author: MADDOX, Justice. BEATTY, Justice

text:
    H. Van HART and Clarence W. Brown v. Ryan deGRAFFENRIED, Jr., et al. Howard T. PLOTT v. Annie Laurie GUNTER as Treasurer of the State of Alabama, et al.
    79-33, 79-46.
    Supreme Court of Alabama.
    Aug. 8, 1980.
    Rehearing Denied Sept. 26, 1980.

      William P. Gray of Tucker, Gray & Espy, Tuscaloosa, for appellants Hart and Brown.
    David M. Tanner, Birmingham, for appellant Howard T. Plott.
    Oakley Melton, Jr., of Melton & Espy, Montgomery, for appellees McDowell Lee and John Pemberton.
    Charles A. Graddick, Atty. Gen., Lee L. Hale, Deputy Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for appellees.
   MADDOX, Justice.

The Alabama Legislature, by a joint resolution adopted at an organizational session, increased the per diem and monthly expense allowances for legislators.

These two cases present the issue of the constitutionality of that resolution (Senate Joint Resolution 13) which was adopted at the 1979 Organizational Session, increasing by $15 and $100, respectively, the per diem and monthly expense allowances for legislators. The trial court found that the legislators did not violate the constitution by adopting the resolution at its organizational session, and that the Legislature could increase its expense allowances by the adoption of a joint resolution.

Appellants raise the following issues:

(1) Could the Alabama Legislature fix or alter the amount of legislative expense allowances by the adoption of a joint resolution?

(2) Could the Legislature take action on legislative expense allowances during the course of an organizational session?

(3) Does S.J.R. 13 violate Article XVII, Section 281 and amendment 92 of the Alabama Constitution, because it increases the compensation being paid to legislators during the term for which they were elected?

(4) Does S.J.R. 13 violate Article IV, § 72 of the Alabama Constitution by requiring the payment of money out of the State treasury without an appropriation?

For the reasons hereinafter set out, we find that the Legislature acted within the powers granted to it by the Constitution; therefore, we affirm the judgment of the trial court.

I

Prior to the enactment of Amendment 57, Article IV, Section 49 of the Alabama Constitution was recognized as the exclusive governing authority on the fixation of legislative compensation and expense allowances. The provisions of that section were quite simple and did no more than establish a scheme of remuneration whereby legislators were to receive “... four dollars per day, and ten cents per mile in going to and returning from the seat of government, to be computed by the nearest usual route traveled”; however, this language was perceived as effectuating an express limitation on the otherwise plenary power of the Legislature. As noted by this Court in Hall v. Blan, 227 Ala. 64, 148 So. 601 (1933):

“For more than half a century, we think it can be safely said, this section [§ 49] of the Constitution has been generally construed as fixing and withdrawing from legislative power, the matter of personal compensation and expense allowances to legislators while in attendance at legislative sessions. Such has been the widely prevailing construction of similar constitutional provisions in other states.”

The preclusion thus erected by § 49 did not remain, however. The people, by adopting subsequent constitutional amendments, changed the means by which legislative expense allowances could be established.

Amendment 57 of the Constitution, ratified in November of 1946, presently stands as the governing constitutional section on legislative expense allowances. It is the language of this amendment, which the people approved, which sets out the limits of legislative power. The portions of Amendment 57 pertinent for purposes of the present appeal read as follows:

“The pay of members of the legislature shall be ten dollars per day. Each member of the legislature shall be paid ten cents per mile in going from his residence to, and in returning to his residence from, the seat of government, to be computed by the nearest usual route traveled; and not more than one such travel allowance shall be paid for each session of the legislature. In addition to his travel allowance, each member of the legislature also shall be allowed expenses, other than actual expenses of traveling, not exceeding an amount to be fixed by the legislature, incurred in the performance of his duties; but such expense allowance shall not be less than the smallest allowance to any other person traveling within the state in the service of the state of Alabama, or any of its agencies, for expenses other than actual expenses of traveling.” (Emphasis added.)

These provisions operated to effectuate a partial reversal of the approach once mandated by the provisions of Section 49, restoring to the Legislature the plenary power and authority to act in matters concerning legislative expenses. The constraints once imposed upon the plenary power of the Legislature by Section 49 were thus removed by Amendment 57. Matters of personal compensation remain beyond the scope of legislative province because the amount of compensation is specifically fixed by the Constitution; however, plenary power has been restored with regard to the fixation of legislative expense allowances. Recognizing this restoration of power, we raise this question: How is the Legislature entitled to act?

The appellants argue that the provisions of Amendment 57 empower the Legislature to effect legislative expense allowances only through the enactment of a law. We, however, cannot adhere to such a strict interpretation. To follow the appellants’ argument would require this Court to interpret the language of Amendment 57 as an implied limitation on legislative power. We do not believe the people intended to restrict legislative power so narrowly. The Legislature is laden with a broad form of governmental power which is plenary in character, and subject only to those express limitations appearing in the Constitution. As noted by this Court in County Board of Education v. Taxpayers and Citizens, 276 Ala. 472, 163 So.2d 629 (1964):

“There are no limits to the legislative power of state governments save those written into its constitution. All that the legislature is not forbidden to do by the organic law, state or federal, it has full power to do. The power of the legislature except as limited by constitutional provisions is as plenary as that of the British Parliament. Finklea v. Farish, 160 Ala. 230, 49 So. 366; State ex rel. Wilkinson v. Murphy, 237 Ala. 332, 186 So. 487, 121 A.L.R. 283.” (Emphasis added.)

See also Hall v. Underwood, 258 Ala. 392, 63 So.2d 683 (1953), and Riley v. Bradley, 252 Ala. 282, 41 So.2d 641 (1948).

We hold that Section 49 no longer stands as a limitation on the plenary power of the Alabama Legislature to enact S.J.R. 13. By virtue of Amendment 57, the Legislature now has express authority to “fix” expense allowances. We hold that it may do so in the manner in which it deems most appropriate. S.J.R. 13 was a proper exercise of legislative discretion in fixing expense allowances and was adopted well within the bounds of the Legislature’s plenary power. Its validity is, therefore, due to be upheld.

II

The second issue raised by the appellants focuses upon the forum within which S.J.R. 13 was adopted, i. e., at an organizational session. In resolving this issue, we once again turn to the provisions of Amendment 57, which sets forth the purpose of organizational sessions and the manner in which they are to be conducted.

Pursuant to the provisions of Amendment 57, organizational sessions are authorized for the purpose of organizing the Legislature in conducting its affairs. A key limitation on the usage of these sessions is that no legislative business can be conducted. The appellants argue that the matter of increasing the legislators’ expense allowances is a business consideration, in no way related to the organization of the Legislature. They thus contend that S.J.R. 13 is unconstitutional because the Legislature was without power to adopt a resolution on a business matter at an organizational session. We disagree with appellants that providing for the expense of the Legislature was constitutionally impermissible at an organizational session.

In In re Opinion of the Justices, 248 Ala. 590, 29 So.2d 10 (1947), this Court grappled with the question of what was meant by the phrase “organization of the legislature.” In striving to ascertain whether the appointment of interim committees constituted “doing business” or “organization,” the Court at 248 Ala. 594, 29 So.2d 13, reasoned:

“Speaking of the organization of corporations generally, the word ‘organization’ has a well-understood meaning, that is, not only the election of officers, the subscription to the capital stock, the adoption of by-laws, but, also, such other steps as are necessary to endow the legal entity with the capacity to transact the legitimate business for which it was created. 30 Words & Phrases, Perm.Ed., p. 284. So, we are persuaded here that the word ‘organization’ should properly be interpreted as giving to the Legislature the power to appoint these committees which it deems necessary for the purpose of gathering information for the business of the Legislature when it reconvenes in its regular May session. Organization is in fact preparation for the transaction of business, and the appointment of these committees is an appropriate part of such preparation.” (Emphasis added.)

Adhering to this interpretation, it is the opinion of this Court that the fixation of legislative expense allowances is an appropriate part of preparation for the transaction of business. In carrying on the affairs of the Alabama Legislature, expenses will be incurred by legislators in attending to the conduct of legislative business. Making determinations beforehand concerning the award of expense allowances is an appropriate and necessary consideration in preparing for the carrying on of legislative business. In other words, determining how legislators will be reimbursed for expenses incurred in carrying on the business of the Legislature is a part of organization and preparation, rather than a part of the business itself. We, therefore, find no error with the trial court’s treatment of the second issue.

Ill

The third argument advanced by the appellants is that S.J.R. 13 is in violation of Article XVII, § 281 and Amendment 92 of the Alabama Constitution, in that it increases the compensation of a public official during his term in office. This necessarily raises the question of whether any portion of the increased expense allowances represents compensation for services rendered as opposed to reimbursement for expenses incurred.

The trial court in initially dealing with this question alluded to case authority in companion jurisdictions which dealt with the fine distinction between compensation and expense. In applying cases to the present facts, the trial court held:

“There is case law from other jurisdictions which turns on the technical distinction made between salary (compensation) and expenses. Manning v. Sims, 213 S.W.2d 577 (Sp.Ct.APP.Ky.1948), held that the allowance of reasonable expenses incurred in the discharge of official duties of an office is neither salary, compensation, nor emoluments of office within the purview of a constitutional prohibition against a change in compensation during the term. Peay v. Noien [157 Tenn. 222] 7 S.W.2d 815 (Tenn.1928), is also directly applicable to the instant decision. The court in Peay did not sustain the expense increase, but it held that the appropriation there was too large to be considered an increase in expenses; rather, the court said that the appropriation in gross was large enough to suggest that the increase in expense was a disguised increase in compensation. The court quoted a treatise on the subject:
‘Where the compensation is fixed by constitution, or where there is a [constitutional] provision prohibiting such change during the term of an incumbent, no change of salary during such term is permissible.... [S]uch limitations do not affect provisions for expenses, except that use may not be made of a power to increase an allowance for expenses so as to increase compensation received by an officer.’
29 Cyc. 1427-1429. Plaintiffs in the present case, did not question the reasonableness of the increase in expenses; however, the Court, based on the testimony of Dr. Bird, finds that the increases are reasonable. The Tennessee court in Peay held that legislators can be reimbursed only for expenses incurred in the discharge of official duties-not for personal expenses. The Alabama Amendment, however, allows expenses ‘incurred in the performance of [his] duties’; this phrase necessarily includes the expenses of both meals and lodging.”

We agree with the trial court’s treatment of the issue, but note that there is disagreement among jurisdictions concerning the appropriate treatment of this issue. See generally 81A C.J.S. States § 47 (1977). The appellants cite Gallarno v. Long, 214 Iowa 805, 243 N.W. 719 (Iowa 1932), and Opinion of the Justices, 159 Me. 77, 190 A.2d 910 (1963), which hold that expense allowances awarded to legislators for the payment of personal expenses (i. e., expenses incurred for rooms, meals, laundry, communications with their homes, etc.) are compensation within the meaning of their respective state constitutions; however, there is equally compelling authority to the contrary in such cases as In re Interrogatories by the Colorado State Senate, Forty-Sixth General Assembly, 168 Colo. 558, 452 P.2d 391 (1969), Collins v. Riley, 24 Cal.2d 912, 153 P.2d 169 (1944), and State v. Yelle, 7 Wash.2d 443, 110 P.2d 162 (1941).

We are persuaded that under the applicable provisions of the Alabama Constitution the payment of legislative expense allowances has never been considered any part of the personal compensation awarded to Alabama legislators; rather, these expense allowances exist as a means of reimbursing legislators for expenditures incurred in being called away from home in service to the state and in carrying on their official responsibilities. On the basis of this conclusion, we hold that the enactment of S.J.R. 13 does not violate Section 281 or Amendment 92 by increasing a legislator’s compensation during his term in office.

IV

The final issue we address is based upon the question of- whether there exists any legislative appropriation of monies to pay for the increased expense allowances contemplated under S.J.R. 13. This consideration is significant in view of the provisions of Article IV, § 72 of the Alabama Constitution, which provides, in part, that “[n]o money shall be paid out of the treasury except upon appropriations made by law ....” Appellants contend that since no law was enacted to meet the specific purposes of S.J.R. 13, any disbursement of public monies in payment of the increased expense allowances is unauthorized and unconstitutional.

Appellants erroneously conclude that there was no law passed authorizing the payment of the expense allowances provided for by S.J.R. 13. Section 71 of the Constitution provides, in part, that “[t]he general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the executive, legislative, and judicial departments of the state ....” The Legislature, during the 1978 Regular Session passed a general appropriation bill which, in its title expressed this purpose:

“To make appropriations for the ordinary expenses of the executive, legislative and judicial departments of the State ... for the fiscal year beginning October 1, 1978.”

Act No. 597, Regular Session, 1978, Acts of Alabama, Vol. II, p. 723.

Looking to the provisions of Act No. 597, we conclude that there existed a sufficient appropriation to encompass the increased expense allowances provided for by S.J.R. 13. As noted in Section 71 of Article IV of the Constitution, the general appropriation bill serves the purpose of “embracing” all the ordinary expenses of the Legislature. This necessarily included increased expenses provided for by legislative action, and all other expenses which, although unexpected, were necessary. We, therefore, cannot agree with the appellants in their assertions that a law had to be enacted to meet the specific purpose of S.J.R. 13. Sufficient appropriation had already been made.

For the reasons enumerated above, we find no error in the trial court’s treatment of this case. The judgment of the lower court is, therefore, due to be affirmed.

AFFIRMED.

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

FAULKNER, EMBRY and BEATTY, JJ., dissent.

BLOODWORTH, J., not sitting.

BEATTY, Justice

(dissenting):

I dissent in Part II of the majority opinion which classifies the increase in the legislator’s expense allowance as a matter of the organization of the legislature. In my opinion the views expressed by Mr. Justice Lawson, dissenting, in In re Opinion of the Justices, 248 Ala. 590, 29 So.2d 10 (1947) are the proper ones and those which should guide the legislature in encompassing the restrictive and presumptive provisions of Amendment 57. Mr. Justice Lawson, at 248 Ala. 595, 29 So.2d 14, wrote:

The restrictive provision is that at this organizational session the Legislature shall transact no business. The permissive features of the amendment are the exceptions to the restrictive provision. It appears clear to me that if the Constitution says that the Legislature shall transact no business except certain types specifically enumerated that it is without power to transact any other type of business. ...

He further argued at 248 Ala. 597, 29 So.2d 16:

Can it reasonably be argued that since the constitutional amendment does not say that an appropriation bill cannot be passed at this organizational session that such a bill could be passed?

I would, of course, answer the above question in the negative. For these reasons which are obviously as cogent today as they were when originally written, I respectfully dissent.

FAULKNER, J., concurs.

      . The cases were commenced independently in January of 1979, in separate counties. Appellants Hart and Brown commenced their action on January 24, 1979, in the Circuit Court of Tuscaloosa County. On February 20, 1979, the Tuscaloosa Circuit Court transferred this action to Montgomery County where it was consolidated with the action commenced by appellant Plott. This consolidation was prompted by the fact that the cases bore substantially the same issues and allegations, both challenging the constitutionality of S.J.R. 13. After the trial court upheld the validity of the resolution, an appeal was perfected to this Court.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    James T. STRICKLAND v. JUDICIAL INQUIRY COMMISSION.
    79-161.
    Supreme Court of Alabama.
    Aug. 8, 1980.
    Rehearing Denied Sept. 26, 1980.
    Joseph J. Boswell and Alton R. Brown, Jr. of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Ed Carnes, Asst. Atty. Gen., for appellee.
   MADDOX, Justice.

Judge Strickland appeals from the judgment of the Court of the Judiciary. The opinion and judgment of the Court of the Judiciary are set out as follows:

“The Court finds that Judge James T. Strickland knowingly claimed and was paid for travel expenses to which he was not entitled.

“While Circuit Judge, and after attending official meetings of Alabama Law Enforcement Planning Administration boards and committees, James T. Strickland intentionally submitted expense vouchers or expense statements which falsely represented that his method of travel to and from the meetings had been by private vehicle instead of government vehicle, when in fact he traveled by government vehicle, and he thereby obtained mileage expense payments to which he was not entitled. The meetings, expense vouchers or statements, and payments, averred separately and severally, are more particularly described as follows:

“An expense voucher dated October 15, 1975, for an October 8, 1975 meeting in Guntersville, involving $90.00 mileage expense payment.

“An expense statement dated September 29, 1977, for a September 27-28, 1977 meeting in Huntsville, involving $112.50 mileage expense payment.

“An expense statement dated May 12, 1978, for a May 9-10 meeting in Prattville, involving $58.50 mileage expense statement.

“An expense statement dated June 29, 1978, for a June 27-28, 1978 meeting in Dothan, involving $61.80 mileage expense payment.

“James T. Strickland, a circuit judge of the Thirteenth Judicial Circuit of Alabama, while serving in that capacity:

“1. Failed to observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, as required by Canon 1 of the Alabama Canons of Judicial Ethics.

“2. Failed to avoid impropriety and the appearance of impropriety in all his activities, as required by Canon 2 of the Alabama Canons of Judicial Ethics.

“3. Failed to respect and comply with the law, as required by Canon 2 of the Alabama Canons of Judicial Ethics.

“4. Failed to conduct himself at all times in a manner that promotes public confidence in the integrity of the judiciary, as required by Canon 2(A) of the Alabama Canons of Judicial Ethics.

“5. Failed to avoid conduct prejudicial to the administration of justice which brings the judicial office into disrepute, as required by Canon 2(B) of the Alabama Canons of Judicial Ethics.

“Under all of the facts and circumstances, the Court finds that a proper sanction in this matter is suspension of Judge Strickland from office as circuit judge for a period of six months without pay.

“It is, therefore, ORDERED, ADJUDGED and DECREED by the Court that Judge James T. Strickland knowingly committed the acts found above and he is hereby suspended from office as circuit judge, without pay, for a period of six months, said suspension without pay to commence this day.

“DONE this the 8th day of November, 1979.”

The appellant raises the following issues on appeal:

(1) Whether the court erred in denying Judge Strickland’s Rule 12(b)(6) motion to dismiss the complaint; (2) whether the court erred in denying Judge Strickland’s motion for judgment on the pleadings; (3) whether the court erred in denying Judge Strickland’s Rule 41(b) motions to dismiss; (4) whether the court erred in overruling Judge Strickland’s objection to the admissibility of his deposition as substantive evidence; and (5) whether the Judicial Inquiry Commission proved any of the allegations against Judge Strickland by clear and convincing evidence.

We have examined the record and the arguments and find no error in the judgment entered by the Court of the Judiciary; therefore, it is due to be affirmed.

AFFIRMED.

JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

TORBERT, C. J., and BLOODWORTH and FAULKNER, JJ., not sitting.


author: PER CURIAM.

text:
    Ralph HULCHER v. Larry TAUNTON, John Patterson State Technical College and the Board of Education for the State of Alabama.
    79-497.
    Supreme Court of Alabama.
    Sept. 26, 1980.

      James M. Edwards, Montgomery, for appellant. '
    Randall C. Morgan and Harry Cole, Charles S. Coody, Montgomery, for State Board of Ed.
   PER CURIAM.

The plaintiff, Ralph Hulcher, brought this action in the Circuit Court of Montgomery County on September 6,1979, alleging that he was improperly dismissed from his teaching position at John Patterson State Technical College.

Hulcher had been employed by the defendant, State Board of Education, since 1968. He began working at Southwest Technical College in Mobile, and in 1974 he was transferred under court order to Bishop State Junior College, also in Mobile. In September, 1976 Hulcher voluntarily transferred to John Patterson State Technical College in Montgomery and entered into an oral agreement to teach.

Hulcher was terminated from this position on September 30, 1979. He received notice of his termination on May 31, 1979. Hulcher then filed this action seeking an injunction, requesting reinstatement, asking that the non — renewal be declared void and praying that the court declare that he had achieved his continuing service status (tenure) because of his continuing service in excess of ten years.

After hearing the evidence ore tenus the circuit court entered judgment denying Hulcher any relief. We affirm.

In 1967 the Alabama State Board of Education, in which is vested the management and control of trade schools and junior colleges, passed a resolution which adopted the Alabama Teacher Tenure Law as the Board’s tenure policy for trade and technical schools. That resolution’s expressly stated intent was to give teachers in the State trade schools the same job security as other public school teachers and to do so under the same conditions and procedures used by the public schools.

The Alabama Teacher Tenure Law, Code of 1975, § 16-24-1 et seq., provides for system-wide tenure. Section 16-24-2(a) reads as follows:

Any teacher in the public schools who shall meet the following requirements shall attain continuing service status: Such teacher shall have served under contract as a teacher in the same county or city school system for three consecutive school years and shall thereafter be reemployed in such county or city school system the succeeding school year. [Emphasis added.]

In 1974 the Board passed another resolution which dealt with tenure at technical schools. This resolution stated that teachers at technical schools were entitled.to the same job security as other public school teachers, but it also clearly outlined the conditions and procedures to be used in the technical schools.

The threshold issue is whether the trial court erred in finding that there is no statewide system of technical/junior colleges headed by the Board of Education so that an instructor must remain in the same institution for the fourth consecutive year in order to acquire tenure.

Hulcher taught at Southwest Technical College from 1968-1974, which is clearly longer than the necessary period in which to attain tenure status. Tenure during this time necessarily would be decided pursuant to the Board’s 1967 resolution. The trial court, however, found that Hulcher’s employment in technical colleges other than Patterson could not be considered in establishing his tenure at Patterson since no statewide system existed. The trial court stated:

Prom the undisputed testimony, including that of Mr. Reitz of the State Board, who authored many of the regulations discussed above, the tenure policy applicable to the trade schools had never and was never intended to apply on a statewide basis and to acquire tenure an instructor had to remain in the same institution for the fourth consecutive year.

The evidence at trial was heard ore tenus. Thus there is a presumption of correctness in the trial court’s findings of fact which will not be disturbed on appeal unless they are palpably wrong or manifestly unjust. Searcy v. Cain, Ala., 355 So.2d 347 (1978).

Whether the State Board of Education operated the technical colleges in this state as one system is a question of fact; therefore, our review of this issue is that which applies in ore tenus cases.

Mr. Reitz had been employed by Post-Secondary Education Services of the Department of Education since 1972. At the trial he testified that he was familiar with the policies, rules, and regulations governing the technical schools and that he was not aware of any approach (by the Board) toward system-wide tenure. The plaintiff objected to Mr. Reitz’s testimony on the ground that he was not shown to be an expert and thus should not be permitted to give his opinion on whether or not the Board had established tenure on a statewide basis.

Without belaboring the evidence, it is sufficient to state that the record discloses significant educational experience and knowledge possessed by this witness which went far beyond the ken of the average layman. Under Alabama law, the competency of a witness to testify as an expert is a matter addressed to the discretion of the trial court and its decision will not be disturbed on appeal unless there is palpable abuse. Sharp v. Argo-Collier Truck Lines Corp., Ala., 356 So.2d 147 (1978). The trial court did not abuse its discretion in permitting Mr. Reitz to testify as an expert witness.

Reitz having been qualified as an expert, it was proper for the trial court to allow Reitz to testify concerning the administrative interpretation of the Board’s resolution as it applied to tenure. Interpretations of an act by the administrative agency charged with its enforcement, though not conclusive, are to be given great weight by the reviewing court. Employees’ Retirement System v. Oden, Ala., 369 So.2d 4 (1979). Since the office of Post-Secondary Services, in which Mr. Reitz served, developed the policies of the technical schools, monitored their budgets and served as the liaison between the various schools and the State Board, its interpretations of its resolution as applied to the tenure law are not only admissible evidence, but are to be given great weight by this Court.

Accordingly, there was ample evidence to support the trial court’s finding ore tenus that the technical colleges did not operate as one system for the purpose of tenure. Hence, the trial court’s decree was not palpably erroneous.

Hulcher also contends that he was not given proper notice of non-renewal at Patterson State Technical College. Thus, he claims, he was deemed reemployed for the fourth consecutive year at Patterson and received tenure.

The Board’s 1974 resolution provides in pertinent part that: (1) a teacher would be tenured if retained in the budget as a full-time regular instructor for the fourth consecutive year, (2) only years of employment from October 1 through September 30 would count toward eligibility in establishing tenure and, (3) the annual employment period of the teacher would be from October 1 through September 30, unless otherwise specified by written contract.

These provisions were reiterated by the State Board in its resolution of October 26, 1977, providing that non-tenured teachers would be notified on or before 120 days prior to the expiration of their contracts of their non — renewal for the next school year.

By regulations promulgated by the Board on May 8,1979, the same basic tenure provisions were restated with clarification on hearing provisions and definitions, and all pre-existing conflicting regulations or resolutions were repealed.

The plaintiff contends that because he was hired on approximately September 21, 1976, his contract should run from September 21 to September 20 of each year. But by the very terms of the 1974 resolution, however, his contract must run, for tenure purposes, from October 1 to September 30, unless otherwise specified by written contract. Here the plaintiff had no written contract of employment.

The plaintiff was notified by letter on May 31,1979 that his contract for the 1978-79 fiscal year (October 1-September 30) would not be renewed. This was more than 120 days prior to September 30. Thus, Patterson State Technical College followed the mandate of the regulation on notice to the letter. Since proper notice was given, the plaintiff was not deemed reemployed for the fourth year at Patterson and clearly did not obtain tenure status at that school.

Having found no error in the trial court’s actions on the issues raised, the judgment must be, and is, affirmed.

AFFIRMED.

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

      . This case was originally assigned to another justice of this Court. It has been reassigned to the writer, who has carefully listened to the tape recordings of oral argument.

      . In its pertinent part the 1967 resolution reads as follows:

        Tenure for Teachers in State Trade Schools On motion of Dr. Nettles, seconded by Mr. Dannelly, the resolution set forth below was unanimously adopted:
      WHEREAS, teachers in the State trade schools are not, by designation, included under the Alabama Teacher Tenure Law; and WHEREAS, such teachers have been by practice excluded; and
      WHEREAS, such teachers are entitled to such job security as others in public education have; and
      WHEREAS, the State Board of Education is empowered to issue rules and regulations for the administration of these schools provided such rules and regulations do not run contrary to State law;
      THEREFORE BE IT RESOLVED That the Alabama State Board of Education by this resolution does declare it as the intent of this Board that teachers in the State trade schools shall have the same job security as other public school teachers have and under the same conditions and procedures as contained in the Alabama Teacher Tenure Law.

      . The relevant portion of the Board’s 1974 resolution states:
      Any full-time, year-round instructional employee of a technical institute or college shall attain tenure provided:
      1.The instructional employee meets the “Minimum Professional Standards” for permanent employment in the position held; and
      2. The director or president has retained the employee in the budget as a full-time, regular instructor for the fourth consecutive year; and
      3. Only years consisting of employment from October 1 through September 30 shall count toward eligibility in establishing tenure.
      Any full-time, instructional employee in the state technical institutes and colleges whether on tenure or not shall be deemed reemployed for the next school year unless notified by July 1 that his contract will not be renewed for the upcoming employment period. The annual employment period shall be from October 1 through September 30 unless otherwise specified by written contract.


text:
    Regina ABERNATHY, a minor who sues by and through her father and next friend, Roy Abernathy v. COLBERT COUNTY HOSPITAL BOARD, a corporation, and Colbert County Hospital.
    78-617.
    Supreme Court of Alabama.
    Oct. 3, 1980.
    Oren R. Lewis, Jr., and Gary R. Sheehan of Lewis, Wilson, Lewis & Jones, Arlington, Va., and B. T. Gardner, Jr., of Stansell, Gardner & Stolsworth, Tuscumbia, for appellant.
    Bert P. Taylor of McDaniel, Hall, Parsons & Conerly, Birmingham, for appellees.
   PER CURIAM.

This is an appeal from an order denying plaintiff’s motion to vacate and set aside a pro-ami consent judgment. We reverse.

The infant-plaintiff, Regina Abernathy, was admitted to Colbert County Hospital suffering from mild dehydration and a common gastric virus. In order to counteract the dehydration, Regina was given intravenous fluids through a blood vessel in her left arm. During the night these fluids infiltrated into the surrounding tissues of her arm. A nurse noticed this condition and made a written statement of the condition in an “incident report.” She also reported the condition to the attending physician who told her to continue with the I.V. Soon thereafter Regina’s arm became gangrenous and required amputation.

The plaintiff’s parents then sought the advice of an attorney who in turn referred them to another attorney who specialized in the area of medical malpractice. Although he made four separate requests for the entire hospital record, he never received the nurse’s incident report.

Based upon the information he did receive and consultation with medical experts on the issue of potential liability, the attorney declined the case.

Regina’s parents then retained the attorney they had originally consulted. He filed suit through Regina’s father and next friend, Roy Abernathy, on the theory that the gangrene had been caused by the tape becoming twisted around Regina’s arm and not infiltration by the intravenous fluids.

Two counts were set forth in the complaint against the Hospital and Hospital Board: the first for negligent administration of medical treatment, and the second for breach of an implied contract by the hospital to provide proper medical care. This complaint was subsequently amended by dropping the tort count.

Based upon the hospital record received from the defendant, the plaintiff agreed to settle the case. The hospital’s attorney prepared the pro-ami consent judgment and forwarded it to plaintiff’s attorney for presentation to the court. This settlement provided that Regina was to receive $11,500 for the loss of her arm. The court entered judgment for this amount.

The validity of this consent judgment was challenged pursuant to Rule 60(b), ARCP, by a motion to vacate. A full hearing was held on this motion. The court entered the following order denying plaintiff’s motion:

ORDER ON PLAINTIFF’S MOTION TO VACATE AND TO SET ASIDE PRO-AMI CONSENT JUDGMENT
The above motion of plaintiff was heard by the Court on September 6,1978, and the parties with their respective attorneys having been present in Court; a duly appointed Guardian ad Litem having been appointed by the Court for plaintiff and appearing and representing plaintiff at said hearing; and the Court having taken evidence in this cause and taken this matter under advisement and the matter now being considered and fully understood and the Court not considering any collateral matters and only considering this matter on its merits, the Court is of the opinion that said motion should be overruled.
The Court is not convinced from the evidence to its reasonable satisfaction that any fraud, actual or constructive, was perpetrated on plaintiff, her next friend, her attorneys, or the Court, and finds that no such fraud was committed; that said “incident report” was not newly discovered evidence that could not have been discovered by reasonable diligence of counsel prior to entry of such judgment and so finds; that, in any event, defendants were cloaked in sovereign immunity on July 19, 1973, the date of the alleged injury, at the time of the filing of the initial complaint, on July 16, 1975, and at the time of said judgment on December 11,1975, under the state of the law existing in Alabama at such times, and now; and that the pro-ami consent judgment was in the best interest of the minor plaintiff.
******

Plaintiff contends that the pro-ami consent judgment is void since the settlement was summarily approved without a hearing.

This Court, in Tennessee Coal, Iron & Railroad Co. v. Hayes, 97 Ala. 201, 12 So. 98 (1892), considered the issue of whether a next friend has the right to compromise and settle a minor’s claim. There the Court stated:

* * * [The next friend] cannot release the cause of action, nor compromise it, nor submit it to an arbitration the result of which will bind the infant. And being without power to compromise the cause of action, and the court having the power and being charged with the duty of controlling the suit to the protection of the infant’s interest, an attempted compromise cannot have force and validity injected into it by his mere consent to a judgment for the amount he has assumed to agree to receive in settlement of the cause of action. His mere consent is nugatory. It is as if it were not and had never been. The court may, upon being advised of the facts, upon hearing the evidence, enter up a valid and binding judgment for the amount so attempted to be agreed upon, but this not because of the agreement at all-that should exert no influence-but because it appears from the evidence that the amount is just and fair, and a judgment therefor will be conservative of the minor’s interests. * * [Emphasis Added.]

97 Ala. at 209-210, 12 So. at 103.

That a hearing is required to determine whether a settlement is in the best interest of a minor is also set forth in 42 Am.Jur.2d Infants § 47 (1978), which states:

According to a number of cases, a judgment entered on a compromise of an infant’s claim is erroneous, and may be set aside where the court has made no examination or investigation of the facts to determine whether the compromise is for the best interests of the infant. Thus, it is a general rule that where a judgment is rendered for an infant in his action to recover damages for personal injuries, and there is no judicial investigation as to the merits of the claim, but the proceedings are merely formal for the purpose of carrying out a settlement or compromise of the action made without the consent of the court, even though the court acquiesces in the rendition of the judgment, relief may be had against the judgment.

The issue, therefore, is whether a hearing sufficient to meet the requirements for a valid pro-ami consent judgment was held.

The consent judgment does not contain a direct statement that a hearing had been held. However, it does reveal that the court was aware of the extent of Regina’s injury. Regina’s attorney testified that there was no hearing at the time of the settlement. He stated that there was a conference between the judge and himself, at which time the judge was informed of the agreement which Regina’s attorney and the hospital s attorney had worked out. He did not recall presenting any evidence to the judge. We find that this conference was not sufficient to meet the requirements of a hearing for a valid pro-ami consent judgment, and that the judgment should have been set aside. Such a hearing requires a more extensive examination of the facts to determine whether the settlement is in the best interest of the infant than appears to have occurred here. Therefore, the lower court’s judgment denying plaintiff’s Rule 60(b) motion is due to be reversed and the cause remanded. Our holding, however, is not to be construed as expressing an opinion on the merits of the minor’s claim.

REVERSED AND REMANDED.

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

TORBERT, C. J., concurs in the result.


author: SHORES, Justice.

text:
    MOUNT ROYAL TOWERS, INC., etc. v. The ALABAMA BOARD OF HEALTH et al.
    79-216.
    Supreme Court of Alabama.
    Oct. 3, 1980.

      William A. Jackson of Harrison, Jackson & Lee, Birmingham, for appellant.
    John R. Wible, Asst. Atty. Gen., for ap-pellees.
   SHORES, Justice.

In Fireman’s Fund American Insurance Co. v. Coleman [MS. August 8, 1980] ___ So.2d ___ (Ala.1980), we recently had occasion to discuss our views regarding substantive due process under the Constitution of Alabama. The instant case provides an opportunity to continue that discussion, this time in the economic context, rather than that of common-law rights.

This declaratory judgment action challenges the constitutionality of Alabama’s Certificate of Need Act, Act 82 (First Special Session 1977) (Code of Ala.1975, § 22-21-260, et seq.) and Act 79-577 (Regular Session 1979). The purpose of the Act is to “prevent the construction of unnecessary and inappropriate health care facilities through a system of mandatory reviews of new institutional health services . . ..” Act 82. It is challenged by a proposed health care facility which was denied a certificate of need.

Plaintiff/appellant Mount Royal Towers, Inc. (Mount Royal), is an Alabama not-for-profit corporation incorporated for the purpose of constructing and operating a continuing care facility for the elderly, consisting of a 260-unit apartment building with a 76-bed skilled nursing home. The project, which is situated in Jefferson County, is being financed entirely with private funds and does not contemplate admitting Medicare or Medicaid patients. In addition to challenging the statute’s constitutionality, Mount Royal contends that the statute’s provisions are inapplicable to its facility. This argument is based on the following facts:

On June 26, 1978, Mount Royal, then Art Rice, Jr., d/b/a Mount Royal Towers, submitted to the Department of Public Health an application for review and for an assur-anee of need under Section 1122 of the Social Security Act. Under existing state law at that time, there was no prohibition against construction of a medical facility if the assurance of need was denied. That determination related solely to federal reimbursement of capital expenditures, which Mount Royal was not seeking. The assurance of need was denied on June 21, 1979.

The original Certificate of Need Act was enacted in 1977 and provided that no new institutional health service should be commenced unless the provider first obtained a certificate of need from the State Board of Health. However, by its terms, the statute was not to take effect until receipt of formal notification of approval of the bill by the Secretary of the Department of HEW. This approval was never obtained. The Legislature subsequently enacted Act 79-577 (Regular Session 1979), effective July 30, 1979, which amended the previous statute in several regards to comply with federal regulations, and declared the law implemented as of its effective date, rather than as of approval by the Department of HEW. By July 30, 1979, appellant had already entered into a written construction contract for the construction of the project, obtained its building permit, and made its first payment to the contractor. Mount Royal contends that any application of Act 79-577 to its facility would be retrospective and is thus barred.

On June 12, 1979, Mount Royal filed this action for declaratory judgment. The cause was submitted to the trial judge on motion for summary judgment; judgment was entered for defendants. This appeal followed.

Mount Royal’s major constitutional challenge to the CON law is two-pronged: (1) It asserts that it is deprived of property and contract rights without due process of law in violation of Article I, §§ 6 and 22, and Article IV, § 95, Constitution of Alabama 1901; and (2) that the CON law constitutes a grant of special privilege to existing medical facilities in violation of Article I, § 22, Constitution of Alabama 1901. We are invited by Mount Royal to follow the lead of the Supreme Court of North Carolina, which invalidated that state’s CON statute on similar grounds in the much-criticized case of In the Matter of Certificate of Need for Aston Park Hospital, Inc., 282 N.C. 542, 193 S.E.2d 729 (1973). See, Note, “Hospital Regulation After Aston Park: Substantive Due Process in North Carolina,” 52 N.C.L.Rev. 763 (1974).

CON laws absolutely deny entry into a field of economic enterprise according to a criterion (public need) that is beyond the control of any individual. In determining the validity of such a regulation, we are necessarily asked to provide content to the phrase “due process of law.” Such an inquiry involves a dual balancing, between the frequently competing interests of society and the individual, and between the power of the legislature to pass laws and that of the courts to review them.

The evolution of due process doctrine in Alabama as elsewhere has been influenced by decisions of the United States Supreme Court in interpreting the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution. Accordingly, any discussion of substantive due process in the economic context in Alabama must be set against the backdrop of the federal opinions.

To restate what is familiar: From 1897 through the 1930’s, the Supreme Court of the United States was active in striking down state legislation on substantive due process grounds. The due process clauses of the United States Constitution were used to invalidate minimum wage laws, statutory standardizations of bread loaf weight, laws limiting employment in bakeries to ten hours a day and a host of other state social and economic regulations. A. E. Dick Howard, “State Courts and Constitutional Rights in the Day of the Burger Court,” 62 Va.L.Rev. 873, 879-80 (1976). With the 1930’s, however, came a reversal of policy occasioned in part by the pressing need to utilize state police power to deal with catastrophic economic conditions. Beginning in 1936, the Court eschewed overruling economic regulations which it found merely unwise or unfair, taking the view that it did not “sit as a superlegislature” to weigh the wisdom of state legislation, nor to choose between competing economic theories:

“If the lawmaking body within its sphere of government concludes that the conditions or practices in an industry make unrestricted competition an inadequate safeguard of the consumer’s interests, produce waste harmful to the public, threaten ultimately to cut off the supply of a commodity needed by the public, or portend the destruction of the industry itself, appropriate statutes passed in an honest effort to correct the threatened consequences may not be set aside because the regulation adopted fixes prices reasonably deemed by the Legislature to be fair to those engaged in the industry and to the consuming public. And this is especially so where, as here, the economic maladjustment is one of price, which threatens harm to the producer at one end of the series and the consumer at the other. The Constitution does not secure to any one liberty to conduct his business in such fashion as to inflict injury upon the public at large, or upon any substantial group of the people. Price control, like any other form of regulation, is unconstitutional only if arbitrary, discriminatory, or demonstrably irrelevant to the policy the Legislature is free to adopt, and hence an unnecessary and unwarranted interference with individual liberty-

Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 516, 78 L.Ed. 940 (1934), discussing price control regulation of the milk industry.

This “hands-off” approach to judicial review of economic regulation was followed by many state courts, including Alabama’s. In Franklin v. State, 232 Ala. 637, 169 So. 295 (1936), this Court was faced with a challenge to Alabama’s Milk Control Board Act, Alabama’s counterpart of the New York statute which was upheld by the United-States Supreme Court in Nebbia, supra. The act, which was passed in response to what were perceived to be emergency conditions in the milk industry, designated natural marketing areas within the state, and set minimum and maximum prices for the sale of milk within those areas. After noting that Nebbia foreclosed a constitutional attack on the statute on federal grounds, the Alabama Court discussed the state due process issue:

“[T]he mudsill question to be determined is whether or not the enactment was a reasonable exercise of the police power of the state; or, in other words, whether the relief intended to be given is of a character appropriate to the existing emergency, and reasonably intended to protect against, or to alleviate, the calamitous conditions prevailing or threatened.
The limits of a state’s police power have never been fixed, nor its boundaries defined. It is not subject to any definite limitations or boundaries, but it represents the state’s great reserve power, and is at all times coextensive with the necessities of the case and the safeguard of the public interest. State v. Kartus, 230 Ala. 352, 162 So. 533, 101 A.L.R. 1336, 1337; Camfield v. United States, 167 U.S. 518, 524, 17 S.Ct. 864, 42 L.Ed. 260.” (Emphasis added.)

Franklin v. State, supra at 298.

It then concluded that the milk industry was of vital importance to the public, and so “affected with a public interest,” that it was necessarily subject to the exercise of the police power, and to regulation and control. Ibid, at 299. The statute was upheld. This Court has never abandoned this view. The U. S. Court of Appeals’ opinion that the act was unconstitutional was based upon other grounds. Dairymen, Inc. v. Alabama Dairy Commission, 584 F.2d 707 (5 Cir., 1978).

This “affected with the public interest” standard soon came to be used to justify a more interventionist stance on the part of the Alabama Supreme Court, however. If the Court found that a particular industry sought to be regulated was “affected with a public interest,” it continued to defer all but absolutely to the legislature’s determination of the wisdom of the regulation. Simonetti, Inc. v. State, 272 Ala. 398, 132 So.2d 252 (1961), affirming the validity of the Unfair Cigarettes Sales Act; McCrory v. Wood, 277 Ala. 426, 171 So.2d 241 (1965), finding the practice of optometry affected with the public interest and subject to regulation. If, however, the Court determined that the industry or practice regulated was not affected with the public interest, it exercised a more exacting scrutiny of the regulation and its reasonableness. In City of Mobile v. Rouse, 233 Ala. 622, 173 So. 266 (1937), for example, a price-fixing ordinance regulating laundries and barbers was struck down. Although the declared purpose of the regulation was to combat a “state and national emergency productive of widespread unemployment and disorganization of trade which burdens commerce and affects the public welfare,” Ibid, at 266, the Court held that “personal service cannot become affected ‘with public interest’ unless the service rendered is official in character, or is rendered in connection with a business ‘affected with public interest’ or ‘devoted to a public purpose.’ ” Ibid, at 268. The regulation was struck down as violative of “the right of an individual engaged in an inherently lawful occupation to fix the price for which he will render personal service [which] is a part of the liberty reserved to him against governmental encroachment, protected by the Constitutions, both State and Federal.” (Citations omitted.) Ibid. at 267.

More recently, this Court has explicitly recognized that the “affected with a public interest” standard articulated in Franklin v. State, supra, is more restrictive than the “arbitrary or capricious” standard set forth in Nebbia, supra. In Estell v. City of Birmingham, 51 Ala.App. 462, 286 So.2d 866, aff’d 286 So.2d 872 (1973), an “anti-scalping” ordinance, by which the City of Birmingham regulated the sale of tickets to the annual Alabama-Auburn football game, was struck down in language reminiscent of pre-1936:

"It is our opinion that the ordinances in question in the case at bar, even though ostensibly attempting to protect the public interest, in fact transcend the limits of the police power, and constitute an arbitrary interference with private business by imposing unusual and unnecessary restriction upon a lawful occupation.”

Ibid, at 870.

The Court of Criminal Appeals acknowledged that “the Alabama Supreme Court did not adopt in its entirety the Nebbia doctrine in its holding in Franklin, supra but adhered to a more narrow standard; namely ‘affectation with a public interest’ to the extent of finding the dairy industry virtually a public utility and thus amenable to statutory regulation.” Ibid, at 869-870.

In these cases, as in those discussed in Fireman’s Fund, supra, which involved § 13, Constitution of Alabama 1901, the Court engages in an independent assessment of the benefits to be provided by a given statute. The justifications for this scrutiny are several.

Alabama is not alone among the states in exercising a more rigorous judicial scrutiny of state economic regulations. The survival of substantive due process in the state courts has been a subject of much interest to commentators of late. A. E. Dick Howard, “State Courts and Constitutional Rights in the Day of the Burger Court,” supra, remarks that “A number of state courts ... prefer a more searching inquiry into the justification for state regulation of economic activity.” Alabama’s “affected with public interest” standard is specifically noted as an example of this type of inquiry. Ibid, at 884. See, also, Linde, “Without ‘Due Process,’ Unconstitutional Law in Oregon,” 49 Or.L.Rev. 125 (1970); Struve, “The Less-Restrictive-Alternative Principle and Economic Due Process,” 80 Harv.L.Rev. 1463 (1967). Several commentators have suggested that the trend towards the development of independent approaches to substantive due process in the states is a positive one. John C. Hetherington, “State Economic Regulation and Substantive Due Process of Law,” 53 N.W.U.L.Rev. (1958), contends that:

“There are several reasons why state courts may be in a better position to review local economic legislation than the Supreme Court. State courts, since their precedents are not of national authority, may better adapt their decisions to local economic conditions and needs.... And where an industry is of basic importance to the economy of a state or territory, extraordinary regulations may be necessary and proper. Local variations in economic conditions thus may justify varying local standards of economic due process, whereas local conditions can rarely or never justify different standards under the first amendment. Hence in the latter field, control by a national judiciary is essential, while in the former, it may interfere with the development of local law to meet local needs.
“[T]he problem of abuse of the police power ... is real and important. The courts of the states, in their efforts to strike a balance between the economic freedom of the individual and the power of government, may well cause state constitutional law ‘to become of dominant importance,’ and in so doing make a significant contribution to the growth of American law.”

Ibid, at 250-251.

In response to the criticism that judicial invalidation of legislation is antimajoritari-an, Hetherington points out that economic interest groups are often able to procure passage of legislation which is in their own, rather than the public interest: “Judicial invalidation of such legislation may be technically anti-democratic, but it can hardly be called frustration of the popular will in any meaningful sense. Such judicial action may serve to focus public attention on pressure group activities, and legislation which is struck down may not be reenacted.” Ibid. at 249.

Finally, heightened scrutiny of legislation which infringes on individual property rights is entirely consonant with the mandate of our state constitution, which contains numerous guarantees of personal liberties, including those relied upon by appellants in the instant case. This Court has ever maintained its vigilance on behalf of individuals encroached upon by governmental regulation. This vigilance does not imply a preference by this Court for one economic system or theory over another, but a recognition that our constitution imposes limits upon the power of the legislature to impair the exercise of individual rights.

This said, we must now admit that an examination of our substantive due process cases reveals inconsistencies which we are at a loss to reconcile. Our “affected with public interest” test has produced strikingly different results in similar circumstances. Cases applying the test have found that, while the sale of cigarettes is so affected with the public interest as to justify regulation and price-setting, Simonetti, Inc. v. State, supra, the sale of gasoline is not. Alabama Independent Service Station Association v. McDowell, 242 Ala. 424, 6 So.2d 502 (1942).

Milk may be regulated, Franklin, supra, but barbers and laundries may not, Rouse v. City of Mobile, supra, nor may ticket scalping. In distinguishing between sales of milk and sales of football tickets, the Court said only that “the vast difference between the ways in which public entertainment and milk affect the public is not arguable.” 286 So.2d at 874. It is evident that the test is conclusory: Once an industry has been found to be affected with the public interest, a regulation concerning it will be sustained; a finding that it is not affected with the public interest will, as a practical matter, result in the invalidation of legislation attempting to regulate it. The weakness of this test is that it does not force careful scrutiny of the challenged law, nor does it require an explicit enunciation of the Court’s reasoning.

We hold that, where legislation affects protected economic interests or liberties, it must be tested against the public purpose sought to be served, and there must be a legitimate bona fide relationship between a permissible public purpose and legislation passed to further that end. Or, stated differently, there must be in fact a demonstrable public need to be balanced against protected interests impaired by legislation, and the balance struck between individual rights and the public welfare must be reasonable and fair. Factors which may be taken into account in this assessment are the degree of the burden which the legislation imposes, the importance of the right infringed upon, and the gravity of the conditions with which the legislation attempts to deal. This is not a departure from the rule followed in earlier cases, but merely a rearticulation of the test. Franklin itself, which established the affected with public interest test, defined the issue in determining the validity of economic regulation attacked upon constitutional grounds to be “whether the relief intended to be given is of a character appropriate to the existing emergency, and reasonably intended to protect against, or to alleviate, the calamitous conditions prevailing or threatened.” 169 So. at 298.

We turn now to the application of this test to Alabama’s CON law. We find no constitutional infirmity therein. The provision of health care services is of unquestionable public importance. Extensive regulation of the medical profession and hospitals has universally been upheld. Hetherington, supra, at p. 229. Although restriction of entry into a field of economic endeavor is a severe infringement on individual contract and property rights, there is no indication that elimination of surplus hospital beds in a community through licensing and CON laws is not logically calculated to reduce medical costs caused by duplication of services. “Bed capacity is a factor in the distribution of medical resources which in turn determines the quality, quantity, and cost of medical care.” “Hospital Regulation After Aston Park,” supra, at 782. “The hospital industry is characterized by huge fixed costs devoted to property that cannot be converted to other uses. Where oversupply occurs, substantial waste stands to take place.” Id. 784.

The judgment of the trial court is affirmed.

AFFIRMED.

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

BEATTY, J., concurs in the result.

ALMON, J., dissents.


author: BRADLEY, Judge.

text:
    Charles O. DeRAMUS v. Albert J. WINFIELD, Acting Commissioner of Insurance, Department of Insurance, State of Alabama.
    Civ. 2264.
    Court of Civil Appeals of Alabama.
    Sept. 17, 1980.

      Frederick T. Enslen, Jr., of Argo & En-slen, Montgomery, for appellant.
    Thomas T. Gallion, III, of Gallion & Gal-lion, Montgomery, for appellee.
   BRADLEY, Judge.

Charles 0. DeRamus appeals from a judgment of the Montgomery Circuit Court upholding an order of the Acting State Insurance Commissioner revoking his insurance salesman’s license.

The evidence adduced before a hearing officer of the State Insurance Department showed that on September 13, 1978 Charles 0. DeRamus called upon Osie and Bertie Byrd to try to sell them a health disability insurance policy from National Security Life. The Byrds had an existing policy with Old Southern Life Insurance Company. A comparison was made by Mr. DeRa-mus of the two policies and the Byrds filled out an application and signed statements to the effect that they had not been induced to drop an existing policy. A check in the amount of $514.00 was also given to DeRa-mus.

On October 2, 1978 the actual policies were delivered by Henry Hugley, DeRa-mus’s general agent and employer.

The Byrds did not drop their policy with Old Southern Life and instead wrote to National Security Life requesting that their $514.00 premium be returned. Mr. Hugley, the general agent, replied in a letter on November 2, 1978 that the premium would not be returned.

The Byrds filed a complaint against De-Ramus alleging that he had violated § 27-8-16 of the 1975 Code of Alabama by misrepresenting terms of a health insurance policy written by National Security Life Insurance Company. The complaint also charged that DeRamus had induced or attempted to induce Mr. and Mrs. Byrd to drop their present policy with Old Southern Life Insurance Company and replace it with National Security Life. These violations occurred on or about September 13, 1978. A hearing was scheduled before the State Department of Insurance on May 19, 1979 but was re-scheduled for June 13,1979. DeRa-mus received notice of both hearing dates.

The hearing was held before W. J. Harrison, hearing officer for the Insurance Department, and an order was issued on June 15, 1979 revoking DeRamus’s license to sell insurance in Alabama.

On July 9, 1979 DeRamus filed an appeal with the circuit court and on February 22, 1980 the petition was heard. On March 12, 1980 the court affirmed the Insurance Department’s order. A timely appeal was thereafter filed with this court.

The dispositive issue here is whether the evidence supports the order of the Insurance Commissioner revoking DeRamus’s license.

DeRamus was charged by the Insurance Department with violating § 27-8-16(8), Code of Alabama 1975 as follows:

The commissioner may, after notice and hearing as provided in section 27-8-17, refuse to renew or continue or may suspend or revoke a license for any cause for which he could have refused to issue the license had such cause then existed and been known to the commissioner or if he finds that the licensee has:
(8) Made, issued or caused to be made or issued any statement misrepresenting or making incomplete comparisons regarding the terms or conditions of any insurance or annuity contract legally issued by any insurer for the purpose of inducing, or attempting to induce, the owner of such contract to forfeit, cancel or surrender such contract or allow it to lapse for the purpose of replacing such contract with another;

Upon completion of the hearing, the following findings were made by the hearing officer:

1) Charles 0. DeRamus did, by making incomplete comparisons, misrepresenting and inducing, or attempting to induce the insureds, actually cause them to drop an existing hospital plan in full benefit and to purchase a new hospital plan with a one year waiting period.

Based on these findings, the hearing officer ordered DeRamus’s license revoked.

The evidence is without dispute that the Byrds did not drop or terminate their insurance policy with Old Southern Life Insurance Company. Consequently, the finding of the hearing officer that the Byrds were actually caused to terminate an existing health insurance policy in which they had full benefits in order to purchase a health policy with a one year waiting period from DeRamus is without basis in the evidence.

In the absence of evidence to support the findings of fact, the revocation cannot stand. The judgment of the circuit court is reversed.

Although not dispositive, one other issue raised on appeal needs to be addressed in view of the possibility of further hearings in this matter. That issue concerns DeRa-mus’s argument that he was not furnished counsel at the department hearing or, at the least, advised that he could have counsel present with him at the hearing, all of which deprived him of his constitutional rights, i. e., amendments six and fourteen of the United States Constitution.

Section 27-2-30(c), Code of Alabama 1975, provides in part as follows:

(c) The commissioner shall allow any party to the hearing to appear in person and by counsel to be present during the giving of all evidence, to have a reasonable opportunity to inspect all documentary and other evidence, to examine and cross-examine witnesses, to present evidence in support of his interest and to have subpoenas issued by the commissioner to compel attendance of witnesses and production of evidence in his behalf.

It is clear that the legislature has provided that a party to a hearing before the Insurance Commissioner or his agent is entitled to be represented by counsel, but it did not require the Commissioner to specifically inform a party of his right to counsel, nor to appoint counsel to represent him.

Mr. DeRamus was a licensed insurance salesman and he was represented at the hearing by his employer, Mr. Henry Hugley, who is a general insurance agent. Certainly it is reasonable to conclude that both Mr. DeRamus and Mr. Hugley were aware of the laws and regulations governing the activities of insurance agents licensed by the State Insurance Department.

License revocation proceedings conducted by the Insurance Commissioner are civil in nature and do not require the appointment of counsel nor the advice that employed counsel may be used in order to satisfy sixth amendment rights as guaranteed by the fourteenth amendment to the United States Constitution. Woodham v. Williams, Fla.App., 207 So.2d 320 (1968). Consequently, we conclude that no error was committed by the failure of the Insurance Commissioner or his agent to inform DeRamus that he was entitled to be represented by legal counsel at the revocation hearing.

For the error above noted, the judgment of the circuit court is reversed.

REVERSED AND REMANDED.

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


author: WRIGHT, Presiding Judge.

text:
    Hugh HESTER d/b/a Antique Furniture Reproductions et al. v. Joe H. RIDINGS.
    Civ. 2314.
    Court of Civil Appeals of Alabama.
    Sept. 17, 1980.

      H. Neil Taylor, Russellville, for appellants.
    Luke E. Alexander of Guin, Bouldin, Porch, Maddox & Alexander, Russellville, for appellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case.

The trial court, sitting without a jury, awarded plaintiff benefits for temporary total disability and ten percent permanent partial disability. The court additionally found that these recoverable amounts should be doubled pursuant to § 25-5-8(e), Code of Alabama (1975). The defendant appeals from the judgment. We affirm.

The defendant first contends that the evidence at trial was insufficient to support a finding of ten percent permanent partial disability. In a workmen’s compensation case we do not review the weight or preponderance of the evidence but concern ourselves only with the existence of legal evidence to support the trial court’s findings. Fairfax Manufacturing Co. v. Bragg, 342 So.2d 17 (Ala.Civ.App.1977); Defense Ordinance Corp. v. England, 52 Ala.App. 565, 295 So.2d 419 (1974). The evidence relevant to our determination of this issue reveals the following:

Plaintiff suffered a broken left femur (large upper leg bone) when a forklift he was riding overturned. Surgery was required. A heavy metal plate, some eight to ten inches in length was attached to the broken bone by eight metal screws around the fracture site. The plaintiff suffered severe pain in and around the area where the plate was installed. He was referred to several doctors in an attempt to determine the cause of and to arrest the severe pain. The plate was removed after eight months; the plaintiff stayed on crutches for about ten months; and the visits to these doctors continued for some fourteen months. The testimony of two of the doctors was received in evidence. One physician, Dr. Palmer, testified that plaintiff still had a disability upon discharge from his care although it was “very small.” Another, Dr. Rose, testified as to his final examination, some fourteen months after the injury, in the following exchange:

Q: Okay could you give us a percentage if any of bodily injury or impairment on that January 2, ’79 visit?
A: I have to sort of qualify anything I say because again there was little physical findings to base a percentage of disability on. Joe continued to have pain which he considered severe enough to keep him from doing his usual work. I don’t think anyone who has seen Joe has doubted the fact he has pain although pain is a subjective kind of thing we all believe he does have pain. His pain is real and probably does interfere with his functioning. If I had to put a percentage I would say probably it would be much less than 10% maybe 5% or less mainly because I think there are probably a few things he might do that would aggravate his pain and I think he would have to exclude those jobs or that part of a job ... that might exacerbate his pain, a lot of standing or something like that.

The plaintiff also testified, stating that the pain had persisted and that he still walked with a slight limp and was unable to perform the same type of activities as prior to the injury.

As can be seen from all the above which was presented at trial, there was more than sufficient legal evidence to support the findings of the trial court as to permanent partial disability. This court has previously held that the determination of the proper percentage of permanent partial disability rests with the trial court. Jones v. City of Huntsville, 55 Ala.App. 439, 316 So.2d 689 (1975). The trial judge has the opportunity to observe the demeanor of the witnesses, including the injured claimant, in the courtroom. Expert medical opinion as to the extent and permanency of disability is not conclusive upon the judge. Carroll Construction Co., Inc. v. Hutcheson, 347 So.2d 527 (Ala.Civ.App.1977). We cannot say that the evidence here does not support the trial court’s finding of ten percent permanent partial disability. No error exists in this regard.

The defendant next challenges the trial court’s award of double compensation pursuant to § 25-5-8(e). Defendant claims this section is unconstitutional and violative of Ala. Const, art. 1, §§ 6 and 10 and the due process clause of the fourteenth amendment to the United States Constitution.

Section 25-5-8(e), as pertinent, provides the following:

Any employer required to secure the payment of compensation under this section who fails to secure such compensation shall be liable for two times the amount of compensation which would have otherwise been payable for injury or death to an employee.

Defendant’s primary contention is that such a double compensation penalty deprives him of his property in violation of due process. He fails to cite any authority. This provision has not been previously tested on due process grounds. However, many similar penalties imposed by our statutes have withstood due process attacks. 4A Ala.Dig., Constitutional Law, Key No. 303. In Smith v. Flynn, 275 Ala. 392, 155 So.2d 497 (1963), our supreme court upheld a statute which imposed a ten percent-of-value-of-stock penalty upon a corporate officer refusing inspection of corporate records to a shareholder against a similar attack. In German Alliance Insurance Co. v. Hale, 219 U.S. 307, 31 S.Ct. 246, 55 L.Ed. 229 (1911), the United States Supreme Court upheld an Alabama statute providing that any insurance company which was a member of a tariff association which fixes rates should pay to the insured a penalty of twenty — five percent of actual damages in addition to the actual damages. Penalties imposed for failure to comply with tax laws are common and have survived attacks on their constitutionality consistently. 18 Ala.Dig., Taxation, Key Nos. 37.19 and 836-840.

Each of these statutes is analogous to that here. The penalty was designed to promote compliance with our workmen’s compensation law just as other penalties are designed to promote compliance with other laws. Compensation laws were enacted to make more certain the relief available to the employee who comes under its influence. Alabama By-Products Co. v. Landgraff, 32 Ala.App. 343, 27 So.2d 209 (1946). These laws are a form of regulation by the state. It is within the limits of permissible regulation, in aid of a system of compulsory compensation, to require the employer either to carry workmen’s compensation insurance or to furnish satisfactory proof of his financial ability to pay compensation when due. Ward & Gow v. Krinsky, 259 U.S. 503, 42 S.Ct. 529, 66 L.Ed. 1033 (1922). The penalty provided in § 25-5-8(e) is permissible in that it promotes compliance with a valid legislative objective.

In determining the validity of any statute we presume the act to be valid unless we are convinced beyond a reasonable doubt that it is unconstitutional. City of Dothan v. Lucas, 47 Ala.App. 336, 254 So.2d 341 (1971). The presumption applies here. The defendant has failed to show us wherein the invalidity lies. The penalty is constitutionally sound.

We should comment that the defendant failed to serve the attorney general with a copy of his brief as required by Rule 44, ARAP. For this reason we could have pretermitted the constitutional question from our consideration. We chose, however, to consider the defendant’s argument rather than to delay final judgment on appeal. Neither party was prejudiced in this respect.

Plaintiff has submitted an error in the judgment below in his brief. He states that the amount of damages was computed improperly by the trial court. We are asked to correct the alleged error on this appeal. The proper way for the plaintiff to raise this issue was by cross-appeal. Rule 28, ARAP. The question of computation of damages is not properly before us on this appeal.

We find that the trial court committed no reversible error. The judgment is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


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    Willard M. BRIGGS, Jr. v. Ricky G. WOODFIN and Sherry B. Woodfin.
    Civ. 1962.
    Court of Civil Appeals of Alabama.
    Sept. 24, 1980.

      Carl E. Chamblee, Birmingham, for appellant.
    B. Boozer Downs, Jr., of Davies, Williams & Wallace, Birmingham, for appellees.
   WRIGHT, Presiding Judge.

The defendant-builder Briggs appeals from a judgment awarding damages of $5,000 to plaintiffs for breach of contract.

In May 1978 defendant Briggs agreed to build and sell, and plaintiffs, Mr. and Mrs. Woodfin, agreed to buy certain real estate with improvements. There was a written contract of sale upon which addenda were handwritten by each party.

The lot on which the house was situated sloped very steeply upwards at the rear. A dirt bank was located only seven feet away from the house wall. This bank was some fifteen feet in height. The trial court found that the defendant, in reply to plaintiffs’ inquiry about plans for the steep rear of the lot, stated prior to execution of the contract that the lot would be left wooded and that some kind of retaining wall would be constructed. The evidence also shows that prior to execution plaintiffs asked the real estate agent for defendant’s broker if the retaining wall should be included in the written contract. The agent told plaintiffs that she was sure defendant considered the wall as landscaping yet to be done.

The contract was executed May 11, 1978, and the sale was to be closed by July 10. In June an impasse arose between the parties due to plaintiffs’ exceeding the agreed amounts for carpet and light fixture allowances. A meeting was held July 6. The parties executed a written agreement resolving the allowances impasse. Adjustment in the purchase price at closing was made and the agent agreed to contribute the price of the carpet. The retaining wall was not mentioned in this agreement.

On July 14, 1978, four days after the original date set for closing, plaintiffs filed a complaint seeking specific performance of the contract. The mortgage loan commitment obtained by plaintiffs had already been extended to July 24. Plaintiffs claimed that if the contract was not performed by that date, they would be caused to pay a greater amount of money over the life of the loan or a greater amount of money to obtain a new loan.

About August 1 defendant informed plaintiffs that the house was ready for inspection and closing. The plaintiffs’ inspection revealed that the appliances were from a different manufacturer than was selected; that bathroom vinyl, attic insulation and the thermostat for the heating and air conditioning units had not been installed; that cabinets had been stained instead of painted; that some of the light fixtures were not those selected and that no retaining wall had been built for the dirt bank at the rear of the house.

The plaintiffs immediately filed the first of four amendments to their complaint. The amendment sought abatement of the purchase price for the defendant’s breach and incidental damages. The other amendments filed within the next five months sought reformation of the contract, damages for breach of an implied warranty of habitability and fitness or abatement of the purchase price for the cost of performing this warranty, and declaratory relief as to the rights of the plaintiffs under the contract.

Defendant filed answers to the original complaint and to all amendments. Defendant also filed motions to require plaintiffs to elect remedies and for summary judgment. The motions were denied.

A trial commenced before the court, sitting without a jury, on February 7, 1979. On March 8, 1979, the court rendered its final judgment. Defendant filed a motion to amend, alter or vacate, which was denied. Appeal was properly taken to this court.

Appellant bases assignments of error of four theories. He argues first that there was no valid contract entered into. The issue is not a proper one to be considered on this appeal. The appellant’s answer to the original complaint admits the allegation that a contract was entered into by the parties. Furthermore, it is clear that a defense not asserted in the trial court cannot be raised for the first time on appeal. Whitman v. Knapp, 285 Ala. 57, 228 So.2d 814 (1969); Miller v. Brown-Fikes Ford, Inc., 370 So.2d 1052 (Ala.Civ.App. 1979). Appellant contends that although he did not raise the defense in his pleadings, the issue was raised in the trial court and thus is a proper one to be considered on appeal. Appellant’s view of the law in this regard is correct. Vester J. Thompson, Jr., Inc. v. Citmoco Services, Inc., 371 So.2d 35 (Ala.Civ.App.1977). However, the application of this rule of law to the facts and testimony adduced at trial is improper. A careful reading of the record reveals insufficient support for the appellant’s contention that the validity of the contract was raised as an issue at trial. The testimony to which appellant refers merely shows an attempt to refute certain elements of the contract and does not address its validity. The issue of the contract’s validity was not before the trial court. That court may not be put in error for failure to rule on a matter which was not presented to it or decided by it. Brown v. Brown, 374 So.2d 332 (Ala.Civ.App.1979), cert. denied, 374 So.2d 334 (Ala.1979); McGugin v. McGugin, 357 So.2d 347 (Ala.Civ.App.1978).

Appellant next argues that the trial court erred in basing its judgment for breach of the contract on the failure to build a retaining wall. To support his argument appellant relies upon the basic contracts rule that all prior negotiations are merged into the written contract which purports to cover the entire transaction. Guilford v. Spartan Food Systems, Inc., 372 So.2d 7 (Ala.1979). An exception to this rule is where an ambiguity exists on the face of the written instrument. In that case the court may look to the prior negotiations or agreement to discern the true intent of the parties.

The contract in question contained several handwritten provisions. Two such provisions were added by the parties, not in the presence of one another. These provisions, which refer to the landscaping of the lot are notably inconsistent with one another and appear squarely on the face of the instrument. Whether or not an ambiguity exists in the written contract is to be determined by the trial court. When the terms of a contract are doubtful or the language is ambiguous, pre-contract negotiations and the conduct of parties may be looked to by the trier of facts as an aid in interpreting the contract.

The court heard extensive testimony by several witnesses as to prior negotiations concerning the retaining wall without objection from the appellant. There was testimony on the subject of the wall from the sales agent of the real estate broker representing appellant in the sale. The appellees were told by the agent that appellant “considered such wall as part of the landscaping yet to be done.” Appellees’ expert witness testified that the wall was necessary to prevent a potentially dangerous condition and that the use of such a wall was not uncommon in the area. All such testimony was admitted without any objection to preclude it under the parol evidence rule. The appellant himself testified that he had built similar walls on similar dirt banks in the area. The trial court stated in its findings that any testimony of the appellant that he never agreed to put in the wall “is rejected by the court.”

The theory of the trial court in allowing all such evidence seems to have been that an ambiguity existed in the written contract. We conclude that the court acted properly in allowing testimony as to the prior negotiations concerning the retaining wall. The court could correctly base its findings of a breach of contract on the failure of appellant to build the wall.

Appellant claims the court erred in allowing recovery based on an implied warranty of fitness and habitability in construction of the house where the contract of sale was not closed.

This court in Cochran v. Keeton, 47 Ala.App. 194, 252 So.2d 307 (1970), affirmed, 287 Ala. 439, 252 So.2d 313 (1971), recognized for the first time that an implied warranty of fitness and habitability exists in the sale by a builder-vendor of a newly constructed house. Our support for this principle holds firm. We find it unnecessary, in view of the judgment of the trial court, to decide whether an implied warranty arises in an unexecuted contract to sell. Though the record is incomplete in many respects, it is evident that the case was tried upon the theory of breach of contract. The trial court obviously found a breach of the express contract. Such breach was a proper ground upon which to award damages to appellees. The trial court’s language in its judgment regarding an implied warranty appears incidental to its findings of breach. We consider it surplusage. We review upon the theory of the trial below. 2 Ala.Dig., Appeal and Error, Key No. 171(1).

Appellant argues that the trial court erred in the measure of damages awarded. Appellees, in their brief, cite the well-established rule that damages for breach by the vendor under an executory contract for the sale of real estate is the difference between the contract price and the actual value of the land at the time of breach. They contend they have lost the benefit of buying a house worth $45,000 for the price of $39,900, a difference of $5,100. This is often stated as “loss of the bargain.” That is the proper measure of damages in this case. B & M Homes, Inc. v. Hogan, 376 So.2d 667 (Ala.1979). However, there was no evidence presented that the fair market value of the house, if completed as agreed, would be $45,000. The figure of $45,000 appears only in a post-judgment motion. That is not evidence upon which the court could have based an award of damages.

Damages may not be determined by mere speculation or conjecture. American Life Insurance Co. v. Shell, 265 Ala. 306, 90 So.2d 719 (1956). This court in Continental Volkswagen, Inc. v. Soutullo, 54 Ala.App. 410, 309 So.2d 119 (1975) held:

The burden is on the plaintiff in an action for damages to furnish proof from which the jury can determine the amount of damages, if any, to which plaintiff is entitled and if plaintiff fails in this the jury cannot supply the omission by speculation.

We must observe that most of the record presented for review was never settled as required by Rule 10(d), ARAP, and as such is incomplete. However, viewing all that we have before us, and finding no basis for the $5,000 award, it is our opinion that the damages awarded were erroneous and the judgment must be reversed.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


text:
    H. L. RABURN & COMPANY v. MASSEY-DRAUGHON BUSINESS COLLEGE, a Corporation et al.
    Civ. 2265.
    Court of Civil Appeals of Alabama.
    Sept. 24, 1980.
    James L. Shores, Birmingham, for appellant.
    Julian D. Butler of Butler & Potter, Huntsville, and David R. Boyd of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appellees.
   WRIGHT, Presiding Judge.

Plaintiff H. L. Raburn & Company filed this action in Montgomery County Circuit Court against the defendants Massey-Drau-ghon Business College and Carlos B. Harbi-son to recover $5,906.06, alleged to be due for work and labor done. Plaintiff had previously filed a separate action in Jefferson County Circuit Court against Educational Consultants, Inc. and Carlos B. Har-bison to recover $49,344.99 for work and labor done.

On November 15, 1979, Massey-Drau-ghon and Carlos Harbison filed a motion to dismiss in Montgomery County Circuit Court based on the pendency of the prior action. Upon determining that the money claimed in the suit before it was part of the $49,344.99 claimed in the prior suit, the trial court granted defendants’ motion pursuant to § 6-5-440, Code of Alabama (1975). Plaintiff appeals.

Section 6-5-440 as pertinent states:

No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party.... [A]nd the pendency of the former is a good defense, to the latter if commenced at different times.

In order for the defense of the pendency of a prior action to be sufficient, the parties to the two suits must be the same. Redstone Land & Development Company v. Boatwright, 44 Ala.App. 363, 209 So.2d 221 (1968). This defense bears a strong analogy to a defense based on res judicata, and a fair test of its sufficiency is whether a final judgment in the prior suit would be conclusive between the parties and operate as a bar to the second. Smith v. Charles E. Jay & Co., Inc., 292 Ala. 513, 296 So.2d 885 (1974); Bell v. Jones, 223 Ala. 497, 136 So. 826 (1931); Kaplan v. Coleman, et al., 180 Ala. 267, 60 So. 885 (1912).

A valid judgment in the prior suit would operate as a bar to the second if the parties, or those in privity with them, are identical in both suits and the same cause of action is involved in both suits. Betty Abel, as Administratrix of the Estate of Irene Dickie Waters, Deceased v. Donald Waters, 373 So.2d 1125 (Ala.Civ.App.1979).

In this case the cause of action in the first suit was the same as that in the second. The money claimed in the second suit is part of the amount claimed in the first.

The question for this court is whether the parties in the two suits are identical so that a judgment in the first would be conclusive as to the parties in the second.

Harbison is a party to both suits and a judgment in the first suit would be conclusive as to the plaintiff’s right to recover against him. The dismissal as to Harbison was therefore proper.

However, a judgment in the first suit would not, necessarily be conclusive as to Massey-Draughon. Massey-Draughon is not a party to the first suit. Neither is it apparent from this record that Massey-Draughon is in privity with any of the parties in that suit.

Defendants have argued in brief that to allow the second suit to continue creates the possibility of double recovery or inconsistent verdicts, and is against the policy of the Alabama Rules of Civil Procedure. We would point out that the Rules have provided remedies for a party in the position of the defendants in the first suit. See Rule 21; Rule 12(b)(7) and Rule 14, ARCP. The possibility of double recovery or inconsistent verdicts may also be removed by the simple device of a continuance in the second suit until the conclusion of the first. Smith v. Charles E. Jay & Co., Inc., supra.

The defense of a prior action pending is not available to defendant Massey-Draughon. The dismissal of this action as to the defendant Carlos B. Harbison is affirmed. The dismissal as to the defendant Massey-Draughon Business College, Inc., is reversed and remanded.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


text:
    THE FLORIDA BAR. Re PETITION TO AMEND FLORIDA BAR INTEGRATION RULE, ARTICLE IX, SECTION 1 (BUDGET COMMITTEE).
    No. 59277.
    Supreme Court of Florida.
    Sept. 25, 1980.
    Leonard H. Gilbert, President of The Florida Bar, Tampa, N. David Korones, Chairman, Integration Rule and Bylaws Committee, Clearwater, and James P. Holl-away, Deputy Staff Counsel, The Florida Bar, Tallahassee, for petitioner.
   PER CURIAM.

The Florida Bar has proposed-an amendment to Florida Bar Integration Rule, article IX, Section 1. We grant the Bar’s petition and Florida Bar Integration Rule, article IX, Section 1 is amended to read as follows:

Article IX
FISCAL CONTROL
1. Budget Committee. The Budget Committee shall consist of nine members having staggered terms. The initial Budget Committee, appointed pursuant to this article, shall have three members appointed for three-year terms, three members appointed for two-year terms, and three members appointed for one-year terms; all appointed by the president-elect with the approval of the Board of Governors. Thereafter, the president-elect, with the approval of the Board of Governors, shall appoint three members to three-year terms and shall name a chairman-elect. The chairman-elect shall become chairman when the president-elect becomes president. The Budget Committee shall prepare a proposed annual budget for The Florida Bar to be submitted to the Board of Governors.
This amendment is effective immediately.
It is so ordered.

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