text:
    Allen SCHWARTZENBURG et al., Plaintiffs-Appellants, v. INDIAN HILLS SUBDIVISION RESIDENTS et al., Defendants-Appellees.
    No. 7790.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.
    Guillory, McGee & Mayeux, Donald L. Mayeux, Eunice, for plaintiffs-appellants.
    Leon S. Haas, Jr., Opelousas, for executor-appellee.
    Louis B. Viviano, Opelousas, for defendants-appellees.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   GUIDRY, Judge.

MOTION TO DISMISS

The appellees move to dismiss this appeal on the grounds that it is neither a final judgment nor is there a showing of irreparable injury. We agree and dismiss the appeal.

The plaintiffs filed their suit on July 9, 1979 seeking to remove restrictions on two subdivision lots. The defendants, residents of the subdivision, filed Exceptions of Prematurity and No Cause of Action.

The Lower Court ruled against the defendants by overruling their Exception of Prematurity, subject to the plaintiffs’ adding an alternative prayer. The Court sustained the Exception of No Cause of Action; but, the plaintiffs were given a reasonable time in which to amend their petition.

Since the plaintiffs were given an opportunity to amend their petition and proceed to trial the judgment on the above Exceptions were not final judgments.

According to LSA-C.C.P. art. 2083 an appeal can only be taken from a final judgment or from an interlocutory judgment if it will cause irreparable injury. Since the judgment in this case is neither, the appeal cannot be maintained.

In the recent case of Fetty v. Colonial Bank, 365 So.2d 44 (La. App. 4th Cir., 1978) the Fourth Circuit faced a similar situation. In that case, the plaintiff brought suit seeking the return of usurious interest. The defendant filed Exceptions of No Cause of Action and No Right of Action. The trial court maintained the exceptions regarding the return of usurious interest and dismissed the exceptions insofar as they applied to the claim for return of the attorney’s fee.

The trial court granted the plaintiff the right to amend her petition on the maintained exception in order to state her cause of action. The plaintiff then made the amendment and properly stated her cause of action; then shortly thereafter she filed a devolutive appeal.

The defendant moved to dismiss the appeal. The Fourth Circuit recognized that the judgment was not appealable as there was no irreparable injury and no final judgment.

Our present case is similar. Plaintiff clearly has the opportunity to amend her petition and proceed with the trial on the merits of the case.

For the above reasons, the motion to dismiss the appeal is maintained, the appeal is dismissed, and the matter is remanded to the trial court for further proceedings in accordance with the law. Costs of this appeal are taxed to the plaintiff-appellant.

APPEAL DISMISSED AND REMANDED.


source: Caselaw Access Project

author: FORET, Judge.

license: Public Domain

text:
    Carol GUILLORY, Plaintiff-Appellee, v. NELSON DODGE, INC., Defendant-Appellant.
    No. 7791.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.
    Codings & Codings, Robert W. Codings, Lake Charles, for defendant-appellant.
    Gregory D. Lyons, Lake Charles, for plaintiff-appellee.
    Before GUIDRY, FORET and CUTRER, JJ.
   FORET, Judge.

MOTION TO REMAND

The defendant-appellant, Nelson Dodge, Inc., moves to remand the above captioned appeal to the City Court of Lake Charles for the purpose of retaking the testimony in this matter, as the original testimony has been erased.

The pertinent facts are as follows: Judgment was rendered in this matter on February 7,1980. From this judgment defendant has appealed. After the defendant’s appeal was lodged, it was informed by the Clerk of the Lake Charles City Court that the testimony of the witnesses was inadvertently erased.

The appellant then filed this Motion to Remand for the purpose of retaking the testimony.

Article 2132 of the Code of Civil Procedure provides as follows:

“A record on appeal which is incorrect or contains misstatements, irregularities or informalities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, by the trial court or by the order of the appellate court. All other questions as to the content and form of the record shall be presented to the appellate court.” (Emphasis added).

We believe that under the clear wording of this statute the defendant-appellant are entitled to the relief sought here. This court has held, on several occasions, that when all or part of the testimony is unable to be transcribed, the parties are entitled to a remand for the purpose of retaking this testimony. Willis v. Gulf Building Services of Baton Rouge, 372 So.2d 635 (La.App. 1st Cir., 1979); Shively v. Pickens, 336 So.2d 1071 (La.App. 3rd Cir., 1976); Loewer v. Vanderhider, 320 So.2d 315 (La.App. 3rd Cir., 1975); Kay v. Home Indemnity Company, 301 So.2d 705 (La.App. 3rd Cir., 1974); Middleton v. Pleasant, 298 So.2d 895 (La. App. 3rd Cir., 1974); Neal v. Neal, 268 So.2d 723 (La.App. 3rd Cir., 1972).

For the reasons assigned, the case is remanded to the trial court for the limited purpose of retaking the testimony in this suit.

APPEAL REMANDED.


author: SWIFT, Judge.

text:
    Robert THIBODEAUX, Plaintiff-Appellee, v. KING-WILKINSON, INC., Defendant-Appellant.
    No. 7662.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.
    Writ Refused Sept. 26, 1980.

      Lawrence 0. Guillory, Layfayette, for defendant-appellant.
    Pucheu & Pucheu, Jacque B. Pucheu, Jr., Eunice, for plaintiff-appellee.
    Before SWIFT, STOKER and DOUCET, JJ.
   SWIFT, Judge.

Although relator’s application for a writ of certiorari was originally denied by us for failure to show an irreparable injury, it has now been granted in compliance with an order of our supreme court. 381 So.2d 1245 (La.1980) Thus, we are called upon to review an interlocutory decree of the district court overruling the relator’s declinatory exception to jurisdiction over its person.

The plaintiff-respondent, Robert Thibo-deaux, a Louisiana resident, brought suit against King-Wilkinson, Inc., defendant-relator, a Texas corporation, for some back wages allegedly due under an employment contract between the parties for work in Scotland. It has not qualified to do business in Louisiana nor has it appointed an agent for service of process. Service was made under LSA-R.S. 13:3201 et seq. As the basis for its exception, defendant contends it has not had sufficient contacts within Louisiana to be considered as transacting business within the meaning of our Long Arm Statute and therefore it cannot be subjected to the jurisdiction of a Louisiana court through service of process thereunder.

It should be noted at the outset that the question of the applicability of the Long Arm Statute is a question of fact, the determination of which must rest on the particular circumstances of each case. Drilling Engineering, Inc. v. Independent Indonesian American Petroleum Company, 283 So.2d 687 (La.1973).

Basically, the trial judge found the facts in the instant case to be as follows:

“Plaintiff stated he met a friend in Eunice working for the defendant in Scotland. The friend suggested possible employment with defendant, upon which the plaintiff responded favorably. Several days later, the plaintiff got a call from the Houston Office of the defendant to him in Eunice, Louisiana, suggesting employment, which was favorably received. This culminated in a written contract,— attached to the petition, — for employment of plaintiff by defendant in Scotland, which contract was signed in Houston.
“Employment proceeded, and plaintiff’s checks, at his request, were sent to Eunice, Louisiana.
“After consummation a dispute arose as to final settlement. This was discussed over the phone by defendant in Houston and plaintiff in Eunice. It resulted in a final settlement payment.”

The defendant admits that one of its employees in Scotland made another telephone call to plaintiff in Eunice concerning his employment through the Houston office. However, the record does not reflect any other contacts by the defendant with plaintiff or with anyone else in Louisiana before the termination of plaintiff’s employment in Scotland.

A recent Louisiana Supreme court case, Adcock v. Surety Research & Inv. Corp., 344 So.2d 969 (La.1977), presents an interesting comparison of what facts are sufficient for minimum contacts for the purpose of the Long Arm Statute and due process requirements. In Adcock there were two sets of defendants, one of which was found to have sufficient contacts in Louisiana and one that did not. The case concerned a contract for the construction of a condominium in Nevada which also provided for payment of plaintiff’s fees for legal services. The contract was negotiated and drafted in Louisiana and the legal services were performed by plaintiff in Louisiana. It was executed by the president of the defendant corporation, who also signed the contract personally, and the plaintiffs client in Baton Rouge. The corporation and its president were held to have sufficient contacts to be considered as transacting business in Louisiana even though the project was to be constructed outside this state. The second set of defendants, who were also parties to the agreement, were never present in Louisiana, directly or indirectly. They did not have an agent in this state and they signed the contract in California. Our supreme court concluded that these defendants were not subject to the jurisdiction of the Louisiana courts as they had insufficient connections with this state.

In Boothe v. Universal Tank and Iron Works, Inc., 360 So.2d 1371 (La.App. 3 Cir. 1978), this court was faced with the question of whether a Louisiana court had jurisdiction over an out of state defendant. The plaintiff, apparently a Louisiana domiciliary, obtained a job in Illinois working on a water tank as a welder. Several days after reporting to work he was injured while working. We determined that the contract was not a Louisiana contract and Louisiana courts did not have jurisdiction. The facts which warranted such conclusion were these:

“Plaintiff testified that he did not go into any office located in Louisiana for the job and that he did not receive an application for employment in Louisiana. He stated that the information required on the company’s application was given to the job foreman at the Illinois site and that the formal application was filled out and submitted to the foreman at the Illinois site. He admitted that the telephone call to Mr. Burnes was initiated in Louisiana. He testified that the call was brief. The only information solicited by Burnes, according to plaintiff, was whether plaintiff was a welder. He also stated that all of the work that he did for the company was done in Illinois, from the date of hiring until the date of injury. He admitted that he gleaned from the telephone conversation that his employment was contingent upon going to Illinois, reporting to the job foreman on the the job site, and demonstrating the ability to weld. Plaintiff did qualify his testimony, however, by stating that he felt that he had the job when he left Louisiana.”

On the basis of the authorities referred to above, we conclude that the contract of employment was not a Louisiana contract and the defendant, King-Wilkinson, Inc., did not have sufficient contacts to be considered as transacting business in Louisiana to subject it to the jurisdiction and power of the courts of this state.

For the foregoing reasons, the judgment of the district court is reversed and it is ordered, adjudged and decreed that the dec-linatory exception to jurisdiction filed herein by defendant, King-Wilkinson, Inc., is sustained and this suit is dismissed. All costs of court, including this appeal, are assessed to the plaintiff.

REVERSED AND RENDERED.


author: REDMANN, Judge.

text:
    Mr. and Mrs. Keith M. DESSELLES, Individually and on behalf of their minor child, Brian Desselles v. Fred O. BRUMFIELD, M.D. and Southern Baptist Hospital.
    No. 11641.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 25, 1980.

      Fred L. Herman, Herman & Herman, New Orleans, for plaintiffs-respondents.
    Henry B. Alsobrook, Jr., Oscar L. Schoen-feld, III, Adams & Reese, New Orleans, for defendant-applicant.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   REDMANN, Judge.

Sued for medical malpractice, defendant physician excepted on the grounds of prematurity, because (unlike the nurse and hospital in Chivleatto v. Divinity, La. App. 4 Cir. 1979, 379 So.2d 784), he showed he had qualified and is “covered” by the Medical Malpractice Act, La.R.S. 40:1299.-41-48. The trial court sustained the exception but merely stayed the suit instead of dismissing it.

We grant writs and dismiss as expressly required both by La.C.C.P. 933’s general rule “If the dilatory exception pleading prematurity is sustained, the suit shall be dismissed” and by R.S. 40:1299.47B’s special rule “No action against a health care provider covered by this Part, . . . may be commenced in any court of this state before . . . presented to a medical review panel. . . . ”

Plaintiffs’ fear that their claim will be prescribed is answered by R.S. 40:1299.-47A: “The filing of the request for review of a claim shall suspend the time within which suit must be instituted, until ninety days following the issuance of the opinion by the medical review panel.” Plaintiffs did file a request the same day they filed their suit and are thereby protected against the running of prescription.

Plaintiffs’ further argument, based on the alleged co-tortfeasor hospital’s not being covered by the Medical Malpractice Act, really directs itself against sustaining the exception, and not against dismissing as opposed to staying the suit. The problem of trying the claim twice (like the problem of nonjoinder of an allegedly indispensable party — ordinarily pleaded by defendant) is present even if the suit were merely stayed. This is a problem of a sizeable, perhaps constitutional dimension, but there was no application by plaintiffs for writs to reverse the sustaining of the exception, and there was no attack in the trial court on this aspect of the statute as applied to a case like ours — just as there was no attack on the basis, also argued in plaintiffs’ opposition to writs, that the statute is defeating justice because “in 1978, of 394 claims filed only one has resulted in a paid claim.”

It is therefore ordered that the Honorable Joseph V. DiRosa, Judge, Civil District Court for the Parish of Orleans, Division “F” (L), recall his ruling staying these proceedings as to defendant Brumfield and in lieu thereof enter a dismissal of that defendant at plaintiffs’ cost.


author: STOKER, Judge.

text:
    OUACHITA EQUIPMENT RENTAL, INC., Plaintiff-Appellant, v. Wilbur R. DYER, Defendant-Appellee.
    No. 7631.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1980.

      Brown, Wicker & Lee, Ralph J. Wicker, Monroe, for plaintiff-appellant.
    Antoon, Darlymple & Beck, Joseph T. Dalrymple, Alexandria, for defendant-ap-pellee.
    Before CULPEPPER, SWIFT and STOKER, JJ.
   STOKER, Judge.

The plaintiff, Ouachita Equipment Rental Company, Inc., brought suit alleging the breach of an automobile lease agreement by the defendant, Wilbur R. Dyer. The trial court determined that the plaintiff failed to prove that the defendant breached the lease. We affirm.

MOTION TO DISMISS

Preliminarily we must address the defendant’s motion to dismiss the appeal of the plaintiff on the grounds that the appeal was not timely taken.

The record reveals that the trial judge signed the judgment on August 30, 1979. The appellant obtained an order of appeal on November 26, 1979, which was more than sixty days from the signing of the judgment. It is for this reason that the appellee argues that the appeal was not timely.

We disagree. According to LSA-C.C.P. art. 1913 when a case is taken under advisement notice shall be mailed to the counsel of record for each party. The record does not reveal that such notice was ever sent. If notice of judgment is not furnished as required, the delay for seeking an appeal does not ordinarily begin to run. LSA-C.C.P. arts. 1974, 2087 and 2123. In Rasberry v. English, 255 So.2d 433 (La.App. 3rd Cir., 1971) we said:

“The problem arises herein due to the fact that no certificate, specifying the date upon which the notice of judgment was mailed, can be found in the record. Without such an entry, it is impossible to determine whether or not the Clerk of Court complied with Article 1913 of the Code of Civil Procedure. It must be presumed that no notice was mailed as required, and therefore, the time allotted for making application for new trial, as well as for taking suspensive appeal, has not yet begun to run. Defendants’ sus-pensive appeal must therefore be considered as having been timely perfected.” (Citations omitted).

The same reasoning is applicable in the present case. We must presume that no notice was mailed as required. Since the delay did not begin to run, the appeal is timely.

ON THE MERITS

The facts reveal that on March 4, 1976, Wilbur R. Dyer, executed a “Standard Leasing Agreement” with Ouachita Equipment Rental Co., Inc., for the lease of a 1976 Ford Thunderbird automobile. The lease was for 27 months at a monthly rental of $251.87 which was due and payable in advance on the first day of each month during the term of the lease.

On August 31,1976, plaintiff wrote to the defendant advising him that he was in default for non-payment of the monthly rentals and demand was made for the return of the vehicle.

After the vehicle was returned to the plaintiff it was sold to Rivers Ford, Inc., a Monroe automobile dealership, for the sum of $6,900.00.

Suit was then filed with a demand of $2,829.72 plus attorney’s fees and costs of the suit. The amount demanded in the lawsuit includes the lost income for the remaining 21 months of the lease, the loss on the sale of the vehicle, reconditioning expenses, and the amount allegedly due under the early termination provisions of the lease contract.

The defendant argues that there was a failure of consideration and that the leased vehicle was not fit for the purposes for which it was leased.

The trial judge in his written reasons made the following observations:

“. . Defendant was dissatisfied with the performance of the auto, and had several discussions about same with representatives of plaintiff. Approximately six months after defendant first leased the auto, plaintiff sent him a notice that the lease was terminated, and defendant returned the car to plaintiff as requested. Plaintiff then filed suit for breach of contract, alleging that defendant was in default on his rental payments.
“At trial on the merits, plaintiff failed to prove that defendant was in default under the terms of the contract. Defendant showed that he had the car six months, and that he had canceled checks for six payments which plaintiff had accepted. Defendant also showed that he had made a $500.00 security deposit with plaintiff, which he does not seek the return of. “Since plaintiff canceled the lease of its own accord, and since plaintiff failed to prove that defendant was in default under the contract, it cannot recover the money it seeks from defendant.”

The plaintiff argues that the defendant made a judicial confession at trial which should allow his recovery. The judicial confession is allegedly contained in the following dialogue:

“Q. ‘Were you behind when they demanded return of the car?’
“A. ‘Evidently I was behind that last month that I returned the ear.’ ”

We do not believe that the above statement amounts to a judicial confession. The defendant did not admit that he was in default. The facts further reveal that the plaintiff demanded the return of the automobile by letter dated August 31, 1976. This was six months after the lease agreement was entered into by the parties. The .manager of the plaintiff corporation himself stated on direct examination that the defendant had the car for six months. When the plaintiff’s manager was asked why he demanded the automobile to be returned, he explained that it was because of the defendant’s non-payment. Yet, the plaintiff’s manager admitted the defendant had made six payments. It is obvious that the defendant had possession of the car for six months and made six payments.

The trial court correctly concluded that the defendant satisfied his contractual obligations. It appears that the plaintiff terminated the lease because the defendant expressed dissatisfaction with the automobile and threatened to quit paying for it.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are taxed to the plaintiff-appellant.

AFFIRMED.

      . LSA-C.C. art. 2291.

      . Arguably defendant was referring to the September 1979 payment in stating “[e]vidently I was behind that last month that I returned the car”. (Emphasis supplied). Thus, he paid for the six months he used the car and then returned it as demanded. Under LSA-C.C. art. 2291 a judicial confession may be revoked when “made through an error in fact”. In Modicut v. Rist, 98 So.2d 268 (La.App. 1st Cir., 1957), it was stated that “Article 2291 itself provides that such ian admission is not binding when ‘made through an error in fact,’ such as through ignorance of or a misapprehension of the true facts ... or such as through a miscomputation of the true total due . . . ”
      (Citations omitted).


author: DOUCET, Judge.

text:
    Sheilah D. TURNER, Plaintiff-Appellee, v. Thomas James BROUSSARD, Defendant-Appellant.
    No. 7701.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1980.

      Randy P. Angelle, Lafayette, for defendant-appellant.
    William H. Lambert, Lafayette, for plaintiff-appellee.
    Before GUIDRY, DOUCET and LA-BORDE, Judges.
   DOUCET, Judge.

Sheilah D. Turner brought this suit against her husband, Thomas James Brous-sard, seeking a separation from bed and board on the grounds of abandonment. Defendant answered, denying plaintiff’s allegation that he had abandoned her without lawful cause, and reconvened, seeking a judicial separation on the grounds of cruel treatment sufficient to render their living together insupportable. Following a trial, the district court rendered judgment in favor of plaintiff, granting her a separation from bed and board on the grounds of abandonment, and awarding her attorney's fees of $500, to be paid from the assets of the community of acquets and gains existing between them. Defendant’s reconventional demand was dismissed. Defendant appeals.

Article 143 of the Civil Code provides that the essential elements of abandonment are: (1) withdrawal from the common dwelling, (2) the absence of lawful cause for withdrawal, and (3) the withdrawing spouse’s constant refusal to return to live with the other.

Defendant argues on appeal that the trial judge erred in granting plaintiff a separation from bed and board on the grounds of abandonment, because she failed to prove the third element set above, i. e., his constant refusal to return to live with her. He further argues that the trial judge erred by failing to find that plaintiff’s cruel treatment of him was not only just cause for his leaving, but also adequate grounds for granting him the separation from bed and board that he sought by way of his recon-ventional demand.

Defendant relies on the decision of the court in Chamblee v. Chamblee, 340 So.2d 378 (La.App. 4th Cir. 1976) in support of his argument that plaintiff failed to prove the element of his constant refusal to return to live with her. In its opinion in that case, our brethren of the Fourth Circuit addressed the issue of whether or not the mere act of leaving the matrimonial domicile is proof of the elements constituting abandonment, such that the burden of proof shifts to the defendant to show that the alleged abandonment was for lawful cause. The Court concluded that despite some jurisprudence to the contrary, the plaintiff’s burden of proving abandonment was not satisfied by the mere showing that the defendant withdrew from the common dwelling. After reviewing the evidence, the court found that the plaintiff had proved nothing more than the defendant’s withdrawal. It therefore concluded that she had failed to carry her burden of proof. However, because of the conflicting jurisprudence reviewed in its opinion, the court felt that fairness to the plaintiff demanded that the case be remanded to the trial court to permit her to adduce further evidence on the issue of abandonment.

We fully agree with that court’s position with regard to the plaintiff’s burden of proof. However, we do not agree with defendant’s contention that plaintiff’s proof in this case is no better than the evidence found to be insufficient by the court in Chamblee. See also Von Bechman v. Von Bechman, 386 So.2d 910 (La.1980).

It is clear from the testimony of all of the witnesses at the trial, including plaintiff’s and defendant’s, that subsequent to his withdrawal from the common dwelling, defendant made no attempt to effect a reconciliation or to return to live with plaintiff. His actions after leaving and his testimony at the trial show clearly his intent not to return to the matrimonial domicile.

We note that despite its holding with regard to the plaintiff’s burden of proof, the court in Chamblee quoted with approval the following language from its earlier decision in Belou v. Belou, 231 So.2d 580 (La. App. 4th Cir. 1970), writ denied 256 La. 70, 235 So.2d 97 (1970):

“The parties separated on September 12, 1968. Plaintiff filed her suit some eight days later on September 20, 1968. This fact alone would not be enough to satisfy the court that the husband did not intend to return. This would be particularly true in this case because during the four months of this marriage each party had left the domicile once prior to this occasion. However, after the husband was served with citation in this matter he made no attempt to contact his wife to advise her of any intention to return, nor did he try to reconcile their differences. Three weeks after the suit was filed his wife contacted him to discuss with him her plans to get a divorce. The record does not indicate that he at that point made any effort toward reconciliation. Defendant continued to pay the rent on the apartment, the telephone bill and the utility bill but made no attempt to see his wife. It is the court’s opinion that these acts and the attitude of defendant after suit was filed for the separation manifested his intention not to return to the matrimonial domicile.” (emphasis added)

231 So.2d at page 582.

In the same vein, our brethren of the Second Circuit made the following comments on the evidence presented by the plaintiff in Woodward v. Woodward, 229 So.2d 167 (La.App. 2nd Cir. 1969):

“In this case the evidence disclosed that no attempt was made by defendant to return to the domicile at any time after his withdrawal. Nor is there any evidence showing that he has at any time communicated to his wife any desire on his part to effect a reconciliation. Defendant’s belated statement at the time of trial, signifying a willingness to return, can only be viewed as a self-serving statement to attempt to defeat plaintiff’s cause of action.” (emphasis added)

229 So.2d at page 169.

The record before us contains plaintiff’s testimony to the effect that defendant left the common dwelling in a manner strongly suggesting an intention not to return. Her testimony is not contradicted by defendant’s testimony on this particular point. Although plaintiff had the burden of proof, we believe that we can properly infer from defendant’s failure to show that he communicated a desire to effect a reconciliation that he did not have such a desire or intent. In view of the above, we reject defendant’s argument that plaintiff failed to prove the element of his refusal to return.

The next issue which must be addressed is whether defendant had just cause for leaving. According to plaintiff’s testimony she performed all of the duties that could reasonably have been expected of her. She testified that she cooked at least one meal per day for defendant, did his laundry regularly, cleaned the house, etc. She also testified that although she occasionally lost her temper when provoked by defendant, her behavior was never unreasonable. Her testimony was partially corroborated by her friend, Carol Underwood.

Defendant’s description of plaintiff’s behavior was entirely different. He testified that she frequently refused to cook or do his laundry and that the house “was a pig pen”. He also testified that plaintiff frequently lost her temper and that when she did, she would physically mistreat him and destroy objects around her like the television set and his snare drum. According to defendant, her behavior was such that he came to fear that she would kill him during one of her rages. His testimony was corroborated to some extent by the testimony of his mother, his brother, and a neighbor, Russell Comeaux.

The trial judge concluded that defendant had failed to prove cruel treatment rendering their living together insupportable. He specifically rejected defendant’s claim that he left because he was in fear of his life, finding it had not been corroborated by the testimony of any of the other witnesses. Our review of the evidence has not revealed manifest error in the trial judge's findings. The credibility of the witnesses was an important factor in determining the weight to be attached to their testimony. The trial judge was in a better position to assess credibility, and we do not find his evaluations unreasonable. Accordingly, we reject defendant’s argument that he had just cause for leaving.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to the defendant-appellant.

AFFIRMED.


text:
    George A. GWATNEY et al., Plaintiffs-Appellants, v. Joseph Edward MILLER, Defendant-Appellee.
    No. 7668.
    Court of Appeal of Louisiana, Third Circuit.
    July 11, 1980.

      Roderick L. Miller and John McCarthy, Lafayette, for plaintiffs-appellants.
    Seidel & Bailey, Fred K. Bailey, Lafayette, for defendant-appellee.
    Before DOMENGEAUX, FORET and CUTRER, JJ.
   FORET, Judge.

Plaintiffs filed a rule for contempt directing defendant in rule, Joseph Miller, to show cause why he should not be held in contempt for failure to obey a preliminary injunction and permanent injunction issued by the Fifteenth Judicial District Court. The rule also requested damages and attorney’s fees.

Following a hearing, the trial judge found that defendant had committed a contempt of court. However, the court imposed no penalties because, as of the date of the hearing, defendant had complied with the injunction order. Plaintiffs’ claim for attorney’s fees was rejected. Plaintiffs appeal the judgment insofar as it denied their claim for attorney’s fees.

The record reveals that on December 6, 1977, the Fifteenth Judicial District Court issued a preliminary injunction enjoining defendant Miller from violating restrictive covenants affecting his property. A permanent injunction was issued September 1, 1978. The injunction prohibited defendant from using his property for commercial purposes in connection with his “street fair” business. Defendant perfected a devolutive appeal from the court’s order issuing the injunction. This Court affirmed the trial court’s ruling by judgment rendered May 23, 1979. Gwatney v. Miller, 371 So.2d 1355 (La.App. 3 Cir. 1979). On August 2, 1979, plaintiffs instituted this contempt action to force defendant to comply with the injunction.

The only issue presented by this appeal is whether the trial court erred in refusing to award plaintiffs attorney’s fees incurred in bringing the contempt action.

The general rule is that attorney’s fees are not allowed except where authorized by statute or contract. Nassau Realty Co., Inc. v. Brown, 332 So.2d 206 (La. 1976); General Motors Acceptance Corporation v. Meyers, 385 So.2d 245 (La. 1980). Appellants cite no statutory provision which specifically provides for the allowance of attorney’s fees in a contempt action. Appellants contend that the court may award attorney’s fees under C.C.P. Article 3611, which provides:

“Art. 3611.
Disobedience of or resistance to a temporary restraining order or preliminary or final injunction is punishable as a contempt of court. The court may cause to be undone or destroyed whatever may be done in violation of an injunction, and the person aggrieved thereby may recover the damages sustained as a result of the violation.”

Although the article allows the court to award damages to the aggrieved party, it does not provide for the allowance of attorney’s fees. The trial judge did not err in rejecting plaintiffs’ demand for attorney’s fees since their recovery was not provided for by statute or contract.

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against plaintiffs-appellants.

AFFIRMED.


text:
    James A. SUMRALL and J. D. Broome v. INVESAT CORP.
    No. 51939.
    Supreme Court of Mississippi.
    July 23, 1980.
    Edward L. Cates, Jackson, for appellants.
    Butler, Snow, O’Mara, Stevens & Canna-da, Stephen W. Rosenblatt, James W. O’Mara, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; Joe G. Moss, Chancellor.

Before ROBERTSON, P. J., and WALKER and BOWLING, JJ.

AFFIRMED.


author: SUGG, Judge,

text:
    James SCOTT v. STATE of Mississippi.
    No. 1227.
    Supreme Court of Mississippi.
    July 23, 1980.
    Lawrence Chandler, Calhoun City, for appellant.
    Bill Allain, Atty. Gen. by Karen A. Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
   SUGG, Judge,

for the Court.

AFFIRMED.


author: BOWLING, Justice,

text:
    Willie JEFFERSON v. STATE of Mississippi.
    No. 51836.
    Supreme Court of Mississippi.
    July 30, 1980.

      Morris & Pritchard, Charles E. Morris, Jr., Biloxi, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant was indicted, tried and convicted in the Circuit Court of the Second Judicial District of Harrison County for the crime of breaking and entering the dwelling house of Mrs. Buelah Ann Pickens, in the night time, while occupied by her, armed with a deadly weapon, with intent to commit the crime of rape. There was a co-indictee listed. The indictment obviously was under the provisions of Mississippi Code Annotated section 97-17-23 (1972). Appellant assigns as error, the following:

1.The lower court committed reversible error in allowing testimony of prior crimes committed by the appellant, other than the one that he was indicted for.
2. The verdict was contrary to the overwhelming weight of the evidence and the applicable law.
3. The lower court committed reversible error in not directing a verdict for the appellant, in that this was a weak circumstantial evidence case, and there being no corroboration of complaining witness.
4. The original indictment'is defective in that it charges two separate and distinct crimes, attempted rape not being a substantive offense of burglary.

It should be noted at the outset that appellant’s primary defense was an alibi. Two witnesses placed him approximately 200 miles from the scene of the alleged crime a few hours prior to and after the incident occurred. The primary witness for the state was Buelah Ann Pickens, who resided in Biloxi, Mississippi, with her three small children. She testified that during the early morning hours of August 24,1978, she awoke to find two men sitting on her bed, one had a knife and attempted to place a pillow over her face, and both attempted to remove her nightgown. Mrs. Pickens had a pistol under her pillow, which she managed to secure and shoot the co-indictee in the shoulder. This person ran from the room. The other man fought with Mrs. Pickens for possession of the gun. He finally took it from her and carried it with him out of the residence. She testified that she found a window fan had been removed and the window opened; that she was hysterical and screamed out the window for help from her neighbors. The police arrived shortly thereafter.

Mrs. Pickens positively identified the appellant as the assailant who tried to place the pillow over her face, and who took the gun from her.

A Biloxi police officer testified that he interviewed the co-indictee at a local hospital where he was being treated for a bullet wound in the shoulder.

A detective for many years with the Biloxi Police Department testified regarding a photographic lineup of persons of a similar age, sex and race as appellant, and that Mrs. Pickens readily selected appellant as the assailant she was not able to shoot.

After the defense introduced testimony of the two alibi witnesses, the state, in rebuttal, called three witnesses. The first witness testified that he lived in an apartment in the same four-apartment building with appellant and his family; that he was awakened in the early morning hours by a policeman who was looking for appellant. Upon receiving directions as to which apartment appellant lived in, the policeman knocked on the door but received no response. After the policeman left, the witness testified that he saw appellant’s mother signal him from the apartment window; that appellant came from across the street, placed two suitcases in a car, and left hurriedly.

The police officer referred to above testified and corroborated the witness’ testimony regarding his visit to appellant’s apartment.

Another Biloxi policeman testified that he and his partner were on patrol in an area in Biloxi after midnight on the morning in question and saw appellant with others on the street. He testified that he knew appellant well.

Regarding the first assignment of error, that is, that testimony was allowed concerning prior crimes of appellant, the testimony of Mrs. Pickens revealed that she had been raped only once in her life and that was by appellant a few weeks prior to the incident hereinabove related. It is contended that the introduction of this testimony was error. In discussing this point, we need to point out in fairness that the attorney for appellant in the appeal before this Court did not participate in the trial of the case in the court below. The record is abundantly clear that the attorney for appellant was ' the one who brought out the testimony , regarding the prior crime and this was done ' even after cautionary warning by the court and the state. On voir dire examination, appellant’s attorney entered into questions and answers with a prospective juror regarding the prior charge against appellant. Of course, the entire panel heard this inquiry instigated by appellant's attorney. The prosecuting attorney than warned appellant’s attorney that the prosecution was not going to bring out appellant’s record during the trial and warned him “not to open the door.” Even after this warning, appellant’s attorney, on cross-examination of Mrs. Pickens, “opened the door” and interrogated the witness about the prior occasion of her involvement with appellant. Of course, the prosecution then developed that point in greater detail.

In regard to this assignment of error, it was not listed in appellant’s motion for a new trial, and, therefore, not presented to the trial court. It is elemental that errors cannot be raised in this Court for the first time on appeal. However, we fully consider the assignment and hold that the alleged error does not require or justify a reversal of the cause for the reason that it clearly was injected into the case by appellant’s attorney. To hold otherwise would give every accused a means of securing a reversal. Simpson v. State, 366 So.2d 1085 (Miss.1979); Johnson v. State, 260 So.2d 436 (Miss.1972).

Assignments of error Nos. 2 and 3 may be considered together. There was abundant evidence for the jury to return a guilty verdict. As above discussed, the testimony of Mrs. Pickens was positive and direct as to the occurrence and the identity of appellant. As stated, she knew him personally and he was not disguised in any manner. The testimony in contradiction to the two alibi witnesses was ample for the jury to disbelieve them. Appellant was seen leaving his place of abode shortly after the occurrence and at the beginning of the police investigation. According to one witness, he was seen on the streets of Biloxi between the hours of twelve midnight and three o’clock a. m.

There is no merit to the final assignment of error. In the first place, this assignment was not included in the motion for a new trial, nor was it ever presented to the trial court either prior to or during the trial. Nevertheless, we consider it and find that the language of the indictment clearly conforms to the statute under which appellant was co-indicted. The statute (Code section 97-17-23) clearly sets out that the accused should be proved to have broken and entered the dwelling house of another with intent to commit some crime therein. The indictment charged that this intended crime was rape. The positive testimony of Mrs. Pickens amply justified a finding that this crime was intended by appellant.

We find no reversible error in the cause and it is affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE and COFER, JJ., concur.


author: LEE, Justice, for the Court:

text:
    Toby CHERRY v. STATE of Mississippi.
    No. 51921.
    Supreme Court of Mississippi.
    July 30, 1980.
    Jackson M. Brown, Starkville, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   LEE, Justice, for the Court:

Toby Cherry was convicted in the Circuit Court of Oktibbeha County for the possession of marijuana in an amount greater than one (1) kilogram, was sentenced to serve a term of three (3) years in the state penitentiary, and was fined one thousand dollars ($1,000). From that sentence and judgment he appeals here.

The principal question presented, which disposes of the case, is whether or not the lower court erred in refusing to grant a peremptory instruction of not guilty, and whether or not the verdict of the jury was contrary to the great weight of the evidence.

On August 20, 1978, about 11:00 p. m., the Sheriff of Oktibbeha County, along with two deputies, conducted a search of the Cherry estate premises, pursuant to a valid search warrant, and found three (3) garbage bags containing a green, leafy substance, which proved to be marijuana. Some of the same was also found in the living room.

Toby Cherry owned a one-fifth (Vfe) interest in the property. The house was occupied by Walter Effler and him. The marijuana was found in the bedroom of Effler, and, at the time of the search, neither Ef-fler nor appellant was at the house.

The State’s case was founded upon constructive possession of the contraband by appellant. Evidence introduced by. the State to prove the charge consisted of (1) the fact that appellant owned a Vs interest in the house and lived there, and (2) the following notes signed by appellant:

(1)
“Walt:
Your part of the reefer we got from Heavy is in the sifter. The seeds are in their [sic] too. Tried to wake you up last night, but it was no use. See you in about 2 weeks.
Toby.”

I don’t know what went wrong. The county deputies came our here and ransacked the place. And I found some things were different and a warrant for my arrest for marijuana & paraphernalia. I’m going to where we were talking. I advise you to leave too. I’ll let my folks know where I’m at you can contact me through them. . Sorry things had to turn out this way, but I can’t let this happen to me.
Always friends,
Toby.”

Walter Effler testified that the marijuana belonged to him, that he got it in the State of Missouri and that appellant was not at home or in town when he obtained the marijuana. He further testified that appellant did not give him any money with which to buy the marijuana and that appellant knew nothing about it. When he brought the marijuana from Missouri, he said that it was wet and he spread it out in the driveway of the Cherry house to dry. He did not see appellant until approximately a week later. Effler further testified that the first note set forth above was in a briefcase in the living room and did not relate to the marijuana found in the house on August 20.

The testimony of Effler is undisputed and it is corroborated by other evidence. Walter Effler was employed by Larry Spence during the month of August, 1978. Spence, testified that Effler took several days off from work during that time and went to the State of Missouri. After Effler’s return, Spence and his wife went to the Cherry residence to talk with Effler, and they observed a quantity of marijuana which had been spread on the ground around the house. Mrs. Spence testified that she saw several bags of marijuana in the yard and she observed Walter Effler cleaning marijuana and giving it to two (2) unidentified individuals. She did not see appellant on the premises at any time. The Spences reported the incident to the Oktibbeha County sheriff who obtained a warrant and searched the premises.

Appellant denied that he knew anything about the marijuana. He had been out of the State of Mississippi from August 10, 1978, until late in the evening of August 20, when he returned and found a copy of the search warrant which had been left in the house by the sheriff. Appellant wrote the second note and placed it on the door where it was found the next day by the sheriff. He stated that the first note had been written three (3) to six (6) months prior to August 20, and referred to another incident..

The State cites Curry v. State, 249 So.2d 414 (Miss.1971) which announced the constructive possession rule as follows:

“What constitutes a sufficient external relationship between the defendant and the narcotic property to complete the concept of ‘possession’ is a question which is not susceptible of a specific rule. However, there must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. It need not be actual physical possession. Constructive possession may be shown by establishing that the drug involved was subject to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances. In the instant case, all of the circumstances and these criteria were sufficient to warrant the jury in finding that appellant was in possession of the marijuana.” (Emphasis added). 249 So.2d at 416.

In Powell v. State, 355 So.2d 1378 (Miss.1978), the Court said:

“The correct rule in this jurisdiction is that one in possession of premises upon . which contraband is found is presumed to be in constructive possession of the articles, but the presumption is rebuttable. We have held that where contraband is found upon premises not in the exclusive control and possession of the accused, additional incriminating facts must connect the accused with the contraband. Where the premises upon which contraband is found is not in the exclusive possession of the accused, the accused is entitled to acquittal, absent some competent evidence connecting him with the contraband. Sisk v. State, 290 So.2d 609 (Miss. 1974).” 355 So.2d at 1379.

We are of the opinion that the verdict of the jury was contrary to the overwhelming weight of the evidence, and that under Burks v. State, 437 U.S. 1, 98 S.Gt. 2141, 57 L.Ed.2d 1 (1978), the case must be reversed and the appellant discharged. See Moody v. State, 371 So.2d 408 (Miss.1979).

REVERSED AND APPELLANT DISCHARGED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, BOWLING and COFER, JJ., concur.


author: LEE, Justice, for the court:

text:
    Julie A. Fortner PEARSON v. John L. FORTNER.
    No. 51965.
    Supreme Court of Mississippi.
    July 30, 1980.
    Stewart Guernsey, Grenada, for appellant.
    No brief filed on behalf of appellee.
    Before PATTERSON, BROOM and LEE, JJ.
   LEE, Justice, for the court:

Julie A. Fortner Pearson has appealed from a judgment of the Chancery Court of Lafayette County, Honorable William H. Anderson, presiding, which, although adjudicating John L. Fortner in contempt of court for failure to make child support payments, modified the original divorce decree, reduced support payments from forty dollars ($40.00) per week to twenty dollars ($20.00) per week and granted custody of Jean Elizabeth Fortner, 13-year-old child of the parties, to her father, John L. Fortner.

The sole assignment of error is whether or not the chancery court erred in granting relief on the cross-petition while finding appellee in contempt of the court.

Appellee is not represented by counsel on this appeal, and no brief has been filed in his behalf. Appellant has filed a motion for reversal of the judgment rendered in the lower court on that account.

On October 5, 1977, the Chancery Court of Lafayette County entered a decree divorcing appellant from appellee on the ground of habitual cruel and inhuman treatment. Appellee was ordered to pay the sum of $40.00 per week for the support of two (2) minor children of the parties, Jean Elizabeth Fortner and Rickey Fortner, ages 11 and 13, respectively, whose custody was granted to appellant. Appellee failed to make the support payments, although he did, to some degree, provide for the children.

It was necessary for appellant to obtain aid from the Child Support Unit of the State Welfare Department. She was required to assign her support rights to that department, pursuant to Mississippi Code Annotated § 43-19-35 (Supp.1979), and a petition for contempt was filed by the department against appellee in the name of appellant. An answer and cross-petition were filed by appellee. The chancellor found that appellee was in contempt of the court for failure to make the child support payments as ordered, entered judgment against him in the sum of twenty-five hundred dollars ($2,500), and required him to pay fifty dollars ($50.00) per month on the judgment in order to purge his contempt. The chancellor further granted relief sought in the cross-petition and modified the original divorce decree, granting custody of Jean Elizabeth Fortner, thirteen (13) years of age, to appellee, and he reduced the child support payments to $20.00 per week.

The rule often stated by this Court is to the effect that, if no brief is filed on behalf of the appellee, the fact of confessed error follows unless from the face of the appeal there manifestly is no error. Mississippi State Highway Commission v. Hurst, 349 So.2d 545 (Miss.1977); Green v. Green, 317 So.2d 392 (Miss.1975); Westinghouse Credit Corp. v. Deposit Guaranty National Bank, 304 So.2d 636 (Miss.1974). Here, it is clear from the appellant’s brief that the court committed error in modifying the original decree when, at the same time, the appellee was found to be in contempt and, thus, not to be in court with clean hands. Taliaferro v. Ferguson, 205 Miss. 129, 38 So.2d 471 (1949).

The chancellor evidently was concerned about the situation in which the young girl, Jean Elizabeth Fortner, was living. This Court, just as the lower court, is concerned with what is for the best interest of the child. We are of the opinion that the judgment should be, and is, reversed and remanded to the lower court for determination as to whether or not appellant is presently a fit person to have the custody of said child, and whether or not her best interest requires that her custody be changed with subsequent change in the the amount of the weekly support.

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM and BOWLING, JJ., concur.

COFER, J., took no part.


text:
    Thomas CARROLL v. STATE FARM AUTOMOBILE INSURANCE COMPANY.
    No. 51880.
    Supreme Court of Mississippi.
    July 30, 1980.
    Sam P. Cooper, Jr., Picayune, for appellant.
    Bryan, Nelson, Allen, Schroeder & Cobb, Billy W. Hood, Gulfport, for appellee.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   AFFIRMED.


author: PER CURIAM.

text:
    Charles HOOPER v. Don SIEGELMAN, as Secretary of State for the State of Alabama; and Hartwell B. Lutz.
    No. 79-668.
    Supreme Court of Alabama.
    Date of Decision July 1, 1980.
    Date of Opinion July 11, 1980.
    George M. Beason, Jr. of Martinson & Beason, Huntsville, for appellant.
    Linda C. Breland, Asst. Atty. Gen. and Robert D. Segall of Hobbs, Copeland, Franco & Screws, Montgomery, for appellees.
   PER CURIAM.

This expedited appeal, submitted on briefs and arguments of counsel on July 1, 1980, presents the issue whether a judge, appointed to a judicial office vacated by a prior appointee, may offer for election for a full term before he has completed one year in office, and such an election be valid. Immediately upon submission and after careful consideration, we issued an order affirming the judgment below which decreed that the Appellee, Judge Hartwell B. Lutz, was lawfully elected for a six-year term in the General Election of 1978, which term commenced January 16,1979, and that the Appellee, Don Siegelman, correctly ruled that the office of this Judgeship is not due to be on the General Election ballot in 1980. The opinion of this Court follows.

The issue presented is clarified by Appellant’s Statement of the Facts. James C. Esco was elected as Judge of the District Court of Madison County in November of 1976 for a six-year term ending in January, 1983. Judge Esco resigned his office in May of 1977, and Daniel B. Banks, Jr., was appointed to succeed him. Judge Banks served from the day of his appointment, May 27, 1977, until September 11, 1978, when he was appointed Circuit Judge. Subsequent to his appointment to the District Court Judgeship and prior to his appointment to the Circuit Court Judgeship, Judge Banks qualified as a candidate for election to the District Court Judgeship and was so chosen the Democratic candidate for District Judge in the September, 1978, Democratic Primary Election. On September 11, 1978, subsequent to winning the Democratic Primary Election to the District Court Judgeship, Place 1, and prior to the General Election of 1978, Judge Banks was appointed as Circuit Judge by the Governor.

On October 6,1978, Hartwell B. Lutz was appointed District Court Judge to fill the vacancy created by the appointment of Judge Banks to the Circuit Court. Upon the appointment of Judge Banks to the Circuit Court on September 11, 1978, his name was withdrawn as a candidate for District Judge for the General Election of 1978. On October 7,1978, one day after his appointment, the name of Hartwell B. Lutz was placed on the ballot as the Democratic candidate for the District Court Judgeship, Place 1, Madison County, Alabama, for the General Election of 1978.

In March of 1980, the Plaintiff and Thomas Woodall, Chairman of the Madison County Democratic Executive Committee, inquired of the Defendant Don Siegelman, Secretary of State for the State of Alabama, whether the District Court Judgeship, Place 1, Madison County, Alabama, would be on the September, 1980, Primary Election ballot. The Defendant Don Siegel-man replied that, in his opinion, “an election for the position of District Judge, Place 1, Madison County, will next occur in the year 1984.”

On May 30, 1980, an order was issued by the Circuit Court of Montgomery County, Alabama, in which summary judgment was granted to the Defendants, ruling that Hartwell B. Lutz had been elected to a six-year term as District Court Judge, Place 1, Madison County, Alabama, in November of 1978; thus, this appeal.

Under the particular facts of this case, then, the issue may be more specifically posed: Pursuant to the provisions of § 6.14 of Amendment 328 of the Constitution, what is the initial term of a judge appointed to fill a vacancy in a judicial office which was held by a prior appointee, not the elected judge?

The parties are represented by highly competent counsel whose briefs and oral arguments have materially aided us in defining the issue and analyzing the principles pertinent to its resolution. Appellant contends:

“It . . . appears clear from a reading of Section 6.14, that a judicial appointee can only run for election to that appointed office ‘after’ he has completed one year in office. There is one exception to this one year requirement and that is when the original term ends prior to the appointee's serving one year in office. McDonnell v. State ex rel. Jones, 199 Ala. 240, 74 So. 349 (1917), provides that one appointed to a judicial vacancy can hold only to the end of the original six year term.
“Reading Section 6.14 and the McDonnell case together we see that a judicial appointee can run for election to his appointed office only ‘after’ he has served one year in office or if the original six year term expires prior to the end of the one year period of time.
“Judge Esco was elected to an original six year term in November of 1976 with said original term expiring in January of 1983. When Judge Esco resigned in May of 1977, Judge Banks was appointed to fill the vacancy and said appointment was made pursuant to Section 6.14. Judge Banks’ appointment did not create a new ‘original term’ since Judge Esco’s term had not expired and Judge Banks had not served one year in office and been elected to a new ‘original term.’ At the time Judge Banks resigned he was in the process of creating a new ‘original term’ in that he had served one year in office as the judicial appointee and he has been elected the Democratic candidate for such office. Judge Banks never completed the creation of the new ‘original term’ since he resigned prior to being elected to office . .

Appellant’s position is “that the lower Court has become confused in distinguishing between Judge Esco’s original six year term and Judge Banks’ tenure as a judicial officer of that same Court [citing State ex rel. Foster v. Rice, 230 Ala. 608, 162 So. 292 (1935), which states that, ‘The term of an office, as fixed in the Constitution or statute creating the office, is not to be confused with the tenure of an officer . . .’; and § 36-3-2, Ala. Code 1975, which fixes the term of an inferior Court Judge at six years].”

In summary, then, Appellant contends that § 6.14 requires that all appointees, regardless of whether they replace an elected or an appointed judge, serve at least one year in office before an election may be held; consequently, the 1978 General Election should not have been held and was invalid. Accordingly, says Appellant, an election for District Court Judge, Place 1, Madison County, should be held in 1980.

Appellees disagree, maintaining:

“[N]o appointee can serve longer than the term of his predecessor and that Judge Banks’ term expired in January after the November 1978 election. The Circuit Court agreed with Appellees, holding that ‘. . . Lutz properly ran for election in November of 1978, not only because he was lawfully named as the Democratic nominee to replace Banks, but also because no one appointed to fill a judgeship vacancy can serve longer than the term of his predecessor.’ The Court correctly analogized to McDonnell v. State, ex rel. Jones, 199 Ala. 240, 74 So. 349 (1917), [which] held that no judicial appointee, regardless of when appointed, could serve beyond the original six year elected term established for a judicial position.”

In arguing for the applicability of McDonnell to the instant case, Appellees succinctly and accurately review the evolution of § 6.14’s precursors:

“Section 17 of the Constitution of 1875 provided for the filling of vacancies by appointment for the remainder of the elected term. There was no provision at all in the 1875 Constitution for an election pending the expiration of the original elected term. The sole consideration at that time was uniformity, i. e., elections for all judgeship positions should be held at the same time. There was no apparent objection to an appointee holding a judgeship for up to five years without an election.
“Section 158 of the Constitution of 1901 provided that vacancies in judicial offices be filled by appointment by the Governor. The appointee held office until the next general election at least six months after the vacancy occurred, and the successor chosen at such election held office for the unexpired portion of the original six year term. As can be seen by comparing the 1901 provision with the 1875 law, in 1901 two considerations became important. First, the framers of the Constitution manifested the intention that judicial offices be held by appointment for only limited periods of time. That is, the interest of the public in electing judicial officers was recognized and given force. No longer could an appointee serve four or five years without being approved by the voters. Moreover, just as in 1875, uniformity and harmony with the general system of elections was paramount. When one was elected to fill a vacancy, he was elected to fill only the remaining portion of the original six year term. In that way, all judgeship positions would be open for election on the same day every six years.
“Both the 1875 and 1901 Constitutional provisions differ dramatically from Section 6.14. Nowhere in either Section 17 of the 1875 Constitution or in Section 158 of the 1901 Constitution was it stated that an appointee serve an initial term. Pursuant to Section 6.14, of course, an appointee is expressly appointed tó his own ‘term.’ The significance of the framers’ use of the word ‘term’ is highlighted by the fact that the appointee’s term could last up to slightly less than two years.
“Perhaps even more importantly, the emphasis on uniformity and harmony in the general system of elections was completely eliminated by Section 6.14. When an election is held to fill a vacancy, the elected term is no longer to complete the unexpired portion of the original six year term, but rather is for a new six year term. That is, as soon as a successor is appointed, the original six year term ends [thus staggering judgeship elections]. The only similarity Section 6.14 has with Section 158 is the framers’ continued interest in establishing an outer time limit after which an election must be held.”

From this historic perspective, Appellees contend that McDonnell’s “holding must be extended to the present facts. That is, no appointee can serve beyond the term of his predecessor in office, even if his predecessor also is an appointee.”

We agree that “[pjroper analysis leads inevitably to this conclusion.” Judge Banks’ resignation in October, 1978, left a vacancy for the balance of his term — i. e., from the date of his resignation to January 15, 1979. Had the new appointee, Judge Lutz, not run for election for a six-year term commencing January 16, 1979 (and there had been no other candidates), his appointed term would have ended and the office of this Judgeship would have been vacant as of January 16, 1979.

We hold, therefore, that the trial Court correctly decreed that Judge Hartwell B. Lutz’s present term of office expires in January, 1985, and that the office of Judgeship presently held by Judge Lutz is not subject to the 1980 general election.

AFFIRMED.

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

BLOODWORTH and FAULKNER, JJ., not sitting.

BEATTY, J., recuses himself.

      . For the sake of brevity and ease of recitation, we have taken the liberty of making certain abbreviations and abstractions rather than quoting verbatim from Appellant’s brief.

      . § 6.14, Amendment No. 328, Constitution of Alabama of 1901, in pertinent part, reads:
      “A judge, other than a probate judge, appointed to fill a vacancy, shall serve an initial term lasting until the first Monday after the second Tuesday in January following the next general election held after he has completed one year in office. At such election such judicial office shall be filled for a full term of office beginning at the end of the appointed term.”


author: SENTELL, Clerk.

text:
    OPINION OF the CLERK, Supreme Court of Alabama.
    Opinion No. 27.
    Supreme Court of Alabama.
    July 30, 1980.
   SENTELL, Clerk.

RULE 18, ALABAMA RULES OF JUDICIAL ADMINISTRATION — District and Municipal Court Magistrates and Warrant Clerks

Mr. Allen L. Tapley, Administrative Director of Courts, has submitted to me, pursuant to § 12-2-19(d), Code 1975, the following question:

Are the positions of district and municipal court magistrates and warrant clerks, as provided in Rule 18, Alabama Rules of Judicial Administration, offices of profit under the state, when persons in these positions are appointed by the Administrative Director of Courts without compensation?

In submitting this question, Mr. Tapley states that the only magistrate positions for which compensation is established are Magistrate I, II and III positions which are classified, full-time positions with the merit system; that there are no classified warrant clerk positions; and that no compensation is established or provided for warrant clerks.

Mr. Tapley directs my attention to Rule 18 11(A)(6) which authorizes the Administrative Director of Courts (ADC) to appoint any city clerk of a municipality with a population of 1,000 or more as a warrant issuing magistrate, to be known as a warrant clerk, and that under Rule 18 11(B)(1)(a), all clerks of the municipal courts shall serve as municipal court magistrates by virtue of their office. He states that in many small municipalities city clerks also serve as municipal court clerks.

In my opinion, the answer to Mr. Tapley’s question should be in the negative.

Article XVII, § 280, Alabama Constitution of 1901, and similarly § 36-2-l(b), Code 1975, provide:

No person holding an office of profit under the United States . . . shall, during his continuance in such office, hold any office of profit under this state; nor . . . shall any person hold two offices of profit at one and the same time under this state .

An office under this state derives its authority directly from the state by legislative enactment; its duties and powers are prescribed by law; and its holder is vested with a portion of the powers of government, whether it be legislative, judicial or executive. Montgomery v. State, ex rel. Enslen, 107 Ala. 372, 18 So. 157 (1894); Hard v. State, ex rel. Owen, 228 Ala. 241, 153 So. 725 (1934); State v. Baumhauer, 244 Ala. 1, 12 So.2d 326 (1942); Opinion of the Justices, 244 Ala. 386, 390, 13 So.2d 674, 678 (1943); Alexander v. State, 274 Ala. 441, 150 So.2d 204 (1963).

Section 12-17-251(b), Code 1975, reads as follows:

(b)The supreme court may, by rule, prescribe procedures for the appointment of magistrates by class or position. In addition thereto, the supreme court may provide for the appointment of other magistrates by the administrative director of courts, upon recommendation and nomination by the judge or judges and the clerk of the district court under whom such magistrates are to serve.

The Alabama Rules of Judicial Administration, effective January 16, 1977, were adopted by the Supreme Court of Alabama on October 14,1976, pursuant to the authority granted by § 6.11 of the Judicial Article (Amendment 328 to the Constitution of Alabama). Opinion of the Clerk, No. 1, Ala., 345 So.2d 1329 (1977).

District court magistrates, provided under Rule 18 11(A)(2) and (6), Alabama Rules of Judicial Administration, pursuant to § 12-17-251(b), include the following:

(a) All clerks of state trial courts and any person within the clerk’s office designated by the clerk to serve as a magistrate;
(b) All persons serving as full-time magistrates or warrant clerks on September 1, 1976, including those magistrates or warrant clerks who are and will continue to be merit system employees;
(c) All persons appointed to serve as magistrates by the ADC, upon recommendation and nomination by the judge or judges and the clerk of the district court; and
(d) . .
(6) In addition to magistrates as heretofore provided, warrant issuing magistrates, to be known as warrant clerks, may be appointed by the administrative director of courts (ADC) upon the recommendation and nomination of the district court judge or judges and the clerk serving such court. However, the ADC is authorized to appoint any city clerk of a municipality with a population of 1,000 or more. These warrant clerks shall be empowered to issue warrants pursuant to section 12-17-251(c)(l), Code of Alabama. Warrant clerks shall keep such records and follow such procedures as directed by the ADC.

Section 12-14-51(b), Code 1975, provides for appointment of municipal court magistrates as follows:

(b) The supreme court may, by rule, prescribe procedures for the appointment of magistrates by class or position and, in addition thereto, provide for the appointment of other magistrates by the administrative director of courts, upon recommendation by municipal judges.

Municipal court magistrates, provided under Rule 18 11(B)(1), pursuant to § 12-14-51(b), include the following:

(a) All clerks of municipal courts and any person within the clerk’s office designated by the ADC, upon recommendation of the clerk, to serve as a magistrate; and
(b) All persons appointed to serve as magistrates by the ADC, upon recommendation by municipal judges.

Section 12-17-251(c) lists the powers of a district court magistrate, § 12-14-51(c) enumerates the powers of a municipal court magistrate.

In my opinion, district court and municipal court magistrates are offices under this state.

A warrant clerk is a warrant issuing magistrate. See Rule 18 11(A)(6). In my opinion, the position of warrant clerk, within the meaning of Rule 18 II, is an office under this state.

An office of profit is one to which salary or other compensation is attached. Moser v. Board of County Commissioners of Howard County, et al., 235 Md. 279, 201 A.2d 365 (1964); Commonwealth, ex rel. Adams v. Holleran, 350 Pa. 461, 39 A.2d 612 (1944); Baker v. Board of Commissioners of Crook County, 9 Wyo. 51, 59 P. 797 (1900).

A position is not an office of profit when no compensation is provided for services rendered in and by virtue of the position. Opinion of the Justices, No. 64, 244 Ala. 386, 390, 13 So.2d 674, 678 (1943).

It is my opinion that clerks of state trial courts, as designated in Rule 18 11(A)(2), hold offices of profit under the state within the definitions of “office under this state” and “office of profit.” Thus, the rule permits the clerk of a state trial court to be a magistrate.

It is clear that the position of magistrate can be held under terms and conditions that do not constitute it as an office of profit.

It is my opinion that the positions of district and municipal court magistrates and warrant clerks, as provided in Rule 18, Alabama Rules of Judicial Administration, are not offices of profit under this state, when persons in those positions are appointed by the Administrative Director of Courts without compensation.


text:
    BLOOD BROTHERS, INC., d/b/a Brothers’ Club and Lounge v. ALABAMA ALCOHOLIC BEVERAGE CONTROL BOARD et al.
    Civ. 1701.
    Court of Civil Appeals of Alabama.
    April 4, 1979.
    Rehearing Denied May 2, 1979.
    John D. Cates, Jr., Montgomery, for appellant.
    Joe W. Adams of Steagall & Adams, Ozark, for appellees.
   PER CURIAM.

Blood Brothers, Inc., a night club operator, is a holder of a liquor license issued by the Alabama Alcoholic Beverage Control Board. In February, 1978, the Board revoked the license for violations of ABC Regulation No. 44. The club unsuccessfully petitioned the Circuit Court of Montgomery County for reinstatement of its license. The club now appeals to this court and we reverse.

The dispositive issue is whether ABC Regulation No. 44 is unconstitutionally vague. We find that it is and reverse.

The record pertinently reveals the following: In January of 1977, an ABC inspector observed the performance of a topless dancer in the club. An ABC citation was issued to the club stating topless dancing was vio-lative of Regulation No. 44.

In June of 1977, the Mobile County Sheriff’s Department raided the club and found six dancers performing with their breasts uncovered. The six dancers and one club operator were arrested and found guilty of indecent exposure.

In a hearing before the Board, the Board found the club guilty of violating Regulation 44 on two counts, i. e., in January of allowing topless dancers, and in June for allowing indecent exposure.

As we noted above, the circuit court denied relief and the club appeals.

On appeal, the club contends that the subject matter of Regulation 44 is beyond the scope of the Board’s regulating authority. We disagree.

The regulation is as follows:

No licensee shall permit topless or bottomless dancers or performers or any other lewd or indecent conduct on the premises of such licensee. (Alabama ABC Board Regulation No. 44 (1971)).

In California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), the Supreme Court of the United States stated that such regulations are within the broad scope of the states’ police power under the twenty-first amendment to control intoxicating liquors. See Hasson v. ABC Board, 57 Ala.App. 349, 328 So.2d 603 (1976).

The Board next argues that the club has no “standing” to assert first and fourteenth amendment protection because such protection can only be invoked when state action deprives a person of a vested right. Rice v. Sioux City Memorial Park Cemetery, Inc., 349 U.S. 70, 75 S.Ct. 614, 99 L.Ed. 897 (1955). Since a license to sell liquor is a privilege only and not a vested right, the Board asserts that the club is not entitled to assert this protection.

We disagree.

The United States Supreme Court has held that state action, which infringes upon constitutionally protected interests, may not escape constitutional scrutiny merely on the basis that the state action deals principally with the regulation of a privilege. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958).

The Board next contends that if the constitutionality of Regulation 44 is to be considered, it must be considered only as to its application to this defendant’s actions in this case and not as it might apply to hypothetical defendants in other situations. In essence, the Board contends that this defendant cannot raise the unconstitutionality of the regulation as it applies to others.

We agree that Regulation 44 is not unconstitutionally vague as applied to the club. The regulation clearly prohibits topless dancing and the record demonstrates that the club’s dancers were totally naked from the waist up. However, in cases of this nature, we find the club has standing to raise the vagueness issue because a party may assert the constitutionality of a regulation if that regulation is vague as it applies to others. See Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976).

In this court’s opinion, the phrase of the regulation, “any other lewd or indecent conduct,” is of doubtful constitutional validity. This is so because the language is so vague that the conduct it purports to regulate is essentially unlimited. See Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Jordan v. De George, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886 (1951). If the language of a regulation is so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, then it will not muster constitutional validity. Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); Connally v. General Const. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926); Opinion of the Justices, 249 Ala. 88, 30 So.2d 14 (1947). We find Regulation 44 clearly does not meet this test.

Furthermore, to this court, it is not clear to whom the phrase, “lewd or indecent conduct,” is intended to apply. Specifically, it is questionable whether the phrase applies to only employees or whether it applies to licensees and/or invitees, etc. We therefore hold that the regulation’s lack of clarity renders it constitutionally invalid for this reason.

In view of the above, we find the regulation impermissibly vague and the case is due to be reversed for entry of a judgment not inconsistent with this opinion.

REVERSED AND REMANDED FOR ENTRY OF JUDGMENT NOT INCONSISTENT WITH THIS OPINION.

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

BRADLEY, J., concurs in the result.


author: PER CURIAM. FAULKNER, Justice

text:
    Ex parte ALABAMA ALCOHOLIC BEVERAGE CONTROL BOARD. In re BLOOD BROTHERS, INC., d/b/a Brothers’ Club and Lounge v. ALABAMA ALCOHOLIC BEVERAGE CONTROL BOARD et al.
    78-544.
    Supreme Court of Alabama.
    May 9, 1980.
    Rehearing Denied June 6, 1980. Certiorari to Court of Civil Appeals.
    Joe W. Adams of Steagall & Adams, Ozark, for petitioner.
    John D. Cates, Jr., Montgomery, for respondents.
   PER CURIAM.

We granted certiorari in this case to review the Court of Civil Appeals’ ruling that Regulation No. 44 of the Alabama Alcoholic Beverage Control Board Rules and Regulations is unconstitutionally vague. For the reasons discussed herein, we reverse.

The facts of the case are sufficiently outlined in the opinion of the Court of Civil Appeals and the dissenting opinion of Justice Faulkner. In essence, the Court rejected Blood Brothers’ contention that the ABC Board could not lawfully regulate the type of conduct proscribed by Regulation No. 44 because it is protected by the First Amendment to the United States Constitution. However, it agreed with Blood Brothers that that portion of the regulation which prohibits “any other lewd or indecent conduct” is void for vagueness. In order to so hold, the Court accepted Blood Brothers’ contention that it had standing to raise the issue of the regulation’s constitutionality even though it was not unconstitutional as applied to Blood Brothers. We disagree.

The opinion relies on federal cases which establish the principle that a party may attack the constitutionality of a regulation if that regulation is vague as applied to others. See, for example, Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). This rule, however, is an exception to general standing principles and is applied, as in the cases relied upon by the Court of Civil Appeals, where the challenged regulation is aimed at or infringes upon First Amendment rights. The exception is permitted because application of an unconstitutionally vague statute, even to permissibly prohibited conduct, may have a chilling effect upon the legitimate exercise of First Amendment rights.

As the United States Supreme Court stated in Young:

This exception from traditional rules of standing to raise constitutional issues has reflected the Court’s judgment that the very existence of some statutes may cause persons not before the Court to refrain from engaging in constitutionally protected speech or expression. [427 U.S. at 60, 96 S.Ct. at 2447]

To apply this rule in the current context is inconsistent with that part of the opinion below which holds that the ABC Board can pass regulations prohibiting lewd or indecent conduct on the premises of a holder of a liquor license. Although such a regulation might otherwise be suspect as a possible infringement on rights protected by the First Amendment, the Supreme Court of the United States has held, as the Court of Civil Appeals points out, that regulations of this sort are within the broad scope of the states’ police power under the Twenty-First Amendment to control intoxicating liquors. California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972). See also Hasson v. ABC Board, 57 Ala.App. 349, 328 So.2d 603 (1976). Thus, the Court of Civil Appeals’ reliance on cases discussing standing in the First Amendment context are inapposite; the First Amendment is not called into play in this situation. Because Regulation No. 44 is not unconstitutionally vague as applied to respondent, we hold that Blood Brothers does not have standing to challenge its constitutionality as applied to other, hypothetical parties.

The decision of the Court of Civil Appeals is reversed, and the case is remanded.

REVERSED AND REMANDED.

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

FAULKNER and BEATTY, JJ., dissent.

BLOODWORTH, J., not sitting.

FAULKNER, Justice

(dissenting):

The petition for a writ of certiorari seeking a review of the Court of Civil Appeals’ reversal of a judgment of the Montgomery County Circuit Court refusing reinstatement of Blood Brothers’ liquor license is reversed by the majority. I would affirm.

On February 22, 1978, the Alcoholic Beverage Control Board revoked Blood Brothers’ liquor license for violation of ABC Regulation No. 44, which reads “No licensee ■shall permit topless or bottonless [sic] dancers or performers or any other lewd or indecent conduct on the premise of such licensee.” The revocation was based on two incidents, one in January, 1977, when an ABC inspector observed a topless dancer performing in the club and a citation was issued to the club which stated topless dancing violated Regulation No. 44. Later, in June, 1977, officers of the Mobile County Sheriff’s Department raided the club and found six dancers performing with their breasts uncovered. These dancers and one club operator were arrested and found guilty of indecent exposure. Blood Brothers petitioned the Montgomery County Circuit Court for reinstatement of its license and was unsuccessful. Its appeal to the Court of Civil Appeals resulted in a reversal of the trial court.

The ABC Board contends that Blood Brothers had no standing to challenge the vagueness of ABC Regulation No. 44 when it is not unconstitutionally vague as applied to them, and that the regulation is not so vague that it is constitutionally invalid.

Regulation No. 44 is not unconstitutionally vague as applied to Blood Brothers, which admitted that its dancers were performing topless and pleaded guilty to indecent exposure charges. Blood Brothers thus has no standing to challenge the regulation under the traditional test of standing. It does, however, have standing under the exception to the traditional test that was stated as follows in Young v. American Mini Theatres, Inc., 427 U.S. 50, 59-60, 96 S.Ct. 2440, 2447, 49 L.Ed.2d 310 (1976):

This exception from traditional rules of standing to raise constitutional issues has reflected the Court’s judgment that the very existence of some statutes may cause persons not before the Court to refrain from engaging in constitutionally protected speech or expression. See Broadrick v. Oklahoma, 413 U.S. 601, 611-614 [, 93 S.Ct. 2908, 2915-2917, 37 L.Ed.2d 830,] . . . Nevertheless, if the statute’s deterrent effect on legitimate expression is not ‘both real and substantial,’ and if the statute is ‘readily subject to a narrowing construction by the state courts,’ see Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 2276, 45 L.Ed.2d 125, the litigant is not permitted to assert the rights of third parties.

The very existence of this regulation may cause certain persons not involved in this case to refrain from constitutionally protected expression, dancing, for fear of engaging in what could be found to be “other lewd and indecent conduct.” Dancing before an audience for entertainment is a medium of expression enjoying prima facie protection under the First Amendment. Such dancing, even topless dancing, loses that privileged status only because it is obscene. In Re Giannini, 69 Cal.2d 563, 446 P.2d 535, 72 Cal.Rptr. 655 (1968), cert. denied 395 U.S. 910, 89 S.Ct. 1743, 23 L.Ed.2d 223 (1969). In Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648 (1974), the United States Supreme Court stated:

Although the customary “barroom” type of nude dancing may involve only the barest minimum of protected expression, we recognized in California v. La-Rue, 409 U.S. 109, 118, 93 S.Ct. 390, 397, 34 L.Ed.2d 342 (1972), that this form of entertainment might be entitled to First and Fourteenth Amendment protection under some circumstances.

The regulation has a real and substantial effect on expression that is prima facie protected. ABC Regulation No. 44 is not readily subject to a narrowing construction, as has been evidenced by the Board’s rewriting the regulation in an attempt to make it more explicit.

The ABC Board argues that this First Amendment interest in nude dancing is outweighed by the state’s broad powers to regulate liquor under the Twenty-First Amendment, California v. LaRue, 409 U.S. 109, 118, 93 S.Ct. 390, 397, 34 L.Ed.2d 342 (1972), and thus Blood Brothers has no standing to sue. While the Court did approve of California’s regulation, prohibiting certain nude entertainment in establishments holding a liquor license, and stated that the Twenty-First Amendment gave the states broad latitude to ban such dancing as a part of their liquor licensing program, the California regulation was considerably more specific in stating the prohibited conduct than is ABC Regulation No. 44.

The ABC Board may enact regulations under the Twenty-First Amendment and the police power but such regulations still must be measured by the standards of the Constitution of Alabama. Although California v. LaRue gives alcoholic beverage control boards broader latitude under the Twenty-First Amendment to regulate expression in establishments licensed to sell liquor by the drink, it does not deny a party standing to challenge those regulations under the Young v. American Mini Theatres, Inc. exception when they are asserted to have constitutional faults such as vagueness or overbreadth.

ABC Regulation No. 44 is so vague as to be constitutionally invalid. What is “lewd and indecent conduct” is subject to numerous interpretations and definitions. The ABC inspector who investigated the violations, and an ABC administrator who testified at the hearing, could not furnish a uniform interpretation of the regulation. It is not clear if the Board intended the proscribed “lewd and indecent conduct” to be judged by obscenity standards, the indecent exposure statute in Code 1975, § 13-1-111, or some other standard. If the standard was obscenity, no determination was required to be made that the conduct was offensive to contemporary community standards and appeal to a prurient interest.

Furthermore, the regulation does not restrict topless dancing but topless dancers. It is not clear that the regulation would not bar a fully clothed topless dancer from the licensed premises. It is not certain from the language of the regulation whether all performers or just topless ones are prohibited.

The test to determine whether a statute, or in this instance a regulation, is void for vagueness is whether it is so vague that men of common intelligence must guess at its meaning and differ as to its application. Devine v. Wood, 286 F.Supp. 102 (M.D.Ala.1968). ABC Regulation No. 44 would leave men of ordinary intelligence puzzled as to its exact meaning and correct application. The Court of Civil Appeals was correct in holding the regulation unconstitutionally vague.

I would affirm.

BEATTY, J., concurs.

      . California ABC Rule 143.3(1) provides in relevant part:
      “No licensee shall permit any person to perform acts of or acts which simulate:
      “(a) Sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law.
      “(b) The touching, caressing or fondling of the breasts, buttocks, anus or genitals.
      “(c) The displaying of the pubic hair, anus, vulva or genitals.”


author: PER CURIAM:

text:
    BLOOD BROTHERS, INC. d/b/a Brothers’ Club and Lounge v. ALABAMA ALCOHOLIC BEVERAGE CONTROL BOARD et al.
    Civ. 1701.
    Court of Civil Appeals of Alabama.
    July 9, 1980.
   PER CURIAM:

The prior opinion of this court, 386 So.2d 218, has been reversed and remanded by the supreme court, 386 So.2d 220. On remand to this court, and in compliance with the supreme court’s opinion of May 9, 1980, this cause is now affirmed.

AFFIRMED.

All judges concur.