 So.2d 761.

In the instant case it was established that the appellant was present with a female in the apartment where the drugs were found. He was seen coming from the direction of the room where drugs were found and his jacket was near the closet where the marijuana was discovered. The appellant’s wallet was in a drawer of the dresser on which amphetamines were found. Also, Michele Graves was seen in the apartment with a partially burned marijuana cigarette. Further, men’s socks, pants, and shirts were found. The appellant’s shoes were found under the bed and at the time the officers entered the apartment the appellant was shoeless. On the kitchen table a note written by Anna Duncan, the lessee of the apartment, was found. It was addressed to the appellant wherein he was directed not to leave until she returned.

Under these circumstances, even though appellant presented conflicting evidence, the question of whether Clarence Williams knew of and was in actual or constructive possession of the narcotics, became a question for the jury.

Moreover, the fact that the appellant presented conflicting evidence to contradict the State’s evidence would not have altered this fact. Conflicting evidence always presents a question for the jury as to the guilt of the defendant. Waters v. State, 55 Ala.App. 646, 318 So.2d 342; Carr v. State, 56 Ala.App. 125, 319 So.2d 744; Jemison v. State, 56 Ala.App. 6, 318 So.2d 746.

II

The appellant next complained that the district attorney during his final argument to the jury, made certain remarks to the jury which were prejudicial and improper He insists there was no evidence presented during the trial which would support this statement:

“MR. HARRIS: Because if he was exercising control over that place and staying there and he had to have known what was going on. Because you look at the bag. There are five individually wrapped packages and if a person was buying it for their own use, you know as well as I do they wouldn’t have five individually wrapped packages. It’s right there for sale. Now it doesn’t take anybody too long to figure that out, and here’s Anna Duncan and I’m sorry to say, but I tell you it upsets me, because do you realize, and I’m not against the poor, the downtrodden, anybody that doesn’t have a chance, and anybody that knows me will tell you that. But to think that we as tax payers are setting up and financing a drug operation in a government project
“MR. PORTE: Oh, we’re going to object to that. Highly prejudicial.
“THE COURT: Overruled.”

No legal standard exists by which one can measure the prejudicial qualities of improper remarks in every case; each case must be determined on its own merits. Smith v. State, 282 Ala. 268, 210 So.2d 826. Nonetheless, great latitude is allowed counsel in making his appeal to the jury and drawing inferences from the evidence. Cross v. State, 68 Ala. 476; Beaird v. State, 219 Ala. 46, 121 So. 38; Alexander v. State, 37 Ala. App. 533, 71 So.2d 520.

In view of the testimony that there was a sizable amount of illegal drugs found in the apartment of a government project and the apartment’s lessee’s statement that she was at the food stamp office gave evidentiary support to counsel’s comments. I think that the district attorney’s deductions were within the boundary of arguable inferences allowable under the evidence.

Based on the foregoing reasons, it is my opinion that this case should be affirmed.

      . Even if subsequent testimony could have been considered, it was still insufficient here to show the requisite knowledge or possession.


text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL
    SC 2200.
    Supreme Court of Alabama.
    Jan. 7, 1977.
   HEFLIN, Chief Justice.

WRIT DENIED.

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


text:
    Richard Darnell ZUCK v. STATE.
    6 Div. 35.
    Court of Criminal Appeals of Alabama.
    Oct. 26, 1976.
    Rehearing Denied Nov. 16, 1976.

      Hubert L. Taylor, Gadsden, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, Barry V. Hutner, Asst. Atty. Gen., Birmingham, for the State.
   BOOKOUT, Judge.

Appeal from denial of writ of error cor-am nobis.

Appellant was convicted of murder in the second degree and he is presently serving a forty year sentence. Zuck v. State, 57 Ala. App. 15, 325 So.2d 531 (1975), cert. denied, 295 Ala. 430, 325 So.2d 539 (1976).

He was represented at trial by a prominent law firm in Birmingham. He was also represented by a member of that firm in a habeas corpus proceeding before that trial. This same law firm simultaneously represented Larry Waites, a plaintiff in a $500,-000.00 civil suit. Waites was prosecutor in the appellant’s trial. Neither Waites nor members of the law firm informed the appellant of the dual representation. However, appellant stipulated that their failure to inform him was not the product of bad faith on their part.

By petition for writ of coram nobis, he contends that the dual representation denied him the right to effective counsel as required by the Sixth Amendment to the United States Constitution.

Appellant’s trial began on June 10, 1974, and he was found guilty on June 14, 1974. After conviction, the law firm representing him withdrew from the case, and two other attorneys were appointed to represent him regarding a motion for a new trial. The motion for new trial was filed July 15,1974. A hearing on the motion was set for July 29, 1974, and was denied on that date.

Alice Salter, a former girl friend of the petitioner, testified that the petitioner knew, at least a month before his trial, that the first law firm was also representing Larry Waites. Likewise, a newspaper article appeared on May 3, 1974, in which Waites’ law suit was explained along with the disclosure of the attorneys who represented him. The appellant denied that he had knowledge before trial of the dual representation. However, by the petitioner’s own admission, he learned of the dual representation within two to three weeks after his conviction, which was before his motion for a new trial was filed.

We quote from Seagroves v. State, 53 Ala.App. 481, 301 So.2d 245 (1974) as follows:

“. . . The office of the writ of error coram nobis is not that of a delayed appeal but rather a vehicle to seek review of certain matters which were not known or could not have been reasonably discovered within the time for taking a direct appeal.”

By the appellant’s own admission, he learned of the alleged conflict of interest before his motion for a new trial was heard and denied. The appellant’s mere assertion that he did not recognize the significance of the alleged conflict and that he did not discuss it with his new attorneys does not establish his right to relief by way of coram nobis. Appellant has the duty to establish his right to relief by clear, full and satisfactory proof. Vincent v. State, 284 Ala. 242, 224 So.2d 601 (1969). This is especially so in view of the appellant’s assertion that he was very upset when he learned of the alleged conflict. It is incongruous to believe the petitioner did not inform his new attorneys of the alleged conflict under such circumstances. If the petitioner did not inform them, then his inaction amounted to gross negligence. One’s own negligence is not a basis upon which a writ of error coram nobis may be granted. Thornburg v. State, 42 Ala.App. 70, 152 So.2d 442 (1963). Appellant should have raised the alleged conflict of interest in his motion for new trial and then on direct appeal and not by writ of error coram nobis.

AFFIRMED.

All the Judges concur except CATES, P. J., not sitting.


author: JONES, Justice.

text:
    Ex parte Richard Darnell ZUCK.
    SC 2204.
    Supreme Court of Alabama.
    Jan. 7, 1977.
   JONES, Justice.

WRIT DENIED.

HEFLIN, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.


author: ENGLAND, Justice.

text:
    BROWARD COUNTY TRAFFIC ASSOCIATION et al., Petitioners, v. William T. MAYO et al., Respondents.
    No. 47354.
    Supreme Court of Florida.
    Sept. 23, 1976.
    Rehearing Denied Jan. 24, 1977.
    Felix A. Johnston, Jr., of Woods & Johnston, Tallahassee, and Daniel J. Sweeney of Belnap, McCarthy, Spencer, Sweeney & Harkaway, Washington, D.C., for petitioners.
    William L. Weeks, Prentice P. Pruitt and Donald R. Alexander, Tallahassee, for respondents.
    Dan R. Schwartz, of Schwartz, Bolinger & Peterson, Jacksonville, for Florida Intrastate Rate Bureau, intervener-respondent.
   ENGLAND, Justice.

By petition for the writ of certiorari to the Public Service Commission, several associations of shippers utilizing the services of general commodity motor carriers bring to us for review two Commission orders which increase freight rates. We have jurisdiction.

An application for increased rates was filed by the Florida Intrastate Rate Bureau (the “Bureau”), an organization formed by a number of carriers. The Bureau requested an across-the-board rate increase of 15%, coupled with the cancellation of a 6% fuel surcharge previously granted by the Commission, or a net increase of 9%. Hearings were conducted at which carriers introduced evidence in support of the increased rates and shippers developed evidence to the contrary. At the conclusion of all proceedings the Commission found that the increase requested was not justified, but that a lesser increase was necessary to provide the carriers with reasonable and just rates. The Commission approved an overall rate increase composed of a 6% increase for full truckloads, a 10% increase for less-than-truckload rates, and the elimination of the 6% fuel surcharge. The Commission also adopted for less-than-truckload rates the current minimum charges of the Southern Motor Carriers Rate Conference Southern Class Tariff, as approved by the Interstate Commerce Commission for interstate carriers in the southeastern United States. The Commission further found:

“Although such a rate increase will result in operating ratios below the 95% level advocated by some parties, it gives recognition to conditions which have occurred after the end of the test period . but which are clearly evident, such as the continuing inflationary forces which have not abated since this application was filed.”

Petitioner-shippers complain to us that there was no evidence before the Commission to show (i) that variations in cost exist among the various types of carrier service provided by general commodity carriers, (ii) that rates established for interstate carriers in the southeastern United States are readily applicable to intrastate carriers in Florida, or (iii) that inflation had produced a specific dollar effect on carriers since the application had been filed. Although they do not suggest that an overall increase in rates is unjustified, petitioners contend that the adoption of the rate schedules which provide the additional money were arbitrarily approved and unsupported by competent and substantial evidence. They also call to our attention a lack of notice for what the Commission has done, stating that increases of 34% have been approved for the smallest shipments although shippers of small commodities did not appear in the proceeding due to their belief that the maximum increase sought by the Bureau was 15%.

While the Commission has been vested with the authority to exercise discretion in prescribing rates and this Court will not disturb its orders unless they fail to comport with the essential requirements of law, the orders in this case suffer from two basic errors.

The Commission granted the carriers unrequested relief from inflationary factors occurring after the application was filed, relying on Gulf Power Corp. v. Bevis, 289 So.2d 401 (Fla.1974). That case in no way stands for the principle the Commission applied. In that case the Court directed the Commission to approve rates which took into account as an “out of period adjustment” to the utility’s test year a known corporate income tax liability the amount of which was owed at a date certain. That case differed only in degree from prior decisions which had allowed the test year concept of rate-making to be expanded for known and ascertainable liabilities occurring after the test period. Gulf Power does not stand for the proposition that the Commission possesses unlimited authority to expand the concept of an “out-of-period adjustment” to include undocumented conclusions as to general economic conditions. Such a doctrinaire application of Commission “expertise” would obviate the use of test years as a tool in rate-making. The Commission erred, therefore, in grounding a rate increase to any extent on out-of-period “inflationary” factors.

The Commission also erred in adopting an interstate rate schedule for intrastate carriers without a factual foundation to do so. In International Minerals & Chemical Corp. v. Mayo, 217 So.2d 563 (Fla.1969), we held that the Commission cannot adopt interstate rates and thereby “shirk from its statutorily imposed responsibility to see that its orders are supported by competent substantial evidence.” The Commission grounds its adoption on reasoning expressed in a post-International Minerals proceeding not reviewed by this Court, where the Commission explained that intrastate operating costs are generally not less that interstate operating costs:

“Such factors as traffic congestion, the number of short haul movements in Florida, humid climate, associated maintenance expenses, and other factors make it difficult if not impossible to reach the conclusion . . . that Florida carriers can operate less expensively than a typical interstate carrier. ... In summary, we cannot agree that we are precluded . . . from making intrastate rates comparable to interstate rates where such action results in reasonable freight rates and charges, and is predicated upon independent findings by this Commission.”

Of course the type of factors mentioned by the Commission also make it “difficult if not impossible” to conclude that Florida carriers in fact operate at precisely the same cost levels as interstate carriers. Despite that fact, the Commission’s decision in the cited proceeding was ostensibly _ based on an element not present to any degree in this proceeding — “independent" evidence developed before the Commission to sustain its ultimate finding that the interstate rate schedule was reasonable. In this case, there is no factual record to support a finding as to the reasonableness of a new set of rates exactly equivalent to those used interstate.

Obviously the Commission must structure the burdens of a justified rate increase so that individual rates are fair and reasonable, and in doing so the Commission can use its expert judgment. Rate differentials set in accordance with operating cost differentials are generally favored, although not required. But whatever basis for its “informed” judgment, the Commission cannot avoid its obligation to gather reliable information of some form to sustain its allocation of cost burdens.

The writ of certiorari is granted, Commission Orders No. 11975 and 12029 are quashed, and the cause is remanded to the Commission for further proceedings consistent with this opinion.

OVERTON, C. J., and SUNDBERG and HATCHETT, JJ., concur.

ROBERTS, ADKINS and BOYD, JJ., dissent.

      . Art. V, § 3(b)(3) Fla.Const.; § 350.641, Fla. Stat. (1975).

      . Tamiami Trail Tours v. Carter, 80 So.2d 322 (Fla.1955).

      . For one thing, we know of no basis on which the Commission can claim expertise regarding inflationary factors in the economy generally or in the trucking industry in particular. For another, whatever factors might be the thrust of evidentiary presentations they could never justify an expansion of test year data because predictions of future inflation are necessarily imprecise. They could not, therefore, constitute substantial competent evidence. See Milford Copper Co. v. Industrial Comm’n, 61 Utah 37, 210 P. 993, 994 (1922), cited with approval in Florida Rate Conf. v. Fla. RR. & Pub. Util. Comm’n, 108 So.2d 601 (Fla.1959).

      . 217 So.2d at 566.

      . Order 11238, filed February 15, 1974, Docket No. 72611-CCT.


text:
    COWLES FLORIDA BROADCASTING, INC., et al., Petitioners, v. GREEN VALLEY SCHOOL, INC., Respondent.
    No. 49301.
    Supreme Court of Florida.
    Oct. 7, 1976.
    Rehearing Denied Jan. 24, 1977.
    Dan Paul and Sanford L. Bohrer, of Paul & Thomson, Miami, for petitioners.
    Craig T. James, of Clayton & James, De-land, for respondent.

      James D. Whisenand, Deputy Atty. Gen., and Sharyn L. Smith, Asst. Atty. Gen., for Robert L. Shevin, Atty. Gen., State of Florida, Amicus Curiae.
   PER CURIAM.

The Petition for Writ of Certiorari reflected probable jurisdiction in this Court. We issued the Writ, have heard argument of the parties, and have examined the cases of Jacova v. Southern Radio and Television Company, 83 So.2d 34 (Fla.1955), Florida Publishing Company v. Fletcher, 340 So.2d 914 (Fla.), this date filed, and other cases cited by petitioners. We fail to find sufficient conflict to support jurisdiction in this Court, and, therefore, the Writ of Certiorari is hereby discharged as having been improvidently issued.

It is so ordered.

OVERTON, C. J., and ROBERTS, ADKINS, SUNDBERG and HATCHETT, JJ., concur.

BOYD, J., dissents.

ENGLAND, J., did not participate in this decision.


author: BOYD, Justice. ENGLAND, Justice

text:
    Donna MOFFETT et al., Appellants, v. STATE of Florida, Appellee.
    No. 48260.
    Supreme Court of Florida.
    Oct. 14, 1976.
    Rehearing Denied Jan. 24, 1977.
    Elton H. Schwarz, Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and Anthony J. Golden and Charles W. Musgrove, Asst. Attys. Gen., for appellee.
   BOYD, Justice.

Donna Moffett and Janis Chiapparo were arrested for topless sunbathing on a public beach in St. Lucie County. They were charged with violating Florida’s disorderly conduct statute, Section 877.03, Florida Statutes (1975) which, in part, reads:

“Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency . shall be guilty of a misdemeanor of the second degree . . . .”

Following a trial without jury in County Court, St. Lucie County, the two were found guilty and sentenced. The trial court having passed on the constitutionality of Section 877.03, Florida Statutes (1975), we have jurisdiction of this direct appeal.

Moffett and Chiapparo attack the disorderly conduct statute on several grounds of constitutional invalidity. In our view none of them are meritorious. The portion of the statute against which Mof-fett and Chiapparo level their attack has been upheld as constitutional by this Court before.

Since the beginning of civilization public nudity has been considered improper. We are fully aware of the changing social values as expressed in new modes of dress, but are convinced that by enacting Section 877.-03, Florida Statutes (1975), the Legislature intended to prohibit adult females from appearing in public places, including Florida’s public beaches, with openly exposed breasts.

Since the statute is constitutional as applied in this case and appellants’ conduct falls within the statute, their convictions are affirmed.

It is so ordered.

OVERTON, C. J., and ROBERTS and HATCHETT, JJ., concur.

SUNDBERG, J., concurs in result only.

• ENGLAND, J., dissents with an opinion with which ADKINS, J., concurs.

ENGLAND, Justice

(dissenting).

I respectfully disagree with the majority’s conclusion as to the applicability of this statute to the conduct of these appellants, and I regret my colleagues’ decision to summarily dispatch the significant legal issues raised in this proceeding.

The conduct of appellants Moffett and Chiapparo which brought about their convictions under the disorderly conduct statute was, as the majority states, simply that they were sunbathing on a public beach in St. Lucie County without wearing a top to their bathing suits. Approximately 50 to 75 other people were present on the beach at the time. The arresting officer testified that some of the witnesses were personally offended by the presence of topless women on the beach; other witnesses testified that they had no objections. So far as the record indicates, no one left the beach or moved to a more remote section of the sandy expanse as a result of the women’s choice of attire. There was no evidence or any suggestion of a disturbance. One of the appellants testified that a male made an amorous advance, which she ignored, but that like advances often occurred regardless of her state of attire.

Moffett and Chiapparo attack the disorderly conduct statute on the ground that it violates the First and Fourteenth Amendments of the United States Constitution, and Article I, Sections 2, 4 and 9 of the Florida Constitution. Essentially they urge recognition of a right of free expression encompassing this type of activity, and argue that Section 877.03 fails to establish any discernible standards for what is permissible and what is not. Their challenges to this statute raise innumerable questions which have plagued other courts attempting to deal with identical language in similar laws. For example:

“First . . . there is the problem of what is meant by ‘public decency.’ Does the word ‘decency’ refer merely to bad manners or to immoral conduct or, more specifically, to immoral conduct with overtones of sex, eroticism or nudity? Does the term an ‘act * * * which openly outrages public decency’ refer to conduct decent and moral when done in private, but not when in public; or conduct indecent or immoral, or both, even if private, which outrages the ‘public’, whether done in private or public? Finally, even if we decide which attitude of the public, the moral or the decorous, is the one which must be outraged, there is the question ‘who is the public’? Do twelve jurors automatically represent it? That answer is a great deal easier to give in a homogeneous society, in times of well established precepts of morality and manners, such as Victorian England, than today. Our American . . . society . is highly heterogeneous in religion, race, social background and national origin, a fact which gives little assurance that the collective judgment of one jury will, in all but the most extreme cases, be anything like that of another. When the statute speaks of ‘public decency’ does it presuppose some kind of consensus among the majority of the public as to what is and what is not ‘decent’ and, if that assumption is wrong, to which segment of the public is the trier to look?”

It is not necessary to resolve many of these complex questions, however, or to address appellants’ free expression assertions.

“Q [by defense counsel]: Did anybody mention that their morals were being corrupt[ed] by what they saw?
A: No, I think they were more embarassed.”

The bare facts in -the record before us avoid these problems because they simply do not establish the commission of a crime under Section 877.03.

The language of Section 877.03 requires the prosecution to prove that a defendant committed an act which, by its very nature, corrupts public morality or is so indecent as to incite public outrage. The State argues that it proved the commission of such acts by the testimony of policemen who believed other persons were offended by appellants’ near nudity. I would find that evidence, however, legally insufficient.

Section 877.03 contains strong words which require far more compelling evidence. The act derives its force from the action verbs “corrupt” (public morals) and “outrage” (public decency). If the statute’s prohibition is dependent on mere offensiveness to casual observers, serious constitutional issues would be present as to whether the act was impermissibly vague. Musser v. Utah, 333 U.S. 95, 68 S.Ct. 397, 92 L.Ed. 562 (1948).

This Court has already held that the terms of this statute connote much more than an offense to the sensibilities of the persons who might view a particular form of conduct, and that the conduct it proscribes does not make the criminality of an act depend on the personal feelings of select observers. Since that which is considered “immoral” or “indecent” varies considerably from generation to generation and from place to place within the state, the statute can only validly condemn acts repugnant to a general, public standard of morality. The moral standards of contemporary society are hard to pinpoint, and in each case all the circumstances surrounding the alleged misconduct must be considered. This becomes less difficult, arbitrary or subjective if the inquiry is focused on a “corruption” of public morals or an “outrage” to public decency. These elements necessarily limit the statute to acts which incense virtually the entire citizenry, or which have a direct and positive corrupting effect on minors or others.

The record in this case presents no outrage or corrupting influence. Evolving standards of morality have made the freedom associated with minimal attire a feature of our contemporary society. Miniskirts and bikini bathing suits are accepted and, in some locales, standard modes of attire. Throughout Florida and the United States, if not throughout the western world, it has become common for women to wear tight-fitting and semi-transparent blouses or tops without an under-covering for their breasts such as brassieres. The apparent trend toward near nudity, and the preoccupation of our society with minimally-clothed females, are not merely expressions of personal freedom and taste. For years the government of Florida promoted nationwide interest in our sun and our beaches by advertisements which prominently featured skimpily clad females.

I cannot conclude at this juncture in the evolution of modern society that the wearing of see-through blouses, or bikini bathing suits on Florida’s public beaches, constitutes criminal conduct under this statute. By the same token, I can find no reasonable basis to differentiate and condemn as “disorderly conduct” the form of partial undress present here. How, I must wonder, will the majority react to a prosecution for wearing a transparent bathing suit, or one made from a translucent material which becomes transparent when wet?

The point is that under the wording of this statute it makes no sense for the courts of this state to be involved in drawing lines between permissible and impermissible variations on the degree of clothing worn by females. It seems far better to relegate criminal law enforcement to disruptively outrageous behavior, and to let society regulate its own dress standards through peer pressure and, whenever possible, civil community action. For example, there is nothing to prohibit communities from dividing beaches between those portions open to the general public and those open to persons who choose to go topless. Cf., Young v. American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976); Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974). While some may choose to cross the lines for effect, curiosity or mere defiance of authority, the harm in such eases (if any) is minimal and well within the ability of local authorities to control.

I in no way suggest that Florida should tolerate public nudity, the apparent concern of a majority of this Court. Nor would I rule out the possibility that the public sense of decency can be outraged by the conduct of persons who are nude or nearly nude in places where persons of all ages are permitted to swim or otherwise enjoy the resources of the state. If Moffett and Chiap-paro had been bottomless as well as topless, or if their behavior had in fact been disruptive to others, a different situation might be presented upon which I am not now prepared to pass. I have no doubt, for instance, that some forms of sexual activity in a public place clearly fall within the prohibition of the statute even by contemporary standards, although other conduct (such as public kissing) would not outrage the public sense of decency or offend contemporary public morals though some persons might find even that conduct improper.

I simply hold the view that less extreme challenges to decency and morality require a careful study of all surrounding circumstances, and that a conviction for criminal conduct can only be sustained on the basis of proof that an act actually causes public “outrage” or “corrupts” decency and contemporary morality.

For the situation now before us, I would hold that topless sunbathing on a public beach is not by itself a violation of Section 877.03, and that no violation of that statute occurred on September 3, 1975 at “North Beach” in St. Lucie County when the two appellants, out of 50 to 75 present, were lying on the sand with their breasts uncovered.

ADKINS, J., concurs.

      . Art. V, § 3(b)(1), Fla.Const.

      . State v. Magee, 259 So.2d 139 (Fla.1972).

      . Genesis 3:7 (King James) “And the eyes of them both were opened, and they knew that they were naked; and they sewed fig leaves together, and made themselves aprons.”

      . This Court recently upheld the constitutionality of a different part of this statute after considering similar arguments. White v. State, 330 So.2d 3 (Fla.1976). We there construed the statute to prohibit conduct as opposed to mere words, limiting the operation of the statute to conduct which invades the rights of others to pursue lawful activities.

      . In State v. Magee, 259 So.2d 139 (Fla.1972), we expressly upheld the very language now before us against an assertion that the language was unconstitutionally vague. It is not necessary to recede from Magee in order to reverse these appellants’ convictions.

      . In re Davis, 242 Cal.App.2d 645, 651-52, 51 Cal.Rptr. 702, 706-07 (1966) (footnotes omitted).

      . State v. Magee, 259 So.2d 139 (Fla.1972), is illustrative.

      . The arresting police officer testified:

      . Gonzales v. City of Belle Glade, 287 So.2d 669 (Fla.1973).

      .It is instructive to consider this observation made in Miller v. Jersey Coast Resorts Corp., 98 N.J.Eq. 289, 298, 130 A. 824, 828 (1925):
      “[I]t would be a far stretch of the powers of this court, in this day of one-piece bathing suits, to hold that the defendant was guilty of maintaining a nuisance because the occupants of its cottage walked the streets clad only in their bathing costumes. It may be that the bather of yesteryear, clothed in the bathing costume of 1871 (the date of the covenant), was a less objectionable sight than the bathing beauty of to-day. But, judging from the popularity of the bathers’ parades staged at some of our seashore resorts, the modem bathing beauty is not so uniformly objectionable to the eye as to justify the exercise of the injunctive powers of this court in excluding bathers from the streets of a seashore resort.”

      . The fact that toplessness is not more prevalent on the beaches or in the state’s advertising programs may reflect in part the views of many that some fabric on females may have psychological effects on observers at least as stimulating as would be the case if no fabric were worn at all. Witness the disuse after only one or two fashion seasons of topless bathing suits.

      . Florida’s indecent exposure statute, § 800.03, Fla.Stat. (1975), prohibits such conduct. (One circuit court has held, however, that exposure of female breasts alone does not constitute indecent exposure. Moffett v. Collier, Case No. 76-5-CA (Fla. Okeechobee Cty.Ct. 1976.))
      As to the relevance of Adam and Eve to this controversy, I prefer Holmes to Genesis:
      “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.” Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 469 (1897).

      . See State v. Magee, n. 5 above (fornication).

      . Cf. City of Cincinnati v. Wayne, 23 Ohio App.2d 91, 261 N.E.2d 131 (1970), reversing conviction for indecent behavior and indecent exposure for lack of proof that a woman attired without any covering above the waist, except for hat, gloves and “pasties”, was not dressed according to community standards. “Courts are not privileged to take judicial knowledge that the dress of any person is indecent absent evidence.” 23 Ohio App.2d at 96, 261 N.E.2d at 135. See also, People v. Gilbert, 72 Misc.2d 795, 339 N.Y.S.2d 743 (1973) (nude female sunbathing on public beach not inherently lewd); In re Smith, 7 Cal.3d 362, 102 Cal.Rptr. 335, 497 P.2d 807 (1972) (nude male sunbathing on public beach not necessarily lewd and indecent exposure).


author: ROBERTS, Justice.

text:
    GAINESVILLE-ALACHUA COUNTY REGIONAL ELECTRIC, WATER AND SEWER UTILITIES BOARD, Petitioner, v. CLAY ELECTRIC COOPERATIVE, INC., et al., Respondents.
    No. 48960.
    Supreme Court of Florida.
    Nov. 12, 1976.
    Rehearing Denied Jan. 24, 1977.

      Adkins, J., dissented.
    Norm La Coe, George H. Nickerson, Jr., County Attys., and Osee R. Fagan and A. Bice Hope of Fagan, Crouch, Anderson & Folds, Gainesville, for petitioner.
    Henry L. Gray, Jr., of Chandler, O’Neal, Gray & Lang, Gainesville, and Prentice P. Pruitt and M. Robert Christ, Tallahassee, for respondents.
   ROBERTS, Justice.

We have for review by petition for writ of certiorari Order No. 7040 and Order No. 7102 of the Public Service Commission.

The pertinent facts as supported by the record are succinctly stated in the Order of the Public Service Commission under review. These proceedings were opened on the complaint of Clay Electric Cooperative, Inc. (complainant or Clay) against the Gainesville-Alachua County Regional Electric, Water and Sewer Utilities Board (RUB, defendant or Board), and concern an electric service territorial dispute centering on the unincorporated area of Alachua County known as the “Copeland Settlement.”

Clay is a rural electric cooperative organized under Chapter 425, Florida Statutes. The Board is a water, sewer and electric utility system created by interlocal agreement between the city and county under Chapter 163, Florida Statutes. Both utilities have been exempt from regulation by this Commission pursuant to Section 366.02, Florida Statutes. However, a 1974 statutory amendment extended Commission jurisdiction for certain purposes including resolution of “any territorial dispute involving service areas between . . . rural electric cooperatives [and] municipal electric utilities . . . .” Section 366.04(2)(e), Florida Statutes. Although the complaint and answer are limited to the dispute over the Copeland Settlement, this Commission must also consider the larger issues of territorial conflict, duplication of facilities and conservation of energy resources. At present the two utilities are operating without territorial agreement or other service area restrictions, and are thus in potential competition throughout much of Alachua County.

The Copeland Settlement is a subdivision of about 95 low-cost homes located one half mile east of the Gainesville city limits. The settlement has been served with electricity by Clay for the past 25 years, and is adjacent to an area served by the Board. Since the Copeland Settlement is without a safe, reliable water supply, the Board has agreed to extend water service (and eventually sewer service) to this area. It has an established policy of requiring its water customers to also utilize its electric service. Although rates and service of the utilities are comparable, the Board will be in a position to displace Clay because of its water tie-in arrangement.

By Order No. 7040, the Commission ordered that Clay Electric Cooperative, Inc. and Gainesville-Alachua County Regional Electric Water and Sewer Board develop a territorial agreement relative to the Copeland Settlement area and ordered that the Board refrain from offering electric service or constructing duplicate facilities in the unincorporated area of Alachua County known as the Copeland Settlement. The Commission expressly found:

“In resolving territorial disputes, the Public Service Commission may consider but not be limited to, the ability of utilities to expand services within their own capabilities and the nature of the area involved, including population and the degree of urbanization of the area and its proximity to other urban areas and the present and reasonably foreseeable future requirements of the area for other utility services. Section 366.04(2)(e), Florida Statutes. These considerations are discussed in the same order in succeeding paragraphs.
“Comparative ability to expand services: Both utilities are capable of meeting any foreseeable expansion in the area east of Gainesville. However, the Board generates much of its own power, whereas Clay purchases electricity from both the Florida Power Corporation and the Board.
“The nature of the area: The Copeland Settlement itself is not growing. The general area east of Gainesville is expanding on a gradual basis with primarily industrial development (municipal airport, fairgrounds, planned state psychiatric hospital). Residential development north and south of the Copeland Settlement is sparse. Development is partially blocked to the east by Newnan’s Lake and to the west by a correctional farm. Therefore, it cannot be said that this area has achieved any substantial degree of urbanization. Conversely, the Copeland Settlement meets the statutory definition of ‘rural area’ which under the Rural Electric Cooperative Law ‘means any area not included within the boundaries of any incorporated or unincorporated city, town, village or borough having a population in excess of twenty-five hundred persons.’ Section 425.03(1), Florida Statutes.

“Requirements for other utility services: Water and sewer services are urgently needed by residents of the Copeland Subdivision. To this extent, grant of this territory to the Board is favored. However, only internal policy precludes the Board from extending water and sewer service to this area at the present time. Furthermore, the electric-water service tie-in is of questionable legality. Edris v. Sebring Utilities Commission, 237 So.2d 585 (Fla.App.1970); cert. denied, 240 So.2d 643 (Fla.1970).

“From the above, it is apparent that either utility may properly serve the area in dispute. Clay is now providing service, however, which should not be duplicated or displaced except as part of an overall service area delineation. Similar territorial disputes between the Board and the Florida Power Corporation were ultimately resolved through territorial agreement (Docket 73724-EU). Such agreements are encouraged to avoid costly competition and wasteful duplication. Storey v. Mayo, 217 So.2d 304 (Fla.1968). This Commission has the statutory power to approve such agreements, as well as the responsibility to supervise planning of a statewide power system, in part to avoid unnecessary duplication of facilities. Section 366.04(2)(d), (3), Florida Statutes.”

Initially, we find that the letter of complaint filed by Clay with the Public Service Commission was sufficient under the rules of the Commission to invoke its jurisdiction to hear and determine the matter in dispute. Petitioner Board contends that Section 366.04(2)(d) and (e), Florida Statutes, constitute unlawful delegations of legislative authority. These sections provide:

“(2) In the exercise of its jurisdiction, the Commission shall have power over rural electric cooperatives and municipal electric utilities for the following purposes: .
(d) To approve territorial agreements between and among rural electric cooperatives, municipal electric utilities, and other electric utilities under its jurisdiction. However, nothing in this chapter shall be construed to alter existing territorial agreements as between the parties to such agreements.
(e) To resolve any territorial dispute involving service areas between and among rural electric cooperatives, municipal electric utilities, and other electric utilities under its jurisdiction. In resolving territorial disputes, the public service commission may consider, but not be limited to, the ability of the utilities to expand services within their own capabilities and the nature of the area involved, including population and the degree of urbanization of the area and its proximity to other urban areas and the present and reasonably foreseeable future requirements of the area for other utility services.”

We cannot agree that the questioned provisions are unlawful delegations of authority. As respondent asserts, subsections (d) and (e) are limited in scope in providing for jurisdiction of the Public Service Commission over municipalities and rural electric cooperatives for the approval of territorial agreements and the resolution of territorial disputes. Furthermore, Section 366.04(3), Florida Statutes, provides the limitation or guideline incident to such jurisdiction, as follows:

“(3) The commission shall further have jurisdiction over the planning, development, and maintenance of a coordinated electric power grid throughout Florida to assure an adequate and reliable source of energy for operational and emergency purposes in Florida and the avoidance of further uneconomic duplication of generation, transmission, and distribution facilities.” (emphasis supplied)

We have reviewed all other points raised by petitioner and our careful consideration and analysis of the petition, the record, briefs and arguments of counsel sustain the view that the findings of the Commission are supported by competent substantial evidence and that, in entering its orders, Respondent Commission met the essential requirements of law.

It was conceded by counsel at the bar of the Court that the water and sewer system involved sub judice is self supporting. We note that where the city could not support a water and sewer system without electric service and where there is a need to tie them together, the circumstances would be different. Each case in this area must stand on its own facts.

Accordingly, having determined that the Orders of the Public Service Commission under review are supported by competent substantial evidence and comport with the essential requirements of the law, we hereby deny the petition for writ of certiorari.

It is so ordered.

OVERTON, C. J., and BOYD and ENGLAND, JJ., concur.

ADKINS, J., dissents.