author: ROBERTSON, Presiding Justice,

text:
    Howard D. CLARK, M.D., Gilbert R. Mason, M.D. and William A. Middleton, M.D. v. STATE of Mississippi ex rel. MISSISSIPPI STATE MEDICAL ASSOCIATION et al.
    No. 51602.
    Supreme Court of Mississippi.
    March 26, 1980.

      Binder & Moore, Alvin M. Binder, Herman C. Glazier, Jr., Jackson, for appellants.
    A. P. Summer, Atty. Gen., by Larry J. Stroud, Special Asst. Atty. Gen., Wise, Carter, Child, Steen & Caraway, James K. Child, Jr., J. Leray McNamara, Jackson, for appellees.
    Before ROBERTSON, P. J., and WALKER and BROOM, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

On April 15,1977, the State of Mississippi on relation of the Mississippi State Medical Association; S. Lamar Bailey, M.D., et al., filed an Information in the Nature of a Quo Warranto in the Circuit Court of the First Judicial District of Hinds County, Mississippi, challenging the authority of Doctors Howard D. Clark, Gilbert R. Mason and William A. Middleton to serve as members of the Mississippi State Board of Health.

In its Information, the State and the Relators alleged, among other things, that no one of the defendants was nominated by the Mississippi State Medical Association for appointment, as required by Mississippi Code Annotated section 41-3-1 (1972), and further that no one of them was confirmed by the Mississippi State Senate as specifically required by section 41-3-1.

This cause was stayed, pending a decision of the United States District Court for the Southern District of Mississippi, on complaint filed in that court on March 14, 1977, by Doctors Clark, Mason and Middleton, and others, against the Mississippi State Medical Association. In Máy, 1978, an order was entered in that Court dismissing the suit.filed by Doctor Clark, et al. The United States Court of Appeals for the Fifth Circuit on December 7,1978, affirmed in part and reversed in part the decision of the District Court but retained jurisdiction, pending a decision by the Circuit Court of the First Judicial District of Hinds County of the. constitutionality, under state law, of section 41-3-1.

Honorable Rufus Creekmore of the Jackson, Mississippi bar was appointed as special judge to hear and decide this quo warranto proceeding.

Judge Creekmore heard and considered this cause on the Amended Information in the Nature of Quo Warranto, the Amended Answer and Defenses of the Defendants, Relators’ Response to Affirmative Matters, and the Joint Stipulation filed by the parties in this cause, and rendered his decision on February 21, 1979, finding: that Section 41-3-1 was constitutional; that Doctors Howard D. Clark, William A. Middleton, and Gilbert R. Mason were not nominated by the Mississippi State Medical Association nor were their appointments by the Governor “confirmed by the Senate”, as required by statute; that, therefore, they should be removed from office, and that Doctors S. Lamar Bailey and G: Lamar Arrington continue to hold and exercise the functions of the public office of members of the Mississippi State Board of Health from the fourth' and fifth public health districts of Mississippi, respectively, until there are valid and legal successors appointed to these offices. The public office of a member of the Mississippi State Board of Health from the sixth public health district of Mississippi was declared vacant because of the death of Dr. Joseph B. McKinnon.

Defendants appeal from the judgment of the Circuit Court.

Judge Creekmore rendered the following excellent opinion, which is adopted as the opinion of this Court:

On the morning of January 16, 1979, the motion of defendants to dismiss came on to be heard before this court. All parties were in agreement that, on this hearing, the only . issues to be considered were whether the challenged statute, on its face, is unconstitutional under state law, because:

(a) It is unconstitutionally vague and indefinite.

(b) It is an unconstitutional infringement upon the Governor’s exclusive constitutional right of appointment (this ground was not alleged in the motion, but was briefed and argued).

(c) It constitutes an unlawful delegation of legislative power to a private non-profit corporation.

In approaching a consideration of these important questions, it may be well to mention certain fundamental principles, well settled by numerous decisions of our Supreme Court, which should guide the judiciary in construing and interpreting statutes, especially when their constitutionality is questioned. The primary rule of construction is to ascertain the intent of the legislature from the statute as a whole and from the language used therein. Where the statute is plain and unambiguous there is no room for construction, but where it is ambiguous the court, in determining the legislative intent, may look not only to the language used but also to its historical background, its subject matter, and the purposes and objects to be accomplished. Finally all presumptions and intendments must be indulged in favor of the validity of a statute, and its unconstitutionality must appear beyond a reasonable doubt before it will be declared invalid.

The statute under attack is Section 41-3-1 of the Mississippi Code of 1972. That part which is here involved reads as follows:

“The state board of health shall consist of twelve [12] members. Eleven [11] of said members are to be appointed as herein provided; the twelfth member, to be known as the executive officer, is to be elected by the eleven [11] appointive members as provided in section 41-3-5. Eight [8] of the appointive members shall be regular qualified physicians of the state and members of the state medical association. They shall be nominated to the governor by the state medical association, three [3] from each congressional district in the state, from which number the governor shall appoint one [1] from each congressional district. Said appointments are to be confirmed by the senate.”

This section of the Code is a part of Chapter 3, Title 41, which is a comprehensive statute creating the State Board of Health, local health boards and offices, and setting forth their powers and duties. Except for minor changes, it has been an integral part of the Code since 1892. In 1914, our Supreme Court held that the statute creating these administrative agencies and endowing them with power to adopt ordinances, rules and regulations necessary to attain its objects and purposes was not a delegation of legislative power in violation of Section ¿3 of the State Constitution. Hawkins v. Hoye, 108 Miss. 282, 66 So. 741 (1914).

(a)

Section 41-1-1 of Mississippi Code of 1972 reads as follows:

“The Mississippi State Medical Association, and all other state, district, and county medical societies and . associations of the state in affiliation with the purposes of its organization, are hereby constituted the ‘Mississippi Department of Public Health.’ Any licensed practitioner of medicine in the State of Mississippi may, on application, have his name enrolled as a member of said department.”

Defendants say that this statute has the effect of causing the words “state medical association” as used in Section 41-3-1 to be so vague, uncertain and indefinite as to deny to them due process of law as guaranteed by Section 14 of our Constitution, because when these statutes are read together it is left uncertain as to-whether they might possibly be considered members of the “state medical association” and so entitled to be nominated by that body and appointed by the governor. It is my opinion that these words of the statute, on their face, are not ambiguous, and need no construction; therefore that this ground of objection is not well taken and should be overruled.

(b)

To support their claim that the statute unconstitutionally infringes upon the executive powers of the governor, the defendants refer to certain provisions of the Mississippi Constitution and certain statutes dealing with the powers of the Governor; and they cite three cases from other jurisdictions: McCarley v. Orr, 247 Ark. 109, 445 S.W.2d 65 (1969); Hetherington v. McHale, 458 Pa. 479, 329 A.2d 250 (1974); and Westlake v. Merritt, 85 Fla. 28, 95 So. 662 (1923).

None of these cases are in point: McCar-ley turned upon a construction of the statute involved; the quotation from Hether-ington is dictum taken from the opinion of a concurring judge; and in Westlake, the Florida Constitution expressly conferred upon the Governor the general power of appointing all non-elective officers.

38 Am.Jur.2d, Governor, § 5, says:

“The power to make appointments to public office does not necessarily and inherently belong to the governor. It must be derived from the constitution or statutes; otherwise, he may not possess it. More specifically, appointing power exists only in so far as it has been expressly, conferred by the constitution and laws of the state. . . .”38 Am.Jur.2d at 935.

Section 116 of our Constitution provides that “The chief executive power of this state shall be vested in a governor . .”, and Section 123 provides that: “The governor shall see that the laws are faithfully executed.” Neither of these sections expressly confers on the governor the broad appointive powers which are now claimed for him. Nor can a grant of such powers be implied therefrom. Colbert v. State, 86 Miss. 769, 39 So. 65 (1905); Henry v. State, 87 Miss. 1, 39 So. 856 (1905).

Section 103 of our Constitution provides that:

“In all cases, not otherwise provided for in this constitution, the legislature may determine the mode of filling all vacancies, in all offices, and in cases of emergency provisional appointments may be made by the governor, to continue until the vacancy is regularly filled; and the legislature shall provide suitable compensation for all officers, and shall define their respective powers.”

The only general power of appointment vested in' the governor is that conferred upon him by legislative enactment, pursuant to the above quoted Section 103 of the Constitution. Thus Code Section 7-l-5(f) gives the governor the power to “make appointments and fill vacancies as prescribed by law”, and Section 7-1-35 prescribes the details of making such appointments, all of which shall be “with the advice and consent of the senate.”

It is my opinion that the power here questioned is, by our Constitution, vested in the legislative department of government, and so the questioned statute does not en-. croach upon the governor’s constitutional powers.

(c)

Does the questioned statute constitute an unlawful delegation of power to a private, non-profit corporation? There appear to be no Mississippi cases on this precise point, although we do have many cases construing statutes whereby administrative agencies are created and broad powers conferred upon them, all designed to promote their efficient and effective operation.

The broad general rule governing the validity, vel non, of such statutes is whether they prescribe reasonably adequate- standards for the agency’s guidance. Thus in State ex rel. Attorney General v. Land, 231 Miss. 529, 95 So.2d 764, 96 So.2d 828 (1957), Justice Ethridge said:

“It has been said, ‘This Court is committed to a liberal rule governing the delegation of legislative functions.’ Abbott v. State, 106 Miss. 340, 63 So. 667, 669 (1913). Although the Legislature cannot delegate its power to make a law, it can delegate to an administrative agency the power to determine some fact or state of things upon which the law makes or intends to make its application depend. The essential is that the statute delegating the power must reasonably define the area in which the administrative agency operates and the limitations upon its powers.” 231 Miss. at 561-62, 95 So.2d at 777.

Whether this same rule of a “reasonably adequate standard” should govern in the instant case is persuasive, but not necessarily controlling.

On the precise issue before the Court, counsel for both sides have, with diligence and ability, presented and argued cases from other jurisdictions. They are in hopeless conflict. Apparently the majority, in number, adopt the view that such statutes are not invalid as unlawful delegations of legislative power, nor violative of other Constitutional restrictions. Thus, in 67 C.J.S. Officers■ § 36, it is said:.

“Subject to constitutional limitations, the legislature may determine who shall exercise the power of appointment as to particular offices. So, it has been held that the legislature may confer a power of nomination and appointment on nongovernmental persons and bodies, such as private corporations chartered by authority of the state government, voluntary associations of individuals, or an individual not a public officer, if there is a substantial and rational relation between the nongovernmental person, body, or organization intrusted with the power of appointment, nomination, or election, and the function of government which the persons appointed or elected are to perform. . . .”67 C.J.S. at 300-301.
(Emphasis added).

In 63 Am.Jur.2d, Public Officers and Employees, § 93, it is said:

“Under a constitutional provision to the effect that all officers whose appoint- ' ment is not otherwise provided for therein shall be chosen in such manner as is prescribed by law, the legislature may itself make appointments, or may designate another person, body, or functionary to make such appointments. Thus it may confer the power to make appointments or particular appointments upon the governor or other officers. .
“Where the legislature creates an office, it may, when not restricted by the constitution, confer the power of appointment thereto upon public officers or boards, as, for example, upon a judicial officer or upon associations, corporations, or persons. This does not constitute an illegal delegation of legislative powers, . . . ” 63 Am.Jur.2d at 687-88.

And in 63 Am.Jur.2d, Public Officers and Employees, § 94, it is said:

“Several, but not all, courts hold that statutes giving the power to appoint or to nominate public officers to private persons or organizations does not violate the constitutional division of the powers of government. It has also been held that such a statute does not unconstitutionally confer a special privilege upon such persons or organizations, violate the equal protection clause, or offend a constitutional provision prohibiting the creation of private corporations by special act. Other courts determine the validity of legislation granting to private organizations the power to appoint to public office on the basis of whether or not there is a rational and substantial relationship between the organizations and the laws to be administered. . 63 Am. Jur.2d at 688-89. (Emphasis added).

An elaborate annotation on the subject, wherein the cases both pro and con are analyzed and discussed will be found in 97 A.L.R.2d, page 361.

It is my opinion that the statutory requirement for appointing members to be “regular qualified physicians of the state and members of the state medical association” is a reasonably adequate standard; also that there is a rational and substantial relationship between the state medical association and the State Board of Health; therefore, the statute does not unlawfully delegate legislative power; and so this ground of objection is not well taken and should be overruled.

And finally it should be noted: The legislature, by this statute (§ 41-3-1), delegates to the state medical association the power of nomination; it delegates to the governor the power of appointment; but it reserves unto itself the power of confirmation, without which an appointee cannot legally hold the office. Mississippi Marine Conservation Commission et al. v. Misko, 347 So.2d 355 (Miss.1977).

After Judge Creekmore’s opinion and Final Judgment of February 21, 1979, was considered by the United States Court of Appeals for the Fifth Circuit, that Court rendered its opinion specifically upholding the constitutionality of Section 41-3-1. Finch v. Mississippi State Medical Ass’n, Inc., 594 F.2d 163 (5th Cir. 1979). That Court said:

“A recent Supreme Court opinion, Friedman v. Rogers, 1979, 440 U.S. 1, 99 S.Ct. 887, 59 L.Ed.2d 100, provides important guidance for our examination of the statute [§ 41-3-1]. In Friedman, the Court examined the Texas Optometry Act. The law, inter alia, prescribed the qualifications for membership on the Texas Optometry Board, and required that at least two-thirds of the board be members of a recognized state optometric association. Texas Rev.Civ.Stat.Ann. art. 4552-2.02. The Court unanimously held that this section of the act was constitutional because it was ‘reasonably related to the State’s legitimate purpose of securing a Board that will administer the Act faithfully’. 440 U.S. at 17, 99 S.Ct. at 898, 59 L.Ed.2d at 114.” 594 F.2d at 165.

The Fifth Circuit then quoted from Friedman :

“Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest.” 594 F.2d at 165-66.

The Fifth Circuit then concluded:

“Subjected to the same test, the Mississippi statute is constitutional on its face. The statute is not drawn upon inherently suspect distinctions and does not trammel fundamental rights. It is rationally related to at least one legitimate purpose, ensuring that the most expert and professionally qualified people will perform the myriad duties required of the Board of Health. We are not permitted to inquire further into the wisdom or desirability of the statutory scheme. See City of New Orleans, supra [City of New Orleans v. Dukes], 427 U.S. [297] at 303, 96 S.Ct. [2513] at 2517, 49 L.Ed.2d [511] at 517.” 594 F.2d at 166. (Emphasis added).

For these reasons, the judgment of the trial court is affirmed.

AFFIRMED.

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

LEE and COFER, JJ.-, take no part.


source: Caselaw Access Project

author: COFER, Justice,

license: Public Domain

text:
    Laura S. McRAE v. John M. McRAE, Jr.
    No. 51731.
    Supreme Court of Mississippi.
    April 2, 1980.

      Gray, Montague & Pittman, Frank D. Montague, Jr., Hattiesburg, for appellant.
    Pack, Ratcliff & Ratcliff, Kalford C. Rat-cliff, Laurel, for appellee.
    Before PATTERSON, C. J., and BROOM and COFER, JJ.
   COFER, Justice,

for the Court:

The cause has been brought here from the Chancery Court of the Second District of Jones County. Appellant is Mrs. Laura S. McRae, and appellee is John M. McRae, Jr. The main issue here is the effect, if any, adultery of the former wife after divorce, has upon her right to continued alimony from her former husband.

The parties were married in 1956. Three children, a son and two daughters, were born to them in 1957, 1960, and 1964. The children were respectively 21, 17 and 14 years of age at the modification hearing, from which this appeal is taken. She was awarded divorce on the 13th day of June 1975.

Alimony, child support and other property matters were resolved by agreement of the parties and were by the court found to be reasonable, and were incorporated in the divorce decree. Among other things, agreed upon by the parties and incorporated in the decree were (1) a lump sum of $11,500 which appellee was to pay to appellant “out of which [appellant] shall pay past due bills incurred by her in the approximate sum of $3,000; the expenses of moving herself, the children of the parties and her household belongings to Massachusetts, and her solicitor’s fees,” and (2) appellee was to pay $1,525 per month as alimony, and (3) $250 per month for each of the three children, custody of all whom was awarded to appellant.

As was anticipated in the decree, appellant took herself and the two daughters to Massachusetts. There, appellant experienced difficulty in finding a place to live, and, in three years had undertaken a living in more than a half-dozen abodes. She was acquainted with a man from childhood, who had become a resident of New Jersey, with whom she came in contact through his living in the summers next door to where she was sojourning in Massachusetts. This acquaintance was separated from his wife, but their divorce suit then pending was experiencing some delay before trial. He was a partner in some real estate in New Jersey, a residence of sorts which would be available but which required repairs to make it suitable for living purposes for her and the children. Appellant moved herself and the children into this living arrangement and the childhood friend did likewise, and the four of them set about doing the things to the residence which made it to their liking.

There appellant lived and cohabited with the man from September 6, 1977, to October 1, 1978, and her two daughters lived in the place of residence with them. She admitted that she had sexual relations, not habitual, with the man during their cohabitation, and said there had been none since the cohabitation ended. He paid the rent a part’ of the time and she paid all of the other expenses of living. The situation of their cohabitation became socially and emotionally difficult for her and they discussed his moving out on many occasions, but he did not move until appellee filed a petition for modification.

Appellee filed petition to modify thé earlier decree about October 1, 1978, alleging that he had kept his alimony payments current, and prayed termination of the requirement alleging as a basis therefor that on information and belief appellant had entered in a meretricious relationship, and, for many months, had been cohabiting with another man, in adultery amounting to a fraud on him. He claimed it amounted to a change of circumstances warranting relief from- payment of alimony. Appellant admitted that she formerly cohabited with the man, but denied that it was meretricious. She alleged instead, that it was made necessary by appellee’s refusal to perform his support obligations to her and the children of the parties. In a cross petition she sought increase in support and for the “immediate listing and sale of the Gulf Shores, Alabama, property of the parties and the equal division of the equity resulting therefrom.” (To receive treatment hereinafter). She alleged numerous failures of appellee to meet the requirements of the original decree, including defaults in the alimony payments. He amended his original petition for modification to allege as a change in the circumstances, that his financial condition had become worse so that compliance therewith had become oppressive and unmanageable and would result in his insolvency.

Appellee testified that he ceased alimony payments when appellant moved to New Jersey because he supposed she was remarried, and it took her six months to let him know that such was not the case. During her living in the home with the man, appel-lee had seen the man when appellee had visited in New Jersey, and he had also talked with him by telephone and found it easier to transact business with him than with appellant.

The record reflects delays on appellee’s part in paying alimony, even before appellant’s relations with a man. In fact, it may correctly be said that appellee met the de-' mands of the support decree in a very casual manner. Several solicitors were retained at various times in efforts to bring his payments to a current basis. Appellant blames his lack of attention to his court-ordered support on her assuming the unconventional relationship with the man. He was in fact in default during the hearing on the modification petition, but, on the eve of the decision, he brought himself to a current basis.

The court found that, through her own confessed cohabitation with the man for the period established, appellant forfeited her right to future alimony as would have happened had she been married to the man, and that there had been a material change in the circumstances upon which it discontinued all future alimony.

Appellant here assigns errors as follows:

I. Certain findings of fact of the lower court are clearly erroneous and against the great preponderance of the evidence.

II. The conclusion of law that the appellant forfeited her right to future alimony is erroneous.

III. The direction to dispose of certain property in accordance with former decree is erroneous.

We fail to find merit in the first assignment of error.

Noticing the second assignment, that the court erred in the conclusion that appellant had forfeited her right to future alimony, we preface our remarks and decision by observing that appellee has not shown an inability to provide alimony for appellant the record supporting the belief that he was more able at this.hearing than he was at the entry of the original decree; appellee knew of the relationship for months before he took court action, during which time the relationship continued; before his petition to modify, appellee visited and had face-to-face contact with the man, and found he could conduct business with him more easily than directly with appellant, and his petition to modify does not include a prayer for some action removing his children from the environment nor any reference to the poor quality of the example their mother was setting for them. (We are mindful of their ages.)

The only case we have in the jurisprudence of this state bearing directly upon the issue now being considered is Rubisoff v. Rubisoff, 242 Miss. 225, 232, 133 So.2d 534, 536 (1961). In that case there was'a divorce to the husband, the appellee, and an adopted child’s custody was awarded to appellant, and $250 was fixed for the alimony of the appellant and support for the child. Appel-lee, by deceit according to the appellant, obtained the child from a nursery in New Orleans where appellant and the child lived and brought him to Shelby, Mississippi. Leading up to' a consideration of the issues, the opinion says of the appellant, “after the divorce, Mrs. Rubisoff went to New Orleans, Louisiana, to live and to work as a nurse, but she fell upon ‘evil days’ and was arrested for giving a'bad check . . The opinion does not directly reflect the exact meaning of “evil days”, but does deal with her “misconduct,” and the decision is based thereon. In it the chancery court’s discontinuance of future alimony was affirmed.

Of several issues involved in that decision only one needs treatment here—“can the chancery court divest a wife of future alimony payments on the ground of misconduct of the wife after the divorce? Bunk-ley and Morse, Amis on Divorce and Separation in Mississippi, § 6.12 (1957), is quoted. That authority deals with the contrary views and (1) neither divorced person may complain of the other divorced person’s conduct, that the divorced person has a duty to society, but not to his or her divorced spouse, and (2)' “the court has a continuing jurisdiction over the matter of the subsequent support of the wife by the husband and it would be shocking to the conscience to compel the husband to continue to support the wife by payment of alimony while she is living in adultery with another man.” (242 Miss. at 236, 237, 133 So.2d at 538).

The Rubisoff opinion then continues:

On the other hand, where the wife’s misconduct after the divorce may have been the result of want and penury brought about by refusal of the husband to pay alimony, the court will not relieve the husband from payment of alimony. (242 Miss. at 237, 133 So.2d at 538).

The trier of fact, by the opinion, has the duty to find whether or not the alleged misconduct of the former wife is of such nature as to forfeit her right to future alimony. Where, as here, the misconduct has terminated before trial, the trier of fact has the further responsibility to decide whether the termination is in good faith and with intention not to revert to the error.

No hard and fast rule or mold may be laid down to fit at once all of the spectrum of misconduct. The question must be faced and determined on a case-by-case basis.

Considering the present state of facts alone, while appellant was apparently accustomed to comfortable living conveniences, it is true, too, that she had resolved to return or to go to Massachusetts to live even as deliberations were progressing leading to settlement of their financial and property matters. She did not make sure that she would have living quarters, or that they were reasonable, in that state. In the divorce decree there was provision that ap-pellee would buy appellant’s equity in their home in Laurel, which he did. The record is silent as to whether there was a residential housing shortage in Laurel.

We are of the view that the cohabitation out of marriage, of appellant was not the result of or forced by want or penury on her part, and that she was not brought by want or penury to the place where she was, or felt that she was, compelled to sacrifice her body for the relief of her necessities. In addition thereto, while she strongly protests against the likelihood that there will be reversion on her part to the adulterous living, she testified that she could see no alternative to living in her abode in New Jersey, because she had high school children.. “It is the best I can do in New Jersey. I am protected in that house with a lease and I feel as if I need to stay there.”

We are of the further view that her abode with the man for more than a year, openly living in adultery, enduring the embarrassment of it, and, in addition by silence, setting that kind of example before her daughters constituted a material change in the circumstances of the parties and that, by her unconscionable conduct, she forfeited her right to future alimony by her repudiation of the right thereto.

The court said, in part, in its opinion:

It is the Court’s opinion that by the admitted cohabitation over this period of time with a person to whom she was not married that the respondent forfeited her right to future alimony the same as if she had been married to him. To hold otherwise would be to condone the living and cohabiting with a person rather than marrying and, in effect would penalize a person for marrying but reward them for cohabitation without benefit of marriage.

We think that, on the present record, the court was manifestly right in its decision.

The final assignment of error directs itself to the Court’s action in directing sale of Gulf Shores, Alabama, property in accordance with the decree of divorce.

By the parties’ agreement, the decree entered June 13, 1975, recorded appellee’s agreement to buy from appellant her share in the Laurel home of the parties on an agreed formula and the Gulf Shores property, beach lot, on a valuation of $25,000, or he might buy either of the properties, and the other of them should be “placed on the market for sale,” the beach lot on the $25,-000 basis. Appellee was given the right, within thirty days, not to buy either of the properties. (He did buy the Laurel property, as earlier herein noticed.) The decree further provided that appellee would pay the installments, taxes, and other amounts accruing on the property, but that amounts he might pay in reduction of the principal amount owed on the particular property were to be credited to appellee’s share in-the equity of the parties therein. The decree also provided that the parties might, by mutual consent, make other disposition of the property.

In appellant’s cross petition to the petition to modify the divorce decree, she complained of the dilatory inaction of ap-pellee in buying or listing the beach property for sale, and said, “It is in the best interest of the parties that said decree be modified to require the immediate listing and sale of said property for not less than $35,000 and the equal division of the equity resulting from such sale.” She prayed as a part of her relief, “The immediate listing and sale of [the beach property] of the parties and the equal division of the equity resulting therefrom.”

The Court’s decree on the modification issues ordered as to the beach property, “. . . and the provisions of the said decree of June 13, 1975, relating to the sale of the real estate located at Gulf Shores, Alabama, and the division of the proceeds resulting therefrom all as provided in said decree, are hereby ordered to be carried out.”

Appellant has contended that a minimum sale value of $35,000 be placed on the land, and that there be an equal division of the proceeds. It is a part of her complaint that appellee has built up his equity in the beach property by paying recurring installments on the purchase price. This, however, has been done with his own funds and does not operate a reduction in the value of her equity therein. The 1975 decree did not lodge in either of the parties the paramount duty to place the property on the market, and the conclusion might be drawn that neither of them has at all times used diligence in disposing thereof. The further conclusion may be drawn that because of the estranged relations they have placed themselves in a position of less than full cooperation with each other.

We fail to see error in the adjudication of the beach property issue.

It follows that the decree of the chancery court is affirmed as to all asserted errors.

AFFIRMED.

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


author: BOWEN, Judge.

text:
    Sidney Michael WADE v. STATE.
    1 Div. 85.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1980.
    Rehearing Denied Feb. 26, 1980.

      Donald E. Brutkiewicz, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., J. Thomas Leverette, Asst.1 Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted for assault with intent to ravish. He was convicted of assault and battery and fined five hundred .dollars. After he defaulted in the payment of this fine, the trial judge imposed a term of one hundred forty days’ imprisonment and added a term of ninety days’ imprisonment as additional punishment. Although several arguments are presented on appeal, the major issue is the alleged denial of a speedy trial.

I

The facts governing this issue are set forth in chronological order:

November 13,1976 - Date of the offense.

November 15,1976 - A warrant was issued for the defendant’s arrest by the Recorder’s Court of the City of Prichard.

March, 1977 - The record does not disclose when the defendant was initially indicted. However, the original indictment was “thrown out” on the defendant’s motion to quash “sometime about” March of 1977.

June 10,1977 - The defendant was reindicted by the Mobile County Grand Jury.

November 21,1978 - A “duplicate” warrant of arrest was issued for the defendant. This warrant bears the notation “N. F. moved Vacant House”.

December 30,1978 - The above warrant was executed by arresting the defendant and committing him to jail. The defendant was released after making bail that same day.

January 17,1979 - The defendant was arraigned and trial was set for March 12, 1979. Additional time was granted for the defendant to file special pleas.

January 29,1979 - The defendant filed a Motion to Dismiss for Want of Speedy Trial. A hearing was held on February 9th. This Motion was denied on February 15,1979.

March 12,1979 - The defendant was tried and convicted.

In determining whether a defendant has been denied the right to a speedy trial the Court must utilize a balancing test, weighing the conduct of the prosecution with that of the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), is the “yardstick by which any court must determine whether there was a denial of speedy trial in violation of the Sixth Amendment to the United States Constitution”. Slaughter v. State, 377 So.2d 632 (Ala. 1979). The factors enumerated in Barker to be considered are: (1) Length of delay, (2) reason for delay, (3) defendant’s assertion of his right, and (4) prejudice to the defendant.

Length of Delay: The length of delay is merely a threshold “triggering mechanism”. Barker, 407 U.S. at 530, 92 S.Ct. at 2192. A court need not inquire into the other factors until there is some delay which is “presumptively prejudicial”. Barker, id.

Here the original indictment was-dismissed when the court granted the defendant’s motion to quash. The record does not reveal the defect in the original indictment but there is no suggestion of improper motive or conduct on the part of the prosecution in drafting that accusation. Under these circumstances the new indictment gave rise to a new time period. See 21 Am.Jur,2d, § 245 (1965); Annot., .30 A.L. R.2d 462 (1953). Thus, for purposes of determining whether the defendant was denied his Sixth Amendment right to a speedy trial, we shall consider only the twenty-one month period between the reindictment in June of 1977 and the trial in March of 1979. “[Considering the lack of complexity of the factual and legal issues”, this twenty-one month delay' “provides a sufficient springboard for inquiry into the other factors”. United States v. Edwards, 577 F.2d 883, 888 (5th Cir. 1978). Although this delay is excessive, it is not sufficient in itself to warrant a finding that the defendant has been denied the right to a speedy trial. “There is no fixed length of time that is considered to be per se unreasonable.” Andrews v. State, 370 So.2d 1070, 1072 (Ala.Cr.App.), cert. denied, 370 So.2d 1075 (Ala.1979). Generally, the passage of time, standing alone, is not enough to justify a holding that the guarantee of a speedy trial has been violated. Barker, 407 U.S. at 533, 92 S.Ct. at 2193; Jones v. Morris, 590 F.2d 684, 686 (7th Cir. 1979). “Although the length of the delay weighs against the state, it is not so ‘inordinately lengthy’ as to weigh heavily against the state.” Jones, 590 F.2d at 686.

Reason for Delay: The reason for the twenty-one month delay does not clearly appear in the record. Although the evidence suggests two possible reasons for delay, the State offered no explanation for the eighteen month delay between the time the defendant was reindicted and his arrest.

One reason for the delay is the State’s failure to locate the defendant. The warrant of arrest is marked “DUPLICATE” and bears the handwritten notation “N. F. moved Vacant House”. There is no indication when this notation was made. There is no evidence where this warrant was finally executed. The State offered no explanation for this notation.

At the hearing on this motion, the defendant presented uncontradicted and corroborated evidence that he had been living at the same address since the date of the offense and was known by several officers of the Prichard Police Department. In brief on appeal, the defendant alleges that the delay between reindictment and arrest is a “bureaucratic error” and that the State was “derelict in not checking up on the Sheriff’s return”.

Negligence on the part of the State is considered somewhat of a “neutral” reason for delay and is not weighed as heavily against the State as a deliberate attempt to delay the trial in order to hamper the defense. A delay attributable to negligence “should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than the defendant.” Barker, 407 U.S. at 531, 92 S.Ct. at 2192.

A second possible reason for the delay is the absence of a prosecuting witness. There is some indication in the record, and the defendant contends that the complaining witness was absent from the State of Alabama from early 1977 until the defendant’s arrest in December of 1978. In his Motion to Dismiss for Want of a Speedy Trial the defendant alleges:

“The delay has enhanced the State’s case because the Complainant, . . ., was without the State of Alabama during a goodly portion of 1977 and 1978, and would have been unavailable or somewhat inaccessible had the trial delay not occurred.”

Delays otherwise excessive may be “tolled” by the unavailability of an essential prosecution witness. United States v. Bufalino, 576 F.2d 446, 453 (2nd Cir. 1978). A missing witness is a “valid reason” and will “serve to justify appropriate delay”. Barker, 407 U.S. at 531, 92 S.Ct. at 2192; United States v. Avalos, 541 F.2d 1100, 1114 (5th Cir. 1976). Here there is no- indication whether the witness was actually “missing”, that is, whether the delay was due to inconvenience rather than the State’s inability to produce. Consequently, there is no evidence as to whether the State made any good faith and diligent effort to find her. United States v. Lawson, 545 F.2d 557, 560 (7th Cir. 1975).

From the facts presented by the record we can only speculate at the actual cause of the delay. Whether the delay was merely negligent or actually justified is not answered. However, there is no contention or suggestion that-the delay was a deliberate attempt by the State in order to either enhance its own case or prejudice the defense.

Assertion of Right: While a defendant has “no duty to bring himself to trial”, Barker, 407 U.S. at 527, 92 S.Ct. at 2190, the “failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial”. Barker, 407 U.S. at 532, 92 S.Ct. at 2193. Here the defendant first asserted this right by a motion to dismiss filed two months after his arrest on the second indictment. This was after a date had been set for his trial. The record is silent as to whether or not the defendant had knowledge of his reindictment prior to this arrest. The State made no attempt to show when the defendant first learned that he had been reindicted. A defendant cannot waive his right to a speedy trial unless he has knowledge of the indictment. Ex parte State ex rel. Attorney General, 255 Ala. 443, 52 So.2d 158 (1951); Mayberry v. State, 48 Ala.App. 276, 264 So.2d 198, cert. denied, 288 Ala. 746, 264 So.2d 207 (1972). Because we do not know on what grounds the original indictment was quashed, we have no indication of whether the defendant had any expectation of reindictment. We do know that the defendant was represented by the same retained counsel under both indictments. In the absence of any evidence that the defendant had some knowledge of the second indictment before his second arrest, we find no waiver of his right to a speedy trial.

Prejudice to the Accused: In his Motion to Dismiss the defendant states:

“The Defendant, however, is greatly prejudiced by the delay for that the -gravamen of this case consists of a one-on-one confrontation between the Defendant and the Complaint. The Defendant had access, until recent months, to witnesses who would testify that the Complainant had a bad reputation for veracity. These witnesses are construction workers who knew the Complainant around the bars in Prichard, and have now moved on to other construction jobs in other parts of the country.”

The evidence in this case was uncomplicated. The prosecutrix testified that on the night of November 13, 1976, she was babysitting for the defendant and his wife. The defendant returned home and attempted to rape her but no penetration occurred. The prosecutrix stated that she fought with the defendant for fifteen or twenty minutes and then the defendant left to get his wife at work.

The defendant maintained that the prose-cutrix seduced him and consented to sexual intercourse.

In rebuttal, the State introduced medical testimony that indicated that there was no evidence of penetration.

At the hearing on the speedy trial issue, the defendant testified that his defense was hindered by the delay due to the absence of two witnesses. The defendant’s wife’s boss would testify that the prosecutrix was “an habitual liar and that he would not believe her under oath”. The second witness had been a trusty named Farley at the Prichard jail and would give similar testimony. However, the defendant had made absolutely no efforts to find these witnesses because he didn’t “know where to start to even look for them”. No mention was made of the construction workers referred to in the defendant’s motion to dismiss.

There is no evidence or allegation of prejudice resulting from “oppressive pretrial incarceration” or “anxiety and concern”. Barker, 407 U.S. at 533, 92 S.Ct. at 2193.

Although actual prejudice is not always necessary, Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973), it is only one factor which must be considered in the difficult and sensitive balancing process of determining whether a defendant has been denied a speedy trial. Barker, 407 U.S. 533, 92 S.Ct. at 2182. “(S)peculative allegations, such as general allegations of loss- of witnesses and failure of memories are insufficient to establish the requisite actual prejudice.” Avalos, 541 F.2d at 1108. We do not think that this is a case where prejudice must be presumed from the mere length of the delay.

Here there is evidence that there has been no attempt made to locate the missing witnesses. Under these circumstances, the failure of the defendant to know the whereabouts of these witnesses could just as easily be the result of the defendant’s own negligence as the result of any delay which could be attributed to the State. Jones, 590 F.2d at 687; Edwards, 577 F.2d at 889. We also note that the alleged testimony these witnesses would give was concerned only with the credibility of the prosecutrix and not with any material facts of the incident and alleged crime itself. There was no showing that there were not other witnesses available who could testify to the credibility of the prosecutrix.

Applying the balancing test set out in Barker, we find that the trial court did not err in overruling the defendant’s motion to dismiss for want of a speedy trial. While the delay in this case was lengthy and even if there is absolutely no valid excuse for the delay, the defendant has not established a denial of his constitutional right to a speedy trial as a matter of law. Jones, 540 F.2d at 687.

II

The trial court did not abuse its discretion by refusing to allow the defendant to introduce further evidence at trial on a motion for speedy trial which had been denied before trial where there was no allegation or showing that the evidence had been previously unavailable.

The speedy trial issue was decided in the circuit court approximately one month before the defendant was tried. At trial, defense counsel attempted to cross examine the prosecutrix, out of the presence of the jury, as to her whereabouts and accessibility from the time of the offense until trial “on support of (his) motion”. The trial court refused to allow the defendant to pursue this matter or to make an offer of proof because the issue of the speedy trial had already been settled: “That motion is moot. It’s already béen ruled on.” At the hearing on the motion to dismiss, the defendant did not attempt to call the prosecu-trix to establish her whereabouts.

A trial should proceed in an orderly manner, Williams v. State, 26 Ala.App. 531, 163 So. 663, cert. denied, 231 Ala. 127, 163 So. 667 (1935), and the trial court must confine evidence to the points in issue. Sutherland v. State, 24 Ala.App. 573, 139 So. 110 (1932).

“(I)t is proper for the court to refuse to reopen the case on behalf of accused where the additional evidence sought to be introduced was or should have been known to accused and no sufficient reason appears for his not having introduced • it at the proper time.”
23 C.J.S. Criminal Law § 1055 (1961).

III

Defense counsel was not unduly restricted in his cross examination of the prosecutrix with regard to what she meant by “fighting” and the extent of her struggles with the defendant at the time of the sexual assault. Counsel was allowed a thorough and sifting cross examination. A trial is not meant to be an “eternal phenomenon”. Buckelew v. State, 48 Ala.App. 411, 415, 265 So.2d 195 (1972). The trial court has discretion to limit. questions on cross examination which are repetitious. Atwell v. State, 354 So.2d 30, 39 (Ala.Cr.App.1977), cert. denied, Ex parte Atwell, 354 So.2d 39 (Ala.1978).

IV

During defense counsel’s closing argument to the jury, the trial court refused to allow him to argue that “the Bible says thou shalt not convict under the testimony of one witness”. From the record it is clear that the judge was not attempting to prevent defense counsel from quoting the Bible in his argument but was directing counsel to “confine his argument to the law in the State of Alabama”.

Under the Mosaic Law the concurrent testimony of at least two witnesses was required to establish guilt of a capital crime. Num. 35:30; Deut. 17:6; Heb. 10:28; cf. 1 Kings 21:10, 13; Matt. 26:60. This principle was a general rule in all judicial procedure. Deut. 19:15. See also Isa. 8:2; Matt. 17:1, 2; Matt. 18:16; John 8:17, 18; 1 Tim. 5:19.

However, under Alabama law, the uncorroborated testimony of the prosecu-trix is sufficient to sustain a conviction for rape. Barnett v. State, 83 Ala. 40, 3 So. 612 (1887); Wooten v. State, 361 So.2d 1192 (Ala.Cr.App.1978). Thus, while the law of the case must be taken from the court and not from either counsel, it is improper for either attorney to misstate the law applicable to the case. House v. State, 36 Ala.App. 550, 61 So.2d 457, cert. denied, 258 Ala. 196, 61 So.2d 458 (1953). Likewise, arguments which tend to mislead or confuse the jury on' the applicable law are improper. Johnson v. State, 272 Ala. 633, 133 So.2d 53 (1961); Harrison v. State, 78 Ala. 5 (1884).

As required by law we have searched the record for error prejudicial to the defendant. Finding none we affirm the judgment s.f the circuit court.

AFFIRMED.

All Judges concur.


author: FAULKNER, Justice.

text:
    Ex parte Sidney Michael WADE. (Re Sidney Michael Wade v. State).
    79-405.
    Supreme Court of Alabama.
    April 11, 1980.
   FAULKNER, Justice.

WRIT DENIED.

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


author: MILLS, Acting Chief Judge.

text:
    SEABOARD COAST LINE RAILROAD COMPANY, Auto-Train Corporation, a Florida Corporation, Jensen of Jacksonville, Inc., a Florida Corporation, and Safeco Insurance Company, a corporation, Appellants, v. Marion L. GRIFFIS, Pilot Equipment Company, Inc., a Florida Corporation, and Hartford Fire Insurance Company, Appellees.
    Nos. HH-306, HH-307 and HH-316.
    District Court of Appeal of Florida, First District.
    Jan. 9, 1979.
    As Amended On Denial of Rehearings Feb. 9, 1979.
    Charles Cook Howell, III, Joseph P. Milton and James T. Terrell,.Jacksonville, for appellants.
    Charles T. Boyd, Jr., Jacksonville, Edna L. Caruso, Christian D. Searcy, West Palm Beach, and Henry M. Searcy, Jacksonville, for appellees.
   MILLS, Acting Chief Judge.

Case Summary

Seaboard, Auto-Train and Jensen appeal from a final judgment entered in favor of Griffis, Pilot and Hartford following a jury trial of a railroad crossing case involving a collision between a train and a Gradall truck.

FACTS

On the morning of the accident Griffis was operating the Gradall on the side of the road northwest of the railroad crossing. He worked the Gradall, a 29-foot-long piece of construction equipment, eastward along the shoulder of the road toward the railroad tracks. The Gradall was being driven by him from the operating cab and from that position was incapable of attaining a speed of over five miles per hour. From any other position on the Gradall, it was capable of attaining speed of up to 50 miles per hour. When he was about 26 feet from the tracks, Jensen’s construction foreman motioned for him to get out of the area because the Gradall was too close to the tracks.

Griffis moved the boom, including the operating cab and himself, until the boom faced southeast. He then proceeded to a point where the front of the Gradall was approximately 15 feet from the nearest or western-most track and came to a complete stop. He swung the boom to his left to look north, then swung the boom to his right to look south. Leaving the boom in the southeast position, he started over the tracks. He estimated that the front of the Gradall was between the west set of tracks and the east tracks when he first saw the train approaching from the north. He thought he could make it over the west set of tracks before the train reached the intersection.

Although the speed limit for trains in the area was 60 miles per hour, the approaching Auto-Train was traveling only 50 miles per hour. The engineer and fireman observed the Gradall begin to move forward after the train came around the curve north of the intersection. They estimated the distance of the engine from the intersection to be 450 to 600 feet when the Gradall began crossing the tracks. The train was approximately 50 to 75 feet from the crossing when the emergency brakes were activated. The train hit the rear three feet of the Gradall causing personal injuries to Griffis and property damage to the Gradall and the locomotive.

Griffis brought suit against Auto-Train for negligent operation of the train; Seaboard for negligent maintenance of the right of way and warning device and failure to maintain adequate warning devices and exercise reasonable care under the circumstances; and Jensen for failure to take proper precautions for Griffis’ safety while working near the crossing. Pilot, the owner of the Gradall, was brought into the suit and numerous crossclaims and counterclaims were filed by the parties.

After trial the jury returned its verdict finding Griffis, Auto-Train, Seaboard, and Jensen guilty of negligence which was a contributing cause of the accident and assigned the following percentages: Griffis— 15 percent; Auto-Train — 45 percent; Seaboard — 20 per cent; and Jensen — 20 percent. The jury found the total amount of damages sustained by Griffis to be $75,000, by Auto-Train, $14,000, and by Pilot, $60,-000.

ISSUE

Numerous points on appeal have been raised by Seaboard, Auto-Train and Jensen, but we have concluded that only one point merits discussion.

Seaboard contends that it was entitled to a directed verdict after all the evidence had been presented. We agree. The evidence did not support the allegations ■ of negligence against Seaboard.

DECISION

Griffis alleged that Seaboard was negligent in that it:

“(a) Failed to exercise reasonable care required under the circumstances.
(b) Failed to maintain adequate warning devices and signals at the crossing in question.
(c) Failed to properly maintain the warning devices and signals which were in existence at the crossing in question.
(d) Failed to maintain the right of way adjacent to the tracks north of the crossing in question in a reasonably clean and unobstructed condition.”

Pilot, in its crossclaim against Seaboard, made the same allegations of negligence as Griffis and in addition alleged:

“(e) Failure to provide and require speed restriction regulations and devices for trains operating through Green Cove Springs, Florida.”

There was no evidence presented to support the allegation that Seaboard failed to maintain the right of way in a reasonably clean and unobstructed condition. Griffis testified that before he started across the tracks, he looked north along the tracks and could see all the way to the curve. He later measured the distance and determined that it was 1,042 feet. The officer who investigated the accident also did not note any obstructions to vision at the crossing.

There was no evidence presented that the existing warning signals at the crossing were improperly maintained. Grif-fis testified that he saw the railroad cross-buck sign and the vehicular stop sign. However, Griffis argues that these existing warning signals were inadequate and mechanical warning signals should have been installed. Seaboard contends that the crossbuck complied with its obligations under the law, Section 351.03, Florida Statutes (1977), and nothing more was required. We agree with Seaboard. When there is no evidence that the crossing is extra hazardous, nothing more than the warning devices required by statute must be provided. Atlantic Coast Line Railroad Co. v. Wallace, 61 Fla. 93, 54 So. 893 (Fla.1911); Seaboard Coast Line Railroad Co. v. Welfare, 350 So.2d 476 (Fla. 1st DCA 1977). Griffis’ contention that the crossing was extra hazardous because brush and undergrowth in ■the right-of-way obscured the view is unsupported by the evidence.

The major issue is whether, under the circumstances, Seaboard was negligent in failing to issue “slow orders” to trains going through Green Cove Springs. A “slow order” is an order used to restrict train speed at a given location or to warn the train of any hazard.

The evidence showed that Seaboard was aware of the road construction west of the crossing. Seaboard had representatives at the preconstruction conference, and Jensen gave Seaboard written notification of the commencement of the work. According to the plans and specifications, the project involved work on the west side of tracks within Seaboard’s right of way, but never closer to the tracks than 15 feet from the western edge. The project did not involve work on the crossing or east of the crossing.

Griffis contends that there was sufficient evidence presented for the jury to determine that Seaboard was negligent in failing to issue “slow orders” to trains going through Green Cove Springs. Seaboard contends that mere evidence of construction work in the general area of railroad tracks is not, without more, sufficient to impose upon the. railroad a duty to restrict the speed of trains through that area below the normal speed limit.

Negligence is the failure to observe, for the protection of another’s interest, such care and precaution as the circumstances demand, or the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances. Russ v. State, 140 Fla. 217, 191 So. 296 (Fla.1939). Where the facts are undisputed and reasonable persons, exercising fair and impartial judgment, could reach only one conclusion, the question of negligence becomes one of law. Stirling v. Sapp, 229 So.2d 850 (Fla.1969).

As to Seaboard, the facts in this case are undisputed. Seaboard knew of the construction activity west of the tracks. The plans of the project showed that such activity would come no closer than fifteen feet away from Seaboard’s westernmost track. There was no construction activity east of the tracks. We find that there is no reasonable inference which can be reached from the facts which would impose upon Seaboard the duty of issuing orders reducing the speed of trains through Green Cove Springs because of the construction activity-

JUDGMENT

Seaboard should have been granted a directed verdict on the issue of its negligence. This case is reversed as to Seaboard. It is affirmed in all other- respects. It is necessary, however, to remand the case to the trial court for a new trial on the issue of liability for the purpose of determining what percentage of fault should be attributed to Griffis, Auto-Train and Jensen. A retrial on the issue of damages is unnecessary.

Affirmed in part, reversed in part and remanded.

ERVIN, J., and MASON, ERNEST E., Associate Judge, concur.


author: McCORD, Chief Judge. McCORD, Judge.

text:
    Charles B. “Chuck” MITCHELL and Neil Phillip Ryder, Appellants, v. STATE of Florida, Appellee.
    Nos. JJ-54, JJ-55.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1979.
    Rehearing Denied Oct. 18, 1979.

      C. David Fonvielle of Thompson, Wads-worth, Messer, Turner & Rhodes, and William L. Camper of Huey, Camper & Guil-day, Tallahassee, for appellants.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   McCORD, Chief Judge.

These are consolidated appeals from judgments and sentences adjudicating appellants guilty of drug charges and sentencing them to prison terms. Appellants Ryder and Mitchell, who resided in Leon County, entered pleas of nolo contendere to one count of conspiracy to possess with intent to deliver and one count of conspiracy to distribute in excess of 100 pounds of cannabis in one case (Case No. 77-1258 below) and to one count of conspiracy to possess in excess of 100 pounds of cannabis in another (Case No. 77-686 below). Pursuant to a plea agreement, they reserved the right to appeal denials of their motions to suppress wiretap evidence and their motion for discharge on speedy trial grounds. We affirm.

On February 13,1977, Special Agent Layman of the Florida Department of Criminal Law Enforcement obtained from a circuit judge a wiretap order for appellant Ryder’s telephone after presenting a sworn application therefor pursuant to Chapter 934, Florida Statutes (1975). On March 10, 1977, Layman again obtained from the same circuit judge a wiretap order on the telephone listed to appellant Mitchell upon an application almost identical to the previous Ryder application. As a result of evidence obtained, either directly or indirectly from the wiretaps, appellants Ryder and Mitchell were arrested on April 18, 1977, for possession of more than five grams of marijuana and on June 22, 1977, on the conspiracy charges, the conspiracy convictions being the subject matter of this appeal.

Appellants contend that the sworn applications for the wiretap orders were insufficient in that they failed to show probable cause to believe that appellants were committing, had committed or were about to commit a particular offense enumerated in § 934.07, Florida Statutes (1975), or probable cause for belief that communications concerning such an offense would be obtained through such interception. Appel- . lants, therefore, contend the trial court erred in denying their motions to suppress. § 934.09(3)(a) and (b), Florida Statutes (1975), provides in pertinent part as follows:

“(3) Upon such application, the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception or wire or oral communications within the territorial jurisdiction of the court in which the judge is sitting if the judge determines on the basis of the facts submitted by the applicant that:
(a) There is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in s. 934.07;
(b) There is probable cause for belief that particular communications concerning that offense will be obtained through such interception.”

Appellants contend that the sworn application for wiretap serves the same function as an affidavit for a search warrant, and that the judicial doctrines developed in the search warrant area apply when examining the sufficiency of a wiretap application. We agree generally with that contention, and the state has not contended otherwise.

The sworn application is a 24 legal page document which sets, forth a detailed account of widespread drug operations of appellants and others, part of which was related to the affiant, Layman, by two confidential informants. The application also relates the results of the execution of a subpoena duces tecum of safety deposit box records of Ryder’s safety deposit box leased from the Ellis National Bank. It further relates information obtained from telephone toll records obtained upon execution of subpoenas duces tecum of appellants’ telephones as well as the telephones of a number of other individuals alleged to have been involved in the illegal drug operation. In addition, it sets forth statements of affi-ant corroborating through investigation some of the information furnished to affi-ant by the confidential informants.

Appellants contend that the application is insufficient in that it does not state the time when the confidential informants observed the illegal activity. They contend further that there was not a full and complete statement of the necessary facts and circumstances to support the issuance of the wiretap order, as required by § 934.09, in that it does not relate when in point of time the confidential informants observed the illegal activity and does not indicate how the informants were in a position to obtain the information they passed on to Layman, They further contend that there was no probable cause to issue the wiretap order because the applicant’s information was fatally “stale”; that, in addition, tips supplied by the informants were insufficient to establish probable cause under the constitutional requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

Here we have different circumstances than were present in the various authorities relied upon by appellants. In those cases search warrants were held invalid because the affidavits in support of them rested solely on unreliable information. Had Layman’s application for search warrant been, based upon nothing more than the information received from his confidential sources, appellants’ authorities would be applicable, and the wiretap order could not have been legally granted. Likewise, had Layman’s information in support of the order consisted of nothing more than his observation of bank records or of telephone records, the order could not have been issued. When, however, we examine the affidavit as a whole, it leads to the inescapable conclusion that there was probable cause for the judge issuing the orders to believe that appellants were dealing in narcotic or other dangerous drugs in violation of the laws of this state.

Layman revealed that his informant (whom we will refer to as Source No. 1) told him that appellant Ryder was a large-scale marijuana and cocaine dealer. The source provided information about Ryder’s home, his phone number and his vehicle. The source stated that Ryder got his marijuana from Tom Strang in Ft. Lauderdale in 75 to 100 pound loads; that it was broken up for distribution at appellant Mitchell’s house in the Miccosukee Land Co-Op. Mitchell was described and was alleged to have been a close associate of Ryder who himself bought marijuana from Tom Strang. Source No. 1 said that sometimes Mitchell and Ryder worked together and sometimes they worked independently. It was stated that Ryder purchased cocaine from David Polan-sky, a resident of Sacramento, California, and a drug counselor; that Polansky dates Ryder’s sister who lives in California and her phone number was provided; that Ryder gets cocaine from Polansky and stores it in a safety deposit box at the Ellis National Bank; that cocaine is only removed from the safety deposit box when a sale is arranged. Source No. 1 gave Layman background information on Tom Strang and also gave names of people who purchased marijuana from Ryder. In most instances the addresses and phone numbers of those purchasers were provided. Source No. 1 also provided Layman with a code which he stated the principals used.

The second confidential informant (whom we will refer to as Source No. 2) told Layman that he knew Ryder, Tom Strang and others. He claimed to have purchased marijuana from Strang in amounts up to 100 pounds. [This would appear to be an admission against penal interest by Source No. 2. See Baker v. State, 336 So.2d 364 (Fla.1976).] Source No. 2 corroborated Source No. l’s information that Strang is the Ft. Lauderdale supplier. He revealed essentially how Strang obtains his drugs and stated that he had spent days at Strang’s house in Ft. Lauderdale and had personally seen Ryder purchase marijuana from Strang two times in one day.

Layman, through his further investigation following directions given to him by Source No. 1, went to Ryder’s residence and observed a vehicle fitting the description of that described by the source. Subsequently, Layman observed another vehicle parked at Ryder’s residence which he learned belonged to Mitchell. Other fellow agents of the Florida Department of Criminal Law Enforcement had seen Mitchell’s truck at Ryder’s residence. Further investigation by Layman revealed that Ryder and Mitchell had a safety deposit box in the Ellis National Bank as related in the affidavit. Records of the box revealed that from the period beginning February 17, 1975, and ending September 15, 1976, numerous entries into the box occurred. [While standing alone this is insignificant, it does establish that Ryder maintained a safety deposit box where Source No. 1 said he did and establishes a frequency of visits for apparently short times which tends to corroborate the information given by Source No. 1 that the cocaine stays in the box until a sale is arranged.] The records revealed that no activity with the box occurred between the date of the last log entry and January 21, 1977. On the latter date, however, Ryder was observed by two of Layman’s fellow agents to enter the bank at 4:26 p. m. and exit at 4:33 p. m. carrying an envelope. These agents at that point began surveillance of Ryder, but the surveillance was defeated by evasive tactics of Ryder in the vicinity of Buckingham and Las Palmas Apartments. [It is somewhat coincidental that other evidence of the Federal Drug Enforcement Administration, as related in the affidavit, identified those apartments as the residence of several cocaine dealers.]

The affidavit further reveals that officers of the Tallahassee Police Department and agents of the Federal Drug Administration surveilled a residence on Raymond Diehl Road for the purpose of arresting one Glen Arden Dugan. Dugan lived in the same duplex as Gary Albert Jennings. Raymond Diehl Road was given by Source No. 1 as Jennings’ residence. The officer .observed a vehicle leave the duplex and stopped it later at Interstate 10. At that time, Timothy Allen and Rubin Patrick were arrested for possession of marijuana. Patrick and Allen gave a statement to the effect that Patrick purchased a quarter pound of marijuana from Jennings for.$105 and that there was more marijuana in a green plastic bag in the bedroom. A search warrant was obtained and executed at the Jennings’ residence whereupon 25 pounds of marijuana and other narcotics were found and Jennings and his wife were arrested. Ryder’s telephone number was found to be in Jennings’ address book, and Ryder was instrumental in seeing that Mr. and Mrs. Jennings were bonded out of jail.

Another subpoena duces tecum for the records of the telephone numbers listed in the affidavit was issued and served. Among those numbers were the numbers of Ryder and Mitchell. The subpoena covered a period beginning when the phones were installed and ending November 19,1976. A review of those records revealed that the Friends In-Deed Center in Sacramento, California, area was called from Ryder’s number 15 times. The affidavit stated that California authorities revealed that the center is a halfway house employing counselors who are ex-drug offender’s, several of whom have drug records. Calls were made from Ryder’s number to another number in California and investigation revealed that such number was that of Ryder’s sister who, according to Source No. 1, dated David Po-lansky, the alleged supplier of cocaine to Ryder. The number Source No. 1 gave to Layman is identical to that revealed in the telephone logs.

The telephone records further show that calls were placed from Ryder’s number to a number subscribed to by the father of Tom Strang. Also, numerous calls from Ryder’s number were placed to a particular phone in Ft. Lauderdale. At the address of that phone, fellow agents of Layman observed a truck registered to William Raabe, a name given to Layman by Source No. 2. A check of rental records of that truck provided a connection between Raabe and Richard Strang, brother of Tom Strang. There were other calls from Ryder’s number to a Ft. Lauderdale address and calls to William Stuart Benners, a name previously supplied • by Source No. 1. The telephone log also revealed that several calls were made from Ryder’s telephone to a telephone company test number in Capital Heights, Maryland. The affidavit relates that Maryland police stated that telephone security officers advised that members of the criminal element mistakenly believe they can call telephone company test numbers and determine from the tone heard whether or not their telephone is tapped.

Calls coming from the telephone number registered to appellant Mitchell showed that he called Richard Strang, brother of Tom Strang. The balance of the telephone logs show calls between most of the people who were named by the confidential sources as drug dealers.

While the individual pieces of information received from various sources, when isolated, are each in themselves insufficient to show probable cause, when assembled and considered in relation to each other and in relation to the information obtained from the telephone records together with the corroboration of ' some of the statements through investigation, we find that they fit together like a jigsaw puzzle and clearly reveal probable cause for belief that appellants were engaged in a conspiracy to violate the drug laws through use of their telephones.

As to appellants’ contention that the information related to Agent Layman was stale and, therefore, could provide no predicate for issuance of the wiretap order, there are authorities, as pointed out by appellants, which set up deadlines of a certain number of days after which the information will be too stale upon which to predicate a search warrant. Those cases, however, deal with particular situations in which the affidavit for search warrant is predicated only upon such information. One such case in Hamelmann v. State, 113 So.2d 394 (Fla. 1 DCA 1959). That case involved an affidavit for search warrant made six months after the occurrence of the incident related in the affidavit which stated that (quoting from the opinion):

“. . affiant entered a certain described building occupied by defendant and others in which he observed stated activities indicating that defendant was engaged in the operation of a house of ill fame.”

The court found there was an unreasonable lapse of time between the date on which affiant allegedly observed the offense and the date on which he executed his affidavit in support of the search warrant and that, therefore, no probable cause existed that the defendant was engaged in a violation of the laws of the state at the time of the execution of the affidavit. Unlike the case sub judice, the affidavit there related only the one single incident on which the warrant was predicated. The opinion in Ha-melmann acknowledges that there is no strict rule as to the permissible number of days which may elapse between the date of the observed offense and the making of the affidavit upon which the search warrant is based. The court there pointed out that the nearer the time is at which the observation was made to the time when the affidavit is or was executed, the more probable it is that a conclusion of probable cause may be justified. We do not disagree with that premise, but the affidavit in the case sub judice rests upon a great deal more than a single isolated incident.

Appellants contend that the information received from Source No. 1 was 100 days old, and that received from Source No. 2 was 30 days old. This, however, is not a valid representation since Layman swore that he met Source No. 1 at a November 10, 1976, meeting and on several succeeding meetings and, as a result of all those meetings, the information he recited was obtained. November 10 is meaningless since it-only reflects the first time Layman met with Source No. 1. The same is true for Source No. 2 since once again Layman stated that he met with Source No. 2 on January 19, 1977, and on other occasions.

Appellants place reliance upon Rodriguez v. State, 297 So.2d 15 (Fla.1974). While the Supreme Court found there that the affidavit was insufficient due principally to staleness of the incident relied upon to establish probable cause, it made the following statement which supports the affidavit in the case sub judice:

“As the State has ably pointed out in its brief, the sufficiency of an affidavit to establish the necessary elements to support issuance of a wiretap order must be determined from a reading of the affidavit as a whole, not from bits and pieces read in isolation.”

The court went on to further say:

“. . . the issue of ‘staleness’ cannot be solved by a simple application of numbers of days without consideration of the overall particular circumstances presented by the case.”

The court further pointed out that the nature of the illegal activity has a bearing upon the question of timeliness of the affidavit and stated:

“For example, an affidavit dealing with the offense of possession of marijuana in quantity less than five grams (F.S. § 893.-13, F.S.A.) will become ‘stale’ quickly (in view of the possibility that the alleged offender will either dispose of this quantity quickly or consume it himself), whereas an affidavit dealing with the offense of embezzlement may (depending on the particular circumstances involved) remain timely for a longer period. Although some matters listed in the instant affidavit may give rise to a suspicion that a large and continuous gambling operation existed, the totality of the facts set forth in this affidavit are not sufficient to establish probable cause to believe that the offense was being committed or about to be committed at the time of the affidavit.”

In the case sub judice, the affidavit clearly showed probable cause to believe that appellants were carrying on a continuing large-scale and widespread illegal operation in conspiracy to violate the jjarcotic and dangerous drug laws. It is not likely that such an operation as that shown in the affidavit would suddenly terminate short of arrest or fear of arrest of the participants.

In Aguilar v. Texas, supra, the United States Supreme Court reviewed an affidavit for a warrant to search for narcotics in petitioner’s home. The court quoted the relevant part of the affidavit as follows:

“ ‘Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law.”

The court held this affidavit insufficient stating:

“Here the ‘mere conclusion’ that petitioner possessed narcotics was not even that of the affiant himself; it was that of an unidentified informant. The affidavit here not only ‘contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein,’ it does not even contain an ‘affirmative allegation’ that the affi-ant’s unidentified source ‘spoke with personal knowledge.’ ”

The court pointed out that for all that appears from the affidavit, the source merely suspected, believed or concluded that there were narcotics in petitioner’s possession; that the magistrate certainly could not judge for himself the persuasiveness of the facts relied upon to show probable cause; that he necessarily accepted without question the informant’s suspicion, belief, or mere conclusion.

Aguilar and the subsequent opinion •of the U.S. Supreme Court in Spinelli v. U. S., supra, stand for the proposition that (1) an affidavit for search warrant must set forth sufficient underlying circumstances to enable the magistrate independently to judge the validity of the informant’s conclusion that the contraband was where he said it was, and (2) the affidavit must contain support for-the reliability of the confidential informer other than a mere statement by the affiant officer that the informant is reliable. The court, in Spinelli, said:

“In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused’s criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an ■accusation based merely on an individual’s general reputation.”

The court further said:

“. . . we do not retreat from the established propositions that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause, . . . ; that affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial . . . ; that in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense . . . ; and that their determination of probable cause should be paid great deference by reviewing courts

While the affidavits in Aguilar and Spinelli ' did not meet the tests outlined by the court, the detail provided by the informants in the case sub judice when considered in conjunction with the corroboration of some elements by investigative officers and the telephone toll records of the numerous persons involved in the illegal activity, do meet the tests. This is particularly true when we examine its entirety without being confined by niggardly limitations or restrictions on the use of common sense.

In addition to the foregoing, appellants contend that postponement of serving of inventories upon them by the state was invalid and should have resulted in an order suppressing the evidence. § 934.09(7)(e), Florida Statutes (1975), provides:

“Within a reasonable time but not later than 90 days after the termination of the period of an order or extension thereof, the issuing or denying judge shall cause to be served on the persons named in the order or the application, and such other parties to intercepted communications as the judge may determine in his discretion that is in the interest of justice, an inventory ...”

Appellant’s contention is that because the application for extension was authorized by an assistant state attorney rather than the state attorney, it is invalid. This contention of appellants is without merit. § 934.-07, Florida Statutes (1975), provides that any state attorney may authorize an application to a judge of competent jurisdiction for an order authorizing interception of wire communications by the Department of Criminal Law Enforcement. § 27.181(3), Florida Statutes (1975), gives the assistant all the powers of the state attorney. See State v. Angel, 261 So.2d 198 (Fla. 3 DCA 1972), aff’d. 270 So.2d 715.

Finally, appellants contend that the trial court erred in denying in Case No. 77-1258 below their motion for discharge filed under Fla.R.Crim.P. 3.191(a)(1) — the speedy trial rule. They contend that since more than 180 days had elapsed between the date they were first arrested (April 18, 1977) and the date they filed their motion for discharge (December 8, 1977), Case No. 77-1258 below should have been dismissed.

At the time of appellant’s first arrest (April 18, 1977), the intercept was on their telephones, and the state agents were in the process of investigating their operations along with the operations of numerous other persons involved .in the above-mentioned criminal episodes. At that time, the investigators learned that Mitchell and Ryder had approximately 130 pounds of marijuana in their possession. They then obtained and executed a search warrant for the purpose of seizing that marijuana and arresting appellants on the possession charge. Upon execution of the warrant, approximately 99 pounds of marijuana was seized, and appellants were arrested for possession in excess of five grams of marijuana as aforesaid. (This is not one of the cases here on appeal.) The evidence shows that this happened in the middle of the state’s conspiracy investigation at a time when the state had insufficient evidence to make conspiracy arrests. The overall investigation continued thereafter. While they could now be classed as a part of the overall criminal conspiracy, the initial possession arrests of April 18 were a separate criminal episode that formed only a minor link in the overall conspiracy which was charged later after sufficient evidence of conspiracy had been obtained. Upon completion of the conspiracy investigation, appellants and others were arrested on the conspiracy charges on June 22, 1977. It is from the judgments and sentences on these June 22 conspiracy charges that this appeal was taken. These arrests were primarily based upon a conspiracy to possess and distribute a 50-ton load of marijuana received by Tom Strang subsequent to the April 18 possession charges. Appellants’ motion for discharge was filed and heard within 180 days of their arrest on the charges in Case No." 77-1258. The trial court correctly denied the motion.

Petition for rehearing, if filed, shall be filed within 10 days from the date hereof.

AFFIRMED.

BOYER and MILLS, JJ., concur.

ON MOTION FOR REHEARING

McCORD, Judge.

We have withheld ruling on appellants’ motion for rehearing because of possible conflict between the opinion herein and the opinion of another panel of this Court in Daniels and Phillips v. State, 381 So.2d 707 (Fla. 1st DCA 1979). Our concern was with the ruling in Daniels and Phillips that an assistant state attorney does not have authority to make application for an order authorizing or approving the interception of wire or oral communications. That ruling has now become final with the filing of an opinion on August 30, 1979, denying motion for rehearing. Upon consideration of that opinion, we find conflict in the opinion sub judice with our statement to the effect that, under §§ 934.-07 and 27.181(3), Florida Statutes (1975), an assistant state attorney may authorize an application to a judge of competent jurisdiction for an order authorizing interception of wire communications by the Department of Criminal Law Enforcement. The opinion in Daniels and Phillips rules that only the state attorney has such power; that the federal statute, 18 U.S.C., § 2516(2), is preemptive and the “principal prosecuting attorney,” authorized therein to make application for an order approving interception of wire or oral communications, cannot be construed to include an assistant state attorney. It does not follow, however, that an assistant state attorney, who under § 27.181(3), Florida Statutes (1975), has all the powers of the state attorney, cannot authorize an application for extension or postponement of serving of inventories under § 934.09(7)(d), Florida Statutes (1975). The assistant state attorney clearly has such power, and it is only this power relative to application for extension or postponement of serving ¡ inventories that is questioned by appellants here.

Any language in our previous opinion in this cause which may be construed to authorize an assistant state attorney to apply for an order approving the interception of wire or oral communications is obiter dicta and is receded from as unnecessary to the decision in this case.

Motion for rehearing denied.

MILLS, C. J., and LARRY G. SMITH, J., concur.


author: PER CURIAM.

text:
    G & B OF JACKSONVILLE, INC., d/b/a The Harem, Appellant, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF BEVERAGE, Appellee.
    No. GG-310.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1979.
    Rehearing Denied March 12, 1980.
    Harry Katz, Jr., of Katz & Katz, Jacksonville, for appellant.

      Dennis E. LaRosa, Tallahassee, and David M. Hudson, Gainesville, for appellee.
   PER CURIAM.

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

Accordingly, the order appealed is affirmed.

MILLS, Acting C. J., MELVIN, J., and MASON, Ernest E., Associate Judge, concur.

Certiorari denied, Fla., 379 So.2d 205.


author: PER CURIAM. MITCHELL, HENRY CLAY, Jr., Associate Judge.

text:
    G & B OF JACKSONVILLE, INC., t/a The Climax, Appellant, v. STATE of Florida DEPARTMENT OF BUSINESS REGULATION, DIVISION OF BEVERAGE, Appellee.
    No. GG-309.
    District Court of Appeal of Florida, First District.
    March 6, 1979.
    On Rehearing May 1, 1979.
    Harry Katz, Jr., of Katz & Katz, Jacksonville, for appellant.
    Dennis E. LaRosa and Charles T. Collett, Tallahassee, for appellee.
   PER CURIAM.

Affirmed upon authority oí G & B of Jacksonville, Inc., d/b/a Out of Sight v. State of Florida, Department of Business Regulation, Division of Beverage, 371 So.2d 139 (Fla. 1st DCA 1979), Case No. GG-305, Opinion filed February 21; 1979, and G & B of Jacksonville, Inc., d/b/a The Harem v. State of Florida, Department of Business Regulation, Division of Beverage, 371 So.2d 137 (Fla. 1st DCA 1979), Case No. GG-311, Opinion filed February 21, 1979.

MILLS, Acting C. J., MITCHELL, HENRY CLAY, Jr., Associate Judge and SMITH, J., concur.

ON MOTION FOR REHEARING

MITCHELL, HENRY CLAY, Jr., Associate Judge.

By motion for rehearing, petitioner correctly brings to our attention that we overlooked and failed to consider our previous opinions rendered in G & B of Jacksonville, Inc., d/b/a Out of Sight v. State of Florida, Department of Business Regulation, Division of Beverage, 366 So.2d 877 (Fla. 1st DCA 1979), and G & B of Jacksonville, Inc., d/b/a The Climax v. State of Florida, Department of Business Regulation, Division of Beverage, 382 So.2d 1227 (Fla. 1st DCA 1979), wherein a single employee committed a single offense. This Court concluded that such activity was insufficient to charge the employer under authority of Woodbury v. State Beverage Department, 219 So.2d 47 (Fla. 1st DCA 1969). One single violation by an employee does not constitute a persistent or recurring activity, as contemplated by Pauline v. Lee, 147 So.2d 359 (Fla. 2nd DCA 1962).

Therefore, the motion for rehearing is granted. Accordingly, we reverse with directions to the Director of the Division of Beverage, Department of Business Regulation to rescind its suspension of the license.

MILLS, Acting Chief Judge, concurs. .

SMITH, ROBERT P., J., dissents.