author: STUART, Justice.

text:
    Fred Lee RANDALL et al. v. The WATER WORKS AND SEWER BOARD OF the CITY OF BIRMINGHAM.
    1021289.
    Supreme Court of Alabama.
    Nov. 7, 2003.
    Rehearing Denied Jan. 23, 2004.

      David A. Sullivan, Birmingham; W.L. Williams, Birmingham; and Albert L. Jordan, William B. Stewart, and Matthew D. Fridy of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for appellants.
    K. Mark Parnell and Mary H. Thompson of Emond, Vines, Gorham & Waldrep, Birmingham, for appellee.
    William H. Pryor, Jr., atty. gen., Nathan A. Forrester, deputy atty. gen., and Olivia W. Martin, asst. atty. gen., amicus curiae State of Alabama, in support of the appellants.
   STUART, Justice.

Fred Lee Randall, David Russell, Eugene Edelman, John C. Harris, Michael Harneen, and David Toney, a group of electors in the City of Birmingham (hereinafter referred to collectively as the “electors”) appeal from a summary judgment entered in favor of the Water Works and Sewer Board of the City of Birmingham (“the Board”). In its summary-judgment order, the trial court declared invalid a proposed ordinance submitted by the electors to the Probate Court of Jefferson County. We affirm.

Background

On or about October 2, 2002, the electors filed with Michael P. Bohn, the probate judge for Jefferson County, a “Petition for Ordinance to Reclaim the Water Works Assets for the City of Birmingham.” The electors requested that the probate judge certify their petition and submit the proposed ordinance to the Birmingham City Council for adoption by initiative or by referendum election. The electors filed their petition pursuant to the authority purportedly granted by Act No. 294, Ala. Acts 1965.

The purpose of the proposed ordinance was “to implement a plan to satisfy and redeem the debt of the Water Works and Sewer Board of the City of Birmingham in order to administer more effectively such systems and use the surplus revenues therefrom for needed improvements in city schools and other projects.” In order to accomplish this purpose, the ordinance authorized the City of Birmingham to redeem the debts of the Board and to cause the dissolution of the Board by operation of law, which would then vest title to the assets of the Board in the City. At the time the electors submitted their petition, the outstanding indebtedness of the Board was $550 million.

The ordinance submitted by the electors would appoint David A. Sullivan as a special attorney for the City and would grant him virtually unlimited authority to accomplish the purpose of the ordinance. Examples of the authority granted Sullivan under the proposed ordinance include the authority to “execute and deliver such agreements, instruments and certificates as may be deemed necessary or desirable”; to certify the amount of funds necessary to refund the outstanding debts of the Board; to issue and sell revenue warrants to accomplish the refunding; to execute and approve a trust indenture; to set the terms for the redemption of all outstanding Board bonds; to select a financial institution in which to establish an escrow account; to determine all of the terms under which the revenue warrants shall be sold; to employ and pay any assistants he deems desirable; to incur expenses as he deems necessary; and to take any actions deemed desirable and necessary to operate and maintain the water works system upon the dissolution of the Board. In addition, the proposed ordinance requires the mayor and all employees, consultants, and attorneys for the City to assist and cooperate with Sullivan and to pay “all invoices for actual expenses incurred and provid[e] all information and assistance as requested by Mr. Sullivan.”

Under the ordinance, Sullivan was to be compensated for his services as special attorney for the City on a contingent basis, depending upon whether the City successfully reclaimed the Board’s assets. If the City was successful in its effort to take over the Board’s assets, Sullivan would receive $350 per hour for the hours he worked or 3% of the dollar amount of the bonds issued, whichever was greater. Because the Board’s outstanding debt is $550 million, Sullivan stood to earn a contingent fee of at least $16.5 million if the purpose of the ordinance was accomplished.

The probate judge determined that the petition, as amended, contained the signatures of a sufficient number of qualified electors. Judge Bolin indicated that he intended to certify the petition and submit the proposed ordinance to the Birmingham City Council unless and until a court of competent jurisdiction instructed him otherwise.

However, on October 28, 2002, before the probate judge could certify the petition and order that the proposed ordinance be submitted to the Birmingham City Council for consideration, the Board filed a declaratory-judgment action in the Jefferson Circuit Court. In its declaratory-judgment action, the Board alleged (1) that Act No. 294, under the authority of which the ordinance was presented, no longer applied to the City of Birmingham; (2) that Act No. 294 was unconstitutional; (8) that the action contemplated by the proposed ordinance was beyond the authority of the Birmingham City Council; (4) that the proposed ordinance was invalid on its face; (5) that the proposed ordinance improperly delegated to Sullivan, the special attorney, the legislative authority of the Birmingham City Council; (6) that the actions contemplated by the proposed ordinance would violate the Board’s contractual obligations; (7) that the proposed ordinance contained subjects that were improper for initiative ordinances; and (8) that the proposed ordinance was overbroad, vague, and ambiguous. In addition to seeking declaratory relief, the Board sought a temporary restraining order and a permanent injunction preventing the probate judge from certifying the petition for consideration by the Birmingham City Council.

The trial court entered a temporary restraining order prohibiting Judge Bolin from certifying the petition and from presenting the proposed ordinance to the Birmingham City Council. Shortly after the issuance of the temporary restraining order, the electors moved to intervene in the Jefferson Circuit Court action as defendants; the trial court granted their motion. The trial court also granted the City’s motion to intervene as a defendant.

The Board and the electors filed motions for a summary judgment. On December 13, 2002, the trial court held a hearing on the motions. On February 5, 2003, the trial court entered a summary judgment for the Board, finding that the proposed ordinance “unlawfully and unreasonably delegates the power of the City. The Court finds that the ordinance is void and is not to be certified.” The trial court then dissolved the temporary restraining order directed at Judge Bolin, finding no further need for the restraining order.

On February 28, 2003, the electors filed a motion to alter, amend, or vacate the judgment, pursuant to Rule 59(e), Ala. R. Civ. P. On April 13, 2003, the trial court denied the electors’ Rule 59(e) motion. On May 6, 2003, the electors filed a notice of appeal to this Court, asserting the following:

“I. The circuit court lacked subject-matter jurisdiction over the Board’s claims.
“II. The circuit court did not have general original jurisdiction over the Board’s claims because the Legislature vested it in the probate court.
“III. The circuit court lacked jurisdiction to issue declaratory relief because all persons had not been made parties, as required by Ala.Code § 6-6-227.
“IV. Act. No. 294, Ala. Acts 1965, confers no right of action on the Board to complain against the probate judge delivering the proposed ordinance to the City.
“V. The proposed ordinance does not unlawfully or unreasonably delegate the powers of the City to a special attorney. “VI. The trial court wrongly found that the Board’s status as an entity separate from the City prevented the City from purchasing bonds, paying the Board’s debt, and receiving its assets, as provided in Ala.Code § ll-50-237(c).”

Standard of Review

In Auburn University v. Advertiser Co., 867 So.2d 293, 299 (Ala.2003), this Court stated:

“ ‘Appellate review of a trial court’s ruling on a motion for summary judgment submitted on exhibits and written evidentiary materials is de novo, with no deference to the decision by the trial court.’ Ex parte Breitsprecher, 772 So.2d 1125, 1129 (Ala.2000). See also Bank of Brewton, Inc. v. International Fid. Ins. Co., 827 So.2d 747 (Ala.2002). ‘Legal conclusions are never accorded a presumption of correctness on appellate review.’ Ex parte Cain, 838 So.2d 1020, 1026 (Ala.2002).”

Jurisdiction

The electors argue that the Jefferson Circuit Court lacked jurisdiction to hear the Board’s declaratory-judgment action because (1) the issue whether the Board’s debt might be paid in full by the issuance of refunding bonds pursuant to the ordinance is a mere possibility and therefore is not ripe for judicial resolution; thus, no case or controversy exists; (2) the Board failed to allege that it would be injured by the City Council’s consideration of the proposed ordinance and, therefore, the Board lacked standing to obtain a judicial ruling on the proposed ordinance; and (3) pursuant to Act No. 294, the probate court, not the circuit court, has been specially designated to resolve claims regarding proposed ordinances like this one.

We first address the electors’ claim that the Board failed to present an actual case or controversy appropriate for a declaratory judgment and that, therefore, the circuit court lacked jurisdiction over the Board’s action. In its complaint for in-junctive and declaratory relief, the Board alleged that the proposed ordinance is invalid, that Act No. 294 no longer applies to the City of Birmingham, and that Act No. 294 is unconstitutional. If the Board’s allegations are true, which we address below, Judge Bohn had no jurisdiction to review the electors’ petition and certify it for submission to the Birmingham City Council; the Birmingham City Council had no authority to consider the proposed ordinance pursuant to initiative powers of Act No. 294, and any consideration of the proposed ordinance by the voters of the City of Birmingham in a referendum would have been a waste of time and expense. At the time the Board filed its complaint, the probate court had already begun its review of the electors’ petition. The Board’s complaint sought to enjoin the probate court’s review in this case and prevent similar actions from occurring in the future and sought a judgment declaring the proposed ordinance invalid.

We conclude that in its complaint the Board alleged an actual controversy. We do not find it dispositive that the proposed ordinance has not yet been adopted or enacted. In a similar case, Dennis v. Prather, 212 Ala. 449, 103 So. 59, 62 (1925), the Alabama Supreme Court held that a circuit court had jurisdiction to enjoin an election to determine the county seat of Russell County because the ordinance proposing the election violated a provision of the Alabama Code. The Alabama Supreme Court stated:

“It is suggested by appellants that if the election is void or voidable it can be tested by other proceedings after the election, and that there is no occasion for an injunction. We think this is not an adequate remedy. It means the useless incurring of all the expense, loss of time, and inconvenience of holding the election, and the confusion and uncertainty which would follow such conditions.
“... An election under such conditions would be a mere straw vote, having no legal effect if attacked in a proper proceeding by proper parties. All the expense and inconvenience to the voters and taxpayers of the county would be useless. It seems a plain duty to so determine beforehand. The rights and interests of the electorate are better promoted by a decision in advance, advising the commissioners of their want of power, and restraining them from proceeding with a meaningless and useless election.”

212 Ala. at 453, 103 So. at 62. This Court further stated in Gibbs v. Cochran, 281 Ala. 22, 25, 198 So.2d 607, 608-09 (1967):

“We have said that controversies touching the legality of acts of public officials or public agencies challenged by parties whose interests are adversely affected is one of the favored fields for declaratory judgment.
‘We construe the bill of complaint as showing that the interests of complainants, appellees, are adversely affected by Rule 23 [of the Board of Pharmacy], although there is no allegation that the Board or any other agency or official had instituted proceedings against them wherein they are charged with a violation of said rule. Complainants were not compelled to wait for such action to be taken against them before instituting this proceeding.
“The bill of complaint, in our opinion, shows such an actual justiciable controversy as to support the jurisdiction of the trial court for a declaratory judgment.”

(Citations omitted.) This Court further stated in Scott v. Alabama State Bridge Corp., 233 Ala. 12, 17, 169 So. 273, 277 (1936):

“Controversies touching the legality of the acts of public officials, or public agencies, challenged by parties whose interests are adversely affected, is one of the favored fields for such declaratory judgment, styled in the act and in the authorities, the ‘declaration.’ Official action, done or threatened, challenged as unlawful, a usurpation of official power, whether lack of authority appears in the terms of the statutes, or because of unconstitutionality thereof, are said to be determinable in this manner rather than force the parties to seek injunctive relief, which involves many questions going to the propriety of such relief.”

(Emphasis added.)

In this case, the Board challenges the actions of the electors in submitting the petition proposing the ordinance to the probate judge for certification and the jurisdiction of the probate court to review and certify that petition. The electors and the probate judge undertook these actions pursuant to the authority purportedly granted them by Act No. 294. Their actions threaten to adversely affect the Board. We see no logic in requiring the Board to wait for the probate judge to submit the proposed ordinance to the Birmingham City Council or for the results of a referendum election before allowing the proposed ordinance or the application of Act No. 294 to the City of Birmingham to be challenged. We conclude that, in light of the nature of a declaratory-judgment action and the relief sought, the Board alleged an existing controversy in its complaint.

We next address the electors’ argument that the circuit court lacked subject-matter jurisdiction over this action because, they argue, Act No. 294 has statutorily limited the circuit court’s general jurisdiction by granting the probate court jurisdiction over all disputes regarding ordinances proposed under that act. We disagree.

The Alabama Constitution grants the circuit courts of this state general jurisdiction over all cases except as may be limited by law. See Amend. No. 328, § 6.04, Ala. Const.1901. Act No. 294 grants the probate court the authority only to determine whether any petition submitted under that act is signed by the required number of qualified electors. This limited grant of authority to the probate court does not divest the circuit court of general subject-matter jurisdiction, nor does this limited grant of authority allow the probate court general jurisdiction over all disputes involving a petition submitted under Act No. 294. Thus, the electors have pointed us to no statutory limitation, and we know of no statutory limitation, on the circuit court’s general jurisdiction in this case. Therefore, the circuit court had subject-matter jurisdiction of this action.

Finally, the electors argue that the circuit court lacked jurisdiction to grant declaratory relief because, they argue, all interested persons or entities had not been made parties, as required by § 6-6-227, Ala.Code 1975. The electors argue that the members of the Birmingham City Council as well as the voters of the City of Birmingham have an interest in ordinances proposed under Act No. 294, that those interested parties were not parties to the Board’s declaratory-judgment action, and that, therefore, the circuit court lacked jurisdiction over the Board’s action.

This argument is meritless. The Board, which vigorously opposed certification of the proposed ordinance and which would be adversely impacted by such certification, appeared before the circuit court. Judge Bolin, who indicated his intent to certify the petition, also appeared before the circuit court. The electors, who vigorously supported certification of the proposed ordinance and who stood to benefit from that certification, intervened in the circuit court action; thus, they appeared before the circuit court. Finally, the City of Birmingham, the municipality that would be affected by the proposed ordinance, also intervened and thus was present to protect the interests of the City. We believe that all necessary parties were present.

The electors argue that the Birmingham City Council and the voters of the City of Birmingham were interested parties because the council and the voters have an interest in any legislation affecting the City that is proposed by a citizen. This may be true. However, the absence of a party who has an interest in the litigation but who is not a necessary party does not destroy jurisdiction. See Board of Trustees of Employees’ Retirement Sys. v. Talley, 286 Ala. 661, 244 So.2d 791 (1971) (it is not fatal to a declaratory-judgment action to omit an interested person as a party, if that person’s presence is not necessary to a determination of the controversy between the parties who are before the court). Because the Board initiated its declaratory-judgment action before the petition was certified and before the proposed ordinance was submitted to the Birmingham City Council for consideration, the Birmingham City Council was not a necessary party to the proceeding before the circuit court. If the Birmingham City Council wished to intervene in this action, it certainly had the option to seek to do so. This same rationale applies to the electors’ claim that the voters of the City of Birmingham are interested parties whose absence destroyed the circuit court’s jurisdiction. The fact that other parties might wish to propose a similar ordinance in the future does not eliminate the jurisdiction of the circuit court to resolve the dispute presented by the parties before it.

Standing

The Board had the necessary standing to bring its declaratory-judgment action. The Board alleged that the actions of the electors and the probate court, if not enjoined, would affect the Board’s operations, its existing contractual rights and relationships, and the rights of its employees. As we recognized above, the ordinance, if adopted by the Birmingham City Council or enacted in a referendum, will clearly have an adverse effect on the Board. At the time the Board filed its complaint, the electors, acting under color of Act No. 294, had already obtained the signatures and submitted their petition and the invalid ordinance to the probate court. At the time the Board filed its complaint, the probate court had already acted under color of that act and reviewed the signatures and indicated its intent to certify and submit the proposed ordinance to the Birmingham City Council. Therefore, the Board has a “redressable injury” and a “right to be protected” in this action. See Ex parte Izundu, 568 So.2d 771, 772 (Ala.1990) (citing 59 Am.Jur.2d Parties § 31 (1987), and Eagerton v. Williams, 433 So.2d 436, 447 (Ala.1983)).

Additionally, this Court has recognized that “ ‘one has standing to bring his complaint into court if his stake in the resolution of that complaint assumes the proportions necessary to ensure that he will vigorously present his case.’ ” Ex parte Marshall Durbin & Co., 537 So.2d 496, 497 (Ala.1988) (quoting Smith v. Potts, 293 Ala. 419, 422, 304 So.2d 578, 580 (1974)). The Board’s interest in resolving this controversy — protecting its operations and its existing contractual rights and relationships, in addition to preventing an usurpation of its powers — is certainly of such proportions that it has vigorously presented, and will vigorously present, its case. The Board has the standing necessary to present its claims.

We conclude that the Board alleged an actual controversy, that the circuit court had jurisdiction to issue its declaratory judgment, that this dispute was filed in the proper court and that the proper parties were before the court. We also conclude that the Board had standing to assert its claims. We now address the substantive issues necessary to resolve this dispute.

Legality of the Proposed Ordinance

The Board argues that the proposed ordinance is invalid because, it argues, it unlawfully delegates to a special attorney the power of the City of Birmingham; it improperly attempts to restructure the Board’s debts without the Board’s consent; it violates Act No. 55-452, Ala. Acts 1955, which authorized the mayor-council form of government in municipalities having a population of more than 200,-000; it misuses Act No. 294 for an improper purpose; it impairs the Board’s contractual obligations in violation of Art. I, § 22, Const. of Ala.1901; and it is over-broad and vague. (Board’s brief at 32-49.) In its order, the trial court held that the proposed ordinance unlawfully and unreasonably delegated the power of the City and that the City of Birmingham did not have the right to divest the Board of its indebtedness.

We agree that the proposed ordinance is invalid; we therefore agree with the trial court’s conclusion. However, our rationale for this conclusion is different from that of the trial court.

Municipalities of this State are authorized by § 11-50-230 et seq., Ala.Code 1975, to form public corporations for the purpose of operating a waterworks system. Section 11-50-235, Ala.Code 1975, specifies the powers that such public corporations shall have, once created. Section 11-50-235 provides, in pertinent part:

“(a) Each corporation formed under this division shall have the following powers together with all powers incidental thereto or necessary to the discharge thereof in corporate form:
“(1) To have succession by its corporate name for the duration of time (which may be in perpetuity) specified in its certificate of incorporation or until dissolved as provided in this division;
“(4) To acquire, purchase, construct, operate, maintain, enlarge, extend and improve any system or systems ... and to receive, acquire, take and hold, whether by purchase, gift, lease, devise or otherwise, real, personal and mixed property of any nature whatsoever that its board of directors may deem a necessary or convenient part of such system or systems;
“(5) To borrow money and to issue in evidence of the borrowing interest-bearing bonds payable solely from the revenues derived from the operation of ... its systems....
“(6) To pledge for payment of its bonds any revenues from which such bonds are made payable and to mortgage, pledge or otherwise convey the system or systems the revenues from which are so pledged;
“(7) To sell at wholesale all of any part of its water supply to any other corporation organized under the provisions of this division or to any municipality for distribution to the inhabitants thereof and the surrounding territory;
“(10) To lease, exchange, sell, convey and otherwise dispose of its real, personal and mixed property by any form of legal conveyance or transfer;
“(12) To appoint and employ such officers and agents, including attorneys, as its business may require ...
“(b) Any mortgage, deed of trust or pledge agreement made by such corporation may contain such agreements as the board of directors may deem advisable respecting the operation and maintenance of the property and the use of the revenues subject to such mortgage, deed of trust or pledge agreement and respecting the rights or duties of the parties to such instrument or the parties for the benefit of whom such instrument is made; provided, that no such mortgage or deed of trust shall be subject to foreclosure.”

Significantly, § 11-50-234, Ala.Code 1975, provides that “[e]ach corporation formed under this division shall have a board of directors which shall constitute the governing body of the corporation.” Therefore, by statute, decisions regarding the issuance and sale of bonds by a waterworks system, as well as decisions regarding the operation of the waterworks system, must be under the control of the system’s board of directors.

Further, § 11-50-237 addresses the execution, sale, and refunding of bonds by a waterworks system, the application of the revenues obtained from the sale of those bonds, the vesting of title to the assets of the waterworks systems in the municipality, and the dissolution of the public corporation upon payment of the bonds. Section 11-50-237 provides:

“(a) All bonds issued by any corporation organized under this division shall be signed by the chairman of its board of directors or other chief executive officer and attested by its secretary, and the seal of such corporation shall be affixed thereto. Any interest coupons applicable to the bonds of such corporation shall be signed by the chairman of the board of directors or other chief executive officer, but a facsimile of such signature may be impressed on any such interest coupon in lieu of his manually signing the same. Any such bonds may be executed and delivered by such corporation at any time and from time to time, shall be in such form and denominations and of such tenor and maturities, shall contain such provisions not inconsistent with the provisions of this division and shall bear such rate or rates of interest payable and evidenced in such manner as may be provided by resolution of its board of directors. Any borrowing may be effected by sale of such bonds at either public or private sale in such manner and at such price or prices and at such time or times as may be determined by the board of directors of such corporation to be most advantageous. Any bonds issued by such corporation may thereafter at any time (whether before, at or after the maturity thereof) and from time to time be refunded by the issuance of refunding bonds, which may be sold by such corporation at public or private sale at such price or prices as may be determined by its board of directors to be most advantageous or which may be exchanged for the bonds to be refunded. ... All debts created and bonds issued by any such corporation shall be solely and exclusively an obligation of the corporation and shall not create an obligation or debt of any municipality. No municipality shall pledge its faith and credit for the payment of any debt incurred or bonds issued by such corporation.
“(b) When any such corporation shall have borrowed money and issued its bonds payable from the revenues of its systems, or either of them, it shall charge, collect and account for revenues from the operation of such system or systems sufficient to pay the principal of and the interest on said bonds as such principal and interest respectively mature, to pay the costs of operating and maintaining such system or systems and to create and maintain any reserves or special funds which may be provided for in the proceedings authorizing the issuance of the bonds. Any such corporation shall apply all such revenues in the manner and for the purposes provided for in such proceedings.
“(c) When the principal of and the interest on any bonds of such corporation payable from the revenues derived from the operation of a system owned by such corporation shall have been paid in full, then such system shall thereupon become the property of the municipality which authorized the incorporation of such corporation, and title to said system shall thereupon immediately vest in such municipality. When title to all property owned by any corporation organized under the provisions of this division shall have vested in the municipality which authorized the incorporation thereof, then such corporation shall thereupon stand dissolved. The formation and dissolution of one or more corporations under the provisions of this division shall not prevent the subsequent formation hereunder of another corporation.”

(Emphasis added.) We read these Code sections to mandate that, so long as the corporation remains indebted on its bonds, the board of directors of the corporation remain in control of the waterworks system, see § 11-50-234, and to mandate that the board of directors determine the terms of any borrowing or issuance of bonds by the waterworks system. See § 11-50-237(a) (“Any such bonds ... shall be in such form and denominations and of such tenor and maturities, shall contain such provisions not inconsistent with the provisions of this division and shall bear such rate or rates of interest payable and evidenced in such manner as may be provided by resolution of its board of directors. Any borrowing may be effected by sale of such bonds ... in such manner and at such price or prices and at such time or times as may be determined by the board of directors of such corporation to be most advantageous. Any bonds issued by such corporation may thereafter at any time (whether before, at or after the maturity thereof) and from time to time be refunded by the issuance of refunding bonds, which may be sold by such corporation ... at such price or prices as may be determined by its board of directors .... ”).

We also read these Code sections to require that the board of directors remain in control of the assets of the public corporation and in control of the revenues generated by those assets until such time as the debts of the waterworks system are paid in full (see § 11-50-234 (requiring the board of directors to govern the public corporation) and § ll-50-237(b) (“When any such corporation shall have borrowed money and issued its bonds payable from the revenues of its systems, or either of them, it [the public corporation] shall charge, collect and account for revenues from the operation of such system or systems sufficient to pay the principal of and the interest on said bonds as such principal and interest respectively mature, to pay the costs of operating and maintaining such system or systems .... ”)).

The ordinance proposed to place David A. Sullivan, a special attorney, in control of the waterworks system. Thus, the ordinance proposed to transfer to Sullivan those powers that by virtue of § 11-50-230 et seq. have been squarely placed in the hands of the board of directors of the waterworks system. The proposed ordinance, submitted pursuant to Act No. 294, therefore, conflicted with § 11-50-230 et seq., Ala.Code 1975, and is therefore invalid. See Art. IV, § 89, Const. of Ala.1901 (“The legislature shall not have the power to authorize any municipal corporation to pass any laws inconsistent with the general laws of this state.”); § 11-45-1, Ala.Code 1975 (authorizing municipal corporations to adopt ordinances not inconsistent with state laws). See also City of Mobile v. Garrett-Montgomery, Inc., 281 Ala. 204, 201 So.2d 42 (1967) (holding that municipal ordinance that conflicted with statute was invalid because it violated § 89, Const, of Ala.1901, and violated predecessor to § 11-45-1, Ala.Code 1975).

Conclusion

We conclude that the proposed ordinance conflicts with § 11-50-280 et seq., Ala.Code 1975. The ordinance as proposed, therefore, would be invalid if adopted by the Birmingham City Council or if enacted by referendum vote. We agree with the trial court that the proposed ordinance is invalid but for reasons different from those stated by the trial court. Our resolution of this issue preter-mits our consideration of all other issues raised on appeal.

AFFIRMED.

HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, and WOODALL, JJ., concur.

      . David A. Sullivan is one of the attorneys representing the electors in this action.

      . It is undisputed that Sullivan entered into an agreement with certain persons ("the cir-culators") who agreed to obtain signatures on the petition in exchange for a pro rata share of one-half percent of the total amount of bonds issued to refund the Board's indebtedness. Under the agreement, the circulator who obtained the highest number of valid signatures on the petition was to receive an additional bonus of $250,000.

      . Pursuant to § 6-6-227, Ala.Code 1975, the Board served a copy of its declaratory-judgment complaint on the attorney general. The attorney general did not intervene in the circuit court action. However, on appeal to this Court, the attorney general filed a motion for leave to file an amicus curiae brief in support of the Board, which we granted.

      . The Board also alleged in its declaratory-judgment complaint that the actions of the electors and the probate court (i.e., the certification of the petition and the submission of the allegedly invalid and unconstitutional ordinance to the Birmingham City Council for adoption or for a vote), taken pursuant to an act that no longer has application to the City, threatened public confusion and irreparable injury to the proper functioning of the electoral process.


source: Caselaw Access Project

author: STUART, Justice. JOHNSTONE, Justice

license: Public Domain

text:
    Ex parte TOWN OF VALLEY GRANDE, Alabama. (In re Ex parte Tamara Duncan Smith and Rita M. Lett. (In re Incorporation of Valley Grande, Alabama)).
    1021744.
    Supreme Court of Alabama.
    Nov. 21, 2003.
    Rehearing Denied Jan. 23, 2004.
    J. Doyle Fuller and Susan G. Copeland of Law Office of J. Doyle Fuller, P.C., Montgomery, for petitioner.

      Collins Pettaway, Jr., and Christmas Green of Chestnut, Sanders, Sanders, Pettaway & Campbell, L.L.C., Selma, for respondents.
   STUART, Justice.

On December 13, 2002, residents of the Valley Grande community who were inhabitants, property owners, and qualified electors filed a petition for incorporation of the community of Valley Grande in the Dallas County Probate Court. On December 16, 2002, the probate court held a hearing and after reviewing the petition and the evidence granted the petition to incorporate and ordered an election on the question of whether to incorporate the Town of Valley Grande, Alabama. The election was held on January 9, 2003.

On January 8, 2003, Rita M. Lett and Tamara Duncan Smith filed a petition in the Dallas Probate Court seeking to vacate the probate court’s order granting the petition to incorporate and ordering an election. The probate court, on that same day, entered an order allowing the January 9 election to proceed, and it agreed to address the matters raised in Lett and Smith’s petition to vacate after the election.

On January 9, 2003, the election on the incorporation question was held. The results of that election were 821 votes for incorporation and 90 votes against incorporation. Election inspectors certified the election results and their certificate was filed with the probate court on January 11, 2003.

On January 16, 2003, the probate court held a hearing on Lett and Smith’s petition to vacate and on several other objections raised by Lett and Smith, including allegations that the metes and bounds description in the petition for incorporation was incorrect, that some parties who signed the petition were not residents, and that absentee ballots had not been provided for the election. On January 30, 2003, the probate court issued an order rejecting Lett and Smith’s objections. Specifically, in its order the probate court found that the description of the property to be incorporated included with the petition for incorporation was an accurate description by metes and bounds of the area proposed to be incorporated and that it met the statutory requirements as interpreted by Alabama Supreme Court caselaw; that Lett and Smith’s challenge with regard to the alleged failure to provide absentee ballots was meritless, in light of § 11-41-1 et seq., Ala.Code 1975; and that the statutory and jurisdictional requirements in effect on the date the petition for incorporation was filed had been met and that, therefore, the jurisdiction of the probate court was properly invoked.

On January 31, 2003, Smith and Lett filed a petition for a writ of mandamus and prohibition in the Dallas Circuit Court, asking that court to direct the probate court to vacate its order granting the petition to incorporate and setting the date for the incorporation election and to issue a writ prohibiting the probate judge from certifying and recording the results of the election. As grounds for the petition for the writ of mandamus, Lett and Smith maintained that the probate court’s order rejecting their objections that the metes and bounds description in the petition for incorporation was not accurate, that voters were denied their right to vote by absentee ballot, and that certain necessary parties in each 40-acre section were not registered voters in the necessary section when they signed the petition, was arbitrary and capricious.

On February 3, 2003, the probate court entered an order of incorporation for the Town of Valley Grande.

On July 7, 2003, the persons who petitioned for an order of incorporation for the Town of Valley Grande (hereinafter “the Valley Grande citizens”) filed in the circuit court a motion to dismiss Lett and Smith’s petition for the writ of mandamus. In their motion, the Valley Grande citizens argued that the circuit court did not have jurisdiction to entertain Smith and Lett’s petition because, they said, the probate court’s order of incorporation, entered on February 3, 2003, constituted a final judgment, and the only remedy available to Lett and Smith was by an appeal. On July 15, 2003, the circuit court denied the motion to dismiss filed by the Valley Grande citizens.

On July 18, 2003, the Valley Grande citizens filed a petition for a writ of mandamus with this Court. In their petition, the Valley Grande citizens argued that the circuit court should have dismissed Lett and Smith’s petition for the writ of mandamus because, they said, Smith and Lett’s proper means of review of the probate court’s order was by an appeal. On August 22, 2003, this Court ordered answers and briefs.

Standard of Review

“The standard for obtaining mandamus review before this Court is a high one.

“‘A writ of mandamus is an extraordinary remedy, and it will be “issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.” Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala.1991).’
“Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998).”

Ex parte Wilson, 854 So.2d 1106, 1108-09 (Ala.2002).

Issue and Analysis

The Valley Grande citizens contend that the circuit court lacks jurisdiction to entertain Lett and Smith’s petition for a writ of mandamus because, they say, the probate court’s order of incorporation was a final judgment reviewable only by an appeal pursuant to § 12-22-20, Ala.Code 1975.

“In Alabama, circuit courts have ‘a general superintendence’ over the probate courts. Ala.Code 1975, § 12-11-30(4). Encompassed in this superintendence is the power to review certain judgments and orders of the probate court, either through direct appeal or by petition for an extraordinary writ. See Helms v. McCollum, 447 So.2d 687 (Ala.1984). Sections 12-22-2 and 12-22-20, Ala.Code 1975, authorize appeals from final judgments of a probate court to either the circuit court or the Supreme Court.
“The appellate jurisdiction of the circuit court can also be invoked by a petition for an extraordinary writ. Ala. Const. of 1901, amend. 328, § 6.04(b). Orders as to which no statute grants appellate jurisdiction are reviewed on petitions for writ of certiorari, mandamus, or prohibition. Town of Flat Creek v. Alabama By-Products Corp., 245 Ala. 528, 17 So.2d 771 (1944).”

Franks v. Norfolk Southern Ry., 679 So.2d 214, 216 (Ala.1996).

In Watts v. Town of Green Valley, 282 Ala. 555, 213 So.2d 398 (1968), this Court, on direct appeal, addressed issues similar to those raised in Lett and Smith’s petition in the circuit court for a writ of mandamus. This Court held that an appeal is the proper remedy where the probate court fails to vacate an allegedly void judgment. Therefore, an appeal, not a petition for a writ of mandamus, provides Lett and Smith with the proper mode for attacking the probate court’s judgment. Mandamus is an extraordinary writ, and Lett and Smith cannot use it as a substitute for an appeal. Ex parte Wilson, supra.

This Court has further stated:

“‘The fact that a party has lost the right of appeal by failure to pursue the statutory remedy is not ground for issuing mandamus to compel an annulment of the judgment, Jenkins v. State, 24 Ala.App. 185, 132 So. 437 [(1931)], and mandamus is not available as a substitute for an appeal, Ex parte McElroy, 241 Ala. 554, 4 So.2d 437 [(1941)].’ Denson v. First National Bank of Birmingham, 276 Ala. 146, 149, 159 So.2d 849, 851 [(1964)].”

State v. Cobb, 288 Ala. 675, 678, 264 So.2d 523, 526 (1972).

The Valley Grande citizens properly invoked the jurisdiction of this Court and have established a clear legal right to a writ of mandamus ordering the Dallas Circuit Court to dismiss Smith and Lett’s petition for a writ of mandamus. See Ex parte Johnson, 715 So.2d 783, 785 (Ala.1998)(recognizing “that the question of subject matter jurisdiction is reviewable by a petition for a writ of mandamus”). Lett and Smith had an adequate remedy by appeal; accordingly, a petition for a writ of mandamus filed in the circuit court was not the appropriate means of review in this case. The Valley Grande citizens are entitled to the extraordinary relief they seek here. The Dallas Circuit Court is directed to dismiss Lett and Smith’s petition for a writ of mandamus and prohibition.

PETITION GRANTED; WRIT ISSUED.

HOUSTON, SEE, LYONS, BROWN, HARWOOD, and WOODALL, JJ„ concur.

JOHNSTONE, J„ concurs in the rationale in part and concurs in the judgment.

JOHNSTONE, Justice

(concurring in the rationale in part and concurring in the judgment).

In the case of Watts v. Town of Green Valley, 282 Ala. 555, 213 So.2d 398 (1968), cited in the main opinion, Watts, a resident of an unincorporated community, successfully challenged successive orders of the probate court calling and then approving an election for the incorporation of the community. The successful ground of the challenge was that the orders were void because the probate court lacked jurisdiction to enter the orders because the requisite number of qualified electors did not reside in a certain portion of the area to be incorporated. Watts does contain the statement that “[a]n appeal is the proper remedy where the trial court fails to vacate a void decree.” 282 Ala. at 561, 213 So.2d at 404.

However, this Court has also held that, because a judgment void for want of jurisdiction will not support an appeal, the proper vehicle for review is a petition for a writ of mandamus directing the trial judge to vacate the judgment. Ex parte Citizens Bank, 879 So.2d 535, 538 (Ala.2003); and Ex parte Punturo, [Ms. 1000115, February 8, 2002] — So.2d-(Ala.2002). Thus, in the case now before us, had Smith and Lett’s petition, filed in the circuit court for a writ of mandamus directed to the probate court, challenged the January 30, 2003 probate court order on the ground that it was void for want of jurisdiction, the petition for a writ of mandamus would have been an appropriate vehicle for review. But the petition did not assert such a ground. Indeed the petition did not mention jurisdiction or characterize the probate court order as void. Nor do the materials before us on the petition of the municipality show a want of jurisdiction in the probate court.

Moreover, the January 30, 2003 probate court order appears on its face to be a final order appealable to the circuit court pursuant to § 12-22-20, Ala.Code, 1975. Indeed, Smith and Lett’s brief to us does not contend otherwise. I agree with the main opinion that a petition for a writ of mandamus is not a substitute for an appeal.

For all of these reasons, the petition for a writ of mandamus Smith and Lett filed in the circuit court is inappropriate. Thus, I concur in the judgment of our Court issuing a writ of mandamus directing the circuit court judge to dismiss Smith and Lett’s petition.


author: HOUSTON, Justice. HARWOOD, Justice JOHNSTONE, Justice

text:
    CONFERENCE AMERICA, INC. v. TELECOMMUNICATIONS COOPERATIVE NETWORK, INC., et al.
    1021047.
    Supreme Court of Alabama.
    Nov. 21, 2003.
    As Modified on Denial of Rehearing Jan. 30, 2004.

      Thomas S. Lawson, Jr., and Richard H. Allen of Capell & Howard, P.C., Montgomery; and Richard A. Ball, Jr., of Ball, Ball, Matthews & Novak, P.A., Montgomery, for appellant.
    C. Lee Reeves and Anthony R. Smith of Sirote & Permutt, P.C., Birmingham; and Marvin H. Campbell, Montgomery, for ap-pellees. ■
   HOUSTON, Justice.

Conference America, Inc., appeals from the Montgomery Circuit Court’s judgment on a jury verdict in favor of Telecommunications Cooperative Network (“New TCN”) and one of its employees, Chris Lipscomb. This case involves, among other issues: 1) whether a contract, not for unique personal services, that is silent on the issue of assignability can be assigned, and 2) whether a juror’s misrepresentations during voir dire were significantly material so as to warrant a new trial. We hold that the contract in this case was assignable, and we affirm the trial court’s judgment relating to that issue and to Conference America’s equitable claims. However, we hold that Conference America is entitled to a new trial on the remaining issues based on the misconduct of one of the jury members.

I. Relevant Facts

Conference America is an Alabama corporation that provides conference-call services. In 1995, Conference America was selected by Telecommunications Cooperative Network of New York, Inc. (“Old TCN”), a not-for-profit membership cooperative that assisted nonprofit entities in using telecommunications services, to provide conference-call services to members of Old TCN.

In 1997, Conference America and Old TCN entered into an agreement (“the 1997 agreement”) pursuant to which Conference America would pay Old TCN a 24% commission on the services Conference America provided to members of Old TCN. The term of the 1997 agreement extended from January 27, 1997, through December 31, 2000. The 1997 agreement was silent as to whether the agreement was assignable.

By early 1998, Old TCN was having financial difficulties and was close to filing a petition for involuntary bankruptcy. Around that time, David Altshuler, who had served as vice chairman on the board of directors of Old TCN through July 1997, formed a for-profit corporation named Telecommunications Management, Inc. (“TMI”). Pursuant to a management agreement between Old TCN and TMI, Altshuler, as president of TMI, took over the management of Old TCN. In July 1998, TMI changed its name to Telecommunications Cooperative Network, Inc. (“New TCN”). In September 1998, the assets of Old TCN — including its name, its goodwill, and the 1997 agreement — were transferred or assigned to New TCN and Old TCN was subsequently dissolved. New TCN is a for-profit corporation, run by Altshuler as its sole officer and director. Conference America claims to have had no knowledge of the transfer of assets of Old TCN to New TCN, of the dissolution of Old TCN, or of the creation of New TCN.

After New TCN acquired the assets of Old TCN, Conference America continued to provide services and to remit commissions to New TCN pursuant to its 1997 agreement with Old TCN. In December 1998, Conference America executed another agreement (“the 1998 agreement”) virtually identical to the 1997 agreement that, among other things, extended the term of the 1997 agreement through September 30, 2002. The 1998 agreement referred to “TCN”; it did not distinguish between “Old” TCN and “New” TCN. According to Conference America, New TCN held itself out as being the same company as the dissolved Old TCN.

Subsequently, the relationship between Conference America and New TCN became strained; the reasons for the strain, which are disputed by the parties, are not relevant here. Conference America sued New TCN, Altshuler, Chris Lipscomb, and others, seeking, among other things, 1) damages for fraud, breach of contract, repudiation of contract, and moneys paid by mistake under a void assignment of the 1997 agreement, and 2) declaratory and injunctive relief. New TCN and Lipscomb each filed a counterclaim. Following the trial, however, the only claims that went to the jury were Conference America’s breach-of-contract and fraud claims, New TCN’s counterclaim alleging breach of contract and repudiation of contract, and Lipscomb’s counterclaim alleging breach of contract. Relevant to our discussion is the fact that the trial court granted New TCN’s motion for a judgment as a matter of law as to Conference America’s claim that it was entitled to moneys paid to New TCN by mistake because, it argued, the 1997 agreement was unassignable.

The jury returned a verdict for New TCN and Lipscomb on Conference America’s breach-of-contract and fraud claims and on their counterclaims. The jury awarded damages on the counterclaims in the amounts of $1,007,499.97, and $1,000 to New TCN and Lipscomb, respectively. The trial court entered a judgment on this verdict.

Following the verdict, Conference America discovered that a juror had given erroneous answers in his questionnaire and on voir dire examination. It confirmed this fact through investigation and memorialized its discovery and initial investigation in a letter to the Court dated November 8, 2002, enclosing its investigative material.

On November 22, 2002, Conference America filed motions for a judgment as a matter of law, a new trial, and to alter, amend, or vacate the judgment, asserting, among other things, juror misconduct and the alleged unassignability of the 1997 agreement. Following two hearings (including an evidentiary hearing on the juror-misconduct issue), the trial court denied Conference America’s postjudgment motions. This appeal followed.

II. Analysis

Conference America raises three issues on appeal. First, it contends that the 1997 agreement was not assignable to New TCN. Second, Conference America contends that it was entitled to a new trial based upon juror misconduct. Third, Conference America contends it was entitled to 1) a judgment as a matter of law as to New TCN’s counterclaims or, in the alternative, 2) a new trial based on the claim that the jury’s verdict was against the great weight of the evidence.

A. Assignability of the 1997 Agreement

At trial, the jury awarded New TCN $1,007,499.97 on its counterclaim against Conference America alleging that Conference America had breached the 1997 agreement. Conference America contends that New TCN’s right to recover under the 1997 agreement hinges on whether that agreement was assignable without Conference America’s knowledge or consent; we hold that it was so assignable.

As stated above, the 1997 agreement is silent as to its assignability. In Sisco v. Empiregas, Inc. of Belle Mina, 286 Ala. 72, 76, 237 So.2d 463, 466 (1970), this Court noted “the general proposition that personal service contracts are not assignable.” In Sisco, we noted that personal service contracts involve “a relationship of personal confidence between the parties.” 286 Ala. at 76, 237 So.2d at 466. Such a relationship is one in which a party would have “a substantial interest in having that [particular] person perform or control the acts promised.” Restatement (Second) of Contracts § 318(2)(1979). This case, however, does not involve such a personal relationship; rather, this case involves the performance of an agreement by the unidentified agents, servants, or employees of an impersonal corporation to provide teleconferencing services to customers of another impersonal corporation; contracts for such works are not personal and may be assigned.

Based on the above, we hold that the trial court’s rulings based on the assigna-bility of the 1997 agreement were correct.

B. Juror Misconduct

The trial court refused to grant Conference America a new trial based upon alleged juror misconduct. Our standard of review on this issue is whether the trial court exceeded its discretion in refusing to grant a new trial. Acceptance Ins. Co. v. Brown, 832 So.2d 1, 12 (Ala.2001)(“The denial of a motion for a new trial is within the sound discretion of the trial court.”).

The jury foreman, H.C., a Montgomery pastor who was not a member of the original jury pool, failed to respond to numerous questions posed during voir dire examination. The trial court asked if any member of the venire had been employed by a business entity referred to as “Call Points,” which provided teleconferencing services. The name, Call Points, was repeated four times. H.C. did not respond, although he had in fact been employed by Call Points. The trial court explained the nature of a teleconferencing company and asked whether any member of the venire had ever been employed by a teleconferencing company. Some members of the venire responded to the question; however, H.C., who had in fact been employed by a teleconferencing company, did not respond. The trial court also asked if any member of the venire had been involved in a contract dispute. H.C. did not respond. In fact, H.C. had had three judgments rendered against him in three collection actions and he was involved in an ongoing paternity and child-support case. He had been held in contempt twice in the paternity action. The juror questionnaire asked if the prospective juror had ever been arrested for or convicted of a crime. H.C. responded that he had not; in fact, H.C. had been arrested, convicted, and jailed on a bad-check charge.

“Not every failure of a prospective juror to respond correctly to a voir dire question will entitle the losing party to a new trial.” McKowan v. Bentley, 773 So.2d 990, 996 (Ala.1999). However, where “improper responses or lack of responses by prospective jurors on voir dire result[] in probable prejudice” to the losing party, a new trial is warranted. Freeman v. Hall, 286 Ala. 161, 166, 238 So.2d 330, 335 (1970).

In Freeman, we noted:

“Although the factors upon which the trial court’s determination of prejudice is made must necessarily vary from case to case, some of the factors which other courts have considered pertinent are: temporal remoteness of the matter inquired about, the ambiguity of the question propounded, the prospective juror’s inadvertence or willfulness in falsifying or failing to answer, the failure of the juror to recollect, and the materiality of the matter inquired about.”

286 Ala. at 167, 238 So.2d at 336. In Gold Kist v. Brown, 495 So.2d 540, 545 (Ala.1986), a case involving a collision between two trucks, a juror failed to disclose that he was a truck driver. In holding that the trial court did not exceed its discretion in granting a new trial, this Court quoted the trial court’s definition of a material fact as “ ‘one which an attorney[,] acting as a reasonably competent attorney, would consider important in making the decision whether or not to excuse a prospective juror.’ ” 495 So.2d at 545.

We hold that the juror misconduct in this case clearly warrants a new trial. This case involves a contract dispute. Juror H.C. failed to disclose that he had been involved in at least three contract disputes and that he had been a defendant in legal actions involving those contract disputes. H.C. failed to reveal that he had been arrested, jailed, and convicted of a criminal offense. H.C. had been charged with being in arrears in his child support and was a party in a paternity action; in the paternity/child-support action he had been served with summons, complaints, and various orders 11 times and had appeared before the circuit court 7 times. There is no indication that the matters inquired about were temporally remote, that the questions posed to H.C. were ambiguous, or that H.C.’s misrepresentations were merely “inadvertent.” Furthermore, given the subject matter of the action and the parties involved (teleconferencing companies), the materiality of the matters inquired about seems obvious and was certainly of the type that “an attorney^] acting as a reasonable competent attorney, would consider important in making the decision whether or not to excuse” H.C., who ultimately served as the jury foreman. Under these circumstances, the trial court exceeded its discretion in denying Conference America’s motion for a new trial.

We also hold that the trial court’s resolution of the equitable claims in this case is unaffected by any juror misconduct and its judgment as to those claims is affirmed.

C. Conference America’s Motion for Judgment as a Matter of Law or, in the Alternative, for a New Trial

Conference America contends that even if the 1997 agreement was properly assigned to New TCN, Conference America is entitled to a judgment as a matter of law as to the two counts in New TCN’s counterclaim that went to the jury: breach of contract and repudiation of contract. Conference America argues that if the 1997 agreement was assigned to New TCN, then New TCN became Conference America’s agent and can have no recovery based on the 1997 agreement because New TCN breached the agreement by violating its implicit fiduciary duties to Conference America by 1) soliciting Conference America employees and 2) establishing C3, an entity that competed with Conference America.

“ ‘The standard of review applicable to a motion for directed verdict or judgment notwithstanding the verdict [now referred to as a preverdict and a post-verdict motion for a judgment as a matter of law] is identical to the standard used by the trial court in granting or denying the motions initially. Thus, when reviewing the trial court’s ruling on either motion, we determine whether there was sufficient evidence to produce a conflict warranting jury consideration. And, like the trial court, we must view any evidence most favorably to the non-movant.’ ”

Glenlakes Realty Co. v. Norwood, 721 So.2d 174, 177 (Ala.1998) (quoting Bussey v. John Deere Co., 531 So.2d 860, 863 (Ala.1988)). The issue, therefore, is whether, when viewed in the light most favorable to New TCN, there was “sufficient evidence to produce a conflict warranting jury consideration” as to whether New TCN was an “agent” of Conference America, and, if so, whether New TCN breached any implicit fiduciary duties so that New TCN may recover under the 1997 agreement.

Whether one is an “agent” of another “ ‘is to be determined by the facts, and not by how the parties may characterize the relationship,’ ” Mardis v. Ford Motor Credit Co., 642 So.2d 701, 705 (Ala.1994) (quoting Butler v. Aetna Fin. Co., 587 So.2d 308, 311 (Ala.1991)), and is “generally a question of fact to be determined by the trier of fact.” Malmberg v. American Honda Motor Co., Inc., 644 So.2d 888, 890 (Ala.1994). Essentially, Conference America claims that New TCN, as its “agent,” owed a duty not to compete with Conference America with regard to employees or services. However, New TCN presented evidence indicating 1) that there was no “exclusive” relationship between New TCN and Conference America that would have made Conference America the “sole” vendor of choice, 2) that New TCN did not actually solicit employees of Conference America, and 3) that New TON did not begin competing with Conference America until after Conference America allegedly breached its contractual obligations. After reviewing the record and examining the evidence in the light most favorable to New TCN, as we must, we hold that the evidence raised a conflict sufficient to send this issue to the jury. Therefore, the trial court did not err in denying Conference America’s motion for judgment as a matter of law regarding New TCN’s counterclaims.

Additionally, given our disposition of this ease, we do not reach Conference America’s contention that it was entitled to a new trial based on the claim that the jury’s verdict was against the great weight of the evidence.

III. Conclusion

Based on the foregoing, we affirm the trial court’s judgment as to the equitable claims and its rulings as to the assignability of the 1997 agreement and as to Conference America’s motion for a judgment as a matter of law. We reverse the trial court’s order insofar as it denied Conference America’s motion for a new trial based on juror misconduct, and we remand the cause for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

SEE, BROWN, and STUART, JJ., concur.

LYONS, HARWOOD, and WOODALL, JJ., concur in part and concur in the result.

JOHNSTONE, J., concurs in the rationale in part but dissents from the judgment.

HARWOOD, Justice

(concurring in part and concurring in the result).

I concur fully in all portions of the main opinion except the one captioned “B. Juror Misconduct.” I concur in all other portions and aspects of the opinion, and the judgment entered.

I agree that the failure of juror H.C. to respond to the unambiguous questions concerning possible prior employment with Call Points in particular, and with any teleconferencing company in general, would ordinarily warrant a new trial or a reversal on appeal. However, I conclude that Conference America, by not acting on the information concerning H.C. that had come to its attention before the jury returned its verdict, waived that ground.

H.C. had worked as an operator for Call Points. His supervisor during his employment, Yvonne McCrary, was in attendance at the trial on Thursday, October 24, 2002, and recognized H.C. but could not recall his name or the nature of their past association. On Friday afternoon, October 25, however, she was again in the courtroom, watching the jury while it was charged. As the jury filed out to commence it deliberations, she recognized H.C. as one of the operators she had supervised at Call Points. She then entered a side room of the courthouse where the attorneys for Conference America, some Conference America employees, and Robert Pirnie, a shareholder and officer of Conference America, were conferring. Pirnie was Conference America’s designated trial representative. McCrary whispered to Pirnie her belief that H.C. was a former operator at Conference America, described his physical appearance to Pirnie, and gave Pirnie his name. Pirnie just said “OK,” and expressed no surprise at the disclosure. Pirnie did not then share that information with the attorneys nor did he do so at anytime over the ensuing weekend. Rather, when he was again meeting with the attorneys at their office during the late afternoon of Monday, October 28, he mentioned the situation to one of Conference America’s trial counsel. No follow-up of any sort occurred until after the jury had returned its verdict, on Tuesday morning, following an additional couple of hours of deliberations.

In Eaton v. Horton, 565 So.2d 183 (Ala.1990), juror Goodwin failed to acknowledge that he was a plaintiff in a pending action although defense counsel had inquired of the venire about that possibility on voir dire. During the course of the trial, Goodwin called his pending litigation to the attention of the trial judge, and the attorneys were then informed by the judge that one of the jurors was involved in a case that had been settled. Defense counsel made no attempt to question the juror or pursue the matter in any other way. In subsequently refusing to reverse the verdict adverse to the defendant on the basis of juror Goodwin’s failure to respond, this Court explained:

“Once [the defendant] was informed of these facts, he had a duty to further investigate the situation and voice his objection. Upon receiving this information, [the defendant] made no objections to the juror’s continued service. Furthermore, [the defendant] made no inquiries into the nature of the lawsuit or into Juror Goodwin’s suitability as a juror because of his involvement in that lawsuit. If [the defendant] intended to raise an objection to Goodwin’s silence on voir dire, he should have done so promptly. Instead, we hold that, having concluded the case with notice of the facts and having taken the chance of a favorable verdict, [the defendant] has waived any objection to Goodwin’s failure to respond; thus, the trial court did not err in denying the JNOV/new trial motion.”

565 So.2d at 185. See also Oliver v. Herron, 106 Ala. 639, 17 So. 387 (1905); Alabama Lumber Co. v. Cross, 152 Ala. 562, 44 So. 563 (1907); Jones v. Coley, 219 Ala. 23, 121 So. 24 (1929); Hood v. Kelly, 285 Ala. 337, 231 So.2d 901 (1970); Williams v. Dan River Mills, Inc., 286 Ala. 703, 246 So.2d 431 (1971); Moon v. Nolen, 294 Ala. 454, 318 So.2d 690 (1975); and Turnbow v. Kustom Kreation Vans, 535 So.2d 132 (Ala.1988). Information imparted directly to a party, or to that party’s attorney, equally can occasion a waiver when no further action is taken.

Although I conclude that a waiver occurred, I further conclude that it was only a partial waiver. Any follow-up on the employment information would not likely have developed the facts concerning the other information H.C. had withheld relating to his prior civil litigation and his involvement in criminal prosecutions. H.C.’s failures to respond were of sufficient importance to the jury selection strategy of Conference America, as explained during the testimony of its trial counsel at the hearing conducted on Conference America’s postjudgment motions, as to warrant a new trial based on them alone. Accordingly, I concur in the result reached with respect to the effect on appeal of H.C.’s withheld information.

LYONS and WOODALL, JJ., concur.

JOHNSTONE, Justice

(concurring in the rationale in part but dissenting from the judgment).

I concur in the rationale and holdings on the assignability of the 1997 agreement. I further concur in the rationale and holdings on the issue of whether the trial court erred in denying the motion of Conference America for judgment as a matter of law. I respectfully dissent, however, from reversing on the ground of juror misconduct. The record establishes, and TCN has demonstrated, that Conference America waived its claim of juror misconduct.

During closing arguments on the Friday preceding the Tuesday when the jury returned its verdict, Conference America recognized the juror, H.C., as a former employee of Call Points, a teleconferencing business previously owned by the family of Bob Pirnie, the president of Conference America and a party to this litigation. In its brief to us, Conference America argues that, had H.C. truthfully answered the questions on the juror questionnaire and in the oral voir dire about this prior employment, Conference America would have stricken H.C. from the panel. Likewise, in the postjudgment proceedings on the claim by Conference America of H.C.’s juror misconduct, counsel for Conference America swore that, had H.C. truthfully revealed his prior employment at Call Points, counsel

“would have recommended immediately that we strike him. The reason that I would do that is that there was a lot of acrimonious litigation going on at Call Points during Mr. Pirnie’s remaining years there, and at Roper Industries, and that information was widely known among the employees. In addition, there — we knew that the defendants in this case, TCN, were going to try the character of Mr. Pirnie.
“So, getting back to the issue, we didn’t want — we knew they were going to be trying Mr. Pirnie’s character based on what they had done during discovery, during the depositions, talking about any incident involving former employees, abuse of employees, yelling at employees, screaming, whatever. And we didn’t want to take a chance with any former employee that they potentially could sit on this jury. I would never ever choose someone who had been a former employee of Call Points to sit on this jury.” (Emphasis added.)

Conference America knew that this prior employment of H.C.’s was important to TCN too, as it was the party which had propounded the voir dire questions about prior employment with Call Points. Yet, on the one hand, Conference America did not disclose its recognition of H.C. to the trial court or opposing counsel until ten days after the jury returned its verdict, but, on the other hand, immediately after the jury returned the verdict, Conference America began its preparations to seek a new trial on the ground of H.C.’s failure to reveal this prior employment.

The only investigation of H.C. by Conference America was prompted solely by his failure to disclose his prior employment by Call Points. To obtain all of the information about H.C.’s prior civil and criminal litigation, Conference America simply conducted a computer search in the “SJIS” system, not “a lengthy process” according to Conference America. This Court judicially knows that the SJIS is the computer-accessible State Judicial Information System operated by the Administrative Office of Courts of the Alabama Unified Judicial System. Conference America does not claim that it could not have conducted this computer search after it recognized H.C. but before the jury returned the verdict. Conference America claims only that it was using its paralegals and other legal manpower on other tasks.

Moreover, the information revealed by the search is the sort commonly held to be insufficient to require a new trial pursuant to a claim of a juror’s nondisclosure in voir dire. See, e.g., United States v. Bishop, 264 F.8d 535 (5th Cir.2001); Coughlin v. Tailhook Ass’n, 112 F.3d 1052 (9th Cir. 1997); United States v. Langford, 990 F.2d 65 (2d Cir.1993); United States v. Boney, 97 F.Supp.2d 1 (D.D.C.2000); Haisten v. Kubota Corp., 648 So.2d 561 (Ala.1994); Williston v. Ard, 611 So.2d 274 (Ala.1992); Volkswagen of America, Inc. v. Marinelli, 628 So.2d 378 (Ala.1993); Land & Assocs., Inc. v. Simmons, 562 So.2d 140 (Ala.1989); Ensor v. Wilson, 519 So.2d 1244 (Ala.1987); Curry v. Lee, 460 So.2d 1280 (Ala.1984); Burroughs Corp. v. Hall Affiliates, Inc., 423 So.2d 1348 (Ala.1982); Estes Health Care Ctrs., Inc. v. Bannerman, 411 So.2d 109 (Ala.1982). For instance, H.C.’s “contract disputes,” as denominated by Conference America, were really collection suits against him on undisputed debts, and the criminal conviction was a ten-year-old bad check case.

In Eaton v. Horton, 565 So.2d 183 (Ala.1990), the defendant Eaton appealed the denial of his motion for a JNOV or, in the alternative, for new trial. During voir dire of the prospective jurors, one of Eaton’s attorneys asked whether anyone had been a plaintiff in a case or had been an employee of a plaintiff. John Wallace Goodwin, ultimately the foreman of the jury, did not respond to the question.

During the trial, Goodwin told the trial judge that he was a party to a pending case, and the judge told the attorneys representing Eaton and Horton respectively that one of the jurors was a party to a case. Later during the trial, Goodwin told the judge that his case had settled, and the judge told the attorneys that the juror’s case had settled. After the jury returned a verdict in favor of Horton, Eaton moved for a JNOV or a new trial on the ground, among others, that Goodwin had failed to identify himself as a plaintiff in a pending case in response to Eaton’s voir dire question. The trial court denied Eaton’s post-judgment motion.

Eaton appealed the denial of his post-judgment motion. This Court stated:

“In Williams v. Dan River Mills, Inc., 286 Ala. 703, 246 So.2d 431 (1971), an attorney failed to timely challenge a juror for cause. We affirmed the trial court’s denial of the motion for new trial, noting that during the trial the attorney had become aware of facts sufficient to impose on him a duty to further investigate the situation if he was truly disturbed by the juror’s presence on the jury.
“This is the situation in the present case. The record now before us indicates that during the trial, counsel for the parties were informed, first, that one of the jurors was involved in a case set for trial the next week, and, second, that that case had been settled. Once Eaton was informed of these facts, he had a duty to further investigate the situation and voice his objection. Upon receiving this information, Eaton made no objections to the juror’s continued service. Furthermore, Eaton made no inquiries into the nature of the lawsuit or into Juror Goodwin’s suitability as a juror because of his involvement in that lawsuit. If Eaton intended to raise an objection to Goodwin’s silence on voir dire, he should have done so promptly. Instead, we hold that, having concluded the case with notice of the facts and having taken the chance of a favorable verdict, Eaton has waived any objection to Goodwin’s failure to respond; thus, the trial court did not err in denying the JNOV/new trial motion.”

565 So.2d at 185 (emphasis added). Accord Jones v. Coley, 219 Ala. 23, 24, 121 So. 24, 25 (1929) (“Having knowledge during trial of the matter which constitutes this ground of the motion for a new trial and remaining silent until after the verdict, defendant will be conclusively held to have waived the same”).

Accordingly, Conference America waived its claim of juror misconduct by choosing not to raise it before the trial court before the jury returned its verdict. Therefore, this Court cannot rightly hold that the trial court exceeded its discretion in denying the motion for a new trial. Thus, I respectfully submit that the judgment should be affirmed.

      . Conference America and Old TCN entered into agreements in 1995 and 1996. Those agreements are not at issue in this appeal.

      . Altshuler is also one of the owners of New TCN.

      . On appeal, Conference America challenges the judgment only with respect to the breach of the 1997 agreement.

      . Lipscomb is an employee of New TCN and a former employee of Conference America.

      . Ala.Code 1975, § 8-5-20, provides: “All bonds, writings, and contracts for the payment of money, or other thing, or the performance of any act or duty, are assignable by endorsement so as to authorize an action thereon by each successive endorsee.” (Emphasis added.) The parties dispute the proper interpretation of § 8-5-20. New TCN contends that under this provision, based on its broad language, all contracts are assignable (unless the contract itself limits the assignability). Conference America argues that the focus of this provision is the final clause—"so as to authorize an action thereon by each successive endorsee”'—and that the provision merely changed the common-law rule to allow an assignee to bring an action on the contract in the assignee's name rather than "in the name of the person having the legal title” to the contract. Phillips v. Sellers, 42 Ala. 658, 661 (1868). We need not resolve this dispute to reach our conclusion regarding the assignability of the 1997 agreement. However, we note that, at the very least, the broad language of § 8-5-20 appears to reflect a general policy favoring the assignability of contracts.

      . The equitable claims in Conference America's third amended complaint are count one (alleging breach of nondisclosure and use agreement), count three (alleging intentional interference with contractual relations), and count four (alleging intentional interference with customers).

      . The basis of Conference America's assertion of "implicit fiduciary duties” is the following language from Allied Supply Co. v. Brown, 585 So.2d 33, 37 (Ala.1991):
      "It is an agent's duty to act, in all circumstances, with due regard for the interests of his principal, and to act with the utmost good faith and loyalty. Implicit in this duty is an obligation not to subvert the principal's business by luring away customers or employees of the principal, or to otherwise act in any manner adverse to the principal's interest.”
      (Citations omitted.)


author: BROWN, Justice. JOHNSTONE, Justice

text:
    Michael W. HALEY, as commissioner of the Alabama Department of Corrections v. BARBOUR COUNTY et al. Michael W. Haley, as commissioner of the Alabama Department of Corrections v. Barbour County et al. Donal Campbell, as commissioner of the Alabama Department of Corrections v. Barbour County et al. Donal Campbell, as commissioner of the Alabama Department of Corrections v. Barbour County et al.
    1020533, 1020534, 1021048, and 1021049.
    Supreme Court of Alabama.
    Jan. 30, 2004.
    See also 801 So.2d 1.

      William H. Pryor, Jr., atty. gen.; Nathan A. Forrester, deputy atty. gen.; Scott L. Rouse, asst. atty. gen.; and Albert S. Butler, asst. gen. counsel and asst. atty. gen., Department of Corrections, for appellants.
    Kendrick E. Webb and Bart Harmon of Webb & Eley, P.C., Montgomery, for ap-pellees.
   BROWN, Justice.

In these four consolidated appeals, Donal Campbell, the commissioner of the Alabama Department of Corrections, appeals from orders of the Montgomery Circuit Court imposing contempt sanctions and ordering commissioner Campbell to receive certain prisoners, who were being held in county jails, into the state penal system.

Facts and Procedural History

In 1991, numerous Alabama counties and sheriffs (hereinafter collectively referred to as “the counties”), filed an action in the Barbour Circuit Court against Morris Thigpen, then commissioner of the Department of Corrections; Joe Todd, then warden of the Ventress Correctional Facility; and Leslie Thompson, then warden of the Easterling Correctional Facility. The counties claimed, among other things, that the commissioner had failed to accept certain prisoners (hereinafter referred to as “state inmates”) into state correctional facilities after the prisoners had been sentenced, thus resulting in overcrowding in jails operated by -the counties. This, the counties claim, violated Ala.Code 1975, § 14-3-30(a). The counties thus sought a temporary restraining order and preliminary and permanent injunctions requiring the commissioner to accept state inmates into prison facilities operated by the Department of Corrections (“DOC”). On February 25, 1992, the trial court issued a preliminary injunction requiring the commissioner to accept a convicted state inmate within 30 days of receiving an inmate’s transcript.

The commissioner claimed that state facilities could not accept additional prisoners because they were already overcrowded and because of a lack of adequate funding for the state prison system. After several years of hearings and discovery, the parties entered into a settlement agreement pursuant to which the commissioner agreed, among other things, to accept state inmates into state facilities within 30 days of receiving an inmate’s transcript. The trial court approved and adopted the settlement agreement in an order issued on September 9, 1998.

In May 2001, the commissioner filed a motion for a temporary restraining order and a preliminary injunction, alleging that the counties had begun delivering too many prisoners to the state prisons. The commissioner also filed a Rule 60(b), Ala. R. Civ. P., motion alleging changed circumstances and requesting relief from the settlement agreement. The counties, on the other hand, filed a motion for an order to show cause, alleging that the commissioner had violated the settlement agreement and the trial court’s injunction. On May 18, 2001, the trial court issued an order holding that the commissioner had, in violation of the settlement agreement, failed to timely accept state inmates into state facilities. The trial court ordered the commissioner to bring DOC into compliance with the court’s earlier orders.

On July 20, 2001, the trial court found that the commissioner had violated the February 25, 1992, preliminary injunction, the consent order, and its May 18, 2001, order. The trial court thus held the commissioner in civil contempt. The court also found that the counties had suffered actual harm, and it ordered the commissioner to pay “coercive” sanctions in the amount of $26 per day for every state inmate held in jails operated by the counties in violation of the court’s orders. The purpose of the sanctions, the trial court stated, was to “effectuate compliance” with state law and the court’s orders. The sanctions would be paid to the court and would then be paid directly to the counties harmed by the commissioner’s contempt. The trial court also appointed a special master to monitor the commissioner’s compliance and to make any recommendations to the trial court concerning sanctions and their payment.

After several hearings and much discovery, the special master reported his findings and recommendations to the trial court. On June 14, 2002, the trial court issued an order finding that the commissioner had again failed to comply with the trial court’s orders. Thus, the trial court purported to assess DOC and “the State of Alabama” coercive monetary sanctions in the amount of $2,161,276, and ordered the commissioner and the state comptroller to issue warrants to each of the counties in amounts specified by the trial court. It also ordered the commissioner to pay the counties’ attorney fees in the amount of $153,824.89.

Subsequently, on September 12, 2002, the commissioner submitted a plan to the trial court outlining certain proposals intended to bring DOC into compliance with the trial court’s orders. Additionally, on December 3, 2002, the commissioner filed a motion entitled “Motion for Order of Emergency Relief.” In his motion, the commissioner claimed that the counties were planning to deliver large numbers of state inmates to DOC facilities and that DOC could not handle such an influx.

On December 6, 2002, the trial court issued an order again holding the commissioner in contempt of court for failing to follow the trial court’s previous orders and for failing to implement the settlement agreement and the plans for bringing DOC into compliance. The trial court thus ordered the commissioner to pay monetary sanctions of $50 per day per inmate. Specifically, the trial court ordered that of that $50 the counties would be awarded $26 per inmate and $24 would be paid to the circuit court clerk. The funds paid to the clerk would then be used “to relieve the overcrowding of the County jails” and to implement the plans submitted by the commissioner and the Governor. This is the order the commissioner appeals from in case no. 1020583.

On December 12, 2002, the court issued an order in response to the commissioner’s December 3, 2002 “Motion for Order of Emergency Relief.” In that order, the trial court found that it would be dangerous for all of the counties to deliver the state inmates then in their county jails to Kilby Correctional Facility at one time. The trial court’s order provided that the counties could increase the total average number of state inmates they were to deliver to Kilby each week by 100, but in no event could they deliver more than 25 additional inmates per day, and they must give DOC 72 hours’ notice before they could deliver the additional state inmates. This is the order the commissioner appeals from in case no. 1020534.

Later, on February 14, 2003, the trial court ordered that $2,417,000 in proceeds generated by DOC from the sale of certain land it owned be paid to the circuit court. Those funds, the court ordered, would be given to certain agencies to alleviate prison overcrowding and to pay “expenses and fees” for the counties. This is the order the commissioner appeals from in case no. 1021048. In response to a postjudgment motion related to the February 14 order, the trial court issued another order on March 13, 2003, which required DOC to pay the entire $2,417,000 generated by the land sale to the trial court as a coercive sanction. This is the order the commissioner appeals from in case no. 1021049.

Discussion

I. Cases No. 1021048 & No. 102104-9

The counties claim that the commissioner’s appeals of the trial court’s February 14, 2003, and March 13, 2003, orders have been rendered moot by an act of the Legislature. Specifically, the counties claim that the Legislature, in Act No. 2003-55, effective April 9, 2003, removed $1,875,000 from the land-sale proceeds and appropriated that amount to pay for certain DOC programs. Moreover, the counties claim that the Legislature, in Act No. 2003-299, effective June 18, 2003, appropriated the remaining land-sale funds to be expended in a manner to help bring DOC into full compliance with the trial court’s February 14, 2003, order. The counties further allege that, in compliance with the February 14 order, a check was delivered to the counties for payment of their attorney fees. The commissioner acknowledges that no controversy exists concerning the disposition of the funds subject to the trial court’s orders.

“The general rule is that if, pending an appeal, an event occurs that makes determination of the case unnecessary, the appeal will be dismissed....” In re Involuntary Commitment of Skelton, 777 So.2d 148, 149 (Ala.Civ.App.2000). Because all of the moneys subject to the trial court’s February 14 and March 13 orders have been expended in compliance with those orders, any controversy concerning those orders of the trial court no longer exists; therefore, cases no. 1021048 and no. 1021049 are dismissed as moot. See State ex rel. Eagerton v. Corwin, 359 So.2d 767, 769 (Ala.1977) (“A case is moot when there is no real controversy and it seeks to determine an abstract question which does not rest on existing facts or rights.”).

II. Case No. 1020533

In case no. 1020533, the commissioner appeals from the trial court’s December 6, 2002, order, which requires the commissioner to pay monetary sanctions. The sanctions, the commissioner argues, violate Ala. Const.1901, § 14.

Section 14, Ala. Const.1901, provides “[t]hat the State of Alabama shall never be made a defendant in any court of law or equity.” This section affords the State and its agencies an “absolute” immunity from suit in any court. Ex parte Mobile County Dep’t of Human Res., 815 So.2d 527, 530 (Ala.2001) (stating that Ala. Const.1901, § 14, confers on the State of Alabama and its agencies absolute immunity from suit in any court); Ex parte Tuscaloosa County, 796 So.2d 1100, 1103 (Ala.2000) (“Under Ala. Const. of 1901, § 14, the State of Alabama has absolute immunity from lawsuits. This absolute immunity extends to arms or agencies of the state.... ”). Indeed, this Court has described § 14 as an “almost invincible” “wall” of immunity. Alabama State Docks v. Saxon, 631 So.2d 943, 946 (Ala.1994). This “wall of immunity” is “nearly impregnable,” Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002), and bars “almost every conceivable type of suit.” Hutchinson v. Board of Trustees of Univ. of Ala., 288 Ala. 20, 23, 256 So.2d 281, 283 (1971). Moreover, if an action is an action against the State within the meaning of § 14, such a case “presents a question of subject-matter jurisdiction, which cannot be waived or conferred by consent.” Patterson, 835 So.2d at 142-43.

Section 14 prohibits actions against state officers in their official capacities when those actions are, in effect, actions against the State. Lyons v. River Road Constr., Inc., 858 So.2d 257, 261 (Ala.2003); Mitchell v. Davis, 598 So.2d 801, 806 (Ala.1992). “In determining whether an action against a state officer or employee is, in fact, one against the State, [a] [c]ourt will consider such factors as the nature of the action and the relief sought.” Phillips v. Thomas, 555 So.2d 81, 83 (Ala.1989). Such factors include whether “a result favorable to the plaintiff would directly affect a contract or property right of the State,” Mitchell, 598 So.2d at 806, whether the defendant is simply a “conduit” through which the plaintiff seeks recovery of damages from the State, Barnes v. Dale, 530 So.2d 770, 784 (Ala.1988), and whether “a judgment against the officer would directly affect the financial status of the State treasury,” Lyons, 858 So.2d at 261. Moreover, we note that claims against state officers in their official capacity are “functionally equivalent” to claims against the entity they represent. Hinson v. Holt, 776 So.2d 804, 810 (Ala.Civ.App.1998); see also McMillian v. Monroe County, Ala., 520 U.S. 781, 785 n. 2, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997)(noting that a suit against a governmental officer in his official capacity is the same as a suit against the entity of which the officer is an agent); Yeldell v. Cooper Green Hosp., Inc., 956 F.2d 1056, 1060 (11th Cir.1992) (holding that official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent). In this case, the commissioner represents DOC, which, as a department of the State, is entitled to sovereign immunity. Rodgers v. Hopper, 768 So.2d 963, 968 (Ala.2000) (holding that DOC is entitled to sovereign immunity under § 14, because a judgment against it would be paid from the treasury of the State).

The issue presented in this case is whether, in light of § 14, the commissioner, in his official capacity, may be assessed civil sanctions for his failure to comply with the trial court’s injunctive orders. The parties are unable to provide this Court with any precedent directly addressing this issue; indeed, this Court has found no caselaw addressing whether § 14 prevents the trial court from assessing contempt sanctions against the State.

It is clear that the particular sanctions in this case “directly affect the financial status of the state treasury.” Lyons, 858 So.2d at 261. While the counties claim that the sanctions punish the commissioner for his contempt and seek to compel compliance with the court’s orders, the effect of the trial court’s order is to impact the treasury and divest it of funds. Section 14, however, forbids such an assault on the state treasury. See Lyons, 858 So.2d at 261; see also Patterson, 835 So.2d at 142 (holding that § 14 prevents the State from being sued, and a suit against the state “ ‘cannot be indirectly accomplished by suing its officers or agents in their official capacity, when a result favorable to plaintiff would be directly to affect the financial status of the state treasury.’ ” (quoting State Docks Comm’n v. Barnes, 225 Ala. 403, 405, 143 So. 581, 582 (1932))); and Southall v. Stricos Corp., 275 Ala. 156, 158, 153 So.2d 234, 236 (1963) (holding that an action against an officer was, not an action against the State, because the relief sought would not “take away any property of the State, or fasten a lien on it, or interfere with the disposition of funds in the treasury”). Thus, we hold that the trial court’s order assessing against the commissioner in his official capacity monetary sanctions for contempt violates § 14.

III. Case No. 1020531

In case no. 1020534, the commissioner appeals from the trial court’s December 12, 2002, order, forbidding the counties from delivering to the state prison system more than a set number of inmates per week. The commissioner’s arguments on appeal do not explain specifically how this order is in error. However, the commissioner does allege, generally, that the trial court’s orders in these cases violate the separation-of-powers doctrine found in Ala. Const.1901, § 43. Specifically, the commissioner maintains that the trial court’s orders in these cases amount to the judicial branch “directing the administration of the state prison system,” The commissioner claims that because the Legislature has delegated this task to the executive branch, and not to the judiciary, the trial court is barred from issuing such orders.

We hold that the trial court’s December 12 order does not amount to an exercise of executive powers by the judicial branch. By enacting Ala.Code 1975, § 14-3-30, the Legislature has mandated that, when a state inmate is sentenced to the penitentiary, DOC direct how that inmate shall be received into the state penal system. The trial court’s order in this case does not attempt to “administer” DOC or to exercise the executive powers. Instead, it simply orders the commissioner to do what § 14-3-30 requires of DOC: to receive state inmates. The order does not violate § 43.

Conclusion

The trial court’s order of December 6, 2002, ordering the commissioner to pay sanctions for contempt is reversed. The trial court’s order of December 12, 2002, requiring DOC to accept a set number of inmates per week is affirmed. The appeals from the February 14, 2003, and March 13, 2003, orders are dismissed as moot. The causes are remanded for proceedings consistent with this opinion.

1020533 — REVERSED AND REMANDED.

SEE, HARWOOD, WOODALL, and STUART, JJ., concur.

LYONS, J., concurs in the judgment.

JOHNSTONE, J., concurs in the rationale in part and concurs in the judgment.

HOUSTON, J., recuses himself.

1020534 — AFFIRMED.

SEE, HARWOOD, WOODALL, and STUART, JJ., concur.

LYONS, J., concurs in the judgment.

JOHNSTONE, J., dissents.

HOUSTON, J., recuses himself.

1021048 — DISMISSED AS MOOT.

SEE, LYONS, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

HOUSTON, J., recuses himself.

1021049 — DISMISSED AS MOOT.

SEE, LYONS, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

HOUSTON, J., recuses himself.

JOHNSTONE, Justice

(concurring in part and dissenting in part).

I concur in the rationale in part and in the judgment insofar as the main opinion addresses case number 1020533. I agree that the State and its agencies are immune from suit for money damages or monetary penalties for contempt. The repeated statements in Part II, which addresses case number 1020533, to the effect that the State and its agencies are absolutely immune from suit in any court, however, fail to recognize the common and established exceptions to State immunity, such as the exceptions for suits seeking declaratory relief or performance of ministerial duties. Indeed, Part III of the main opinion relies on the exception for suits seeking performance of ministerial duties, although Part III does not expressly recognize the exception or cite the authority for it.

I respectfully dissent from the main opinion insofar as it, principally in Part III, affirms certain injunctive relief ordered by the trial court. The injunction requires far more than performance of a ministerial duty. The injunction orders the commissioner to receive prisoners at a rate that will often be so unsafe that it is illegal. Therefore, the injunction violates § 43, Ala. Const.1901, by usurping the executive power to execute the laws faithfully-

I concur in the main opinion insofar as it, principally in Part I, addresses cases number 1021048 and number 1021049. I agree that they be dismissed as moot.

      . Michael W. Haley, the named appellant in two of the appeals, was Campbell’s predecessor as commissioner. Rule 43(b), Ala. R.App. P., provides that ”[w]hen a public officer is a party to an appeal ... and during its pen-dency ... ceases to hold office, the action shall not abate and the public officer’s successor is automatically substituted as a party.”

      . Since the action was filed, several individuals have succeeded Thigpen as commissioner, including Michael W. Haley, the named appellant in case no. 1020533 and case no. 1020534. Donal Campbell is the current commissioner.

      .Alabama Code 1975, § 14-3-30(a), provides:
      "(a) When any convict is sentenced to the penitentiary, the judge of the court in which the sentence is rendered shall order the inmate to be confined in the nearest secure jail. The clerk of the court shall at once notify the Department of Corrections as to the jail where the inmate is confined, forward to the department a copy of the judgment entry and sentence in the case, and inform the department if any special care is necessary to guard the inmate. Thereupon, the department shall direct where the inmate shall be taken for confinement or hard labor.”

      . The trial court’s order, as well as the settlement agreement, can be found in Ex parte Glover, 801 So.2d 1, 3 n. 5 (Ala.2001).

      . Kilby Correctional Facility operates as DOC's processing and receiving center for state inmates.

      . Neither Todd, Thompson, nor their successors at the respective correctional facilities are parties to these appeals.

      . We do note that in Carter v. State ex rel. Bullock County, 393 So.2d 1368 (Ala.1981), this Court upheld a contempt "fine” against a county tax assessor who was being sued in both his official and individual capacities; however, the opinion in Carter did not address whether the sanctions violated § 14.

      . While we hold that § 14 forbids the use of monetary sanctions for contempt against a state official sued in his official capacity, this opinion does not address whether the trial court retains its other contempt powers, including incarceration.

      . During oral argument, the commissioner’s counsel acknowledged that DOC was, at that time, in compliance with this order.

      . Ala. Const.1901, § 43, states:
      "In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.”