author: EMBRY, Justice.

text:
    Jeanean C. TAYLOR v. M.E. CALVERT, et al.
    82-271.
    Supreme Court of Alabama.
    Aug. 26, 1983.

      Stephen L. Skipper of Skipper & Davis, Cullman, and George R. DiGiorgio of Jaffe & Burton, Birmingham, for appellant.
    Thomas A. Smith, Jr., Cullman, for appel-lees.
   EMBRY, Justice.

This is an appeal by Jeanean C. Taylor from the following judgment:

“JUDGMENT
“This is an action on the complaint by the co-administrators of the Estate of Ellis B. Calvert, Deceased, against the original defendant, Jeanean C. Taylor, to have a deed to 133 acres of land declared null and void. The defendant, Jeanean C. Taylor, the niece of the deceased, answered and by amended counterclaim asked for damages for improvements made on the property.
“The complaint was amended by the plaintiffs to bring in all of the heirs of the deceased, the brothers and sisters of the deceased and they have been aligned as party defendants, except M.E. Calvert is a plaintiff and one of the co-administrators.
“The court took testimony on September 20,1982 where the parties were represented by counsel, the Honorable Thomas A. Smith, Jr., for the plaintiffs, and the Honorable Steve Skipper of Skipper and Davis for the defendant, Miss Taylor. At the conclusion of the testimony, the attorneys agreed to furnish and have now furnished the Court with excellent briefs and the Court now considers all of the evidence along with its notes before making this decision. The Court also reserved the right to set the counterclaim of defendant Taylor down for hearing at some later time should the need arise.
“The evidence was that the deceased lived on the property in question, which was the old homestead of the Calverts, either in a house trailer or in the home and that he was deceased on December 19, 1980 as shown by plaintiff’s Exhibit 9, the certificate of death.
“The deed in question is plaintiff’s Exhibit 1 and the evidence was that the deed was prepared, signed by Mr. Calvert and executed by acknowledgment by the Honorable James R. Knight, the attorney for Mr. Calvert, in his office and it is dated January 22, 1975. The evidence by Mr. Knight was that Mr. Calvert was a single man at the time of the preparation and signing of the deed, that after it was executed the deed was delivered to Miss Taylor in the presence of Calvert and Knight and was then returned by her to Mr. Knight who placed the deed in Mr. Calvert’s file held by Mr. Knight as his attorney. Mr. Knight testified that he returned the deed to Miss Taylor on January 9, 1981. Mr. Knight did not recite that there were any words passed between Mr. Calvert, Miss Taylor or himself at the time of the execution of the deed, handing to Miss Taylor, and handing back to Mr. Knight of the deed. Mr. Knight further testified that plaintiff’s Exhibits 3, 4, 5, 7 and 8 were probably prepared by someone in his office and that he gave a title opinion for the bank on plaintiff’s Exhibits 7 and 8 and that Exhibits 7 and 8 had been satisfied at the time of trial, he being an attorney representing the bank.
“Plaintiff’s Exhibit 7 is a copy of a mortgage dated September 8, 1975, from the deceased to the First State Bank of Cull-man on the 133 acres involved.
“Plaintiffs Exhibit 2 is a lease from the deceased to King Coal Company on 80 acres of the property involved here dated June 15, 1976.
“Plaintiff’s Exhibit 8 is a mortgage from the deceased to the First State Bank of Cullman on the property involved here and dated August 18, 1977.
“Plaintiffs Exhibit 6 is a warranty deed from the deceased to Elizabeth Quinn and husband, Wallace Quinn, dated the 14th day of December, 1978, to eight (8) acres of the property involved here.
“The plaintiff ask the Court to consider case No. CV 79-5005, an action pending in this Court by the deceased against Elizabeth Quinn and Wallace Quinn trying to recover the eight (8) acres originally conveyed to the Quinns by the Deceased for nonpayment on the indebtedness to him, and the Court has reviewed that file and takes judicial notice that it is of record in this Court.
“Plaintiffs Exhibit 5 is a deed from the deceased to C.W. Taylor and wife, Melba Taylor, concerning part of the property involved here.
“Plaintiffs Exhibit 4 is another deed from Ellis Calvert the deceased, to C.W. Taylor and wife, Melba Taylor, concerning sixteen and one-half (16½) acres of the property involved here.
“Plaintiffs Exhibit 3 is a deed from the deceased to C.W. Taylor dated October 10, 1980, concerning a portion of the property involved here.
“Plaintiffs Exhibit 10 is an affidavit to claim exemptions by Ellis B. and V. Calvert from the Revenue Commissioner’s office of Cullman County.
“Plaintiff’s Exhibit 11 is a tax receipt dated December 11,1980, where the property taxes had been paid on the property involved here, one hundred, twelve (12) acres of it, to Ellis B. and V. Calvert.
“The question for the Court to decide here was there delivery of the deed by the deceased to Miss Taylor in Mr. Knight’s office under the circumstances and with all of the evidence that we have here.
“The plaintiff in brief cited the Court the cases of Duncan vs. Johnson, ([Ala.] 1976) 338 So.2d 1243; Pittman vs. Pittman, (1946) 247 Ala. 458, 25 So.2d 26; and Strange vs. King, (1934) 228 Ala. 511, 154 So. 115.
“The defendant cited the Court the case of Lewis vs. Watson, (1892) 98 Ala. 479, 13 So.2d 570.
“The Court can eliminate from this case any escrow involved because there is no evidence that the deed was left with the attorney for the deceased for a condition to occur before the deed was delivered to the grantee or her agent as cited in Ashford vs. Prewitt, 102 Ala. 264, [14 So. 663] and a long list of cases cited under that authority.
“We are directed in Alford vs. Henderson, (1939) 237 Ala. 27, 185 So. 368:
“ ‘A deed is a muniment of title or a law made instrument for the passing of title to real estate, and it must be delivered before the death of the grantor.’
“We are directed by our case law that delivery of a deed is a matter of intention of the grantor, Fiscus vs. Young, (1942) 243 Ala. 39, 8 So.2d 514.

“This Court has worried about its equitable right to attack this deed and the intent of the grantor herein when the deed was made at the office of his attorney. Our search ended with the case of Frisbie vs. McCarty, (1831) 1 Stewart and Porter 55, wherein Justices Crenshaw and Collier of the Supreme Court of Alabama did superlative research on the question involved here and delineated many cases of the law of England plus the cases on point that had been decided in this country at that time. That case turns on whether Mr. White gave his daughter, Mrs. Frisbie, a slave by a deed that was delivered, the Court holding that there was never a delivery of the deed to the daughter. It appears that Justice Collier holds that this action will lie in equity. Justice Crenshaw holds for the first time to my knowledge in an Alabama Court:

“ ‘So long as the donor retained possession of the deed, without ever having delivered it, either to the donee, if capable of receiving it, or to some person for his use and benefit, or into the proper office to be recorded, the gift is imperfect and the deed is void. It should be such a delivery as would deprive the donor of the power of revocation; for until then he reserves to himself the locus poeniten-tiae.’

“In addition to the cases cited by the plaintiff, the court cites also Alford vs. Henderson, (1939) 237 Ala. 27, 185 So. 368 and Alexander vs. Alexander, (1882) 71 Ala. 295, along with Johnson vs. Bridges, [Ala.] (1976) 333 So.2d 813.

“The Court holds from the evidence, and is reasonably satisfied therefrom, that the grantor did not deliver the deed in question to the grantee but retained the locus poeni-tentiae, which was not a mere custody but the right to withdraw from an incompleted transaction in this case. This is further evidenced by the lack of testimony concerning what occurred at the purported delivery in the office of the grantor’s- attorney, that the grantor gave warranty deeds to portions of the land, that the grantor mortgaged the property twice, the grantor sold mineral rights to eighty (80) acres of the property, and even filed suit against the Quinns concerning title to eight (8) acres of the property involved.

“IT IS THEREFORE ORDERED AND ADJUDGED THAT:

“1. The defendant’s Motion for Directed Verdict is denied.

“2. The Court holds from the evidence, and is reasonably satisfied from all the evidence, that the deed was not delivered by the grantor, or at his direction, to the grantee.

“3. Judgment is entered for the plaintiffs and against all the defendants and the deed to the described one hundred, thirty-three (133) acres will be cancelled of record and held void by the Clerk of this Court in the Office of the Probate Judge Book 359, Page 415, to the described property:

“The West half of the Southwest Quarter of Section 9, Township 12 South, Range 5 West, containing 80 acres, more or less. Also, the SE Quarter of the SE Quarter, less 5 acres in the SW corner, and less 12 acres off of the West side of the East half of the SE Quarter, being all that part lying and being West of Mill’s Branch and the NE Quarter of the SE Quarter, less 10 acres more or less, more particularly described as follows, to-wit: Beginning where the branch intersects the SW Corner of the SE Quarter of the NE Quarter of Section 8, Township 12, Range 5 West, thence following the meanderings of said branch in a southerly direction to the forks of the branch; thence following the right prong of said branch in a northeasterly direction to where same intersects the south boundary line of the SE Quarter of the NE Quarter of said section, Township and Range; thence in a westerly direction along the South boundary line of said SE Quarter of the NE Quarter to the point of beginning, all of the last described tract being in Section 8, Township 12, Range 5 West and containing 53 acres, more or less, in the East half of the SE Quarter of Section 8, Township 12 South, Range 5 West.

“The above described lands containing in the aggregate 133 acres, more or less.

“4. The counterclaim of Jeanean C. Taylor is still pending and may be set for trial on motion of either párty.

“5. The Court retains jurisdiction of this action on the counterclaim and to set costs when it is finally disposed.”

The facts are detailed in the judgment and we shall comment upon some of those in this opinion.

The parties agree that the issues are:

1. Whether the burden of proof is on the party claiming lack of delivery of a deed following proof of the proper execution and the manual transfer of possession from the grantor to the grantee of the deed.

2. Whether the trial court’s ruling that the grantor retained the right to withdraw delivery of the deed in question is contrary to the great weight of the evidence.

3. Whether statements made by grantee to a third party while transferring possession of the deed are admissa-ble.

Issue number two is the dispositive one. We have read all the testimony and viewed all exhibits of record and after doing so would make the following comments. The finding by the trial court that “Mr. Knight who placed the deed in Mr. Calvert’s file held by Mr. Knight as his attorney” is based upon permissible inferences to be drawn from the testimony of Knight rather than the actual language used. The finding that “Mr. Knight did not recite that there were any words passed between Mr. Calvert, Miss Taylor or himself at the time of the execution of the deed, handing to Miss Taylor, and handing back to Mr. Knight of the deed” is accurate but does not reflect that there were no recitations because objections were sustained to questions seeking to elicit those recitations.

It is worthy of note that Miss Taylor did not testify in this case. Had she seen fit to do so, clearly questions about what was said by the parties to the transaction, as well as that stated to Knight, would not be objectionable. It follows that if the rulings sustaining objections to questions put to Knight about what one or the other of the parties stated to him were erroneous, then it would be erroi* without injury.

For the purposes of this decision we assume the burden of proof is on the party claiming lack of delivery under the facts of this case. The evidence of record is amply sufficient to support the trial court’s conclusion that the burden was met. The judgment is in nowise contrary to the weight of the evidence and correct principles of law were applied to the substantial weight of the evidence favoring appellees.

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

AFFIRMED.

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


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Lessie ROBERTS and Faye Roberts v. A.E. MITCHELL, et al.
    82-287.
    Supreme Court of Alabama.
    Aug. 26, 1983.

      George C. Simpson, Lineville, for appellants.
    John E. Rochester of Thompson & Rochester, Ashland, for appellees.
   BEATTY, Justice.

This case concerns a coterminous boundary line dispute. The disputed strip of land is roughly 400 feet long and varies in width up to approximately 12 feet. The trial court, after hearing evidence presented ore tenus, found that the plaintiffs, Lessie Roberts and Faye Roberts, had not met their burden of proving adverse possession of the disputed strip of land and entered a judgment quieting title in the defendant, A.E. Mitchell. The plaintiffs appealed. We reverse and remand.

Issues presented for review include whether the plaintiffs provided evidence to the trial court to establish that they had acquired title to the property in question through adverse possession. Secondly, if plaintiffs did acquire title, whether the defendant divested them of this title through his adverse possession of the disputed land following his purchase of the adjoining property.

It was stipulated by the parties that the plaintiffs’ claim of ownership to the property in dispute was solely an adverse possession claim. The plaintiffs do not have deed or record title to the property. Further, it was undisputed that the defendant does have record title to the property.

The plaintiffs introduced evidence at the trial that James Edward McCain, the father of Lessie Roberts, bought a parcel of land in or about 1917. Lessie Roberts also testified that soon after , her father acquired the property, he dug a ditch across the property to establish the northwest boundary line which joined the defendant’s south boundary. Further evidence established that this land was cultivated by Mr. McCain and by other family members until approximately 1944. Plaintiffs contend that a gravel driveway constructed by the defendant some years after he purchased the property covered the previous location of the ditch. The plaintiffs claim that their property, due to the open continuous use by the family, extends up to, but not including, what is now the gravel driveway.

The defendant, on the other hand, asserts that the boundary line is several feet south of the gravel driveway, on property claimed by the plaintiffs. Mitchell purchased a parcel of real property on March 8,1958, adjacent to the Robertses’ land. Mr. Mitchell later filed the deed which conveyed the property to him in the probate office. At the time Mr. Mitchell acquired the property, he discussed the location of the boundary line with the previous owner, Mrs. Aby Marlar. According to Mrs. Marlar, the location of Mr. Mitchell’s property line was 10 to 12 feet south of the driveway.

The boundary line was not questioned until 1981 when the defendant, Mitchell, cut a tree on the disputed strip of land. Mr. Mitchell’s action prompted the plaintiffs to have the property surveyed. The surveyor determined the correct boundary line to be south of the gravel driveway in the location which the previous owner had indicated to Mr. Mitchell. This location also corresponded to the property description in Mr. Mitchell’s deed. Following the survey, the plaintiffs instituted this action to obtain the strip of land by adverse possession.

The first issue is whether plaintiffs proved adverse possession of the land. The rule of adverse possession in Alabama is that a coterminous landowner may acquire title by holding actual possession of a disputed strip under a claim of right openly and continuously for a period of ten years. Rutland v. Georgia Kraft Company, 387 So.2d 836, 837 (Ala.1980). Cultivation of land is a sufficient possessory act to meet the requirements of adverse possession. Cambron v. Kirkland, 287 Ala. 531, 253 So.2d 180 (1971). The evidence presented by the plaintiffs, which was not disputed by the defendant, showed that after the ditch was dug by Lessie Roberts’s father to establish the boundary line, the land was cultivated up to the ditch for a period of approximately 27 years.

Portions of Lessie Roberts’s testimony are set out below:

“Q. Back during the time that you were living on the property, do you recall where the boundaries were on the property?
“A. Yes, sure, I knowed when my daddy dug the ditch....
“Q. So you saw your daddy dig the ditch?
“A. Sure, I was there with him.
“Q. When was it — well, let’s figure it this way; how old are you at the present time?
“A. I am seventy-nine and I will be eighty next summer.
“Q. And you were how old when your daddy dug the ditch?
“A. I was fourteen.”

The following testimony by Naomi Burroughs, sister of Lessie Roberts, established the use of the property:

“Q. How long have you been familiar with the property?
“A. Sixty-five years.
“Q. Tell us what you remember about tending that land.
“A. We had potatoes on that land and we had peanuts on that land and I remember picking up the potatoes and picking up the peanuts.
“Q. I want you to tell me where on that land you all did that?
“A. On the land I am talking about is there by the house, where Faye and Lessie’s house is now and I can remember when we tended there, before that house was built there.
“Q. How far behind that house did you tend?
“A. Not far, because the ditch was there behind the house; we farmed up to the ditch and the ditch was behind the trees.
“Q. Back to the cultivation, you said, that your father and your family cultivated this property; I believe you testified that it was cultivated in there around where the house was; is that correct?
“A. It was cultivated there, yes; all my life it was cultivated.... ”

The testimony of George Lowell McCain, brother of Lessie Roberts, shows that the farming continued until at least 1944:

“Q. What was your activities, when we stopped you were discussing your farming, where did this farming take place on this particular property there?
“A. From the edge of the yard, the Roberts’ yard, to the pines West of the house and then up the ditch, from the road to the ditch.
“Q. When you say you farmed it, what do you mean; what did you do out there on it?
“A. Plowed, planted it.
“Q. All right, if you are fifty-four now and you left there when you were sixteen, wouldn’t the year have been 1944 when you left?
“A. Yes, that is about right.”

The standard of proof was quoted in the trial court’s order:

‘“In an adverse possession case, the burden of proof rests upon the party who asserts it, ... to prove that the possession is actual, hostile, open, notorious, exclusive and continuous.... This is a heavy burden requiring substantial evidence. Every presumption is in favor of the holder of the legal title.... [Citations omitted.]’ Casey v. McIntosh, 361 So.2d 1040 (1978).”

The trial court applied the Casey standard to the plaintiffs’ adverse possession claim and found that they failed to meet their burden of proof, stating:

“The sporadic unclearly defined use of the property in question by the Plaintiffs, considered with the Defendant’s testimony, does not allow the court to find for the Plaintiffs. Their good faith belief that they owned to the gravel road is legally insufficient.”

Since the plaintiffs’ evidence of adverse possession prior to 1944 was uncontradicted, it is obvious that the trial court considered only the recent use of the land in reaching its conclusion. The trial court was not at liberty to wholly ignore the undisputed testimony of plaintiff’s witnesses. See Stinson v. Acme Propane Gas Go., 391 So.2d 659, 661 (1980). Once the plaintiffs proved title to the land by undisputed evidence of adverse possession, thereafter, mere sporadic use on their part would be insufficient to divest them of title to the property.

Under the facts established by the plaintiffs, the title to the disputed strip of property vested in the plaintiffs’ predecessors prior to the defendant’s purchase of his property in 1958. In Milstead v. Devine, 254 Ala. 442, 444, 48 So.2d 530 (1950), this Court stated:

“The exclusive possession of the lands by the plaintiffs and their predecessors in title for the prescriptive period is regarded in law as having vested a perfect title and equivalent in legal effect to one acquired by a formal grant or conveyance, and could only be divested in the manner in which any title may be divested, such as by a conveyance or by actual adverse possession.... ”

According to Milstead, after the title vested in plaintiffs’ predecessors, the title to the property could only be divested by a conveyance or by adverse possession.

The second issue in this case is whether Mr. Mitchell acquired the property by adverse possession. Once the plaintiffs proved title to the land by adverse possession, they received the benefit of the presumptions in favor of legal titleholders. Nothing short of actual, hostile, open, notorious and exclusive use by the defendant would vest title to the property in him. Although there was contradictory evidence concerning the use of the property subsequent to Mitchell’s acquisition of the property in 1958, the defendant did not prove that he had exclusive use of the property. Furthermore, Mr. Mitchell’s testimony was inconsistent with á claim of right. The following excerpt from the trial transcript concerns hedges which the plaintiff, Faye Roberts, planted on the disputed land several years prior to the trial. Mr. Mitchell testified:

“Q. Did you see anybody plant them?
“A. Yes, sir.
“Q. Who planted them?
“A. Faye, she set them out.
“Q. Did you mention anything to her about it?
“A. No, sir, I didn’t say nothing to her.
“Q. You didn’t mention that she was on your property?
“A. No, sir.”

The above testimony shows that the defendant did not have exclusive use of the property, and his inaction concerning the hedges goes to prove that there was no hostile, open, and notorious possession by Mitchell.

The plaintiffs’ evidence supported their claim for adverse possession, and the defendant did not prove that he had adversely possessed the property subsequently so as to divest the plaintiffs’ title. Therefore, the judgment in favor of the defendant was clearly erroneous.

The judgment is due to be, and it hereby is, reversed, and the cause is remanded.

REVERSED AND REMANDED.

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


author: FAULKNER, Justice.

text:
    Ules GUINN v. The CITY OF EUFAULA, etc., et al
    82-319.
    Supreme Court of Alabama.
    Aug. 26, 1983.
    Russell L. Irby, Eufaula, for appellant. J. Pelham Ferrell of Ferrell, Davenport & McKoon, Phenix City, and William V. Ne-ville, Jr., Eufaula, for appellees.
   FAULKNER, Justice.

This is an appeal from a summary judgment in favor of the City of Eufaula, Mayor George Little, and Police Chief Gene Moore upholding the mayor’s dismissal of Lieutenant Ules Guinn from the Eufaula police force. We affirm.

On February 23,1981, Lt. Guinn, an officer with six years service with the police force, received the following letter from Chief Moore:

“It has been reported to me that on two recent occasions you have spent considerable time, during your official shift, at a private residence for personal reasons. In addition, you were in the middle of a domestic problem, during your shift, on Friday night, February 20,1981, which resulted in calls not only to the Police Department, but to Councilman Walker and me in the middle of the night. It is obvious that your domestic life and problems are interfering with your duties as a supervisor.
“Service, and particularly as a supervisor, on the Eufaula Police Force demands the highest standards. Taking time from your official supervisory and patrol duties impairs your ability as a supervisor and as a member of the Eufaula Police Force. For these actions you are reprimanded.
“I am scheduling you for 8 days annual leave effective immediately. I strongly suggest that you make a diligent effort to clear up your domestic affairs so that they will not affect your ability to do your job. A copy of this reprimand will be placed in your personnel file, and any further dereliction of duties will result in more severe action. I expect you to perform in the future with the high standards which we require of every Eufaula Police Officer.”

Guinn went on annual leave for 8 days and upon its completion attempted to return to work. When he reported, the Chief told him to take another 8 days’ leave. He took it. When Guinn reported for work on March 12, the Mayor greeted him with this letter of termination:

“This is to notify you that effective immediately, you have been terminated from your position as a Lieutenant with the City of Eufaula, Alabama. This action is taken after complaints were received and an investigation of the complaints, in which statements were taken. After a review of these statements, the action taken is deemed necessary, since the investigation and statements clearly point out that your actions while on duty with the Police Department has greatly affected your ability to adequately perform your job as a supervisor, in that professional judgment on your part as a supervisor for the City of Eufaula shows a dereliction of duty on your part, which is not in the best interest of the City of Eufaula or the employees assigned to work under your command.
“You have a right to request a hearing in this matter before the Personnel Advisory Panel. This request must be made within seven calendar days of the service of this notice of Disciplinary Termination: The request must be in writing to the Panel and delivered to the Personnel Office at City Hall. At the hearing, you will have a right to appear in your own behalf, you will have a right to call witnesses, you will have a right to be represented by an attorney of your choice, you will have a right to cross-examine witnesses testifying against you, and you will have the right to refuse to testify against yourself, but you may be cross-examined as to any matter relevant to the hearing, if you take the stand voluntarily. You will be entitled to testify under oath and you or your attorney may argue your case.
“A failure to request a hearing will be construed as a waiver of your rights to such a hearing. If you do not wish a hearing on this matter, please sign the enclosed form and return to us immediately.
“In the event that you request a hearing, you will be given written notice of the time for the hearing, which will be no sooner than five days nor later than fifteen days after the request is received. Your failure to appear at the hearing will be deemed just cause for dismissal of the hearing in favor of termination.”

Guinn timely requested a hearing before the Personnel Advisory Board and his case was heard by the Board on March 31. The Board, complying with its authority under Article X, § 3, Personnel Rules and Regulations, Eufaula, Alabama, recommended to the mayor that Lt. Guinn be reinstated without back pay, without loss of seniority or benefits, and that the February 23 reprimand remain active six months from the date Guinn came back to work.

The mayor disregarded the Board’s decision, and issued his own decision that Guinn be terminated from the police force under the authority of Art. II, § 1, Personnel Rules and Regulations. This section provides:

“The Mayor shall be ultimately responsible for and have sole authority to employ/discharge all employees in classified service.”

Guinn’s principal issue on appeal is that he was denied due process and equal protection of the law. We disagree. Guinn was given notice of the charges against him; he was given an opportunity to be heard; he was heard; he was represented by counsel; he called witnesses; and he was given the right to cross-examine witnesses against him. In fact, Guinn was given all rights of due process listed in the Personnel Rules and Regulations.

This court defined due process of law in the case of Zeigler v. South & North Ala. R.R. Company, 58 Ala. 594 (1877), by stating:

“Due process of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty or property in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved.”

In giving this definition, Justice Stone, who authored Zeigler, summarized Webster’s definition of due process, given in his argument of the Dartmouth College case before the United States Supreme Court. Cf. Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 4 L.Ed. 629 (1819).

Next, Guinn contends that the may- or exceeded his authority by discharging him; that the mayor could not give a greater sanction than that recommended by the Board. We do not interpret the Personnel Rules and Regulations to mean that the Board’s recommendation must be followed by the mayor in the matter of discharging a classified employee. The Board’s decision is a recommendation which the mayor may or may not accept.

Finally, we opine that summary judgment was proper in this case. Guinn did not present any evidence to counter the evidence submitted by the appellees showing that there was no genuine issue of fact. Under Rule 56(e), ARCP, Guinn was required to set forth facts showing that there were genuine issues for trial. He did not. The movants were, therefore, entitled to summary judgment.

AFFIRMED.

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

      . “(b) Within seven (7) days reach and send a recommendation to the mayor to either:
      “(1) Ratify the disciplinary termination of an employee of the city;
      “(2) Revoke and disallow the disciplinary termination and direct the person attempting the disciplinary termination to replace the employee in his original position with whatever pay that was lost as a result of his termination; or
      “(3) Take, as he may deem proper, some lesser disciplinary or alternate action.
      The mayor shall report his final decision to the city council, to the panel, to the employee, and to the supervisor/department head.”

      . The mayor’s decision read as follows:
      “It is the responsibility of the Mayor to make the Anal decision when a disciplinary termination has been appealed to the Personnel Advisory Panel and its recommendations have been delivered to the Mayor.
      “Before the Mayor now is the case of Lt. Ules Guinn of the Eufaula Police Department, who was terminated for cause by the Police Chief and whose appeal was heard by the Personnel Advisory Panel.
      “The Personnel Advisory Panel has recommended that Lt. Guinn be reinstated, but without back pay.
      “Ordinarily, substantial weight is given to the recommendations of the Advisory Panel. Usually it is in a better position to evaluate the testimony because its members have seen and heard the witnesses and the Mayor has not. In this case, however, the Mayor was able to be present and to see and hear the witnesses himself, as well as to examine the written matter.
      “It goes without saying that high standards are expected of police officers. The property and the very lives of the citizens depend on them. Particularly high standards are expected of police supervisors. They have great responsibility to their fellow police officers, as well as to the public.
      “In the case of Lt. Guinn, there was substantial evidence of dereliction of duty, unknown to his supervisor, over a substantial length of time. Because of his supervisory position, his derelictions were undetected by his supervisor for a long time. Such a situation emphasized the necessity for high standards in one entrusted with a supervisory position. This situation also emphasizes the fact that derelictions by a supervisor are usually more serious than those of his subordinates because his derelictions both set a bad example and are many times less subject to detection because of the power of his supervisory position.
      “Recently there was a vicious and brutal murder in Eufaula — the second one in a short period of time. On the night after the murder, Eufaula citizens were justly concerned with police protections. Consequently some police were working overtime and some firemen even were pressed into service to patrol the city. There was substantial evidence to indicate that Lt. Guinn, while shift supervisor, was out of his police vehicle and in a private residence for personal reasons for several hours that night. Such action at such time is particularly irresponsible in a supervisor or any police officer.
      “While I appreciate the corrective value of discipline and the comments of the Personnel Advisory Panel in this regard, I cannot concur in its recommendations. In my judgment, under the duty given me by the City Code, Lt. Guinn has demonstrated over a period of time that his conduct as a police officer was beneath the standards required and expected of a police officer.
      “It is therefore my decision that the termination of Lt. Guinn be sustained.”

      . Appellees’ motion for summary judgment was supported by the pleadings, the Personnel Rules and Regulations of the City of Eufaula, Alabama, and affidavits of Mayor Little, Chief Moore and Ules Guinn.


author: ALMON, Justice.

text:
    Ex parte MORRISON ASSURANCE CO., INC. (In re MORRISON ASSURANCE CO., INC. v. C & G COAL CO., et al.)
    82-879.
    Supreme Court of Alabama.
    Aug. 26, 1983.
    E. Martin Bloom of Starnes & Atchison, Birmingham, for petitioner.
    Jerry Guyton of Vinson & Guyton, Hamilton, for respondents.
   ALMON, Justice.

This petition for mandamus raises a question of venue. The Circuit Court of Jefferson County determined that the defendant corporation was not doing business in Jefferson County at the time the cause of action arose and granted a motion to transfer.

C & G Coal Company, Inc., was incorporated in Marion County, Alabama, in 1975. It conducted strip mining in Marion and Franklin Counties from that time until its dissolution in July of 1979. On October 9, 1978, C & G Coal and its three stockholders executed an agreement of indemnity with Morrison Assurance Company, agreeing to indemnify Morrison for any expenses incurred by Morrison under bonds executed in favor of the Alabama Surface Mining Reclamation Commission. Although the indemnity agreement seems to have been executed in Marion County, the parties agree that some of the bonds were executed in Jefferson County. The bonds covered expenses for reclamation of lands mined by C & G Coal should C & G Coal not restore the land. C & G Coal did not perform adequate reclamation, and Morrison had to pay under the bonds.

On November 8, 1982, Morrison filed suit in the Circuit Court of Jefferson County against C & G Coal and its stockholders at the time of dissolution, seeking to recover losses suffered under the bonds. The defendants filed a motion to dismiss and a motion to transfer, alleging that C & G Coal had never done business in Jefferson County. The trial court granted the motion to transfer. Morrison seeks a writ of mandamus directing the trial judge to set aside that order arid enter an order holding that venue is proper in Jefferson County.

For venue to be proper in Jefferson County, it would have to be under Code 1975, § 6-3-7:

“A foreign corporation may be sued in any county in which it does business by agent, and a domestic corporation may be sued in any county in which it does business by agent or was doing business by agent at the time the cause of action arose .... ”

C & G Coal was not doing business at the time Morrison filed suit, so the issue is whether it was doing business in Jefferson County at the time the cause of action arose.

Morrison argues that this Court, in United States Fid. & Guar. Co. v. State, 223 Ala. 411, 136 So. 806 (1931), held that a contractor was doing business in the county where it executed a bond. True, the opinion contains language stating that the contractor was “not doing business by agent in Montgomery unless the submission of original bid and executing contract and bond constituted doing business in Montgomery County.” Id., 223 Ala. at 412, 136 So. 806. Any suggestion that the contractor was doing business in Montgomery, however, was purely dictum, because the suit was against the surety which was clearly doing business by agent in Montgomery County. Indeed, on rehearing, the four Justices concurring (Justice Sayre being ill) wrote, “[W]e prefer to place our concurrence in the result that the appellant [the surety] was suable in Montgomery County because of doing business there by agent.” Id., 223 Ala. at 413, 136 So. 806.

Thus, United States Fid. & Guar. Co., supra, does not control the resolution of this case. Morrison argues that

“the provision of the venue statute should be held satisfied upon a showing that a mining entity undertook to obtain the execution of bonds and related contracts in the forum county. A corporation’s continuing promise, made originally in the forum county, should subject that corporation to venue in the forum when the agreements are ultimately broken.”

We do not find this reasoning persuasive. The “continuing promise” is not an activity which would constitute doing business by agent in the county where the bond is executed. C & G Coal maintained no office in Jefferson County, had no agent present there, and conducted none of its operations there. The indemnity agreement bears the signature of a Marion County notary public, so presumably the parties executed it there. The indemnity agreement refers to the bonds, so they were in existence when the agreement was executed in 1978. Morrison refers to C & G Coal’s failure to reclaim the land as occurring after the dissolution of the corporation, so presumably the cause of action arose in 1979 or thereafter. Thus, for all the record shows, the last business done between C & G Coal and Morrison took place in Marion County.

In some cases, a continuing agreement executed in the forum county might be a proper basis for venue. In this case, however, although C & G Coal had done some business in Jefferson County, its connection to that forum is too attenuated, and the instances of doing business there are too remote, for venue to be proper there. The trial court committed no error in granting the motion to transfer, so the writ of mandamus is denied.

WRIT DENIED.

TORBERT, C.J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


author: ADAMS, Justice.

text:
    Dane BROWN v. Malcolm L. WHEELER, Administrator of Estate of William V. Phifer, Deceased. Mary Gail BROWN v. Malcolm L. WHEELER, Administrator of Estate of William V. Phifer, Deceased.
    82-80, 82-81.
    Supreme Court of Alabama.
    Aug. 26, 1983.

      Larry W. Harper and J. Mark Naftel of Porterfield, Scholl, Bainbridge, Mims & Harper, Birmingham, for appellants.
    Thomas R. Elliott, Jr. of London, Yancey, Clark & Allen, Birmingham, for appellee.
   ADAMS, Justice.

These appeals are by Dane Brown and Mary Gail Brown from an order of the trial court setting aside the appointment of an administrator ad litem and dismissing the claims against William V. Phifer, a deceased defendant.

The issues on appeal are as follows:
1. Was it proper under Rule 25(a)(1) of the Alabama Rules of Civil Procedure for the attorney who represented defendant Phifer to suggest his death upon the record?
2. Was the suggestion of death sufficient to trigger the running of the six-month period for filing a motion for substitution under Rule 25(a)(1), A.R.Civ.P., despite a failure to include the name of a successor or representative of Phifer’s estate?

We answer these questions favorably to the estate of Phifer and affirm the trial court’s order dismissing the claim against Phifer and setting aside the appointment of an administrator ad litem.

The facts of the ease are as follows:

In May 1980, appellants separately filed complaints in the Circuit Court of Jefferson County, Alabama, against Phifer and Har-bert Construction Company. The suits arose out of an automobile accident that occurred in November 1979.

On March 1, 1981, Phifer died. Ten days later, Thomas R. Elliot, Jr., “as Attorney for William V. Phifer,” filed a suggestion of death in the circuit court. He did not include in the suggestion the name of a successor or representative of the deceased’s estate, since one had not been appointed. In fact, there were no assets in the estate.

On March 10, 1982, appellants’ attorney filed an application for appointment of an administrator ad litem to represent Phifer’s estate in the lawsuit. The court appointed Malcolm L. Wheeler, the General Administrator for Jefferson County.

On March 15, Elliot, “as former attorney for William V. Phifer,” filed a motion to dismiss the claim against Phifer because the appellants had failed to file a motion for appointment of an administrator ad litem within six months after the suggestion of death upon the record, as prescribed by Rule 25(a)(1), A.R.Civ.P. The motion to dismiss was granted. Subsequently, however, the trial court set aside the order granting the motion, denied the revival of the claim against Phifer, and dismissed that claim. On October 13, 1982, this order was made final pursuant to Rule 54(b), A.R. Civ.P.

Appellants have conceded that if the suggestion of death was properly made under Rule 25, then the claim against Phifer was due to be dismissed. However, they rely on the authority of Rende v. Kay, 415 F.2d 983 (D.C.Cir.1969), for an attack on the suggestion of death filed by Elliot. In Rende, the court considered whether the suggestion of the death of a defendant, filed by defendant’s counsel without identification of a successor or representative of the deceased, was sufficient to initiate the running of the 90-day period for filing a motion for substitution pursuant to Rule 25(a)(1) of the Federal Rules of Civil Procedure. The court held that “the suggestion of death, which was neither filed by, nor identified a successor or representative of the deceased, such as an executor or administrator, was ineffective to trigger the running of the 90-day period provided by the Rule.” Rende v. Kay, 415 F.2d at 984.

In support of its holding, the court in Rende cited a portion of the Committee Notes for the Federal Rules of Civil Procedure, and also the form for suggestion of death recommended by the Advisory Committee. On the basis of these sources, the court concluded that the Advisory Committee

... plainly contemplated that the suggestion emanating from the side of the deceased would identify a representative of the estate, such as an executor or administrator, who could be substituted for the deceased as a party, with the action continued in the name of the representative .... [And,] [although the attorney for the defendant was retained to “represent” the deceased as his counsel, he is not a person who could be made a party, and is not a “representative of the deceased party” in the sense contemplated by Rule 25(a)(1).

415 F.2d at 985. For the reasons that follow, we are not persuaded that this authority should control our construction of Rule 25(a)(1) of the Alabama Rules of Civil Procedure.

In contrast with the federal Committee Notes, neither the plain language of Rule 25(a)(1), A.R.Civ.P., nor the Committee Comments to the rule indicate who may properly suggest upon the record the death of a party. Moreover, Frank W. Donaldson, a member of this court’s Advisory Committee on Civil Practice and Procedure, has noted that in drafting Rule 25, A.R.Civ.P., “[t]here was no question whatsoever but that an objective of the Committee was to reveal and make plain that there is a duty of an attorney to suggest the death of his client upon the record.” Donaldson, 4 Cum.-Sam.L.Rev. 210, 227 (1973). This objective of the Committee reflected a widespread concern regarding defense counsel’s strategic failure to notify the court and opposing parties of a client’s death. We approve the objective, and concur with those jurisdictions that have held that a suggestion of death filed by the attorney for a deceased party initiates the running of the period for filing a motion for substitution under Rule 25(a)(1), if the suggestion is otherwise properly made. See Farmers Insurance Group v. District Court of the Second Judicial District, 181 Colo. 85, 507 P.2d 865 (1973); Mullis v. Bone, 143 Ga. App. 407, 238 S.E.2d 748 (Ct.App.1977); King v. Tyree’s of Tampa, Inc., 315 So.2d 538 (Fla.Dist.Ct.App.1975). And, notwithstanding the general rule that an attorney’s authority to act on behalf of a client ceases on the death of that client, we adhere to the view that the attorney for a party continues to have a duty to the court after the demise of that client and, in discharge of that duty, must inform the court and other parties of the death. See Farmers Insurance Group v. District Court of the Second Judicial District, supra; Mullis v. Bone, supra.

We now address appellants’ argument that Elliot’s suggestion of death was not proper because it did not contain the name of a successor or representative of Phifer’s estate. Appellants would have us adopt the Rende court’s position that it is not correct to saddle a plaintiff with the responsibility of identifying the successor or representative of the estate of a deceased defendant. See 415 F.2d at 986. We decline to do so. Although the attorney for the deceased may be in the best position to know who the representative of the estate is, that is not a sufficient basis for requiring the attorney to identify that entity in a suggestion of death. We agree with the Georgia Court of Appeals, which said:

Although our legal tradition places a premium on fairness, litigation still involves an adversary system. The burden of ascertaining the proper party to be substituted for a deceased litigant is properly placed on the party who would effect the substitution. We hold, therefore, that “... a statement of the fact of the death ...” which includes the name of the deceased and the date of death is a sufficient suggestion of death ... to trigger the 180-day period allowed ... for filing a motion for substitution.

Mullis v. Bone, 143 Ga.App. at 410, 238 S.E.2d at 750. Therefore, having found no defect in the contents of Elliot’s suggestion of death, we hold that it was the appellants’ responsibility to seek substitution for Phifer prior to the expiration of the 6-month period which commenced upon the filing of the suggestion of death. Appellants’ application for the appointment of an administrator ad litem was appropriate under the circumstances of this case, but untimely, for

[i]t seems quite basic and reasonable that a plaintiff’s attorney who receives notification of the defendant’s death has the responsibility to promptly initiate the necessary inquiries to determine the identity of a person to be substituted for the deceased defendant, and to file a motion for substitution in accordance with our Rules of Civil Procedure.

Farmers Insurance Group v. District Court of the Second Judicial District, 181 Colo, at 90, 507 P.2d at 867-68.

For the foregoing reasons, we affirm the trial court’s order dismissing the claim against defendant Phifer.

AFFIRMED.

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

      . “If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons, and may be served in any county. Unless the motion for substitution is made not later than six months after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.”

      . “Present Rule 25(a)(1), together with present Rule 6(b), results in an inflexible requirement that an action be dismissed as to a deceased party if substitution is not carried out within a fixed period measured from the time of death. The hardships and inequities of this unyielding requirement plainly appear from the cases. * * The amended rule establishes a time limit for the motion to substitute based not upon the time of the death, but rather upon the time information of the death is provided by means of a suggestion of death upon the record. * * A motion to substitute may be made by any party or by the representative of the deceased party without awaiting the suggestion of death. Indeed, the motion will usually be so made. If a party or the representative of the deceased party desires to limit the time within which another may make the motion, he may do so by suggesting the death upon the record. (Emphasis added.)” 415 F.2d at 985.

      . “A.B. [described as a party, or as executor, administrator, or other representative or successor of C.D., the deceased party] suggests upon the record, pursuant to Rule 25(a)(1), the death of C.D. [describe as party] during the pendency of this action. Added Jan. 21, 1963, eff. July 1, 1963. (Emphasis added.)” 415 F.2d at 985.


text:
    Mary M. LAND v. Forest F. BOWYER, et al.
    82-77.
    The Supreme Court of Alabama.
    Aug. 12, 1983.

      Roy H. Phillips of Phillips & Funderburk, Phenix City, for appellant.
    J. Pelham Ferrell of Ferrell, Davenport & McKoon, Phenix City, for appellees.
   ADAMS, Justice.

This is an appeal by Mary M. Land from a judgment of the Russell County Circuit Court which dismissed her as a party plaintiff in an estate proceeding. The suit was commenced as a petition for sale for division of land owned by Robert C. Myrick at the time of his death. Land, Myrick’s widow, asked that her dower interest and distributive share be set aside from the proceeds of the sale. On a motion filed by appellees, Forest F. Bowyer and Linda Ann Bowyer Pugh, Land was dismissed from the suit.

Two issues are dispositive of this appeal:
1. Does this court’s decision in Hall v. McBride, 416 So.2d 986 (Ala.1982), preclude Land from claiming a dower interest in the realty owned by her deceased husband?
2. Was the trial court correct in allowing the appellees to file a motion to dismiss the widow’s claim of dower when it was not filed until five years after the widow made a claim for her dower interest in probate court?

We answer both questions in the affirmative. The judgment of the trial court is affirmed.

The parties stipulated to the following facts: Robert C. Myrick, Land’s husband, died on February 13, 1977. His will was duly probated in Russell County Probate Court. By the terms of his will, Robert C. Myrick bequeathed and devised all of his property to his child, Sherry Lynn Myrick, and two step-children, Bowyer and Pugh, who were children of the appellant by a prior marriage. The will made no mention of Land. On April 19, 1977, Land filed in probate court a document styled “Widow’s Claim of Her Dower in Real Estate and Distributive Share of Personal Estate of Husband." On April 16, 1982, Sherry Lynn Myrick removed the estate proceeding to the Russell County Circuit Court. After the petition for sale and division of proceeds had been filed and amended, Bowyer and Pugh filed a motion to dismiss on the basis of Hall v. McBride. The trial court issued an order granting the motion to dismiss as to Land. On October 5,1982, the trial court issued a final judgment pursuant to Rule 54(b), A.R.Civ.P., and Land appealed.

In Hall v. McBride, supra, the widow dissented from her husband’s will pursuant to Code 1975, § 43-1-15. After the probate judge granted the defendant’s motion to strike the widow’s dissent, she appealed. This court held that § 43-1-15 provided a gender-based classification impermissible under the equal protection provisions of the United States and Alabama constitutions, and that the statute should be invalidated rather than expanded to provide benefits to the entire class, surviving spouses.

Land argues that, because it was unnecessary for her to dissent from her husband’s will in order to claim dower, Hall v. McBride does not apply to her. We disagree. Land sought dower pursuant to the last sentence of § 43-1-15, which provides:

If the will makes no provision for [the widow], she may claim her dower and distributive share limited as provided in this article without dissenting from the will.

Although our opinion in Hall v. McBride did not specifically address a situation where a widow claimed dower without dissenting, the discussion of the constitutional issues encompassed the entire statute. The same gender-based classification applies whether the wife is dissenting from a will or claiming dower in, and a distributive share of, an estate governed by a will in which she is not mentioned. The rationale by which this court concluded that the classification was impermissible applies to both situations. By the invalidation of the entire statute, a husband is placed in an equal position with a wife, who already has the right, under § 30-4-14, to dispose of her separate estate by will. Therefore, we conclude that Hall v. McBride invalidated § 43-1-15 in its entirety, and, thus, would cut off any claim for dower by a widow where the deceased husband left a will.

In deciding whether to give retrospective application to a holding which declares an act unconstitutional, this court must consider matters of public policy. In the recent ease of Stallworth v. Hicks, 434 So.2d 229 (Ala.1983), this court declined to apply retroactively its holding in Ransom v. Ransom, 401 So.2d 746 (Ala.1981), where vested property rights would be divested thereby. In Ransom, this court held that the homestead statute, as written, was unconstitutional. Therefore, the court extended the statute to cover husbands, as well as wives. In the Stallworth opinion, Chief Justice Torbert quoted Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940), as follows:

The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. Norton v. Shelby County, 118 U.S. 425, 442 [6 S.Ct. 1121, 1125, 30 L.Ed. 178]; Chicago, I. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566 [33 S.Ct. 581, 584, 57 L.Ed. 966]. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, — with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.

Stallworth v. Hicks, supra. In deciding not to apply Ransom retroactively where property rights would be divested thereby, this court stated:

In Ransom we were not required to divest anyone of property rights acquired under the homestead law in effect at the time of decedent’s death. In the case before us, appellant’s rights in the property vested at the time of Mrs. Hicks’s death. To divest parties of real property acquired under the laws of intestacy in effect at the time of the decedent’s death would create a cloud on the title of a great many parcels of real property in this state.

Stallworth v. Hicks, supra.

In the instant case, there are no vested property rights which would be divested by the application of our holding in Hall v. McBride. As pointed out in Gillian v. Gillian, 340 So.2d 785 (Ala.1976), “Dower does not vest automatically in the widow but is allocated only on petition of widow, heirs or other interested parties.” Continuing, the court noted, “Dower right is a chose in action or an equity and does not become a property interest until there has been an assignment thereof.” Gillian v. Gillian, 340 So.2d at 787, 788. Thus, Land holds no vested interest in the property of which she may be divested. Therefore, we find that the application of the holding in Hall v. McBride is justified in this case.

To clarify our policy in this regard, we hold that Hall v. McBride is not to be applied retroactively where dower has already been assigned and become a vested right, but is to be applied retroactively where dower has not yet been assigned by any court. In addition, there should be retroactive application where dower has been assigned or denied and there was, at the time of the rendering of the Hall v. McBride opinion, a pending appeal of the matter containing a constitutional challenge to § 43-1-15.

The remaining issue concerns the timeliness of the defendants’ motion in circuit court in 1982 to dismiss the widow as a party plaintiff, when defendants had not previously filed any motion in opposition to the widow’s claim for dower and distributive share, which she had filed in the probate court in 1977.

The case was removed to circuit court, as provided by Code 1975, § 12-11-41, on April 16, 1982. On or about April 19, 1982, the petition for sale for division was filed. It is from that circuit court action that this appeal arises. The original petition was subsequently amended, and the defendants timely filed their motion to dismiss the widow as a party plaintiff, raising the issue of the constitutionality vel non of § 43-1-15. Thus, the question of timeliness is inappropriate.

For the reasons stated in the foregoing discussion, the judgment of the trial court dismissing Land as a party plaintiff to the suit is due to be, and hereby is, affirmed.

AFFIRMED.

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


author: SHORES, Justice.

text:
    Sarah FOSTER, et al. v. James W. HUDSON, et al.
    82-324.
    The Supreme Court of Alabama.
    Aug. 12, 1983.

      Joseph W. Adams, Birmingham, for appellants Betty Jean Johnson, Alfred Foster, Jr. and David E. Foster.
    C. Crawford Williams, Jr., Birmingham, for appellant Sarah Foster.
    Lee Bains of Bains & Terry, Bessemer, for appellees.
   SHORES, Justice.

The plaintiffs in this case brought an action for sale for division. The facts are undisputed. Alfred and Mattie Foster, husband and wife, had owned a piece of property as tenants in common. Alfred Foster owned an undivided one-fourth interest, and Mattie Foster owned an undivided three-fourths interest in the land. First Federal Savings and Loan Association of Bessemer (mortgagee) held a mortgage on the property.

On September 18,1961, a foreclosure sale was held, and the property was conveyed to mortgagee. On September 29, 1961, the property was redeemed and reconveyed by deed to the Fosters. The conveyance clause in this deed stated: “[T]he undersigned grantor [mortgagee] does hereby grant, bargain, sell and convey unto the said Mattie Foster and Alfred Foster the following described real estate.... ”

The heirs of Mattie Foster brought this action against the heirs of Alfred Foster, seeking a sale for division of the property. The trial court decreed sale of the property and division of the proceeds — three fourths to the heirs of Mattie Foster and one-fourth to the heirs of Alfred Foster.

The heirs of Alfred Foster appeal from the decree. They argue that the foreclosure and subsequent execution of the deed conveying the property to the mortgagee terminated the original tenancy. They contend that a new tenancy was created by the deed of redemption and, under this tenancy in common, each presumptively received an undivided one-half interest in the realty.

The sole issue on appeal is whether a deed of redemption to husband and wife, silent as to the fractional shares conveyed to each, restores the original uneven fractional shares in the property or vests the husband and wife with equal shares.

In Trauner v. Lowrey, 369 So.2d 531, 534 (Ala.1979), we stated that Alabama is classified as a “ ‘title’ state with regard to mortgages. Execution of a mortgage passes legal title to the mortgagee.” Following the foreclosure of a mortgage, the mortgagor is divested of all interest in the mortgaged property save the statutory right of redemption, which is a personal privilege, not a property right. Ala.Code 1975, § 6-5-246 (1975); Trauner v. Lowrey, 369 So.2d 531, 534. If the mortgagor exercises his statutory right of redemption, he “ ‘reacquires or buys back the title which may have passed under the mortgage.’ 42 C.J. 341.” Long v. King, 233 Ala. 379, 383, 171 So. 738, 741 (1936).

We, therefore, hold that upon payment of the redemption price by the Fosters, the sale was nullified and legal title was restored to them as if there had been no sale at all. 7 American Law of Property § 16.176 (A.J. Casner ed. 1952). Furthermore, Alfred and Mattie Foster never ceased to be tenants in common, even after foreclosure and execution of the deed to the mortgagee. The original tenancy would have terminated only if neither of them had redeemed the property before the statutory period of redemption ran. Coleman v. Coleman, 173 Ala. 282, 55 So. 827 (1911).

Appellants argue that the language of the deed of redemption created a presumption that Alfred and Mattie Foster each received an undivided one-half interest in the property. Payton v. Madison, 251 Ala. 353, 37 So.2d 588 (1948). They contend that the presumption was not rebutted by the evidence. We disagree.

A tenancy in common creates as a matter of law a confidential relationship. Smith v. Smith, 266 Ala. 118, 94 So.2d 863 (1957). The reciprocal rights and duties created by this relationship have been well stated by the Supreme Court of Pennsylvania:

“A co-tenant stands in a confidential relationship to all his co-tenants. He cannot acquire a title antagonistic to theirs because it is presumed that when he acts he acts for all co-tenants. Anyone who owns an undivided portion of a common treasure is guardian and protector of the entire fortune because the rights of his co-owners are so intermingled and intertwined with his own that he cannot traffic with his share without endangering and hindering the rights of all.”

Beers v. Pasey, 389 Pa. 117, 132 A.2d 346, 348 (1957).

Because of this confidential relationship, the interest held by the cotenants cannot be reapportioned without unanimous agreement of all. In other words, a coten-ant has a duty not to secretly add to his own share at the expense of the other. 86 C.J.S. Tenancy in Common § 17 (1954). This is especially true when there are but two cotenants, and increasing the share of one necessarily decreases the share of the other.

We reiterate our holding that the tenancy never terminated. The interests within that tenancy could have been reapportioned only by an open and unanimous agreement of the cotenants. There was no evidence of such agreement. We, therefore, hold that, as a matter of law, the interests held by the cotenants did not change. Clearly, the presumption which appellants rely upon cannot be asserted to reapportion an existing cotenancy. We hold that the deed of redemption restored legal title to Alfred and Mattie Foster in conformance with the existing tenancy, i.e., Mattie Foster held an undivided three-fourths interest, and Alfred Foster continued to hold an undivided one-fourth interest.

AFFIRMED.

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


author: WRIGHT, Presiding Judge. WRIGHT, Presiding Judge.

text:
    ARA HOSPITAL FOOD MANAGEMENT, INC. v. STATE of Alabama.
    Civ. 3433.
    Court of Civil Appeals of Alabama.
    Feb. 2, 1983.
    Rehearing Denied March 9, 1983.
    Certiorari Quashed Sept. 23, 1983 Alabama Supreme Court 82-597.

      Thomas N. Carruthers, Jr. and Carleta A. Roberts of Bradley, Arant, Rose & White, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Herbert I. Burson, Jr., Chief Counsel, State Dept, of Revenue and Asst. Atty. Gen., and John H. Burgess, Asst. Counsel Dept, of Revenue and Asst. Atty. Gen., for appellee.
   WRIGHT, Presiding Judge.

This is a sales tax case. Appellant, ARA Hospital Food Management, Inc. (ARA), appeals the circuit court’s judgment upholding a final sales tax assessment with penalties and interest in the amount of $78,339.39 made against ARA by appellee, State of Alabama Department of Revenue (State).

The facts are stipulated, and the trial court based its ruling on those stipulations. On review by this court from a trial court’s finding based on stipulated facts, a question of law is presented. This court will review the case without presumption favorable to the judgment of the court below. Stiles v. Brown, 380 So.2d 792 (Ala.1980).

ARA entered into two separate “food service agreements” with the University of South Alabama Medical Center (USA) and with Brookwood Medical Center (Brook-wood). Under these agreements, ARA is required to manage and supervise the hospitals’ dietary departments, which prepare and serve food to patients, employees, and authorized visitors. Under both agreements ARA is responsible for all direct costs of operation, including food and labor. ARA, operating within the hospitals’ facilities, would purchase foodstuffs and produce meals provided to the hospitals to be served to the hospitals’ patients. The principal difference between the two contracts is in the manner of compensation: under the USA contract, ARA is compensated on a “per patient day” rate; under the Brook-wood contract, ARA is compensated on a “cost-plus” basis.

An assessment of sales tax, pursuant to § 40-23-2, Code of Alabama 1975 (Supp. 1982), was made against ARA by the State with respect to purchases made by ARA from third parties of foodstuffs used in the preparation of meals under these contracts. Section 40-23-2 imposes a sales tax upon anyone “selling at retail any tangible personal property whatsoever.” Section 40-23-l(a)(10), Code of Alabama 1975 (Supp. 1982), defines “sale at retail or retail sale” as including:

“the withdrawal, use or consumption of any tangible personal property by anyone who purchases same at wholesale ... except property which enters into and becomes an ingredient or component part of tangible personal property or products manufactured or compounded for sale and not for the personal and private use or consumption of any person so withdrawing, using or consuming the same....”

The first issue raised on appeal is whether ARA made tax exempt retail sales of meals to the hospitals or whether ARA used or consumed the food in the performance of a service contract. The State contends that ARA used or consumed food purchased at wholesale in the performance of its contracts with USA and Brookwood and is therefore liable for sales tax on that food. ARA contends that it made retail sales of meals under those contracts to USA and Brookwood and that those sales are tax exempt under § 40 — 23—4(15) and Sales and Use Tax Rule No. H15-021, Hospitals, respectively.

Although USA is a public hospital and Brookwood is a private hospital, the two contracts will be addressed together, as that difference does not affect our interpretation of the contracts.

The trial court found:

“After reviewing the contracts and other evidence presented, the Court is of the opinion that the Department’s position is correct and that the assessment of tax was properly made as it regards the operations at the University of South Alabama Hospital. Viewing the contract in its totality, it is clear to the Court that ARA was engaged in providing a service to the hospital. As an incidental part of that service, ARA withdrew food previously purchased at wholesale, and used the food in providing meals to the hospital’s patients. Such a withdrawal by a wholesale purchaser is defined as a retail sale by the sales tax law, Code of Alabama 1975, § 40-23-l(a)(10). This section imposes the sales tax on the with-drawer — in this case, on ARA.”

We agree, and find that the court’s reasoning applies equally as well to the Brookwood Contract. In Alabama Precast Products, Inc. v. Boswell, 357 So.2d 981 (Ala.Civ. App.1977), aff’d 357 So.2d 985 (Ala.1978), the Supreme Court of Alabama addressed a similar situation. Alabama Precast Products, Inc. (APP), entered into a contract whereby it was to furnish and install roof slabs which it was to manufacture especially for a building under construction in South Carolina. APP was furnished drawings and specifications for the job. The roof slabs were manufactured with raw materials withdrawn from APP’s inventory which had been purchased at wholesale. The State of Alabama assessed sales tax against APP, pursuant to § 40-23-2, on the raw materials as a “withdrawal, use or consumption.” APP contended that the compounding of raw materials to form the roof slabs was not a withdrawal “because the materials became an ingredient of tangible personal property or products manufactured for sale to another.” 357 So.2d at 987. APP contended that its contract was “in effect, two contracts in one — a contract to sell the roof slabs ... and a contract to supply services for installation.... ” Id. Chief Justice Torbert, in affirming the judgment of this court, found:

“[TJhere was no ‘sale’ to another of the roof slabs by Alabama Precast Products under the requirements of its subcontract with Daniel Construction Company within the meaning of the provision ... that excepts from the definition of ‘retail sale’ property which enters into and becomes an ingredient or component part of tangible personal property manufactured for ‘sale.’
“In this case, the roof slabs were manufactured especially for the building under construction in Graniteville, South Carolina, according to the drawings and specifications prepared by Daniel Construction Company. The raw materials withdrawn from the inventory of Alabama Precast Products therefore became ingredients or component parts of tangible personal property used by Alabama Precast Products in the performance of a personal obligation under the construction subcontract. Thus the transaction qualified as a taxable ‘retail sale’ under section [40-23-1]. Alabama Precast Products was the ultimate consumer of the raw materials and as such was liable for the tax thereon.”

357 So.2d at 987-88.

The situation in the present case is analogous to that in Alabama Precast. The food was prepared according to specifications made a part of food service agreements. It became ingredients or component parts in the performance of a personal obligation under those agreements. ARA was the ultimate consumer of the food and is therefore liable for tax thereon.

ARA contends that the trial court improperly ruled that Sales and Use Tax Rule No. H15-021, Hospitals, does not apply. According to Rule H15-021:

“Hospitals, infirmaries, sanitariums and like institutions are primarily engaged in the business of rendering services. They are not liable for sales tax with respect to their gross receipts from meals, bandages, dressings, drugs, X-ray photographs or other tangible personal property when such items of tangible property are used in the rendering of a hospital sérvice. This is true irrespective of whether or not such tangible items are billed separately to their patients. Hospitals, infirmaries, and sanitariums are deemed to be the purchasers for use or consumption of such tangible personal property, and the sellers of these items to hospitals, infirmaries or sanitariums are required to collect the tax on sales of such property to hospitals. “When hospitals furnish meals to nurses, attendants and patients as a part of the service rendered, the hospitals are deemed to be the users or consumers of the food and beverages used in the preparation of these meals.”

As can be seen from the plain language of the rule, H15-021 was intended to apply where the hospital purchases meals or foodstuffs. There was no such purchase in this case. The hospitals purchased no tangible personal property; they purchased a service. As the trial court correctly found: “Here, the contractor has undertaken the [hospitals’] responsibility to provide patient food service and stands in the shoes of the [hospitals] under Regulation H15-021 as the consumer of the food and not as a seller of meals.”

ARA contends, in the alternative, that, as regards the USA contract, it was acting as an agent of USA and that purchases made were exempt as being made by an educational institution pursuant to § 40-23-4(15), Code 1975 (Supp.1982). Although a discussion of this point is not really necessary in light of our previous discussion, we affirm and adopt the trial court’s ruling:

“[F]rom reviewing the contractual arrangement between ARA and the University, it is clear to the Court that ARA is not an agent of the University sufficient to exempt purchases by ARA from sales tax. The contract shows that ARA placed orders with food vendors in its own name and paid for such purchases with its own funds. The University exercised no control over the selection of vendors, and prices to be paid or the time and manner of payment. There was no showing that any vendors were even made aware that the purchases were intended to be used at the University Hospital. To invoke the government’s immunity from taxation, the ‘agent’ must be more than a contractor providing services for a government agency; it must be ‘so assimilated by the Government as to become one of its constituent parts.’ United States v. New Mexico, [455 U.S. 720] 102 S.Ct. 1373, 1383 [71 L.Ed.2d 580] (1982).”

Finally, ARA contends that public policy considerations support a reversal of the trial court’s judgment. The USA contract states: “In the event additional taxes not contemplated are due and payable, the per patient day rate will be increased on a dollar for dollar basis.” We recognize that the intention of Rule No. H15-021 was to save the hospital from such an expense, and we are not eager to pass such an expense on to already overburdened hospital patients. Yet we are bound by the law. If the legislature desires a different result, it is the proper branch of government to-change the law.

The judgment of the trial court is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

ON REHEARING

WRIGHT, Presiding Judge.

On application for rehearing, ARA contends that this court failed to consider its contention that the respective hospitals purchased foodstuffs from ARA before those foodstuffs were compounded into meals, and that since those sales would be tax exempt under Alabama law, no tax is due. The contention is premised on the fact that according to the terms of both contracts involved in this appeal, title to foodstuffs purchased by ARA was to remain in the respective hospitals at all times. ARA contends that this fact distinguishes the present case from Alabama Precast Products, Inc. v. Boswell, 357 So.2d 981 (Ala.Civ. App.1977), aff'd, 357 So.2d 985 (Ala.1978), relied on in our opinion, where the materials used in performance of the service contract were withdrawn from Alabama Precast’s inventory because the foodstuffs involved herein were actually inventory of the hospitals and not of ARA.

A similar argument was brought forward in Alabama v. King & Boozer, 314 U.S. 1, 62 S.Ct. 43, 86 L.Ed. 3, 140 A.L.R. 615 (1941). In that case, the contract provided that the contractor (King & Boozer) would furnish labor, materials, tools, machinery, equipment, facilities, etc., and that in consideration thereof the United States government would pay a fixed fee and reimburse them for specified expenses. The contract also provided that title to those materials for which the contractors were entitled to be reimbursed would vest in the government upon delivery at the work site.

The government contended that it was the purchaser of the materials and that it was immune from taxation. The court said:

“The taxing statute, as the Alabama courts have held, makes the ‘purchaser’ liable for the tax to the seller who is required ‘to add to the sales price’ the amount of the tax and collect it when the sales price is collected, whether the sale is for cash or on credit. Who, in any particular transaction like the present, is a ‘purchaser’ within the meaning of the statute, is a question of state law on which only the Supreme Court of Alabama can speak with final authority. But it seems plain, as the government concedes and as we assume for present purposes, that under the provisions of the statute the purchaser of tangible goods who is subjected to the tax measured by the sales price is the person who orders and pays for them when the sale is for cash or who is legally obligated to pay for them if the sale is on credit.”

Id. 314 U.S. at 9-10, 62 S.Ct. at 45-56.

King & Boozer deals mainly with the question of governmental immunity and contains a great deal of language about what constitutes an agent of the government. As such, it is in support of the trial court’s ruling on ARA’s agency argument. But it also stands for the proposition that the purchaser of goods, for tax purposes, is the one who orders and pays for them. In the present case, that is ARA. In order to avoid taxation on the theory that title passed at the moment of purchase, ARA would have to establish that it acted as an agent of the hospitals, and that the hospitals were therefore the ones ordering and paying for the goods. We have already ruled on that contention, and King & Boozer is further support for our affirmance of the trial court.

ARA requests that we add to our opinion the fact that the hospitals contracted for ARA’s expertise in purchasing foodstuffs and in supervising the preparation of food — not for its labor. Although the contract between ARA and USA states that “Hospital will provide and pay the salaries of such non-supervisory personnel as are mutually deemed necessary, .... ” it also provides that “Contractor shall reimburse Hospital for the direct payroll costs and fringe benefits incurred by Hospital with respect to such non-supervisory employees.” The contract further provides that the per-patient-day rate charged by the contractor will include the cost of the hospital’s dietary department labor. Therefore ARA ultimately pays for the entire labor cost.

REHEARING DENIED.

BRADLEY and HOLMES, JJ., concur.


author: WRIGHT, Presiding Judge.

text:
    METROPOLITAN LIFE INSURANCE CO., et al. v. Tharpe FORRESTER, as Commissioner of Insurance of the Department of Insurance of the State of Alabama.
    Civ. 3424.
    Court of Civil Appeals of Alabama.
    April 27, 1983.
    Rehearing Denied June 1, 1983.
    Certiorari Denied Sept. 23, 1983 Alabama Supreme Court 82-813, 82-825 & 82-851.

      Richard F. Allen of Capell, Howard, Knabe & Cobbs and Henry B. Hardegree of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellants.
    Phillip E. Stano, Gen. Counsel Dept, of Insurance, and Warren B. Lightfoot, E. Ma-bry Rogers, and E. Glenn Waldrop, Jr. of Bradley, Arant, Rose & White, Birmingham, Harry Cole and Robert W. Bradford, Jr. of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee/interve-nors American Educators Life Ins. Co., et al.
    Frank J. Kelley, Atty. Gen., and Louis J. Caruso, Sol. Gen., and Harry G. Iwasko, Jr. and William A. Chenoweth, Asst. Attys. Gen., of the State of Mich., for amicus curiae State of Mich.
    Steven F. Freudenthal, Atty. Gen., and John W. Renneisen, Asst. Atty. Gen., of the State of Wyo., for amicus curiae State of Wyo.
    Mark Y. Meierhenry, Atty. Gen., and Douglas E. Kludt, Asst. Atty. Gen., of the State of S.D., for amicus curiae State of S.D.
   WRIGHT, Presiding Judge.

This is a constitutional challenge to the Alabama tax on insurance premiums brought as a result of the recent ruling of the United States Supreme Court in the case of Western and Southern Life Insurance Co. v. State Board of Equalization, 451 U.S. 648, 101 S.Ct. 2070, 68 L.Ed.2d 514 (1981).

Section 27-4-4, Code of Alabama 1975, imposes a premium tax on “foreign insurers” at a rate higher than the rate imposed on “domestic insurers” engaged in the same type of insurance business in this state. Section 27-4-1(2) defines “foreign insurer” as any insurance company not incorporated in Alabama and not having its principal office or chief place of business in Alabama. The law imposes a tax rate of four percent (4%) on the premiums collected by foreign property and casualty insurers and three percent (3%) on the premiums collected by foreign life insurers. § 27-4-4, Code 1975. In contrast, the tax rate for domestic insurers is one percent (1%) for both life and property-casualty companies. In addition, § 27-4-4(b) provides a progressive deduction from the tax rate for defined capital investments by the foreign insurer in Alabama. Appellants contend that the discriminatory tax rate on foreign insurers is an unconstitutional denial of their fourteenth amendment right to equal protection of the laws.

The appellants in this case are thirty-nine insurance companies, classified as foreign insurers under Alabama law, which have paid their annual premium taxes for each year they have done business in Alabama. In 1981 each foreign insurer paid its premium taxes (where applicable) under protest and filed petitions for refunds for taxes paid for certain open years, alleging that the Alabama discriminatory tax scheme was unconstitutional. The Alabama Commissioner of Insurance denied the petitions, and the foreign insurers filed Notices of Appeal with the Commissioner. Each foreign insurer filed a separate complaint in the Circuit Court of Montgomery County, appealing the Commissioner’s decisions and seeking a declaratory judgment as to the constitutionality of the Alabama premium tax classification scheme and a writ of mandamus, or such other remedy as the court deemed appropriate, requiring the Commissioner to refund the premium taxes collected under the statute. The separate cases were consolidated for trial and it was agreed that two cases, those involving Metropolitan Life Insurance Company and the Prudential Property and Casualty Insurance Company, would go to trial and the findings in those cases would control all of the other cases.

Metropolitan paid taxes for the years 1977-80 at the rates imposed on foreign life insurers under the provisions of § 27 — 4-4, Code 1975. Prudential paid taxes at the rates imposed on foreign property and casualty insurers for 1977. Each claimed and were allowed credit for investments under § 27-4-4(b). Both Metropolitan and Prudential filed timely petitions for refunds of taxes paid, as authorized by § 27-4-11, Code 1975. The petitions were denied by the State on July 8, 1981. Appeal was taken to the circuit court pursuant to § 27-2-32, Code 1975.

Several domestic insurers filed motions in the circuit court to intervene as defendants. The motions were granted. Cross motions for summary judgment were made and heard. On May 17, 1982, the court granted summary judgment to the State. The foreign insurer’s motion for a new trial was denied. This appeal followed.

In the circuit court all parties agreed that the case would be governed by the recent Supreme Court decision in Western and Southern Life Insurance Co. v. State Board of Equalization, supra. Western and Southern did not deal with discriminatory tax rates of the nature involved in this appeal. Instead, it dealt with a retaliatory tax, i.e., a tax which imposes the same rate on foreign insurers that is being assessed against the taxing state’s domestic insurers by the foreign insurer’s state of domicile, when that rate is greater than the standard rate imposed by the taxing state on foreign insurers. Alabama has such a tax, § 27-3-29, Code of Alabama 1975, but it is not challenged here. The court in Western and Southern ruled that the retaliatory tax did not violate equal protection principles.

The first important holding in Western and Southern is: (1) the Commerce Clause does not apply to the insurance business under the McCarran-Ferguson Act (15 U.S.C.A. § 1012 (West 1976)); (2) the Privileges and Immunities Clause does not apply to corporations (see Hemphill v. Orloff, 277 U.S. 537, 48 S.Ct. 577, 72 L.Ed. 978 (1928)); and therefore (3) only the Equal Protection Clause remains as a restriction upon the states’ power to tax the insurance business. 101 S.Ct. at 2077. Thus we shall limit our federal constitutional examination of the Alabama taxing scheme to equal protection arguments.

The second holding of Western and Southern was that the case of Lincoln National Life Insurance Co. v. Read, 325 U.S. 673, 65 S.Ct. 1220, 89 L.Ed. 1861 (1945) was overruled. That case held that states may impose taxes on foreign corporations for the “privilege” of doing business in the state, even where the tax had no rational or legitimate state purpose other than raising revenue. In overruling Lincoln National the court said:

“In view of the decisions of this Court both before and after Lincoln National, it is difficult to view that decision as other than an anachronism. We consider it now established that, whatever the extent of a State’s authority to exclude foreign corporations from doing business within its boundaries, that authority does not justify imposition of more onerous taxes or other burdens on foreign corporations than those imposed on domestic corporations, unless the discrimination between foreign and domestic corporations bears a rational relation to a legitimate state purpose.”

101 S.Ct. at 2083.

Thus, classification of the Alabama premium tax as a “privilege” tax will not save it from constitutional attack; it must withstand equal protection analysis. That analysis requires that two questions be answered affirmatively. Vance v. Bradley, 440 U.S. 93, 97-98, 99 S.Ct. 939, 943, 59 L.Ed.2d 171 (1979). First, does the discriminatory tax have a legitimate state purpose? Second, was it reasonable for the Alabama legislature to believe that use of the foreign/domestic classification would promote that purpose? 101 S.Ct. at 2083.

In granting summary judgment for the State, the court found that the tax had at least two legitimate purposes, in addition to raising revenue: (1) encouraging the formation of new insurance companies in Alabama; and (2) encouraging capital investment by foreign insurance companies in Alabama assets and governmental securities. The court also found, based on affidavits of experts in the insurance field presented by both sides, that it was reasonable for the legislature to believe that the statute’s classification would promote those purposes. The foreign insurers contend the court erred in both findings and, thus, in the granting of the motion for summary judgment.

On appeal from summary judgment, “we must determine whether there exists any genuine issue of material fact and, if not, whether the substantive law was correctly applied to undisputed facts.” Watts Construction Co. v. Cullman County, 382 So.2d 520, 522 (Ala.1980). We shall first consider the question of whether the trial court was correct in finding legitimate state purposes for the discriminatory tax.

At the trial, the State presented a list of conceivable legitimate state purposes for its premium tax policy, with supporting affidavits of experts in the field of insurance. The domestic insurers, as defendant/inter-venors, presented four additional purposes. The foreign insurers contend that it was error for the trial court to consider these lists, because the legislature specifically stated its purpose. The foreign insurers contend that the only purpose stated by the legislature is found in the last legislative pronouncement dealing with the premium tax before adoption of the 1975 Code of Alabama, i.e., Act of October 1, 1971, No. 2106, 1971 Ala.Acts 3375; that being “to raise revenue.” Therefore there is no basis for considering other possible purposes.

The law is clear that the party attacking a statute has the burden of overcoming the presumption of constitutionality and must negate every conceivable or reasonable basis which might support the classification. Thorn v. Jefferson County, 375 So.2d 780 (Ala.1979). “[A] statutory discrimination should not be set aside if any state of facts reasonably may be conceived to justify it.” Id. citing McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961).

The foreign insurers contend that neither of the purposes found by the court are constitutionally legitimate. The constitutional legitimacy of the purpose of suspect legislation, once such purpose is shown must be a question of law. The Supreme Court has said that the location or promotion of a needed or useful industry within the state is a legitimate state purpose, as well as efforts to maintain the profit level of a domestic industry. See Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844,25 L.Ed.2d 174 (1970).

The foreign insurers argue that promotion of domestic industry is a legitimate state purpose only when it deters barriers to interstate commerce. They claim the Alabama statute is a barrier to interstate commerce, and is therefore unconstitutional. This is a commerce clause argument, and most of the cases cited by the foreign insurers in support thereof are commerce clause cases. See, e.g., Pike v. Bruce Church, Inc., supra, and Parker v. Brown, supra. However, commerce clause limitations do not apply to the business of insurance. MeCarran-Ferguson Act, supra. We therefore affirm the trial court’s finding of at least two legitimate purposes of the discriminatory tax: (1) encouraging the formation of domestic insurance companies in Alabama; and (2) encouraging capital investment by foreign insurance companies in Alabama.

The foreign insurers also contend that the statute violates the equal protection doctrine of the Alabama Constitution, found in Ala.Const. art. I, §§ 1, 6, 22, and 35. The Alabama Supreme Court has analyzed equal protection under the Alabama Constitution identically to the analysis under the federal constitution in Tyson v. Johns-Manville Sales Corp., 399 So.2d 263 (Ala.1981). Considering this case in like manner, we find that the tax on foreign insurance companies does not violate the equal protection doctrine of the Alabama Constitution.

The foreign insurers also contend that the trial court committed reversible error by granting summary judgment on the issue of whether it was reasonable for the legislature to believe that the use of the foreign/domestic classification would promote the legitimate purposes found by the court. They contend that such reasonableness was an issue of material fact placed in dispute by the affidavits of the various experts. The Supreme Court of Alabama has stated the scope of review of appellate courts on appeal from summary judgment in Ryan v. Charles Townsend Ford, Inc., 409 So.2d 784, 786 (Ala.1981):

“It is a long-established rule in this state that on motions for summary judgment, the movant has the burden of negating the existence of any issue of material fact; Plant v. Reid, Inc., 365 So.2d 305 (Ala.1978); Worley v. Worley, 388 So.2d 502 (Ala.1980), and if there is a scintilla of evidence supporting the non-moving party, summary judgment is inappropriate. Studdard v. South Central Bell Tel. Co., 356 So.2d 139 (Ala.1978). In determining the existence of genuine issues of material fact, the record must be viewed by this Court in a light most favorable to the non-moving party. Papastefan v. B & L Const. Co., Inc. of Mobile, 356 So.2d 158 (Ala.1978).”

The burden of proof on the State was indeed great on its motion for summary judgment. If the evidence presented “a mere gleam, glimmer, spark, the least particle, the smallest trace, a scintilla, in support of the theory of the complaint,” Alabama Power Co. v. Scholz, 283 Ala. 232, 237, 215 So.2d 447, 450 (1968), the grant of the motion for summary judgment was improper.

The State’s burden of proof on motion for summary judgment is complicated by the foreign insurer’s burden of proof in challenging the constitutionality of a statute. When questioning the legislative judgment, the court is “restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for it.” United States v. Carolene Products Co., 304 U.S. 144, 154, 58 S.Ct. 778, 784, 82 L.Ed. 1234 (1938). Thus, if the question is at least debatable, the legislative judgment must be sustained. Id. “[T]hose challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.” Vance v. Bradley, 440 U.S. 93, 111, 99 S.Ct. 939, 950, 59 L.Ed.2d 171 (1979). The wisdom of the legislation or whether in fact it will accomplish its purpose is not the question. Ferguson v. Skrupa, 372 U.S. 726, 729, 83 S.Ct. 1028, 1030, 10 L.Ed.2d 93 (1963). It was apparently on the proposition that the reasonableness of the legislative judgment was shown to be at least debatable that the court granted the State’s motion for summary judgment.

Contrasting the burden of proof placed upon the constitutional challengers of a statute to that upon the party moving for summary judgment results in a conflict of the burdens of proof which is difficult to resolve. It is the opinion of the court that the presumption of constitutionality afforded legislative enactments was not intended to prevent the full factual development of the challenge of the. rationality of the action of the legislature in pursuing its stated or conceivable purpose.

The Alabama Supreme Court spoke somewhat to this issue in Thorn v. Jefferson County, supra. In this case the constitutionality of a statute was also being questioned; the trial court had granted a motion to dismiss. Justice Maddox, writing for the majority, said:

“In order to sustain the grant of the motion to dismiss, we would have to take judicial notice that the Legislature had a rational basis upon which to base its classification in this statute. This we cannot do. The taxpayers have alleged that the classification is arbitrary and capricious. They have the burden to prove this, but they are at least entitled to have their day in court.”

In viewing the record in the light most favorable to the foreign insurers, Ryan, supra, we must hold that the trial court erred in denying the foreign insurers the opportunity to fully present their evidence at trial. If such were not permitted, a mere scintilla of evidence causing the issue of reasonableness to be debatable could result in summary judgment for the movant and cut off further testimony. The scintilla rule is to prevent summary judgment, not aid it. There is nothing recorded which discloses that the evidence of the non-moving party in this case is complete. At least the opportunity to present further evidence should not be foreclosed without such disclosure.

We reverse the granting of summary judgment in favor of the State because there is presented an issue of fact on the question of whether the legislature could have rationally believed that enactment of the discriminatory tax would promote the legitimate State purposes. The result of this reversal is that the entire judgment below may be reviewed if deemed necessary by introduction of additional testimony. The trial court, if so inclined, could open the matter for further consideration of conceivable legitimate state purpose.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH DIRECTIONS.

BRADLEY and HOLMES, JJ., concur.