author: TORBERT, Chief Justice.

text:
    C. W. MOODY, as State Forester of the State of Alabama, and B. G. Bryant, T. L. Payne and E. P. Brown, as Members of the Board of Commissioners of the Alabama Peace Officers Annuity and Benefit Fund v. Harold INGRAM, Earl Everett Davis, Robert Emmett Keegan, Bobby Edison Chandler and Leon Randolph O’Quinn.
    SC 2804.
    Supreme Court of Alabama.
    June 30, 1978.
    Rehearing Denied Aug. 18, 1978.

      William J. Baxley, Atty. Gen., and Jerry L. Weidler, Asst. Atty. Gen. for appellant, C. W. Moody.
    J. Donald Reynolds, Montgomery, for appellants, B. G. Bryant, T. L. Payne and E. P. Brown, as Members of the Board of Commissioners of the Ala. Peace Officers Annuity and Benefit Fund.
    Frank W. Riggs, Montgomery, for appel-lee, Harold Ingram.
   TORBERT, Chief Justice.

Appellants C. W. Moody, as State Forester of the State of Alabama, and B. G. Bryant, T. L. Payne and E. P. Brown, as members of the Board of Commissioners of the Alabama Peace Officers Annuity and Benefit Fund, defendants below, bring this appeal to challenge a final decree of the Montgomery County Circuit Court in favor of appellees Harold Ingram and others.

The suit which is the basis of this appeal was filed by the appellees to secure the following:

(1) Membership in the Alabama Peace Officers Annuity and Benefit Fund (hereinafter referred to as the Fund), established by Act No. 999, Regular Session 1969 (§ 36-21-66, Code 1975);
(2) Subsistence allowance of $5.00 per day for law enforcement officers provided by Act No. 763, Regular Session 1973 (§ 36-21-2, Code 1975); and
(3) Lump-sum longevity pay for law enforcement officers provided by Act No. 206, Third Special Session 1975 (§ 36-21-3, Code 1975).

Following a non-jury hearing the trial court granted all relief requested by the appellees. Upon motion by the appellants this court stayed the order of the trial court pending the outcome of this appeal.

Appellees are employed by the Alabama Forestry Commission as “communications technicians.” Their duties are to operate and maintain the Forestry Commission’s statewide radio system which is used primarily to aid in suppressing forest fires. Each appellee, as an employee of the Department of Conservation (now Forestry Commission), appears to possess powers of deputy sheriffs for the enforcement of the fire and forestry laws of this state by virtue of statute. See Tit. 8, § 206, Code of Alabama 1940, as amended by Act No. 724, Regular Session 1967 (§ 9-13-10, Code 1975). As such, each appellee was issued a commission for such law enforcement purposes as well as an appropriate badge, although not one of the appellees has ever made an arrest or been involved in the investigation of thefts or vandalism to the Forestry Commission’s equipment except to identify radios in court.

Appellants Bryant, Payne and Brown, as members of the Board of Commissioners of the Fund, denied membership in the Fund to appellees. Appellant Moody then declared in an administrative decision that certain employees, including the appellees, were required to be members of the Fund to receive benefits under Act No. 763 (§ 36-21-2, Code 1975), and Act No. 206 (§ 36-21-3, Code 1975). He therefore denied such payments to appellees.

It is the position of appellants Bryant, Payne and Brown that the trial court erroneously declared the appellees eligible for membership in the Fund which provides retirement benefits to “peace officers.” They argue that these appellees are not “peace officers” for purposes of Fund membership because their primary duties are as communications technicians for the Forestry Commission’s radio system, not as law enforcement officers. Appellees assert, however, that the possession of the previously described commission and badge qualifies them as “peace officers” eligible for membership in the Fund.

We begin by noting that under Title 8, section 206, Code of Alabama 1940 (§ 9-13-10, Code 1975), “all employees” of the Forestry Commission are by law given the powers of deputy sheriffs to enforce fire and forestry laws. If mere possession of such powers by employees of the department of determinative of eligibility for membership in the Fund, then even clerical personnel could logically claim membership and benefits. We do not believe this to be the legislative intent. Therefore, we must determine eligibility of these appellees by reference to the definition of “peace officer” found in Act No. 999 as amended, now codified in section 36-21-60(10), Code of Alabama 1975, to-wit:

“(10) PEACE OFFICER. A person duly sworn as a peace officer of the state of Alabama possessing powers of arrest and employed by the state, any political subdivision thereof or any municipal corporation therein who is required by the terms of his employment, whether such employment exists by virtue of election or appointment, to give his full time to the preservation of public order and the protection of life or property or the detection of crime in the state. Such term shall include enforcement officers for conservation laws and full-time coroners, but shall not include any pardon, parole or probation officer, district attorney, assistant attorney general, commissioner, deputy commissioner or any municipal inspector, county inspector or state inspector.”

This court has not previously interpreted the above quoted statutory language. However, we believe the requirements of this act are explicit that, in order to qualify as a “peace officer” thereunder, a person must first have the power of arrest, and second, be required by the terms of him employment as his primary duty to give his full time to the preservation of public order and the protection of life or property or the detection of crime.

Even though the appellees in this case have the powers of deputy sheriffs to enforce fire and forestry laws, the terms of their employment, as shown by job description and other evidence presented at trial as to their actual duties, fail to require that these appellees give full time to the duties of a peace officer. Further, according to testimony from one of the appellees at trial, the primary duties of the appellees are as communications technicians who have the responsibility of operating and maintaining the radio system of the Forestry Commission. It therefore follows that these appel-lees do not qualify as “peace officers” under the terms of Act No. 999 creating the Fund.

As previously stated, we have no decisions from this court as authority for the holding in this appeal. However, in interpreting statutory language substantially similar to Act No. 999 as amended, Section 36-21-60(10), Code of Alabama 1975, the Supreme Court of Georgia has found that persons who are eligible for membership as “peace officers” in that state’s Peace Officers’ Annuity and Benefit Fund are those who devote their full time as their primary duty to the preservation of public order, or the protection of life and property, or the detection of crime. See, e. g., Vandiver v. Endicott, 215 Ga. 250, 109 S.E.2d 775 (1959); McCallum v. Almand, 213 Ga. 701, 100 S.E.2d 924 (1957).

We further note that the power and duty to determine who is a “peace officer” within the meaning of Act No. 999 lies in the Board of Commissioners of the Fund. § 36-21-64(5), Code of Alabama 1975. Appellants Bryant, Payne and Brown made the determination that these appellees are not “peace officers” for purposes of membership in the Fund. While administrative construction of a statute is not binding on this court, such construction is persuasive and is to be considered favorably. Boswell v. Abex Corporation, 294 Ala. 334, 317 So.2d 317 (1975); Alabama Public Service Commission v. Continental Tennessee Lines, 284 Ala. 27, 221 So.2d 385 (1969); Buchanan v. State, 274 Ala. 592, 150 So.2d 200 (1962).

Appellants secondly assert that, contrary to the decision of the trial court, appellees are not entitled to the $5.00 per day subsistence allowance under Act No. 763 (§ 36-21-2, Code 1975). Upon submission of the case to this court, appellees admitted reversal as to this issue for the following reasons. Act No. 763 (§ 36-21-2, Code 1975), provides, in pertinent part, the following:

“Any state law enforcement officer of the state of Alabama who is employed by the department of public safety, department of conservation and natural resources, Alabama alcoholic beverage control board, department of agriculture and industries or the transportation enforcement division of the Alabama public service commission shall receive a subsistence allowance of $5.00 for each working day of a pay period while engaged in and in the performance of his duties as a law enforcement officer.”

Under the clear wording of this statute, only those state law enforcement officers who are employed by the specifically enumerated departments are eligible to receive the allowance. Therefore, appellees, as employees of the Forestry Commission, which is not among the enumerated departments, are not entitled to the allowance.

That portion of the trial court decree entitling the appellees to lump-sum longevity pay for law enforcement officers and police communications officers, provided by Act No. 206 (§ 36-21-3, Code 1975), is uncontested on appeal.

Accordingly, this cause is reversed and remanded to the trial court for entry of judgment consistent with this opinion.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: BLOODWORTH, Justice.

license: Public Domain

text:
    Chris C. RUSH et al. v. EASON PLUMBING & ELECTRICAL CONTRACTORS, INC., a corporation.
    77-190.
    Supreme Court of Alabama.
    June 30, 1978.
    Rehearing Denied Aug. 18, 1978.

      Ronald A. Drummond of Livingston & Drummond, Scottsboro, for appellants.
    John P. Proctor, Scottsboro, for appellee.
   BLOODWORTH, Justice.

Contractor and Surety appeal from a judgment for Subcontractor in a suit on a payment bond, and from a denial of their motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. We affirm.

Subcontractor, Eason Plumbing & Electrical Contractors, Inc., sought to recover on a payment bond for work performed and materials furnished in the construction of the Goose Pond Colony and Recreation Complex in Scottsboro, Alabama. Contractor, Chris C. Rush, doing business as the Rush Building Company, Inc., was the prime contractor and the principal under the payment bond. Surety, Great American Insurance Company, was the surety under the payment bond, which was payable to the “Public Park and Recreation Board of the City of Scottsboro.” After giving written notice to Surety of its claim for plumbing, heating and air conditioning work performed, Subcontractor brought this suit for $19,082.85 allegedly due on its contract, plus interest and attorneys’ fees. The jury found for Subcontractor and assessed damages in the amount of $14,800.00.

The basis of Contractor’s and Surety’s appeal is that the trial court erred in denying their motion for judgment n. o. v. or for a new trial based on an improper award of attorneys’ fees to Subcontractor. They contend that attorneys’ fees could be awarded only under the public bonding statute, § 39-1-1 (Code 1975), but that, the bond in this case does not meet the requirements of that statute, since it is not “payable to the state, county or municipal corporation or subdivision letting the contract.” It is contended that the “Public Park and Recreation Board of the City of Scottsboro” is a public corporation, not a subdivision of a municipal corporation.

Rule 50(b), ARCP, dealing with a motion for judgment n. o. v., states: “Not later than 30 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict * * * ” (Emphasis added.) The record does not show that either Contractor or Surety moved for a directed verdict. A motion for a directed verdict is a prerequisite to a motion for judgment n. o. v. Starling v. Gulf Life Insurance Company, 382 F.2d 701 (5th Cir. 1967). The trial court’s denial of the motion for judgment n. o. v. was proper.

In support of their alternative motion for a new trial, Contractor and Surety stated eight grounds, two of which deal with the question of attorneys’ fees:

“7. Attorney for plaintiffs was not entitled to an attorney’s fee and that portion of the jury’s verdict relating to an attorney’s fee was erroneous and would require a new trial.

“8. Plaintiff was not entitled to an award of attorney’s fees under the law.” There are- two reasons why there was no error in overruling the motion for new trial.

First, the assertion of these grounds comes too late when they are raised for the first time in a motion for a new trial. The complaint claimed damages plus attorneys’ fees in Count One, and on the common counts in Count Two. The answer consisted of several special defenses and a general denial. The pre-trial order included a statement of the positions of the parties, but there was no indication that Contractor or Surety challenged the applicability of the public bonding statute or Subcontractor’s right to recover attorneys’ fees. An attorney testified for Subcontractor at trial as to what a reasonable attorney’s fee would be, with no objection by Contractor or Surety. There was no motion for directed verdict on the issue of attorneys’ fees, nor was there any request to charge the jury that they could not award attorneys’ fees. Moreover, the court orally charged the jury as to attorneys’ fees. There was no objection or exception to the charge. Thus, it is apparent that the trial judge was never called upon to rule on the question of attorneys’ fees during the trial. Nothing was brought to his attention to suggest that Contractor or Surety challenged the award of attorneys’ fees until their motion for a new trial after the verdict had been returned by the jury. A motion for a new trial cannot replace a timely objection or exception which could, and should, properly be made during the trial. Ritchey v. State, 293 Ala. 265, 302 So.2d 83 (1974).

Second, it is not apparent from the record that the jury verdict included an award of attorneys’ fees. Count One of the complaint is a claim against a payment bond, seeking damages of $19,082.85 plus interest, attorneys’ fees and costs. Count Two is a_ claim for work and labor done, seeking damages of $19,082.85 plus interest and costs. The jury returned a general verdict as follows: “We, the Jury, find the issues in favor of the plaintiff against the defendants and assess the Plaintiffs damages at $14,800.00.” It does not appear under which count the verdict was returned, nor does it appear that any part of the $14,800.00 award was for attorneys’ fees. Moreover, the verdict returned was less than the balance claimed by Subcontractor without attorneys’ fees.

Contractor and Surety state in their brief that the jury returned an erroneous verdict at one point in its deliberations and that the verdict included a specific percentage for an attorney’s fee. The record discloses a brief exchange between the judge and jury, and while it is unclear what the exact problem was concerning the verdict, the only element of damages mentioned was interest. Attorneys’ fees were not discussed.

For the foregoing reasons, this cause is due to be affirmed.

AFFIRMED.

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


text:
    S. C. JONES, Jr., etc., et al. v. Bruce Elmer CRAWFORD, etc., et al.
    77-226.
    Supreme Court of Alabama.
    June 30, 1978.
    As Corrected On Denial of Rehearing Aug. 18, 1978.

      Alto V. Lee, III and Stephen T. Ether-edge of Lee & Mclnish, Dothan, for appellants.
    W. Sidney Fuller of Tipler & Fuller, Andalusia, Charles L. Woods, Ozark, for appel-lee, Bruce Elmer Crawford.
   BLOODWORTH, Justice.

Defendants, a partnership and the general contractor on a job at Ft. Rucker, Alabama, appeal from a denial of their motion for a new trial and judgment rendered in accordance with a $25,000 jury verdict for plaintiff, the, employee of a subcontractor.

On this appeal, there are two issues. The first issue is whether the defendants are precluded from qualifying the jury and commenting on the status of United States Fidelity and Guaranty Company as a party plaintiff, when USF&G is both the workmen’s compensation carrier for the injured plaintiff’s employer and the liability carrier for the defendant. The second issue is whether the plaintiff, in an action brought pursuant to Title 26, Section 312 of the Code of Alabama of 1940 (Recomp. 1958) [now § 25-5-11 Code 1975], can recover his medical expenses against the alleged tort-feasor. We answer both issues in the affirmative and we affirm.

On May 28,1972, plaintiff was injured as a result of a fall from a ceiling slab twelve to eighteen feet above the floor while he was painting a portion of a hanger wall. On April 30, 1973, plaintiff commenced this action in the Circuit Court of Dale County, Alabama, alleging that defendants, as general contractor of the construction job, failed to construct a guard rail on a concrete ramp, thus creating an unsafe place to work, and as a proximate result of such .failure, plaintiff, an employee of the painting subcontractor, was injured.

On April 27, 1974, USF&G was joined as a real party in interest, as subrogee of plaintiff’s workmen’s compensation benefits, pursuant to Rule 17(a) of the Alabama Rules of Civil Procedure. USF&G also was the liability insurance carrier. On August 29, 1977, this cause was tried before a jury and resulted in a judgment in favor of the plaintiff and against the defendant in,the sum of $25,000. Thereafter, the defendants’ motion for a new trial was denied by the trial court, and defendants appealed.

In Hughes v. Newton, 295 Ala. 117, 324 So.2d 270 (1976), this Court held that where the same insurance carrier has the liability coverage and the workmen’s compensation coverage, “unencumbered” intervention under Rule 24, ARCP, should not be allowed unless the carrier on an application for intervention can demonstrate

“. . . that it has in its possession significant information or data essential to the prosecution of the third party suit; or that the employee-plaintiff is inadequately represented or otherwise less likely to succeed in his effort to effect recovery without the intervenor’s active participation . . . .”

This Court, in Hughes, held that the carrier was not entitled to intervene as a third party plaintiff in the third party action in view of the patent conflict of interest and the inherent potential for collusion. We further stated, however, that limited or encumbered intervention precluding active participation as a party plaintiff would have been proper. In the instant case, there was no “unencumbered” intervention; USF&G did not participate in the trial. In fact the attorney for USF&G as party plaintiff declined to participate in the trial after the company was joined as a real party in interest under ARCP, Rule 17(a) for reasons set forth in the Hughes decision. Also, the intervention was not made final until the time of judgment. Thus, the conflict of interest issue which the Hughes decision was concerned with, is not present here.

Defendants contend, as their first issue, that the trial court erred when it informed the parties in its amended pretrial order that both parties were precluded from commenting as to the existence of USF&G as a party plaintiff while at the same time permitting the jury to be qualified as to USF&G as the insuror of the defendant.

We have held on numerous occasions that plaintiff is entitled, upon seasonable and proper motion, to have the jurors qualified as to their relation to, or interest in, any insurance company which would be liable, in whole or in part, for any judgment that might be entered against the defendant. Gwin v. Church, 272 Ala. 674, 133 So.2d 880 (1961); Citizen’s L. H. & P. Co. v. Lee, 182 Ala. 561, 62 So. 199 (1913). Such qualification in the past has not been treated as an insertion of insurance into the trial of a case.

However, to qualify the jury and allow comment on the status of USF&G as a party plaintiff, as defendants contend, would result in the sort of “unencumbered” intervention disapproved in Hughes and gives the appearance to the jury that the only insurance involved in the suit is that which the plaintiff has already received and is now attempting to recover again from the defendants. To allow such qualification and comment would unnecessarily inject the issue of compensation insurance into the case. Thus, courts have held that any showing that the plaintiff has received insurance benefits for his injuries is prejudicial to his case and should not be admitted. Eichel v. New York Central R. Co., 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307 (1963); Vest v. Gay, 275 Ala. 286, 154 So.2d 297 (1963); Coleman v. Hamilton Storage Co., 235 Ala. 553, 180 So. 553 (1938). The trial judge correctly ruled on this issue in the pretrial orders.

With respect to the second Issue, defendants contend that plaintiff cannot recover medical expenses in a third party action brought pursuant to Tit. 26, § 312 of the Code of Alabama of 1940 (Recomp. 1958) [§ 25-5-11 Code 1975] on the grounds that plaintiff did not pay or become obligated to pay the medical bills. Defendants assign as error the trial court’s ruling in its amended pretrial order that the defendants’ attorney would not be permitted to cross-examine plaintiff as to whether he paid or became obligated to pay the medical bills for which he sought compensation in damages. Defendants also contend that the trial court erred in allowing plaintiff to recover damages for medical expenses in the absence of evidence that plaintiff had paid or become obligated to pay such medical expenses.

The trial court’s amended pretrial order ruled that the plaintiff’s medical expenses “are provable and recoverable” and plaintiff is “legally liable for the payment thereof” and that defendants “are precluded from proving” that USF&G, the workmen’s compensation insurance carrier, provided coverage for the expenses and in fact paid them. We think the trial judge ruled correctly.

This Court adheres to the general common-law concept of damages, that damages are compensatory in nature and as such provide recovery to the injured party for the injury sustained and nothing more. The general rule is that damages are unrecoverable where the plaintiff has not paid or is not liable for such items. Alabama Farm Bur. Mut. Cas. Ins. Co., Inc. v. Smelley, 295 Ala. 346, 329 So.2d 544 (1976); Jones v. Keith, 223 Ala. 36, 134 So. 630 (1931).

Defendants rely on these authorities and Tit. 26, § 293, of the 1940 Alabama Code [§ 25-5-77 Code 1975] which places the liability upon the employer for the payment of medical expenses, for the proposition that the employee cannot recover his medical expenses in an action against the third party tortfeasor.

The Alabama Legislature in Tit. 26, (Chapter 5, Article 2) § 312, of the 1940 Code has created a statutory scheme enabling the injured employee to accept compensation from his employer and at the same time proceed against the third party. As a part of this statutory scheme, the legislature has subrogated the employer to the employee’s recovery, if any, to the extent of the “compensation” paid by the employer.

Section 312 further provides that in the action against the third party tortfeasor “. . . the amount of such damages shall be ascertained and determined without regard to article 2 of this chapter. We think the legislative intent as expressed in the statute means that if plaintiff is denied the right to recover medical expenses this would result in a determination of damages with reference to “article 2 of this chapter" when this is clearly prohibited by the express wording of § 312. In following the language of the statute and thus, in determining damages without regard to Article 2 of Chapter 5 (“Elective Compensation”) of Tit. 26, the trial judge ruled correctly. Furthermore, in Coleman v. Hamilton Storage Co., 235 Ala. 553, 180 So. 553 (1938), this Court held that the liability of the employer or his insurance carrier is in no sense a defense against liability of such third person, either as to the right to recover, or the quantum of the recovery. Therefore, we hold plaintiff can recover his medical expenses and that the trial court committed no error in its amended pretrial order.

To hold otherwise would mean that the plaintiff in a third party action could not recover for lost wages to the extent compensated by insurance which is clearly inconsistent with the language in the statute. Moreover, to disallow recovery for medical expenses would be inconsistent with the “collateral source” rule which, in general, states that benefits received by a plaintiff from a source wholly independent of and collateral to the wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer. 22 Am.Jur.2d, Damages § 206 (1965). The courts of this state have held many times that what has occurred between insuror and insured is of no concern to the defendant — that the sum received from insurance cannot be shown in mitigation of damages for the injury. Alabama Farm Bur. Mut. Cas. Ins. Co., Inc. v. Smelley, supra; Vest v. Gay, supra; Sturdivant v. Crawford, 240 Ala. 383, 199 So. 537 (1941); Allen v. Zickos, 37 Ala.App. 361, 68 So.2d 841 (1953). Our holding is in harmony with these decisions.

We recognize the argument of defendants that the plaintiff under the “collateral source” rule receives a so-called “windfall” in Alabama since the word “compensation” under the statute does not include medical expenses for which the compensation carrier can be reimbursed out of a recovery paid by a third party tortfeasor. Liberty Mutual Insurance Co. v. Manasco, 271 Ala. 124, 123 So.2d 527 (1960). While it may be argued that such a result is inconsistent with the general objective of workmen’s compensation, which is to compensate the injured employee only for his out-of-pocket expenses, it is not for us to judge the wisdom of the meaning given by the legislature to the word “compensation” in the statute. Certainly, if there must be a windfall it is more just that the injured party profit therefrom, rather than relieving the wrongdoer of his full responsibility for his wrongdoing.

Defendants finally contend that introducing the hospitál and medical bills into evidence with the name of the insurance company who paid the bills deleted was error. As stated previously, we follow the rule that any showing that the plaintiff had received insurance benefits for his injuries is prejudicial to his case and should not be admitted. Vest v. Gay, supra; Allen v. Zickos, supra.

For the foregoing reasons, therefore, this cause is affirmed.

AFFIRMED.

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

On Rehearing

OPINION CORRECTED. APPLICATION FOR REHEARING OVERRULED.

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

      . If two different insurance companies were involved in this case, the defendant, of course, would be entitled to qualify the jury as to the existence of the plaintiff-employer’s compensation carrier.

      . To clear up any confusion as to whether we follow the “collateral source” rule in Alabama, this rule is followed in this state. See footnote 1 in Alabama Farm Bur. Mut. Cas. Ins. Co., Inc. v. Smelley, supra. See also Gribble v. Cox, 349 So.2d 1141 (Ala.1977).


text:
    OPINION OF THE JUSTICES.
    No. 251.
    Supreme Court of Alabama.
    Aug. 1, 1978.
   To the Members of the

House of Representatives State Capitol

Montgomery, Alabama 36130

Dear Sirs and Mesdames:

We have received House Resolution No. 37 (adopted July 31, 1978) requesting our advisory opinion relative to House Bill 170 which is attached.

We deal with your second question first:

2. Is it constitutionally legal for the Legislature to set a date for the Amendment to be presented to the voters for approval or rejection in the General Election if the Legislature has a final adjournment of the Session less than three months prior to the time the Amendment is presented to the people for approval or rejection in the General Election to be held November 7, 1978 in the event that date is the day appointed by the Legislature.

We refer the House to Amendment No. 24 amending Sec. 284 of Art. XVIII, Alabama Constitution of 1901. There it is stated:

[T]he legislature shall order an election by the qualified electors of the state upon such proposed amendments, to be held either at the general election next succeeding the session of the legislature at which the amendments are proposed or upon another day appointed by the legislature, not less than three months after the final adjournment of the session of the legislature at which the amendments were proposed. . . . (emphasis added)

It is clear that the use of the disjunctives, either and or, within Amendment No. 24, allows the legislature to choose between presentation of the proposed amendment to the people in a general election following the session, or, in a special election held on a day not less than three months after final adjournment of the session. Hence, if your choice is to order the presentation of the amendment to the voters at the next general election there is no three-month requirement. That limitation only pertains to orders of special elections.

Your first and final questions may be considered together:

1. In order for the Constitutional Amendment to be presented to the voters for approval or rejection in the General Election to be held November 7, 1978, what is the latest date that the Session can end in order for the Amendment to be properly presented to the people in the General Election of November 7,1978 for approval.
3. If the Legislature adjourns Sine Die on August 5, 1978, is there enough time remaining to present the Amendment to the people for approval or rejection at the General Election of November 7, 1978?

Amendment 24, supra, requires that:

Notice of such election, together with the proposed amendments, shall be given by proclamation of the governor, which shall be published in every county in such manner as the legislature shall direct, for at least four successive weeks next preceding the day appointed for such election. . (emphasis added)

It is our opinion that the legislature can end no later than such date as will allow the above provisions to be properly carried out. As the legislature is its own best judge of the amount of time necessary for it to comply it would appear to us unnecessary to give an opinion as to a particular date. We do, however, believe that adjournment sine die on August 5, 1978 would allow ample time to present the proposed amendment to the people of Alabama at the General Election of November 7, 1978.

Respectfully submitted,

C. C. TORBERT, JR., Chief Justice

HUGH MADDOX,

JAMES H. FAULKNER,

RENEAU P. ALMON,

SAM A. BEATTY,

Justices

SYNOPSIS: This bill proposes a constitutional

amendment to amend further Article XI, Section 217, Constitution of Alabama of 1901, as amended, pertaining to ad valorem property taxation by the state and local taxing authorities.

A BILL

TO BE ENTITLED

AN ACT

To propose a constitutional amendment amending further Article XI, Section 217, Constitution of Alabama of 1901, as amended by Constitutional Amendment No. 325, relating to ad valorem property taxes levied by the . state and all counties, municipalities and other local taxing authorities .

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. Proposed Constitutional Amendment.

The following amendment to the Constitution of Alabama of 1901 is hereby proposed:

"Section 217. (a) ün and after October 1, 1978,

Aall taxable property within this state, not exempt by law, shall be divided into the following classes for the purposes of ad valorem taxation:

Class I. All property of utilities used in the business of such utilities-j^

Class II. All property not otherwise classified?^

Class III. All agricultural, forest and residential propertyt L and historic buildings and sites.

Class IV. All private passenger automobiles and motor trucks of the type commonly known as "pickups" or "pickup trucks" owned and operated by an individual for personal or private use and not for hire, rent or compensation.

(b) With respect to ad valorem taxes levied by the state, all taxable property shall be forever taxed at the same rate-?^ On and after October 1, 1978, and such property shall be assessed for ad valorem tax purposes according to the classes thereof as herein defined at the following ratios of assessed value to the fair and reasonable market value (except as otherwise provided in subsection (i) hereof) of such property:

Class I. 30 per centum

Class II. 25 20 per centum

Class III. 15 per centum

Class IV. 15 per centum

(c) With respect to ad valorem taxes levied by counties, municipalities or other taxing authority authorities , all taxable property shall be forever taxed at the same rate-^ On and after October 1, 1978, and such property shall be assessed for ad valorem tax purposes according to the classes of property defined in paragraph subsection (a) herein hereof and at the same ratios of assessed value to the fair and reasonable market value thereof as fixed in paragraph subsection (b) herein hereof, except as otherwise provided in subsection (j) hereof and this subsection (such ratios being herein called "assessment ratios"). previded? however? that In connection with the ad valorem taxes that a county, municipality or other taxing authority is authorized or required to levy and collect pursuant to any provision of this Constitution, for the ad valorem tax year beginning October 1, 1978, any such taxing authority may, subject to criteria established by act of the legislature, by resolution of the governing body of that taxing authority, at any time not later than September 30, 1979, increase or decrease the assessment ratio applicable to any class of taxable property, such increase or decrease to be effective for ad valorem tax years beginning on and after October 1, 197.8. If the receipts from the ad valorem taxes with respect to which any assessment ratio has been so adjusted by any taxing authority during the ad valorem tax year beginning October 1, 1978, exceed by more than 5 percent, or are less than 95 percent of, the receipts from such ad valorem tax for the ad valorem tax year beginning October 1, 1977, then at any time not later than September 30, 1980 for ad valorem tax years beginning on and after October 1, 1979, the taxing authority may, sub.jectto criteria established by act of the legislature, by resolution of the governing body of that taxing authority, adjust any assessment ratio with respect to such ad valorem tax. On and after October 1, 1979, the governing body of any county, municipality or other taxing authority legislature may^ subject to criteria established by act of the legislature, at any time vary increase or decrease the assessment ratio of assessed value te the fair and reasonable market value as applicable to any class of taxable propertyj_ as defined in paragraph tb} herein- and provided, chat any proposed adjustment to an assessment ratio to be made pursuant to this sentence, whether an increase or a decrease, shall have been (1) proposed by the governing body of the taxing authority after a public hearing on such proposal, (2) thereafter approved by an act of the legislature, and (3) subsequently approved by a majority vote of the qualified electors residing in the taxing authority who vote on the proposal at a special election called and held in accordance with the law governing special elections. further that feThe legislature shall enact general laws applicable to all counties, municipalities and other taxing authorities regulating and establishing criteria for the exercise of the powers granted such taxing authorities to adjust assessment ratios as hereinabove provided. may fix a uniferm rafeie ef assessment ef all property within a eeunty defined in-paragraph {a) herein as Slass-Il and 111 and may fix a different ratie ef assessment fer property defined in paragraph fa) as Slass 1. Such assessment ratios as herein authorized may vary among taxing authorities eeunties so long as each such assessment ratio is uniform within a taxing authority eeunty. any ulerease in any assessment ratio pursuant to this subsection shall not .jeopardize the payment of any bonded indebtedness secured by any tax levied by the taxing authority decreasing the assessment ratio. Any action authorized by this subsection» to be taken by a taxing authority, or the governing body thereof, shall, other than in the case of a municipality, be taken by resolution of the governing body of the county in which such taxing authority is located acting on behalf of such taxing authority .

(d) With respect to ad valorem taxes levied by the state or by any county, municipality or other taxing author-, ity, Nh,o class of taxable property shall have an assessment ratio ef assessed value fee fair and reasonable market value of less than IS 5 per centum nor more than 35 per centum.

(e) fd) A county, municipality, or other taxing authority may decrease any ad valorem tax rate at any time, provided such decrease shall not jeopardize the payment of any bonded indebtedness secured by such tax. For the ad valorem tax year beginning October 1, 1978,. Wwhen the tax assessor of each county shall complete the assembly of the assessment book for his county for the that ad valorem tax year immediately following the adoption of this amendment and the computation of ad valorem taxes that will be paid upon such assessment, he shall certify to each authority within his county that levies an ad valorem tax the amount of ad valorem tax that will be produced by every levy in that ad valorem tax year but excluding for this purpose any assessment of new taxable property not previously subject to taxation (except "escaped" property as defined by law) added to the tax rolls of such county for the ad valorem tax year in which such certification is made that was not included on the tax rolls for the next preceding ad valorem tax year. If it shall appear that the estimated ad valorem tax receipts from any levy so estimated shall be less than the receipts from the same levy during the next preceding ad valorem tax year? then the levying authority shall inerease eaeh tax rate by sueh millage as Any» county, municipality or other taxing authority, at any time not later than September 30, 1979, may increase the rate at which any ad valorem tax is levied by or with respect to that taxing authority above the limit otherwise provided in this Constitution, such increase to be effective for ad valorem tax years beginning on and after October 1, 1978; provided, that any such millage increase shall not exceed in mills the total of (i) the number of additional mills that is necessary, when added to the millage rate imposed with respect to such tax on each dollar of taxable property situated in the taxing authority for the ad valorem tax year beginning October 1, 1977, to produce revenue that is not less than and that is substantially equal to that received by the taxing authority with respect to such tax during such immediately preceding ad valorem tax year, plus (ii) a number of additional mills equal to 20% of the total mills imposed by that taxing authority with respect to such tax on each dollar of taxable property situated in the taxing authority for the ad valorem tax year beginning October 1, 1977. If, for the ad valorem tax year beginning October 1, 1978, the receipts from any ad valorem tax with respect to which any millage rate has been increased pursuant to the immediately preceding sentence are less than 95 percent of the receipts from such ad valorem tax for the ad valorem tax year beginning October 1, 1977, then at any time not later than September 30, 1980, the taxing authority may increase any millage rate with respect to such ad valorem tax in the manner provided in the immediately preceding sentence, such increase to be effective for ad valorem tax years beginning on and after October 1, 1979. It is further provided that any and all millage adjustments shall be made in increments of not less than one tenth (1/2 10) mill.The adjustment herein required shall be made enly ene time and shall be made in the ad valerem tax year immediately fallowing the adaption ef this amendment.

(f) (e) On and after October 1, 1979, Aany county, municipality, or other taxing authority may at any time increase the rate at which any ad valorem tax taxes are is levied above the limit new otherwise provided in the this Constitution; provided that the proposed increase to be made pursuant to this subsection shall have been (1) proposed by the governing body of the taxing-authority having pewer te levy the tax after a public hearing on such proposal, (2) thereafter approved by an act of the legislature, and (3) subsequently approved by a majority vote of the qualified electors ef residing in the taxing authority area in whieh the tax is te be levied er increased who vote on the proposal at a special election called and held in accordance with the law governing special elections. Any adjustments or other actions authorized to be made or taken pursuant to this subsection and subsection (e) hereof shall be made or taken by resolution of the governing body of such taxing authority, or if there is no such governing body and in the case of a taxing authority other than a municipality, by resolution of the governing body of the county in which such taxing authority is located acting on behalf of such taxing authority. The provisions of subsections (c), (e) and (f)of this section shall not apply to ad valorem taxes levied by the State.

(g) {€) The legislature is authorized to enact legislation to implement the provisions of this amendment? section and may provide for exemptions from taxation; provided? however? that, unless otherwise expressly provided, no amendment to this section shall be construed to repeal any statutory exemption existing prior fee the adoption of this amendment shall not he repealed? exeept by subsequent legislative aet? and shall remain in full feree and effeet on the effective date of any such amendment hereto.

(h) 4g) Wherever any constitutional provision or statute provides for, limits or measures the power or authority of any county, municipality or other taxing authority, to levy taxes, borrow money, or incur indebtedness in relation to the assessment of property therein for state taxes or for state and county taxes^ such provision shall mean as assessed for county or municipal taxes^_ as the case may be.

(i) {h} Except as otherwise provided in Any previsien ef the this Constitution^ including any amendment thereto whenever adopted with respect to taxable property located in the City of Mountain Brook, the City of Vestavia Hills, or,the City of Huntsville, ef Alabama te the eentrary netwithstending? the amount of ad valorem taxes payable to the state and to all counties, municipalities and other taxing authorities with respect to any item of taxable property described as Class I property shall never exceed 2% 1-1/2% of the fair and reasonable market value of such taxable the property in any one ad valorem tax taxable year-r^ such amount with respect to any item of Class II property shall never exceed 1-1/2% of the fair and reasonable market value of such taxable property in any one ad valorem -tax year, such amount with respect to any item of Class IV property shall never exceed 1-1/4% of the fair and reasonable market value of such taxable property in any one ad valorem tax year, and such amount with respect to any item of Class III property shall never exceed 1% of the fair and reasonable market value of such taxable property in any one ad valorem tax year. Whenever the total amount of ad valorem property taxes otherwise payable by any taxpayer with respect to any item of taxable property shall exceed in any one ad valorem tax year the maximum amount of such taxes permitted by this section, such amount of taxes shall be reduced by subtracting that amount of tax due that is in excess of the amount of tax otherwise permissible under the Constitution. In connection with the taxation of any item of taxable property, the amount of tax to be subtracted with respect to each authority levying and collecting any ad valorem property tax shall be in the same proportion to the total amount of tax to be subtracted that the total number of mills on each dollar of taxable property situated in the taxing authority levied by such taxing authority bears to the total number of mills on each dollar of taxable property situated in the taxing authority levied by all taxing authorities with respect to such item of taxable property. Before sending to any taxpayer any notice relating to the collection of ad valorem taxes, the tax collector in each county shall determine whether any portion of the amount of ad valorem property tax otherwise due with respect to any item of taxable property shall be subtracted pursuant to the provisions of this subsection and shall apportion the amount to be subtracted in accordance with the provisions of this subsection.

(j) Notwithstanding any other provision of this section, on and after October 1, 1978, taxable property defined in subsection (a) hereof as Class III property shall, upon application by the owner of such property, be assessed at the ratio of assessed value to the current use value of such taxable property and not the fair and reasonable market value of such property, provided that the legislature shall have enacted laws uniformly applicable to the state and all counties, municipalities and other taxing authorities establishing criteria and procedures for the determination of the current use value of any eligible taxable property and procedures for qualifying such property for assessment at its current use value. The legislature may also enact laws uniformly applicable to the state and all counties, municipalities and other taxing authorities providing for the ad valorem taxation of any taxable property ceasing to qualify for current use valuation.

(k) (i) The following property shall be exempt from all ad valorem taxation: the real and personal property of the state, counties and municipalities and property devoted exclusively to religious, educational or charitable purposes.

(l) Notwithstanding the other provisions of this section, with respect to the costs of reappraisal incident to the state-wide reappraisal of property heretofore authorized by the legislature, each county, municipality or other taxing authority for ad valorem tax years beginning on and after October 1, 1978, may impose and levy an additional ad valorem tax of not more than two mills on all taxable property located in the taxing authority in order to reimburse itself for its payment of such costs of reappraisal or to pay any unpaid costs or its pro rata share of such unpaid costs of reappraisal. The taxes provided for in this subsection, or any pro rata part thereof, shall terminate at the end of the ad valorem tax year in which sufficient funds are received from the taxes to pay in full the said reappraisal costs and any receipts from such taxes that are received during the ad valorem tax year of their termination that are not needed for the purposes specified herein may be used by the taxing authority levying the tax for general purposes of the taxing authority. The taxes authorized in this subsection shall not exceed in the aggregate, with respect 'to any item of taxable property located in the taxing authority, a total of two mills for all such taxes levied by all taxing.authorities in a county and not two mills for each taxing authority in a county. If more than one such taxing authority in a county has paid or owes all or a portion of its reappraisal costs, such two mills shall be prorated among such taxing authorities in the county as they may agree, or if they cannot agree, in the percentage which each such taxing authority's costs of reappraisal bear to the total costs of reappraisal of all taxing authorities in the county. The provisions of this subsection shall apply only to the costs incurred by a taxing authority incident to the state-wide reappraisal of property heretofore authorized by the legislature, the amount of which costs shall be certified by the Department of Revenue, and shall not be applicable to any future reappraisals that may be required by law.

(m) If any portion of this section should be declared invalid by any court of competent jurisdiction, such invalidity shall not affect the validity of any of the remaining portions of this section, which shall continue effective.

Section 2. Election Ordered; Date of Election.

An election upon the proposed amendment is- ordered to be held on Tuesday, November 7, 1978, the day of the general election in the year 1978. The election shall be held in accordance with the provisions of Section 284, as amended, and Section 285 of the Constitution of Alabama of 1901, and Title 17, Chapter 17, Code of Alabama 1975.

Section 3. Notice of Election. Notice of the election on the proposed amendment shall be given by proclamation of the Governor, published in a newspaper in each county in the state once a week for four successive weeks next preceding the day appointed herein for the election, and in any county in which there may be no newspaper published, the notice shall be posted at each courthouse therein.


author: SENTELL, Clerk.

text:
    OPINION OF THE CLERK.
    Opinion No. 12.
    Supreme Court of Alabama.
    Aug. 8, 1978.
   SENTELL, Clerk.

RULE 7, ALABAMA RULES OF JUDICIAL ADMINISTRATION—DOCKET FEE FOR FILINGS PURSUANT TO RULE 60(b), A.R.C.P.

Mr. Allen L. Tapley, Administrative Director of Courts, has requested my opinion, as Clerk of the Supreme Court, as follows:

Rule 7 of the Alabama Rules of Judicial Administration provides that any filing for which there is not an express cost set forth in the consolidated fee structure shall be treated as an original filing for cost purposes. Does this rule authorize a docket fee for cases filed pursuant to Rule 60(b), Alabama Rules of Civil Procedure?

Section 12-2-19(d), Code of Alabama 1975, authorizes the Clerk of the Supreme Court to “give his opinion in writing on any question of the interpretation of any rule of administration promulgated by the Supreme Court to any other officer or official of the state who shows a need for such opinion and requests the same.”

Rule 7 of the Rules of Judicial Administration provides:

Any filing for which there is no express cost under the consolidated fee structure shall be treated as an original filing for cost purposes.

It is my opinion that the words, “Any filing,” in Rule 7 have reference to the words, “cases filed,” in Section 12-19-71(1), (2) and (3), Code of Alabama 1975. See Opinion of the Clerk, No. 1, April 26, 1977, 345 So.2d 1329.

I understand the issue presented by the present inquiry to be, therefore, whether a motion filed pursuant to Rule 60(b), Alabama Rules of Civil Procedure, is a “filing” (i. e., a “case”) for purposes of Rule 7, Rules of Judicial Administration.

A “case” is generally understood to be a judicial proceeding for the determination of a controversy between parties wherein rights are enforced or wrongs are prevented or redressed. See Opinion of the Clerk, No. 1, April 26, 1977, 345 So.2d 1329. Rule 7 of the Rules of Judicial Administration did not by the term “filing” (i. e., “case”) contemplate a separate fee for each proceeding in the same case; this is evidenced by the use of the phrase, “shall be treated as an original filing,” (emphasis added).

Rule 60(b), A.R.C.P., provides for motions-for relief from a final judgment, order or proceeding upon certain specified grounds. The rule states that the “motion shall be made within a reasonable time . ” and upon three of the grounds specified, “ . . not more than four months after the judgment, order or proceeding was entered or taken.” The rule further provides that this “does not limit the power of a court to entertain an independent action within a reasonable time and not to exceed three years after the entry of the judgment ... to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.” These provisions indicate that a motion under Rule 60(b), A.R.C.P., shall be considered, not as a new matter but, as part of the original case.

The Committee Comments to Rule 60(b), A.R.C.P., state:

The normal procedure to attack a judgment under this rule will be by motion in the court which rendered the judgment. If the relief does not appear to be available under the rule, or if relief from the judgment is sought in some other court than the court which rendered the judgment, the party should bring an independent proceeding .

A motion pursuant to Rule 60(b) is very similar to a Rule 59(e) motion. The opinion has previously been expressed that “the filing of a motion to alter, amend or vacate a judgment under Rule 59(e) ... is not a ‘filing’ under Rule 7, Alabama Rules of Judicial Administration.” Opinion of the Clerk; No. 1, April 26, 1977, 345 So.2d 1329. Rules 59(e) and 60(b) of the Alabama Rules of Civil Procedure are modified versions of their counterparts in the Federal Rules of Civil Procedure. It has been held by the federal courts that a motion not timely filed under Rule 59(e), F.R.C.P., could be treated as a motion under Rule 60(b), F.R.C.P., where proper grounds exist. Caraway v. Sain, 23 F.R.D. 657 (N.D.Fla.1959). See also 7 Moore’s Federal Practice, § 60.18(8), (2d Ed. 1975).

It is my opinion that a motion under Rule 60(b) is not a “filing” for purposes of Rule 7, Rules of Judicial Administration, and a docket fee is not authorized.


text:
    OPINION OF THE JUSTICES.
    No. 255.
    Supreme Court of Alabama.
    Aug. 11, 1978.
   The Honorable George C. Wallace

Governor of Alabama

State Capitol

Montgomery, Alabama 36130

Dear Sir:

We acknowledge receipt of yours of 8 August 1978 that reads in pertinent part:

“The Honorable Chief Justice and

Associate Justices of the

Supreme Court of Alabama

Judicial Building

Montgomery, Alabama 36130

“Dear Sirs and Madam:

“An important constitutional question has arisen concerning Senate Bill No. 1, passed by the Senate and House of Representatives at the 1978 Second Special Session of the Legislature of Alabama (‘the Act’). The Act authorizes the Alabama Public School and College Authority (‘the Authority’) to sell and issue $220,325,000 principal amount of its limited obligation revenue bonds (‘the Bonds’) to finance the construction, reconstruction, alteration and improvement of public school buildings for the senior colleges and universities, junior colleges and vocational trade schools, and the public secondary and elementary schools of the State.

“By the terms of Section 125 of the Constitution of Alabama of 1901,1 am required to approve the Act within ten days after the adjournment of the Legislature in order that the Act may become a law. In addition, by the terms of Section 16 — 16-6 of the Code of Alabama of 1975 [codified from Section 6 of Act No. 243 enacted at the 1965 First Special Session of the Legislature of Alabama], I, as Governor, am a member and the president of the Authority. I am required, by both the Act and by Section 16-16-9 of the Code of Alabama of 1975, to execute the Bonds in the name and on behalf of the Authority and to approve the terms and conditions under which the Bonds are to be issued. The purpose of this letter is to request you, pursuant to the provisions of Section 12-2-10 of the Code of Alabama of 1975, to furnish me with your written opinions on the constitutional question presented in this request, so that I might be appropriately guided in taking the actions required of me by the aforesaid constitutional provision and legislation.

“Constitutional question presented. Your written opinions on the following important constitutional question is respectfully requested:

“Does the Act violate the requirement of Section 61 of the Constitution of Alabama of 1901 that ‘no bill shall be so altered or amended on its passage through either house as to change its original purpose’?

“Respectfully submitted,

“/s/ George C. Wallace Governor”

The answer to the sole question propounded by your request is in the negative.

In reaching an opinion whether § 61 has been violated, the Justices must refer to the journals of both houses of the Legislature. Alabama State Bridge Corp. v. Smith, 217 Ala. 311, 116 So. 695 (1928).

From the journals of the House of Representatives and the Senate for the 1978 Second Special Session of the Legislature of Alabama, the following facts concerning the passage of Senate Bill No. 1 appear:

Senate Bill No. 1 was introduced on the First Legislative Day of the Special Session, was read at length for the first time, and was referred to committee. The bill as introduced authorized the financing of capital improvements to the State’s school systems through direct appropriation out of the Alabama Special Educational Trust Fund. The bill was reported out of committee and received a second reading in the Senate on the Second Legislative Day. The bill received a third reading at length and was passed by the Senate on the Third Legislative Day.

Senate Bill No. 1 was transmitted to the House of Representatives on the Third Legislative Day, read at length for the first time and referred to committee. The House Ways and Means Committee adopted a substitute for Senate Bill No. 1 (in which form the bill was finally passed and presented to the Governor) and the substitute bill was reported out of committee and received a second reading in the House on the Fourth Legislative Day. As thus amended, the bill was read a third time at length and passed by the House of Representatives on the Fifth Legislative Day. The bill was sent to the Senate on that day and the Senate concurred in the substitute proposed by the House of Representatives.

Section 61 provides that “no bill shall be so altered or amended on its passage through either house as to change its original purpose.” The “purpose” of a bill within this section is its general purpose, not mere details through which its purpose is manifested and effectuated. State Docks Commission v. State ex rel Jones, 227 Ala. 521, 150 So. 537 (1933).

The general purpose of Senate Bill No. 1 was to provide monies “for capital improvements for public educational purposes, including libraries, laboratories and facilities for athletics, recreation and physical education, and research facilities, including the acquisition of land, for colleges and universities, vocational-technical institutes, junior colleges, elementary-secondary school systems and special schools . . . .” In the resulting Act a stated general purpose is identical.

Between Senate Bill No. 1 and the resulting Act the resulting alteration is the method of financing the expenditures to be used in accomplishing the purpose. Senate Bill No. 1 employed a direct appropriation of “two hundred fifty million dollars ($250,-000,000) from the Alabama Special Educational Trust Fund, over a designated period.” The resulting Act altered this financing method to provide for a bond issue of “two hundred and twenty million three hundred and twenty-five thousand [dollars] ($220,325,000) aggregate principal amount” by the Alabama Public School and College Authority. We are of the opinion that the resulting Act differs from Senate Bill No. 1 only in the method of effectuating its purpose which remained unchanged from the original bill.

Consequently, it is our opinion that the constitutional prohibition of § 61 has not been violated in that the Bill in question has not been so altered or amended on its passage as to change its original purpose. Opinion of the Justices, 335 So.2d 373 (Ala.1976); State ex rel Adams v. McLellan, 202 Ala. 41, 79 So. 379 (1918).

Respectfully submitted,

C. C. TORBERT, Jr. Chief Justice

JAMES N. BLOODWORTH

HUGH MADDOX

RENEAU P. ALMON

JANIE L. SHORES

ERIC EMBRY

Justices.


text:
    OPINION OF THE CLERK, SUPREME COURT of Alabama.
    No. 15.
    Supreme Court of Alabama.
    Aug. 15, 1978.
   SENTELL, Clerk.

RULE 40(A), ALABAMA RULES OF JUDICIAL ADMINISTRATION-COURT REPORTER’S FEE FOR COPIES OF TRANSCRIPT

Mr. W. H. Harris, Jr., Official Court Reporter for the Second Judicial Circuit, has submitted to me the following inquiry in regard to Rule 40(A) of the Alabama Rules of Judicial Administration:

The rule states that: “Fees for copies will be allowed at a rate of 10 cents per page for each copy of the original impression.”
My question is, when a transcript of evidence in a civil case is ordered by the appellant, with specified number of copies thereof; is the reporter preparing said transcript bound by Rule 40 in terms of selling copies of transcript to the appel-lee, or to non-parties to the suit?

Section 12-2-19(d), Code of Alabama 1975, authorizes the Clerk of the Supreme Court, to “give his opinion in writing on any question of the interpretation of any rule of administration promulgated by the supreme court to any other officer or official of the state who shows a need for such opinion and requests the same.”

The question must be answered in the affirmative.

Rule 40(A), Rules of Judicial Administration, was adopted by the Supreme Court pursuant to the provisions of Section 7-110, Act No. 1205, Acts of Alabama 1975, which, codified as 12-17-276, Code of Alabama 1975, reads:

Notwithstanding any statutes existing on October 10, 1975 which prescribe fees to be paid to court reporters for producing transcripts of their stenographic notes, the amounts of these fees may be fixed and adjusted by the supreme court at such time as it shall determine. (Emphasis supplied)

The first paragraph of Rule 40(A) provides “[that] all court reporters shall be allowed a fee of $1.65 for the preparation of the original impression only of each page of the transcript of the proceeding^] . and specifies the requirements for the preparation of the transcript.

The second paragraph of Rule 40(A) reads:

“Fees for copies will be allowed at a rate of 10 cents per page for each copy of the original impression.”

This statement is plain, unqualified and unconditional.

In determining the scope of this provision, consideration must be given not only to Section 12-17-276, supra, but also to Section 12-17-275, Code of Alabama 1975, which prescribes the duties of the official court reporter. That section, in part, reads:

. The original stenographic notes of such reporter shall be preserved by him and treated as a part of the records of the respective courts, and upon his retirement from office, shall be turned over to the clerks of such courts. In cases where the testimony is taken orally before the judge, the court reporter, whenever ordered by the judge, shall transcribe his stenographic notes of such testimony and file the same. (Emphasis supplied)

It is my opinion that an appellee, upon timely request, is entitled to obtain a copy of the transcript ordered on appeal at a rate of 10 cents per page for each copy of the original impression.

If non-parties to the suit are furnished a copy of the original impression, the rate should also be 10 cents per page for each copy of the original impression.


author: EMBRY, Justice.

text:
    John M. HENDERSON et al. v. Joe C. HARDEGREE et al.
    SC 2757.
    Supreme Court of Alabama.
    Aug. 18, 1978.
    G. Coke Williams of Rutledge, Williams, Williams & Norton, Anniston, for appellants.
    No brief for appellees.
   EMBRY, Justice.

Appeal by John M. Henderson, and wife Lillian Henderson from a judgment, entered by the trial court after non jury trial, establishing a boundary line between the Henderson property and that of Joe C. Hardegree, and wife, Eunice G. Hardegree; establishing an easement of Henderson, for a roadway, over the property of Hardegree; and quieting title to the property of Harde-gree.

This case was submitted on brief of appellants, the Hendersons. The thrust of their contention is that the judgment is not supported by the evidence. In an exhaustive and able argument, their attorney attempts to demonstrate the correctness of their position. We are not persuaded. Without benefit of brief of counsel for the Hardegrees, but having read all the testimony, word for word, and examining the exhibits, it is apparent there is ample evidence to support the judgment of the trial court. That being the case, and our rule of review in such instances being as it is, the judgment is due to be, and is hereby, affirmed. Knighten v. Davis, 358 So.2d 1022 (Ala.1978).

AFFIRMED.

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


author: ALMON, Justice.

text:
    HUDSON-THOMPSON, INC., a corporation v. The LESLIE C. KING COMPANY, INC.
    SC 2786.
    Supreme Court of Alabama.
    Aug. 18, 1978.
    Philip Dale Segrest, Montgomery, for appellant.
    George White, Gadsden, and Fred D. Gray, Tuskegee, for appellee.
   ALMON, Justice.

Hudson-Thompson, Inc., appellant, brought an action to permanently enjoin The Leslie C. King Company, Inc., appellee, its lessee, C & P Vic’s, Inc., and its sub-lessee, John A. Walker, from conducting a retail business without complying with the zoning laws of the City of Tuskegee.

Appellant alleges that the defendants intended to establish a retail business without providing off-street parking as required by a Tuskegee zoning ordinance. It further alleges that this is likely to cause prospective customers of the defendants to use parking spaces provided by appellant for its customers. The trial court granted summary judgment for the appellee and directed the entry of a final judgment upon an express determination that there was no just reason for delay. Rule 54(b) ARCP. We reverse.

The general rule is that a court of equity has jurisdiction to enjoin the violation of a zoning ordinance at the insistence of a private citizen who shows special damage by way of impairment of value or otherwise. Moore v. Pettus, 260 Ala. 616, 71 So.2d 814 (1954).

Summary judgment was granted on the basis of the pleadings, affidavits and brief and argument of counsel. For purposes of ruling on a motion for summary judgment, uncontradicted facts alleged in the pleadings and affidavits are taken as true. Ray v. Midfield Park, Inc., 293 Ala. 609, 308 So.2d 686 (1975). Even if the facts are undisputed, the motion should not be granted unless the moving party is entitled to judgment as a matter of law. Rule 56(c) ARCP.

Appellant owns and operates a retail grocery and supermarket in Tuskegee. When the supermarket opened for business, a vacant warehouse owned by the appellee was located directly across the street. The ap-pellee leased the building and land to C & P Vic’s, Inc. Appellant instituted the present action claiming that C & P Vic’s intended to operate a retail business establishment on the premises in violation of the zoning laws.

The retail establishment never opened. C & P Vic’s sublet the premises to John A. Walker. Appellant then added Walker as a party defendant to the suit.

In support of its motion for summary judgment, appellee offered the affidavit of the building and codes inspector of Tuskegee. In essence, it states that remodeling or repairs made on the building were not “alterations” for purposes of the zoning laws which deal with off-street parking requirements. The affidavit is not contradicted by anything the appellant offered in opposition to the motion for summary judgment.

However, the affidavit of Glenn Holmes, manager of appellant’s supermarket, is also uncontradicted. It states that the vacant warehouse underwent alterations which Holmes discovered were done for the purpose of opening a retail store. The retail store never opened but the building has been used as a skating rink and a private club, where bingo is played and alcoholic beverages are served. Also, the parking area which is provided is unpaved.

Appellee argues that the issue is whether the building in question had been altered. Appellant argues that the issue is whether the trial court correctly interpreted the city ordinance in that it failed to consider changes in the “Use” of the building. We agree with the appellants’ statement of the issue.

The concept of “use” is fundamental to most, if not all, zoning laws and their operation. See Rathkopf, The Law of Zoning and Planning, Chapter 58. The Tuskegee ordinance is no exception. In that ordinance “use” is defined as:

“The purpose for which land or a building or other structure is designed, arranged, or intended, or for which it is or may be occupied or maintained.”

In the ordinance “non-conforming use” is defined as:

“A use of any structure or land which, though originally lawful, does not conform with the provisions of this ordinance or any subsequent amendments thereto for the district in which it is located.”

Section 68.1 of the ordinance provides:

“No building or structure or part thereof shall hereafter be erected or altered and no land or part thereof shall be used except where there shall be provided and maintained adequate off-street parking space as herein defined . . .. Parking spaces shall be provided in amounts not less than hereinafter specified, and shall not subsequently be rereduced below the requirements of this Ordinance.”

We do not understand the above section to read, as appellee argues, that the use of an existing building or structure may change from a warehouse to a skating rink, to a private club, without complying with the off-street parking requirements as long as the building structure is not “altered.” The objective of zoning is to eliminate nonconforming uses. Moore, supra. It would be a novelty to hold that a conforming use can change to a non-conforming use without violating the ordinance but a non-conforming use cannot change to another nonconforming use.

Section 4 of the ordinance, entitled “Uses” provides in part:

“Any use or structure existing at the time of enactment or of subsequent amendment to this ordinance, but not in conformity with its provisions, may be continued with the following limitations: Any use of structure which does not conform to the provisions of this ordinance shall not be: a. Changed to another nonconforming use.”

The ordinance also states certain minimum parking requirements, e. g., one parking space per one and one-half employees of a warehouse; one parking space per one hundred square feet of floor area for dance hall or private club; and one parking space per one hundred and fifty square feet of floor area for a retail store. The statute also provides that the parking area must be paved with concrete or bituminous which meets the specification requirements for residential streets.

We hold that the trial court erred in not considering the change in “use” of the building as a factor in deciding if the off-street parking requirements were met.

The judgment is hereby reversed and the cause is remanded.

REVERSED AND REMANDED.

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


text:
    Hester LACEY et al. v. Mattie DAVIS.
    SC 2790.
    Supreme Court of Alabama.
    Aug. 18, 1978.

      Terry T. Bush, Rainsville, for appellants.
    Charles A. McGee, Fort Payne, for appel-lee.
   ALMON, Justice.

Mattie Davis petitioned the Circuit Court of DeKalb County to set apart her homestead interest in fee simple in land owned by her husband, Allen Davis, at his death. The appellants (respondents to Mattie Davis’s petition) are the collateral heirs of Allen Davis. The trial court found in favor of Mattie Davis and awarded her fee simple title to all the land owned by her husband at his death. We affirm.

Allen Davis died on April 26, 1956, owning a single 115 acre tract of land. The only debts owed by his estate consisted of a mortgage on the real estate which Mattie Davis paid shortly after her husband’s death. Finding that the homestead was all the real estate owned by Allen Davis at his death; that he died intestate; that the debts of his estate were paid, and that no children or descendants of children survived him, the court decreed that Mattie Davis was entitled to fee simple title to the property. Mordecai v. Scott, 294 Ala. 626, 320 So.2d 642 (1975); Harrod v. Farmer, 273 Ala. 298, 139 So.2d 115 (1962).

The first issue is whether the lower court erred in finding that the entire tract of land constituted the homestead.

“ ‘A homestead, in law, means a home place, or place of the home, and is designed as a shelter of the homestead roof, and not as a mere investment in real estate, or the rents and profits derived therefrom.’ 1 Wash. Real Property, 326.” Griffin v. Ayers, 231 Ala. 493, 496, 165 So. 593, 595 (1936).

The dwelling site is not the only object of protection. Appurtenant land is included in the home place if used for the actual benefit of the family. In Moseley v. Neville, 221 Ala. 429, 431, 129 So. 12, 14 (1930), the court stated the following about the protection afforded by the homestead statutes:

“The statute protects the roof that shelters and the land used in connection therewith for the comfort and sustenance of the family . . . ”

In regard to the appurtenant land, the home place includes land cultivated by the owner, used to obtain timber and firewood, and used for the pasturage of animals. Mullins v. Baker, 193 Ala. 594, 596, 69 So. 516 (1915).

Appellants claim that part of the 115 acres was rented to two individuals who lived in houses on the property and farmed part of the property. Such rental or commercial use of the property, appellants claim, precludes a finding that the entire tract constitutes the homestead.

There is sufficient evidence to sustain the trial court’s finding that the entire tract was used for the benefit of the family and constitutes the homestead. There was testimony that Allen and Mattie Davis lived on the property and Allen Davis farmed the land and cut firewood for family use from all parts of the land.

In regard to the rental of part of the property to other persons, the evidence is not conclusive and presents a factual issue. Although it is not disputed that at some time before his death Allen Davis allowed two families to live on the property and till the soil, the evidence clearly shows that one family had moved at least two years before Allen Davis’ death. When the other family resided there, and whether they resided there at the time of Allen’s death, is not clear from the record.

In any event, it is important to note that the arrangement by which these persons tilled the land and their interest in the land, if any, is also uncertain. Testimony indicates that these persons “rented” the land on the “thirds and fourths.” This was a “share-cropping type of thing.” It was also described as a “joint venture.”

In Mullins v. Baker, supra, the court considered an almost identical issue, whether the relationship between the property owner and the tiller of the soil was of landlord-tenant or employer-employee. An employer-employee relationship would not prevent a finding that the property constituted part of the homestead. In reversing the trial court’s judgment the court remanded the cause as a factual issue for the jury’s decision, and stated:

“The ownership of crops after they are produced does not necessarily determine the relation as to the land between the landowner and the person whose labor produces the crop. The laborer may be an employee without interest, or he may be a tenant holding the land by definite tenure. To let one have the use of the land to make a single crop on shares, without more, is no lease of the land, and the parties thereby assume the relation of employer and employee, though they become tenants in common of the crops produced. Thompson v. Mawhinney, 17 Ala. 362, 52 Am.Dec. 176. ‘The relation of landlord and tenant may exist, notwithstanding the former is, by the terms of the contract, to receive a portion of the crop in payment. If the tenant take an interest in the soil, it is a lease, by whatever words made, and the payment of a specific portion of the crop is then simply a payment of the rent in kind.’ Smyth v. Tankersley, 20 Ala. 212, 56 Am.Dec. 193. The facts as to the nature of the contract between appellee and Mrs. Mims were not very fully or clearly developed. Ap-pellee’s testimony was not consistent throughout. We do not think it established as matter of law the fact that Mrs. Mims was an employee having no estate in the land. If the contract was one of hire, in which the laborer was to receive a part of the crop as compensation for her services, then the jury might have found that the remote tract was used as an appurtenance to the home place proper, and so was a part of the homestead; but if Mrs. Mims was let into occupancy, and had an exclusive right to the premises for the year, and was bound to the cultivation of the crops, one-half of which she was to pay as rent, then the property was hers for the time, was not used as an appurtenance for the appellee’s homestead, and was not exempt. This issue was for the jury.”

There is sufficient evidence to bring this case within the principles of Mullins v. Baker, supra, presenting a factual issue. Sitting as the jury the trial court decided in favor of Mattie Davis. We cannot say the finding is plainly and palpably erroneous.

Appellants raise another issue. In their words:

“The trial court committed further reversible error in refusing to allow testimony concerning an oral agreement between Mattie Davis and the heirs of Allen Davis in which Mattie Davis agreed to hold the property during her lifetime and to transfer the property at her death.”

Appellants assert the alleged oral agreement on appeal for the first time claiming that a fiduciary relationship existed between Mattie Davis and the heirs of Allen Davis in an attempt to bring the case under the influence of Lester v. Stroud, 212 Ala. 635, 103 So. 692 (1925). Appellants claim that they quitclaimed to Mattie Davis their interest in the timber on the property in question so she could cut the timber and pay the outstanding mortgage on the property. Appellants believed that Mattie Davis would have a life interest in the property and at her death the property would go to the heirs of Allen Davis.

Appellee objected to testimony of an alleged oral agreement between Mattie Davis and the heirs of Allen Davis on the grounds that it violates the statute of frauds, violates the parole evidence rule, is irrelevant, incompetent, immaterial, and raises issues outside the pleadings. The trial court sustained most of appellee’s objections.

We fail to see the relevance of the alleged oral argument in a proceeding to set aside homestead. The appellants filed a general denial to appellee’s petition which puts in issue only the allegations of the petition. Moore’s Federal Practice, § 8-27[3],

If we understand appellants’ contentions correctly, they claim a trust on the land in their favor. Assuming such a trust can defeat petitioner’s claim of homestead, it is an affirmative defense which must be pleaded. ARCP 8(c). Otherwise, the oral agreement is a counterclaim which also must be pleaded unless tried by the express or implied permission of the parties. ARCP 15(b). The issue was not tried by consent. In addition, we note that appellants never made an offer of proof at trial to show the relevancy of the oral agreement and made no motion to amend the pleadings. See ARCP 15(b).

The judgment of the trial court is hereby affirmed.

AFFIRMED.

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


text:
    Rachael Nicole ELLIOTT, a minor who sues by her father and next friend, Therman Elliott v. Harry G. BROWN, M. D.
    77-114.
    Supreme Court of Alabama.
    Aug. 18, 1978.
    Roger H. Bedford of Bedford & Bedford, Russellville, for appellant.
    Robert 0. Cox of Poellnitz, Cox, Robison, McBurney & Jones, Florence, for appellee.
   ALMON, Justice.

Rachael Nicole Elliott, by her father and next friend, brought an action against Harry G. Brown, M. D., for breach of contract and for negligence in improperly performing a vasectomy on her father, resulting in plaintiff’s conception and “wrongful life.” The plaintiff was born with serious deformities. This appeal is taken from a judgment of the trial court granting the defendant’s motion to dismiss for failure to state a cause of action upon which relief can be granted. We affirm.

Defendant-physician, Harry G.. Brown, performed a surgical procedure on Therman Elliott, plaintiff’s father, known as a vasectomy. According to the complaint, Ther-man Elliott underwent the sterilization to prevent his wife from becoming pregnant, a condition which would endanger her health. With knowledge of the plaintiff’s mother’s condition, defendant allegedly guaranteed the effectiveness of the operation. The defendant conducted post-operative examinations of Therman Elliott’s semen specimens and allegedly informed him that the operation was a complete success. Relying on the defendant’s assurances, Therman Elliott and his wife resumed marital relations which resulted in the plaintiff’s conception.

The present action was consolidated for trial with suits filed by the plaintiff’s parents against the defendant. Only the plaintiff’s suit was dismissed. The suits by Therman Elliott and his wife are in no way involved with this appeal.

Plaintiff does not claim that the defendant’s alleged preconception negligence caused her deformity. See Renslow v. Mennonite Hospital, 67 Ill.2d 348, 10 Ill.Dec. 484, 367 N.E.2d 1250 (1977); Jorgensen v. Meade Johnson Laboratories, 483 F.2d 237 (10th Cir., 1973). In fact, plaintiff does not contend that defendant knew or should have known that, if born, she would have a deformity. The complaint noticeably lacks allegations that the sterilization was to benefit the plaintiff by protecting the health of any future born children. Rather, reduced to its essence, the plaintiff’s claim is that the defendant’s alleged negligence caused her birth; i. e., “wrongful life.”

“ . . . What the infant — Appellant alleges is that the breach of duty led proximately to her birth — the maturing of the harm— . . .” Appellant’s brief, p. 9.

“Wrongful life is essentially an action for damages based on the defendant’s negligence in wrongfully allowing a particular child to be born.” Note, An Action for Wrongful Life Brought on Behalf of the Wrongfully Conceived Infant, 13 Wake Forest L.Rev. 712, 716 (1977). Plaintiff urges this court to recognize for the first time a cause of action on her behalf for “wrongful life.”

Several courts have addressed this issue and the vast majority have declined to recognize a cause of action for “wrongful life” on behalf of the child. Stills v. Gratton, 55 Cal.App.3d 698, 127 Cal.Rptr. 652 (1976); Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967); Stewart v. Long Island College Hospital, 30 N.Y.2d 695, 332 N.Y.S.2d 640, 283 N.E.2d 616 (1972); Karlsons v. Guerinot, 57 A.D.2d 73, 394 N.Y.S.2d 933 (1977); Dumer v. St. Michael’s Hospital, 69 Wis.2d 766, 233 N.W.2d 372 (1975). The only court to uphold a cause of action for “wrongful life” on behalf of the child is an intermediate appeals court in New York in the recent decision of Park v. Chessin, 60 A.D.2d 80, 400 N.Y.S.2d 110 (1977).

Most of the cases declining to recognize a cause of action for “wrongful life” have done so on the theory that it is impossible to calculate damages. In Gleitman v. Cosgrove, supra, the majority opinion stated the following:

“ . . . Damages are measured by comparing the condition plaintiff would have been in, had the defendants not been negligent, with plaintiff’s impaired condition as a result of the negligence. The infant plaintiff would have us measure the difference between his life with defects against the utter void of nonexistence, but it is impossible to make such a determination. This Court cannot weigh the value of life with impairments against the nonexistence of life itself. By asserting that he should have not been born, the infant plaintiff makes it logically impossible for a court to measure his alleged damages because of the impossibility of making the comparison required by compensatory remedies. As a recent commentator put the matter:
“ ‘[N]o comparison is possible since were it not for the act of birth the infant would not exist. By his cause of action, the plaintiff cuts from under himself the ground upon which he needs to rely in order to prove his damage.’ Tedeschi, ‘On Tort Liability for “Wrongful Life,” ’ 1 Isreal L.Rev. 513, 529 (1966).” 227 A.2d at 692.

We agree with the above quoted portion of the Gleitman opinion and feel that it adequately states the reasoning of this court with these additional comments. Fundamental to the recognition of such a cause of action is the notion that the defendant has violated some legal right of plaintiff’s and as a result she has suffered injury. However, a legal right not to be born is alien to the public policy of this State to protect and preserve human life. The right of women in certain cases to have abortions does not alter the policy. Instead, in light of this right the recognition of such a cause of action raises more questions than it answers. In the words of one jurist:

“ . . . Implicit, beyond this claim against a physician for faulty advice, is the proposition that a pregnant woman who, duly informed, does not seek an abortion, and all who urge her to see the pregnancy through, are guilty of wrongful injury to the fetus, and indeed that every day in which the infant is sustained after birth is a day of wrong. To recognize a right not to be born is to enter an area in which no one could find his way.” Gleitman v. Cosgrove, 227 A.2d at 711 (Weintraub, C. J., dissenting in part).

We hold that there is no legal right not to be born and the plaintiff has no cause of action for “wrongful life.”

Furthermore, in Park v. Chessin, supra, the only case to recognize a cause of action on behalf of the infant for “wrongful life,” the court apparently recognized the novel “right of a child to be born as a whole, functional human being.” Additionally, in that case there was a causal connection between the alleged negligence and the deformity. Here no such connection exists. In that case, the majority opinion stated the following:

“ . . . decisional law must keep pace with expanding technological, economic and social change. Inherent in the abolition of the statutory ban on abortion . is a public policy consideration which gives potential parents the right . not to have a child. This right extends to instances in which it can be determined with reasonable medical certainty that the child would be born deformed. The breach of this right may also be said to be tortious to the fundamental right of a child to be bom as a whole, functional human being.”

We are not unaware of the rapid progress made in medical science in recent years. Many mysteries of the how and why of human development have succumbed to medical knowledge. However, we do not understand that the state of the art in the medical profession is such that it can be said that no child need be born deformed. With deference to the court in Park v. Chessin, supra, we do not feel that it is possible to say that technological, social and economic changes merit the recognition of a cause of action on behalf of the plaintiff for “wrongful life.”

Upon what legal foundation is the court to determine that it is better not to have been born than to be born with deformities? If the court permitted this type cause of action, then what criteria would be used to determine the degree of deformity necessary to state a claim for relief. We decline to pronounce judgment in the imponderable area of nonexistence.

This decision should not be construed as any precedent whatsoever where preconception negligence causes deformity, and where absent the negligence, normal birth would have probably occurred.

The judgment of the trial court is hereby affirmed.

AFFIRMED.

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


text:
    Lewis ENGLISH et al. v. Tolbert M. BRANTLEY et al.
    77-255.
    Supreme Court of Alabama.
    Aug. 18, 1978.

      Michael A. Figures, Mobile, for appellants.
    Nicholas S. Hare, Jr. of Hare & Hare, Monroeville, and J. Milton Coxwell, Jr. of Coxwell & Coxwell, Monroeville, for appel-lee, Tolbert Brantley.
    W. E. Garrett, Atmore, for appellees.
   EMBRY, Justice.

This case concerns 300 acres of land situated in Monroe County. The land is divided into two tracts: the NE Vi of Section 35, Township 5 North, Range 4 East (160 acres) and the NE Vi of NW Vi, Section 27, Township 5 North, Range 4 East; SE Vi of NW Vi; NE Vi of SW Vi and W V2 of NW Vi of SE Vi, Section 22, Township 5 North, Range 4 East (140 acres). There are two issues on this appeal.

I

The first issue concerns the ownership of the 160 acre tract. Regarding this issue the trial court held:

“1. That John English bought the Northeast Quarter of Section 35, Township 5 North, Range 4 East, at a tax sale on the 24th day of September 1934, in Monroeville, Alabama, that the record owner of the above described property before this tax sale was Jordan Harston, and that the property was assessed in 1933 to Jordan Harston and Jordan Har-ston alone and was sold because the 1933 taxes were unpaid, and John English went into peaceful possession immediately after the tax sale and he or his heirs or assigns have remained in possession until this date.
“2. That John English or his heirs or assigns assessed and they alone assessed and paid the taxes on the above described property from 1935 until the present date and have exercised peaceful possession of the said property during that time.
“3. That Armstead English or his heirs have failed to establish title to the above described property by adverse possession either before the tax sale or thereafter.
“4. That the title to the Northeast Quarter of Section 35, Township 5 North, Range 4 East, rests in the heirs and assigns of John English, deceased, and no other person has any right, title or interest, in or to the above described property.
“5. That any person occupying any part of the Northeast Quarter of Section 35, Township 5 North, Range 4 East, are trespassers unless they are heirs or assigns of John English, but any person in possession of or claiming any possession through Armstead English or his heirs who have crops on any portion of said lands shall have until December 31, 1977 to remove same from said lands.
“It is therefore the Judgment of the Court that the Northeast Quarter of Section 35, Township 5 North, Range 4 East, was owned by John English and is now owned by his heirs and assigns.
“It is the further judgment of this Court that the heirs and assigns of John English have a clear and merchantable title to the above described 160 acres of land, and that Armstead English, his heirs or assigns or any other person have no right, title or interest in the above said lands.”

The appellants in this case, Lewis English, et al., each claim a joint interest in the 160 acre tract as heirs of Armstead English. The issue, therefore, is whether Armstead English ever acquired any interest in the 160 tract.

An examination of the record reveals that letters patent were issued in 1904 conveying the 160 acre tract to Jordan Har-ston. He and his son, Jordan Harston, Jr. occupied the tract until 1934. The 110 acres were assessed in the name of Jordan Har-ston from the years 1906 to 1920 and 1931 to 1934.

In 1934 the 160 acre tract was sold by the Probate Court of Monroe County for the payment of delinquent taxes. The purchaser at the tax sale was John English and, although a tax deed was never issued to John English, the record shows the tract was assessed in his name from the years 1935 to 1977.

There is no evidence that Jordan Harston or his son ever deeded the property to Arm-stead English. Armstead English could have acquired title to the tract only by adverse possession. The record shows the 160 acres were assessed in his name from the years 1921 to 1931. Having the 160 acre tract assessed in his name for ten years, Armstead English met the first requisite for adverse possession under Code of Ala., Tit. 7, § 828 (1940) (current version at § 6-5-200, Code 1975). However, the record shows that for the tenth year, 1931, the land was also assessed in the name of Jordan Harston. Additionally, there is no evidence that Armstead English ever occupied or worked the 160 acres. Although conflicting, the evidence tends to show that Jordan Harston and Jordan Harston, Jr., were the only persons to exercise actual possession of this tract during the ten year period from 1921 to 1931.

Contrary to the claim by appellants that Armstead English acquired the 160 acres by adverse possession, the tendencies of the evidence are that John English acquired the property in such manner. The record reveals that after purchasing the tract at the tax sale in 1934, John English assessed, farmed, stumped, and timbered the property. The evidence is that those persons using or living on the tract did so by permission of John English or his heirs of their assigns. It appears that John English and his heirs have openly and notoriously possessed the 160 acre tract under claim of right ever since the tax sale in 1934.

According to the evidence English was entitled to a tax deed in 1937, three years after the tax sale, pursuant to Code of Ala., Tit. 51, § 276 (1940) (current version at § 40-10-29, Code 1975). Although John English did not obtain a tax deed, he acquired the 160 acre tract by adverse possession in 1940, three years after he became entitled to the deed. Code of Ala., Tit. 51, § 295 (1940) (current version at § 40-10-82, Code 1975). The facts also indicate sufficient possession for John English and his heirs to acquire title under Code of Ala., Tit. 7, § 828 (1940) (current version at § 6-5-200, Code 1975) and by prescription.

The question of adverse possession is one properly determined by the trier of fact. Butts v. Lancaster, 279 Ala. 589, 188 So.2d 548 (1966). When judgment is based upon evidence taken by the trial court ore tenus, it will not be set aside unless clearly erroneous or unsupported by credible evidence under any reasonable aspect of that evidence. Hill v. Delchamps, 294 Ala. 14, 310 So.2d 871 (1975). Although there was some evidence presented to show that the 160 acre tract was used and held by all the heirs of Armstead English, the record supports the conclusion of the trial court to the contrary. Many witnesses without an interest in the property, and some who would take only as an Armstead English heir, testified the land was known to be that of Jordan Harston and after the tax sale that of John English. The conclusion of the trial court is neither clearly erroneous nor without supporting credible evidence.

II

The second issue on this appeal involves whether the 140 acre tract can be equitably partitioned in kind. There is no dispute about ownership of this tract. It is the property of the Armstead English heirs. This includes the heirs of John English since he was an heir of his father, Armstead English.

Adam English brought this suit for division as an heir of Armstead English. Tol-bert M. Brantley purchased the interest of Adam English and has been substituted as a plaintiff/appellee. Concerning this issue the trial court held:

“It is further ORDERED and ADJUDGED that the * * * [140 acres] were owned by Armstead English and now owned by his heirs of their assigns
“It is further ORDERED that said above lands * * * cannot be equitably divided and that a sale for partition and division is necessary to perfect a division thereof among the joint owners.”

Although there is little evidence in the record concerning this issue, the fact there are 57 named defendants with interests varying from Ve to V396 in only 140 acres suggests that any partition in kind would be virtually impossible and therefore inequitable. Carden v. Vanderslice, 336 So.2d 1082 (Ala.1976). Additionally the record indicates the land varies in its use and quality. Part is timbered, part is under cultivation, and part has buildings on it.

Appellants additionally assert that the trial court should allow them to purchase the interest of Tolbert Brantley, by the use of the equitable device of owelty. Section 190 of Title 47 of the Alabama Code (current version at § 35-6-24, Code 1975) does allow a circuit court to provide owelty. Owelty of partition is:

“ * * * A sum of money paid by one of two coparceners or co-tenants to the other, when a partition has been effected between them, but, the land not being susceptible of division into exactly equal shares, such payment is required to make the portions respectively assigned to them of equal value. * * * ” Black’s Law Dictionary (4th Ed. 1968), p. 1258.

It is inapplicable in this situation because there must first be a partition in kind. Hall v. Hall, 250 Ala. 702, 35 So.2d 681 (1948); 68 C.J.S. Partition § 15 (1950). The trial court held this could hot be done and we agree.

Appellants also raise the issue of the constitutionality of Code of Ala., Tit. 47, § 186 (1940) (current version at § 35-6-20, Code 1975), which authorizes the circuit court to sell the property for division. Appellants claim that they have been denied due process of law because it was not shown at the trial level that the land could not be equitably divided in kind and because the plaintiff had testified he would accept the fair market value of his interest in the land.

The ore tenus rule applies to a trial court’s determination of whether land should be sold for division because it cannot be equitably partitioned in kind. Hicks v. Hicks, 348 So.2d 1368 (Ala.1977). The finding of the circuit court that the property cannot be equitably divided in kind was supported by credible evidence and is not clearly erroneous. Section 186 did not prevent the appellants from purchasing the interest of the plaintiff prior to trial. This statute does not deny due process of law to appellees. It allows a co-tenant to force a sale for division only after proving the property cannot be equitably divided in kind. It provides a reasonable means of allowing all co-tenants maximum freedom in dealing with their interest in jointly owned property.

The judgment of the circuit court not being clearly erroneous and supported by credible evidence is due to be, and is, affirmed.

AFFIRMED.

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

      . There is testimony of plaintiff, Brantley, describing difference in the nature of various portions of the land; also his opinion that it cannot be equitably divided in kind.