text:
    David H. FULTON et al. v. The ADVERTISER COMPANY et al.
    79-217.
    Supreme Court of Alabama.
    Sept. 19, 1980.

      Jere L. Beasley and Frank M. Wilson, Montgomery, for appellants.
    M. R. Nachman, Jr., of Steiner, Crum & Baker, Montgomery, for The Advertiser Co.
    M. R. Nachman, Jr., Jerry Weidler, Sp. Asst. Attys. Gen., for David Bronner.
   PER CURIAM.

This is an appeal from a summary judgment for defendants The Advertiser Company and David Bronner in a defamation suit seeking compensatory and punitive damages. We reverse and remand.

Defendant David Bronner, Finance Director of the State of Alabama and by virtue of that position a member of the State of Alabama Building Commission, acting within his official capacity as Chairman of the State Building Commission’s Executive Committee on Personnel and Finance, initiated an investigation into alleged abuses and misconduct within the Commission. As a result of this investigation and the Committee’s examination of the Commission, six Commission employees, including plaintiffs William Wyatt, the Deputy Director of Technical Staff, and David Fulton, a building inspector, were fired.

With regard to these dismissals, defendant Bronner held a press conference May 29, 1979, during which he issued a press release, made some additional statements, and answered questions from members of the assembled press, which included a representative of defendant Advertiser. The same day both plaintiffs were notified of their dismissal by letters from the Committee. On May 30, the Advertiser published an article in its morning edition concerning the investigation and the dismissals.

As a result of the press release, additional statements made at the press conference, and the subsequent newspaper article, Wyatt, Fulton and others not involved in this appeal filed separate complaints seeking compensatory and punitive damages for libel and slander against Bronner and the Advertiser. Bronner and the Advertiser moved to dismiss on a number of grounds. Certain of these grounds were denied and a hearing was set on the remaining grounds. Affidavits were filed by both sides and after arguments the trial court granted summary judgments for both defendants. That court held that Bronner’s statements were qualifiedly privileged and that there was no evidence in the record indicating actual malice. Accordingly, the court found that the Advertiser’s report of the press conference was fair and that Bronner’s privilege also protected the newspaper. Wyatt and Fulton appeal.

The basic issue presented by this case is whether summary judgment was appropriate. Prior to any resolution of this issue, however, an examination of the alleged defamatory statements is necessary.

The press release issued by Bronner stated the following:

A financial investigation authorized by Title 41 of the Code of Alabama has been conducted into the Alabama Building Commission.
The investigation was conducted by the Examiners of Public Account, the Department of Public Safety and the Finance Office, which included taking sworn deposition from employees of the Building Commission, architects, contractors and testing firms from throughout Alabama.
As a result of this financial investigation, evidence of questionable activities and management was received relating to the following:
(1) The utilization of state employees on state time to do private business.
(2) The discovery of employees on the payroll who provided little or no service to the state.
(3) Allowing and/or initiating construction change orders resulting in contractors receiving greater profits.
(4) The utilization of gratuities and/or agents in order to secure state business. Based on the information produced by
the financial investigation and a thorough review of the qualifications and past performance of the present Building Commission personnel, the “Personnel and Finance Committee” of the Building Commission discharged six employees.
All results of the investigation will be turned over to the Attorney General to be utilized as he sees fit.

In his affidavit, Bronner stated the following concerning his comments at the press conference:

In response to a question, I gave the names of the six employees referenced in the statement-names which included plaintiffs Wyatt and Fulton ....
At no time did I state that any charges had been or would be lodged against them. In fact, when asked by a reporter what charges had been made against any specific individuals, I answered, “What charges? I have made no charges about anyone. As far as the Committee is concerned, they were dismissed because of qualifications and performance.”

The article published by the Advertiser in response to the press conference reads, in pertinent part, as follows:

The director, deputy director and four other employees of the State Building Commission were fired Tuesday in the wake of an investigation into mishandling of building contracts and state work on private property.
Finance Director David Bronner said Building Commission Director Hugh Adams, Deputy Director William Wyatt, Energy Division chief John Cluck and three building inspectors were fired by the commission’s executive committee after the investigation uncovered widespread abuses in the department.
Bronner directed the six-week investigation by members of the Examiners of Public Accounts, the Department of Public Safety, and the Finance Department.
The results were turned over to Attorney General Charlie Graddick for further investigation.
W. G. Stevenson, a professional engineer and veteran employee of the commission, was appointed temporary director of the department. Other vacancies will be filled later, but Bronner said some of the vacancies will probably remain unfilled.
The finance director said one of the fired building inspectors had not turned in an inspection report in seven years.
The dismissed inspectors were identified as David Fulton, Ray Martin and Howard Wilson.
Bronner said the investigation uncovered evidence of questionable activities and management in four areas:
-The use of state employees on state time to do private business.
-The discovery of employees on the payroll who provided little or no service to the state.
-Allowing or initiating construction change orders resulting in contractors receiving greater profits.
-The use of gratuities and agents in order to secure state business.
Contractors and architects wanting to do business with the state were told they would have to get an agent with political influence before they could get a state contract, Bronner said. The contractor or architect negotiated with the agent to use his influence, the finance director added.
But contractors and architects who used agents in the past would not be barred from doing business with the state, he said.
“This is more a problem of the state than of the architects and contractors,” he said. “They had to go through the system, and the system was bad.”

Bronner said in reply to questions that none of the private work involved the new home of former Gov. George Wallace or property of his relatives.

The finance director declined to answer when asked if the private work involved property belonging to any of the dismissed employees.

Change orders were freely given with the result that contractors could bid low on a project and then add unbid modifications to increase the price to a more profitable level, he said.

The investigators examined commission activities over a five- or six-year period during which contracts involving millions of dollars in school and other building construction were issued.

. . . Wyatt was appointed to the commission staff as deputy director in 1971. . .. Bronner said the dismissed employees were not given a chance to resign-because they knew for at least two weeks they were being investigated and had not resigned.

This article was accompanied by a headline in bold type which stated: “Officials Fired Following Probe.”

The letters of dismissal to both plaintiffs simply informed them that the Committee had met “to review qualifications and performance of Commission employees” and that their (plaintiffs’) employment had been thereby terminated.

In an action for defamation, an initial determination of the status of the allegedly defamed person as a public official, public figure, or a private individual mast be made. E.g., American Benefit Life Ins. Co. v. McIntyre, 375 So.2d 239 (Ala.1979). This is a question of law for the trial judge. Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966), Mobile Press Register, Inc. v. Faulkner, 372 So.2d 1282 (Ala.1979).

In Mobile Press Register, Inc., supra, this Court stated:

This issue [status] must be resolved first because the manner of its resolution determines what elements of proof are necessary for recovery. New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny mandate that no public figure may recover compensatory or punitive damages for libel unless actual malice as defined in Sullivan is proved: a publication made with actual knowledge of its falsity or made with reckless disregard of its truth or falsity. If plaintiff be a private figure, he or she need not prove Sullivan malice unless punitive damages are claimed. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). (footnotes omitted)

As Justice Almon noted in the recent decision of Gray v. WALA-TV, 384 So.2d 1062 (Ala.1980): “This actual malice standard was further elaborated on in St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968); there it was stated that reckless disregard requires “. . . sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of the publication.”

Privilege is another issue which bears directly upon the issue of proof of malice.

Bronner contends that the court below was correct in finding that he was conditionally privileged to make public the results of his department’s investigation. The test in this jurisdiction for determining whether a conditional privilege exists is as follows:

“ ‘Where a party makes a communication, and such communication is prompted by duty owed either to the public or to a third party, or the communication is one in which the party has an interest, and it is made to another having a corresponding interest, the communication is privileged, if made in good faith and without actual malice. * * * The duty under which the party is privileged to make the communication need not be one having the force of legal obligation, but it is sufficient if it is social or moral in its nature and defendant in good faith believes he is acting in pursuance thereof, although in fact he is mistaken.’ ”

Willis v. Demopolis Nursing Home, Inc., 336 So.2d 1117 (Ala.1976), quoting Berry v. City of New York Ins. Co., 210 Ala. 369, 98 So. 290 (1923).

The question of whether a communication is privileged by reason of its character or the occasion on which it was made is a question of law for the judge.

Willis, supra.

Although the duties of the State Finance Director as set out in Title 41, Code 1975, do not specifically include informing the public of the results of statutorily prescribed investigations of state departments and agencies, we conclude that this activity comes within the penumbra of his official duties. The public has a general interest in the results of investigations disclosing governmental abuse or mismanagement. We, therefore, agree with the trial judge’s determination that Bronner was cloaked with a conditional privilege.

This Court has further stated that “[w]here a communication is conditionally privileged, it is free from the legal imputation of malice and is actionable only if there is actual malice.” Willis v. Demopolis Nursing Home, Inc., supra.

It is unclear from the record as to how the trial judge viewed the status of Wyatt and Fulton. As New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny have mandated, the threshold question in a defamation case is the determination of the status of the allegedly defamed person as a public official, public figure or a private individual. This issue must be resolved before the court can determine what elements of proof of malice are required. The trial judge did not address the issue of status, and instead, decided the case on the basis of Bronner’s and the Advertiser’s qualified privilege. Our eases have held that once a qualified privilege has been found to exist, the plaintiff must allege and prove actual or express malice in order to recover. Browning v. Birmingham News, 348 So.2d 455 (Ala. 1977); Willis v. Demopolis Nursing Home, supra; O’Barr v. Feist, 292 Ala. 440, 296 So.2d 152 (1974).

Since Sullivan and its progeny have redefined actual malice in defamation cases brought by public officials or public figures, the reference to actual malice without further distinction has caused a considerable amount of confusion and ambiguity in interpretation and application of the two different standards of malice. In this jurisdiction actual or express malice in its traditional sense “may be shown by evidence of previous ill will, hostility, threats, rivalry, other actions, former libels or slanders, and the like ... or by the violence of the defendant’s language, the mode and extent of publication, and the like.” Kenney v. Gurley, 208 Ala. 623, 95 So. 34 (1923).

Prior to Sullivan, the preceding standard of actual malice was the only standard. Sullivan, however, redefined an old term to require a new and more stringent standard of proof in compliance with constitutional standards. “Actual malice” in its constitutional sense, therefore, means “with knowledge that it [the publication] was false or with reckless disregard of whether it was false or not.” Sullivan.

It is apparent from the record that the trial judge fell prey to the confusion created by the interchangeable use of the single term “actual malice” to convey two separate concepts. The trial judge stopped short of a crucial determination in failing to reach the issue of the plaintiffs’ status, and held that “actual malice” in conjunction with the privilege defense need only be shown in the traditional sense. Willis v. Demopolis Nursing Home, O’Barr v. Feist, Kenney v. Gurley. This would have been correct prior to Sullivan and its progeny, whether the plaintiffs were public or private persons, and still continues to be correct as to private individual plaintiffs.

Subsequent to Sullivan, however, it is mandatory that the plaintiff’s status be determined initially, in order to next determine whether traditional malice or Sullivan malice must be shown. We hold, therefore, that the trial court erred in failing to make this initial determination.

Finally, we reach the basic issue presented by this appeal — whether summary judgment was appropriate under the particular circumstances of this case. The law in this jurisdiction, as set out below, is well settled as to the basic principles which govern in a review of a grant or denial of summary judgment.

The party moving for summary judgment must clearly show, i. e., has the burden to show, 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 also, Ray v. Midfield Park, Inc., 293 Ala. 609, 308 So.2d 686 (1975).
A motion for summary judgment may be granted only when there is no genuine issue as to a material fact and the mov-ant is entitled to judgment as a matter of law. Birmingham Television Corporation v. Water Works, 292 Ala. 147, 290 So.2d 636 (1974).
The moving party has “the burden of showing the absence of a genuine issue as to any material fact, and for these purposes the material it lodged must be viewed in the light most favorable to the opposing party.” Adickes v. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).
Likewise, we consider the “Scintilla Rule” in connection with summary judgment. We held in a scintilla of evidence produced in plaintiff’s favor on the issue of defendant’s negligence, then summary judgment will not lie. As the majority of this Court pointed out therein, the plaintiff might escape having summary judgment rendered against him, yet still suffer the ignomy of defeat by way of directed verdict.

Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975).

In Loveless, we also adopted with approval the following statement by the U. S. District Court in Goldwater v. Ginzburg, 261 F.Supp. 784 (1966), aff’d 414 F.2d 324 (2nd Cir.), cert. denied, 396 U.S. 1049, 90 S.Ct. 701, 24 L.Ed.2d 695:

The issue of actual malice on the part of defendants seems peculiarly inappropriate for disposition by summary judgment because it concerns “motive, intent, and subjective feelings and reactions.”

Bronner and the Advertiser, as the moving parties, had the burden of proving the absence of a genuine issue as to any material fact. We find that they failed to meet this burden.

In the press release (set out previously) Bronner listed four categories of “questionable activities and management” which were discovered as a result of the investigation. According to Bronner’s own affidavit, however, of these four categories only number two, the discovery of employees on the payroll who provided little or no service to the state, applied to Fulton, and only number four, the utilization of gratuities and/or agents in order to secure state business, directly applied to Wyatt. Bron-ner further stated, however, that because of Wyatt’s supervisory position, “the responsibility of misconduct, inefficiency and mismanagement attributable to employees under his supervision which continued uncorrected by Wyatt, must be charged to him.” In his affidavit, Bronner stated that: in response to a press question he gave the names of the six Commission employees who were fired; at no time did he make any charges about anyone — to the contrary when asked what charges had been made he responded “What charges? I have made no charges .. .and as far as the committee was concerned the dismissals were based on qualifications and performance.

In their affidavits, both Wyatt and Fulton denied that they were guilty of any wrongdoing and stated that they were unaware of any allegations or charges against them until they read the newspaper article the morning following their discharge. Both of their letters of dismissal merely stated that their employment had been terminated based on qualifications and performance. Also Wyatt stated: “I have personally discussed my job performance with the defendant Bronner prior to my dismissal. At no time did the defendant Bronner make any accusation to me or state in any fashion that I had done anything wrong or that I was not performing my job responsibilities in a satisfactory manner. In fact, his statements to me were to the contrary.”

Both contend that the article charged them with criminal activity and that the average lay reader would have interpreted the article to mean that each of the named dismissed employees was guilty of all four categories of questionable activities. In McGraw v. Thomason, 265 Ala. 635, 93 So.2d 741 (1957), we held:

In determining their actionable character, the printed words are to be taken in their natural meaning, and according to the sense in which they appear to have been used and the idea they are adapted to convey to those who read them. A forced construction is not to be put upon them in order to relieve the defendant from liability, nor are they to be subjected to the critical analysis of a trained legal mind, but [they] must be construed and determined by the natural and probable effect on the mind of the average lay reader.

In light of the preceding authority we find that the article and accompanying headline presented a genuine issue as to a material fact as to whether these words imputed criminal activity and guilt of all four categories of misconduct to both Wyatt and Fulton. Loveless v. Graddick.

Furthermore, they (Wyatt and Fulton) contend that the statements were false and that Bronner knew they were false when he made them. Because of the preceding contradictions in the affidavits of the parties, we find that there is a genuine issue as to a material fact presented here. For these reasons summary judgment was inappropriate for defendant Bronner.

As to defendant Advertiser, we find as did the trial judge, that the Advertiser was protected by Bronner’s conditional privilege to the extent that it reported fairly and accurately the information released at the press conference. We find, however, that from the record before us a genuine issue as to a material fact existed, making the grant of summary judgment for defendant Advertiser also inappropriate. In American Benefit Life Ins. Co. v. McIntyre, supra, we held that a news reporter’s focusing upon particular portions of a financial report (concerning plaintiff insurance company’s financial status) to the exclusion of other relevant portions of the same report could present a genuine issue of a material fact which should be resolved by trial. We find similar factual assertions in the record here. Bronner states in his affidavit that he made it clearly known that the employees were discharged because of qualifications and performance; however, the words “qualifications and performance” did not appear anywhere within the article, nor was there any allusion to this reason for dismissal. Moreover, we do not find in the record any evidence whereby it can be determined that the Advertiser made any independent investigation as to the truth or falsity of Bronner’s statements.

REVERSED AND REMANDED.

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

EMBRY, J., concurs in the result.


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    CITY OF GRAYSVILLE, etc., et al. v. Dorothy M. SWANN, doing business as Graysville Package Store.
    79-282.
    Supreme Court of Alabama.
    Sept. 19, 1980.
    N. Daniel Rogers, Jr. and Donald H. Brockway, Jr. of Corretti, Newsom & Rogers, Birmingham, for appellants.
    Max Pope of Fulford, Pope & Minisman and Percy B. Watkins, Birmingham, for ap-pellee.
   JONES, Justice.

This appeal is a revisit of Swann v. City of Graysville, 367 So.2d 952 (Ala.1979) (Swann I), with two exceptions:

1) The first Mrs. Swann died and her husband remarried. The second Mrs. Swann obtained a general business license in her name but continued for a short time to operate under the first Mrs. Swann’s beer license. The ABC Board then informed her that, because the first Mrs. Swann’s license had expired upon her death, she (the second Mrs. Swann) would have to obtain a beer license from the City of Graysville in her own name.

2) After the death of the first Mrs. Swann and before the second Mrs. Swann’s application for a retail “off premises” beer and wine license, the City amended Ordinance 322 to read, in part, as follows:

“Except that any licensee who has been issued a current, valid license as of April 2, 1979, for the current year, for the sale of intoxicating beverages, malt or brewed, for wine or liquor shall not be prohibited from the sale thereof under said license at said location by virtue of the passage of this ordinance as long as said licensee operates under said license, or the renewal thereof, issued by the said City of Graysville; provided, however, this exception shall apply to the sole licensee within said five hundred (500) feet who was a licensee on April 2, 1979.” (We emphasize the pertinent language added by the amendment.)

On the basis of the new ordinance, the City rejected her application, claiming the language, “this exception shall apply to the sole licensee,” renders this ordinance “decisively distinct” from the ordinance in Harrison v. Buckhalt, 364 So.2d 283 (Ala.1978). The trial Court disagreed and issued a writ of mandamus to compel the City to grant Mrs. Swann’s application. We affirm.

We will not burden the literature with a repetition of the principle set forth in Swann I and the authorities relied upon therein. Suffice it to say that “[pjermitting those licensed at the time [the ordinance] was adopted to continue to sell . . . beer and wine, [and] at the same time refusing Mrs. Swann a license, in the mistaken belief that it was required to both permit those already licensed to continue such sales as well as to renew their licenses, were the operative facts of denial of equal protection to Mrs. Swann.” Swann v. City of Graysville, 367 So.2d 952, 954 (Ala.1979).

The City contends, however, that the problem inherent generally in “grandfather” clauses of this nature has been cured here by the “tightening up” effect of its amendment which limits the renewal of an existing license to one “who was a licensee on April 2, 1979.” According to the City, this establishes a determinable event-the licensee’s death or his ceasing to do business-which eventually will terminate all licensed activities within the proscribed zone.

The fallacy of this argument lies in the very nature of a license to sell intoxicating liquors. There being “no vested or inherent right to sell or otherwise traffic in intoxicating liquors” (Quillan, Municipal Corporations, 3rd Ed., Vol. 6, § 24.172, p. 737), the license expires of its own volition upon the licensee’s death or upon his ceasing to do business. Thus, the language of the amendment adds nothing. This not to say, of course, that the amended ordinance could not have continued all current licenses in effect for the duration of their stated terms or for a reasonable specified time.

Here, as in Harrison, the “grandfather” clause thwarts the purpose of the ordinance by permitting the very activity which it proscribes; thus, its resultant arbitrary classification denied Mrs. Swann equal protection in violation of §§ 1, 6, and 22 of our State Constitution. Harrison v. Buckhalt, 364 So.2d 283 (Ala.1978).

AFFIRMED.

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

TORBERT, C. J., and MADDOX and SHORES, JJ., dissent.

MADDOX, Justice

(dissenting).

In Harrison v. Buckhalt, 364 So.2d 283 (Ala.1978), a “grandfather clause” was held to be unconstitutional because . [t]he purpose, among others of the ordinance . . . to prohibit the retail sale of alcoholic beverages within 600 feet of a church . . . [was] frustrated by the grandfather clause that would never provide for termination of the sale of those prohibited beverages within the stated distance.” Today, the Court invalidates a “grandfather clause,” which, as a matter of law, has a termination date, i. e., the death of the licensee, or the non-renewal of the license by the city governing body, whichever is sooner.

The majority opines: “This is not to say, of course, that the amended ordinance could not have continued all current licenses in effect for the duration of their stated terms.”

The implication of this language, if not the holding, is that a grandfather clause cannot permit licensees to operate within the proscribed zone except “for the duration of their stated terms.” Harrison is certainly not as limiting. In Harrison, the Court said:

“.. . In those cases in which similar grandfather clauses have been upheld, the statute or ordinance, provides for the ultimate elimination of the sale of alcoholic beverages in the prohibited area. See e. g. Eckert v. Jacobs, 142 S.W.2d 374, 378 (Tex.Civ.App. 1940); Commonwealth v. Petri, 122 Ky. 20, 90 S.W. 987, 989 (1906).”

The clear implication of this statement in Harrison is that a “grandfather clause” which provides for “the ultimate elimination of the sale of alcoholic beverages in the prohibited area” would pass constitutional muster. Under the Harrison rationale, the Graysville ordinance is certainly constitutional.

The decision today is especially troubling in view of the recent case from this Court involving a Tuscaloosa city ordinance regulating permits to operate a marina on Lake Tuscaloosa. There, speaking through Mr. Justice Jones, the author of this opinion, the Court opined:

“Bingham’s application for a permit to build a boat dock, launch area, and gasoline pumping station to service boats operating on the lake was denied after a public hearing. The gist of Bingham’s argument is that he is denied equal protection of the law because the City forbids him from doing the very thing others are doing under the grandfather feature of the Ordinance.
“The City, on the other hand, says the Ordinance and its denial of Bingham’s application thereunder is lawful (i. e., not unconstitutional) because it has the right to regulate the use of its own property, and that the City has a right and obligation to protect the health and safety of its citizens by limiting the number of gasoline pumping stations (and thus limiting the boat traffic) on the lake.
“Bingham’s argument is a persuasive one:
“ ‘Our argument in the instant case is based on the classification created- by Subsection (f) of the Ordinance which reads: “This ordinance shall not apply to commercial structures constructed under permit from the City and in operation prior to the 18th day of April 1974.” While we recognize that there is no constitutional' proscription against State treatment of classes of persons in different ways, the different treatment must be rational in order to avoid proscription under the Federal Constitution. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). The Ordinance was enacted, by the City’s own admission, to protect the health and safety of the citizens of the City of Tuscaloosa. The Ordinance operated only prospectively. It would appear to be totally irrational to allow an ordinance which is based upon health and safety to operate only prospectively leaving existing hazards unaffected. A case directly on point is Standard Oil Company v. City of Gadsden, et al, 263 F.Supp. 502 (D.C. 1967). In that case Judge Grooms stated at page 507:
‘ “An ordinance attempted to be justified as a safety regulation which operates only prospectively leaving existing hazards unaffected, creates an arbitrary classification and cannot be allowed to stand.”

‘Quoted in the above case is Standard Oil Company of New Jersey v. City of Charlottesville, 42 F.2d 88 (4th Cir. 1930). In that case the Court stated that:

‘ “A classification manifestly has no such reasonable relation where it forbids one person to carry on the same business on the grounds that it is dangerous to the community, and allows another person similarly situated to carry on the same business simply because he happens to be engaged in it at the time of the passage of the ordinance .... So far as the public safety is concerned, it can make no possible difference that the business was being carried on at the time of the passage of the ordinance.”

‘It would seem that this case is directly on point and should bear considerable weight on the Court’s decision in the present case. The Alabama Supreme Court appears to be in agreement as evidenced by Swann v. City of Graysville, et al, 367 So.2d 952 (Ala.1979). In that case, the Court reviewed an ordinance which prohibited issuance of new licenses to sell alcoholic beverages within five hundred feet of any church, school, schoolground, public park or public playground, but allowed businesses already in existence and within five hundred feet of such places to renew or obtain reissuances of their licenses to sell alcoholic beverages. The Court struck down the ordinance stating that it infringed upon the applicant’s right to equal protection of the law. The Court there stated that although the ordinance was a proper exercise of the City’s power that power could not be exercised in an arbitrary or discriminatory manner.’

“The fallacy of this argument becomes apparent, however, when taken to its logical conclusion. According to its implicit premise, only two courses of action are open to the City: Either

1) Eliminate the ‘grandfather’ clause from the Ordinance; or

2) Decline any regulatory action.

“Surely, no citation of authority is necessary to demonstrate the constitutional invalidity, on general due process grounds, of any regulatory scheme enacted by the City that fails to recognize vested rights of prior interest holders. Thus, a ‘grandfather’ clause is essential to the constitutional validity of the Ordinance here challenged. Nor do we believe it can be seriously contended that the City is totally without authority to regulate the nature and extent of marine activity on its public lake.
“The question, then, is whether the legislatively imposed conditions and restrictions are rationally related to the purpose of the Ordinance. We think they are. While clearly there is a point beyond which the quality and quantity of marine traffic on the lake will exceed health and safety standards, it is an erroneous assumption that the ‘grandfather’ clause leaves ‘existing hazards unaffected.’ Consequently, the City is legally vested with authority to establish and maintain safety and health standards with respect both to the public recreational use of the lake and to the primary use of its water for domestic consumption. This authority includes, of course, regulation of the commercial activities of those operators ‘grandfathered’ in.”

Bingham v. City of Tuscaloosa, 383 So.2d 542 (Ala.1980).

I can see no difference between a city’s right, acting pursuant to its police power, to . allow a person to continue a marina while prohibiting others from doing so, as in Bingham, and permitting a sole licensee to be “grandfathered” in, as is true here. Of course, a city, acting under the guise of regulation, cannot effect an unlawful discrimination, but there is no evidence of any purposeful discrimination on the part of the City presented in this case.

Additionally, states have broad power to regulate the traffic in intoxicating liquors.

It is well settled that, pursuant to the provisions of the Twenty-first Amendment to the United States Constitution, the states are given broad regulatory powers over the possession, sale and distribution of intoxicants within their territories. Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 86 S.Ct. 1254, 16 L.Ed.2d 336 (1966); United States v. Frankfort Distilleries, Inc., 324 U.S. 293, 65 S.Ct. 661, 89 L.Ed. 951 (1945). These powers enable the states, to protect the welfare of their citizens, to prohibit or restrict absolutely the importation or distribution of intoxicating liquors. The United States Supreme Court has held that these powers are not limited by the Equal Protection Clause of the Fourteenth Amendment, insofar as any state regulation discriminates, in general, against actions or persons involved in liquor traffic. California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972); Ziffrin, Inc. v. Reeves, 308 U.S. 132, 60 S.Ct. 163, 84 L.Ed. 128 (1939). Because the State has such broad powers in regulating intoxicating liquors, I feel that this is an additional reason why no equal protection problem is posed in this case.

TORBERT, C. J., and SHORES, J., concur.


author: EMBRY, Justice.

text:
    David T. PATE, Jr., et al. v. Sarah Pate EDWARDS et al.
    79-308.
    Supreme Court of Alabama.
    Sept. 19, 1980.
    Gary P. Smith, Birmingham, for appellants.
    Wiley D. Wood, II, Roanoke, for appel-lees.
   EMBRY, Justice.

David T. Pate, Jr., and Laura P. Davis, defendants below, appeal from a decree ordering the sale of real estate for division of proceeds based upon the construction of a provision of the will of R. W Pate, deceased.

On 13 December 1950 R. W. Pate died testate, survived by his wife Maude Pate and nine children. Resolution of this case depends upon the proper construction of the following provision of R. W. Pate’s will:

“After Item No. One of this will is complied with it is my will and I hereby bequeath and devise to my beloved wife Maude Pate all my property both real and personal for and during her natural life or as long as she remain [sic] unmarried. After the death of my said wife or her marriage, it is my will and I hereby direct that all my property, remaining be sold and the proceeds divided equally between my children or their descendents, share and share alike.”

After his death, and the probate of his will, his widow Maude Pate went into, and took possession of, R. W. Pate’s real and personal property. She died in 1979. During the term of her life estate one of the children of R. W. and Maude Pate predeceased his mother and by the terms of his will devised all his property to his widow Ruth Breed Pate.

He was survived by two children: David T. Pate, Jr., and Laura Pate Davis.

The trial court decreed that at R. W. Pate’s death his will made David T. Pate, Sr., the vested owner of an interest in his father’s estate. David T. Pate, Sr., devised this interest to Ruth B. Pate; therefore, David T. Pate, Jr. and Laura Pate Davis were not entitled to take under the provisions of their grandfather’s will.

The issue is whether David Sr.’s interest in his father’s estate was vested upon his father’s death or was contingent upon David Sr.’s surviving his mother’s life estate.

We note a constructional preference for the early vesting of an estate, Brugh v. White, 267 Ala. 575, 103 So.2d 800 (1957), and against a condition of survivorship. See Tillman v. Tillman, 271 Ala. 373, 124 So.2d 80 (1960). Nevertheless, when the language of a will is clear and unambiguous, rules of construction cannot be employed to rewrite that will at variance with the meaning of the language used by the testator. Bradley v. Eskridge, 361 So.2d 100 (Ala.1978).

In the present case, R. W. Pate’s will provided that upon the death of his wife, his property “ * * * be sold and the proceeds divided equally between my children or their descendants, share and share alike.” (Emphasis ours.) The use of the disjunctive “or” in this case indicates the intent to create an alternative or substitutionary devise. George v. Widemire, 242 Ala. 579, 7 So.2d 269 (1942). The question then is: At what time was this alternate or substitute devise intended to vest; at the death of the testator or at the falling in of the prior estate?

In this case, just as in the case of Peck v. Green, 266 Ala. 321, 96 So.2d 169 (1957), the words providing for division of property are the only words in the will importing a gift. That case held that under such circumstances the words indicate the testator’s intention that only those of his children who were alive at the time of division would take indefeasible estates in the property, since only those who answer the description of devisees as given in the will at the time of distribution are to share in the estate. We therefore hold that in the present case no estate vests until the time for distribution (falling in of the prior defeasible life estate), at which time it vests in the surviving children of the testator or their descendants.

The relevant considerations for the determination of this case are fully discussed in George v. Widemire, supra. This court there held that a devise:

“ ‘Third. I bequeath to my four children or their heirs, share and share alike in and to any real or personal property left from my estate at the death of my wife.’ ”,

showed a clear intent to create a contingent remainder. See also Brugh v. White, supra.

In the case of Ebey v. Adams, 135 Ill. 80, 25 N.E. 1013 (1890), the wording of a will to be construed was:

“ * * * ‘upon the death or remarriage of my wife, Minerva, it is my will, and I do so direct, that all my estate, real and personal, shall be sold * * * and the balance of the proceeds of my estate my executors are hereby directed to distribute among my children, or their heirs, to-wit, [naming his six living children,] share and share alike, * *

In that case it was held the testator, by using that language, intended that no interest vested until the death of his widow but on that occurrence the heirs of such children as had predeceased the widow would take the share or portion their ancestors would have taken if living.

For the reasons given, judgment is entered in accord with this opinion.

REVERSED AND REMANDED.

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


author: PER CURIAM.

text:
    Ronald PRINCE and Helen Prince Lyles v. Ned HUNTER.
    79-328.
    Supreme Court of Alabama.
    Sept. 19, 1980.
    Gould H. K. Blair, Birmingham, for appellants.
    J. Richmond Pearson, Birmingham, for appellee.
   PER CURIAM.

This is an appeal from the trial court’s decree ordering a public sale of certain jointly owned property.

On August 31, 1979, appellee, Ned Hunter, filed a petition for a sale for division of certain real property. The petition alleged that the property was owned jointly by appellee and appellants, Ronald Prince and Helen Lyles, as tenants in common. The petition named appellants as defendants, stated that the property could not be equitably partitioned or divided in kind, and requested a sale for division. Included in the petition was a request that appellee be allowed to bid on the property at the public sale.

The case was set for hearing on December 18, 1979. On December 7, 1979, appellants notified the court, by letter, of their desire to purchase appellee’s interest in the property as provided in Code, § 35-6-100 (Cum.Supp.1979). The court subsequently rendered a decree ordering a public sale. The court did not hear any evidence in the case nor does the record contain any stipulation by the parties as to ownership or partitionability of the property. The decree provides as follows:

DECREE ORDERING SALE

This cause was duly set on this date for a hearing on “Petition For Sale” and answer of Defendants.
At a pre-trial conference in chambers between counsel of record for the parties and the Court, the undisputed position of the counsel for the separate parties is that of desiring for their client or clients the ownership of the subject real property. Further, that the property cannot be equitably divided in kind.
Under the circumstances the separate rights of the Plaintiff and the Defendants can be protected by a sale of the property and a conversion of the property into cash, with the right to each party to “pay in” his proportionate share of the proceeds.
Accordingly, it is CONSIDERED, ORDERED, ADJUDGED and DECREED by the Court as follows:
ONE: The Register is hereby ordered and directed to offer the subject real property for public sale to the highest bidder for cash, after advertisement, and in compliance with the laws and statutes of the State of Alabama and to hold the sale and render his report thereafter to the Court for confirmation or denial.
TWO: The Court reserves the cause for future orders and decrees.

The appellants moved for a new trial on January 14, 1980, claiming that they had complied with § 35-6-100, providing for purchase of a filing joint owner’s interest, and were entitled to purchase appellee’s interest. The motion for new trial was denied on January 18, 1980, and this appeal followed.

The sole issue is whether Code, § 35-6-100 (Cum.Supp.1979), is applicable in this case. Section 35-6-100 provides as follows:

Upon the filing of any petition for a sale for division of any property, real or personal, held by joint owners or tenants in common, the court shall provide for the purchase of the interests of the joint owners or tenants in common filing for the petition or any others named therein who agree to the sale by the other joint owners or tenants in common or any one of them. Provided that the joint owners or tenants in common interested in purchasing such interests shall notify the court of same not later than 10 days prior to the date set for trial of the case and shall be allowed to purchase whether default has been entered against them or not.

The statute ostensibly was drafted to protect joint owners from being divested of their property in a forced sale by allowing them the option to purchase the filing joint owner’s interest. The operative words are “the court shall provide for the purchase [of the petitioner’s interest] by the other joint owners .. .(Emphasis added.) Ragland v. Walker, 387 So.2d 184 (Ala.1980). The statute in using the word “shall” makes it mandatory, upon the filing of a petition for sale for division, that the court provide for the purchase of the petitioner’s interest by the other joint owners if they notify the court of their interest in purchasing petitioner’s interest at least ten days before the day set for trial. Thus, § 35-6-100 is applicable to the instant proceeding, and it was error for the court to order a public sale without consideration of § 35-6-100.

Appellee contends that the word “shall” should be construed as permissive so that § 35-6-100 is not mandatory in all cases. Appellee argues that the Legislature intended the purchase provision of § 35-6-100 to apply only to cases where an “outsider” would acquire “family” property by forcing a public sale and outbidding the “family” joint owners. According to appellee, construing the word “shall” as mandatory would potentially require purchases without public sale in all sale for division cases, even when the joint owners are all family members. This, appellee concludes, is not within the Legislature’s intention so “shall,” in this case, must be construed as permissive in order to effectuate legislative intent.

Although generally the word “shall” in a statute is used in a mandatory sense, it is true that “shall” may be construed as permissive where from the circumstances it is obvious that the Legislature intended it so or where the validity of the statute is placed in jeopardy. Morgan v. State, 280 Ala. 414, 417, 194 So.2d 820 (1967). Neither of these situations is present in the instant case: the statute is not constitutionally defective as written nor is it obvious from the statute that the Legislature intended it only to apply when the joint owner forcing the public sale is an “outsider”-the abuses to be prevented by the statute are equally as likely when only “family” members are involved. Therefore, the word “shall” must be construed as mandatory.

For these reasons, this case is reversed and remanded.

REVERSED AND REMANDED.

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

      . Appellants also filed a petition for an alternate writ of mandamus in the event the decree was not of sufficient finality to support an appeal. However, the decree is final for purposes of an appeal, so there is no need to consider the petition for mandamus.


text:
    Grady C. HOLT v. Clara East DAVIDSON.
    79-348.
    Supreme Court of Alabama.
    Sept. 19, 1980.

      Robert M. Shipman, Huntsville, for appellant.
    George K. Williams of Williams, Spurrier & Rice, Huntsville, for appellee.
   EMBRY, Justice.

This appeal is in an action by Grady C. Holt and others against Clara East Davidson for breach of a written construction contract and her counterclaim alleging his breach of the same contract. Holt appeals from judgment, entered upon jury verdict, in favor of Davidson on Holt’s complaint and in favor of Holt on Davidson’s counterclaim.

Holt says the trial court erred by not admitting parol evidence: to show modification of a written contract by subsequent oral agreements; to explain an ambiguity in the written instrument; to show the complete agreement between the parties; and, to show what it would cost to complete the construction, as a measure of damages. However, it should be noted that Holt’s designation of less than the entire reporter’s transcripts, as provided for in Rule 10(b)(2), ARAP, states the issues he intended to present for review to be:

“1. The trial courts [sic] sustaining Defendant’s objections to Plaintiffs [sic] giving parol evidence in regards [to] the agreements between the parties.
“2. The trial courts [sic] permitting the Defendant to give parol testimony in regards [to] the agreements between the parties over objection by the Plaintiff.”

It should also be noted that Holt in designating the clerk’s record did not designate any exhibits. The written contract is shown by the record to have been admitted in evidence as plaintiff’s exhibit one but it is neither contained in the record nor made a part of the clerk’s record by reference, placed in a suitable separate container, and transmitted to this court. See Rule 10(b)(1), ARAP.

Whether the written contract was ambiguous was a question of law for the trial court. Miles College, Inc. v. Oliver, 382 So.2d 510 (Ala.1980). Obviously the trial court concluded the contract was unambiguous and further that it constituted the entire agreement between the parties. Otherwise the trial court would not have sustained objections to the questions put to Holt by his attorney concerning oral terms and conditions of an agreement between the parties. Review of the transcript of testimony in its entirety makes it clear that all rulings of the trial court concerning admissibility of evidence were in every respect correct. Moreover, we would in no event hold the trial court in error in connection with a ruling about a document before it which is not before us. See Riley v. Banks, 289 Ala. 56, 265 So.2d 599 (1972).

Holt complains that Davidson was permitted to testify about oral understandings or agreements between the parties; therefore, he, Holt, should have been permitted to do the same. There is no justification for this complaint for the simple reason that no objections were made to Davidson’s testimony in that regard whereas proper objections were sustained to Holt’s attempts to testify about the same general subject matter. Error, if any, must be preserved by properly invoking adverse erroneous rulings of the trial court. It may not be urged here for the first time. Costarides v. Miller, 374 So.2d 1335 (Ala.1979).

Finally, it is contended that the trial court erred when Holt was not allowed to show, as a measure of damages, what it would cost to complete the job (subject matter of the construction contract). Apparently, there has been less than a careful perusal of the reporter’s transcript by Holt’s counsel. At page 34 of that transcript we find testimony of Holt as follows:

“Q And did you subsequently have your building repaired, fixed or put in whatever form you wanted it in?
“A Yes.
“Q And how was that done? Who did that?
“A Well, I hired F & M Construction Company to come in and correct the errors that had been made. The windows were not plumb, the door was not acceptable or usable.
“MR. WILLIAMS: Your Honor, we object to this rattling off, unless Mr. Holt can testify that he is an experienced construction man, as to what the defects were. Now, I think if he wants to describe what they looked like, that’s fine, but just a flat statement of whether it was out of plumb or wasn’t correct, we object to that type, unless he can show he is an expert in the field.
“THE COURT: Okay. Bob,-
“Q Mr. Holt, tell us what was done, please.
“A The windows were straightened up, the door was replaced, the walls were finished, the ceiling was put in, the tract lighting was put in. The showcase was made, the paper was put up. The other walls finished, painted.
“Q What was the cost to you for this?
“A Approximately thirteen thousand dollars.
“Q Thirteen thousand one hundred eighty-three dollars be correct if that’s-
“A That sounds correct.”

For the reasons stated, the judgment below is due to be and is hereby affirmed.

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    Sam LAMPHERS and Leola Lamphers v. Ella REESE.
    No. 79-377.
    Supreme Court of Alabama.
    Sept. 19, 1980.
    Joseph T. Carpenter of Carpenter & Gidi-ere, Montgomery, for appellants.

      William S. Mooneyham of Mooneyham & Mooneyham, and Clarence M. Small, Montgomery, for appellee.
   FAULKNER, Justice.

This is an appeal from a judgment declaring Ella Reese to be the owner in fee simple of a certain tract of real estate located in Montgomery, Alabama. We affirm.

Reese initially filed suit against Sam and Leola Lamphers requesting the trial court to declare her to be the owner in fee simple of a house and lot at 3318 Roundtree Street.

In the alternative, she requested that she have a lien on the property for the sum of $6,400.00 as reimbursement of all sums she paid on the mortgage on the property while she lived there.

The Lampherses answered that Reese occupied the property by virtue of a tenancy at will and filed a counterclaim requesting the court to deliver possession of the property to them and asking damages for an unpaid assessment, and for detention of the property.

It was undisputed that the deed to the property was in the Lampherses’ names and that the mortgage on the property was paid in full. It was also not disputed that they had left Montgomery to reside in another state in 1951-52 and that Reese and her father had resided in the house and made payments on the existing mortgage, as well as paying taxes, insurance and upkeep on the property for the twenty-nine year period. There was, however, much dispute as to the character of their possession.

The testimony showed that Ella Reese and Leola Lamphers are sisters. In 1950 Leola Lamphers and her husband, Sam, purchased the subject property; it was financed with a 100% VA loan. The initial deposit on the property, which was applied to the closing costs, was paid by Sam Lam-phers and Tom Reese, the father of Ella Reese and Leola Lamphers.

At the time the property was purchased, it was occupied by Sam and Leola Lam-phers and several members of Mrs. Lam-phers’s family. There was a dispute in the testimony regarding how soon after the purchase Ella Reese came to live in the house; the period varied from a few weeks to approximately a year and a half. At any rate, she was living there by the end of 1952.

Approximately a year and a half after they purchased the property, the Lamphers-es moved to Pittsburgh, Pennsylvania, but they returned in less than a year, and lived in the house. The testimony conflicted regarding who made the mortgage payments during this time, Ella Reese or the Lam-pherses.

After their return from Pittsburgh, the Lampherses remained in Montgomery for a while but by November, 1952, they had moved to Anderson, Indiana, where they lived at the time of this suit. They did not return to Montgomery except for visits after that time.

The testimony is in dispute as to what was said when the Lampherses left the last time. Ella Reese and her father testified that the Lampherses said they were leaving Montgomery and never intended to come back to live in Alabama. They testified further that the Lampherses told them they could either pay the mortgage or let it lapse and return the property to the real estate agency. Ella Reese made the payments until 1976, when the mortgage was paid in full. She and her father have lived in the house continuously since 1952.

Sam and Leola Lamphers denied saying they never intended to return to Montgomery. They claimed that the only thing that was said was that the other family members could stay in the house if they would make the mortgage payments and maintain the property. They denied that they intended to abandon the property; rather, they say, they intended for the mortgage payments to serve as rent on the property.

The Lampherses admitted that they had not contributed to the mortgage payments or to the cost of upkeep on the house since 1952. Although the deed and the utilities remained in their name, Ella Reese made the payments, paid the taxes, replaced the roof and purchased a new water heater and various other items. There was some discussion through the years of the Lamphers-es’ helping with the cost of painting and adding rooms onto the house; however, they never followed through with these plans.

There was no dispute between the parties until shortly before this suit commenced. Ella Reese and the Lampherses had discussed their paying a street sewer assessment she had received from the City of Montgomery, and Ms. Reese forwarded the assessment notices to the Lampherses in Indiana. Apparently, Mr. Lamphers then suggested that since she was not paying any rent to him, she could pay the assessment. Ms. Reese refused to pay any rent, stating that she saw no reason to pay rent when she was at home.

In October, 1978, the Lampherses decided to sell the property. The testimony was disputed regarding whether they discussed with Ella Reese her buying the house and lot. They subsequently contacted a real estate company in Indiana and listed the property for sale with a realtor in Montgomery. At that point Ella Reese filed the suit, praying for a judgment declaring that after holding the property openly, notoriously, adversely, peaceably and continuously, for over 28 years, under a parol gift from Sam and Leola Lamphers, she was in fact the owner of the property. The Lam-pherses counterclaimed alleging a tenancy at will.

The trial court found that Ella Reese came into possession under a parol gift from Sam and Leola Lamphers, and that she had continued in the uninterrupted, continuous, peaceable, open and hostile possession under claim of right; that the possession was neither permissive nor in recognition of title in the Lampherses; and that the Lampherses intended at the time of parol gift to surrender title to Ella Reese. The trial judge decreed that Ella Reese was the sole owner of the property.

The decree issued after an ore tenus hearing by the trial court conforms with this Court’s holding in Pendley v. Pendley, 338 So.2d 405 (Ala. 1976). Upon our review of the evidence, we find no manifest unjustness. We will not disturb the trial court’s decree. See Patterson v. Brooks, 285 Ala. 349, 232 So.2d 598 (1970).

AFFIRMED.

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


text:
    Robbie EDMONDS et al. v. Winston EDMONDS, Sr.
    79-426.
    Supreme Court of Alabama.
    Sept. 19, 1980.

      J. C. Perdue, Jr. of Cornett, Perdue & Ivins, Phenix City, for appellants.
    Roy H. Phillips of Phillips & Funderburk, Phenix City, for appellee.
   EMBRY, Justice.

This appeal is from a decree ordering the sale of real estate, consisting of approximately 136.45 acres of land located in Russell County, Alabama, and division of the proceeds of that sale. The decree resulted from an ore tenus trial.

The petition was filed by Winston Ed-monds, Sr., against 31 of his known coten-ants and others not known and unnamed.

Appellants, Robbie Edmonds and others, cotenants in actual possession, claim exclusive ownership of the property by reason of their adverse possession against appellee, Winston Edmonds, Sr., and other cotenants not in actual possession. The claim is based upon a claimed open, notorious, adverse and exclusive possession of appellants, or those from whom they derived their interest, for a period of more than twenty years. Appellants’ contention is untenable.

“The rule has long been established in this jurisdiction that the possession of one tenant in common is presumed to be the possession of all; and such possession does not become adverse to the cotenant until he is actually ousted or short of ouster, the adverse character of the possession of one is actually known to the other, or the possession of one is so open and notorious in its hostility and exclusiveness as to put the cotenant on notice of its adverse character. Foshee v. Foshee, 278 Ala. 205, 177 So.2d 99 (1965); Barry v. Thomas, 273 Ala. 527, 142 So.2d 918 (1962); Markstein v. Schilleci, 258 Ala. 68, 61 So.2d 75 (1952); Hames v. Irwin, 253 Ala. 458, 45 So.2d 281 (1949); Ratliff v. Ratliff, 234 Ala. 320, 175 So. 259 (1937).
“Before the possession of a cotenant may be regarded as adverse to his coten-ant, he must repudiate the cotenant’s interest in the property by act or declaration. Livingston v. Livingston, 210 Ala. 420, 98 So. 281 (1923). This means that there must be some express denial of title and right to possession of the fellow co-tenant brought home to him openly and unequivocally. Williams v. Sinclair Refining Co., 39 N.M. 388, 47 P.2d 910 (1935); 86 C.J.S. Tenancy in Common § 27. In Ratliff v. Ratliff, supra (234 Ala. at 322, 323, 178 So. at 261), this court stated the rule as follows:
“ ‘ * * * The possession of a tenant in common exercising the customary acts of ownership does not alone operate as a disseisin of cotenants; but there must be positive information of the facts, however informally communicated or acquired. * * * Tyson v. Jackson, 364 So.2d 1140 (Ala.1978).

In this case there is no evidence to support a finding that possession of anyone claiming title to subject property by adverse possession satisfied the requirements of Tyson so as to defeat title of a cotenant.

The judgment below is due to be and is hereby affirmed upon the authority of Tyson v. Jackson, aided by the ore tenus rule.

AFFIRMED.

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


text:
    In re ADVISORY OPINION TO the GOVERNOR REQUEST OF AUGUST 28, 1980.
    No. 59637.
    Supreme Court of Florida.
    Sept. 4, 1980.
    Betty J. Steffens, Deputy Gen. Counsel, Tallahassee, for Bob Graham, Governor.
   August 29, 1980

The Honorable Bob Graham

Governor of the State of Florida

The Capitol

Tallahassee, Florida 32301

Dear Governor Graham:

We have your request of August 28, 1980, for our opinion affecting your executive powers and duties as follows:

“Honorable Alan C. Sundberg

Chief Justice, and the Justices of The

Supreme Court of Florida

Tallahassee, Florida

“Gentlemen:

“By virtue of the provisions of Article IV, Section 1(c), Florida Constitution, I respectfully request your written opinion as to the interpretation of a portion of the Florida Constitution affecting my executive powers and duties.

“Pursuant to Florida Appellate Rule 9.500(b)(1), the first question for the Court is whether this request is within the purview of Article IV, Section 1(c), Florida Constitution. Under Article IV, Section 1(a) of the State Constitution, I am directed to take care that the laws of this State are faithfully executed. Article IV, Section 4(e) of the State Constitution provides that the State Treasurer shall disburse no funds except upon order of the Comptroller, countersigned by the Governor. Article IV, Section 1(a) of the Constitution provides: ‘The supreme executive power of the State shall be vested in a governor.’ This Court has previously determined that such a question is within the purview of Article IV, Section 1(c), Florida Constitution, by responding to a similar request. In re: Advisory Opinion to the Governor, 60 So.2d 321 (Fla.1952).

“Dr. Ronald E. Giddens was duly qualified as a Republican candidate for membership in the Florida House of Representatives, District 81. At the close of qualifying on July 22,1980, no other individuals had qualified as Republican candidates for district 81. [Exhibit ‘A’, pages 9 & 40]

“On July 29, 1980, Dr. Giddens submitted a letter of withdrawal from the race to the Secretary of State. [Exhibit ‘B’] On July 81, 1980, the Republican Party requested that a Special Primary Election be called. [Exhibit ‘C’] The withdrawal was reaffirmed under oath on August 22, 1980, and accepted by The Secretary of State. [Exhibit ‘D’]

“There is an apparent ambiguity in the Florida Election Code as to whether a vacancy exists in nomination by the Republican Party for election to the Florida House of Representatives, District 81, and as to whether it is my duty to issue a special call or proclamation for a special primary of the Republican Party to fill such alleged vacancy in nomination.

“Section 100.111(3)(a), Florida Statutes, provides a method for selecting nominees of political parties when there is a ‘vacancy in nomination’. Argument can be made that no vacancy in nomination can exist until after a candidate for nomination has been formally nominated at a first primary and then withdraws. However, Section 101.252, Florida Statutes, states that when only one candidate of a political party qualifies for an office, that candidate is declared to be the nominee and his name does not appear on the ballot.

“The question of whether a vacancy in nomination exists under the circumstances herein described, and whether I should call such special primary for the Republican Party involves my constitutional duty to take care that the laws of this State be faithfully executed and that I countersign no warrant for the disbursement of public funds except as may be authorized by law. Should I call a special Republican Party primary to fill a vacancy in nomination when there is no such vacancy, my act would be illegal. Should I fail to call such an election to fill a vacancy in nomination, if indeed such vacancy exists, I would have failed to perform my constitutional duty to take care that the laws of this State be faithfully executed. Should the call for a special Republican Party primary be illegal, expenditure of any public funds in connection therewith or for that purpose would also be illegal.

“In view of the doubt which exists and which has been expressed, I therefore, have the honor to request your opinion:

“I. Whether a vacancy in nomination of the Republican Party results when a candidate withdraws from the election subsequent to the close of qualifying and prior to the first primary; and,

“II. In compliance with my duty to take care that the laws be faithfully executed, is it my duty, or am I authorized under the Constitution and the laws enacted pursuant thereto, to call such a special primary election of the Republican Party to fill such a vacancy in nomination?

“Respectfully submitted,

/s/ Bob Graham

“Governor”

Pursuant to Rule 9.500(b)(1), Florida Rules of Appellate Procedure, it is incumbent upon the justices, first, to determine whether your request is within the purview of Article IV, Section 1(c), Florida Constitution. Because we do not construe your request to involve “the interpretation of any portion of [the] constitution,” we conclude that the justices of this Court are without authority to render an advisory opinion regarding your responsibilities under the statutory provisions referred to in your request. Hence, we must decline your request.

Respectfully,

Alan C. Sundberg

Ben F. Overton

Arthur J. England Jr.

James E. Alderman

Parker Lee McDonald

I would answer the question posed by the Governor. In re Advisory Opinion to the Governor, 60 So.2d 285 (Fla.1952).

Respectfully,

JOSEPH A. BOYD, JR.

      . Art. IV, § 1(c) provides:
      The governor may request in writing the opinion of the justices of the supreme court as to the interpretation of any portion of this constitution upon any question affecting his executive powers and duties. The justices shall, subject to their rules of procedure, permit interested persons to be heard on the questions presented and shall render their written opinion not earlier than ten days from the filing and docketing of the request, unless in their judgment the delay would cause public injury, [emphasis added]

      . See In re Advisory Opinion to the Governor, 113 So.2d 703 (Fla.1959); In re Opinion of the Justices, 69 Fla. 632, 68 So. 851 (1915); In re Advisory Opinion to the Governor, 64 Fla. 1, 59 So. 778 (1912).


author: SUNDBERG, Chief Justice. ENGLAND, Justice,

text:
    REPUBLICAN STATE EXECUTIVE COMMITTEE, a political committee established pursuant to Laws of Florida, Petitioner, v. Robert GRAHAM, as Governor of the State of Florida, Respondent.
    No. 59616.
    Supreme Court of Florida.
    Sept. 17, 1980.
    Robert J. Vossler, Tallahassee, for petitioner.
    Robert C. Josefsberg, Gen. Counsel, and David W. Wilcox, Asst. Gen. Counsel, Tallahassee, for respondent.
    Barry Richard of Roberts, Miller, Bag-gett, LaFaee, Richard & Wiser, Tallahassee, for Edward J. Healey, intervenor.

      John H. French, Jr. of Messer, Rhodes, Vickers & Hart, Tallahassee, for Democratic Executive Committee of Florida, amicus curiae.
   SUNDBERG, Chief Justice.

By petition for writ of mandamus, the Republican State Executive Committee requests this Court to direct Governor Graham to call a special primary election as required by section 100.111(3)(a), Florida Statutes (1979), because an alleged vacancy in nomination has occurred within the contemplation of the above statute. Jurisdiction is asserted under article V, section 3(b)(8), Florida Constitution (1980). The central issue is whether a vacancy in nomination within the purview of the statute can occur after time for qualification has closed but prior to the first primary election.

Dr. Ronald E. Giddens was duly qualified as a Republican candidate for membership in the Florida House of Representatives, District 81. At the close of qualifying on July 22,1980, no other individuals had qualified as Republican candidates for District 81. On July 29, 1980, Dr. Giddens submitted a letter of withdrawal from the race to the secretary of state. On July 31, 1980, the Republican Party requested that a special primary election be called. The withdrawal was reaffirmed under oath on August 22,1980, and accepted by the secretary of state. The Governor has declined to call a special primary.

Section 100.111(3)(a), Florida Statutes (1979), provides a method for selecting nominees for political parties when a “vacancy in nomination” has occurred prior to September 15 in the year of a general election. Petitioner contends that section 100.-lll(3)(a) must be read in conjunction with section 101.252(1), Florida Statutes (1979), which states that when only one candidate of a political party qualifies, that candidate is the party’s nominee. Petitioner further asserts that since the Republican Party’s sole qualifier withdrew after close of time for qualification the Governor must call a special primary election because, by virtue of section 101.252(1), a sole qualifier is automatically a party’s nominee, and a “vacancy in nomination” has therefore occurred.

The Governor argues that no vacancy can occur prior to the first primary election on September 9,1980. He bases this argument on the assertion that section 101.252, Florida Statutes (1979),- does not effectuate the nomination of an unopposed candidate on the day qualification closes. The Governor supports his position by relying on State ex rel. Chamberlain v. Tyler, 100 Fla. 1112, 130 So. 721 (1930), which found that no vacancy in nomination occurred when a political party held a primary election in which there was no candidate for the office. For the following reasons, we agree with petitioner’s contentions.

Respondent’s position ignores the unambiguous terms of section 101.252(1), Florida Statutes (1979):

Any candidate for nomination who has qualified as prescribed by law is entitled to have his name printed on the official primary election ballot. However, when there is only one candidate of any political party qualified for an office, the name of the candidate shall not be printed on the primary election ballot, and such candidate shall be declared nominated for the office. (Emphasis added.)

The statute clearly states that if there is only one candidate at the close of qualification, that candidate is automatically nominated for office. We interpret the statute in this manner for the following three reasons. First, the rest of the election laws are silent both as to who shall declare an unopposed candidate to be a nominee and when this declaration is to be made. The Elections Canvassing Commission declares the winner of contested positions only, and no mention of unopposed candidates is made in section 102.111(1), Florida Statutes (1979). There seems little justification for giving the nominating provision of section 101.252(1) effect in futuro when no clear future act of declaration is provided in the statute. The practice of the Elections Canvassing Commission of including unopposed candidates in their official declaration does not change the failure of the statutes themselves to provide for, other than in section 101.252(1), an act declaring the nomination of unopposed candidates. Second, if any meaning is to be given to the central import of section 101.252(1), i. e. unopposed, one can only look to the date that qualification closed, for it is only after this time that a contender can be called unopposed. This time is the focus of the statute, and its centrality implies an operative date from which an unopposed candidate is reclassified as a “nominee.” Finally, even assuming respondent’s argument were reasonable, it is no more reasonable than the construction urged by petitioner. If two equally reasonable constructions might be found, this Court in the past has chosen the one which enhances the elective process by providing voters with the greater choice in exercising their democratic rights:

[It is the] steadfast public policy of this State . . . that if the elective process is available, and if it is not expressly precluded by the applicable language, it should be utilized to fill any available office by vote of the people at the earliest possible date.

Spector v. Glisson, 305 So.2d 777, 782 (Fla. 1974). Accordingly, we believe our construction better serves the process by ensuring the largest choice of candidates through implementation of special elections.

Respondent’s reliance on State ex rel. Chamberlain v. Tyler is misplaced, since the situation before us is quite different. The Republican Party had a candidate qualify for the office. State v. Tyler is concerned only with a situation in which no candidate ever qualified, and a vacancy is created thereby. See also In re Opinion to the Governor, 60 So.2d 321 (Fla.1952).

Respondent points next to the statutory changes in section 100.111, Florida Statutes (1979), which eliminate any reference to the time in which a vacancy in nomination can occur. Argument is made that since the modern version deleted any reference to the necessity of holding a special primary for a vacancy which occurs “between the last date of filing” and the first primary, the legislature intended to eliminate special primaries for vacancies occurring during this time. But this contention carries little weight when one looks at an earlier version, section 100.-lll(6)(d), Florida Statutes (1963):

In the event that death, resignation, withdrawal, removal or any other cause or event should cause a vacancy in office or nomination between the last date of filing for a special or local primary election or between the date of the first and second primary election or between the date of the second primary election and the general election shall leave no candidate for nomination .... (Emphasis added.)

It is evident that the present statute also eliminates references to special elections between the first and second primary, as well as between the last primary and the general election:

In the event that death, resignation, withdrawal, removal or any other cause or event should cause a party to have a vacancy in nomination which leaves no candidate for an office from such party

Following respondent’s argument to its logical conclusion, there could be no time in which a special election could be called since specific references to any time were removed. We find this unacceptable. The earliest time that nomination can occur is at the close of qualification, and it is from this time that we conceive the legislature sought to protect the voters by ensuring the largest possible choice of candidates.

Nor do we accept the proposition that a special primary will cause confusion and unnecessary expense. Respondent concedes that the Governor must call a special primary if a vacancy occurs after the first primary election. But calling such an election after the primary and before the general election would in fact offer greater confusion than calling one soon after qualification, because in the former case less time would be provided in which the wheels of the elective process could turn. Additionally, these special elections have been regularly called in the past when the need arose. See Baker v. State ex rel. Caldwell, 122 So.2d 816 (Fla.1960); In re Advisory Opinion to the Governor, 60 So.2d 285 (Fla. 1952); Executive Orders No. 72-39 and No. 72-40.

The time constraint imposed by the date of the general election is sufficiently critical that we find a mandamus proceeding in this Court to be an appropriate remedy. Division of Bond Finance v. Smathers, 337 So.2d 805 (Fla.1976); Dickinson v. Stone, 251 So.2d 268 (Fla.1971). Although the Governor’s response reminds us of the admonition against indiscriminate issuance of the writ of mandamus voiced in Brown v. Firestone, 382 So.2d 654 (Fla.1980), at the same time he points out that the issue involved is a straightforward question of law. Hence, the necessity for fact finding referred to in Brown does not here pose an impediment.

Because the dictates of the statutes and cases are unambiguous, the Governor has a clear legal duty to call a special primary election. See De Groot v. Sheffield, 95 So.2d 912 (Fla.1957); State ex rel. R. C. Motor Lines v. Florida Railroad Commission, 123 Fla. 345, 166 So. 840 (1936); State ex rel. Globe & Rutgers Fire Insurance Co. v. Cornelius, 100 Fla. 292, 129 So. 752 (1930). We withhold, however, the issuance of a formal writ of mandamus in full confidence that the Governor will promptly perform his duties required by Chapter 100, Florida Statutes, in accordance with the decision of this Court.

Because of the exigent circumstances surrounding the necessity for promptly calling a special election no petition for rehearing will be entertained in this cause.

ADKINS, BOYD, OVERTON, ALDERMAN and McDONALD, JJ., concur.

ENGLAND, J., dissents with an opinion.

ENGLAND, Justice,

dissenting.

I disagree with the conclusion my colleagues draw from their plain reading of section 101.252(1), although I read that section to mean precisely what they read it to mean. That is to say, we all agree that an unopposed qualifier, denominated by the election law as a “candidate,” “shall be declared nominated for the office” without the necessity of having his or her name printed on the ballot for the first primary election. My colleagues conclude from the mere fact that the nomination is declared in the statute that the unopposed candidate becomes the nominee when the period for qualifying ends. I do not. When that transformation occurs is the critical question in this proceeding, and that eventuality is neither mentioned nor implied in the statute itself. The statute plainly concerns itself solely with the administrative expense, confusion, and the clutter of candidates which goes into printing ballots for a primary election.

A subsidiary question in this proceeding, which helps in the resolution of the primary question, is whether a “declaration” is essential to the transformation from candidate to nominee in order to give meaning to the words “declared nominated.”

The construction of the election laws urged by the governor-that candidates are declared nominees after the primary election-provides a statutory scheme which is symmetrical and consistent. Neither of these attributes characterize a system which, no matter how reasonable, allows unopposed candidates to become nominees at the end of the period for qualifying while opposed candidates await the outcome of their primary contest. Various provisions of the election laws suggest that the symmetry was purposeful.

(1) Throughout the • election laws the terms “candidate” and “nominee” are used meticulously. I have been unable to find any instance in which a nominee is authorized to perform any act before a primary election. In all instances, the term “nominee” is used to mean those persons who have been “declared” victorious at the end of a primary election.

(2) The secretary of state must certify to the supervisor of elections, within 10 days after the closing date for qualifying, the names of all “candidates” for nomination. The statute does not say all candidates and nominees.

Buttressing my view as to when an unopposed qualifier becomes a nominee is the requirement, not acknowledged by the majority, but nonetheless written into this “unambiguous” statute, that the qualifier be “declared” nominated. Under the election laws, the governor and cabinet act as the Elections Canvassing Commission to “determine and declare” who has been elected to office. No comparable provision establishes the point of time between candidates and nominees for party office, but a legislative change in the wording of the election law suggests that the declaration is after the first primary election rather than simultaneous with the close of qualifying. The operative section we are called upon to construe-section 101.252(l)-first said that unopposed candidates “are hereby declared to be nominated,” and later said that each such candidate “is declared nominated.” In 1963 the declaration was made prospective, the way it reads now. Changes are presumed to be purposeful. I would construe the statute to give effect to that change, treating equally as “nominees” of the party all persons who move from the primary period into the period before the general election, whether previously opposed or unopposed.

      . It should be noted that the duty imposed on the Governor by this statute is not related to the performance of his executive duties under the constitution. The ministerial duty lodged in the Governor could as easily have been imposed upon any other person, and indeed is presently shared with the secretary of state. See State ex rel. Bisbee v. Drew, 17 Fla. 67 (1879); see also Willits v. Askew, 279 So.2d 1 (Fla. 1973).

      . Section 100.1 ll(3)(a), Florida Statutes (1979), reads, in pertinent part:
      In the event that death, resignation, withdrawal, removal or any other cause or event should cause a party to have a vacancy in nomination which leaves no candidate for an office from such party, the Governor shall, after conferring with the Secretary of State, call a special primary election and, if necessary, a second special primary election to select for such office a nominee of such political party. The dates on which candidates may qualify for such special primary election shall be fixed by the Department of State, and the candidates shall qualify no later than noon of the last day so fixed.
      Section 100.1 ll(3)(b), Florida Statutes (1979), sets out the procedure for a vacancy in nomination occurring after September 15.

      . Respondent’s grammatical argument that “shall be declared” must indicate some distant future event of declaration is slightly amiss because “shall” when used with the third person connotes compulsion or obligation. “Will” would be the proper choice of words to indicate simple future tense. See Webster’s New World Dictionary, 1307 (2d ed. 1976).

      . It is argued that section 99.061(3) sheds light on the timing of declaration of nomination. This section requires the secretary of state to certify the names of “qualified candidates for nomination or election” to the supervisor of elections. We note that throughout the election laws candidate for nomination and for election are used interchangeably. See § 102.-141, Fla.Stat. (1979). Thus, the secretary of state would certify an unopposed candidate, nominated by the section 101.252(1) process, as a candidate for election (i. e. nominee) rather ' than nomination. This diversion is singularly unhelpful in determining when the unopposed candidate was indeed nominated.

      . § 97.021(18)(d), Fla.Stat. (1979).

      . See § 101.252(2), a parallel provision for the election of party executives, which is similarly directed solely at the administrative expense and convenience of the election process.

      . Section 100.061, Florida Statutes (1979), states that candidates who receive a majority of votes cast in the first primary election “shall be declared” nominated, and section 100.091(3) states that the candidate with the highest vote total in the second primary election “shall be declared” nominated.

      . § 99.061(3), Fla.Stat. (1979). The statute also requires the secretary to certify to the supervisor all candidates for “election,” meaning those persons seeking to be executive committee members of their parties and for whom elections are held simultaneous with the presidential preference primary rather than the general election. See § 101.252(2), Fla.Stat. (1979).

      . § 102.111(1), Fla.Stat. (1979).

      . Ch. 6469, § 27, Laws of Fla. (1913).

      . Ch. 26870, Laws of Fla. (1951).

      . Ch. 63-99, Laws of Fla.

      . Carlile v. Game & Fresh Water Fish Comm’n, 354 So.2d 362 (Fla.1977).

      . See § 100.051, Fla.Stat. (1979).


author: ADKINS, Justice.

text:
    STATE of Florida, Appellant, v. Harry S. HAMILTON, Appellee.
    No. 55181.
    Supreme Court of Florida.
    Sept. 18, 1980.

      Jim Smith, Atty. Gen., and Martin S. Friedman, Asst. Atty. Gen., and Sheri W. Smallwood, Asst. Gen. Counsel, Dept, of Environmental Regulation, Tallahassee, for appellant.
    Michael L. Bryant of Birr, Bryant & Saier, Gainesville, for appellee.
   ADKINS, Justice.

This is an appeal from an order of the Alachua County Court which held section 403.161(l)(a), Florida Statutes (1977) unconstitutional. We have jurisdiction pursuant to article Y, section (3)(b)(l), Florida Constitution.

The appellee, hereinafter defendant, was charged with violating Florida’s Air and Water Pollution Control Act:

It shall be a violation of this Chapter, and it shall be prohibited: (a) To cause pollution, except as otherwise provided in this Chapter, so as to harm or injure human health or welfare, animal, plant, or aquatic life or property.

§ 403.161(l)(a), Fla.Stat. (1977). Pollution is defined as:

[T]he presence in the outdoor atmosphere or waters of the state of any substances, contaminants, noise, or man-made or man-induced alteration of the chemical, physical, biological, or radiological integrity of air or water in quantities or at levels which are or may be potentially harmful or injurious to human health or welfare, animal or plant life, or property, or unreasonably interfere with the enjoyment of life or property, including outdoor recreation.

§ 403.031(2) Fla.Stat. (1977).

The state alleged that during construction of a shopping center defendant’s agent or employee caused a retention basin to be placed within a known creosote deposit on the property. Water from the pond absorbed toxic pollutants from the creosote, including crystalline or liquid isometric phe-nos or phenolic-type compounds. A pump and pipe discharged the contaminated water from the pond into a ditch, which eventually led to Haile Sink, a source of drinking water for the city of Gainesville. The trial court granted defendant’s motion to dismiss the charges on the ground that the statute was unconstitutionally vague in that it failed to give adequate notice of the proscribed conduct.

The accepted test for vagueness is whether the statute is specific and clear enough to put persons of common intelligence and understanding on notice of the proscribed conduct. Sandstrom v. Leader, 370 So.2d 3 (Fla.1979); Brown v. State, 358 So.2d 16 (Fla.1978). However, a defendant whose conduct clearly falls within the statutory prohibition may not complain of the absence of notice. Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1974). The state argues the latter principle precludes defendant’s notice challenge. The statute expressly prohibits contaminating state waters with any substance which is injurious to human health or animal, plant or aquatic life. Creosote is allegedly a known toxin which is deleterious to health and fatal if ingested. The record in this case does not support the state’s proposition. Looking to the definition of creosote, one finds:

[A] colorless or yellowish oily liquid that has a burning smokey taste, contains a mixture of phenolic compounds . . , is obtained by the distillation of wood tar, . and is used chiefly as an expectorant in chronic bronchitis and as a collector and frother in ore flotation.

Webster’s Third New International Dictionary, 534 (1976). Contrary to the state’s assertion, it is not clear that pumping water from a creosote-lined basin into a city’s water system constitutes pollution in violation of the statute. Cf. Stock v. State, 526 P.2d 3 (Alaska 1974) (dumping of raw sewage into streams running through residential areas clearly within the definition of pollution). We therefore examine the statute for clarity in light of the constitutional requirements.

Our examination must be tempered by the awareness that we deal with environmental protection legislation. § 403.021, Fla.Stat. (1977). “A statute enacted for the public benefit should be construed liberally in favor of the public even though it contains a penal provision.” City of Miami Beach v. Berns, 245 So.2d 38, 40 (Fla.1971). There is no doubt that the Pollution Control Act was intended to operate in-the public interest. § 403.021, Fla.Stat. (1977). The scope of the topic extends to lands, sea and air. Even when limited to state waters, pollution legislation must be geared toward a multi-faceted and complex set of circumstances. See Annot., 32 A.L.R.3d 215 (1970). The problems and their solutions are the subject of a highly technical interdisciplinary science. We agree with other jurisdictions which have found that the nature of pollution control inhibits detailed descriptions of proscribed standards of conduct. Texas Pet Foods, Inc. v. State, 529 S.W.2d 820 (Tex.Civ.App.1975); Southern Illinois Asphalt Co. v. Environmental Protection Agency, 15 Ill.App.3d 66, 303 N.E.2d 606 (5th App.Dist.Ct.1973).

The statute under which defendant was charged makes it a crime to cause pollution “so as to harm or injure human health or welfare, animal, plant or aquatic life or property.” § 403.161(l)(a), Fla.Stat. (1977). Thus, criminal penalties are imposed only if the pollution causes actual harm. The legislature is free to define offenses by describing them in terms of their results. State v. Barone, 124 So.2d 490 (Fla.1960). The defendant is not charged with criminal liability for acts which create only a potential for injury. Cf. Stock v. State, 526 P.2d at 10 (defendant charged with violation of section of statute prohibiting alterations to water which were “potentially” as opposed to “actually” harmful.) Although the definition of pollution includes the phrase “may be potentially harmful”, those types of pollution would not subject the actor to criminal liability. The definition of pollution is couched in commonly-used words which convey adequate warning of the proscribed conduct when read in conjunction with the section creating the offense. The legislature cannot be expected to list every possible substance which causes harm when present in sufficient quantities. This would be an impossible standard to meet and is not mandated by our constitution. State v. Dye, 346 So.2d 538 (Fla.1977); Orlando Sports Stadium, Inc., v. State, 262 So.2d 881 (Fla.1972).

The state looks to various administrative regulations pertaining to water pollution control as enhancing the definitional precision of the statute. See Fla.Admin.Code Rule 17-3.02. The trial court ruled that these standards for minimum conditions of waters did not add sufficient specificity to save the statute. In light of our holding that the statute is sufficient in and of itself to withstand the vagueness challenge, we need not address the details of the regulatory language.

The information in this case charged defendant with violating section 403.-161(l)(a), Florida Statutes (1977). The violation must be done “willfully or negligently” to give rise to a criminal penalty. § 403.161(3), Fla.Stat. (1977). The defendant contends this is unconstitutional because it purports to penalize simple negligence which cannot support a criminal conviction. State v. Winters, 346 So.2d 991 (Fla.1977). In Winters a statute which penalized the “negligent treatment of children” was invalidated as being unconstitutionally vague and overbroad. See § 827.05, Fla.Stat. (1975). There the constitutional flaw was that the prohibition extended to unintentional conduct which was not generated by culpable negligence. This Court distinguished a similar statue which proscribed acts done “willfully or by culpable negligence”. See § 827.04(2), Fla.Stat. (1975) (E.S.). The latter statute was subsequently upheld against a vagueness challenge on the very basis that it did not criminalize simple negligence. State v. Joyce, 361 So.2d 406 (Fla.1978). The state urges us to construe the instant statute as proscribing willful or culpably negligent conduct. This we cannot do. Even where legislation is specifically enacted in the public interest there must be clearly ascertainable standards of guilt by which a citizen may gauge his conduct. Section 403.161(3), Florida Statutes (1977), purports to impose criminal liability upon acts or omissions done entirely without intent. This is too broad a condemnation in this instance and must fail. The balance of the statute is complete in itself and constitutionally valid. We therefore delete- only the unconstitutional portion, i.e. that which penalizes mere negligent conduct, and uphold the remainder. State v. Williams, 343 So.2d 35 (Fla.1977).

The order of the trial court is reversed and the cause remanded for proceedings consistent with this opinion.

It is so ordered.

BOYD, OVERTON, ALDERMAN and McDONALD, JJ., concur.

SUNDBERG, C. J., and ENGLAND, J., concur in result only.


text:
    THE FLORIDA BAR, Petitioner, v. Bertha WILLIAMS, a/k/a Bert Williams, d/b/a Bert Williams Professional Accounting Services, Respondent.
    No. 58152.
    Supreme Court of Florida.
    Sept. 18, 1980.
    Ronald R. Richmond, Chairman, Standing Committee on UPL, New Port Richey, H. Glenn Boggs, Asst. Staff Counsel-UPL, Tallahassee, and Burton C. Conner, Bar Counsel, Okeechobee, for petitioner.
    Jack E. Orsley of Beverly & Freeman, West Palm Beach, for respondent.
   PER CURIAM.

This unauthorized practice of law matter is before us on joint motion and stipulation of settlement by The Florida Bar and Bertha Williams, providing:

WHEREAS, The Florida Bar filed a petition against unauthorized practice of law charging that certain activities of Bertha Williams, a/k/a Bert Williams, d/b/a Bert Williams Professional Accounting Services (hereinafter, respondent) constituted the unauthorized practice of law; and,
WHEREAS, on January 30, 1980, the Supreme Court of Florida issued a rule to show cause and order appointing referee in this cause; and,

WHEREAS, the respondent filed a response to the petition against unauthorized practice of law on March 21, 1980, which admitted the allegations of the petition; and,

WHEREAS, The Florida Bar is willing to conclude this matter against respondent if the referee recommends and the Supreme Court of Florida will agree to the settlement and enter the order and injunction set forth below.

The Florida Bar and respondent jointly stipulate and agree as follows:

1. The procedural provisions of Article XVI of the Integration Rule of The Florida Bar are, for the purposes of this settlement, hereby waived.
2. If the order and injunction set forth herein below are not approved and entered by the' Supreme Court, then this joint motion and stipulation is void.
3. The order and injunction set forth herein below shall be published in the Southern Reporter.

The parties have agreed to the entry of the following order and permanent injunction:

It is hereby Ordered and Adjudged as follows:
1. The provisions of the foregoing joint motion and stipulation are approved and confirmed.
2. The following activities constitute the unauthorized practice of law and may not be carried out or conducted in Florida by the respondent, who is perpetually restrained and enjoined from:
a. Holding herself out as an attorney authorized to practice law in Florida,
b. Allowing members of the public to rely on her to properly prepare legal forms or legal documents affecting a customer’s legal rights,
c. Advising customers as to any legal remedy which might be available to them,
d. Assisting customers in preparing documents or forms necessary for submission to any court or governmental agency,
e. Orally asking or answering questions from customers regarding which specific documents or forms might be necessary for filing with a court or governmental agency to accomplish a customer’s objective, or how to properly fill out such papers, or where to correctly file such papers, or how to present additional information to a given court or governmental agency, and
f. Engaging in personal assistance regarding the customer’s needs, including correcting either errors or omissions on documents or forms prepared by said customers.

3. The respondent admitted the allegations of the petition against unauthorized practice of law filed herein, especially including the fact that the respondent signed an affidavit (dated January 24, 1979) submitted to the petitioner’s unauthorized practice of law committed, which states in part, “I certify that I have read and will abide by the following decisions of the Supreme Court of Florida: Florida Bar vs. Brumbaugh, 355 So.2d 1186 (Fla. 1978); and Florida Bar vs. Peake, 364 So.2d 431 (Fla.1978).”

4. The respondent has admitted engaging in conduct outside that permitted by Brumbaugh and Peake subsequent to the date she signed the affidavit and consequently admits violating the terms of the affidavit.

5. Having considered the pleadings and evidence, we order that respondent be permanently enjoined from engaging in the acts set forth herein in paragraph (2) above and from otherwise engaging in the practice of law in the State of Florida and that respondent be found in indirect criminal contempt of the Supreme Court for the unauthorized practice of law and sentenced to pay a fine of $100.00 to the Clerk of this Court and to one month imprisonment, suspended so long as the respondent does not violate the terms of this injunction.

6. In addition, the respondent is ordered to pay the costs of this proceeding to petitioner. The amount of such costs shall be determined by this Court upon a motion to fix costs submitted by petitioner subsequent to the entry of this order by this Court.

The joint motion and stipulation is approved. The proposed order and injunction are adopted as an order of and an injunction by this Court.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.