[Copyrighted Material Omitted]
from Clay Circuit Court (CV-17-900028); John E. Rochester,
M. Varner, Ashland, for appellant.
S. Elmore, Huntsville, for appellee.
Clay County Commission ("the county commission")
appeals from a judgment of the Clay Circuit Court ("the
trial court") in favor of Clay County Animal Shelter,
Inc. ("the animal shelter"). We reverse the trial
courts judgment and remand the cause for further
Facts and Procedural History
March 2017, the legislature enacted Act No. 2017-65, Ala.
Acts 2017, which provides, in pertinent part:
"Section 1. This act shall apply only in Clay County.
"Section 2. (a) The proceeds from the tobacco tax
authorized in Clay County pursuant to Section 45—
14-244 of the Code of Alabama 1975, and as further provided
for in Sections 45— 14-244.01 to 45-14-244.03,
inclusive, and Section 45-14-244.06 of the Code of Alabama
1975, less two percent of the actual cost of collection,
which shall be retained by the Department of Revenue, shall
be distributed to the Clay County General Fund to be expended
"(3) Eighteen percent to the Clay County Animal Shelter.
The Clay County Animal Shelter shall annually report to the
county commission regarding the expenditure of the funds in
the preceding year.
"Section 4. This act shall become effective on October
2017, the county commission and three individuals
(hereinafter referred to collectively as "the
plaintiffs") initiated an action in the trial court
against the animal shelter and certain state
officials. In their complaint, the plaintiffs
sought injunctive relief and a judgment, pursuant to §
6-6-220 et seq., Ala. Code 1975, declaring that part of Act
No. 2017-65 directing an expenditure
of a portion of Clay Countys tobacco-tax proceeds to the
animal shelter to be unconstitutional.
plaintiffs asserted that Act No. 2017-65 was improperly
enacted without a sufficient number of legislative votes in
violation of Article IV, § 73, Ala. Const. 1901, which
"No appropriation shall be made to any charitable or
educational institution not under the absolute control of the
state, other than normal schools established by law for the
professional training of teachers for the public schools of
the state, except by a vote of two-thirds of all the members
elected to each house."
plaintiffs also filed a motion seeking a preliminary
injunction to temporarily restrain distribution of Clay
Countys tobacco-tax receipts to the animal shelter. The
animal shelter moved to dismiss the plaintiffs
trial court conducted a hearing regarding the county
commissions motion for a preliminary injunction. On October
26, 2017, the trial court entered an order requiring the
portion of Clay Countys tobacco-tax receipts that would be
distributed to the Clay County General Fund to be disbursed
as an expenditure to the animal shelter under Act No. 2017-65
to be paid into the trial-court clerks office and held in an
escrow account pending the entry of a final judgment. On
January 16, 2018, the trial court conducted a bench trial, at
which only documentary evidence was admitted.
trial, the county commission argued that Act No. 2017-65
appropriated public funds to the animal shelter and that,
because the animal shelter is a charitable organization not
under the absolute control of the state, the appropriation
was subject to the requirements of § 73, instead of the
ordinary requirements for the passage of bills by the
legislature. As noted above, § 73 requires that applicable
appropriations be approved "by a vote of two-thirds of
all the members elected to each house." It was
undisputed that Act No. 2017-65 did not receive the vote of
two-thirds of all the members elected to each house. The
county commission argued that that portion of
Act No. 2017-65 purporting to distribute funds to the Clay
County General Fund to be disbursed to the animal shelter is,
March 2018, the legislature enacted Act No. 2018-432, Ala.
Acts 2018, "to amend Section 2 of Act 2017-65 of the
2017 Regular Session, now appearing as Section 45-14-244.07
of the Code of Alabama 1975, to further provide for the
distribution of the local tobacco tax; and to provide for
retroactive effect." In relevant part, Act No. 2018-432
purports to amend § 45-14-244.07 to increase the share of
Clay Countys tobacco-tax revenue to be distributed to the
Clay County General Fund to be disbursed to the animal
shelter from 18% to 20%.
April 13, 2018, the trial court entered a final judgment
declaring that the county commission had failed to meet its
burden of proving that the challenged portion of Act No.
2017-65 is unconstitutional. The trial court also ordered
"that the distribution of the proceeds from the tobacco
tax authorized in Clay County be immediately distributed in
accordance with Act [No.] 2017-65, or any law superseding or
replacing said Act." The plaintiffs filed a motion to
stay execution of the trial courts judgment, asserting,
among other things:
"[The p]laintiffs note [that] the Courts judgment
directs the county to immediately distribute [the
tobacco-tax proceeds] in accordance with Act [No.] 2017-65,
or any law super[s]eding or replacing said Act .
(emphasis added). Although not expressly stated, the Courts
inclusion of any law super[s]eding or replacing said Act
appears to refer to ... Act [No.] 2018-432 ... which purports
to provide retroactive appropriations to the [a]nimal
[s]helter from the Countys tobacco tax receipts.
"11. [The county commission] will seek a declaratory
judgment that [Act No. 2018-432] is void, invalid, and
unconstitutional ... and therefore, [the county commissions]
appeal of the judgment in the instant case will be
determinative of whether the funds held in escrow are due to
be released to the [a]nimal [s]helter."
trial court conducted a hearing regarding the plaintiffs
motion and entered an order providing as follows:
"[The p]laintiffs motion to stay the implementation of
Act [No.] 2018-432, pending a hearing on the merits of [the
county commissions] challenge to said Act is GRANTED.
"[The p]laintiffs request to stay the implementation of
Act [No.] 2017-65 is DENIED."
(Capitalization in original.) The county commission appealed.
appeal, the county commission argues that the trial court
erred in determining that it failed to meet its burden of
proving that the provision of Act No. 2017-65 directing that
a portion of Clay Countys tobacco-tax proceeds be
distributed to the Clay County General Fund to be disbursed
to the animal shelter received a sufficient number of
legislative votes to become law. Specifically, the county
commission asserts that the legislatures enactment, as to
that part of Act No. 2017-65,
was an appropriation of funds by the legislature without a
two-thirds votes of all the members elected to each house and
was, therefore, a violation of § 73. Before addressing the
county commissions substantive argument, we must first
address certain preliminary procedural considerations.
response to the county commissions argument, the animal
shelter, with the assistance of counsel on appeal, first
argues that the question presented by the county commission
became moot with the enactment of Act No. 2018-432, which,
the animal shelter says, "effectively repealed and
replaced" Act No. 2017-65. In other words, the animal
shelter contends that the issue no longer presents a
justiciable controversy. See Underwood v. State
Bd. of Educ., 39 So.3d 120, 127 (Ala. 2009)(" This
Court has often said that, as a general rule, it will not
decide questions after a decision has become useless or
moot.... Alabama courts do not give opinions in which there
is no longer a justiciable controversy .... " (quoting
Arrington v. State ex rel. Parsons, 422 So.2d 759,
760 (Ala. 1982) ) ). Alternatively, the animal shelter also
argues that "the constitutionality of Act No. 2017-65
... raises a nonjusticiable political question." The
animal shelters brief, at 3. See, e.g.,
Birmingham-Jefferson Civic Ctr. Auth. v. City of
Birmingham, 912 So.2d 204 (Ala.
justiciable controversy is necessary to confer subject-matter
jurisdiction on the trial court. See Chapman v.
Gooden, 974 So.2d 972, 983 (Ala. 2007)(" There
must be a bona fide existing controversy of a justiciable
character to confer upon the court jurisdiction to grant
declaratory relief under the declaratory judgment statutes
.... " (quoting State ex rel. Baxley v.
Johnson, 293 Ala. 69, 73, 300 So.2d 106, 110 (1974) ) ).
" " [u]nless the trial court has before it a
justiciable controversy, it lacks subject matter
jurisdiction and any judgment entered by it is void ab
initio . " Sustainable Forests, L.L.C. v.
Alabama Power Co., 805 So.2d 681, 683 (Ala.
2001)(quoting Hunt Transition & Inaugural Fund, Inc. v.
Grenier, 782 So.2d 270, 272 (Ala. 2000), quoting in
turn Ex parte State ex rel. James, 711 So.2d 952,
960 n.2 (Ala. 1998) ). A moot case lacks justiciability.
Crawford [v. State], 153 S.W.3d [497,] 501 [
(Tex.App. 2004) ]. Thus, [a]n action that originally was
based upon a justiciable controversy cannot be maintained
on appeal if the questions raised in it have become moot by
subsequent acts or events. Case [v. Alabama State
Bar], 939 So.2d [881,] 884 [ (Ala. 2006) ] (citing
Employees of Montgomery County Sheriffs Dept v.
Marshall, 893 So.2d 326, 330 (Ala. 2004) )."
Chapman, 974 So.2d at 983-84. Therefore, we must
first determine whether the issue presented is justiciable
before considering the merits of the county ...