#### ALABAMA STATE BOARD OF CORRECTIONS, Judson C. Locke, Jr., as Commissioner, etc., et al. v. Hubert M. NORRIS.

SC 2454.

Supreme Court of Alabama.

Dec. 2, 1977.

*1107W. Scears Barnes, Jr., Alexander City, for appellants.

No brief for appellee.

PER CURIAM.

On February 4,1977, Judson Locke, Commissioner of the Alabama State Board of Corrections, informed Sheriff Hubert Norris of Fayette County that twenty state prisoners were being transferred to the Fa-yette County jail from Marshall County. Norris, on February 7, 1977, petitioned the circuit court for a temporary restraining order which was granted on the same day. On March 14, 1977, after a presentation of the evidence, a permanent injunction was issued.

Evidence adduced at trial showed that as of February 1, 1977, the Marshall County jail, with a design capacity of fifty-two, had an inmate population of seventy-one. Fa-yette County’s jail had a design capacity of forty-six, and the present inmate population was five. Locke, acting under the authority granted him in Title 45, § 166, Code of Alabama, ordered twenty inmates removed from Marshall County to Fayette County in an attempt to eliminate the overcrowded conditions.

The trial judge based his order on the finding that Locke had failed to comply with the provisions of Title 45, § 166, Code of Alabama 1940, which was found to be a prerequisite to Locke’s exercise of his powers granted by Title 45, § 166. Title 45, § 166, provides:

> “Whenever the department shall make written report to the court of county commissioners, or board of revenue, or to the city council, or other governing board or body, that certain conditions in the jail, prison, or almshouse should be remedied, or that certain improvements, additions or alterations should be made, they shall have the matter attended to within such reasonable time as may be designated by the department, and shall make written report to the department that such orders have been carried out.”

Admittedly, Commissioner Locke did not demand in writing that Marshall County correct the overcrowded conditions within a reasonable time before ordering the transfer of prisoners to Fayette County jail.

This same issue was recently presented in *Locke*v. *Wheat,*Ala., 350 So.2d 451 (1977) and was decided against the Commissioner. We affirm on the authority of *Locke v. Wheat, supra.*

AFFIRMED.

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

MADDOX, J., concurs specially.

MADDOX, Justice

(concurring specially).

In *Locke v. Wheat,*Ala., 350 So.2d 451 (1977), I was the sole member of this Court to express a dissenting view. I thoroughly expressed my views in that dissent, which I still believe to be right, but I recognize that this Court, for the present, seems committed to the interpretation of Alabama’s prisoner transfer statute as expressed by the *1108other eight members of the Court in that decision. Consequently, so long as this Court is so thoroughly committed to that interpretation, I must make decisions on the law as this Court construes it to be. See Mr. Justice Black’s special concurrence in *Morgan v. Virginia,*328 U.S. 373, 386-88, 66 S.Ct. 1050, 90 L.Ed. 1317 (1945), wherein he expressed similar views about the Supreme Court’s interpretation of the Interstate Commerce Clause, with which he disagreed, but which he felt constrained to follow.

In any event, the legislature will soon be in session. That body, in its wisdom, can determine whether the prisoner transfer laws, as interpreted, should be changed because of the emergency conditions which exist in some county jails because of the federal court order.