from Clay Circuit Court (CV-17-900028)
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
court's judgment and remand the cause for further
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 as follows:
"(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
County's tobacco-tax proceeds to the animal shelter to be
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
County's tobacco-tax receipts to the animal shelter. The
animal shelter moved to dismiss the plaintiffs'
trial court conducted a hearing regarding the county
commission's motion for a preliminary injunction. On
October 26, 2017, the trial court entered an order requiring
the portion of Clay County's 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 clerk's
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
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, therefore,
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 County's 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 court's judgment, asserting,
among other things:
"[The p]laintiffs note [that] the Court's 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
Court's 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
County's 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
commission's] 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 commission's] challenge to said Act is
"[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 County's 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 legislature's 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
commission's substantive argument, we must first address
certain preliminary procedural considerations.
response to the county commission's 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
Arrinqton 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 shelter's 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
Sheriff's Dep't v. Marshall, 893 So.2d 326, 330
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 commission's
support of its mootness argument, the animal shelter quotes
from Jefferson County Commission v. Edwards, 32
So.3d 572 (Ala. 2000), and argues that, because Act No.
2018-432 "effectively repealed and replaced" Act
No. 2017-65, Act No. 2018-432 "stands as the last
expression on the point by the legislature," 32 So.3d at
580, thereby rendering Act No. 2017-65 "void." In
response to the animal shelter's mootness argument, the
county commission points to our decision in Ex
parte Buck, 256 So.3d 84 (Ala. 2017).
Ex parte Buck, this Court granted certiorari review
of a decision of the Court of Civil Appeals to consider
whether a municipal rezoning ordinance, "Ordinance
1949-G," had complied with the notice-publication
requirements set out in certain statutory provisions. The
respondents argued that the issue was moot because a new
ordinance had "repealed and replaced" Ordinance
1949-G. We analyzed the issue as follows:
"If Ordinance 1949-G, the subject of this appeal, has in
fact been repealed and replaced by the new ordinance, then
this appeal is moot, because there no longer exists a
justiciable controversy as to the single issue upon which
certiorari review was granted. However, the [petitioners]
argue that the new ordinance was also improperly
enacted and is also void; thus, they say, it did not
repeal Ordinance 1949-G and their challenge to Ordinance
1949-G remains. In fact, they contend that they have filed a
new action in the Jefferson Circuit Court challenging the
validity of the new ordinance, and they submitted a copy of
the complaint they have filed in that new action.
"This Court is not in a position, in the present appeal,
to determine whether the new ordinance is valid or invalid
and whether it did or did not properly repeal and replace
Ordinance 1949-G. That issue is pending in another circuit
court action, where a proper record and arguments relating to
that issue can be developed. Because there remains the
possibility that the new ordinance could be held invalid, a
holding that this appeal is moot based on the adoption of the
new ordinance is premature. Specifically, if we were to
dismiss this case as moot, but the [petitioners] were to
prevail in their new action challenging the new ordinance,
the issue of the validity of Ordinance 1949-G would remain
unresolved, and the [petitioners] would have lost their
ability to maintain their challenge to it in the instant
appeal. In other words, at this time it is uncertain whether
the new ordinance is valid and moots this case, and we ...