author: LEE, Justice,

text:
    Claude T. MILLER, d/b/a 4M Construction Company v. GLENDALE EQUIPMENT & SUPPLY, INC.
    No. 49282.
    Supreme Court of Mississippi.
    April 6, 1977.
    Rehearing Denied April 27, 1977.

      Crawley & Ford, Michael H. Steele, Kosciusko, for appellant.
    Brooks & Guyton, William D. Brooks, Kosciusko, for appellee.
    Before INZER, SUGG and LEE, JJ.
   LEE, Justice,

for the Court:

Claude T. Miller filed suit in the Circuit Court of Attala County against Glendale Equipment & Supply, Inc. for damages resulting from a breach of contract. The trial court entered an order dismissing the cause for lack of jurisdiction under Mississippi Code Annotated § 13-3-57 (1972) [Long Arm Statute] and Miller appeals.

The only question presented here is whether or not the statute applies and whether or not the trial court erred in dismissing the suit.

On March 19, 1975, Joseph Diamond, President of Glendale Equipment & Supply, Inc., and Miller entered into a contract by telephone for the sale and purchase of a bulldozer (tractor) at a price of twenty-one thousand dollars ($21,000). Glendale agreed to deliver the machine from Canton, Ohio (its domicile) to Miller in Attala County, Mississippi. Miller sent a check to Glendale in said amount and when it cleared, Glendale delivered the machine to Miller’s farm on one of its low-boy trucks. Miller unloaded the bulldozer and found it to be in unsatisfactory condition and in need of extensive repairs. He then insisted that Glendale’s driver call Diamond by telephone in Canton, Ohio, which was done. Diamond agreed to send certain new parts to Miller and to pay for installing same. Glendale was not doing business in the State of Mississippi, and had not sold or delivered any other machines or equipment in Mississippi.

The case of Smith v. Temco, Inc., 252 So.2d 212 (Miss.1971) is controlling here. In that case, Temco was not doing business in the State of Mississippi and was domiciled in Nashville, Tennessee. It manufactured heaters and, through a circuitous route in interstate commerce, a defective heater was finally purchased by a resident of Mississippi. As a result of the defect in the heater, Smith’s house burned and was destroyed together with its contents. Suit was filed against Temco in tort and process was obtained under that part of the statute which provides: “Any nonresident person, firm, . . . who shall commit a tort in whole or in part in this state against a resident of this state, . . . ” The trial court held that the long arm statute did not apply and dismissed, the suit. In reversing and remanding the cause, this Court stated:

“Thus the narrow question presented for determination on this appeal is squarely posed. Does the Mississippi ‘long arm’ statute, under the amendment which became effective July 1, 1964, the amended statute now appearing as Mississippi Code 1942 Annotated section 1437(a) (Supp.1970), confer jurisdiction upon the Circuit Court of Pearl River County?
Mississippi Code 1942 Annotated section 1437(a) (Supp.1970), containing the July 1,1964 amendment, provides in part:
(a) Any nonresident person, firm, general or limited partnership, or any foreign or other corporation not qualified under the Constitution and laws of this State as to doing business herein, who shall make a contract with a resident of this State to be performed in whole or in part by any party in this State, or who shall commit a tort in whole or in part in this State against a resident of this State, or who shall do any business or perform any character of work or service in this State, shall by such act or acts be deemed to be doing business in Mississippi. Such act or acts shall be deemed equivalent to the appointment by such nonresident of the Secretary of State of the State of Mississippi, or his successor or successors in office, to be the true and lawful attorney or agent of such nonresident upon whom all lawful process may be served in any actions or proceedings accrued or accruing from such act or acts, or arising from or growing out of such contract or tort, or as an incident thereto, by any ssch nonresident or his, their, or its agent, servant or employee. (Emphasis added).
Our present concern is limited to an interpretation of this new language, which was inserted by the 1964 amendment: ‘ * * * who shall commit a tort in whole or in part in this State against a resident of this State. * * * ’
* * * * * *
In the cases decided under the statute before the 1964 amendment, this Court held, in effect, that Mississippi courts per-sonam jurisdiction of the nonresident defendant was dependent upon whether such defendant had, or had not been ‘doing business’ in Mississippi, or whether it had or had not ‘sufficient significant contacts in Mississippi’ to subject it to the jurisdiction of the Mississippi courts. This test was further restricted to those cases in which ‘traditional notions of fair play and of substantial justice’ were not offended. Collins v. Truck Equipment Sales, Inc., 231 So.2d 187 (Miss.1970); Hilbun v. California-Western States Life Ins. Co., 210 So.2d 307 (Miss.1968); Mladinich v. Kohn, 186 So.2d 481 (Miss.1966); Breckenridge v. Time, Inc., 253 Miss. 835, 179 So.2d 781 (1965); Republic-Transcon Industries, Inc. v. Templeton, 253 Miss. 132, 175 So.2d 185 (1965); Mladinich v. Kohn, 250 Miss. 138, 164 So.2d 785 (1964).
By the insertion of the new matter, there can be no doubt that the intention of the Legislature was to broaden the scope of the statute and to enlarge the jurisdiction of the Mississippi courts so as to reach nonresident defendants in two new and distinct categories: (1) The nonresident defendant who shall make a contract with a resident to be fulfilled in the State in whole or in part, and the (2) nonresident defendant who shall commit a tort, in whole or in part, in this State against a resident of the State.
* * * * * *
In our view, one of the fundamental objects of the Legislature in adopting the 1964 amendment was to extend the per-sonam jurisdiction of the courts of this State to the nonresident who may commit a tort in this State, either in whole or in part, to the injury of a resident of the State so as to provide a practical means for the enforcement of rights accruing under the products liability doctrine.
* * * * * *
The trial court erred in holding that it was without jurisdiction in the present case and in sustaining Temco’s motion to dismiss. The judgment appealed from is reversed and the case is remanded.” 252 So.2d at 214-217.

We make no distinction in that part of the statute which confers jurisdiction where a contract is performed in whole or in part by any party in this state with that which provides jurisdiction against a nonresident who shall commit a tort in whole or in part in this state against a resident of this state.

Other jurisdictions have adopted a similar construction previous to Temco. McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), involved construction of the California long arm statute. In 1944 Lowell Franklin, a resident of California, purchased a life insurance policy from the Empire Mutual Insurance Company, an Arizona corporation. In 1948, International Life Insurance Company assumed the insurance obligations of Empire Mutual and mailed a reinsurance certificate to Franklin in California, offering to insure him in accordance with the terms of the Empire Mutual policy. Franklin accepted the offer and from that time until his death in 1950 paid premiums by mail from his California home to International’s Texas office. His beneficiary filed proofs of death, but International refused to pay, claiming that Franklin had committed suicide. International did no business in California. Under those facts, the United States Supreme Court held that the California statute was constitutional, that International Life had no vested right not to be sued in California and that the California court had jurisdiction over the cause.

In Electro-Craft Corp. v. Maxwell Electronics Corp., 417 F.2d 365 (8 Cir. 1969), a Minnesota corporation negotiated by mail and telephone for the purchase of certain merchandise from Maxwell Electronics Corporation domiciled in the State of Texas. The merchandise was shipped F.O.B. in five (5) shipments between November 2 and November 22, 1965. Electro-Craft sued for fraud, misrepresentation, breach of contract and breach of warranty.

The transaction involved was the only one between the parties and Maxwell never had an officer, employee or agent in Minnesota, never maintained an office or any physical facility in Minnesota, never advertised in Minnesota and was not qualified to do business in Minnesota. The Court held that while the contract was consummated in Texas, contractual consequences were reasonably anticipated in Minnesota and that the exercise of jurisdiction was consistent with constitutional requirements.

In the present case, the contract was made over the telephone by Glendale, a nonresident corporation, with Miller, a resident of this state. Miller obtained and mailed the $21,000.00 check from Mississippi to Glendale in Ohio. Glendale delivered the machine through its agent to Miller in Mississippi using the roadways of this state. Certainly, the contract was performed in part by Glendale and Miller in the State of Mississippi.

The trial court erred in holding that it did not have jurisdiction under the Mississippi long-arm statute and in sustaining appel-lee’s motion to dismiss. The judgment appealed from is reversed and the case remanded.

REVERSED AND REMANDED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER and BROOM, JJ., concur.


source: Caselaw Access Project

author: WALKER, Justice,

license: Public Domain

text:
    Thomas WILSON v. STATE of Mississippi.
    No. 49596.
    Supreme Court of Mississippi.
    April 6, 1977.

      Joe B. Timmons, Tupelo, for appellant.
    A. F. Summer, Atty. Gen. by John C. Underwood, Jr., Special Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, SMITH and WALKER, JJ.
   WALKER, Justice,

for the Court:

On May 23,1975, two armed men held up the office of the People’s Bank & Trust Company in Guntown, Mississippi, escaping with $15,000 in cash. Soon thereafter, Thomas Wilson was arrested and charged with the crime. Upon his trial in the Circuit Court of Lee County, the jury found him guilty of armed robbery and sentenced him to life imprisonment. In his appeal, he cites several procedural errors which require only brief comment.

Wilson alleges that the trial court improperly admitted evidence of other crimes. Two employees of the bank testified that, in addition to stealing the bank’s money, Wilson had ordered two employees to place their wallets in the bag. The theft of the wallets was not charged in the indictment. Highway Patrolman Herman Davis testified that he had heard the report of the robbery, and soon thereafter noticed a pickup truck corresponding to the description of the criminal’s vehicle. He testified that, although he turned on his lights and his siren, the truck refused to pull over. When the truck finally stopped, Wilson and his companion opened fire on the patrolman and the Prentiss County sheriff’s car. This gun battle was not charged in the indictment, and Wilson contends that it was error to admit Davis’ testimony. It is true that the general rule is that evidence of crimes not charged is ordinarily inadmissible against the defendant. Hawkins v. State, 224 Miss. 309, 324-25, 80 So.2d 1, 8-9 (1955). However in that very opinion, the Court stated, “Evidence of other crimes is always admissible when such evidence tends directly to establish the particular crime” charged in the indictment. Id at 325, 80 So.2d at 9. There can be no doubt that Wilson’s decision to open fire on Officer Davis within minutes after the robbery tended to prove his guilt. See Cooper v. State, 218 So.2d 874 (Miss.1969). Likewise, the testimony that Wilson had stolen the two wallets was admissible because it was “reasonably connected” with the offense charged. See Brooks v. State, 242 So.2d 865, 869 (Miss.1971).

The bank manager testified that within thirty minutes after the robbery, police officers returned the money and the two suspects to the bank. An F.B.I. agent asked the manager if he could identify the suspects, and the manager replied that Wilson and his companion were indeed the robbers. At that time, a teller also identified Wilson as the culprit. At trial, both the manager and the teller made a positive identification of Wilson. The Supreme Court of the United States has held that such in-court identifications are admissible, even though the witnesses had previously identified the defendant at a lineup outside the presence of his attorney, if the state can “establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification.” United States v. Wade, 388 U.S. 218, 240, 87 S.Ct. 1926, 1939, 18 L.Ed.2d 1149, 1164 (1967). This same principle applies where, as here, no lineup is used, but the suspect alone is exhibited to the witnesses. The Supreme Court has held that such a showing is permissible, despite the absence of counsel for the suspect, where, as here, it takes place before indictment. See Kirby v. Illinois, 406 U.S. 682, 690-91, 92 S.Ct. 1877, 1882-83, 32 L.Ed.2d 411, 418-19 (1972). In this case, the trial judge heard extensive testimony, outside the presence of the jury, from both the manager and the teller which satisfied him that their identifications were based, not on their observation of the defendant after his arrest, but on their recollections of the crime itself. We cannot say that he was wrong, and we hold that their testimony was properly admitted.

Wilson also contends that a new trial should have been declared because of the following language in the state’s closing argument: “This is your community. You live in it. You set the standards. And today you can set a standard that you can live by.” However, Wilson’s counsel did not object to this argument until after the jury had been excused. For this reason alone, the trial court was justified in overruling his motion. Clemons v. State, 316 So.2d 252 (Miss.1975). Furthermore, it does not seem to us that this statement could possibly have prejudiced the defendant.

Wilson further contends that the evidence does not support the jury’s verdict. Upon a review of the whole record, including the positive identifications by the bank personnel, we are convinced that the record does support the verdict.

Finding no merit in any of the defendant’s assignments of error, we conclude that his conviction and sentence must be affirmed.

AFFIRMED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, BROOM and LEE, JJ., concur.


text:
    EMPIRE, INC. by its President, Cecil F. Taylor and Cecil F. Taylor, Individually, et al. v. DELTA DEVELOPMENT AND MANAGEMENT CORPORATION.
    No. 49325.
    Supreme Court of Mississippi.
    April 13, 1977.
    Davey L. Tucker, Jackson, for appellants.
    Perry, Phillips, Crockett, Morrison & Herring, Carl F. Andre, Jackson, for appellee.
    Before INZER, P. J., and SUGG and LEE, JJ.
   AFFIRMED.


text:
    Jarvis E. HYMAN v. STATE of Mississippi.
    No. 49672.
    Supreme Court of Mississippi.
    April 13, 1977.
    Louis Fondren, Pascagoula, for appellant.
    A. F. Summer, Atty. Gen., by Pete J. Cajoleas, Special Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., and SUGG and LEE, JJ., and CLARENCE MORGAN, Commissioner.
   AFFIRMED.


author: FAULKNER, Justice. MADDOX, Justice FAULKNER, Justice.

text:
    INDUSTRIAL MACHINERY, INC., a corp., and Alabama Outdoor Advertising Co., Inc. v. CREATIVE DISPLAYS, INC.
    SC 1822.
    Supreme Court of Alabama.
    Feb. 4, 1977.
    Rehearing Denied April 8, 1977.

      William M. Acker, Birmingham, for Alabama Outdoor Advertising Co.
    William J. Sullivan, Jr., Birmingham, for Industrial Machinery, Inc.
    W. Frank Greenleaf and James A. Harris, Jr., of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, for appel-lee.
   FAULKNER, Justice.

This is a contest between two lessees— each claiming the other’s lease to be void. The trial court declared the first lease void, and the second valid. We affirm.

On December 5, 1972, Alabama Outdoor Advertising Co., Inc. leased part of a lot from All State Linen Service Co. to erect a commercial advertising sign. The term of the lease was for “. . . Indefinite years, beginning ... 1 day of January, 1973, and ending . . . year to year thereafter.” The consideration was $1.00 plus Alabama Outdoor’s painting an on-premises sign to advertise All State’s business. The sign was painted, but no billboard was ever erected by Alabama Outdoor. The lease was not recorded. On March 24, 1975, the lot was purchased by Industrial Machinery, Inc., and in April, for $600 a year, payable in equal monthly installments, it leased part of the lot to Creative Displays, Inc. The term of the lease was to begin on the date a billboard was erected, and to run for a period of 5 years thereafter. The lease contained a condition that “Creative Displays will not be bound by this contract unless authority can be obtained to build 5 similar structures (uni-poles) in the city of Birmingham on the Interstate.” Creative applied to the State Highway Department in July for a building permit, but the Department refused to grant it. In August, Creative began paying the monthly rental payments. Upon its learning of the All State lease to Alabama Outdoor, Industrial Machinery filed a declaratory action to have the lease to Creative declared void, and the Alabama Outdoor lease declared valid. The court found the lease to Alabama Outdoor void, and the lease to Creative valid and binding on Industrial Machinery.

1.

All State — Alabama Outdoor Advertising Lease

A lease for a term of years must have a term certain. There must be a certain beginning and a certain ending. See National Bellas Hess, Inc. v. Kalis, 191 F.2d 739 (8th Cir. 1951), cert. denied, 342 U.S. 933, 72 S.Ct. 377, 96 L.Ed. 695; Ehrlich v. Barbatsis Holding Co., 63 So.2d 911 (Fla.1953). The lease to Alabama Outdoor began on January 1, 1973, for a term of “indefinite years," ending “year to year thereafter." Thus, there was no certain ending, thereby rendering the lease void for a term of years. However, a tenancy at will was created. Where the end of the term is indefinite and uncertain there is no valid lease for a term of years, but an estate at will is thereby created. 3 Thompson on Real Property § 1088 (1959); National Bel-las Hess, Inc. The question, therefore, is for what period of time was the tenancy at will in existence. We are of the opinion that the resulting tenancy at will began on January 1, 1973, and ended when the property was conveyed to Industrial Machinery, Inc. on March 24, 1975. “[T]he rule generally followed in this country is that a tenancy at will is terminated by a conveyance of the premises by the landlord . . .49 Am.Jur.2d Landlord and Tenant § 79; accord, Annot., 120 A.L.R. 1006 (1939). We opine also that notice to Alabama Outdoor to terminate was not required. Ten days notice is required under Title 31, § 3 of the Code of Alabama 1940 only when the tenancy at will is expressly created. Martin v. Carroll, 259 Ala. 197, 66 So.2d 69 (1953).

Because the lease terminated when the property was conveyed, we do not decide the issue of priority of the lease.

II.

Industrial Machinery — Creative Displays Lease

The first question raised as to the validity of the Industrial Machinery — Creative lease is whether a lease which is not binding on one party until the happening of an event controlled in part by that party is mutually binding. Alabama Outdoor and Industrial Machinery contend that the contract provisions stating that Creative will not be bound unless authority can be obtained to build a billboard on Industrial Machinery’s lot and to erect 5 unipoles on the Birmingham Interstate give Creative a unilateral right to terminate the lease and that, hence, the lease is void for want of mutuality. Alabama Outdoor and Industrial Machinery further argue that, assuming that the lease is not found void for want of mutuality, the lease was terminated when Creative was unable to obtain authority to construct the billboards as expressly provided in the lease.

Real estate purchase and lease contracts commonly contain a clause stating that the conveyance is subject to securing a zoning change. Such a clause is a protective provision for the buyer or lessee which does not per se make a contract void for want of mutuality. To hold otherwise would place too much risk on the buyer or lessee so as to prevent the development of property. This lease is not void for want of mutuality because of the protective provisions.

The lease was not terminated because Creative was unable to obtain the authority to erect the unipoles. Creative made a good faith effort to obtain that authority. After being denied that authority but still within four months of the signing of the lease, Creative began making the monthly rental payments, thus waiving the protective provisions, and binding itself to the lease.

The case of LaGrave v. Jones, Ala., 336 So.2d 1330 (1976), is controlling as to the waiver question. In that case this court held that a purchaser of land has the right to waive a condition for his exclusive benefit in a contract for the sale of that land to him. Accord, Hodge v. Joy, 207 Ala. 198, 92 So. 171 (1921) (lease contract); Commercial Union Fire Ins. Co. v. Parvin, 279 Ala. 645, 189 So.2d 330 (1966); cf. Young v. U. S., 327 F.2d 933 (5th Cir. 1964).

The facts of LaGrave and the instant case are similar. In LaGrave the parties were concerned with a purchase option with the following conditions: (1) that it would expire on a certain date unless exercised prior to that date, (2) that it was subject to the buyers’ being able to secure certain zoning changes, and (3) that the purchase price was to be a certain figure. The buyers, after their request for a variance was denied, notified the sellers that they exercised the option despite the denial, but the sellers refused to convey the property. This court found a valid waiver and required the conveyance.

In the case at bar, it was undisputed that the protective provisions were solely for the benefit of Creative. Although no specific date was mentioned, there was an implied condition of reasonable time within which Creative was to erect the billboard. Both contracts were subject to the obtaining of certain zoning changes, and both specified a certain conveyance price. That we are not here concerned with an option is insignificant because the waiver rule applies to all contracts, not just option contracts. See Ala. Tailoring Co. v. Judkins, 205 Ala. 601, 88 So. 865 (1921).

The payment of rent indicated to Industrial Machinery, Creative’s intention to waive the protective provisions and bind itself to the lease despite the State Highway Department’s refusal to issue the permits. It would not be fatal to the validity of the contract if Creative did not expressly inform Industrial Machinery of the waiver, since- the waiver of contract provisions may be implied from acts and circumstances surrounding the performance of the contract. Stauffer Chemical Co. v. Brunson, 380 F.2d 174 (5th Cir. 1967). Moreover, Industrial Machinery, by its acceptance of the August and September rent checks, impliedly agreed to the waiver. Industrial Machinery cannot repeal its acceptance or rescind the contract by merely sending a check to Creative in the amount of the past rent payments. Rescission requires that the minds of all the parties “meet in an agreement or mutual release fully settling all rights under the contract.” San-Ann Service Inc. v. Bedingfield, 293 Ala. 469, 473, 305 So.2d 374, 377 (1974).

III.

Alabama Outdoor and Industrial Machinery further contend that the second lease is not binding because it is too indefinite and uncertain as to the commencement date. This argument is based on the fact that Creative has not promised to pay the rent until the date the board is erected, a date which is in Creative’s discretion.

Once the rent payments were offered and accepted, commencement of the leasehold term was made definite. See Hackney v. Griffin, 244 Ala. 360, 13 So.2d 772 (1943). Payment removed any uncertainty of the commencement of the leasehold term since it was an indication of Creative’s intention to be bound and to waive the provisions. See Hodge v. Joy.

“It is presumed that parties intend to make a reasonable, rational contract.” Lowery v. May, 213 Ala. 66, 71, 104 So. 5, 9 (1925). For this lease to be a reasonable and rational contract, a condition of reasonable time as to the commencement date must be implied. See Allison v. Lee, Ala.App., 333 So.2d 149 (1976).

Alabama Outdoor and Industrial Machinery have failed to show that Creative violated the implied condition of reasonable time as defined by business custom. To the contrary, the evidence shows that Creative made a good faith effort to erect the billboard soon after the lease was signed and in fact commenced making rent payments a mere 3V2 months after signing the lease. We have long recognized a presumption in favor of the validity of a contract, especially when attacked for uncertainty. McIntyre Lumber & Export Co. v. Jackson Lumber Co., 165 Ala. 268, 51 So. 767 (1910).

Although there are no Alabama cases on point, we find that the better rule is that a valid term for years may be created to begin in the future and that a lease may provide that the term may commence on the happening of a stated event. See, e. g., Wunsch v. Donnelly, 302 Mass. 286, 19 N.E.2d 70 (1939); DePauw University v. United Elec. Coal Co., 299 Ill.App. 339, 20 N.E.2d 146 (1939); Carolina Helicopter Corp. v. Cutter Realty Co., 263 N.C. 139, 139 S.E.2d 362 (1964).

Alabama Outdoor and Industrial Machinery also contend that the Creative lease violates the rule against perpetuities, as codified in T. 47, § 16 of the Code of Alabama, because the lease begins only upon the happening of an event. We reject this contention. The facts of this case do not invoke the operative effect of the rule.

The trial court correctly held the lease from Industrial Machinery to Creative Displays to be a valid lease, binding both parties to it.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, JONES, EMBRY and BEATTY, JJ., concur.

SHORES, J., concurs in the result.

MADDOX, J., concurs specially.

MADDOX, Justice

(concurring specially).

I concur in Parts II and III of the opinion authored by Mr. Justice Faulkner. I concur in the result reached in Part I because of the following reasons.

The trial court found, with regard to the All State—Alabama Outdoor Advertising Lease as follows:

“The Court finds that both IMI and Alabama Outdoor have completely failed to prove that Allstate had any right, title or interest in the property in question. The only evidence before the court is that Allstate was the occupant of the premises. For aught that appears, Allstate could have been a mere licensee, or even a trespasser. Alabama Outdoor cannot acquire a greater right or interest in the property than its lessor. . . .”

Appellants attack this finding and conclusion, saying that Alabama Outdoor, as lessee, did not have to show that All State had authority to lease the subject property. I disagree. Plaintiff, IMI, alleged in its complaint, as follows:

“(3) Prior to April 15, 1975, IMI purchased the following described real property situated in Jefferson County, Alabama, to-wit:
(DESCRIPTION)
On April 15, 1975, IMI did not know that its predecessor which occupied the said real property had executed a lease of the subject property to Alabama Outdoor permitting Alabama Outdoor to erect and to maintain a billboard on the subject property. .
“(7) IMI takes the position and submits that the purported lease of April 15, 1975 to Creative is void and unenforceable for the following separate and several reasons:
“(a) It was precluded by.a preexisting exclusive lease to Alabama Outdoor. . ” [Emphasis added].

Alabama Outdoor admitted the execution of the lease and the allegations of paragraph 7. Consequently, IMI and Alabama Outdoor both took the same position that the Alabama Outdoor lease was valid and exclusive. Defendant, Creative, in its answer, denied the allegations of paragraph 7 of the complaint as set out. Creative admitted the allegations of paragraph 3 that IMI was the owner of the property but denied each and every other allegation of paragraph 3.

The evidence shows that IMI’s predecessor in title was “Marcia L. Pear, an undivided one-half interest and Charles S. Pear, as Trustee for Steven J. Pear and David Mark Pear, under Trust Instrument dated May 23, 1966. . not All State Linen. There was no showing, therefore, that All State Linen had any right, title or interest in the subject property at the time it executed the December 5, 1972, lease. A relationship between All State and the Pears may have existed. However, the parties did not request permission to obtain any additional evidence when the objection was raised by Creative during the trial. Creative’s objection came during the testimony of witness Womack:

“Q And is this your signature on the document identified as Plaintiff’s Exhibit 2?
“A Yes, sir, it is.
“Q ‘Alabama Outdoor Advertising Co., Inc. By,’ and that ‘Sam Womack,’ and that is you, right?
“A Yes.
“Q Now, on or about December 5, 1972, or prior to that, did you negotiate with representatives of an outfit called All State Linen Service Company, which led to the execution of this document?
“MR. HARRIS: Judge, I object to that on this ground:
“No one has shown the relationship of All State Linen to this property in question as a lessee or an owner. And his negotiations with anybody, just anybody that might come along, is totally irrelevant in this case. Insofar as it shows at this point, All State Linen Service had no interest, right, title, or anything else with respect to the property in question.
“MR. ACKER: If the Court please, I think the burden is on him to show that there is no relationship, rather than the burden on us to show there is.
“MR. HARRIS: That is a strange state of affairs, when he wants to prove a lease. We are supposed to preclude our lease, and I’ve got to prove that the person he entered into did not have any interest in the property?
“THE COURT: Sustain the objection.”

In view of the fact that IMI, in its complaint, had alleged that Alabama Outdoor’s lease was pre-existing, and exclusive, and that Alabama Outdoor had admitted this allegation and Creative had denied it, I believe that the burden of proving that the Alabama Outdoor lease was pre-existing and exclusive was on the party asserting it.

I have read the evidence and I believe that the trial court’s finding that IMI failed to prove that Alabama Outdoor’s lessor had any right, title or interest in the property is correct and I would affirm him on this basis.

Let me point out that I do not necessarily disagree with the principles of law set out in Part I of the majority opinion, especially if the majority holds that the purported lease of December 5, 1972, merely created a tenancy at will by implication, not expressly. I would not reach this point.

ON REHEARING

FAULKNER, Justice.

On application for rehearing, the original opinion is extended.

In pertinent part, the Alabama Outdoor lease is as follows:

“for the term of Indefinite years, beginning on the _1_ day of January 19 73 and ending on the year to year thereafter 19_, at the yearly rental of -One & No/100 plus privilege Dollars ( $1.00 1 payable in One time installments at the office of the Lessee with the right to the Lessee to extend this lease from year to year upon the same terms and conditions, the total of such extensions, however, not to exceed five years; such right of extension to be exercised by giving written notice thereof to the Lessor either by delivering the same to him personally, or by mailing the same addressed to him at his place of address shown below, or such other address as the Lessor may hereafter in writing specify, at any time during the last sixty days of the year next preceding the year for which such right of extension is exercised.”

The language limiting the total extensions to five years does not make this lease certain as to term. The language is not plain and does not clearly express the parties’ intent. A lease cannot be both “for the term of indefinite years” and for not more than five one-year extensions.

The typewritten language providing for indefinite year-to-year terms contradicts the printed language limiting the total extensions. The rule is well settled that where terms are inconsistent, typewritten terms control printed terms. 17 Am.Jur.2d Contracts § 271 (1964); 17A C.J.S. Contracts § 310 (1963). This court has long recognized that written matter prevails over printed matter, since it is “presumed to have commanded the stricter attention of the parties.” Thornton v. Sheffield & B. R.R. Co., 84 Ala. 109, 4 So. 197 (1887). See Porter v. Henderson, 203 Ala. 312, 82 So. 668 (1919); Burton v. Steverson, 206 Ala. 508, 91 So. 74 (1921). Cf. Tit. 7A, § 3-118(b), Code of Ala. 1940 (Re-comp. 1958). Since typewritten terms, like handwritten terms, represent the more deliberate and immediate expression of the parties’ meaning than printed terms, typewritten terms control printed terms. See Tit. 7A, § 3-118(b), supra. Thus, the Alabama Outdoor lease was for an indefinite term and was, therefore, void for a term of years.

APPLICATION FOR REHEARING OVERRULED.

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

BLOODWORTH and ALMON, JJ., not sitting.


author: MADDOX, Justice.

text:
    Harvey R. SMITH et al. v. Margaret Anne Alison GAMBLE.
    SC 1879.
    Supreme Court of Alabama.
    March 11, 1977.
    Rehearing Denied May 6, 1977.

      Drayton N. Hamilton and Edwin K. Livingston, Montgomery, for appellants.
    Harry W. Gamble for Gamble & Gamble, Selma, for appellee.
   MADDOX, Justice.

This appeal involves the question of whether a portion of the “Old Cahaba Road” in Dallas County was a “public road,” a “public easement” or a “private easement.”

Plaintiff-appellee, Margaret Anne Alison Gamble, filed her complaint against defendants, Harvey R. Smith, Vivian C. Smith, Jessie Lee Money, and Connie Money, in which she alleged that the defendants claimed a right to go over her lands to get to a public highway, and to use an old road on her land known as the “Old Cahaba Road.” Mrs. Gamble claimed that if the Old Cahaba Road was ever a public road, it had been abandoned. She petitioned for a decree that she was the owner of the lands described in her complaint and that defendants had no title therein.

Defendants filed a counterclaim alleging that the Old Cahaba Road is a public road; that through the open use of the road by defendants and the general public for over twenty years a public easement has been established and created in the road; that defendants had openly used the road for over twenty years with the knowledge of Mrs. Gamble; that it was the only practical means of ingress and egress to their lands and that by reason of such use they had acquired a private easement in the roadway. In their counterclaim the defendants sought to have the court enter a judgment finding that the road known as the Old Cahaba Road is a public road, or in the alternative, that they have a permanent easement in the roadway. The defendants also sought to have the court enjoin Mrs. Gamble from interfering with their use of the road.

The case was heard without a jury. The trial court entered a final judgment in favor of Mrs. Gamble. The defendants appealed, contending that the court erred in finding (1) that the Old Cahaba Road has been abandoned as a public road; (2) that there has been no public easement acquired in the use of the road; and (3) that there has been no private easement acquired by the defendants. Furthermore, the defendants submit that the trial court erred in its conclusions of law and the application of these legal conclusions to the evidence in this case.

The issues presented for review are as follows:

1. Whether the Old Cahaba Road is a public road.

2. Whether the general public has acquired a public easement in the Old Cahaba Road.

3. Whether the defendants have acquired a private easement in the Old Caha-ba Road.

I

Defendants contend that the Old Ca-haba Road is and was a public road. In support of their position defendants rely on an ancient surveyor’s map (1895) that was introduced by Mrs. Gamble. They further contend that the map has been on record in the Probate Court of Dallas County since September 19,1966. Conversely, Mrs. Gamble submits that there is no legal evidence that the road in question was ever used by anyone, or that it became a public road in any other way. Gamble further submits that a legend appearing on the 1895 map indicating that the dotted lines thereon show a public road is insufficient evidence for the court to conclude that a public road had then, in fact, been established. Gamble cites Benson v. Pickens County, 260 Ala. 436, 70 So.2d 647 (1954) for the proposition that the legend of a surveyor on an unofficial map which indicates only that certain dotted lines show a public road cannot, standing alone, serve as a basis for the court to conclude that a public road has been established.

Gamble contends that in the instant case, there can be no presumption of dedication. Although admitting that a public road may be dedicated by user, Gamble maintains that this presumption has been qualified and limited in its application to well defined highways running over improved or reclaimed lands and is not applicable to wooded or unimproved lands. Locklin v. Tucker, 208 Ala. 155, 93 So. 896 (1922). Gamble asserts that the evidence discloses that the roadway ran through wooded and unimproved lands. Moreover, Gamble contends that she is aided by a presumption that the user is merely permissive and under the law of Alabama involving dedication by use, the public user must be under a claim of right and not merely under the permission of the owner. In reply, the defendants point out that both Mrs. Gamble and the defendants used the lands for cattle raising and general farming purposes and that the lands are not unimproved or wooded lands. Defendants contend that there is no evidence which shows that these lands have not been in general use by the various owners including Mrs. Gamble’s predecessors in title. We find no error to reverse in this aspect of the appeal.

II

Defendants submit that the Old Cahaba Road has never been abandoned as a public road. Defendants contend that the burden of proof was upon Mrs. Gamble and that she has failed to prove an abandonment of the road by clear and satisfactory evidence as required by law in Alabama. Purvis v. Busey, 260 Ala. 373, 71 So.2d 18 (1954). Conversely, Gamble contends that if the road was ever established as a public road, it has now lost its character as such by non-user or abandonment by the public for the prescriptive period of twenty years or more. In support of her position that the Old Cahaba Road was not a public road, Gamble presented the testimony of her uncle, Dr. James F. Alison, Sr. Defendants maintain that the several witnesses who testified on behalf of the defendants overcame and refuted the recollections of Dr. Alison. Defendants contend that each of their witnesses testified as to their continual travels upon the Old Cahaba Road.

Although defendants concede that a portion of the Old Cahaba Road is probably closed to the public, they contend that the record discloses that the defendants and members of the general public used the remainder, of the roadway. Furthermore, defendants submit that the Old Cahaba Road was never vacated or closed under the provisions of Title 56, Sections 26-29, and 32, Code of Alabama.

In support of their position, defendants presented testimony of certain Dallas county employees wherein it was shown that county road machines and crews scraped and repaired the Old Cahaba Road and maintained the bridges thereon. Defendants contend that such maintenance on the part of the county was proof that the roadway was officially recognized as a public road. Gamble submits, however, that each county employee who testified to such work by the county admitted that it had long been the custom that the county performed maintenance work on private roads of landowners in the rural areas. Gamble points out that this practice of maintaining private roads by the county was so extensive that the County Commissioners passed a resolution dated December 9,1974, prohibiting such work on private roads.

We find no error to reverse on this aspect of the appeal.

Ill

Defendants contend that they have acquired a private easement in the Old Caha-ba Road, through open, adverse and continuous use for more than twenty years. Defendants submit that the use of this road by Mr. and Mrs. Money and many other members of the public for thirty years or more was so open to the world, including Mrs. Gamble and her mother’s agent, Dr. Alison, that this Court should not now permit Mrs. Gamble “to play ostrich.” In reply, Gamble contends that the evidence is wholly insufficient to establish a private easement in favor of the defendants. Gamble further contends that it is the settled law in Alabama that a private easement is not established merely by use of the lands of another for a period of twenty years or more. Cotton v. May, 293 Ala. 212, 301 So.2d 168 (1974); West v. West, 252 Ala. 296, 40 So.2d 873 (1949). Gamble maintains that the defendants have failed to show that their use of the road was adverse to the owners of the servient estate for the prescriptive period. Gamble submits that neither she, nor her mother before her, had knowledge of any adverse user by the defendants. .

Defendants contend that the West decision cited by Gamble has been materially eroded by this Court. Defendants submit that the case of Belcher v. Belcher, 284 Ala. 254, 224 So.2d 613 (1969), is dispositive of the issues herein. Defendants assert that a large number of families lived on the Old Cahaba Road, carried on daily activities on the road, attended church by use of the road and some of them even went to school at the church. Defendants contend that the evidence shows that the Old Cahaba Road is the sole road, is well defined, and is open to the general public. Accordingly, the defendants urge this Court to reverse and render the cause to the trial court, and set aside the trial court’s injunction.

Gamble asserts that the findings of fact by the trial court should not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the .witnesses. ARCP 52(a), Eubanks v. Richards, 294 Ala. 30, 310 So.2d 883 (1975). We agree. The conclusions of the trial judge, as contained in the final judgment, were based on findings determined from evidence which was conflicting. However, as to the three factual issues discussed in this opinion, we find that the judgment is fairly supported by credible evidence. Having reviewed the trial court’s findings of fact in accordance with this court’s rule of review, we fail to find that they are clearly and palpably wrong. Furthermore, we do not believe that the trial court made a misapplication of law to the facts. Murphree v. Swann, Ala., 342 So.2d 329. The judgment is due to be affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER, SHORES and BEATTY, JJ., concur.


author: EMBRY, Justice.

text:
    Jacob FREENEY v. Evangeline Freeney STALLWORTH et al.
    SC 2067.
    Supreme Court of Alabama.
    March 11, 1977.
    Rehearing Denied April 29, 1977.

      W. H. Baldwin, Andalusia, for appellant.
    Robert B. Albritton, Andalusia, for appel-lees.
   EMBRY, Justice.

The issue here is whether defendants to an action of partition and sale for division are entitled to a jury trial on demand. We hold they are and reverse.

Plaintiffs, the Stallworths and others, petitioned that a tract of land in Covington County be sold for division, alleging that they and defendants were joint owners, or tenants in common, of the property. Five of defendants, one of whom, Jacob Freeney, is appellant here, filed an answer that denied plaintiffs’ interest in the land, and alleged that Antnie (Anntie) Freeney was the true owner of the property, having acquired title by warranty deed; Antnie Freeney counterclaimed and alleged she is sole owner of the property by warranty deed and adverse possession. Plaintiffs filed a motion to strike defendants’ jury demand. It was granted. The court heard the evidence without a jury and entered a final decree; Antnie Freeney’s counterclaim was denied, the respective interests of plaintiffs and defendants, in the land, were determined and a sale for division ordered. Defendant Jacob Freeney was awarded a 54/1080 interest; other defendants and plaintiffs received varying fractional shares.

Jacob Freeney filed motion for rehearing on the grounds of failure to provide a jury trial as demanded, and failure to rule that Antnie Freeney and her sons Jacob, Altea, Orea and C. L. Freeney had acquired title to the property by adverse possession. The motion was denied. The defendant appeals, asserting the sole issue to be whether he is entitled to a jury trial.

The record before us consists only of the pleadings, motions, orders and final decree of the court. In his designation of the record on appeal, defendant requested no testimony be transcribed and based his appeal “on the record proper,” saying the issue for review is as stated above. Rule 10(b)(2), ARAP. Plaintiffs, appellees, designated other parts of the record on appeal: plaintiffs’ amended complaint alleging that the deed through which Antnie Freeney claims title to the land is null and void, the answer to Antnie’s counterclaim denying same, defendants’ amended answer pleading the statute of limitations, and Antnie Freeney’s motion for directed verdict. Plaintiffs also filed a motion to dismiss the appeal.

A. Right to jury trial

Title 7, § 326, Code of Ala. (1940), provides that a defendant in an action for partition, or sale for division, who denies plaintiff’s title or sets up an adverse claim is entitled, on demand, to a jury trial. This principle has been consistently adhered to in the decisions of this court. Biddy v. Biddy, 284 Ala. 68, 222 So.2d 162 (1969); Kirkley v. Green, 273 Ala. 602, 143 So.2d 454 (1962); Sandlin v. Anders, 210 Ala. 396, 98 So. 299 (1923). This is not, as plaintiffs contend, in conflict with Tit. 47, §§ 186 et seq. That statute confers upon the circuit court original jurisdiction to divide, partition, or sell for division, property held by joint owners. Because the statute provides that in such actions the court shall proceed “according to its own practices in equity cases” and that the court shall decide all questions concerning title, does not preclude or modify the right of those who deny plaintiffs title to a jury for the trial of fact issues. A careful reading of Sandlin v. Anders, supra, will show that the purpose of Tit. 47, § 186, was to abolish the old rule that a court of equity had no original jurisdiction to sell lands for division. The purpose of the statute was to avoid requiring a plaintiff to establish legal title in a court of law before bringing suit for partition in a court of equity. Under Tit. 47, § 186, questions of title and orders for sale or partition can be tried and made in the same forum. The right to jury trial, on demand, remains intact.

B. Motion to dismiss the appeal

Plaintiffs filed a motion to dismiss this appeal on various grounds, one of which is that the record on appeal is insufficient to support the appeal. Rule 10, ARAP, governs composition of the record on appeal. Subsection (b)(2) provides that appellant must, within seven days of notice of appeal, order and file a description of those parts of the proceedings he determines are necessary for inclusion in the reporter’s transcript. Appellant in the present case did not file any portion of the reporter’s transcript. Rule 10(b)(2) further provides that “ * * * if less than all of the proceedings are designated, in addition thereto the appellant shall serve on the appellee a statement of the issues he intends to present on appeal. * * * ” Appellant here, in his designation of record on appeal, states “ * * * having designated less than the entire reporter’s transcript * * * the issue to be presented for review is as follows:

“The correctness of the action of the trial court in granting the Appellees Motion to Strike the Demand of the Appellant for a jury trial in this cause.”

Included in the record on appeal are the pleadings, motions, orders, findings and final decree. The record, in this posture, is sufficient to support a review of the question presented as the issue on appeal in this action to sell for division. The trial court erred when it granted plaintiffs’ motion to strike defendants’ jury demand; the decree subsequently rendered is erroneous and defendants are entitled to a jury trial.

REVERSED AND REMANDED.

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


author: ALMON, Justice. BLOODWORTH, Justice,

text:
    STATE of Alabama v. Horace L. LONG, Jr., et al.
    SC 1378.
    Supreme Court of Alabama.
    April 1, 1977.
    Rehearing Denied May 6, 1977.

      Joseph J. Boswell, Sp. Asst. Atty. Gen., Mobile, for appellant.
    Victor T. Hudson, II, Mobile, for appellee.
   ALMON, Justice.

This appeal by the State of Alabama involves the condemnation by the State of approximately 96 acres for Interstate Highway 65 in the general vicinity of Mobile. The original application for condemnation was filed in the Probate Court of Mobile County. In accordance with a report by three commissioners appointed by the probate judge, the Probate Court awarded damages and compensation in the sum of $120,700.00.

Mr. and Mrs. Horace L. Long appealed to the circuit court and requested a jury. The only issue at trial was the fair market value of the property condemned. Expert witnesses placed the value of the property at between $93,000.00 (the lowest estimate, given by a State’s witness) and $513,510.00 (the highest estimate, given by an appellee’s witness). The jury assessed compensation damages at $290,000.00. The State appealed without filing a motion for a new trial.

In order to preserve for appeal questions related to damages, the State must file a motion for a new trial alleging as a ground that the verdict was excessive. State v. Ward, 293 Ala. 516, 306 So.2d 265 (1975). A similar requirement is placed on the con-demnee when he appeals. Mims v. Mississippi Power Company, 282 Ala. 90, 209 So.2d 375 (1968). The State failed to file such a motion; however, we now hold that such a motion is no longer required to preserve questions ruled on by the trial judge, though such a motion must still be made to preserve the specific question of excessive verdict.

I
“ ‘In several cases we have said in effect that where the issue involved in the trial of a condemnation case relates solely to damages and compensation to which a landowner is entitled, and the amount of the verdict of the jury is not questioned on appeal, assignments of error relating to the correctness of jury charges, jury arguments, and rulings on evidence which deal with damages and compensation, cannot work a reversal. —State v. LeCroy, 279 Ala. 428, 186 So.2d 142; State v. Dunlap, 279 Ala. 418, 186 So.2d 132; State v. Jackson, 279 Ala. 425, 186 So.2d 139; State v. Young, 279 Ala. 426, 186 So.2d 140; State v. Graf, 280 Ala. 71, 189 So.2d 912; State v. Peinhardt, 270 Ala. 627, 120 So.2d 728; State v. East Woodland Hills, Inc., 281 Ala. 430, 203 So.2d 447.
“‘For other cases to like effect see Alabama v. Ferguson, supra [269 Ala. 44, 110 So.2d 280]; Cooper v. Watts, 280 Ala. 236, 191 So.2d 519; Southern Railway Co. v. Edmunds, 280 Ala. 247, 192 So.2d 451. . .’” State v. Ward, supra, 293 Ala. at 519, 306 So.2d at 267 (1975). See also State v. Hines, 293 Ala. 509, 306 So.2d 259 (1975); State v. Pugh, 293 Ala. 593, 308 So.2d 248 (1975).

The only way to get the question of an excessive or inadequate verdict before the trial court is on a motion for a new trial. There is no other way that a trial judge can rule on it, and such a ruling is necessary to preserve the question for appeal. An analogous situation exists when the question of sufficiency of the evidence is raised; the only way to preserve it for appeal is to raise it in a motion for a new trial (or perhaps by motion for judgment notwithstanding the verdict). Horn v. Smith, 292 Ala. 503, 296 So.2d 719 (1974). However, no one would contend that this court should deny review of the admissibility of specific testimony properly objected to at trial because the appellant did not move for a new trial asserting insufficiency of the evidence, or that we should not review a jury charge because of the lack of such a motion. Yet, in condemnation cases this court currently requires a motion for a new trial asserting an excessive or inadequate verdict before we will consider specific errors. The theory is that if the appellant is satisfied with the damages (because he does not argue they are excessive or inadequate), then any error relating to damages is harmless. The same logic would apply' equally well to sufficiency of the evidence: Any error as to specific evidence or the jury charge is harmless because the appellant is satisfied with the sufficiency of the evidence (because he does not argue that the evidence was insufficient). Of course, such a statement, while as equally logical, has no basis in law, so why do we require it in condemnation cases?

“It is plainly true that condemnor has not been injured by the erroneous admission of incompetent evidence or incorrect instructions unless the verdict be for an amount greater than is proper, but it does not follow that condemnor has not been injured unless condemnor can show that the trial court erred in overruling the motion for new trial on the ground that the verdict was excessive. There may be competent evidence to support the verdict and such evidence may have been admitted without error. There may also be, as appellant contends, other evidence which influenced the jury in reaching a verdict and such other evidence may have been erroneously admitted. Error in admitting improper evidence tending to prove the amount of damages is not cured or rendered harmless by the mere admission of competent evidence which supports the verdict.” State v. Dunlap, 279 Ala. 418, 423, 186 So.2d 132, 137 (1966) dissenting opinion of Justice Coleman. (Emphasis added.)

The fact that a verdict is not excessive does not mean that it is “proper.” In this case the expert witnesses placed the value of the property at between approximately $100,000.00 and $500,000.00. Any verdict within this wide range would not be excessive. Cobb v. Malone & Collins, 92 Ala. 630, 9 So. 738 (1890); State v. Central of Georgia R. Co., 293 Ala. 675, 309 So.2d 452 (1975); State v. Wise Development Corp., 293 Ala. 671, 309 So.2d 448 (1975); State v. Walker, 281 Ala. 182, 200 So.2d 482 (1967). But such a verdict would not necessarily be proper. Errors relating to the correctness of jury charges, jury arguments, and rulings on evidence affect the verdict.

Whether the present rule should be reversed, we need not decide, as Rule 4 of the Alabama Rules of Appellate Procedure (1977) mandates such a reversal. Rule 4(a)(3) of the Alabama Rules of Appellate Procedure (1977) provides that “[a]ny error or ground of reversal or modification of a judgment or order which was asserted in the trial court may be asserted on appeal without regard to whether such error or ground has been raised by motion in the trial court under Rule 52(b) [Findings by the Court, (b) Amendment] or Rule 59 [New trials; Amendment of Judgments] of the ARCP.” The Committee Comments add the following:

“The provision of subdivision (a)(3) in the last sentence permitting assertion in the appellate court of any matter raised or asserted in the trial court whether such matter was raised by motion for new trial under ARCP Rule 59 or for motion of amendment of findings of fact under ARCP Rule 52(b) is a departure from existing Alabama practice. The rule does not, however, extend the right to raise for the first time on appeal new matter not presented to the trial court or upon which the trial court had no opportunity to pass.
“The requirement retains the practice that matters raised on appeal must have been presented, to the trial court at some stage. Thus matters which can only be raised by post-trial motion must be so asserted. The provision is intended to avoid the necessity of repeated assertions of the same point below. Once ruled on by the trial court in some form, the point is preserved for review on appeal.”

We therefore hold that a motion for a new trial alleging excessive verdict is no longer required to preserve for appeal questions ruled on by the trial judge. Of course, such a motion is still required to preserve the specific question of excessive verdict. We now proceed to the issues ruled on by the trial court on which the State alleges error.

II

At trial the appellee entered into evidence the deposition of Sheldon Morgan, Vice-President of Industrial Development at Merchants National Bank of Mobile. The deposition was taken June 3, 1975, eight days before the case went to trial. Within the deposition Mr. Morgan explained that at the time of trial he would be at a banking school at Rutgers University in Brunswick, New Jersey; the school had been scheduled for a year. No reason is given by the State to believe that Morgan was not at the banking school.

The State contends that Morgan’s deposition should not have been admitted for two reasons:

“(1) Although Rule 32(a)(3)(B) does not use the word ‘resides’ nevertheless it is incumbent upon the party offering the deposition to show that the deponent witness ‘resides’ more than one hundred miles from the place of trial or is out of state and could not have been subpoenaed to attend the trial and present oral testimony.
“(2) The absence of the witness was procured by the defendant in this case who offered the deposition.” Appellant’s brief.

Rule 32(a)(3)(B) of the Alabama Rules of Civil Procedure reads as follows:

“(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: . . .(B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the state, unless it appears that the absence of the witness was procured by the party offering the depositions; . . . ”

Prior to Rule 32 ARCP, Tit. 7, § 474(4), Code of Alabama 1940, Recompiled 1958, controlled the use of depositions at trial. The applicable provision of that section read as follows:

“(c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: . . . (4) when the witness resides more than 100 miles from the place of trial, computed by the route usually traveled, or resides out of, or is absent from the state; . . . ” (Emphasis added.)

The word “resides” in § 474(4)(c)(4) was conspicuously replaced by the word “is” in Rule 32(a)(3)(B). Furthermore, even under Tit. 7, § 474(4)(c)(4), being absent from the state was sufficient.

In Alabama Power Company v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975), Taylor, the plaintiff in the case, wanted to introduce the deposition of a consulting engineer who was a resident of the county in which the trial was held; the deposition was taken by Alabama Power Company. At the time of trial the deponent was in either Birmingham or Atlanta, and did not appear, though he had been subpoenaed.

“It is not disputed that the witness Jenkins was more than 100 miles from the place of trial when the deposition was offered. Alabama Power Company had the opportunity to examine him when he was deposed. No contention is made that the witness’ absence was procured by the plaintiff. Therefore, it is clear that under Rule 32(a)(3)(B), Alabama Rules of Civil Procedure, the deposition was admissible. As we perceive it, the very purpose of the rule is to prevent the need for a continuance.” Id. at 488, 306 So.2d at 239.

We see no difference between Alabama Power Company v. Taylor and the case at hand, with the possible exception that in Alabama Power the deponent had been subpoenaed; however, the failure to subpoena the witness when he is at a greater distance than 100 miles from the place of the trial or out of the state is not a reason to prevent the deposition from being entered into evidence.

“All of the other deponents — Johnson, Ferris, Walraven, and Seidemann — were at a distance substantially greater than 100 miles from Baltimore at the time of trial. For the purposes of Rule 26(d)(3)2 [of the Federal Rules of Civil Procedure, which is substantially the same as Rule 32(a)(3)(B), ARCP, 1977] the mere absence of the deponent from the 100 mile area is sufficient, and the party attempting to submit the deposition into evidence need not proffer an excuse for the deponent to appear in court.” Houser v. Snap-on Tools Corporation, D. C., 202 F.Supp. 181, 189 (1962).

The State bases its argument on the cases of Weiss v. Weiner, 10 F.R.D. 387 (D.C.Md., 1950); Eller v. Mutual Ben. Health & Accident Ass'n, 1 F.R.D. 280 (D.C.Iowa, 1940), and Arnstein v. Porter, 154 F.2d 464 (2d C.C.A., 1946). These cases do not support appellant’s position.

in Weiss and Eller, the party and nonparties, respectively, were described as residing outside the 100 mile limit, but that does not mean that they must reside outside the 100 mile limit. In Arnstein, Judge Prank was reviewing the propriety of a summary judgment based on depositions of the plaintiff and defendant. Part of his reasoning in remanding the case for trial stemmed from his belief that actual testimony should be required when the correctness of a summary judgment is in doubt, rather than relying on depositions, which are substitutes, second-bests. We agree with Judge Frank’s decision, especially in consideration of our scintilla evidence rule. However, the question of when a deposition should be allowed into evidence at trial was not an issue in Arnstein. (The defendant in Arnstein resided within a few miles of the place of trial.) See Weiss, supra, which agrees with our interpretation of Arnstein.

The State’s objection to the deposition is also partly based on the “unless” clause of Rule 32(a)(3)(B). It contends that because appellee acquiesced in Morgan’s trip, he thereby procured Morgan’s absence.

“However, procuring absence and doing nothing to facilitate presence are quite different things, and here we have no showing of allegation that Snap-on actively took steps to keep the deponents from setting foot in the courtroom.” Houser, supra at 189.
“The word ‘procured’ in this context would seem to imply that a party had collusively instigated or induced a witness to remove himself from being subject to a subpoena to testify at the trial, or at least had unfairly and for an improper purpose deliberately absented himself shortly before the trial from the jurisdiction so he could not be examined. So far as I know no effort was made by the plaintiff’s attorney in this case to summon the defendant to appear as a witness at the trial.” Weiss, supra, at 389.

While we conclude that the deposition was properly admitted, we add the caveat that we are dealing with a nonparty expert witness, not a party to the suit. Additional considerations may exist with a party who wants to submit his deposition in place of appearing at trial that do not exist with a nonparty. See 4A Moore’s Federal Practice, § 32.05[1], and Richmond v. Brooks, 227 F.2d 490 (2d C.C.A., 1955).

Ill

Appellant’s other contention is that part of Morgan’s deposition is inadmissible. Morgan concluded “that the Long property and the property known as the Ladd property, which is adjacent thereto, when together, form a prime industrial site.” The State would have us conclude that Morgan’s testimony is “tantamount to testimony about a land use which is purely imaginary and based on pure speculation and conjecture.” We note that the State’s argument goes to the question of whether the highest and best use of a tract of land may be based on the use the tract in association with adjacent land held by other owners, not whether the tract is capable of being an industrial site assuming the adjacent tract might be included.

The fact that the adjacent land is held in ownership by another party who may or may not want to sell is not determinative.

“The fact that the most profitable use of . a parcel can be made only in combination with other lands does not necessarily exclude that use from consideration if the possibility of combination is reasonably sufficient to affect market value. .
In respect of each item of property that value may be deemed to be the sum which, considering all the circumstances, could have been obtained for it; that is, the amount that in all probability would have been arrived at by fair negotiations between an owner willing to sell and a purchaser desiring to buy. In making that estimate there should be taken into account all considerations that fairly might be brought forward and reasonably be given substantial weight in such bargaining. Brooks-Scanlon Corp. v. United States, 265 U.S. 106, 124, 44 S.Ct. 471, 68 L.Ed. 934. The determination is to be made in the light of all facts affecting the market value that are shown by the evidence taken in connection with those of such general notoriety as not to require proof. Elements affecting value that depend upon events or combinations of occurrences which, while within the realm of possibility, are not fairly shown to be reasonably probable should be excluded from consideration for that would be to allow mere speculation and conjecture to become a guide for the ascertainment of value — a thing to be condemned in business transactions as well as in judicial ascertainment of truth.” Olson v. United States, 292 U.S. 246, 256-257, 54 S.Ct. 704, 709, 78 L.Ed. 1236 (1934).

See United States v. Fuller, 409 U.S. 488, 93 S.Ct. 801, 35 L.Ed.2d 16 (1973).

“‘. . . Whatever an intelligent buyer would esteem as an element of value at the time of taking may be considered.’” Blount County v. McPherson, 268 Ala. 133, 137, 105 So.2d 117, 121 (1958), quoting from Alabama Power Co. v. Henson, 237 Ala. 561, 187 So. 718, 721 (1939).

The State cites no cases in support of its contention, nor does it give any reason to believe that a prospective buyer would not consider the value of this property in respect to adjacent properties. The mere fact that the adjacent property is held in another ownership does not make their combined use speculative and imaginative without other supporting factors. See Olsen, supra. The bargaining power of the individual seller would certainly be greater if he owned his tract and the adjacent tract, but that does not make testimony possibility of the use of both tracts in combination inadmissible.

The judgment of the trial court is hereby affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX, SHORES, EMBRY and BEATTY, JJ., concur.

BLOODWORTH and JONES, JJ., concur specially.

FAULKNER, J., not sitting.

BLOODWORTH, Justice,

concurring specially.

I concur in that part of the opinion of Mr. Justice Almon for the Court which construes Rule 4(a)(3), ARAP, as no longer requiring us to follow our rule that, a motion for new trial, alleging excessive verdict, is necessary in order to preserve for appeal the evidentiary rulings by the trial court in condemnation cases.

Although Rule 4(a)(3) does not specifically address the rule of our cases, this departure from prior practice seems implicit in the language of Rule 4(a)(3) as it is buttressed by the “Committee Comments.”

Moreover, Rule 1 specifically mandates that this Court construe the Alabama Rules of Appellate Procedure “so as to assure the fast, speedy and inexpensive determination of every appellate proceeding on its merits.” [Emphasis supplied.]

It is thus that I concur in this opinion, even though this rule has been followed by this Court for many years. See State v. Pugh, 293 Ala. 593, 308 So.2d 248 (1975); State v. Ward, 293 Ala. 516, 306 So.2d 265 (1975); State v. Hines, 293 Ala. 509, 306 So.2d 259 (1975); State v. Dunlap, 279 Ala. 418, 186 So.2d 132 (1966). I think the rule was logical and sound. Together with many other justices on this Court, I have written, or concurred in, opinions, which have followed the rule.

JONES, J., concurs.


author: BEATTY, Justice.

text:
    Fred ZEIGLER, etc., et al. v. John BAKER.
    SC 1991.
    Supreme Court of Alabama.
    April 8, 1977.
    Rehearing Denied May 6, 1977.
    George M. Boles, Birmingham, for James M. Folsom.
    William J. Baxley, Atty. Gen. and George W. Royer, Jr., Asst. Atty. Gen., for Fred Zeigler, Comptroller, James Solomon, Finance Director, Melba Till Allen, Treasurer of the State of Ala.
    Edmon L. Rinehart, Montgomery, for John Patterson.
    John Baker, pro se.
   BEATTY, Justice.

This is an appeal from an order of the Circuit Court of Montgomery County enjoining the Comptroller, acting Finance Director and Treasurer of the State of Alabama from making payments from public funds under the authority of Act No. 343 of the Regular' Session of the Legislature, 1975. We affirm.

That Act follows:

Section 1. All former Governors of the State of Alabama upon reaching the age of sixty (60) shall be entitled to a monthly retirement payment out of the General Fund in the State Treasury which shall equal 68% of the Governor’s salary if said former Governor had served for one full term or less; the amount paid shall equal 100% of the Governor’s salary if he has served two full terms or more.
Section 2. All former Governors of the State of Alabama, regardless of age, who sustain permanent total physical or mental disability during his term of office, by accident or otherwise, shall be entitled to his full salary for life upon leaving office.
Section 3. Said payments to be paid out of the General Fund in the State Treasury on a monthly basis each and every month once a former Governor becomes eligible for such payments. A former Governor eligible for compensation under Section 2 shall not receive payment under Section 1 hereof.
Section 4. Disability under Section 2 of this Act shall be determined as of the date the person so entitled leaves the Governor’s office by resignation or otherwise. Proof shall be made by any interested party to the State Finance Director, who shall promptly certify the fact of disability to the State Comptroller. It shall be considered sufficient proof if three (3) practicing physicians certify under oath that a former Governor is so permanently totally disabled.
Section 5. All laws or parts of laws in conflict with the provisions of this Act, and specifically Act No. 304, H. 345, 1967 Regular Session (1967 Acts, p. 847; now appearing in Code of Alabama Recompiled 1958, Title 55, Section 172(2)) are hereby repealed.

The plaintiff’s original complaint, which he filed in the capacity of a citizen and taxpayer, sought declaratory and injunctive relief against the state’s fiscal authorities on the ground that the Act contravened Section 98 of the Alabama Constitution of 1901, which provides:

The legislature shall not retire any officer on pay, or part pay, or make any grant to such retiring officer.

Thereafter, the complaint was amended to allege that Act 343 also violated Section 68 of the Alabama Constitution of 1901 “and also on the general constitutional principle that legislatures can not [sic] appropriate money for gratuities for private purposes.” Section 68 states:

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 offi-cio 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.

Former Governors James E. Folsom and John Patterson intervened as parties-defendant. Former Governor Patterson moved to require plaintiff to join Governor George C. Wallace, Lt. Governor Jere Beasley and former Governor Albert Brewer as parties-defendant, however, this motion was not acted upon. The plaintiff and the original defendants have stipulated that of the living former governors eligible for payments under Act 343, only former Governor Folsom had received payments. Governor Wallace, the stipulation states, will not become eligible to receive payments until January, 1979, when his current term as governor expires.

Plaintiff’s original complaint was filed on June 9, 1976. Intervenor Folsom filed a motion to dismiss this complaint on June 25, 1976 but did not raise the issue of standing either in that motion or in his answer to the original complaint filed on the same date. The original defendants filed their motion to dismiss the original complaint and their answer thereto on July 1, 1976 and in both they raised the issue of the plaintiff’s standing to sue. Then, on July 8, 1976, plaintiff filed an amendment to his complaint by adding a sentence alleging that Act 343 violated both Section 68 of the Alabama Constitution and a general constitutional prohibition against legislative appropriations for private purposes. Thereafter, the original defendants and defendant Folsom did not re-file or amend their motions to dismiss. They did file amended answers denying that Act 343 violated Section 68 or any such constitutional standard. Thus, defendant Folsom in none of his pleadings contested plaintiff’s standing. The original defendants, by not renewing or amending their motion to dismiss in order to have it apply to the amended complaint, See Rule 15(a), ARCP, or by including in their amended answer their allegations against plaintiff’s standing which were included in their original answer, did not make plaintiff’s standing an issue in their pleadings. An amended pleading pro tanto supersedes a pleading which it amends. United States v. L. D. Caulk Co. (D.C.Del.), 114 F.Supp. 939 (1953). By their amended answers to plaintiff’s complaint, the original defendants and intervenor Folsom simply substituted those amended answers for their original answers. The liberalized rules of procedure have not eliminated pleadings as the principle means by which parties themselves choose the issues which they wish to litigate. When pleading to amendments, counsel should see that their pleadings incorporate grounds or allegations previously pleaded if they wish to rely upon them, e. g., “comes the defendant and amends his answer to plaintiff’s complaint by adding the following . . . ” etc. In-tervenor Patterson, on the other hand, filed his motion to dismiss on July 19,1976 which was eleven days after plaintiff’s amended complaint was filed, and in that motion he attacked plaintiff’s standing to sue. Because the plaintiff’s amended complaint was the only one extant at that time, the motion obviously was directed to that amended complaint, and the trial court’s overruling of the motions to dismiss thus enabled intervenor Patterson to raise the issue of plaintiff’s standing on this appeal.

In his complaint the plaintiff alleged that he was a taxpayer and citizen of the State of Alabama and a duly elected member of the Alabama Senate. He does not rely upon the latter status as authorizing this action, and his taxpayer status is attacked as not entailing a sufficient interest or injury upon which to maintain it. Intervenor Patterson, who has adopted the briefs of the Attorney General under Rule 28(i), ARAP, and thus may assert their contents, cites many federal cases as authority for his position that plaintiff lacks standing because he has asserted no “direct” or “particular concrete injury” personal to himself and not shared in common with the public at large. But this argument fails to distinguish the nature of the rights involved here. Federal courts do insist on the distinct injury test when a federal right is asserted. See Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 220, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974); United States v. Richardson, 418 U.S. 166, 177, 94 S.Ct. 2940, 41 L.Ed.2d 678, 688 (1974), and generally when review is sought in federal court of a state court decision on federal law. Cf. Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 (1943) and Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952) with Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939). Those decisions do not limit the authority of state courts to determine for themselves whether to recognize state taxpayer suits, Coleman v. Miller, supra.

In a long line of decisions this Court has recognized the right of a taxpayer to challenge, either as unconstitutional or as not conforming to statute, the expenditure of public funds by county officers. Court of County Revenues v. Richardson, 252 Ala. 403, 41 So.2d 749 (1949); Poyner v. Whiddon, 234 Ala. 168, 174 So. 507 (1937); Thompson v. Chilton County, 236 Ala. 142, 181 So. 701 (1938); Travis v. First Nat. Bank of Evergreen, 210 Ala. 620, 98 So. 890 (1924); Reynolds v. Collier, 204 Ala. 38, 85 So. 465 (1920). The right of a taxpayer to challenge the unlawful disbursement of state funds likewise is unquestioned. Goode v. Tyler, 237 Ala. 106, 186 So. 129 (1939) (“ . . . this Court is committed to the doctrine that a taxpayer may maintain a suit in equity to restrain a state officer in the unlawful disbursement of state funds.”); Hall v. Blan, 227 Ala. 64, 148 So. 601 (1933); Turnipseed v. Blan, 226 Ala. 549, 148 So. 116 (1933). The latter two cases dealt with the constitutionality of disbursements, while Goode involved expenditures to be made under purported statutory authority. The Supreme Court of Illinois wrote to this principle in Fergus v. Russel, 270 Ill. 304, 110 N.E. 130 (1915):

We have repeatedly held that taxpayers may resort to a court of equity to prevent the misapplication of public funds, and that this right is based upon the taxpayer’s equitable ownership of such funds and their liability to replenish the public treasury for the deficiency which would be caused by the misappropriation.

The Attorney General contends in brief that the only parties who should be allowed to bring this suit are state officials charged with the duty of management or disbursement of state funds, or one of the prospective pensioners. This argument was cogently answered in a recent Florida case, Department of Administration v. Horne, Fla., 269 So.2d 659 (1972), which is, practically speaking, a “spotted hog” decision. In that case the plaintiffs, who were also members of the Florida Senate, sued in their capacities as taxpayers to enjoin the State Comptroller from disbursing state funds under which the taxpayers claimed were unconstitutional appropriations enacted by the Florida Legislature. When we consider that our own affected public officials, the State’s Treasurer, Comptroller and acting Finance Director have joined with prospective pensioners to defend the Act alleged to be unconstitutional, the following language of the Florida Court assumes significance:

. If a taxpayer does not launch an assault, it is not likely that there will be an attack from any other source, because the agency involved is usually in accord with the expenditure. There may be instances in which the affected public official might pursue the matter. The Attorney General would be an appropriate officer to bring such a suit, but in some instances this is not done and it is in such cases that it is only the taxpayer’s attack which preserves the public treasure.

We conclude that the plaintiff Baker, suing in his capacity as a citizen and taxpayer, has standing to attack the constitutionality of Act No. 343.

In their answers to the amended complaint, all defendants denied that Act No. 343 was unconstitutional under Sections 68 or 98 of the Alabama Constitution of 1901 or under any general constitutional principle. Following the hearing, the trial court decreed:

From a careful reading of Section 68, it is the opinion of this Court that Act 343 is not effected [sic] and, therefore, inapplicable to this hearing. .
In order to determine what was meant by those that met at the Constitutional Convention of 1901, we should go to the wellhead from which Section 98 springs. Having read contemporary writings at the time when the Section was passed, the Court finds identical wordings in the Official Proceedings of the Constitutional Convention of 1901, State of Alabama, Vol. 2, pages 2645 and 2646, and the Montgomery Advertiser, page 10, July 23, 1901, as follows:
“Section 57. The Legislature shall not retire any officer on pay or part pay, or make any grant to such retiring officer.
MR. OATES — It prevents any civil pension list. I move its adoption.”
This Court finds nothing more either in contemporary writings or in court decisions to further elucidate this problem. I am constrained, therefore, to the conclusion that officers — in this situation governors — past, present, and future cannot receive retirement without a vote of the people amending Section 98 of the Constitution.

Because the plaintiff Baker, who had alleged in his amended complaint that Section 68 was transgressed, did not cross-appeal the decree of the trial court holding Section 68 not affected by Act 343, the defendants Zeigler, Solomon and Allen moved in this Court to strike from plaintiff’s briefs, pages 8 through 11, in which he argues that Act 343 is unconstitutional under Section 68. This motion to strike is due to be granted because plaintiff Baker did not appeal the trial court’s order which was adverse to him by the timely filing of a notice of appeal under Rules 3 and 4(a)(1). This leaves for our consideration two issues, viz.: Whether Act 343 is unconstitutional under Section 98, and whether Act 343 is unconstitutional under any general constitutional principle. Because we hold that the Act is unconstitutional under Section 98, we need not decide whether it also offends any general constitutional precept.

In considering the constitutionality of Act No. 343 we are not unmindful of the rule laid down in Ex Parte Bozeman, 183 Ala. 91, 63 So. 201 (1913):

That body having passed the act, the law presumes that the judgment of the Legislature was that the act was constitutional. This judgment of. the Legislature, while not conclusive upon the courts, is entitled to, and under the above rule must receive, great weight at the hands of the courts. It is a solemn thing for *a court to strike down a statute, and when it does so its reason therefor should be clear and strong and should lead to the irresistible, conclusion that the act is invalid.

Consonant with this principle, we must seek to determine what the framers themselves meant by Section 98, and thus we may review the Official Proceedings of the Constitutional Convention of 1901. Such a review has been upheld in City of Montgomery v. Graham, 255 Ala. 685, 53 So.2d 363 (1951):

This court may, when construing a provision of the Constitution, look to the debates and proceedings of the Constitutional Convention.

During the Official Proceedings, Governor Oates, a member of the Committee on Legislative Department, made the following statement concerning Section 98 when it was offered to the Convention:

It prevents any civil pension list. I move its adoption.

The Official Proceedings continue at page 2646: “A vote being taken, the Section was adopted.”

It is clear that there was in the movant’s mind a relationship between Section 98 and pensions, and it cannot go unnoticed that after he used the phrase, “civil pension list,” there were no questions from the delegates nor any further discussion before the vote was taken. Was there a general understanding among the delegates of the meaning of the phrase at the time Section 98 was adopted? Undoubtedly there was such an understanding as we shall demonstrate.

In the first edition on his Commentaries on the Laws of England, Vol. 1, Chap. 8 (Clarendon Press, 1765), Sir William Blackstone discussed extensively the expenses of civil government and the manner in which the revenues for these obligations were obtained. His description of the civil list on page 320 is particularly instructive:

The expenc es defrayed by the civil list are those that in any shape relate to civil government; as, the expenses of the household; all salaries to officers of state, to the judges, and every of the king’s servants; the appointments to foreign embassadors; the maintenance of the royal family; the king’s private expenses, or privy purse; and other very numerous outgoings, as secret service money, pensions, and other bounties: which sometimes have so far exceeded the revenues appointed for that purpose, that application has been made to parliament to discharge the debts contracted on the civil list; . . . (Emphasis added.)

It is also noteworthy that this description is carried over from successive editions into the 1898 edition of Sir William’s Commentaries on the Laws of England, (Rees Welsh & Company, Philadelphia) edited by William D. Lewis, (page 294). In none of these references to pensions was any distinction made between persons in and persons out of office. The civil pensions referred to appear all inclusive.

Other publications of that period in our history support this conclusion. Abbott’s Dictionary of Terms and Phrases, Vol. 1, page 232 (Little, Brown, & Co. 1879) states:

. Through many reigns the civil list embraced both the support of the royal person and dignity, and the salaries of civil officers, and pensions. .

Rapalje and Lawrence’s A Dictionary of American and English Law, Vol. 1, page 214 (Frederick D. Linn & Co. 1888) explains:

Pensions to the amount of £1200 may also be granted by the crown to persons deserving of the public bounty. . . .

Hammonds Commentaries on the Laws of England, Vol. 1, page 587 (Bancroft-Whitney Co. 1890), and Browne’s Commentaries on the Laws of England, Vol. 1, page 108 (West Publishing Co. 1897) define a civil list similarly to Blackstone’s original definition.

An Alabama author, Hannis Taylor, has described the civil list to include pensions. In The Origin and Growth of the English Constitution, Part II, Book 7, Chap. III, page 551 (Houghton, Mifflin & Co. 1900) he wrote:

While thus considering the vestiges of political authority still inherent in the person of the sovereign, it will be convenient to briefly epitomize the financial arrangements made by parliament since the Revolution for the maintenance of the royal dignity and household. An account has heretofore been given of the nearly absolute control established by the legislature at the accession of William and Mary over the revenue, involving both the appropriation of supplies and the direction of their expenditure, — a system out of which arose what is known as the “civil list,” a term originally used to designate the sources of revenue appropriated to produce a fund to be devoted to the king’s personal expenses, the support of the royal household, and to the payment of certain civil officers and pensions embraced in a list that was laid before the house. (Emphasis added.)

Additionally, an exhaustive discussion in the Encyclopaedia Britannica, Vol. 6, page 410 (11th Ed. 1910) explains the history and nature of the civil list:

Moreover, pensions [after the Civil List Act of 1782] were only to be bestowed in the way of royal bounty for persons in distress or as a reward for merit Another very important change was made by this act: the civil list was divided into classes, and a fixed amount was to be appropriated to each class. The following were the classes:— (Emphasis added.)
6. Pension list. (Emphasis added.)

The nature of the civil list during Queen Victoria’s reign is explained:

. In addition the queen might, on the advice of her ministers, grant pensions up to £1200 per annum, in accordance with a resolution of the House of Commons of February 18th, 1834, “to such persons as have just claims on the royal beneficence or who, by their personal services to the crown, by the performance of duties to the public, or by their useful discoveries in science and attainments in literature and art, have merited the gracious consideration of the sovereign and the gratitude of their country.” . (Emphasis added.)

After considering the meaning of .the phrase, “civil pension list,” as it was used by Governor Oates during the Official Proceedings of the Constitutional Convention of 1901, which adopted Section 98, it is our opinion that the language of that section proscribing any power in the legislature to make any grant to any retiring officer, was meant to prohibit that body from granting a public officer, including, of course, a governor, retirement funds upon his becoming eligible after leaving office.

Contrary to the appellant’s insistence that the legislative history of supernumerary judicial positions discloses the legality of the retirement benefits for officers, we respectfully point out that the monetary benefits derived by judicial officers serving as supernumeraries was based upon appointment and the performance of duties. See Title 13, Sections 105(1)-(4) and Act No. 987, Section 24, Acts of Alabama 1969, Vol. 2, at 1750. Presently the législature is authorized by the Constitution of Alabama, Art. 6, Section 155, as amended by Act No. 1051 (Amendment No. 328), Acts of Alabama 1973, page 1676, to provide retirement benefits for judges “including supernumerary judges, . . . ” The Constitution of Alabama has also been amended to authorize legislative creation of pension benefits for public officers of and in Mobile County. Amendment 150, ratified February 26, 1960; Amendment 192, ratified December 18, 1961. It is clear that similar action is necessary to accomplish the purposes of Act No. 343.

AFFIRMED.

BLOODWORTH, MADDOX, FAULKNER, JONES, ALMON, SHORES and EM-BRY, JJ., concur.

TORBERT, C. J., recuses himself.