text:
    Willie FLEMING, Appellant, v. STATE of Florida, Appellee.
    No. AA-96.
    District Court of Appeal of Florida, First District.
    June 10, 1976.

      Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Pursuant to a plea bargain, appellant plead guilty to the crime of robbery and the state, for its part recommended to the trial court that appellant be sentenced to a term of 18 years. The trial court imposed a sentence of 20 years.

In this case, as in Adams v. State, the trial court informed the appellant that the court was not bound by the state’s recommendation, but the trial court failed to inform the appellant that it could not concur with the bargain. Repeating what was said in Adams:

“ . . . We do not conceive that a sentencing judge may knowingly receive a plea which is the product of a bargain with the prosecutor and yet declare himself independent of the bargain, so avoiding by finesse the provisions of Rule 3.171(c), R.Cr.P.”

With all due deference to the trial judge, who was without the benefit of this court’s opinion in Adams v. State, supra, at the time of the proceedings in the instant case, the sentence is vacated and the cause remanded so the trial court may either impose sentence in accordance with the plea bargain, or vacate the judgment and allow appellant to withdraw his guilty plea.

Reversed and remanded.

RAWLS, Acting C. J., and MILLS and SMITH, JJ., concur.

      . Adams v. State, 328 So.2d 48 (Fla.App.1st, 1976).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John De BAUN, Appellant, v. Winifred J. De Baun MICHAEL, Appellee.
    No. 75-1778.
    District Court of Appeal of Florida, Second District.
    June 9, 1976.

      Charles R. Holley, Naples, for appellant.
    Ray A. Morrissey, Jr., Naples, for appel-lee.
   PER CURIAM.

The issue raised by this appeal is the propriety of an order amending a judgment of dissolution of marriage nunc pro tunc.

Appellant/husband, who initiated the dissolution proceeding, had requested an adjudication of all rights of the parties in their real, business and personal property. The wife counterclaimed for a special equity in a jointly held trailer park, as well as for alimony and custody of the couple’s minor child.

At the final hearing on July 8, 1975, the trial court was informed that the parties had entered into a stipulation which they had not yet reduced to writing. Counsel for the wife then dictated into the record the oral agreement settling the rights of the parties with respect to two jointly held residences and the trailer park, and the issues of custody and child support. It was agreed that the wife would manage the trailer park for compensation, but the amount thereof was not specified. This stipulation was to be incorporated into a “further agreement” to be submitted to the court as soon as possible. Counsel for the husband stated that the final judgment dissolving the marriage was to be executed that day and the “other matters” were to be reserved at the court’s discretion. Testimony of the parties established their concurrence in the stipulation.

The final order, signed by the judge and approved by both parties, contained a provision reserving jurisdiction to adjudicate all matters relating to property settlement, support, alimony, attorney’s fees, costs, and suit money at a later date.

In October 1975 the appellant filed motions requesting relief from the stipulation on various grounds, an accounting of the appellee’s management of the trailer park, the production of records relevant thereto, leave to amend his pleadings, and a trial on those matters as to which the court had reserved jurisdiction. Appellee cross-filed a motion for a restraining order.

Arguments were heard on November 10, 1975, but the lower court declined to rule on the motions. Instead, he found that he had not intended to retain jurisdiction to consider these matters, and that the reservation of jurisdiction in the final judgment was the result of a clerical error. Therefore, ostensibly pursuant to Rule 1.540(a), RCP, the court on its own motion then entered an order nunc pro tunc amending the final judgment of July 8, 1975, by striking the paragraphs reserving jurisdiction and substituting a new paragraph ratifying the stipulation of the parties. This appeal ensued. We reverse. •

It has long been settled that the function of an entry nunc pro tunc is to correct the record to reflect a prior ruling made in fact but defectively recorded. This indeed is the underlying rationale of Rule 1.540(a), supra. However, where an order does not merely correct clerical errors or omissions, but actually modifies the substance of a prior ruling or of itself constitutes a ruling not previously made in fact, it should not be given retrospective effect.

The record reflects that the parties intended to enter into a written stipulation incorporating what had been agreed upon in open court. Since the dissolution was being granted at that time, it was advisable for the judgment of dissolution to contain a specific reservation of jurisdiction in order that no one could question the propriety of a subsequent judgment which would contain the subject matter of the stipulation. The order of November 10, then, did not correct a “mistake”; rather it adjudicated anew. Specifically, the court attempted retrospectively to renounce jurisdiction it had previously expressly reserved. This it cannot do.

Accordingly, the order appealed from is reversed, and the cause is remanded for the court to hold a further hearing to adjudicate the matters reserved in the judgment of dissolution. At this hearing the court will have the opportunity to consider the appellant’s plea for relief from the stipulation and at the same time to decide whether the stipulation or any portion thereof should be incorporated into the final judgment and to decide any other matters which are included within the reservation but not covered by the stipulation.

McNULTY, C. J., and HOBSON and GRIMES, JJ., concur.

      . “(a) Clerical Mistakes. Clerical mistakes in judgments, decrees or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders. . . . ”

      . See, e. g., R. R. Ricou & Sons Co. v. Merwin (1927), 94 Fla. 86, 113 So. 745; Florida Development Co. v. Polk County National Bank (1919), 76 Fla. 629, 80 So. 560; Becker v. King (Fla.App. 4th, 3975), 307 So.2d 855.

      . See Floyd v. Floyd (Fla.App. 3d, 1973), 281 So.2d 63; McKendree v. McKendree (Fla.App. 1st, 1962), 139 So.2d 173.

      . See Hyman v. Hyman (Fla.App. 2d, 1975), 310 So.2d 378.


text:
    K. M. JONES, Appellant, v. L. J. MOSS et al., Appellees.
    No. AA-465.
    District Court of Appeal of Florida, First District.
    May 26, 1976.
    Theodore R. Bowers, Panama City, for appellant.
    J. Paul Griffith and Herman D. Lara-more, Marianna, for appellees.
   PER CURIAM.

This interlocutory appeal, having been found to be without substantial merit, is hereby dismissed pursuant to Florida Appellate Rule 4.2 c.

RAWLS, Acting C. J., and MILLS and SMITH, JJ., concur.


author: MILLS, Acting Chief Judge.

text:
    Jesse Edward PITTS, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Z-355.
    District Court of Appeal of Florida, First District.
    May 24, 1976.

      Richard W. Ervin, III, Public Defender, Michael J. Minerva, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Carolyn M. Snurkowski, Asst. Atty. Gen., for ap-pellee.
   MILLS, Acting Chief Judge.

Pitts was charged with breaking and entering with intent to commit grand larceny. A jury found him guilty as charged. He appeals from an adjudication of guilt and sentence to imprisonment.

Pitts contends that the trial court erred in permitting the State to introduce a taped statement of a witness produced by the State for the purpose of impeaching the witness’ credibility. We agree.

Arnold, who was Pitts’ codefendant, but had pled guilty and been sentenced before Pitts’ trial, was called as a witness for the State. He testified that he could not remember if Pitts participated in the burglary. The State contended that Arnold’s testimony caught it by surprise, because it was inconsistent with his taped testimony, and that he was a hostile witness. The trial court permitted the jury to hear his taped statement, cautioning the jury that the statement was for the purpose of determining the credibility of the witness, and not for use as substantive evidence.

In the taped statement, Arnold said that Pitts was involved in the planning and perpetration of the burglary. He also told of other crimes in which he and Pitts were involved. The prosecutor concluded the playing of the tape but asking that it be cut off, because the rest of it involved a bunch of crimes which Arnold and Pitts committed which were unrelated to the crime being tried.

The objections made by Pitts’ attorney were overruled, and his motions for mistrial and judgment of acquittal were denied.

During closing argument, the prosecutor relied upon and referred to the statement as substantive evidence.

A party producing a witness may not impeach his credibility, unless the witness proves adverse. Then the party producing him may prove that he made a statement inconsistent with his present testimony. Section 90.09, Florida Statutes.

Under this statute, impeachment is permitted only in cases where the party’s witness surprises him by failing to give the beneficial evidence expected of him, and becomes adverse by giving harmful evidence that is contrary to what was expected. Adams v. State, 34 Fla. 185, 15 So. 905 (1894).

Although a witness is properly impeached by proof of a conflicting statement, the conflicting statement may not be considered as substantive evidence. Adams v. State.

Although Arnold did not testify as the State expected, he did not give harmful testimony. He never said more than he could not recall if Pitts participated in the burglary. He was not an adverse witness. Sylvester v. State, 46 Fla. 166, 35 So. 142 (1903). Therefore, the impeachment of Arnold was prejudicial error. In fact, the State never claimed he was more than hostile. A witness who is merely hostile may not be impeached by the party calling him. Johnson v. State, 178 So.2d 724 (Fla.App.2d, 1965).

When a witness testifies that he does not remember what happened, the State may not use a prior statement of the witness to present substantive evidence to the jury. Rankin v. State, 143 So.2d 193 (Fla.1962). Although the court properly admonished the jury, the prosecutor nevertheless referred to the statement and used it as substantive evidence. This was error.

Those parts of the statement referring to prior crimes were inadmissible and prejudicial. Lucas v. State, 257 So.2d 261 (Fla.App.1st, 1971).

The judgment and sentence is reversed and this case is remanded for a new trial.

SMITH, J., and EASTMOORE, E. L., Associate Judge, concur.


author: BY THE COURT.

text:
    Bernard LUCAS, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. AA-233.
    District Court of Appeal of Florida, First District.
    May 26, 1976.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   BY THE COURT.

Upon considering the briefs and the record, we find no reversible error.

Accordingly, the judgment of conviction and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    Herbert B. CHEESBRO, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. BB-187.
    District Court of Appeal of Florida, First District.
    May 26, 1976.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, Herbert B. Cheesbro, in pro. per. for appellant.

      Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   BY THE COURT.

Upon considering the briefs and the record, we find no reversible error.

Accordingly, the order appealed is affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


author: GRIMES, Judge.

text:
    Mary ALLBRIGHT, Appellant, v. Sharon A. HANFT et al., Appellees.
    No. 75-1537.
    District Court of Appeal of Florida, Second District.
    June 11, 1976.

      Thomas F. Granahan, P. A., Tampa, for appellant. .
    H. Shelton Philips, Kaleel & Kaleel, P. A., St. Petersburg, for appellees.
   GRIMES, Judge.

This is an appeal from an order granting a motion to dismiss.

According to the complaint, Mary All-bright was injured when an automobile owned by Sharon Hanft and driven with her permission by Larry Lancaster negligently ran into Ms. Allbright’s home in Gwinnett County, Georgia. Allbright sought damages from Lancaster and Hanft and from Hanft’s insurance carrier, State Farm Mutual Automobile Insurance Company. Hanft and State Farm filed a motion to dismiss predicated upon a decision rendered by the Georgia Court of Appeals in a prior suit brought by Allbright against Lancaster and Hanft arising out of the same accident. Hanft v. Allbright, 1974, 132 Ga.App. 263, 208 S.E.2d 20. The court concluded that it was bound by the findings of fact expressed by the Georgia Court of Appeals under principles of res judicata and dismissed the complaint as to Hanft and State Farm.

The Georgia opinion quoted in its entirety reads as follows:

“The single issue here is the applicability of the Georgia Nonresident Motorists’ Act, Code Ann. § 68-801, to a nonresident whose automobile operated by a third party was involved in a collision causing property damage and personal injury. The Nonresident Motorists’ Act authorizes substituted service upon a nonresident growing out of an accident or collision in which any ‘such nonresident minor may be involved by reason of the operation by him, for him, or under his control or direction, express or implied, of a motor vehicle anywhere within the territorial limits of the State of Georgia . . . ’ Code Ann. § 68-801. The Nonresident Motorists’ Act must be strictly construed as it is in derogation of the common law. Mull v. Taylor, 68 Ga.App. 663, 670, 23 S.E.2d 595. Here, the appellant attacked the applicability of the service upon her by a motion to dismiss the complaint for insufficiency of service and lack of jurisdiction over the person and supported it by affidavit. It is beyond dispute that the appellant was not operating the car or riding in the car when the collision occurred in Georgia; that she was in Florida at the time her vehicle was involved and had no knowledge that her car was in Georgia and had not granted the driver permission to drive her car to Georgia. In opposition, plaintiffs submitted the affidavit of the driver, the other defendant Lancaster, who averred that he had blanket permission from the appellant to operate the car anytime and anywhere he wished. Nonetheless it is undisputed that Lancaster was not on any mission for appellant in Georgia and that he had brought it to this state without her knowledge. Therefore, it cannot be said that the vehicle was being operated for appellant, under her control or direction, express or implied. Thus the Nonresident Motorists’ Act has no applicability to her and the service of process under its provisions is invalid. The judgment is reversed with direction that the complaint be dismissed as to appellant.
Judgment reversed with direction.”

Sometime after the issuance of that opinion, the Georgia trial court entered a default judgment against Lancaster for $22,500.

Allbright contends that the Georgia judgment cannot be given res judicata effect because that very court determined that it had no jurisdiction over Hanft. In support of this position, Allbright argues that a judgment entered by a court without jurisdiction cannot be res judicata. However, all of the cases cited for this proposition are those in which the court entering the judgment either had no jurisdiction over the subject matter or clearly never acquired jurisdiction over the defendant. E. g., Florida Nat. Bank v. Kassewitz, 1946, 156 Fla. 761, 25 So.2d 271. Where a party specially appears and unsuccessfully contests the court’s jurisdiction over him, he is bound by any judgment ultimately entered against him. Baldwin v. Iowa State Traveling Men’s Association, 1931, 283 U.S. 522, 51 S.Ct. 517, 75 L.Ed. 1244.

While the Georgia court ultimately concluded that it had no jurisdiction over Hanft, that court did have jurisdiction to decide whether it had jurisdiction over Hanft. On the other hand, it is well settled that a judgment rendered on any grounds which do not involve the merits of the action may not be used as the basis for the operation of the doctrine of res judica-ta. Kent v. Sutker, Fla.1949, 40 So.2d 145; Lake v. Hancock, 1896, 38 Fla. 53, 20 So. 811. The Georgia court only decided that it had no jurisdiction over Hanft. Therefore, this judgment cannot be res judicata with respect to the question of whether Allbright has a cause of action for damages against Hanft.

A more difficult question is whether Allbright is bound by the factual determinations made in the Georgia case under the doctrine of collateral estoppel. We think not, because this doctrine is only applicable to preclude a relitigation of issues which were actually litigated and determined. Even though some of the facts relied upon by the Georgia court in reaching its decision on jurisdiction are also pertinent with respect to the issue of Han ft’s liability under the Dangerous Instrumentality Doctrine, the issue actually tried in Georgia is not the same as the one to be tried here. Therefore, Allbright should not be bound by the facts set forth in the Georgia opinion.

REVERSED.

BOARDMAN, Acting C. J., and SCHEB, J., concur.

      . Apparently recognizing that she must ultimately face the defense of res judicata, Allbright has not questioned the propriety of the court having granted the motion to dismiss even though the existence of the Georgia decision did • not appear on the face of the complaint. See BOP 1.110(d).


author: HENDRY, Judge.

text:
    Murray COHEN et al., Appellants, v. Murray COHEN, as Executor of the Estate of Joseph Schwartz, Deceased, and Helen Adler, Appellees.
    No. 75-932.
    District Court of Appeal of Florida, Third District.
    May 25, 1976.

      Kurt Wellisch, Coral Gables and Jerry Green, Jr., Miami, for appellants.
    Hylan H. Kout, Miami Beach, for appel-lees.
    Before HENDRY and NATHAN, JJ., and LESTER, M. IGNATIUS, Associate Judge.
   HENDRY, Judge.

Appellants, plaintiffs below, living beneficiaries under a joint and mutual last will and testament, appeal a final judgment entered by the circuit court dismissing their complaint for declaratory judgment, specific performance, and damages.

On March 29, 1968, Joseph and Jean Schwartz, husband and wife, executed a joint and mutual will which included, inter alia, the following provision:

“We ... do make, publish and declare this to be our joint and mutual Last Will and Testament, and do hereby expressly revoke all other Wills and Codicils and testamentary papers at any time heretofore made by us, and do hereby covenant with each other to abide by each of our Wills as herein made and herein expressed, and covenant not to make any Will or Codicil different from this after the death of either of us and do consent to the making of this Will, and we do each consent to the Will of the other leaving to the other more or less than the one-half of his or her property to which he or she would otherwise be entitled by law.”

Also, by the will, the joint testators bequeathed and devised his or her entire estate to the survivor of them, and, upon the death of both, the entire estate was to be “divided equally, share and share alike” among five named persons, Rhoda Jacobs, Mildred Bachrach, Victor Cohen, Murray Cohen, and Allan Schwartz. Rhoda, Mildred, and Allan were nieces and nephew by blood relationship to Joseph Schwartz, and Victor and Murray were nephews by blood relationship to Jean Schwartz.

On August 22, 1970, Jean Schwartz died without ever having changed the will. Subsequently, Allan, one of the five named legatees, died. Thereafter, on July 6, 1971, Joseph Schwartz, the surviving husband of Jean, executed a codicil to the March 29, 1968, will wherein he acknowledged, the death of Allan and bequeathed his entire estate equally, to share and share alike, to the four surviving legatees under the original will and Helen Adler, his sister-in-law. Subsequently, on September 11, 1971, Joseph died, and on October 20, 1971, the joint and mutual will of Joseph and Jean and the codicil executed by Joseph were admitted to probate in the County Judge’s Court.

On July 17, 1974, appellants, the four surviving legatees under the original will, filed a complaint in the circuit court seeking a declaratory judgment, specific performance, and damages against appellees, Murray Cohen, as executor of the estate, and Helen Adler. Appellants alleged, basically, in their complaint that the agreement in the will, set forth above, for Joseph and Jean to make a joint and mutual will was, in itself, a legally binding contract which was breached by the codicil executed by Joseph. The complaint sought a declaratory judgment that the codicil was void or that it breached a pre-existing contract not to execute such a codicil; to require appel-lees to perform the contract; and damages.

After a nonjury trial, the trial court entered a final judgment in favor of appel-lees which reads in pertinent part as follows :

“1. That on March 29, 1968, Joseph Schwartz and Jean Schwartz, his wife, executed a joint and mutual will wherein they bequeathed and devised his or her entire estate to the survivor of them, and upon the death of both of them, the entire estate be devised and bequeathed equally, share and share alike, between five persons, namely Rhoda Jacobs, Mildred Bachrach, Victor Cohen, Murray Cohen, the plaintiffs herein; and Allan Schwartz; that the said Rhoda Jacobs, Mildred Bachrach and Allan Schwartz were nieces and nephew by blood relationship of Joseph Schwartz and Victor and Murray Cohen were nephews by blood relationship of Jean Schwartz.
“2. That in August, 1970, Jean Schwartz, wife of Joseph Schwartz died.
“3. That subsequent to the death of Jean Schwartz, Allan Schwartz, one of the five named legatees in the joint and mutual will of said Joseph Schwartz and Jean Schwartz, died.
“4. That on July 6, 1971, Joseph Schwartz, surviving husband of Jean Schwartz, executed his codicil to his last will and testament of March 29, 1968, as aforesaid, wherein he acknowledged the death of Allan Schwartz, his nephew, and bequeathed his entire estate to the four plaintiffs herein and to the defendant, Helen Adler, his sister-in-law, equally, share and share alike.
“5. That on September 11, 1971, the said Joseph Schwartz died in Miami Beach, Florida, and on October 20, 1971, upon the petition of Plaintiff, Murray Cohen, the named executor in said joint and mutual will of Joseph Schwartz and Jean Schwartz of March 29, 1968 and the codicil of Joseph Schwartz of July 6, 1971, was admitted to Probate in the County Judge’s Court, in case no. 71-3975.
“6. That it was the intent of said Joseph Schwartz and Jean Schwartz, his wife, deceased, to bequeath and devise their estate so that each of the five legatees named in their joint and mutual will should receive one-fifth of their estate.
“7. That each of the Plaintiffs, herein have a one-fifth interest in the Estate of Joseph Schwartz, deceased, pursuant to the provisions of his codicil of July 6, 1971, and therefore have not suffered any damages.
“8. That the said Joseph Schwartz, deceased, did not commit a fraud by the execution of his codicil of July 6, 1971.
“9. That under equitable principles, the codicil of Joseph Schwartz, deceased, was effective; and that this was no violation of the contract which may be deemed to have existed by the execution of the joint and mutual will of said Joseph Schwartz, and Jean Schwartz, his wife.

From the final judgment, appellants appeal.

Appellants raise the following four points on appeal: (1) whether the law of Florida and the weight of the evidence taken at trial supports the finding by the trial court that the July 6, 1971, codicil was not in violation of the contract which may be deemed to have existed by the execution of the March 29, 1968, joint and mutual will of Joseph and Jean Schwartz, (2) whether the law of Florida and the weight of the evidence taken at trial supports a finding by the trial court that the joint testators intended for the five named beneficiaries of the will to have a one-fifth share of the residuary estate and, therefore, did not suffer any damages by reason of the execution of the codicil, (3) whether the law of Florida and the weight of the evidence taken at trial supports a finding by the trial court that Joseph Schwartz did not commit a fraud by the execution of his codicil and, therefore, that appellants were not entitled to the relief they sought, and (4) whether the trial court arbitrarily denied appellants’ motion for a new trial.

Every judgment rendered by a trial court comes to this court on appeal clothed with a presumption of correctness and the burden rests upon the appellant to clearly demonstrate any error which is claimed to have been committed in the rendition of the judgment appealed. See, e. g., Marx v. Goldfinger, Fla.App. 1966, 187 So.2d 380; Frazee v. Frazee, Fla.App.1966, 185 So.2d 484; Global Aero. Service, Inc. v. Lloyd Aereo Boliviano, S.A., Fla.App. 1963, 157 So.2d 708; and 2 Fla.Jur., Appeals § 346. In the instant appeal, after a careful review of the record, all points in the briefs and arguments of counsel in light of the controlling principles of law, we have concluded that no reversible error has been demonstrated.

We agree with the trial court that it was the intent of Joseph and Jean Schwartz to bequeath and devise their estate so that each of the five legatees, named in their mutual will, would each receive a one-fifth share of their estate. See Davis v. Arkenberg, Fla.App. 1967, 195 So.2d 46, and Dixon v. Davis, Fla.App.1963, 155 So.2d 189, construing the term “share and share alike.” The testators of the mutual will did not anticipate the death of any legatee during their lifetimes and made no provision that the testamentary disposition to a legatee who died during their lifetime should pass to the remaining legatees. After the death of both Joseph and Jean Schwartz, each of the four surviving legatees, named in the original will dated March 29, 1968, still had a one-fifth interest in the estate, and, therefore, suffered no damages by the execution of the codicil to the will.

We further agree with the trial court that, based on the facts of this case and under the applicable equitable principles, there was no violation or breach of the contract which may be deemed to have existed under the language of the joint and mutual will executed by Joseph and Jean Schwartz. As found by the trial court, the effect of the codicil, executed by Joseph, was not to dispose of their estate in a manner inconsistent with the terms of the agreement on which the will was based. See Sharps v. Sharps, Fla.App.1969, 219 So.2d 735; In Re Shepherd’s Estate, Fla.App.1961, 130 So.2d 888; Weiss v. Storm, Fla.App.1961, 126 So.2d 295; Urgent v. Boehmke, Fla.App.1960, 123 So.2d 387; 34 Fla.Jur., Wills § 146; and 1 D. Redfearn, Wills and Administration in Florida § 8.14 (4th ed. 1971).

We find no merit in the other points raised by appellants. Therefore, for the reasons stated and upon the authorities cited, the final judgment appealed is affirmed.

Affirmed.


author: SCHEB, Judge.

text:
    Donald P. AUSTIN, D.D.S., Petitioner, v. Dr. Irving GORDON, D.D.S., et al., Respondents.
    No. 75-1406.
    District Court of Appeal of Florida, Second District.
    June 9, 1976.
    Sherwin P. Simmons and Harold W. Mullis, Jr., of Trenam, Simmons, Kemker, Scharf & Barkin, Tampa, for petitioner.
    Robert L. Shevin, Atty. Gen., and Donald D. Conn, Asst. Atty. Gen., Tallahassee, for respondents.
   SCHEB, Judge.

Petitioner Donald P. Austin, D.D.S. seeks a writ of certiorari from an order of the respondent Board of Dentistry suspending his license to practice for six months.

The thrust of petitioner’s argument is that the Board improperly modified the hearing examiner’s findings of fact and on basis of its augmented findings adjudged an enhanced penalty of six months suspension of license rather than adopting the hearing examiner’s recommended penalty of a public reprimand. We agree with petitioner and grant the writ.

In a recommended order entered on July 24, 1975, the hearing officer made the following findings of fact:

“1. Dr. Donald P. Austin freely, intelligently and voluntarily admitted to violation of the provisions of Florida Statutes § 466.24(3) (e), and the Regulations of the Florida State Board of Dentistry, Chapter 21-G-9, Florida Administrative Code, by permitting Carmella Carney, an unlicensed person acting under his supervision and control, to perform work constituting the practice of dental hygiene, in that on December, 12, 1974 he permitted said Carmella Carney to remove calculus from the teeth of a patient, Barbara Dubrian.
“2. Similar charges were filed against two licensed dentists who had practiced with Dr. Austin, and the proceedings were informally disposed of by the admissions of the dentists as to the accuracy of facts contained in the Accusation. Each dentist received a public reprimand in connection with those charges.
“3. The incident resulting in charges being filed against Dr. Austin was an isolated incident, and was the only occasion upon which Dr. Austin permitted any unlicensed person acting under his supervision to remove calculus from the teeth of a patient.
“4. Dr. Austin’s reputation among his colleagues for professional competence and integrity is excellent.
“5. The patient involved in this incident had very light calculus, only slightly heavier than heavy stains. Dr. Austin examined the work performed by Ms. Carney, and the teeth were clean. The patient did not complain about the work, and in fact, complimented Ms. Carney for it. Dr. Austin did not charge the patient for the work.”

Concluding as a matter of law that Dr. Austin had violated the provisions of Fla. Stat. § 466.24(3) (e), and the regulations of the State Board of Dentistry in Ch. 21-G-9, Florida Administrative Code, the hearing officer recommended that Dr. Austin receive a public reprimand, the same penalty imposed upon the two other dentists who had practiced with Dr. Austin and who, like Dr. Austin, admitted to the accuracy of facts in the Board’s accusations against them.

Upon consideration of the recommended order, the Board modified the hearing examiner’s findings of fact by adding the following findings to # 2 of the recommended order:

“Dr. Austin did, however, supervise and was responsible for said personnel according to competent, substantial evidence in the record.”

and by modifying # 3 of the order to set forth:

“The incident resulting in charges being filed against Dr. Austin was not an isolated incident, and was not the only occasion upon which Dr. Austin permitted any unlicensed person acting under his supervision to remove calculus from the teeth of a patient according to competent, substantial evidence.”

When Dr. Austin appeared with counsel before the hearing officer and admitted the Board’s charges against him, counsel for the Board stated it had no other evidence to present. The only evidence received by the hearing officer was that offered in mitigation on behalf of the petitioner. We have combed the transcript and find no evidence that Dr. Austin supervised and was responsible for the other two dentists who received reprimands. While testifying in mitigation, Dr. Austin candidly stated that it had been an office policy to allow some dental assistants to polish teeth but that the practice was terminated when he learned that to perform such services auxiliary personnel must first attend a special training course. But, of course, the Board did not base its accusation against petitioner on this ground. There is no evidence to show that his allowing an assistant to remove calculus from the teeth of one patient was other than a single isolated incident. And, we note, that by stipulation the Board deleted from the accusation the language to the effect that removal of calculus was accomplished “with electrical and ultrasonic instruments.” These additional findings therefore must be and are hereby stricken. Fla.Stat. § 120.68(10).

On basis of its augmented findings, the Board suspended Dr. Austin’s license for six months rather than issuing him a public reprimand as it did to his two professional colleagues charged with similar offenses. The Board justified the enhanced penalty on basis of its augmented findings which modified the hearing examiner’s findings of fact.

The new Administrative Procedure Act provides that if the hearing examiner’s findings are rejected, the Board must state with particularity that the examiner’s findings of fact were not based upon competent substantial evidence, Fla. Stat. § 120.57(1) (b) (9); Campbell v. State Dept. of Transportation, Fla.App.4th 1976, 326 So.2d 66. The record demonstrates that in this instance the Board was not in a position to comply with this requirement. Moreover, not only were the examiner’s findings supported by competent substantial evidence, but the augmented findings of the Board were not. To be sustained, all ultimate findings of an administrative body must be based on competent substantial evidence. DeGroot v. Sheffield, Fla. 1957, 95 So.2d 912; Erwin v. Florida State Board of Dentistry, Fla.App.2d 1975, 320 So.2d 2.

The enhanced discipline of petitioner having been based upon improperly aug-merited findings of fact and such findings having been stricken, the enhanced penalty must also fall.

Accordingly, we grant certiorari, and the Board’s final order issued on September 20, 1975, is quashed and the hearing examiner’s recommended order of July 24, 1975, is substituted therefor.

McNULTY, C. j., and HOBSON, J., concur.


author: RAWLS, Judge. BOYER, Chief Judge

text:
    Muriel GOLDMAN, Appellant, v. Joel Lewis GOLDMAN, Appellee.
    No. X-341.
    District Court of Appeal of Florida, First District.
    May 24, 1976.
    Rehearing Denied July 2, 1976.

      Lacy Mahon, Jr., of Mahon, Farley & Vickers, Jacksonville, for appellant.
    Arthur J. Gutman, Jacksonville, for ap-pellee.
   RAWLS, Judge.

In this dissolution of marriage proceeding, the sole point on appeal posed by appellant-wife is:

“That the trial court abused its discretion in entering a final judgment of disolution of marriage denying the wife lump sum alimony sufficient to compensate the wife for her contribution to the marriage.”

We agree and reverse.

The parties were married for nineteen years, and there was no testimony as to either party possessing any material assets at the time the marriage venture was launched in 1955. The wife was employed as a file clerk for less than a year after the marriage, and then it appears that the wife was engaged in bearing three children (ages 17, 16 and 14 at the time of the dissolution) and devoting her time to rearing her children- and performing the responsibilities of a housewife. In 1972, for approximately seven months, the wife arranged fashion shows from which she netted $1,000.00. Other than the foregoing, the wife had no work experience outside the marital home. A few years prior to the dissolution, the wife inherited approximately $17,000.00 from her deceased parents ; the bulk of same having been expended by her in improving the marital home. The wife has recently acquired a bachelor’s degree in psychology and is pursuing graduate studies.

The husband, appellee, is a successful attorney, and during the nineteen years of marriage accumulated substantial material assets. At the time of the dissolution, the husband was enjoying a net yearly income of $28,000.00 and had a total net worth of $93,050.00.

By its final judgment, the trial court granted the wife: 1) exclusive possession of- the marital home which the parties owned by an estate by the entirety, and requiring the husband to pay the monthly mortgage payment, taxes and insurance thereon; 2) rehabilitative alimony in the sum of $350.00 per month for a period of 36 months; and 3) a 1973 Buick automobile which the wife values at $2,500.00. Computation of the material assets of the wife (not including the outstanding mortgage on the marital home which the husband is paying) reflects a net worth on her part of $47,200.00. The husband’s net worth (after deducting the mortgage on the marital home of $11,000.00, which he is paying), consisting primarily of liquid assets, is $93,050.00.

It is our conclusion that, pursuant to this court's opinion in Brown v. Brown, the wife has been shortchanged. The husband is entering his most productive years, while the wife has devoted her time during the marital years to being a housewife rather than pursuing and acquiring material goods.

The cause is reversed and remanded with directions that the trial court award to the wife lump sum alimony.

REVERSED.

SMITH, J., concurs.

BOYER, C. J., specially concurs.

BOYER, Chief Judge

(specially concurring).

I agree that adherence to the time honored doctrine of stare decises requires application of the rule announced by the majority in Brown v. Brown, Fla.App.1st 1974, 300 So.2d 719, thus in turn requiring reversal.

      . Tlie wife testified: “I do everything in the house. I do all — I do my housework. I cook and I clean and I run the children on all their errands and whatever has to he done. I do it.”

      . Brown v. Brown, 300 So.2d 719 (Fla.App.1st 1974).


author: AGNER, ROYCE, Associate judge.

text:
    Ronald Thomas LEATH, Appellant, v. STATE of Florida, Appellee.
    No. Z-358.
    District Court of Appeal of Florida, First District.
    June 15, 1976.
    Richard W. Ervin, III, Public Defender, Michael J. Minerva, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Donald K. Rudser, Asst. Atty. Gen., for appellee.
   AGNER, ROYCE, Associate judge.

The defendant appeals the denial of his motion for a judgment of acquittal made at the close of the State’s case and also urges reversal because of insufficiency of the evidence to support the judgment of guilt of child torture.

The defendant-appellant, Ronald Thomas Leath, was Pauline Thomas’ boyfriend. Pauline had two children. Ricky Clark, her oldest, was a 6 year old boy. Felecia Michelle, her daughter, was 3.

On the day of March 19, 1975, Pauline left her home in an apartment complex in Jacksonville at 1:00 P.M. or thereabouts to keep an appointment with a doctor at 2:30 that afternoon. She left Ronald Thomas Leath and Michelle at her home. Ricky, 6, was at school. The mother, Pauline, returned about 7:00 P.M. Leath, Ricky and Michelle were there when she returned. Her brother and three other men were there also.

According to her testimony, Leath “told her what happened”. She looked at her daughter and observed that she was “kind of reddish, like when you usually burn your hands” on her legs and bottom. She went to the store, got some salve and rubbed it in. She testified Michelle didn’t seem to be in pain nor in extreme discomfort. She fed her and put her to bed. Pauline got up about 9:00 A.M. and observed blisters the size of a dime around the child’s legs, backside and vagina. She burst them and applied more salve.

The mother didn’t seek medical attention for the child until 5:00 or 6:00 P.M. of the next day, March 20, when some friends, Mrs. Hall and her mother, Mrs. Martin, came on a visit to look at Pauline’s new furniture. Even though Mrs. Hall had telephoned ahead of their visit, Pauline met them outside her apartment door and, to Mrs. Martin, seemed to be leaving. Mrs. Hall and Mrs. Martin went in, however, and Pauline came back in with them. Mrs. Martin, the older woman, immediately noticed blisters on Michelle’s feet, and after seeing the baby, forgot all about inspecting the furniture. She immediately asked had the baby been to a doctor, learned that she hadn’t, and immediately suggested that the baby needed medical attention. She offered her car as a means of taking the baby to the hospital and Pauline agreed that the baby be taken.

Pictures were taken of the baby in the emergency room. Twenty one of them were introduced into evidence by the State. We have reviewed them. They depict a badly burned child. Doctor Kenneth Corey examined the child at the time of her admission on March 20, 1975. He found first and second degree burns, the worst being in the genital area, extending back to but not involving the anal area, the inner thigh close to the hip, as well as the lower portion of the ankles and the feet. The feet were burned more severely on the tops than the bottoms; the injury was consistent with water burns and their location consistent with the child sitting in a bathtub of very hot water. The burn which extended along the vulva was a little too high to be consistent with merely sitting in water in his opinion.

Doctor Corey testified injuries of the type the child had would be obviously severe injuries to an average lay person. He also said they would be the cause of moderate to severe discomfort and described severe discomfort as being excruciating pain to the point that the person with such injuries could not perform any other function such as sleeping or eating.

Doctor Ernest Kimble examined the child on April 1, 1975, ten days after her hospital admission. He agreed with Doctor Corey that burns of this nature would be extremely painful. He stated that an injury of this type should be obvious to a person who is not medically trained. He also expressed his opinion that the burns were caused by water. The doctors agreed that they could not envision a child getting such burns voluntarily.

The State also introduced the testimony of 6 year old Ricky Clark. With the consent of defendant’s counsel, he was not sworn. The record reveals his testimony to be contradictory and difficult to weigh. However, Investigator Pruitt of the Duval Sheriff’s Department was permitted to testify as to a statement Ricky Clark made to him on the night of March 20, 1975.

The trial court had sustained defense counsel’s objection to Investigator Pruitt’s testimony based on its hearsay nature, but defense counsel withdrew his objection and the court allowed the statement to be admitted into evidence. Ricky stated to Investigator Pruitt, that his father (appellant Leath) had put Michelle into the tub because she “had messed her britches”, tie also told Pruitt that the appellant had heated water on the stove and poured it into the tub.

The State also introduced, through Investigator Pruitt, the oral statement of the appellant to the effect that Michelle had come in from outside and had messed her pants; that he had changed her and was going to give her a bath; that he sent Ricky in to run water in the tub because someone had come to the door; and that he did not know how she got burned. Although he remained outside and apparently nearby, he did not hear the child crying and did not notice until later that anything was the matter with her.

Without objection by the defense, Mrs. Hall, one of the visiting neighbors, was permitted to testify that Ricky had told the detectives that his daddy boiled some water on the stove and put it in the tub and was giving the child a bath.

Upon this testimony, the State rested. The trial court denied a defense motion for a judgment of acquittal upon the ground that the evidence did not establish that the appellant had willfully inflicted injury on the child.

The trial court’s denial of the motion for a judgment of acquittal reaches this court with a presumption of correctness and the appellant has not demonstrated to us any error in the ruling. As the trier of fact it was the duty of the trial judge to observe the demeanor of all the witnesses, weigh their testimony, reconcile it if he could, and, if he could not, to reject what was unworthy of belief and to accept and rely upon that which he found worthy of belief. The 21 pictures in evidence of a badly burned 3 year old child, the testimony of 2 doctors that such burns would be obviously severe injuries to an average lay person and would have caused discomfort to a person so injured to the extent of not being able to sleep and eat was ample to permit the judge to conclude that the mother’s testimony to the effect that the child was fed and put to bed and spent a night without fretfulness was unbelievable, particularly when considered in the light of the witness, Martin’s testimony that the child, 24 hours later obviously needed a doctor’s attention. Also, the defendant, having acquiesced in allowing introduction of the statement of Ricky Clark is not now in position to complain about any harmful effect of that evidence. It is axiomatic that a motion for judgment of acquittal made pursuant to RCrP 3.380 admits all facts in evidence and every reasonable conclusion inferable therefrom. Brown v. State, 294 So.2d 128 (3 DCA 1974); Weldon v. State, 287 So.2d 133 (3 DCA 1974); Lynch v. State, 293 So.2d 44 (Fla.1974); Dancy v. State, 284 So.2d 452 (3 DCA 1973); and Victor v. State, 141 Fla. 508, 193 So. 762 (1940).

Neither can we agree with appellant’s other contention that the evidence is insufficient to support the judgment of guilt. The defense was that appellant had begun to bathe the child and was interrupted by persistent knocking at the door. His testimony was that he told the six year old Ricky to start the water and answered the knock. He heard no crying or other alarm and returned in perhaps fifteen minutes to find “smoking” water coming out of the tub faucet and Michelle standing in the tub with her hand on the shower knob trying to get out of the tub. He said that she was crying but not hollering or screaming loudly. The trial judge announced his rejection of this testimony and we may not substitute our judgment for his.

Finding as we do that the judgment of guilt is supported by sufficient evidence in the record, it is accordingly AFFIRMED.

MILLS and SMITH, JJ., concur.


text:
    OPINION OF THE JUSTICES.
    No. 222.
    Supreme Court of Alabama.
    May 31, 1976.
   To The Honorable Speaker and ■

Members of the House of Representatives State Capitol

Montgomery, Alabama

Dear Sirs and Madam:

The Chief Justice has received a letter from Hon. John W. Pemberton, Clerk, House of Representatives, dated May 20, 1976, forwarding a copy of House Resolution No. 97 in which the House has requested our opinions as to the constitutionality of House Bill No. 471.

House Resolution No. 97 requests that we answer the following questions under authority of Title 13, section 34, Code of Alabama 1940, viz.:

“(1) Does the bill violate the provisions of The Fifth (S) Amendment to the Constitution of the United States or Art. 1, Section 13 of the Alabama Constitution against the taking of property without due process of law ?
“(2) Does the bill violate the provisions of The Fifth (5) Amendment to the Constitution of the United States or, Art. 1, Section 22 of the Alabama Constitution prohibiting the impairment of of contracts?”

In accordance with your request, we answer your inquiries as follows: Code of Alabama 1940) and provides that any such corporation “shall, as soon as practicable after the enactment of this act, amend its corporate charter to provide that each of the lessees of its corporate property shall be entitled to vote the same as a member in the management of its affairs.”

Our answer to your question (1) is “yes.”

Our answer to your question (2) is “yes.”

H.B. 471 relates to single tax corporations (organized under Title 10, section 168,

Title 10, section 168, Code of Alabama 1940, (as amended by Act No. 445, Acts of Legislature 1966 Special Session, p. 602, approved September 12, 1966) provides, inter alia, that ten or more persons may associate themselves together and form a single tax corporation, that the charter shall be perpetual, “subject to revocation at any time by the legislature,’’ that the corporation may elect its own officers and adopt such constitution and bylaws as it may see fit so long as they are not in conflict with the Constitution or laws of this state, that such corporation may buy, sell, lease and mortgage real estate, build wharves, boats, waterworks, electric power works, schools, libraries, parks, etc., “for the mutual benefit of its members,” and that it "may admit such other persons to participate in its benefits as it may see fit and upon such conditions as it may impose.’’ [Emphasis supplied.] We judicially know that there is one single tax corporation in Alabama. See Fairhope Single Tax Corporation v. Melville, 193 Ala. 289, 69 So. 466 (1915). There, the history of Title 10, section 168, and its conception in Henry George’s Progress and Poverty (1879) is discussed.

With this background, we move to consider the provisions of the United States and Alabama Constitutions to which your questions are directed.

Although you have asked whether H.B. 471 would, if enacted, violate the due process clause of the fifth amendment to the U. S. Constitution, it is more appropriate that we consider whether H.B. 471 would violate the due process clause of the fourteenth amendment, of which the first section reads as follows:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” [Emphasis supplied.]

Section 13, Alabama Constitution of 1901, concerning which you have also asked, reads as follows:

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

See also Alabama Constitution of 1901, section 6.

■ In the context of Title 10, section 168, we equate “members” with “stockholders,” and we assume, without deciding, that the rights which members exercise and enjoy in the management of the corporation are “property rights” within the meaning of the fourteenth amendment. See Walsh v. State, 199 Ala. 123, 74 So. 45, 2 A.L.R. 551 (1917); Ayers v. Burley Tobacco Growers Cooperative Ass’n, 344 S.W.2d 836 (Ky.1961); Faunce v. Boost Co., 15 N.J.Super. 534, 83 A.2d 649 (1951); Lord v. Equitable Life Assur. Society, 194 N.Y. 212, 87 N.E. 443 (1909); Fein v. Lanston Monotype Machine Co., 196 Va. 753, 85 S.E.2d 353 (1955).

We think that for the legislature to mandate that lessees be permitted to vote the same as members in the management of the “single tax corporation” organized under Title 10, section 168, supra, would clearly grant to those not members the same rights, privileges and benefits as are accorded members and would deprive the members of their property rights in the management of the corporation without due process of law. The legislature cannot by legislative edict transfer property from one person to another. Sadler v. Langham, 34 Ala. 311 (1859).

“A stockholder may not be deprived of the property value of his stock or the rights inherent in its ownership, except by his consent or lawful process.”

Fein v. Lanston Monotype Machine Co., supra at 362.

“The right to vote was a basic contractual right. It was an incident to membership or of the property in the stock, of which the stockholder or member cannot be deprived without his consent.”

Faunce v. Boost Co., supra, at 652.

You have also asked whether H.B. 471 would, if enacted, violate state and federal constitutional provisions against impairment by the state of the obligation of contracts. Section 22, Alabama Constitution of 1901, reads as follows:

"That no ex post facto law, nor any law, impairing the obligations of contracts, or making any irrevocable or exclusive grants of special privileges or immunities, shall be passed by the legislature; and every grant or franchise, privilege, or immunity shall forever remain subject to revocation, alteration, or amendment.” [Emphasis supplied.]

See also Article I, section 10, U.S. Constitution.

Charters of corporations have been held to be contracts between the legislature and the corporations. State of Alabama v. Alabama Bible Society, 134 Ala. 632, 32 So. 1011 (1902). It would seem, therefore, that the legislature would be prohibited from altering, amending, or revoking charters which it has granted. It was so held by the Supreme Court of the United States in 1819 in Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 4 L.Ed. 629. However, the Alabama Constitution also provides, in section 238,

“The legislature shall have the power to alter, amend, or revoke any charter of incorporation now existing and revocable at the ratification of this Constitution, or any that may be hereafter created, whenever, in its opinion, such charter may be injurious to the citizens of this state, in such manner, however, that no injustice shall be done to the stockholders.” [Emphasis supplied.]

As a result of this provision, the legislature’s right to alter, amend or revoke charters it has granted becomes part of the charter/contract itself. The Dartmouth College problem has thus been avoided.

However, the “reserved power” of the legislature under section 238 is not unlimited. Each section of our Constitution must necessarily be considered in pari materia with all other sections.

In Ayers v. Burley Tobacco Growers Cooperative Association, supra, the Court of Appeals of Kentucky considered whether the legislature could amend the statute under which the association was incorporated to permit the board of directors to amend the articles of incorporation so as to extend the corporate existence. Prior to' the statutory amendment a vote of the majority of the members was also necessary to amend the articles of incorporation. Although the court found that, under the circumstances, there was not a substantial impairment of the voting rights of the members, it stated, inter alia,

“It will be noted that the exercise of the reserved power is not denied or prohibited. It is only limited. It may be exercised so as to effect changes that will not defeat or substantially impair rights vested under the grant and it may be exercised to promote the due administration of corporate affairs.
“We must concede that voting on amendments to articles of incorporation is a right vested in each member and the courts will not permit such rights to be substantially impaired or taken without due process of law.”

Id. at 839.

In Lord v. Equitable Life Assurance Society, supra, the Court of Appeals of New York considered whether the legislature had the power, under a “reservation of power,” to enact a statute which provided,

“ . . . in substance, that any stock life insurance company may by the vote of a majority of the directors, when authorized by stockholders holding a majority of the capital stock, confer upon its policy holders the right to vote for all or any less number of the directors.”

This statute is very similar to H.B. 471, except that the extension of voting rights in the New York statute was optional. Nevertheless, the court held that the right of a stockholder to vote is a vested right of property and stated,

“ . . . No reservation, for instance, could authorize a law giving to policy holders the capital stock belonging to the stockholders. As the property of stockholders cannot be given away either in whole or in part, it follows that the gift of any right so connected with their property as to be essential to its preservation and existence would be a violation of primary rights.”
“ . . . To absolutely deprive him of the right to vote therefore is to deprive him of an essential attribute of his property. To so undermine that right as to essentially affect its power of protection would, under ordinary circumstances, undermine the right to property involved in the ownership of stock.

Id. at 448-49. In this case, the New York court found extraordinary circumstances justifying the amendment as a valid exercise of the legislature’s “reserved power.” We, however, find no such extraordinary circumstances on the face of H.B. 471 or Title 10, section 168, which would permit us to hold that H.B. 471 is a valid exercise of the legislature’s power under section 238, supra.

We hasten to add, that we do not say that the legislature may not, under section 238, supra, alter, amend, or even revoke the charter in question. It cannot, however, alter or amend the charter, as here proposed, so as to deprive members of rights guaranteed them under the federal and state constitutions. We simply say that H.B. 471, if enacted into law, would deny the members of a single tax corporation heretofore created under Title 10, section 168, supra, of “due process of law” and would “impair the obligation of existing contracts” under the federal and state constitutions.

We close with this caveat. We have rendered this advisory opinion as promptly as possible, believing that the House of Representatives is interested primarily in receiving timely answers to its questions. We point out, however, as we have previously, that time has not permitted a thorough study on our part. Although we have been favored with amicus curiae briefs, we have not had the advantage of an adversary proceeding, at which facts would have been developed and the issues more clearly defined. See Opinion of the Justices, 291 Ala. 581, 586, 285 So.2d 87 (1973).

HOWELL T. HEFLIN Chief Justice

PELHAM J. MERRILL

JAMES N. BLOODWORTH

ALVA HUGH MADDOX

JAMES H. FAULKNER

RENEAU P. ALMON

JANIE L. SHORES

T. ERIC EMBRY Associate Justices


author: HEFLIN, Chief Justice.

text:
    Gary R. TOLBERT, a minor, et al. v. Bruce H. GULSBY et al.
    SC 1220.
    Supreme Court of Alabama.
    May 28, 1976.

      Braxton L. Kittrell, Jr., Mobile, for appellants.
    Fred W. Killion, Jr., Mobile, for appel-lees.
   HEFLIN, Chief Justice.

This case is an appeal from the granting of summary judgment in favor of defendants below. The action arose on four counts alleging liability based on (1) negligence, (2) wantonness, (3) presence of attractive nuisance on defendant’s premises and (4) presence of a dangerous instrumentality.

The undisputed facts are that plaintiff Gary R. Tolbert, a six-year-old, was shot in the eye by another child with an air rifle which was located in defendants’ carport. The moving papers consisted of the pleadings and affidavits of defendants, Bruce and Esther Gulsby. Plaintiffs opposed the motion by submitting two affidavits of Curtis A. Tolbert, Gary’s father, and depositions of plaintiff Gary R. Tolbert, Defendant Bruce H. Gulsby, and one Tammy Lynn Chandler. The issue on appeal is whether the trial judge erred in granting the defendants’ motion for summary judgment as to each of the four counts.

On appeal from summary judgment, the appellate court looks at the same factors which the court below considered in ruling on the motion. 10 Wright & Miller, Federal Practice and Procedure, § 2716, p. 430 (1973). Rule 56 of the Alabama Rules of Civil Procedure states that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” On a motion for summary judgment all reasonable inferences from the facts are viewed most favorably to the non-moving party and the moving party is required to establish that the other party could not recover under ‘any discernible circumstances.’ Folmar v. Montgomery Fair Company, Inc., 293 Ala. 686, 309 So.2d 818 (1975); see United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Rotermund v. United States Steel Corp., 474 F.2d 1139 (8th Cir. 1973); Nykus v. Travel Management Corp., 151 U. S.App.D.C. 269,466 F.2d 440 (1972).

The question before the court is this: Is there evidence which, when considered in a light most favorable to the plaintiffs, would support any one of plaintiffs’ theories of liability, and, thus, defeat summary judgment.

Under a negligence count, the duty owed by a landowner depends on the status of the injured party in relation to the defendant’s land. See Mullins v. Pannell, 289 Ala. 252, 266 So.2d 862 (1972); Autrey v. Roebuck Park Baptist Church, 285 Ala. 76, 229 So.2d 469 (1969). If the injured'party is determined to have been a trespasser, the landowner owes only the duty not to wantonly or intentionally injure him. City of Dothan v. Gulledge, 276 Ala. 433, 163 So.2d 217 (1964); Alabama Great Southern Railroad Co. v. Green, 276 Ala. 120, 159 So.2d 823 (1964). “Under ordinary conditions trespassing children, or children on the land of another as bare licensees, occupy the same position as trespassing adults.” Alabama Great Southern Railroad Co. v. Green, supra; Mullins v. Pannell, 289 Ala. 252, 266 So.2d 862 (1972). If plaintiff is found to have been on defendant’s property with his consent or as his guest, but with no business purpose, he attains the status of licensee and is owed the duty not to be willfully or wantonly injured or not to be negligently injured after the landowner has discovered his peril. Autrey v. Roebuck Park Baptist Church, 285 Ala. 76, 229 So.2d 469 (1969).

“Wantonness” has been defined by this court as

“the conscious doing of some act or the omission of some duty under the knowledge of the existing conditions, and conscious that from the doing of such act or omission of. such duty injury will likely or probably result. Britton v. Doehring, 286 Ala. 498, 242 So.2d 666; Westbrook v. Gibbs, 285 Ala. 223, 231 So.2d 97; Tucker v. Cox, 282 Ala. 489, 213 So.2d 222; Culpepper & Stone Plumbing & Heating Co. v. Turner, 276 Ala. 359, 365, 162 So.2d 455. Wantonness may arise from knowledge that persons, though not seen, are likely to be in a position of danger * * *. Lewis v. Zell, 279 Ala. 33, 181 So.2d 101; Graves v. Wildsmith, 278 Ala. 228, 177 So.2d 448. Wantonness may arise after discovery of actual peril, by conscious failure to use preventive means at hand. Godfrey v. Vinson, 215 Ala. 166, 110 So. 13. Knowledge need not be shown by direct proof but may be shown by adducing facts from which knowledge is a legitimate inference. Britton v. Doehring, supra; Lewis v. Zell, supra.Kilcrease v. Harris, 288 Ala. 245, 251, 259 So.2d 797, 801-02 (1972).

From the record before the court, there is no direct evidence that defendant Bruce Gulsby knew that plaintiff Gary Tolbert was on his property at the time of the injury. Defendant Esther Gulsby acknowledges that she had seen the plaintiff earlier in the day but states that she had no knowledge that the air rifle was propped on the carport. Bruce Gulsby maintains that he does not believe that the air rifle was cocked and, further, that he had propped it against the wall behind a lawn chair with an enclosed back and seat so that it was not in plain view. There is evidence that children frequently played in defendants’ yard and that plaintiff Gary Tolbert had been there on other occasions, although there is no evidence that he was present at the time of the injury by either express or implied invitation. Based on the facts before the court, it would appear that he was either a trespasser or a licensee to whom the only duties owed were not to be intentionally or wantonly injured or not to be negligently injured after the defendants had knowledge of his peril. There is no evidence of intentional injury, nor of knowledge on the part of defendants of plaintiff’s peril. Thus summary judgment on the negligence count was proper.

Arguably there is a scintilla of evidence of wanton conduct in that at least two witnesses assert that defendant Bruce Gulsby admitted that the air rifle had been left in a cocked position ready for firing. In the case of Kilcrease v. Harris, 288 Ala. 245, 259 So.2d 797 (1972), it was held that a wanton count should go to the jury if there is the least particle of evidence to support a finding of wantonness.

Plaintiffs’ complaint also contains a count asserting liability based on the attractive nuisance doctrine. This doctrine offers an exception to the limited duty owed by a landowner to a trespasser. It applies only where trespassing children are involved. Alabama Great Southern Railroad Co. v. Green, 276 Ala. 120, 159 So.2d 823 (1964); see, Fulford, The Tort Liability of Possessors of Property to Trespassing Children in Alabama, 11 Ala. L.Rev. 1, 9-13 (1958). The doctrine evolved form the “turntable” theory pronounced by the United States Supreme Court in Sioux City and P. R. Co. v. Stout, 84 U.S. (17 Wall.) 657, 21 L.Ed. 745 (1873) and was adopted by this court in the case of Alabama Great Southern Railroad Co. v. Crocker, 131 Ala. 584, 31 So. 561 (1901). The turntable doctrine over the years has been narrowly applied and rigorous standards of application have developed around its use. The most important restriction is that the dangerous condition on the landowner’s property must be found to be naturally attractive to small children — thus leading to the “attractive nuisance” terminology. According to Gary Tolbert’s deposition, he was not attracted to Mr. Gulsby’s carport because of the air rifle. Thus it appears that summary judgment was properly granted as to the attractive nuisance count.

The fourth count of plaintiff’s complaint charges liability on the theory that Bruce Gulsby was maintaining a dangerous instrumentality on his property. This doctrine is based on a “straight” negligence theory and arguably developed as a reaction to the restrictive use of the attractive nuisance theory. See Fulford, The Tort Liability of Possessors of Property to Trespassing Children in Alabama, supra. The doctrine is set out in Thompson v. Alexander City Cotton Mills Co., 190 Ala. 184, 191, 67 So. 407, 410 (1914), which quotes Thompson on Negligence, section 1030 (1880):

“We now come to a class of decisions which hold the landowner liable in damages in the case of children injured by dangerous things suffered to exist unguarded on his premises, where they are accustomed to come with or without license. These decisions proceed on one or the other of two grounds: (1) That, where the owner or occupier of grounds brings, or artificially creates something thereon, which, from its nature, is especially attractive to children, and which, at the same time, is dangerous to them, he is bound, in the exercise of social duty and the ordinary offices of humanity, to take reasonable pains to see that such dangerous things are so guarded that children will not be injured by coming in contact with them. (2) That, although the dangerous thing may not be what is termed an ‘attractive nuisance’ (that is to say, may not have especial attraction for children by reason of their childish instincts), yet where it is so left exposed that they are likely to come in contact with it, and where their coming on contact with it is obviously dangerous to them, the person so exposing the dangerous thing should reasonably anticipate the injury that is likely to happen to them from its being so exposed, and is bound to take reasonable pains to guard it, so as to prevent injury to them.”

This theory was also discussed by the court in Republic Steel v. Tillery, 261 Ala. 34, 38, 72 So.2d 719, 721 (1954) where the court reaffirmed its “straight” negligence roots:

“[I]n Sheffield Co. v. Morton, supra [161 Ala. 153, 49 So. 774], it is said: ‘Every theory of negligence works around to the question whether some one did or failed to do what a reasonably prudent and competent man would be expected to do under given circumstances. In determining what precautions were reasonably necessary and incumbent upon the defendant in the use of its property at the place in question, it must be held to have considered the known extent and nature of the use to which the place was customarily put by others than its owner.’ Mosely v. Alabama Power Co., supra, 246 Ala. 416, 21 So.2d 305; Golson v. W. F. Covington Mfg. Co., supra, 205 Ala. 226, 87 So. 439; 18 Am.Jur. 467-468; 17 A.L.R. 853. This duty exists whether an injured child should be classified as a licensee or an invitee, or sometimes even a trespasser, if defendant should have anticipated the injury. 18 Am.Jur. 467, notes 1, 2 and 3.”

Under this doctrine the standard is one of reasonableness: should defendant have reasonably anticipated that injury would result from the condition he created on his property? This Alabama doctrine is very similar to the statement of landowner liability to trespassing children in Restatement of Torts 2d, section 339 (1965) which reads:

“A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
“(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
“(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
“(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
“(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
“(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.”

For treatment of this section, see 62 Am. Jur.2d, Premise Liability, §§ 139-145 (1972);. Annot., 16 A.L.R.3d 25 (1967); and Prosser, Trespassing Children, 47 Cal. L.Rev. 427 (1959).

The following excerpt from Fulford’s law review article, 11 Alabama Law Review at 15-19, further explains this doctrine :

“The rule on which the straight negligence cases have proceeded is this: If a landholder creates or maintains upon his premises, where he can reasonably foresee the presence of children, a dangerous situation under circumstances which he should reasonably anticipate will likely or probably cause bodily harm to them, he is liable in damages to one proximately injured by such situation whether the child is an invitee, a licensee, or a trespasser.
“In such cases, the duty to exercise reasonable care rests upon the broad and fundamental principle that one who employs and uses a dangerous and deadly agency must exercise such care as is necessary to protect those who may reasonably be expected, through ignorance of the danger, to come into its close proximity. It is the apparent probability of danger from the inherently dangerous character of the instrumentality installed on private premises, rather than the owner’s right to exclusive possession thereof, that creates and determines both the duty and measure of care required of the owner. The duty of reasonable care is owed by the landholder to invitees, licensees and trespassers alike if their presence in the area of danger should reasonably have been anticipated by him.
“The element of attraction in such cases is important only insofar as it indicates that the trespass should have been anticipated, it being unnecessary that the dangerous instrumentality have any special lure to children if it is left so exposed that the defendant reasonably should have foreseen that bodily harm was likely to occur from its exposure. Evidence that children other than the plaintiff customarily played at the place or with the dangerous instrumentality has been said to be necessary to establish liability only where the place or appliance does not possess a quality calculated to attract children generally; however, the duty to exercise reasonable care is emphasized where notice or knowledge of the customary presence of children about such danger is possessed by the proprietor.
“The defendant must be held to have considered the known extent and nature of the use to which the place was customarily put by others than its owner, and where the location of the dangerous agency is frequented by children, it may be inferred that their presence was known to the defendant.
“A proprietor has the duty to inspect his premises to become sufficiently advised to meet the demand of his duty toward those who it is reasonable to expect will enter his premises. It is no defense that he constructed and maintained the dangerous instrumentality in the same manner as others constructing and maintaining other such well-regulated in-strumentalities.
“Liability depends in part upon the probability of danger taken in connection with the instrumentality’s usefulness in defendant’s business. The rule does not prevent the owner from using and excluding others from the use of his property.
“The natural propensities of childhood must be taken into consideration by the defendant in such cases, but there is no hard and fast rule of liability dependent upon plaintiff’s age. A plaintiff fourteen years of age or older will not, on the basis of age alone, be precluded from recovery in a proper case.
“Each case must be decided on its own facts. ‘It would be difficult to lay down a precise standard of duty owing to such a person in respect to the use of the defendant’s property by one for his own pleasure, whether he was in the attitude of an invitee, a licensee or a trespasser.’ All of the circumstances must be taken into account in determining whether the defendant did or failed to do what a reasonably prudent man would be expected to do under such circumstances, and his liability will be determined accordingly.
“Where straight negligence principles have been applied, the hurt child has fared better than in the attractive nuisance cases. Besides the railroad turntable case, the child has received favorable consideration in cases where harm was caused by dynamite caps, skittish mules driven by defendant’s agent, and a pit of scalding water. Another case involving hot water resulted in a jury verdict for the defendant, but the case was held to have been tried properly on straight negligence principles.” [Footnotes numbers and footnotes omitted]

This court has previously noted the similarity between Alabama cases using the straight negligence doctrine in relationship to trespassing children and Section 339, Restatement of Torts 2d; however, for clarity and certainty’s sake now and in the future, this court adopts Section 339, Restatement of Torts 2d, as controlling, regardless of whether the children are licensees or trespassers.

Based on the pleadings, affidavits and depositions in the case before this court, there is evidence from which a jury could conclude that defendant Bruce Guls-by knew young children played on his premises regularly and left a loaded air rifle propped against his carport wall. There is a dispute as to whether the air rifle was cocked and ready for firing. Reasonable minds could reasonably differ as to whether the air rifle constituted an obviously dangerous condition with which children were likely-to come into contact and, further, whether defendant should reasonably have anticipated the injury and taken steps to guard against it. Thus it appears that summary judgment was erroneously granted as to the “dangerous instrumentality” count.

As a final argument the Gulsbys contend that summary judgment was proper because Bruce Gulsby’s action of leaving the air rifle on the carport was not the proximate cause of plaintiff’s injury. Their argument is that the action of the young girl who actually shot Gary Tolbert with the air rifle was the proximate and moving cause and was an intervening agency relieving Gulsby of any liability.

The concepts of proximate cause and sufficient intervening cause were discussed by this court in the case of Liberty National Life Insurance Co. v. Weldon, 267 Ala. 171, 186-87, 100 So.2d 696, 709 (1958), where it was stated:

“Persons who perpetrate torts are, as a rule, responsible and only responsible for the proximate consequences of the wrongs they commit. In other words, unless the tort be the proximate cause of the injury complained of, there is no legal accountability * * *
“ * * * The many decisions of this court dealing with negligence as the proximate cause, when some agency has intervened and has been the immediate cause of the injury, hold the party guilty of negligence in the first instance is not responsible, unless at the time of the original negligence the act of the agency could have been reasonably foreseen. If the act of the intervening agency could have been reasonably foreseen the causal chain is not broken. But if the injury results from an independent, intervening, efficient cause, not reasonably to be anticipated, to wit, the act of a third person, the negligence shown, if any, is not the proximate cause of the injury. Clendenon v. Yarbrough, 233 Ala. 269, 171 So. 277; Louisville & N.R. Co. v. Maddox, 236 Ala. 594, 183 So. 849, 118 A.L.R. 1318; Louisville & N.R. Co. v. Courson, 234 Ala. 273, 174 So. 474, and cases cited; Mahone v. Birmingham Electric Co., 261 Ala. 132, 73 So.2d 378. That is the rule laid down by this and other courts with some slight variance in the language by which the thought is expressed, such as that the intervening event must be the ‘natural and reasonable’ or ‘ordinary and natural’ result of the initial negligence.”

This court finds that the question of whether the girl’s action was an unforeseeable one, not reasonably to be anticipated when defendant put the air rifle on the carport, is a question about which reasonable people could differ, thus requiring a jury determination.

Because of the nature of negligence actions, with their questions of reasonableness and proximate causation, summary judgment will not ordinarily be properly granted in such cases. In the case before this court, though, the motion was properly granted as to the negligence and attractive nuisance counts. It was not properly granted as to the wanton count. Finally, there is evidence to support the “dangerous instrumentality” count; thus reversal of the trial court’s action in granting summary judgment as to this count is in order.

AFFIRMED IN PART, REVERSED IN PART, REMANDED.

MERRILL, MADDOX, JONES and SHORES, JJ., concur.


author: SHORES, Justice. JONES, Justice

text:
    Raymond BELCHER v. Hiram Y. McKINNEY et al., as Members of the Personnel Board of Jefferson County, Alabama, and James W. Fields, as Acting Director of Personnel of Jefferson County, Alabama.
    SC 1665.
    Supreme Court of Alabama.
    May 21, 1976.
    Rehearing Denied June 18, 1976.

      James M. Fullan, Jr., Birmingham, for appellant.
    W. Gerald Stone, Bessemer, for appel-lees.
   SHORES, Justice.

Belcher, chief deputy sheriff in Jefferson County, filed a bill for declaratory judgment and mandatory injunction seeking to uphold the constitutionality of Act No. 389, Acts of Alabama 1975, approved September 18, 1975, and seeking to require the Personnel Board of Jefferson County to comply with that act. The trial court dismissed the complaint after finding Act No. 389 to be unconstitutional. Belcher appealed.

The Act in question provides compensation for the chief deputy sheriff in counties having populations of “. . . 600,000 or more, according to the most recent federal decennial census.” The compensation is to be no less “. . . than three pay grades above the highest pay grade, including educational incentive pay, in the classified service of the county of the position next below the position of chief deputy sheriff, provided such chief deputy sheriff holds a law degree.” The Act operates retroactively to January 1, 1975.

The trial court concluded:

(1) The Act, § 2, contains a double classification — -providing one pay rate for chief deputies who hold a law degree and another for those chief deputies who do not (in those counties with the requisite population) ;

(2) that Act No. 389 is a local act and was not advertised pursuant to the requirements of § 106, Article 4, of the Alabama Constitution;

(3) that the population classification bore no relation to the purpose of the Act, i. e., to reward a chief deputy for holding a law degree;

(4) that a chief deputy is not required in Jefferson County, “nor does it appear that one would be required . . . ” in those counties which may come within the classification in the future;

(5) that the chief deputy sheriff is not a public officer, that this is merely a “position” and that the "... Civil Service Law, Section 656, Appendix, Code of Alabama, Recompiled 1958, requires the Director of Personnel, subject to the approval of the Personnel Board, to grade, classify and establish salaries . . . ” in such position ;

(6) that the Act would repeal the Civil Service Law, which the legislature clearly did not intend to do;

(7) that the Act is void for inconsistency, vagueness and uncertainty — it provides for but does not define educational incentive pay, and it leaves doubt as to whether a law degree must be from an accredited or unaccredited law school; and

(8) the provisions for retroactive pay is violative of Sections 68 and 94 of the Alabama Constitution.

The appellant submits:

(1) That a county of over 600,000 in population has particularly severe crime problems by virtue of its large population;

(2) that, therefore, it is especially desirable to have a chief deputy in such a county with a law degree to aid in solving the problems peculiar to such a county;

(3) that the double classification condemned in Jefferson County Board of Health v. City of Bessemer, 293 Ala. 237, 301 So.2d 551 (1974), refers to double classification only in terms of population;

(4) that any problem of conflict with Act No. 389 and the Civil Service Law is taken care of by Section 4 of Act No. 389:

“All laws or parts of laws which conflict with this act are hereby repealed.”;

(5) that the provision providing for educational incentive pay is clear;

(6) that the question of whether the law school conferring the degree is accredited or not is immaterial; and

(7) that Amendment II to the Alabama Constitution permits retroactive pay in this instance.

Is Act 389 a general law or a local law as defined by Section 110 of the Alabama Constitution? If the Act is local then it is void, as the appellant concedes, since Section 106 of the Constitution was not complied with.

Reynolds v. Collier, 204 Ala. 38, 85 So. 465 (1920), set out three tests that an act, based on a population classification, must meet to be a general act: (1) There must be a substantial difference in population; (2) the classification must be made in good faith; and (3) the classification must be reasonably related to the purpose sought to be achieved by the act. The first requirement operates only in the context of a classification that is not open-ended. Opinion of the Justices, 263 Ala. 174, 81 So.2d 699 (1955). In applying the second part of the test, we must “. . . accord to the lawmaking body of the state government sincerity of purpose and fairness in dealing with the people of the state.” Wages v. State, 225 Ala. 2, 4, 141 So. 707, 708 (1932). We find nothing to suggest that the classification in this act was not made in good faith, nor that the legislature was not sincere in its purpose in passing this act. The third requirement of Reynolds is a central issue in this case.

The appellees insist that no relationship exists between the population criteria set out in this act and the purpose of the act. We cannot agree. Although our law requires state-wide uniformity in substantive criminal law, census legislation concerning the administration of criminal justice has been upheld. Dixon v. State, 27 Ala.App. 64, 167 So. 340, cert denied, 232 Ala. 150, 167 So. 349 (1936). The Dixon opinion adopted the opinion of the trial court in that case, which observed:

“ ‘. . . It is a fact known of all men who have reached their maturity and who have enjoyed the general experience common to mankind that populous centers are the central nurseries and hotbeds of crime. . . . ’ ” (27 Ala.App. at 68, 167 So. at 343)

Concededly, as we noted in Jefferson County Board of Health v. City of Bessemer, supra, 293 Ala. at 242, 301 So.2d at 555, "... our holdings do not present an altogether clear standard for determining whether a logical relationship exists between the classification employed and the purposes of the act,” but can we say that the act in the instant case is not based upon a rational relationship? See Dearborn v. Johnson, 234 Ala. 84, 88, 173 So. 864 (1937). We think not. Of course, we are aided by the presumption that the legislature made an informed judgment as to the need in employing this classification. Wages v. State, supra. We hold that the requirements set out in Reynolds have been met.

Nevertheless, there may be, and we are urged to find, other infirmities which may be fatal to the statute. The ap-pellees observe that Act 389 applies only to “ ‘counties having populations of 600,000 or more according to the most recent federal decennial census . . .which forever limits its application to Jefferson County. We may, of course, take judicial notice of the fact that the Act is presently applicable only to Jefferson County. Masters v. Pruce, 290 Ala. 56, 274 So.2d 33 (1973). However, this alone does not compel the conclusion that the Act is a local one. Brittain v. Weatherly, 281 Ala. 683, 207 So.2d 667 (1968). Still, for the Act to be a “general” law it must have application to a shifting class. In other words, there must exist a possibility of application to other counties which may come within the classification fixed by the statute. Ostensibly, a statute which is tied to a specific census would prevent its prospective application. This court, however, has interpreted a phrase similar to the one in Act 389 “ . . . as having a prospective and progressive application, and not confined to a status existing at the time of the passage of the Act.” State v. Baumhauer, 244 Ala. 71, 72, 12 So.2d 342 (1943). This interpretation is conclusive in the instant case; chus, Act 389 will apply to counties subsequently falling within the population classification provided in the Act.

The appellees also argue that the Act provides for a double classification. If the chief deputy sheriff in a qualifying county has a law degree, the Act fixes his rate of compensation; if he does not, the Act provides "... his compensation shall be as set for the position of chief deputy sheriff in the classified service of the county.” A double classification per se is not necessarily fatal as both conditions may be reasonably related to the objective of the statute. Board of Revenue of Jefferson County v. Huey, 195 Ala. 83, 70 So. 744 (1916). The danger in the use of such a classification is that it may prevent the prospective application of the Act or may destroy the reasonable relationship with its subject matter. Jefferson County Board of Health v. City of Bessemer, supra. The question in the instant case, however, is whether the Act has a double classification at all. The second classification, as defined by the appellees, adds nothing to existing law. The rate of compensation for deputy sheriffs is already fixed by the personnel board; the statute merely acknowledges this fact and provides for compensation for a chief deputy sheriff holding a law degree. As we read the Act, it contains only one classification. But, assuming there are two in Act 389, we cannot say that both were not reasonably related to the purpose of the statute — to provide for the more efficient administration of justice in the large urban areas. We find no double classification that would render the statute constitutionally infirm.

The appellees next contend that Act 389 is in conflict with the Civil Service Law of Jefferson County. They point out that the Act establishes compensation for the “position” of chief deputy sheriff and that the Civil Service Law requires the Director of Personnel, subject to the approval of the Personnel Board, to establish salaries for positions in the classified service. They assert, therefore, that if the Board’s right to set compensation for this position was repealed by Act 389, the right to set compensation for all positions must be repealed, effectively repealing the entire Civil Service Act, which the legislature obviously did not intend to do. We agree with the appellees that the legislature did not intend to repeal the entire Civil Service Act. The Act, by its terms, requires the compensation of a chief deputy sheriff, not holding a law degree, to be fixed by the Personnel Board, and we have noted that this does not change existing law.

In Jansen v. State, 273 Ala. 166, 137 So.2d 47 (1962), we quoted from 50 Am.Jur., Statutes, § 520, p. 529:

“ * * Where an act, which is not a complete law within itself covering the whole subject, contains a provision to the effect that all laws and parts of laws inconsistent or in conflict therewith are repealed, the repeal extends to conflicting statutes and provisions only; all laws and parts of laws not in conflict therewith are left in full force and effect. A statute which is not wholly inconsistent with the new act continues in force except in so far as it conflicts therewith. * * *”’ (273 Ala. at 170, 137 So.2d at 50)

Also, we quoted from 82 C.J.S. Statutes § 291, p. 492:

“ ‘Where there is sufficient repugnan-cy or inconsistency between two statutes, or parts of two statutes, to effect a repeal by implication, the earlier statute is impliedly repealed to, and only to, the extent of the conflict, repugnancy, or inconsistency. . . (273 Ala. at 170, 137 So.2d at 50)

Thus, the power of the Personnel Board to fix salaries, etc., of positions other than that of the chief deputy sheriff is not affected by Act 389.

The appellees maintain that the Act is invalid, since it does not define or explain “educational incentive pay” and does not indicate whether the requisite law degree must be conferred by an accredited or an unaccredited law school. Indeed, Act 389 does not explain educational incentive pay, nor do we find it explained in the Civil Service Act applicable to counties of this size. But the Civil Service Act does require the Personnel Director, subject to the approval of the Personnel Board to:

“. . . Classify or direct the classification of all positions to be held under either municipal or county authority in accordance with the provisions of this subdivision and in accordance with the duties attached to such positions. At least once every five years, grade and classify or direct the grading and classification of all positions in the county and in each city in the county and for each appointing authority with respect to salary . . .” Code of Alabama Recompiled 1958, Appendix, § 656.

Such grading is required, as recognized in Act 389, but Act 389 refers, in addition, to educational incentive pay. The term is not so uncertain and vague as to invalidate the Act. It is clear that the legislature intended to establish the chief deputy sheriff’s compensation at least at three pay grades higher than the position next below the position of chief deputy sheriff. The term “including educational incentive pay” simply means that additional educational achievements may be considered in setting salaries for chief deputy sheriffs in counties having more than 6000,000 people.

No ambiguity fatal to the Act results from the failure of Act 389 to specify whether the required law degree must be awarded by an accredited or unaccredited law school. The legislation does not require a chief deputy sheriff to be “learned in the law” which we have said means being “ . . . admitted to practice [law] in Alabama or entitled to be admitted without further examination.” Opinion of the Justices, 279 Ala. 38, 42, 181 So.2d 105, 109 (1965). The statute merely retires a law degree and does not require that, in addition, it be conferred from an accredited law school.

We now move to the provision making the Act retroactive to January 1, 1975. The appellees cite us to Section 68 of the Alabama Constitution which recites:

“The legislature shall have no power to grant or to authorize or require any county or municipal authority to grant, nor shall any county or municipal authority have power to grant any extra compensation, fee, or allowance to any public officer, servant, or employe[e], agent or contractor, after service shall have been rendered or contract made, nor to increase or decrease the fees and compensation of such officers during their terms of office; nor shall any officer of the state bind the state to the payment of any sum of money but by authority of law; provided this section shall not apply to allowances made by commissioners’ courts or boards of revenue to county officers for ex officio services, nor prevent the legislature from increasing or diminishing at any time the allowance to sheriffs or other officers for feeding, transferring, or guarding prisoners.”

The appellant cites us to Amendment II to the Alabama Constitution, which he claims exempts Jefferson County from the application of § 68. This amendment provides :

“The legislature of Alabama may hereafter, from time to time, by general or local laws, fix, regulate and alter the costs, charges of courts, fees, commissions, allowances or salaries to be charged or received by any county officer of Jefferson County, including the method and basis of their compensation.”

It is clear, however, that this amendment removes only the restriction placed on the legislature by Section 68 relating to the increase or decrease of the salary of an officer during his term of office. Hawkins v. Jefferson County, 233 Ala. 49, 169 So. 720 (1936). See, also, Section 281. It does not remove the prohibition against granting compensation after services have been rendered. Section 5 of Act 389 contravenes this section of the Alabama Constitution and must, if possible, be severed from the remainder of the Act. This provision can be severed from the Act without damage to the legislative intent. The Act contains a severability clause, which should be given effect, where possible, to save a legislative enactment. Allen v. Walker County, 281 Ala. 156, 199 So.2d 854 (1967). We conclude that we may extirpate § 5, without rendering the remainder of the Act meaningless, and thus give effect to the severability clause of Act 389.

In summary, we find Act 389, with the retroactive provision pared from the Act, to be constitutionally inoffensive. In arriving at this conclusion, we are fully aware of cogent criticism of census legislation in general and, specifically, criticism that the legislature, by enacting such legislation, has ignored the Constitution. See Adams, Legislation by Census: The Alabama Experience, 21 Ala.L.Rev. 401 (1969). While these arguments are impressive, we are reluctant at this time to overturn a long line of cases establishing standards for “general” laws, or standards for determining reasonable relationship of the classification to the objective of the legislative enactment. In any case, we resist the temptation at this point to interpret differently the applicable provisions of the Constitution of 1901.

REVERSED AND REMANDED.

HEFLIN, C. J., and MERRILL, BLOODWORTH, MADDOX, FAULKNER, ALMON and EMBRY, JJ., concur.

JONES, J., dissents.

JONES, Justice

(dissenting):

In registering this dissent, I would emphasize at the outset that my affirmance of the trial Court’s judgment of unconstitutionality of Act 389 is not based on any “general act of local application” test. Rather, my dissent is more basic. The constitution provides for two classes of legislation — general laws and local laws. A “general law of local application” is a judicial invention in clear and unequivocal contravention of the constitution. It is a judicially created hybrid — not contemplated nor provided for by the constitution— which permits the passage of local acts without the necessity of advertising.

I realize this Court has been applying the Reynolds’ test for well over 50 years. During this period, precedent is ample to affirm or reverse the trial Court’s ruling on census legislation on practically any given set of facts. This is precisly what happens when an appellate court winks at a clear constitutional mandate. That this Act is a local law as contemplated by the constitution is beyond serious question. To call it a general act of local application— although meeting the Reynolds’ test — is to continue to indulge a judicially created fiction not in tune with constitutional reality.

The Act here under consideration is a meritorious one. It provides increased compensation to the chief deputy sheriff of the state’s most populous county on the condition that he obtain a law degree. Indeed, such legislation would be commendable if made applicable to every county of our state. But, when not so applied, only one invariable conclusion obtains: it is a local law, and the constitutional requirements for a local law have not been complied with. The Act is constitutionally invalid. I would use this case as the vehicle for placing the legislature on notice that henceforth the constitutional demarcation between local laws and general laws would be judicially recognized and enforced.