author: FAULKNER, Justice.

text:
    Joseph F. MORAD et al. v. George D. COUPOUNAS, etc., et al.
    SC 2818.
    Supreme Court of Alabama.
    July 21, 1978.

      Lawrence B. Clark and Virginia A. Emerson, Birmingham, for appellants.
    Michael L. Edwards and Thomas J. Gallo, Birmingham, for appellees.
   FAULKNER, Justice.

This is an appeal by Med-Lab, Inc. and its stockholders from a final decree finding them liable for misappropriation of the corporate opportunity of Bio-Lab, Inc., and ordering them to offer 30% of the stock of Med-Lab to Coupounas. We affirm the order that Med-Lab is liable to Bio-Lab, but reverse and remand as to the remedy ordered by the trial court.

Bio-Lab, Inc. was formed in 1972 by Joseph Morad, Joseph Thomson, George Cou-pounas, and Dr. June Shaw for the purpose of establishing a plasmapheresis business. In this business, red blood cells are separated from the plasma of a paid blood donor and returned to the donor’s circulatory system. The plasma is then sold to biological manufacturing companies. Initially, Bio-Lab opened an office in Birmingham with Morad, who had approximately 5Vi years experience in the plasmapheresis business, as president. Coupounas, a resident of Massachusetts, was to handle the books. The trial court specifically found that one of the purposes of the creation of Bio-Lab was to expand its operations by opening new offices in certain specified areas of the state, including Tuscaloosa.

By mid-1973, dissension had arisen among the directors and stockholders of Bio-Lab over Morad’s compensation. Testimony and exhibits examined by the trial court indicated that at this same time discussions were held on expansion to Tuscaloosa. In June, 1973 Thomson purchased Dr. Shaw’s stock so that the ownership of Bio-Lab was divided as follows: Morad, 42%; Thomson, 28%; Coupounas, 30%. Several months later Coupounas and Dr. Shaw were removed from the board of directors and replaced by Morad’s wife, Pamela, and two other individuals.

In February, 1974, Morad, his wife, and Thomson incorporated another plasmapher-esis business, Med-Lab, Inc., that began operating in Tuscaloosa in September of 1974. Since that time, Morad has served as president of both Bio-Lab and Med-Lab, working “full-time” for both corporations, according to the corporate tax returns. Both corporations are profitable. Morad’s own testimony at trial revealed that Bio-Lab had lost donors to Med-Lab and that the two corporations sold 95% of their products to the same three biological manufacturing corporations. Morad also testified that he jointly purchases insurance policies and supplies for Bio-Lab and Med-Lab, and uses the car supplied him by Bio-Lab on Med-Lab business. Orders for plasma received by Bio-Lab are sometimes filled by Med-Lab.

In May, 1976, Coupounas, eliminated from any interest in the Tuscaloosa venture, filed suit individually, and for the benefit of Bio-Lab, against Med-Lab, Mor-ad, Morad’s wife, and Thomson alleging a breach of fiduciary duty to Bio-Lab in the formation of Med-Lab. The complaint asked that a constructive trust be imposed on Med-Lab in favor of Bio-Lab, or alternatively, that defendants be required to offer Coupounas the same percentage of ownership in Med-Lab as he held in Bio-Lab, i. e., 30%. The trial court, hearing extensive testimony without a jury, rendered judgment for Coupounas and ordered the defendants to offer him 30% of the stock of Med-Lab.

In Lagarde v. Anniston Lime & Stone Co., 126 Ala. 496, 28 So. 199 (1899), this Court first formulated its doctrine of corporate opportunity. There it was stated:

“It is well settled that directors and other governing members of a corporation are so far agents of the corporation that in their dealings respecting corporate interests, they are subject to the rules which apply generally to persons standing in fiduciary relations and which forbid such persons to secure an advantage for themselves which fidelity to the trust reposed in them would carry to others whose interests they ought to represent.
* * * * * *
“[I]n general the legal restrictions which rest upon such officers in their acquisitions are generally limited to property wherein the corporation has an interest already existing, or in which it has an expectancy growing out of an existing right, or to cases where the officers’ interference will in some degree balk the corporation in effecting the purposes of its creation.”

See also Cox & Perry, Inc. v. Perry, 334 So.2d 867 (Ala.1976). The last restriction in Lagarde, that which prohibits “balking the corporate purpose,” is really quite broad in its formulation, although the case has often been described as restrictive. See e. g., Note, Corporate Opportunity, 74 Harv.L.Rev. 765 (1961). We think that Lagarde when properly read establishes responsibilities for the corporate officer or director comparable to those outlined Guth v. Loft, Inc., 23 Del.Ch. 255, 5 A.2d 503 (1939), where the Delaware Supreme Court employed the doctrine of corporate opportunity and observed that it

“ . . . demands of a corporate officer or director, peremptorily and inexorably, the most scrupulous observance of his duty, not only affirmatively to protect the interests of the corporation committed to his charge, but also to refrain from doing anything that would work injury to the corporation, or to deprive it of profit or advantage which his skill and ability might properly bring to it, or to enable it to make in the reasonable and lawful exercise of its powers. The rule that requires an undivided and unselfish loyalty to the corporation demands that there shall be no conflict between duty and self-interest. The occasions for the determination of honesty, good faith and loyal conduct are many and varied, and no hard and fast rule can be formulated. The standard of loyalty is measured by no fixed scale.”

Moreover, the Delaware Supreme Court stated in more practical terms what the law demands of corporate officers or directors:

“[I]f there is presented to a corporate officer or director a business opportunity which the corporation is financially able to undertake, is, from its nature, in the line of the corporation’s business and is of practical advantage to it, is one in which the corporation has an interest or a reasonable expectancy, and, by embracing the opportunity, the self-interest of the officer or director will be brought into conflict with that of his corporation, the law will not permit him to seize the opportunity for himself.”

We think that this passage provides a workable definition of “balking the corporate purpose.” To this definition must be added the caveat that whether or not an officer has misappropriated a corporate opportunity and thereby balked the corporate purpose does not depend on any single factor. On the contrary,

“[njumerous factors are to be weighed, including the manner in which the offer was communicated to the officer; the good faith of the officer; the use of corporate assets to acquire the opportunity; the financial ability of the corporation to acquire the opportunity; the degree of disclosure made to the corporation; the action taken by the corporation with reference thereto; and the need or interest of the corporation in the opportunity. These, as well as numerous other factors, are weighed in a given case. The presence or absence of any single factor is not determinative of the issue of corporate opportunity.” Paulman v. Kritzer, 74 Ill.App.2d 284, 219 N.E.2d 541 (1966).

Necessarily, such a question is one of fact and the decisions of the trial court hearing the evidence ore tenus will not be disturbed on appeal unless plainly erroneous or manifestly unjust. Lipscomb v. Tucker, 294 Ala. 246, 314 So.2d 840 (1975); see also Equity Corp. v. Milton, 221 A.2d 439 (Del.1966); Tower Recreation, Inc. v. Beard, 231 N.E.2d 154 (Ind.App.1967). Here the trial court specifically found that one of the corporate purposes of Bio-Lab was to expand into specific new areas, including Tuscaloosa. Ample evidence in the record supports this conclusion. Bio-Lab’s certificate of incorporation declared that one of the purposes of the business was “to have one or more offices.” While this open-ended, boilerplate language standing alone might not be sufficient to support the trial court’s findings, testimony and exhibits produced at trial show that expansion to Tuscaloosa was anticipated for Bio-Lab’s future.

As pointed out above, one of the factors to be considered by the trial court is the corporation’s financial ability to undertake the new enterprise, although financial ability must be carefully considered and will not necessarily be determinative. As observed in Paulman v. Kritzer,

“The inherent dangers of permitting a corporate officer or director to seize upon an opportunity on the grounds that the corporation is financially unable to do so, at a time when the corporation is solvent, is recognized in Irving Trust Co. v. Deutsch, 73 F.2d 121, at page 124 (C.A.2, 1934) where the court stated:
“ ‘If directors are permitted to justify their conduct on such a theory, there will be a temptation to refrain from exerting their strongest efforts on behalf of the corporation since, if it does not meet the obligations, an opportunity of profit will be open to them personally.’ ”

Testimony on the issue of financial ability was given at trial by Herbert Ra-burn, a certified public accountant, familiar with the books of both Bio-Lab and Med-Lab. Counsel for Morad sought to have Raburn testify that Bio-Lab could not have obtained a loan to finance expansion to Tuscaloosa. In fact, no one had ever sought a loan for this purpose. Because no loan had been sought, the trial court refused to allow Raburn to testify on this point, and observed that any testimony on what a particular bank would do, would be, under the circumstances, highly speculative. We agree. Raburn admitted that he knew only “in general terms” what banks look for in making loans. Consequently, he was not qualified to testify whether or not Bio-Lab could have gotten a loan.

Furthermore, Raburn’s testimony revealed that $44,000 had been required to establish Med-Lab. At the end of 1974 Bio-Lab had only $24,300 available for this purpose. But, Raburn also testified that in 1974 Bio-Lab had paid a “rather high” dividend of $20,000. His testimony indicated that the payment of dividends is often restricted when a corporation wishes to expand. Thus, if the dividend had not been paid, Bio-Lab clearly should have had the financial ability to expand to Tuscaloosa, with or without a loan. In light of this testimony the trial court’s finding that defendants improperly formed Med-Lab to the detriment of Bio-Lab is clearly supportable and will not be disturbed by this Court on appeal.

We do not, however, feel that the trial court was justified in ordering defendants to offer 30% of Med-Lab’s stock to Coupounas. The traditional remedy in cases qf this sort is a constructive trust imposed for the benefit of the corporation. See e. g. McKinstry v. Thomas, 258 Ala. 690, 64 So.2d 808 (1953); Guth v. Loft, Inc., 23 Del.Ch. 255, 5 A.2d 503 (1939); Legarde v. Anniston Lime & Stone Co., 126 Ala. 496, 28 So. 199 (1899). In McKinstry a constructive trust was precluded because the corporation had been dissolved. But no such justification exists for the remedy imposed here. One purpose for preserving the use of a constructive trust in this sort of situation is to avoid forcing individuals into business together under strained circumstances. Such a situation would only be counterproductive. The policy underlying the use of a constructive trust is well illustrated by this case. Coupounas and defendants were not getting along prior to the formation of Med-Lab. It is hardly likely that their relations have improved through the course of this lawsuit. While the courts should strive to place the parties in their proper financial positions, they should not force individuals into business arrangements they clearly do not want. Here, a constructive trust for the benefit of Bio-Lab was the appropriate remedy.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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


source: Caselaw Access Project

license: Public Domain

text:
    In re Lawrence G. RUSHING v. CITY OF GEORGIANA. Ex parte Lawrence G. Rushing.
    Civ. 1318.
    Court of Civil Appeals of Alabama.
    Oct. 7, 1977.
    Rehearing Denied Oct. 25, 1977.
   On petition for writ of mandamus, WRIT DENIED: no opinion.

Decision reversed and remanded, Ala., 361 So.2d 11; on remand, Ala.Civ.App., 361 So.2d 13.


author: BEATTY, Justice.

text:
    In re Lawrence G. RUSHING v. CITY OF GEORGIANA. Ex parte Lawrence G. Rushing.
    77-87.
    Supreme Court of Alabama.
    March 10, 1978.
    Allen W. Howell, Montgomery, for petitioner.
    Elisha C. Poole, Greenville, for respondent.
   BEATTY, Justice.

Earlier the petitioner had sought to obtain from the Court of Civil Appeals, 361 So.2d 10, a writ of mandamus requiring a circuit court judge to recuse himself in a civil action filed by this petitioner, that case being identified as Civil Action No. CV-77-33. After that court denied the petition we granted certiorari on the ground that this is a case of first impression under the Canons of Judicial Ethics adopted by this Court on December 15, 1975, Alabama Lawyer, Vol. 37, No. 1 at 10-29 (Jan. 1976).

While the Honorable Arthur E. Gamble, Jr. was circuit solicitor, an indictment was obtained for manslaughter in the first degree against the petitioner, Rushing. The indictment arose out of the death of a person whom Rushing, at the time a policeman for the City of Georgiana, was attempting to arrest. The petitioner was prosecuted by Mr. Gamble on the felony charge and acquitted. Thereafter, Mr. Gamble became, and is presently, Judge of the Circuit Court of Butler County. In June 1977 the petitioner filed a civil action against the City of Georgiana, Butler County, seeking damages for personal injuries he allegedly incurred while attempting to effect the arrest referred to. Because Judge Gamble would be the circuit judge who would ordinarily preside over that civil action, the petitioner filed a motion requesting the judge to re-cuse himself. He cited Title 13, § 6, Alabama Code (now Code of Ala. 1975, § 12-1—12), and in addition alleged bias and the lack of a capability of impartiality, and supported his motion with his affidavit in which he recited the facts we have related. Following the denial of that motion by the trial court this petition followed in due course.

The respondent has declined to answer, see Rule 21(b), ARAP; however counsel for the City of Georgiana, appellee-defendant in the civil case, has filed a brief in this court in opposition to the petition.

The gist of Rushing’s petition is that he does not feel that he can receive a fair and impartial trial in those circumstances, and that under those circumstances the Canons of Judicial Ethics, particularly Canon 3, should be applied with § 12-1-12 of the Code because Judge Gamble’s impartiality might reasonably be questioned.

We quote § 12-1-12:

No judge of any court shall sit in any case or proceeding in which he is interested or related to any party within the fourth degree of consanguinity or affinity or in which he has been of counsel or in which is called in question the validity of any judgment or judicial proceeding in which he was of counsel or the validity or construction of any instrument or paper prepared or signed by him as counsel or attorney, without the consent of the parties entered of record or put in writing if the court is not of record.

And Part C of Canon 3 which deals with the disqualification of judges:

(1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:
(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(b) He served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer in the matter, or the judge or such lawyer has been a material witness concerning it.

A literal reading of § 12-1-12 precludes its application in this instance since its pertinent terms refer to the judge sitting “in any case ... in which he has been of counsel . . . .” Those terms refer to the same case, and here the two cases are not the same. It is well settled, however, that the grounds of disqualification expressed in that section do not preclude others existing at common law, e. g., Medlin v. Taylor, 101 Ala. 239, 13 So. 310 (1893) and, indeed, our Canons of Judicial Ethics clearly demonstrate this position. By the terms of Canon' 3 “[a] judge should disqualify himself in a proceeding in which . . -. his impartiality might reasonably be questioned, . . . ” Especially noted as an instance for disqualification is that in which he has “served as a lawyer in the matter in controversy, . . . ” Even though the earlier case was a criminal prosecution between the State of Alabama and Rushing, whereas the present case is a civil action between Rushing and the City of Georgia-na, is the difference in the parties and in the nature of the controversy material to' the judge’s relationship to both? We think not.

For one thing, they represent the same “matter in controversy.” A “matter” is:

[a] subject (as a fact, an event or course of events, or a circumstance, situation, or question) of interest or relevance: . Webster’s Third New International Dictionary (1971).

It cannot be doubted that with the exception of possible personal injuries claimed by this petitioner in his civil action, the same course of events is relevant to both cases. The facts leading up to the shooting, the facts concerning the performance, or nonperformance of duty, the relative use of force, all these would be relevant in each case. Hence both cases concern the same “matter in controversy” referred to in Canon 3(C)(1)(b). As the prosecutor in the criminal case, the respondent was a “lawyer” in that “matter in controversy.” While we do not suggest the existence of the slightest degree of personal bias or prejudice toward the petitioner by the respondent, nevertheless this fact of his prior participation as prosecutor in the criminal case under, these circumstances makes the later civil case a “proceeding in which . his impartiality might reasonably be questioned, . '. . ” Accord, Payne v. State, 48 Ala.App. 401, 407-9, 265 So.2d 185 (1972).

For these reasons, we must reverse the decision of the Court of Civil Appeals and remand this cause to that Court with directions to issue its writ of mandamus to the circuit judge, directing him to disqualify himself in the civil action, No. CV-77-33, in the Circuit Court of Butler County.

REVERSED AND REMANDED WITH DIRECTIONS.

All the Justices concur.


text:
    Lawrence G. RUSHING v. CITY OF GEORGIANA. Ex parte Lawrence G. Rushing.
    Civ. 1318.
    Court of Civil Appeals of Alabama.
    April 19, 1978.
   After remand by the Supreme Court of Alabama, Writ of Mandamus GRANTED, pursuant to the judgment and opinion of the Supreme Court, 361 So.2d 11.


author: HOLMES, Judge.

text:
    Myrtle H. HOLLIDAY, Administratrix of the Estate of James Daniel Holliday, Deceased v. C. T. THACKSTON SAND AND GRAVEL COMPANY et al.
    Civ. 1460.
    Court of Civil Appeals of Alabama.
    July 12, 1978.

      Richard A. Lawrence, Montgomery, for appellant.
    Charles E. Porter, Montgomery, for ap-pellees.
   HOLMES, Judge.

This is a workmen’s compensation case.

The trial court granted the employer’s motion for summary judgment. The employee appeals and we affirm.

The issue on appeal, as stated by the employee in a well reasoned brief, is whether article 2 or article 3 of Alabama’s Workmen’s Compensation Act (Code of Ala.1975, § 25-5-1 et seq.), is applicable.

We find, as did the trial court, article 3 to be applicable and affirm.

The employee was killed while employed by the employer-appellee. His death “arose out of and occurred in the course of his employment.” He had no dependents. The administratrix of the employee’s estate filed suit against the employer, alleging negligence and entitlement to benefits under article 2 of the workmen’s compensation laws.

The employer filed a motion for summary judgment, attaching an affidavit in support thereof. This affidavit stated that maximum benefits provided by article 3, to wit, medical expenses, burial expenses, and payment to the secondary trust fund were paid by the employer. In view of these payments, as provided by article 3 when an employee dies without dependents, the trial court granted summary judgment in favor of the employer.

The employee argues that article 3, with limited benefits, does not apply and that article 2 is applicable. While able counsel’s arguments are ingenious, they are not bottomed on any contention that the facts surrounding the death are such that article 2 would apply. See Foreman v. Dorsey Trailers, Inc., 256 Ala. 253, 54 So.2d 499 (1951).

Rather, as we perceive counsel’s brief, the employee in essence contends that since no substantial benefits are provided by article 3 for an employee who dies without dependents, article 2 must apply. Specifically, employee argues that article 3 did not become “operative” in accordance with the provisions of article 3. In support of its argument, employee states that article 3 does not become operative because it fails to accomplish its desired result of providing “compensation” for the death of the employee. Employee bottoms that allegation on the relatively meager benefits received in comparison to those allowed if employee left dependents.

By virtue of the above, employee argues article 2 should apply which would allow compensation by a civil action instead of under article 3. Put another way, counsel contends that when an employee dies without dependents, the employer is simply not subject to article 3 because that article did not become operative due to its insubstantial benefits accorded the employee. We do not agree.

In Johnson v. Ralls, 286 Ala. 565, 570-71, 243 So.2d 673, 677 (1970), Mr. Justice Maddox in a special concurrence stated as follows:

“Therefore, I would affirm the trial court on the basis that a personal representative of a deceased employee who is covered under the Workmen’s Compensation Act cannot maintain an action under our Homicide Statute against his employer for the employee’s wrongful death.
“In death damage cases against employers, our Workmen’s Compensation Act is exclusive. . . . This rule is followed in several other states having acts similar to ours.
“Appellant contends that in death cases where there are no dependents, the next of kin of a deceased employee are left without a remedy. Under our statutes, this is presently true, but the wisdom of allowing the personal representative of a deceased employee who leaves no dependents to maintain a wrongful death action against the deceased employee’s employer is for the Legislature, not for this Court.” [Citations omitted.]

For similar holding, see Slagle v. Reynolds Metals Co., Ala., 344 So.2d 1216 (1977).

The employee would avoid the rationale of the above by pointing out that in Johnson, supra, an attempt was made to go outside the Workmen’s Compensation Act to obtain recovery, whereas in the present case he is attempting only to make applicable another article of the act.

We would point out, however, that what makes article 2 applicable are the facts of the particular case. The fact that the employee simply has no dependents does not render article 3 inapplicable and, therefore, article 2 applicable.

Code of Ala.1975, § 25-5 — 54, provides, in pertinent part, that:

“All contracts of employment made on or after January 1, 1920, shall be presumed to have been made with reference to and subject to the provisions of this article. . . . ”

We would further note that Code of Ala. 1975, § 25-5-30, provides that:

“This article shall not apply in cases where article 3 of this chapter becomes operative in accordance with the provisions thereof, but shall apply in all other cases, and in such cases shall be an extension or modification of the common law.”

The above clearly indicates to this court that the employer and employee, in this instance, were subject to article 3 of the Workmen’s Compensation Act. As noted above, the mere fact that the employee had no dependents does not render article 3 “inoperative” so as to allow compensation by a civil action.

Benefits, as provided by article 3, were paid by the employer. There is no contention by the employee that article 2 applies because of the factual situation surrounding employee’s death. See Comments, § 25-5-31, Code of Ala.1975. Therefore, we find the trial court did not err in granting summary judgment.

Along a slightly different line, the employee argues that article 2 is applicable due to the effect of amendments brought about by Act No. 1062 in 1973. Specifically, he contends the act no longer makes it possible for an employer or employee to elect not to be covered by article 3 and that it is compulsory for both to be covered by article 3. By virtue of this, the employee argues the only field of operation left for article 2 is where an employee dies without dependents in the course of his employment, as in the present case.

The Alabama Supreme Court in Pipkin v. Southern Electrical and Pipefitting Company, Inc., 358 So.2d 1015 (1978), rejected such an argument when it stated:

“[T]he 1973 amendments, as written, only repealed those sections of the Code pertaining to the election procedures governing whether or not the employer and employee would be bound by the provisions of the Act (§§ 274, 275, 276, Tit. 26, Code 1940). The repeal of these procedures in no way affected the elective option between employer and employee existing under the Act as heretofore defined. The constitutional validity of the Act rests upon the same being elective rather than compulsory. . . ” [Emphasis supplied.]

In addition to the above, the employee in his excellent brief argues that Alabama’s Workmen’s Compensation Act is unconstitutional, being in violation of §§ 13 and 22 of Alabama’s Constitution and the fourteenth amendment to the United States Constitution.

Suffice it to say, this constitutional question was not raised in the trial court and, therefore, our review is precluded. See 2 Ala.Digest Appeal & Error § 170(2).

We would note, however, that the quote from Johnson, supra, would to this court clearly recognize that our workmen’s compensation laws as they relate to employees without dependents are not constitutionally infirmed. See also Grantham v. Denke, 359 So.2d 785 SC 2542 (May 5, 1978); Pipkin v. Southern Electrical and Pipefitting Company, Inc., supra.

The above being dispositive of the issues in this case, the trial court is due to be and is affirmed.

AFFIRMED.

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


text:
    Sandra MOBLEY v. BAPTIST HOSPITAL OF GADSDEN, INC., a corporation.
    Civ. 1508.
    Court of Civil Appeals of Alabama.
    July 26, 1978.
    Jack Floyd of Floyd, Keener & Cusimano, Gadsden, for appellant.
    . Buford L. Copeland of Copeland & Copeland, Gadsden, for appellee.
   HOLMES, Judge.

The Baptist Hospital of Gadsden sued the mother and father of a minor child. The hospital claimed the mother and father owed the hospital for services performed on behalf of the minor.

The circuit court, without a jury, found in favor of the hospital and entered a judgment against both the mother and father. The mother appeals from that judgment. The father makes no appeal.

As we perceive able counsel for the mother’s argument in brief, it is his contention that the law of Alabama provides that the primary responsibility for support of a minor child is the duty of the father and the mother has no duty to support. The mother therefore contends that the trial court could not, as a matter of law, enter a judgment against the mother. We disagree and affirm.

The record before this court reveals that the mother and father were divorced in 1971. The divorce decree in pertinent part provided that the primary custody of the minor child was to be with the mother. The father was to have custody on certain weekends during the month. The husband was required to provide each month a certain amount for child support. No specific provision was made with reference to medical expenses.

While the child was with the father on a weekend as provided in the decree of divorce, he broke his arm. The child was taken by the father to the plaintiff-hospital. Services were performed by the hospital. The father informed the hospital to bill the mother for the services performed. The amount of this bill was slightly in excess of $200.

Both the mother and father thereafter refused to pay the hospital’s bill. The hospital sued both the mother and father jointly-

The Etowah County Court entered judgment against the mother and father. The mother appealed to the circuit court. The circuit court entered a judgment against both the mother and father and, as indicated above, the mother has appealed to this court.

We would note at this point that both counsel for the mother and father have favored this court with concise and well written briefs. We would further note that the lawsuit was tried on an agreed statement of facts which provide little detail.

Suffice it to say that in this instance, as the issue is presented to us, we perceive no legal impediment in the trial court’s action of entering a judgment against both the mother and father. We believe Thomason v. Thomason, 53 Ala.App. 206, 298 So.2d 627 (1974), authored by Presiding Judge Wright, clearly indicates that there is no law that prevents requiring child support or contributions thereto by the mother if she is shown to be capable of providing such support.

In view of the above, we cannot say that in this instance, we find reversible error by the trial court in entering a judgment against both the mother and the father. The case is due to be and is affirmed.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    Helen S. SHERROD v. John S. SHERROD.
    Civ. 1516.
    Court of Civil Appeals of Alabama.
    July 26, 1978.

      John R. Barnes and J. Douglas Evans, Florence, for appellant.
    John D. Clement, Jr., Tuscumbia, for ap-pellee.
   BRADLEY, Judge.

This is a child custody case.

The parties to this proceeding were divorced in 1975 and the custody of the only child of the marriage, Rebecca Lee Sherrod, was awarded to the father pursuant to an agreement between the parties. About two years later, Helen S. Sherrod, the appellant, filed a petition seeking to have the child removed from her father’s custody and placed in her (appellant’s) custody. After a hearing the Circuit Court of Colbert County issued an order denying appellant’s request, and from that order Helen Sherrod appeals.

The facts show that when the parties were divorced the father was given custody and the mother was given visitation from Friday afternoon to Saturday afternoon every other weekend; she also received custody of the child for two months each summer. During the summer visitation with the mother, the father was given the same visiting privileges as the mother exercised during the remainder of the year.

In April 1977 the father, appellee here, remarried. His new wife has two children ages twelve and ten years by a previous marriage. Appellee’s wife is a school teacher and teaches in a Head Start program.

The new Mrs. Sherrod testified that the family routine is for everyone to arise about six a. m., dress, eat breakfast and go to work and school. All three of the children attend the same school, i. e. Forrest Hills School. She said that she takes the children to school each morning and they walk home in the afternoon. The school is located about three to four blocks from the family’s house. She and the children arrive at the house in the afternoon at about three o’clock. Sometimes she is a few minutes late in arriving. The children do their homework in the afternoons; later the family eats supper and the children then have some play time before going to bed.

The appellee, a postal letter carrier, stated that the family got along well together; that the children each had their own room; that Rebecca did well in school — all A’s; that the family were regular churchgoers; and that he and his new wife loved Rebecca and wanted her to live in their house and be a part of their new family.

In reply, appellant says that Rebecca is unhappy in her father’s house. Appellant also maintains that Rebecca does not get along well with her new mother or her new brother and sister, and that she (Rebecca) wants to live with appellant.

It is axiomatic that the party seeking a modification of a child custody decree has the burden of alleging and proving that a material change in circumstances has occurred since the original child custody award. Rogers v. Rogers, Ala.Civ.App., 345 So.2d 1368 (1977); Gould v. Gould, 55 Ala.App. 379, 316 So.2d 210, cert. den. 294 Ala. 757, 316 So.2d 214 (1975); Wilson v. Wilson, 53 Ala.App. 201, 298 So.2d 622 (1973), cert. den. 292 Ala. 761, 298 So.2d 627 (1974).

The remarriage of one or both of the parties is not in and of itself such a material change of circumstances as to justify modification, but it is nevertheless a factor to be considered by the trial court. Raines v. Baucom, 270 Ala. 706, 121 So.2d 870 (1960); Taylor v. Taylor, 359 So.2d 395 (Ala.Civ.App.1978). Likewise, the wishes of a minor child to live with one parent as opposed to living with the other parent is not controlling in custody modification cases although such wishes must be given consideration by the court. Stilwell v. Stilwell, Ala.Civ.App., 357 So.2d 355 (1978); Taylor v. Taylor, supra.

The trial court in reaching a determination on whether these and other factors justify a modification of custody must consider and weigh them with the principle always in mind that the best interests and welfare of the child are of paramount importance. Rowe v. Rowe, 45 Ala.App. 367, 231 So.2d 144 (1970). And we will not disturb the conclusion ultimately reached by the court in a child custody matter unless that conclusion is plainly and palpably erroneous.

After a careful examination of all the evidence in the record before us, we are unable to say that the trial court erred in concluding that the appellant failed to show a sufficient change of circumstances such as would warrant a modification of the original child custody decree. Nor can we say that the court’s decision ignored the welfare and best interests of the child. Therefore, we must affirm the trial court’s order.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.


author: BOOKOUT, Judge.

text:
    Donald C. DeLOACH v. STATE.
    6 Div. 119.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 1977.
    Rehearing Denied Jan. 24, 1978.

      J. Earl Langner, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and G. Daniel Evans, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Robbery; sentence: ten years imprisonment. •

Around 8:55 P.M. on April 29, 1975, two men entered a convenience store in Birmingham operated by Percy Dalton Coker. One of the men, later identified by Coker as the appellant, placed a .410 gauge shotgun on the counter and ordered Coker to give him the money in the cash register. After handing over the money, Coker was forced to lie on the floor while the robbers fled. Coker called the Birmingham police, and Officer James Rhodes was dispatched to the store and took down Coker’s description of the assailants. Ten days later, Coker was shown six color photographs of black males from which he positively identified the appellant. Also, immediately before the preliminary hearing on June 2, 1976, Coker again identified the appellant who was then sitting in the courtroom.

I

Appellant challenges the identification procedure in this case as being impermissi-bly suggestive. His basic contention appears to be that the one-on-one identification of the appellant immediately prior to the preliminary hearing was suggestive and that a multiple party lineup should have been held. Counsel for appellant also contends that Coker only saw the robber for a “split second” and could not therefore make an accurate identification.

The record, in context, shows that when the robbers entered the store, Coker looked up and saw the two of them standing at the counter for a “split second.” Coker then walked around in front of the counter and asked if he could help the men. Appellant pulled the shotgun on Coker and demanded the money from the cash register. Coker observed the appellant for two or three minutes while he was in the store.

Coker testified that he selected the appellant’s photograph from a group of six photographs shown him by Police Officer T. B. White. No suggestion was made to Coker by Officer White as to which person the police suspected as the robber.

On the date of the preliminary hearing, Coker reported to one of the courtrooms in which approximately 150 people were seated. Coker and Officer White began talking and walked to the front of the courtroom. Coker then recognized the appellant who was seated in the front row. Other black men were seated near, but not directly next to the appellant. Appellant contends that such situation amounted to an impermissi-bly suggestive one man show-up.

We do not find the identification procedures in the instant case to have been so suggestive as to create a substantial likelihood of misidentification, as per the rule enunciated in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). A hearing was held on the identification procedure outside the presence of the jury at which time Coker positively identified the appellant. He again identified the appellant in the presence of the jury. Coker and the police officer witnesses were subjected to a thorough' and sifting cross-examination. The danger of misidentification is substantially lessened by a course of cross-examination at trial which exposes to the jury the potential for error. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Childers v. State, Ala.Cr.App., 339 So.2d 597, cert. denied, Ala., 339 So.2d 601 (1976). Also see: Donilson v. State, Ala.Cr.App., 350 So.2d 738 (1977).

Coker testified that no one indicated or suggested which photograph to select. He likewise testified that his in-court identification was based upon his view and observation of the robber at the time of the robbery, not upon the photographs or recognition of the appellant at the preliminary hearing. Even if a pretrial confrontation is conducted in a manner vio-lative of due process (which is not the case here), a later in-court identification should not be excluded if it is shown to have a source independent of the suggestive confrontation. Doss v. State, Ala.Cr.App., 333 So.2d 173 (1976). It is clear from the record as a whole and the totality of the circumstances that the source of Coker’s in-court identification of the appellant was his view of the appellant at the time of the robbery. Thus, the trial court did not err in allowing such testimony to go before the jury.

II

The trial jury was selected, sworn and empanelled without objection. After the verdict and judgment, appellant filed a motion for a new trial, raising for the first time the following two grounds:

“2) Defendant was tried by an all white jury in violation of the due process and equal protection clauses of the Constitution.
“3) The State struck all black members of the venire resulting in trial by an all white jury in violation of the due process and equal protection clause of the Constitution.”

It is unnecessary to rule on the merits of appellant’s contention relative to the State’s use of peremptive strikes resulting in an all white jury. We covered that subject thoroughly in a decision adverse to appellant’s position in Liptroth v. State, Ala.Cr.App., 335 So.2d 683, cert. denied, Ala., 335 So.2d 688 (1976). Rather, we find that the appellant’s challenge to the composition of the jury comes too late. A challenge to the composition of the jury must be made prior to trial, and such a challenge coming for the first time in a motion for a new trial comes too late and amounts to a waiver of the objection. Bowens v. State, 54 Ala.App. 491, 309 So.2d 844 (1974) cert. denied 293 Ala. 746, 309 So.2d 850 (1975); Brown v. State, 33 Ala.App. 97, 31 So.2d 670 (1946) cert. denied 249 Ala. 412, 31 So.2d 684 (1947).

The trial court committed no error in overruling the motion for a new trial.

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    In re Donald C. DeLOACH v. STATE of Alabama. Ex parte Donald C. DeLoach.
    77-311.
    Supreme Court of Alabama.
    July 21, 1978.
    J. Earl Langner, Birmingham, for petitioner.
    William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State.
   PER CURIAM.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

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

EMBRY, J., not sitting.


author: BOOKOUT, Judge. DeCARLO, Judge,

text:
    S. T. RICKMAN, alias v. STATE.
    6 Div. 540.
    Court of Criminal Appeals of Alabama.
    Jan. 24, 1978.
    Rehearing Denied Feb. 21, 1978.

      Ralph I. Knowles, Jr., of Drake & Knowles, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen. and Winston D. Durant, Asst. Atty. Gen. for the State, for appellee.
   BOOKOUT, Judge.

Illegal possession of cocaine; sentence: $300 fine and three years imprisonment.

The only issue presented concerns the warrantless stop and search of the appellant and his automobile. The State contends that the search was legal for it was made with probable cause coincidental with exigent circumstances, which is an exception to the warrant requirement. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973).

Lt. Lloyd Russell, a Tuscaloosa policeman and chief of the West Alabama Narcotics Squad, testified that around 11:30 A.M. on Sunday, June 6, 1976, he received a telephone call at home from an informer. The informer, Dwight Bingham, told Russell that he had been in the presence of the appellant the previous night, that appellant stated he was coming to Bingham’s house on Sunday to watch a basketball game on television, that he would arrive there by 3:00 P.M., and that he would be bringing cocaine with him. Russell said Bingham also told him that the appellant would be coming to Tuscaloosa from Eutaw, and told him the type automobile the appellant would be driving and the vehicle tag number.

After receiving Bingham’s call, Lt. Russell placed calls to various officers of the narcotics squad. He was able to assemble four officers at the squad office by 12:30 P.M. that day. Russell and the other officers then proceeded in four cars to the Foster’s exit on Interstate 59, arriving there at approximately 1:00 P.M. Around 4:15 P.M., the appellant was spotted coming onto the interstate highway. Officer H. M. Turner was directed by radio by another officer to stop the appellant’s automobile, which he did. By the time Lt. Russell arrived at the scene, Officer Turner had already searched the appellant. Turner said he found a small vial about two inches long in the left front pocket of appellant’s clothing which contained .219 grams (.00772 ounces) of cocaine. The automobile was searched, but no contraband was found.

Although Lt. Russell received the tip at 11:30 A.M. and had a squad of four cars assembled on the highway by 1:00 P.M., neither he nor any of his officers attempted to obtain a search warrant. Russell testified that it would have been possible, with a minimum of effort to have obtained a warrant on Sunday, having done so on weekends before. He said he did not attempt to do so on this occasion because he did not think he had enough information to establish probable cause to obtain a search warrant. Therefore, he assembled his squad on the highway and made the search without a warrant.

It is the State’s theory that probable cause arose when the informer’s tip was confirmed by officers seeing the appellant’s automobile traveling toward Tuscaloosa near the time specified in the tip. The State contends that the mobility of the automobile gave rise to exigent circumstances which, being coincidental with probable cause, permitted police to stop and search the appellant and his automobile without a warrant.

A key question is whether Lt. Russell had probable cause to secure a warrant at the time he received the tip. A second key question is whether exigent circumstances actually arose which prevented the officers from obtaining a warrant.

I

Could Lt. Russell have obtained a search warrant based upon the tip from his informant? We think so.

“Probable cause may be based solely upon information obtained from a reliable informant — hearsay information. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Clenney v. State, 281 Ala. 9, 198 So.2d 293 (1966). A tip may supply the basis for probable cause in and of itself where it discloses (1) some of the underlying circumstances which justify a conclusion that the informer is credible or his information is reliable, and (2) some of the underlying circumstances tending to demonstrate that, in the specific instance in question, he has drawn his conclusion of criminality in a reliable manner. Aguilar, supra. These two tests are the dual ‘prongs’ of Aguilar, the veracity prong and the basis of knowledge prong. They constitute the initial standard to be applied in assessing the probative value of an informant’s information. If the tip fails one of these prongs, the informant’s report may still constitute the sole basis for a finding of probable cause if the information provided is in such detail and minute particularity that a ‘magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way.’ This is the self-verifying tip. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). ...” Hatton v. State (1977) Ala.Cr.App., 359 So.2d 822.

In the instant case, we find the officer had received information from an informer with a record of reliability. Although Lt. Russell had made no other arrests based upon information given by Bingham, nevertheless the State and the defense through cross-examination established that Bingham had given Russell information on numerous occasions which had been checked out and proved to be correct. Our Supreme Court has held that “. . .no ‘batting average’ is required to establish the reliability of the informer. If the affiant so desires, he may cite prior instances of proven reliability, but it is not a requirement.” State ex rel. Attorney General, 286 Ala. 117, 237 So.2d 640 (1970); Clenney v. State, 281 Ala. 9, 198 So.2d 293 (1966).

In obtaining a search warrant in Alabama, very little is required of the affiant to prove the reliability of his informer. In fact, all that is required is a recitation that the information came from, “a person whose record of reliability for correctness has been good.” State ex rel. Attorney General, supra; Neugent v. State, Ala., 340 So.2d 52 (1976).

Lt. Russell’s sworn testimony that Bing-ham had given him information on several occasions which proved to be correct is certainly sufficient to meet the “veracity prong” of Aguilar, supra, as interpreted in State ex rel. Attorney General and Neugent, supra.

As to the “basis of knowledge prong,” it was the testimony of Lt. Russell that the informer told him that he was personally in the presence of the appellant the prior night when appellant told him he was bringing cocaine to Bingham’s house the next day, and that he was coming to watch a 3:00 P.M. basketball game on television. We deem this to be sufficiently reliable information. It tells us how the informer got his information — directly from the appellant, as opposed to a “rumor circulating in the underworld,” street gossip, or other unreliable source. Thus, we conclude that Lt. Russell had probable cause to obtain a search warrant if he had time to do so.

II

Did exigent circumstances arise coincidental with probable cause so as to prevent officers from obtaining a search warrant? We think not.

If Lt. Russell had probable cause to secure a warrant at the time he received the tip, he could not neglect to do so and then assemble a task force to await the development of an exigent circumstance which he had reason to believe would occur some three and one-half hours later. An exigent circumstance is a spur of the moment happening, not an expected circumstance which will happen hours later at a known point in time. Exigent circumstances are “now or never” situations where police must properly act to preserve evidence of a crime. Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973).

We fully recognize that automobiles present a peculiar and difficult problem in the area of search and seizure which did not exist at the time of the adoption of the Fourth Amendment. A so-called “automobile exception” to the warrant requirement has been judicially created through a line of cases beginning with Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). We likewise recognize that in some rare instances, probable cause to search may exist for some time prior to an exigent circumstance arising. Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) (a plurality opinion of four justices concerning the search of the exterior of a seized automobile). However, the instant case does not fall within one of the exceptions to the warrant requirement of the Fourth Amendment merely because an automobile happened to be involved. Warrantless searches are still considered as unreasonable per se unless the facts of a particular case bring it within one of a few “specifically established and well-delineated exceptions.” “The word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

If the State’s interpretation of exigent circumstances prevails, then the search warrant requirement of the Fourth Amendment would be meaningless as a practical matter. Police, having probable cause to obtain a search warrant, could merely keep a suspect under surveillance until at last he became mobile, and then leap forth and make a warrantless search.

Time is critical in cases where exigent circumstances prevent the officer from obtaining a warrant. In Kirkland v. State, Ala.Cr.App., 342 So.2d 806 (1977) exigent circumstances arose because the informants tip came at almost the same time the appellant was expected to be arriving in the vicinity carrying marijuana. The fact situations in Kirkland and the instant case are similar but distinguishable.

In Kirkland, the informant called the officer on a Sunday morning and stated that the.appellant was then in route from Florida to Dothan with approximately five pounds of marijuana in a 1973 green Chevrolet Vega stationwagon and would be arriving in Dothan “almost any time.” The officer then took immediate action upon the tip of his informant. He telephoned for assistance from another officer, but was unable to obtain it. He then drove directly to the appellant’s home and did not see the stationwagon. He immediately drove to a point on the highway from Florida coming into Dothan and set up surveillance by himself. He used his police radio to obtain the tag number of appellant’s vehicle from the state troopers. Around 2:00 P.M., he saw the appellant driving the vehicle in question and he then effectuated the search and seizure.

This court upheld the legality of the search and seizure in Kirkland on the grounds that it would have been foolish for the officer to leave his observation post and try to find a magistrate on Sunday to obtain a search warrant. In the instant case, there was no such problem. Here, there was ample time to obtain a search warrant. Even after the officers were placed in position on the highway, Lt. Russell could have left, gotten a warrant and returned before the expected time of arrival of the appellant. Lt. Russell testified that it was not necessary that he be at the scene of the arrest. In fact, he was not present at the time the appellant was stopped and searched, but arrived a few moments later.

There is no showing in the record that time was a critical factor in the instant case. Lt. Russell first testified that his informer told him the appellant could be coming to Tuscaloosa any time between noon and 3:00 P.M. However, he subsequently changed his testimony to state that the informant said the appellant would arrive by 3:00 P.M. Lt. Russell’s notes, written almost contemporaneously with the events in question, were used by him in testifying and were made an exhibit in the case by the defense. Those notes were to the effect that the informer said the appellant would arrive around 3:00 P.M. Likewise, Officer Turner testified that Lt. Russell told him the appellant was coming in at approximately 3:00 P.M. Turner stated that the officers went out ahead of that time in case the appellant came early.

Unlike the situation in Kirkland, here Lt. Russell testified that he would have had no difficulty in obtaining a warrant on Sunday. He was not conducting the surveillance by himself, but had four other officers assembled in four automobiles equipped with two-way radios. The evidence reveals no urgency of action as shown in Kirkland. Here, instead of taking immediate action upon the informer’s tip, Lt. Russell placed calls to members of his narcotics squad. They did not assemble on the highway or at the expected destination of the appellant. They assembled instead at the office of the narcotics squad and then drove to the point of surveillance on the highway, arriving some hour and a half after the tip was received. After establishing surveillance, two hours remained before the appellant’s expected time of arrival (or three hours and fifteen minutes before his actual arrival). This was ample time for Lt. Russell to have obtained a search warrant and returned to his men, which he stated he could have done.

The time frame in this case is easily distinguishable from that in Chambers v. Maroney, supra, and in Baker v. State, Ala.Cr.App., 340 So.2d 854, cert. denied, Ala., 340 So.2d 860 (1976). In Baker, supra, this court specifically stated: “The time frame in which the officers had to get a search warrant in this case after receiving the telephone call from the informer afforded no time to seek the issuance of a search warrant.” That statement could not be made about the instant case.

Ill

The State apparently contends that probable cause only arose when officers corroborated the tip by observing the appellant on the highway coming toward Tuscaloosa and that exigent circumstances then also arose.

Whether appellant’s presence on the highway was corroborative of the informer’s tip is not controlling here. There is no need to corroborate a tip which is from a reliable informer and is not lacking in sufficient information. Where the informer’s reliability is unknown or questionable, or where his tip is lacking in detail, probable cause may be established by corroborating the tip. This may be accomplished by an accumulation of innocent details conforming to the tip, per Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); and United States v. Brennan, 538 F.2d 711 (C.A. 5, 1976).

Although the appellant’s destination was known, officers did not set up their surveillance at that particular site (which would have been more corroborative of the tip), but instead selected a point on the interstate highway. We doubt that the appellant’s appearance on the highway at 4:15 P.M. would be of significant value for corroborating a tip that he was coming to Bingham’s residence by 3:00 P.M. Even if his presence on the highway at that late hour could be considered as an incriminating circumstance or detail corroborative of the tip, still there was no need for corroboration. As discussed in Section I above, the tip came from a reliable informer who obtained his information in a reliable manner. Neither was the tip lacking in information. Thus, Lt. Russell had sufficient probable cause to obtain a warrant on the basis of the tip without the need of corroborating its details.

After a hearing on the appellant’s motion to suppress the evidence obtained by the search in question, the trial court ruled in favor of the State, upholding the legality of the search. The appellant then waived a jury trial, and the case was submitted to the trial court upon the evidence presented on the motion to suppress. The trial judge found the appellant guilty and sentenced him in accordance with the recommendation of the district attorney. The search and seizure issue was therefore expedited to this court without the delay and cost necessitated by a jury trial.

Based upon the foregoing reasons and authorities cited, it is our opinion that the trial court should have granted the appellant’s motion to suppress the State’s evidence gathered as a result of the search and seizure in question.

Reversed and Remanded.

All the Judges concur except DeCARLO, J., dissents.

DeCARLO, Judge,

dissents.

The majority opinion in this ease states that a reversal is required because, first, exigent circumstances did not arise coincidental with the probable cause for the ensuing search, and two, Lt. Russell had ample time to obtain a search warrant.

It is true that even though an automobile is involved in a search situation without a warrant, that fact alone, does not demonstrate that exigent circumstances exist. Exigency evolves because of the circumstances created by the inherent mobility of automobiles. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000.

In my judgment, in examining exigent circumstances, two things must be taken into consideration. One, is where the automobile is located at the time of the attempted search, and two, whether the automobile is mobile or movable [operational].

The ability of an automobile to be moved to an unknown location or beyond the jurisdictional reach of police officers makes a resort to a search warrant impractical. It is this mobility of an automobile that has given rise to the court’s decision holding that if an officer has reasonable cause to believe an automobile contains contraband, then the officer may conduct a reasonable warrantless search. Carroll v. United States, supra. It is equally true that occupied automobiles stopped on the open highway may be searched without a warrant because they are mobile or movable. Carroll v. United States, supra.

In Coolidge v. New Hampshire, supra, the automobile although mobile, and movable, was located in the accused’s driveway, not on a public highway as in Chambers v. Maroney, supra; Carroll v. United States, supra, or located on a public parking lot as in Cardwell v. Lewis, supra. The impracticality of securing a search warrant because the automobile could have been moved did not exist in Coolidge v. State, supra. It is abundantly clear that there is significant constitutional difference between stopping, seizing, and searching a car on a open highway, and entering private property to seize and search an unoccupied, parked vehicle not being used for any illegal purpose.

In the present case we have a car stopped on a open highway in a mobile and movable condition [operational]. It is because of its inherent mobility on the highway that the circumstances of exigency are created. South Dakota v. Opperman, supra.

In my judgment, without question, this automobile stopped by Lt. Russell’s men on the highway was under exigent circumstances.

In Cardwell v. Lewis, supra, the Supreme Court observed:

“Assuming that probable cause previously existed, we know of no case or principle that suggests that the right to search on probable cause and the reasonableness of seizing a car under exigent circumstances are foreclosed if a warrant was not obtained at the first practicable moment Exigent circumstances with regard to vehicles are not limited to situations where probable cause is unforeseeable and arises only at the time of arrest. Cf. Chambers, id, at 50-51, 90 S.Ct., at 1980-81. The exigency may arise at any time, and the fact that the police might have obtained a warrant earlier does not negate the possibility of a current situation's necessitating prompt police action.” [Emphasis ours].

The validity of this search is not whether Russell and his fellow officers could have secured a warrant to search the appellant’s car. Rather, it is whether the search without a warrant was reasonable. Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730.

The validity of all searches and seizures must be determined from the facts and circumstances in each case in the light of the Fourth Amendment’s prescription of unreasonable search and seizure. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726.

The facts of the present case clearly established that the officers had reasonable cause to make the ensuing search. At the time the officers made the search, the facts and circumstances within their knowledge, and of which they had reasonable trustworthy information; was sufficient to warrant a prudent man in believing that the appellant was carrying contraband in his car. The majority opinion acknowledges that probable cause existed well in advance of appellant’s car being stopped.

Under the facts recited above, I am of the opinion that the search and seizure of appellant’s vehicle was under exigent circumstances. The car containing the contraband was mobile or movable and located on the open highway.

The fact that Lt. Russell could have obtained the warrant earlier, did not foreclose the officer’s right to search even though probable cause had existed for approximately five hours. Cardwell v. Lewis, supra.

Based on the foregoing, I respectfully dissent.


author:
BLOODWORTH, Justice.
      EMBRY, Justice

text:
    In re S. T. RICKMAN, alias v. STATE of Alabama. Ex parte State of Alabama ex rel. Attorney General.
    77-357.
    Supreme Court of Alabama.
    June 9, 1978.

      William J. Baxley, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen. for the State, for petitioner.
    Joseph G. Pierce, of Drake & Pierce, University, for respondent.
   BLOODWORTH, Justice.

We granted certiorari to review a decision of the Court of Criminal Appeals, 361 So.2d 22 which held that a motion to suppress the contraband seized should have been granted. It reversed and remanded. We reverse and remand its decision.

Briefly, the facts are these. The Chief of the West Alabama Narcotics Squad, Lt. Russell, testified that around 11:30 a. m. on a Sunday, he received a telephone call at his home from an informer with a record of reliability that defendant stated to him that he was coming to the informant’s house on Sunday to watch a basketball game on television and that he would arrive there, as Lt. Russell first testified, “between noon and 3:00 p. m.” and “by 3:00 p. m.,” as he subsequently testified. The informant told Russell that defendant would be bringing cocaine with him, that he would be coming to Tuscaloosa from Eutaw, what type automobile he would be driving and what was the vehicle tag number. After receiving the informant’s call, Lt. Russell placed calls to various officers of his narcotics’ squad and ordered them to assemble by 12:30 that day. Whereupon, the officers proceeded in four cars to an exit on 1-59 arriving there about 1:00 p. m. Around 4:15 p. m. defendant was spotted coming onto the interstate highway in the car described by, and with the tag number given by, the informant. Defendant was stopped, arrested, searched, and found in possession of cocaine. Lt. Russell testified it would have been “possible,” with “a minimum of effort” to have obtained a warrant on that Sunday.

Although the issue of probable cause is not before us for our review, the Court of Criminal Appeals found probable cause and we agree they are correct in that finding. Nevertheless, the Court of Criminal Appeals reversed the conviction because it said no “exigent circumstances” existed to justify the search and seizure. The Court of Criminal Appeals defined “exigent circumstances” as a “now or never” situation where police must act promptly to preserve evidence of a crime.

The question then is, were there “exigent circumstances” here to justify the warrantless search and subsequent seizure? Although this is a close case, we must say that we believe the answer to the question is “yes.”

The “exigent circumstances” here were the inherent mobility of the automobile, which often makes obtaining a judicial warrant impracticable if not impossible. Why is an automobile different?

“The answer lies in the diminished expectation of privacy which surrounds the automobile:
“ ‘One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects. It travels public thoroughfares where both its occupants and its contents are in plain view.’ Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) (plurality opinion).
“Other factors reduce automobile privacy. ‘All States require vehicles to be registered and operators to be licensed. States and localities have enacted extensive and detailed codes regulating the condition and manner in which motor vehicles may be operated on public streets and highways.’ Cady v. Dombrowski, [413 U.S. 433] at 441, 93 S.Ct. 2523, 37 L.Ed.2d 706. Automobiles periodically undergo official inspection, and they are often taken into police custody in the interests of public safety. South Dakota v. Opperman, [428 U.S. 364] at 368, 96 S.Ct. 3092, 49 L.Ed.2d 1000.”

United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).

Although an informant’s tip may be sufficient to substantiate “probable cause” it does not always mean that the officer can rely factually on the informant’s statement as to the exact time of arrival of the defendant. It seems to us that it was entirely reasonable here for the officers to place their stakeout as soon as possible for they could never be sure that the informant’s information as to the exact time of arrival would prove accurate or, on the other hand, that the defendant might not change his mind and come earlier than anticipated. In short, Lt. Russell really didn’t “know” when the defendant would appear. He testified, at first, it would be “between noon and 3:00 p. m.” and, later, “by 3:00 p. m.” As it turned out, the defendant was later by an hour than the latest expected time of arrival. Of course, he might have arrived just after noon. No one knew beforehand.

In U. S. v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950), the United States Supreme Court held, “The judgment of the officers as to when to close the trap on a criminal committing a crime in their presence or who they have reasonable cause to believe is committing a felony is not determined solely upon whether there was time to procure a search warrant. Some flexibility will be accorded law officers engaged in daily battle with criminals for whose restraint criminal laws are essential.”

To conclude, we think, under the circumstances of this case, there were “exigent circumstances” justifying the warrantless search and seizure.

We close with this caveat to all law enforcement personnel:

“ . . . The judicial warrant has a significant role to play in that it provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer ‘engaged in the often competitive enterprise of ferreting out crime.’ Johnson v. United States, 333 U.S. 10, 14, [68 S.Ct. 367, 92 L.Ed. 436] (1948). Once a lawful search has begun, it is also far more likely that it will not exceed proper bonds when it is done pursuant to a judicial authorization ‘particularly describing the place to be searched and the persons or things to be seized.' Further, a warrant assures the individual whose party is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search. Camara v. Municipal Court, 387 U.S. 523, 532, [87 S.Ct. 1727, 18 L.Ed.2d 930] (1967).
“Just as the Fourth Amendment ‘protects people, not places,’ the protections a judicial warrant offers against erroneous governmental intrusions are effective whether applied in or out of the home

United States v. Chadwick, supra.

REVERSED AND REMANDED.

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

EMBRY, J., dissents.

EMBRY, Justice

(dissenting).

I respectfully dissent. In my judgment, the decision of the Court of Criminal Appeals in this case is correct.


text:
    S. T. RICKMAN, alias v. STATE.
    6 Div. 540.
    Court of Criminal Appeals of Alabama.
    July 25, 1978.
   AFFIRMED on mandate of the Supreme Court of Alabama, 361 So.2d 28. No opinion.

All the Judges concur.


author: BOWEN, Judge.

text:
    Mary Lee LANGSTON v. STATE.
    4 Div. 638.
    Court of Criminal Appeals of Alabama.
    June 20, 1978.
    Rehearing Denied July 25, 1978.
    Don C. Dickert, Brundidge, for appellant.
    William J. Baxley, Atty. Gen. and Mary Jane LeCroy, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The appellant was convicted of murder in the first degree. This court, in an opinion written by the Honorable Leigh M. Clark, Supernumerary Circuit Judge, held that the trial court erred when it refused to allow the appellant to explain why she told investigating officers that she had not killed the victim. Accordingly the judgment of conviction was reversed and remanded. Langston v. State, Ala.Cr.App., 348 So.2d 273, cert. denied, Ex parte State ex rel. Attorney General, Ala., 348 So.2d 277 (1977).

On retrial the appellant was found guilty of murder in the second degree and sentenced to thirty years’ imprisonment. On appeal from this conviction the only question raised concerns the propriety of the admission into evidence of the knife which was the murder weapon. The appellant alleges that the weapon was illegally seized and that no consent was given for any search.

This question was decided adverse to the appellant in the opinion reversing her original conviction.

“By whatever name the manucapture of the towels and the knife may be called, there was nothing unconstitutional or otherwise illegal about it.” 348 So.2d 275.

The record in this case adequately supports this finding.

Therefore, having searched the record for error and having found none, we affirm the judgment of the trial court.

AFFIRMED.

All Judges concur.


author: WATSON, Judge.

text:
    Mrs. Walter ATKINSON et al. v. ALLSTATE INSURANCE COMPANY et al.
    No. 6531.
    Court of Appeal of Louisiana, Third Circuit.
    June 28, 1978.
    Rehearing Denied Aug. 15, 1978.
    Writ Refused Oct. 10, 1978.
    Davidson, Meaux, Sonnier & Roy, L. Lane Roy and Edward O. Taulbee, IV, Lafayette, for defendants-appellants.
    Nathan A. Cormie, Lake Charles, for plaintiff s-appellees.
    Voorhies & Labbe, Richard D. Chappuis, Jr., Lafayette, Caffery, Duhe, Oubre & Gib-bens, Jerry A. Oubre, New Iberia, Roy & Forrest, L. Albert Forrest, New Iberia, McBride & Brewster, Norman P. Foret, Lafayette, Lewis & Lewis, James T. Gugliel-mo, Opelousas, Allen, Gooch & Bourgeois, Paul J. Breaux, Lafayette, Richard R. Kennedy, Lafayette, Provost, Ernest & Schwing, James W. Schwing, New Iberia, Pugh & Boudreaux, Charles J. Boudreaux, Lafayette, for defendants-appellees.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   WATSON, Judge.

This is a suit for damages arising out of a multi-vehicular accident, which occurred October 12, 1975, on U.S. Highway 90 near New Iberia, Louisiana. Named as defendants were Irving J. East, one of those involved in the accident, and his insurer, Allstate Insurance Company. Allstate and East filed third party demands against numerous defendants. Five of these third party defendants, R. C. Spikes, Inc., Quang B. Dao, Merle H. Ruff, Joseph C. Bourque and Louis Comeaux, were granted summary judgments by the trial court. Allstate and East have appealed.

The issue is whether the trial court erred in granting the summary judgments.

The following facts are undisputed for purposes of this appeal:

On October 12, 1975, at approximately 8:00 a. m., Mrs. Walter Atkinson was proceeding west on U.S. Highway 90 with her visibility impaired by a dense fog and/or smoke bank. As she slowed her vehicle, it was struck from the rear by a vehicle owned by R. J. Reaux and driven by his wife, Emily. The Reaux vehicle was rear-ended by a vehicle driven by Irving J. East. A separate collision, involving an automobile owned by Spikes, Inc., and being driven by one of its employees, Dao, and a vehicle driven by Ruff, occurred in the vicinity of the Atkinson-Reaux-East accident. Vehicles driven by Bourque and Comeaux were also involved in accidents that morning in the same area.

Appellants contend that the affidavits filed by the parties moving for summary judgment failed to establish the lack of a material factual issue when statements not based on personal knowledge are eliminated.

The jurisprudence has established several clear rules to be observed in considering motions for summary judgment:

A party who seeks a summary judgment bears the burden of showing that there is no genuine issue of material fact. Any doubt as to granting the motion shall be resolved in favor of trial on the merits. Craft v. Trahan, 351 So.2d 277 (La.App. 3 Cir. 1977); Moreaux v. American Mutual Insurance Company, 302 So.2d 686 (La.App. 3 Cir. 1974), writ not considered, 307 So.2d 627 (1975). LSA-C.C.P. art. 967 concerning affidavits filed in support of motions for summary judgment, requires that affidavits shall be made on personal knowledge. The purpose of the requirement of “personal knowledge” is to limit the affidavit to facts which the affiant saw, heard, or perceived with his own senses. Hidalgo v. General Fire & Casualty Company, 254 So.2d 493 (La.App. 3 Cir. 1971). Portions of affidavits not based on personal knowledge of the affiant should not be considered by the trial court in deciding a motion for summary judgment. Hidalgo v. General Fire & Casualty Company, supra; Warden v. Southwest Louisiana Hospital Association, 300 So.2d 590 (La.App. 3 Cir. 1974); Manuel v. Shaheen, 316 So.2d 878 (La.App. 3 Cir. 1975).

An opponent to a motion for summary judgment cannot solely rely on the allegations or denials of his pleadings, but must file counter affidavits or give stated reasons why he cannot present facts by affidavits in support of his opposition to the motion. LSA-C.C.P. art. 967; Written v. Police Jury of Parish of St. Mary, 297 So.2d 708 (La.App. 1 Cir. 1974); Roach v. Liberty Mutual Insurance Company, 279 So.2d 775 (La.App. 1 Cir. 1973); writ denied 281 So.2d 756.

The mere possibility that an opponent could raise a factual issue does not defeat a summary judgment, if the opponent does not do so. Welsh Southern Oil Co. v. Scurlock Oil Co., 201 So.2d 376 (La.App. 3 Cir. 1967). In the absence of any counter affidavits, it must be assumed that there is no dispute with regard to the facts as set forth in the mover’s affidavits. Trahan v. Liberty Mut. Ins. Co., 348 So.2d 205 (La.App. 3 Cir. 1977), writ denied 351 So.2d 163; Joiner v. Lenee, 213 So.2d 136 (La.App. 3 Cir. 1968), writ refused 252 La. 960, 215 So.2d 129.

We now consider the evidence offered in support of the various parties’ motions for summary judgment:

SPIKES, INC.-DAO AND RUFF

The motion for summary judgment filed by Ruff was supported by the affidavits of Dao, Ruff, and Gerald Latiolais, the State Trooper who investigated the collisions. No counter affidavits were filed by Allstate. The third party demand filed by Allstate alleged that the Dao-Ruff collision blocked the highway and created a sudden emergency or hazardous condition, which made the East accident unavoidable.

Dao’s affidavit stated that he was driving a 1975 Datsun automobile owned by his employer, R. C. Spikes, Inc., on the morning of the accident. While proceeding in a westerly direction along U.S. Highway 90, his vehicle was suddenly struck from the rear by a 1970 Oldsmobile driven by Ruff. Following the impact, both drivers brought their vehicles to a complete stop and inspected for damages or injuries. Observing none, both drove their vehicles onto the right shoulder off the highway. After pulling completely off the highway, both drivers again got out of the vehicles to make further inspections and discuss the collision. While the vehicles were parked on the shoulder of the road, Dao heard the sound of another collision. At the time of this second impact, his vehicle and Ruff’s had been stopped and parked off the highway for several minutes.

The affidavit of Ruff gives basically the same factual picture. Ruff stated that, after he drove his vehicle off the highway onto the shoulder, he disembarked from his vehicle and walked to the passenger side of his automobile to get his wife and child out of the car. While outside his car, he heard the noise of a collision occurring on the highway near him and shortly thereafter the noise of another collision. Ruff stated he was not involved in these other collisions.

Officer Latiolais’ affidavit stated that, upon his arrival at the scene, he found two vehicles entirely off U.S. Highway 90 on the northern shoulder of the road. The two vehicles were a 1975 Datsun (Dao) and a 1970 Oldsmobile (Ruff). Both vehicles were stopped and parked at the time of his arrival.

The trial court apparently concluded that Dao and Ruff met their burden of proving that their vehicles did not contribute to the Atkinson-Reaux-East collision. The pertinent passages of the affidavits are all based upon personal knowledge of the accidents and could be considered by the trial court. They show that the Dao and Ruff vehicles were completely off the highway before any other collisions occurred, and did not create a hazard to other vehicles. The affidavits offered in support of the motions for summary judgment by Spikes, Inc.-Dao and Ruff are convincing that no genuine issue as to any material facts exists. There was no error in granting summary judgment in favor of Spikes, Inc.-Dao and Ruff.

BOURQUE

The affidavits of Bourque and Officer Latiolais were filed in support of Bourque’s motion for summary judgment. No counter affidavits were submitted by the opposing party. Appellants again contend that genuine issues of material fact exist. It is urged that these affidavits do not clarify certain material facts: whether the Bourque accident preceded the Atkinson-Reaux-East collision and blocked the highway; and whether the Bourque vehicle was a part of the Atkinson-Reaux-East collision.

Bourque’s affidavit recites that he was driving a 1972 Cadillac automobile in a westerly direction along U.S. Highway 90 on the morning in question. He observed a pedestrian on the right-hand side of the road attempting to flag down drivers. Immediately afterward, Bourque noticed a 1973 Oldsmobile stopped ahead of him in his lane of travel. He applied his brakes and came to a complete stop behind the Oldsmobile. While doing this, he heard the squealing of brakes behind him from a 1967 Buick, which was struck in the rear by a tractor-trailer rig. The tractor-trailer truck pushed the Buick to the right side of the road; the truck then jackknifed and struck the rear of Bourque’s automobile. This impact forced Bourque’s car into the Oldsmobile. Bourque stated that several other accidents occurred that morning but the only accident in which he was involved concerned these four vehicles.

Officer Latiolais’ affidavit states that several separate accidents occurred on U.S. Highway 90 that morning, but the Bourque accident was limited to the following parties: a 1973 Oldsmobile driven by Comeaux, a 1972 Cadillac driven by Bourque, a 1967 Buick driven by a David Robertson, a tractor-trailer rig owned by the Canal Refining Company and driven by Harold P. Castille, and a pedestrian named Willie J. Rollins. Latiolais’ investigation at the scene revealed that the Comeaux vehicle had apparently stopped on the highway because of previous accidents. After the chain of impacts occurred, the Comeaux and Bourque vehicles were pushed into the drainage ditch on the right side of the road.

The affidavits of Bourque and Latiolais establish that Bourque was not involved with the other accidents occurring that morning, because the Bourque vehicle ended up in the roadside drainage ditch. These statements were based upon personal knowledge of both the driver involved in the collision and the trooper who observed the positions of all the vehicles involved in accidents that day.

Appellants did not file any counter affidavits. Appellants chose to rely solely on the allegations of the third party demand in opposing the motion for summary judgment. Since the crucial facts were not disputed, it must be concluded that there was no genuine issue as to these facts. These facts negate the allegations that Bourque’s vehicle was blocking the highway, creating an unavoidable hazard, and that Bourque was a part of the Atkinson-Reaux-East collision. The uncontradicted facts are sufficient to support the trial judge's granting of summary judgment as to Bourque.

COMEAUX

Appellants’ brief does not specifically contest the summary judgment in favor of Comeaux. It is assumed that any argument would be similar to the one opposing Bourque’s dismissal. However, the affidavits offered in support of Comeaux’s motion again establish certain important facts. These affidavits were not contradicted other than by the allegations contained in the third party demand. The trial judge did not err in granting Comeaux’s motion for summary judgment.

For the above reasons, the judgments of the trial court; granting summary judgment to R. C. Spikes, Inc., Quang B. Dao, Merle H. Ruff, Joseph C. Bourque and Louis Comeaux; are affirmed with all costs of this appeal assessed to appellants, Irving J. East and Allstate Insurance Company.

AFFIRMED.

      . Other third party demands were filed but they are not at issue in this appeal.


author: CUTRER, Judge.

text:
    Shelly BRASSEAUX et al., Plaintiffs-Appellees, v. VERMILION PARISH POLICE JURY, Defendant-Appellant.
    No. 6536.
    Court of Appeal of Louisiana, Third Circuit.
    June 28, 1978.
    Rehearing Denied Aug. 15, 1978.

    Writ Refused Oct. 10, 1978.

      Broussard, Broussard & Moresi by Paul G. Moresi, Jr., Abbeville, for defendant-appellant.
    Allen, Gooch & Bourgeois, Joel E. Gooch, Lafayette, for plaintiffs-appellees.
    Before CULPEPPER, FORET and CUTRER, JJ.

       Foret, J., voted to grant a rehearing.

   CUTRER, Judge.

Plaintiffs, Shelly Brasseaux, Ralph Bras-seaux, and Wade Chauvin, brought this action against defendant, Vermilion Parish Police Jury, seeking reinstatement as commissioners of the Prairie Gregg Drainage District and for payment of past due salaries. Prior to trial plaintiff Wade Chauvin died and his heirs were not substituted as parties plaintiff in the suit. A trial on the merits resulted in a judgment reinstating Shelly Brasseaux and Ralph Brasseaux as commissioners of the drainage district. The judgment further awarded each plaintiff compensation in the amount of $60 per month for a period of time between their removal and their reinstatement. Upon a denial of a motion for a new trial, defendant appealed. We affirm the judgment of the trial court for different reasons.

The issues before this court are the following:

I. What does the term “agency” encompass as contained in Article VI, § 15 of the Louisiana Constitution of 1974?

II. Does this section grant to local governing authorities the unlimited power to remove individual members of the agencies created under its authority?

The essential facts of this matter are not contested. The Prairie Gregg Drainage District was established by the Vermilion Parish Police Jury pursuant to Act 159 of 1902 and Act 317 of 1910. This district is a drainage district located solely within Vermilion Parish. In 1974, the plaintiffs were made commissioners of said district. On February 3, 1975, the defendant voted to remove the plaintiffs as commissioners and plaintiffs were duly notified of this decision. The action of the defendant, in removing plaintiffs from their positions, was not done pursuant to a petition of landowners owning a majority of the acreage within the drainage district. Plaintiffs have received no remuneration relative to their former positions as commissioners of said district since their removal on February 3, 1975.

I.

Appellant contends that Article VI, § 15 of the 1974 Constitution applies to bodies such as the drainage district in question. The trial judge in his reasons for judgment stated that if the Constitutional Convention had intended for Article VI § 15 to apply to districts, it would have included the word “district” in that section since the word “district” was used in other sections in this particular article of the Constitution.

LSA-Const. 1974, article VI, § 15 provides:

“The governing authority of a local governmental subdivision shall have general power over any agency heretofore or hereafter created by it, including, without limitation, the power to abolish the agency and require prior approval of any charge or tax levied or bond issued by the agency.”

The source provision for the above article was Article XIV, § 46 of the 1921 Constitution. Paragraph A of § 46 utilizes the terms “board”, “commission”, “agency”, “district”, “office”, “government”, or “any device whatever having governmental functions, power or authority” in describing those bodies created or established by governing authorities of a parish or municipality. In the last sentence of Paragraph A, the word “agency” is used twice to refer to the various enumerated bodies listed above. The Louisiana Constitution of 1974 does not specifically define the term “agency” as it is used in the article dealing with local government. See LSA-Const. 1974, art. VI, § 44. However, the discussion at the constitutional convention relative to the language of this section reflects - that the term “agency” was intended to include special districts such as drainage, lighting, road, and hospital service districts. See State of Louisiana, Constitutional Convention of 1973, Verbatim Transcripts, Vol. XVIII, pp. 71-73 (56th day, September 28, 1973).

In interpreting the 1974 Constitution, the courts of this state have referred to the official proceedings and transcripts of the Constitutional Convention. See State, Through the Department of Highways v. Olinkraft, Inc., 350 So.2d 865 (La.1977); Davenport v. Hardy, 349 So.2d 858 (La.1977); Hainkel v. Henry, 313 So.2d 577 (La.1975); and Gonzales v. Xerox Corporation, 320 So.2d 163, footnote 1 (La.1975).

Based upon a review of the language contained in the similar article in the 1921 Constitution and the deliberations of the 1973 Constitutional Convention, we conclude that the term “agency” as used in Article VI, § 15 of the 1974 Constitution encompasses the same bodies as were enumerated in Article XIV, § 46 of the 1921 Constitution. Therefore, drainage districts such as the Prairie Gregg Drainage District would be included within the scope of this section.

II.

We next consider the question of whether Article VI, § 15 of the 1974 Constitution grants to local governing authorities the unlimited power to remove members of agencies created by them. The trial court did not address this issue upon a finding that the above section did not apply to districts. The trial judge did find that LSA — R.S. 38:1609 provided the only legal means for removing plaintiffs, and the requirements of this provision were not met by the defendant.

Appellant contends that the “general power” granted in Article VI, § 15 gives the local governing authorities the right of removal of members. Furthermore, appellant urges that the debates on this section establish that this grant of authority included the right of removal. It is the position of appellees that LSA-R.S. 38:1609 provides the only legal authority for their removal and since the provisions of this statute were not complied with, the appellees are entitled to be reinstated as commissioners of the drainage district.

Article XIV, § 46 of the 1921 Constitution added in 1966, stated that where the governing authority of the parish or municipality created or established any board, commission, etc., such governing authority was authorized to abolish these boards, commissions, etc. This provision was interpreted in the case of Giammanco v. Pizzolato, 275 So.2d 880 (La.App. 4th Cir. 1973), app. denied, 279 So.2d 690 (La.1973). The court was faced with the issue of whether Article XIV, § 46 A gave police juries the right to remove individual members of boards or agencies created by it. In that case, plaintiffs were removed from their positions as commissioners of a hospital service district before the end of their terms of office. The police jury asserted that this section gave police juries the power to remove these commissioners. The Fourth Circuit held ’that Article XIV, § 46 A simply gave a parish or municipal governing authority the right to abolish boards, commissions, agencies, etc., created by it. The court stated that this section was concerned with the abolishment of an entire board or agency and not with the removal of individual board personnel. The Louisiana Supreme Court denied defendant’s application for writs stating that there was no error of law. Both decisions were rendered prior to the 1973 Constitutional Convention debates on Article VI, § 15.

The official journal of the Constitutional Convention of 1973 reveals that Art. VI, § 15 as originally reported out of committee reads as follows:

“(A) In addition to any other powers granted by the legislature, the governing authority of a local governmental subdivision shall have the following discretionary powers over any agency heretofore or hereafter created by it: (1) to appoint and remove members of the governing body of the agency; (2) to exercise budgetary and fiscal control over the agency, including the power to modify or veto its operating budget, veto or reduce line items, or substitute a different budget therefor; (3) to abolish the governing body of the agency and substitute itself therefor, with authority to exercise all of its powers and perform all of its functions; and (4) to abolish the agency if the obligations or indebtedness of the agency are not thereby impaired.
“(B) No such agency shall have authority to levy a tax, impose any charge, or issue bonds unless the proposal therefor is first approved by the governing authority of the local governmental subdivision, and the requirements of this constitution and applicable laws relative to the levy of taxes and the issuance of bonds are complied with. However, after such original approval is granted no further approval shall be required.
“(C) If the creation of the agency required the concurrence of two or more local governmental subdivisions, concurrence of all of them shall be required for the exercise of the above powers.” (Emphasis supplied)

The above proposal was amended on the floor of the convention and the provision granting the power of removal was deleted. See Official Journal of the Proceedings of the Constitutional Convention of 1973 of the State of Louisiana, Vol. I, pp. 5-7 (56th day, September 28, 1973). The final language of Article VI, § 15 states in pertinent part that these governing authorities “shall have general power over any agency . including, without limitation, the power to abolish any such agency and to require pri- or approval of any charge or tax levied, or bond issued by such agency.”

When a provision of a previous Constitution, which has been interpreted and acquired a fixed meaning, is incorporated into a new Constitution with only slight modifications in verbiage, it should be understood as having been incorporated with the meaning which the jurisprudence has attached to it. The State of Louisiana ex rel. DaPonte v. The Board of Assessors, 35 La.Ann. 651 (La.1883); State v. Glenn, 153 La. 147, 95 So. 534 (La.1923); Kuhn v. Louisiana Highway Commission, 174 La. 990, 142 So. 149 (La.1932).

The language of Art. XIV, § 46 A of the 1921 Constitution, authorizing the right to abolish, has been interpreted as not giving local governing authorities the right to remove individual members of agencies. Giammanco v. Pizzolato, supra. The right of removal was originally inserted into committee version of Art. VI, § 15 of the 1973 Constitutional Convention. The committee proposal was amended, however, and the language authorizing the right of removal was deleted. In view of these circumstances, we conclude that the interpretation of the Giammanco case controls in this situation. The right to abolish an agency does not include the power to remove individual members. We do not feel that the insertion of the words “general power”, after deleting the power to remove, had the effect of changing the interpretation reached in Giammanco, supra.

In the present case the defendant admittedly did not comply with the provisions of LSA — R.S. 38:1609 relative to the removal of commissioners. Since we hold that Article VI, § 15 did not grant defendant the unlimited power to remove members of bodies created by it, the plaintiffs are entitled to be reinstated as commissioners of the Prairie Gregg Drainage District.

For the above reasons, the judgment of the trial court reinstating plaintiffs as commissioners of the drainage district and ordering compensation is affirmed. Costs of this appeal are assessed to defendant-appellant.

AFFIRMED.

      . “A. In any case where the governing authority of any parish or municipality shall have created or established, or shall hereafter create or establish, any board, commission, agency, district, office, government, or any device whatever having governmental functions, power or authority, such governing authority is hereby authorized to abolish same, and where the creation or establishment required the concurrence of two or more governing authorities, the concurrence of all of them shall be necessary to exercise the authority afforded by this Section; provided, that where any indebtedness of any such board, commission, agency, district, office, government, or any device whatever having governmental functions, is outstanding, the authority herein provided shall not be exercised until provision is made for the assumption of such indebtedness in the manner provided by law. All appointments to the Board of Commissioners of each such agency, whether presently or hereafter created shall be made by the parochial or municipal governing authority or authorities which created said agency.
      “B. In any case where the governing authority of any parish or municipality shall have created or established, or shall hereafter create or establish, any board, commission, agency, district, office, government or any device whatever having governmental functions, power or authority, such governing authority is hereby authorized to provide appropriate budgetary and fiscal controls over said agency or creature. Budgetary and fiscal control shall include, but not be limited to, approval of operating budgets with the right to veto or reduce line items. In addition, no such agency or creature shall exercise any power or authority to submit to the people any proposal to levy any tax or issue any bonds unless the proposal therefor first has been submitted to and been approved by the governing authority of the parish or municipality, as the case may be. The governing authority of the parish or municipality shall exercise such other budgetary and fiscal controls as are necessary and proper to ensure the maximum feasible coordination of government on the local level.”

      . “Any commissioner of a drainage district may be removed for cause by the police jury appointing the commissioner, upon petition of landowners owning a majority of the acreage in the district. The police jury shall without delay appoint a commissioner to fill the unexpired term of the one so removed, and the appointment shall be made in the manner provided in R.S. 38:1608. Failure or refusal of a commissioner to perform any or all of the duties prescribed by this Part, or his ceasing to possess the qualifications prescribed in R.S. 38:1607, or incompetency, dishonesty, or favoritism on the part of a commissioner, shall be good cause for removal. A commissioner shall always have the right to have the court pass upon the legality of his removal.”

      . Art. VI, § 15 was derived from committee proposal 17, section 17.

      . An examination of the debate on this section reveals that one of the sponsors of the amendment to the section felt that the language contained in the present section covered the right to appoint and remove members which right was specified in the original committee proposal. However, he later states that the right of removal was included in Article XIV, § 46 of the 1921 Constitution. Apparently the person expressing this opinion was not considering the Giammanco opinion which had been rendered a few months before the convention. See State of Louisiana, Constitutional Convention of 1973, Verbatim Transcripts, Vol. XVIII, pp. 82-83 (56th day, September 28, 1973).