author: PER CURIAM. MOORE, Chief Justice STUART, Justice

text:
    CHAMBERS COUNTY COMMISSION et al. v. CHAMBERS COUNTY BOARD OF EDUCATION et al.
    1010273.
    Supreme Court of Alabama.
    Nov. 22, 2002.
    Claud E. (Skip) McCoy, Jr., and Curt M. Johnson of Johnson, Caldwell & McCoy, Lanett, for appellants.
    W. Gregory Ward, Lanett, for appellees Chambers County Board of Education and the City of Lanett Board of Education.
    Alan K. Zeigler of Bradley Arant Rose & White, L.L.P., Birmingham, for appellee Chambers County Board of Education.
    Mary E. Pons, Montgomery, for amicus curiae Association of County Commissions of Alabama, in support of the appellants.
    David R. Boyd and Dorman Walker of Balch & Bingham, L.L.P., Montgomery, for amicus curiae Alabama Association of School Boards in support of the appellees.
   On Application for Rehearing

PER CURIAM.

This Court’s opinion of August 2, 2002, is withdrawn, and the following is substituted therefor.

The Chambers County Commission and the individual members of that Commission (hereinafter collectively referred to as “the Commission”) appeal from an order of the Chambers Circuit Court, issuing a writ of mandamus requiring the Commission to call a special election, as demanded by the Chambers County Board of Education (“the Board”), to allow the voters to consider a five-mill special school-district tax to be levied for a term of 20 years on property in Chambers County. We reverse and remand with instructions.

Background

At a meeting of the Commission held on August 20, 2001, the Board, in conjunction with the Board of Education for the City of Lanett, presented a resolution requesting that the Commission call a special election to propose the imposition of a special school-district tax. The resolution specified that the election be held on November 13, 2001, and that the assessment be at the rate of 5 mills and that it be imposed for 20 years.

However, the Commission did not act on the resolution but instead tabled the issue; the Commission indicated that it was delaying consideration of whether to schedule the requested special election until it could further examine the impact of a special election on the county’s budget. The Commission specifically noted that the special election the Board was requesting would cost in excess of $30,000; it further noted that the Commission did not have the money to fund such a special election and that funds for such a special election had not been included in the county’s budget.

The day after the Commission tabled the issue, the Board instituted this action, seeking a writ of mandamus compelling the Commission to hold the special election. The Board asserted that, pursuant to Amendment No. 3 and Amendment No. 202 to the Alabama Constitution of 1901, the Commission was required to call the special election, under the terms requested by the Board, for the purpose of considering the special school-district tax. The Board asserted that Amendment No. 3 and Amendment No. 202 authorized it to set the rate and term of any assessment considered for public school purposes and to specify the date for the special election. In its petition for a writ of mandamus, the Board asserted that the Commission had refused to act, and that, if the special election was not held as specified in the resolution, the voters of Chambers County would be deprivéd of their right to vote on the requested special assessment and the schools of Chambers County would suffer from a loss of funding.

The Commission answered the Board’s petition, asserting that the Board of Education for the City of Lanett was an indispensable party to the action. The Board agreed, and the Board of Education for the City of Lanett was added as a petitioner. (The Board of Education for the City of Lanett and the Board are hereinafter collectively referred to as “the Boards.”)

In its response, the Commission asserted that, because the Boards are purely administrative bodies, they had no power to levy or collect a tax unless that power had been expressly delegated to them by the constitution. The Commission argued that because the constitution had not delegated this power to the Boards, the Commission was the sole taxing authority for Chambers County. The Commission asserted that to allow the Boards to call a special election and to dictate the terms of that election would violate Art. XI, § 212, of the Alabama Constitution of 1901, and Amendment No. 202 to the Alabama Constitution.

The Commission noted that it had not refused to act but had merely tabled the issue for later consideration. The Commission further argued that the Boards had viable alternatives to holding a special election. The Commission pointed out that the issue of an additional tax assessment could be placed on the ballot for the June 2002 primary election at a cost to the county of only $500, while holding a special election would cost the county over $30,000.

The Commission asserted that the writ should not issue because, it says, the Boards did not have a clear legal right to the relief sought, the Commission had not refused to perform, and the Boards had available to them another adequate remedy. In short, the Commission argued that the Boards had not met the stringent standards required to justify the issuance of a writ of mandamus.

At a hearing before the Chambers Circuit Court on September 6, 2001, the parties submitted stipulated facts and presented oral arguments (no ore tenus evidence was presented to the trial court). On that day, the trial court entered its order issuing the writ of mandamus and holding that Amendment No. 3 and Amendment No. 202 of the Alabama Constitution of 1901 required the Commission to call a referendum in accordance with the terms in the Boards’ resolution. The trial court held that the Commission could not ignore its constitutionally mandated duty, regardless of the financial ramifications of performing that duty.

The Commission raises three issues on appeal:

“1. Pursuant to Amendment No. 202 to the 1901 Constitution of the State of Alabama, can [the Boards] dictate to [the Commission] the rate, term, and conditions of an ad valo-rem tax levy for educational purposes?
“2. Pursuant to Amendment No. 202 to the 1901 Constitution of the State of Alabama, can [the Boards] demand of [the Commission] the call of a special tax election on a date dictated by [the Boards] in regard to a county-wide ad valorem tax?
“3. Did [the Boards] sustain the burden of proof necessary for the Circuit Court of Chambers County, Alabama, to issue a Writ of Mandamus directing [the Commission] to order a special tax election at the tax rate, for the tax term, and on the date demanded by [the Boards]?”

We conclude that the Boards have no authority to invoke Amendment No. 202 at all. Therefore, we reverse the trial court’s order of September 6, 2001, issuing the writ of mandamus.

Discussion

The first sentence of Amendment No. 202 provides:

“The court of county commissioners, board of revenue, or other like governing body of each of the several counties in the state shall have the power to levy and collect a special county tax of not to exceed fifty cents on each one hundred dollars of taxable property....”

Despite this clear language, the Boards argue that the last sentence of Amendment No. 202 expressly authorizes a board of education to levy and collect the “additional property tax for county educational purposes,” by its reference to Amendment No. 3:

“The election provided for herein shall be called, held, conducted, paid for, and governed otherwise in the manner provided for an election on the school district tax authorized in constitutional amendment III [3].”

Amendment No. 3 addresses special school-district taxes in § 2:

“Section 2. The several school districts of any county in the state shall have power to levy and collect a special district tax not exceeding thirty cents on each one hundred dollars worth of taxable property in such district for public school purposes; provided, that a school district under the meaning of this section shall include incorporated cities or towns, or any school district of which an incorporated city or town is a part, or such other school districts now existing or hereafter formed as may be approved by the county board of education; provided further, that the rate of such tax, the time it is to continue and the purpose thereof shall have been first submitted to the vote of the qualified electors of the district and voted for by a majority of those voting at such election; provided further, that no district tax shall be voted or collected except in such counties as are levying and collecting not less than a three-mill special county school tax.”

The Boards, citing Runyan v. Thompson, 232 Ala. 390, 390, 168 So. 423, 423-24 (1936), point out that, although § 2 of Amendment No. 3 authorizes the levy of a special school-district tax, “the machinery for putting [that tax] into effect is provided by the Legislature.” Thus, the Boards argue, this Court must look to the enabling legislation for guidance as to how a special school-district tax levied pursuant to § 2 of Amendment No. 3 is to be implemented. The Boards also assert that this Court must refer to that same enabling legislation for guidance as to how a property tax levied pursuant to Amendment No. 202 is to be implemented.

The enabling legislation for Amendment No. 3 is codified at § 16-13-180 and § 16-13-181, Ala.Code 1975. Accordingly, the Boards argue that we must consider and construe §§ 16-13-180 and 16-13-181, Ala. Code 1975, to determine whether the Boards are entitled to set the rate and term of any property-tax assessment considered pursuant to Amendment No. 202 for county educational purposes and whether the Boards are entitled to set the date of a special election pursuant to Amendment No. 202.

Section 16-13-180, Ala.Code 1975, provides:

“Upon a petition signed by 200 or more qualified electors of any county to the county commission, said county commission shall order an election to be held at the time specified in said petition to determine whether or not a special tax shall be levied for public school purposes within said county; and, upon request of the county board of education to the county commission, said court shall order an election to be held at the time requested by the said board of education to determine whether or not a special tax shall be levied for public school purposes within any school tax district in the county under the control of such board; and, upon the request of any city board of education to the county commission, said court shall order an election to be held at the time requested by said board of education to determine whether or not a special tax shall be levied for public school purposes within said city.”

Section 16-13-181, Ala.Code 1975, provides:

“Upon the written request of the county board of education or of the .board of education of any city having a city board of education for a special election in any school tax district under the control of the respective board, the county commission shall call an election at the time and for the rural or city school tax districts as requested by the respective board of education and shall appoint three managers and one returning officer for each voting place in the school tax district or at such special voting places as may be designated for the special election by the judge of probate of the county who shall locate such voting places, upon the recommendation of the county board of education, and such special voting places shall be set out in the notices of the special election.”

The essence of the Boards’ arguments is that the last sentence of Amendment No. 202 grants the Boards the substantive five-mill taxing power granted to the county governing body by the first sentence of Amendment No. 202 and that, therefore, the Boards can invoke Amendment No. 202 for the purpose of calling an election and levying the five-mill tax. The last sentence of Amendment No. 202 reads: “The election provided for herein shall be called, held, conducted, paid for, and governed otherwise in the manner provided for an election on the school district tax authorized in constitutional amendment III [ 3].” Amendment No. 3 authorizes only a three-mill tax.

The Boards’ rationale fails for several reasons. First, the only provision in Amendment No. 202 substantively addressing the power to tax is the first sentence, which grants five-mill taxing power only to the county governing body — not to any school board. The last sentence of Amendment No. 202 purports only to provide for an election procedure, not to provide for any extension or expansion of the substantive five-mill taxing power. Second, the last sentence of Amendment No. 202 is a general provision, which, as a matter of construction, cannot countermand the express, specific provisions of the first sentence limiting the five-mill taxing power to the county governing body. Summers v. State, 244 Ala. 672, 673, 15 So.2d 502, 503 (1943); Cherokee County v. Cunningham, 260 Ala. 1, 4, 68 So.2d 507, 510 (1953); and Ex parte E.J.M., 829 So.2d 105, 108-09 (Ala.2001). Third, the reference to Amendment No. 3 in the last sentence of Amendment No. 202, which grants only three-mill taxing power, can hardly serve as a vehicle to grant the Boards five-mill taxing power.

For these reasons, only the county governing body — not the Boards — has standing to invoke Amendment No. 202 as a matter of right. The effort of the Boards to invoke Amendment No. 202 for its five-mill taxing power was unauthorized and ineffectual. Therefore, § 16-13-180 and § 16-13-181, Ala.Code 1975, cited by the Boards as the enabling legislation for Amendment No. 202, are not germane to this case.

For these reasons, the Boards were not entitled to a writ of mandamus to enforce the Boards’ claim to taxing power under Amendment No. 202. Therefore, the order of the trial court issuing the writ is reversed and the cause is remanded with instructions for the trial court to vacate its writ.

APPLICATION GRANTED; OPINION OF AUGUST 2, 2002, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED WITH DIRECTIONS.

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

MOORE, C.J., and HOUSTON and BROWN, JJ., concur in the result.

STUART, J., concurs in the result and dissents from the rationale.

MOORE, Chief Justice

(concurring in the result).

I agree with Justice Stuart that this case is better decided on the principle of the nondelegation of legislative power, rather than on the strained reading of Amendment No.-202 relied upon in the per curiam opinion. School boards are administrative bodies to which the Legislature has not delegated- — and cannot delegate— taxing powers that are reserved to it and its subordinate representative bodies by the Alabama Constitution. The constitutional provisions at issue in this case must be given a reasonable reading, one that avoids contradicting the nondelegation principle. Although I cannot adopt the reasoning of the main opinion, I agree with the conclusion it reaches that the Chambers Circuit Court’s decision to issue a writ of mandamus to the Commission is due to be reversed.

STUART, Justice

(concurring in the result and dissenting from the rationale).

I concur in the result reached by the per curiam opinion. However, I dissent from the rationale of that opinion, particularly from the following statement: “The essence of the Boards’ arguments is that the last sentence of Amendment No. 202 grants the Boards the substantive five-mill taxing power granted to the county governing body by the first sentence of Amendment No. 202 and that, therefore, the Boards can invoke Amendment No. 202 for the purpose of calling an election and levying the five-mill tax.” 852 So.2d at 106. I also dissent from the statement that “§ 16-13-180 and § 16-13-181 ... are not germane to this case.” 852 So.2d at 107.

In arguing that they have the right to set the date of an election for the tax requested and the right to set the rate and the term of the requested tax, the Boards expressly rely upon the language of § 16-13-181, Ala. Code 1975. The Boards also rely upon the fact that Amendment No. 202 expressly provides that an election on the tax authorized in that Amendment is to be conducted in the same manner as an election on the school-district tax authorized in Amendment No. 3. As the per curiam opinion recognizes, § 2 of Amendment No. 3 authorizes the levy of special school-district taxes, but “the machinery for putting [those taxes] into effect is provided by the Legislature.” Runyan v. Thompson, 232 Ala. 390, 390, 168 So. 423, 423-24 (1936). It is undisputed that the enabling legislation for Amendment No. 3 is found at § 16-13-180 and § 16-13-181, Ala.Code 1975.

Thus, the reference in Amendment No. 202 to “the manner provided for an election on the school district tax authorized in constitutional amendment III [3]” is not a reference to the first sentence of Amendment No. 202, nor is it a reference to the language of Amendment No. 3; it is a reference to § 16-13-180 and § 16-13-181. The per curiam opinion simply ignores or misconstrues the Boards’ arguments. I feel compelled to address them.

I. Do the Boards have the authority to set the rate and term of property-tax assessments considered pursuant to Amendment No. 202?

The Boards argue that the following language of § 16-13-181 authorizes them to set the rate and term of any property-tax assessment considered under Amendment No. 202:

“Upon the written request of the county board of education or the board of education of any city ... for a special election in any school tax district under the control of the respective board, the county commission shall call an election at the time and for the rural or city school tax districts as requested by the respective board of education.... ”

(Emphasis added.) The Boards argue that the “as requested” language in § 16-13-181 — “the county commission shall call an election ... as requested by the respective board of education” — requires the Commission to set the special election under any terms requested by the Boards — including the rate and term of any special property-tax assessment to be considered by the voters. However, I find nothing in § 16-13-180 or § 16-13-181 that grants the boards of education of this state the authority to set the rate and term of a property-tax assessment considered under Amendment No. 202.

As this Court has previously recognized, setting the rate of taxation is inherently a part of the power of “levying” taxes. See Opinion of the Justices No. 263, 379 So.2d 939, 940-41 (Ala.1980). If this Court interpreted “as requested” to mean that the Boards possessed the power to set the rate of the property-tax assessments considered pursuant to Amendment No. 202, we would be interpreting a legislative enactment to grant boards of education the power to levy taxes. I cannot interpret that phrase so broadly as to contradict Art. XI, § 212, of the Alabama Constitution of 1901, which provides: “The power to levy taxes shall not be delegated to individuals or private corporations or associations.” See Opinion of the Justices No. 211, 291 Ala. 262, 266, 280 So.2d 97, 101 (1973) (“Boards of education being administrative in nature cannot be deemed municipal corporations having powers of taxation, a purely legislative function.”).

This rationale is equally applicable to the question of setting the term of any assessment to be considered under Amendment No. 202. For the same reason that setting the rate of taxation is inherently a part of the power to levy a tax, setting the term of a tax is also part and parcel of that same power. I find no other express grant of authority in Amendment No. 202 or in §§ 16-13-180 and 16-13-181 empowering the Boards to dictate the rate or term of the property-tax assessments considered pursuant to Amendment No. 202.

For these reasons I agree with the conclusion reached by the per curiam opinion that the Boards have no authority to set the rate of special property-tax assessments considered under Amendment No. 202; also for these reasons, I agree with the per curiam opinion that the Boards have no authority to set the term of any special property-tax assessments considered under Amendment No. 202.

II. Do the Boards have the authority to set the date of the election?

The Boards also argue that the language found in § 16-13-181 — “the county commission shall call an election at the time ... requested by the respective board of education” — requires the Commission to call an election for consideration of a special property tax proposed pursuant to Amendment No. 202 on any date selected by the Boards. I also note that § 16-13-180 contains similar language:

“[ U]pon request of the county board of education to the county commission, said court shall order an election to be held at the time requested by the said board of education to determine whether or not a special tax shall be levied for public school purposes within any school tax district in the county under the control of such board....”

These statutes repeatedly use mandatory language; they specifically provide that the Commission “shall” call the election at the.time requested by the Boards. Thus, as written, § 16-13-180 and § 16-13-181 require the Commission to call the election on the date selected by the Boards. I note that the county is required to fund these elections, which, because of the language of Amendment No. 202, may be called repeatedly.

I find this purported grant of power to boards of education problematic. A legislative enactment that allows a .board of education to determine the date on which an election shall take place, particularly with no limitation as to how often that power may be exercised and that gives no discretion to the county’s governing body to control that process, gives the board of education unfettered control over a county’s budget. Although there is no absolute and universal standard for determining those powers that a legislative body must itself exercise and those that may be delegated to an administrative agency, see State v. Vaughan, 30 Ala.App. 201, 4 So.2d 5 (1941), it is clear that the power to control the financial affairs of a county belongs to the governing body of a county and not to a board of education. See § 11-8-1 et seq., Ala.Code 1975 (placing the financial control of a county in the hands of the county commission); see also Geneva County Comm’n v. Tice, 578 So.2d 1070 (Ala.1991), in which this Court stated:

“We reiterate the holding in Morgan County Comm’n v. Powell[, 292 Ala. 300, 293 So.2d 830 (1974),] that ‘the true intent of the legislature was to place in the county governing body, which body appropriates the public monies, the final say-so in the disposition of such funds, and thus centralize in the legislative body a function lawfully and traditionally delegated to that body by the legislature.’ 292 Ala. at 310, 293 So.2d at 839.”

578 So.2d at 1075.

Determining the proper expenditure of county funds is a legislative function; it is not an administrative one. For the same reason the Legislature may not delegate the power to levy taxes to an administrative board, it may not delegate the power to control the county’s budget to the county board of education. See Freeman v. City of Mobile, 761 So.2d 235, 236-37 (Ala.1999) (“although the Legislature can delegate the power to make rules and regulations for the ‘purpose of carrying [the law] into practical effect and operation ... and to secure an effective execution of the same,’ ... it cannot delegate the power to repeal, amend, or otherwise supplant an act of the Legislature”); Folsom v. Wynn, 631 So.2d 890, 894 (Ala.1993) (“the Legislature may not constitutionally delegate its powers, whether the general power to make law or the powers encompassed within that general power, including the ‘power of the purse’ ”).

Additionally, I read § 16-13-180 to require a county commission to levy the tax if approved by the voters of that county. (See § 16-13-180, which provides, in part: “upon request of the county board of education to the county commission, said court shall order an election to be held at the time requested ... to determine whether or not a special tax shall be levied ” (emphasis added).) Requiring such action by a county commission conflicts with the permissive nature of the powers granted county commissions in Amendment No. 202 (“The court of county commissioners ... shall have the power to levy and collect a special county tax....”). The statute’s mandatory language also violates governing legal principles recognized in Opinion of the Justices No. 211:

“The provision in the bill permitting the question of whether to permit the question of levying the tax be submitted to the qualified voters is constitutionally permissible if such question is submitted by the governing body of a county, and not by a board of education, and provided further that the result of such vote be considered as advisory only, it being clear under governing legal principles that the ultimate question of levying such tax can be accomplished only by an ordinance enacted by the governing body of a county.”

291 Ala. 262, 267, 280 So.2d 97, 101. See also Opinion of the Justices No. 168, 270 Ala. 42, 115 So.2d 475 (Ala.1959) (recognizing that the actual and final decision whether to levy a tax must be made by the governing body of a county, even if that governing body refuses to levy a tax approved by the voters).

For these reasons, I believe that § 16-18-180 and § 16-16-13-181, Ala.Code 1975, improperly allow the boards of education to control the financial affairs of the county and represent an improper delegation of legislative power to an administrative agency. I would also find that § 16-13-180 and § 16-13-181, to the extent they purport to require county commissions to set an election on the date requested by the boards of education, are unenforceable as written. I would also find that § 16-13-180 improperly attempts to require county commissions to exercise their powers of taxation.

III. Does § 2 of Amendment No. 3 authorize boards of education to levy a special school-district tax?

In its application for rehearing, the Chambers County Board of Education asserts that, although it is not now seeking and has never sought the power to levy a tax, boards of education possess this power by virtue of § 2 of Amendment No. 3. Because whether § 2 of Amendment No. 3 grants the boards of education the power to levy a special school-district tax is not essential to resolution of the issues raised on appeal, I need not address the validity of this argument in this writing. That issue must await another day.

APPENDIX A

Applicable Constitutional Provisions

Art. XI, § 212, Ala. Const, of 1901

The power to levy taxes shall not be delegated to individuals or private corporations or associations.

Amendment No. 202, Ala. Const, of 1901

Additional Property Tax for County Educational Purposes

The court of county commissioners, board of revenue, or other like governing body of each of the several counties in the state shall have the power to levy and collect a special county tax of not to exceed fifty cents on each one hundred dollars of taxable property, in addition to all other taxes now or hereafter authorized by the Constitution and laws of Alabama, for educational purposes, on the value of the taxable property in the county as assessed for state taxation, provided the purpose thereof, and the time such tax is proposed to be continued shall have been first submitted to a vote of the qualified electors of the county and voted for by a majority of those voting at such election. If any proposal to levy the tax is defeated in any election, subsequent elections thereon may be held at any time. The election provided for herein shall be called, held, conducted, paid for, and governed otherwise in the manner provided for an election on the school district tax authorized in constitutional amendment III [3].

Amendment No. 3, Ala. Const, of 1901

Special School Tax Amendment

Article XIX, Section 1. The several counties in the state shall have power to levy and collect a special county tax not exceeding thirty cents on each one hundred dollars worth of taxable property in such counties in addition to that now authorized or that may hereafter be authorized for public school purposes, and in addition to that now authorized under section 260 of article XIV of the Constitution; provided, that the rate of such tax, the time it is to continue and the purpose thereof shall have been first submitted to the vote of the qualified electors of the county, and voted for by a majority of those voting at such election.

Section 2. The several school districts of any county in the state shall have power to levy and collect a special district tax not exceeding thirty cents on each one hundred dollars worth of taxable property in such district for public school purposes; provided, that a school district under the meaning of this section shall include incorporated cities or towns, or any school district of which an incorporated city or town is a part, or such other school districts now existing or hereafter formed as may be approved by the county board of education; provided further, that the rate of such tax, the time it is to continue and the purpose thereof shall have been first submitted to the vote of the qualified electors of the district and voted for by a majority of those voting at such election; provided further, that no district tax shall be voted or collected except in such counties as are levying and collecting not less than a three-mill special county school tax.

Section 3. The funds arising from the special county school tax levied and collected by any county shall be apportioned and expended as the law may direct, and the funds arising from the special school tax levied in any district which votes the same independently of the county shall be expended for the exclusive benefit of the district, as the law may direct.

APPENDIX B

Applicable Code Provisions

Article 9

County and District Three-Mill School Taxes

§ 16-13-180. Petition for election; calling of election.

Upon a petition signed by 200 or more qualified electors of any county to the county commission, said county commission shall order an election to be held at the time specified in said petition to determine whether or not a special tax shall be levied for public school purposes within said county; and, upon request of the county board of education to the county commission, said court shall order an election to be held at the time requested by the said board of education to determine whether or not a special tax shall be levied for public school purposes within any school tax district in the county under the control of such board; and, upon the request of any city board of education to the county commission, said court shall order an election to be held at the time requested by said board of education to determine whether or not a special tax shall be levied for public school purposes within said city.

§ 16-13-181. Request by board of education for election.

Upon the written request of the county board of education or of the board of education of any city having a city board of education for a special election in any school tax district under the control of the respective board, the county commission shall call an election at the time and for the rural or city school tax districts as requested by the respective board of education and shall appoint three managers and one returning officer for each voting place in the school tax district or at such special voting places as may be designated for the special election by the judge of probate of the county who shall locate such voting places, upon the recommendation of the county board of education, and such special voting places shall be set out in the notices of the special election.

      .A “mill” equals one-tenth of a cent. Thus, the references in the Alabama Constitution and in statutes to "fifty cents on each one hundred dollars” and to “thirty cents on each one hundred dollars,” are the equivalent of five mills and three mills, respectively. The constitutional and statutory provisions discussed in this opinion use these terms interchangeably; those constitutional and statutory provisions are attached to this opinion as Appendix A ("Applicable Constitutional Provisions”) and Appendix B ("Applicable Code Provisions”).

      . The Board’s resolution specified that any proceeds received from the five-mill assessment were to be used only for "capital purposes, including the payment of indebtedness heretofore or hereafter incurred for capital purposes.”

      . A motion was made and seconded to call the election as requested by the Board. A motion was then made to table the motion calling for the election. The tabling motion passed by a vote of 4-2.

      . The Commission argued that § 16-13-180 and § 16-13-181, Ala.Code 1975, which purportedly granted the Boards the power to dictate the date of any special election, as well as the power to set the rate and term of any special tax assessment, must be construed so as not to violate the Alabama Constitution; otherwise, it argues, those statutes must be declared unconstitutional. The Commission notified the Alabama attorney general that it was challenging the constitutionality of a statute. Although the record does not contain a waiver of service from the attorney general, according to the Boards the attorney general declined to participate in this action.

      . The Commission asserted that the special election demanded by the Board would have cost the county approximately $30,000, whereas if the election was held on the date proposed by the Commission it would cost the county only $500. The Commission also argued that, under the Boards’ interpretation of the constitution and the pertinent statutes, the Boards could repeatedly call for special elections regarding additional property taxes and the Commission would have no choice but to fund every such request, regardless of the expense associated with those special elections. The Commission asserted that such an interpretation defeats the Commission’s authority to set the budget for Chambers County and to control county funds.

      . The successor statutes to §§ 261-270 of the School Code of 1927 are found at § 16 — 13— 180 et seq., Ala.Code 1975. Section 16 — 13— 180 is the successor to § 261 of the 1927 School Code; § 16-13-181 is the successor to § 265 of the 1927 School Code.

      . Additionally, the trial court’s order expressly relied upon those Code sections in issuing the writ of mandamus directing the Commission to hold a special election.

      . The Boards relied upon § 16-13-181, Ala. Code 1975, before the trial court; additionally, the trial court’s order expressly relied upon that Code section in issuing the writ of mandamus to the Commission.

      . Amendment No. 202 provides that "[i]f any proposal to levy the tax is defeated in any election, subsequent elections thereon may be held at any time.”

      . Because other constitutional amendments also adopt the election mechanism referenced in § 2 of Amendment No. 3 governing school-district taxes, § 16-13-180 and § 16-13-181 purport to grant this same power to set election dates to boards of education in other seemingly illogical contexts. See, e.g., Amendment No. 269 (authorizing the levy of a tax for “public library purposes” in any county or incorporated municipality and adopting the election mechanism applicable to school-district taxes referenced in Amendment No. 3, § 2); Amendment No. 311 (authorizing the levy of a tax for "general health purposes” in Lawrence, Limestone, and Morgan Counties and adopting the election mechanism applicable to school-district taxes referenced in Amendment No. 3, § 2). Thus, if § 16-13-180 and § 16-13-181 are enforceable, a county commission must call a special election whenever its county board of education so demands for the purpose of considering a special property tax for "public library purposes”; likewise, the county commissions in Lawrence, Limestone, and Morgan Counties must call a special election whenever the boards of education in those counties so demand for purposes of considering a special property tax for "general health purposes.”

      . Only the Chambers County Board of Education sought a rehearing of this Court’s earlier opinion; the Board of Education for the City of Lanett did not join in the application for rehearing. The Chambers County Board of Education argues in its application for rehearing that this Court’s original per curiam opinion, in which this Court stated that "any attempt by the Legislature to delegate to a board of education the legislative powers of taxation is improper” was "overbroad and wrong.”


source: Caselaw Access Project

author: PER CURIAM. HOUSTON, Justice STUART, Justice

license: Public Domain

text:
    Ex parte James B. WHARTON. (In re Ricky Dunn and Sally Clark Hammonds, as personal representatives and co-adminstrators of the estate of Jan Parks Dunn, deceased v. James B. Wharton et al.)
    1011935.
    Supreme Court of Alabama.
    Nov. 27, 2002.
    Rebecca A. Walker, Gadsden, for petitioner.
    Michael L. Roberts of Cusimano, Keener, Roberts, Kimberley & Miles, P.C., Gadsden; and James R. Berry of Berry & Associates, Albertville, for respondents.
   PER CURIAM.

PETITION DENIED. NO OPINION.

MOORE, C.J., and SEE, LYONS, JOHNSTONE, HARWOOD, and WOODALL, JJ., concur.

HOUSTON, BROWN, and STUART, JJ., dissent.

HOUSTON, Justice

(dissenting).

On April 26, 1994, what is now Ala.Code 1975, § 6-5-338(a) became law. On December 28, 1999, James B. Wharton, an Alabama state trooper, while performing his assigned duties as a state trooper, was involved in an accident that caused the death of Jan Parks Dunn, the plaintiffs’ intestate.

I would grant the petition and issue the writ because Trooper Wharton had “immunity from tort liability arising out of his ... conduct in performance of any discretionary function within the line and scope of his ... law enforcement duties.” Ala. Code 1975, § 6-5-338(a).

STUART, Justice

(dissenting).

I respectfully dissent from the majority’s refusal to issue a writ of mandamus directing the trial court to enter a summary judgment on all claims asserted against the petitioner, James B. Wharton, an Alabama state trooper, based on State-agent immunity.

On December 28, 1999, Trooper Wharton was operating a traffic radar gun on Union Grove Road; he clocked a yellow Ford Mustang automobile, traveling at 74 miles per hour in an area where the posted speed limit was 45 miles per hour. Trooper Wharton activated his blue lights and siren and pursued the Mustang. The driver of the Mustang did not stop, but instead accelerated. Trooper Wharton pursued the Mustang for approximately two minutes before he lost control of his vehicle and collided with a vehicle driven by Jan Parks Dunn. Dunn died as a result of injuries she sustained in the collision.

On July 14, 2000, Ricky Dunn and Sally Clark Hammonds, as personal representatives and co-administrators of the estate of Jan Parks Dunn, sued Trooper Wharton, alleging that he had negligently caused Dunn’s death. Trooper Wharton filed a motion for a summary judgment on the ground that he was entitled to State-agent immunity. The trial court denied his motion for a summary judgment, holding that “material facts are in dispute which call in question whether or not [Trooper Wharton] exercised ‘due regard’ ” for the safety of others, as required in § 32-5A-7(d), Ala.Code 1975.

Trooper Wharton asks this Court to direct the trial court to enter a summary judgment in his favor on the ground that he is protected against civil liability for his actions by the doctrine of State-agent immunity.

First, I agree with Justice Houston, who notes in his dissent that a summary judgment in favor of Trooper Wharton is proper in light of § 6-5-338(a), Ala.Code 1975. That section provides:

“Every peace officer, except constables, who is employed or appointed pursuant to the Constitution or statutes of this state, whether appointed or employed as such peace .officer by the state or a county or municipality thereof, or by an agency or institution, corporate or otherwise, created pursuant to the Constitution or laws of this state and authorized by the Constitution or laws to appoint or employ police officers or other peace officers, and whose duties prescribed by law, or by the lawful terms of their employment or appointment, include the enforcement of, or the investigation and reporting of violations of, the criminal laws of this state, and who is empowered by the laws of this state to execute warrants, to arrest and to take into custody persons who violate, or who are lawfully charged by warrant, indictment, or other lawful process, with violations of, the criminal laws of this state, shall at all times be deemed to be officers of this state, and as such shall have immunity from tort liability arising out of his or her conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties.”

(Emphasis added.)

The language of this statute is clear, and the statute is applicable to this situation. Trooper Wharton is a peace officer employed pursuant to the Constitution or statutes of this State to serve and protect the people of Alabama. His responsibilities include the enforcement of the criminal laws — including traffic laws — of this State. He is empowered by the laws of this State to arrest and to take into custody persons who violate the criminal laws of this State. When exercising those duties, Trooper Wharton is an officer of the State and therefore has “immunity from tort liability arising out of his ... conduct in performance of any discretionary function within the line and scope of his ... law enforcement duties.” Trooper Wharton’s decision to pursue the speeding vehicle was within the line and scope of his duties as a law-enforcement officer to protect the citizens of Alabama during their travels along the roads of this State. Consequently, he is entitled, pursuant to § 6-5-338(a), Ala.Code 1975, to immunity from tort liability in a case such as this one.

Moreover, Trooper Wharton is entitled to State-agent immunity pursuant to this Court’s holding in Ex parte Cranman, 792 So.2d 392 (Ala.2000). In Cranman, this Court stated:

“A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s
“(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons ....
“Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
“(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or
“(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.”

792 So.2d at 405.

My review of Trooper Wharton’s immunity claim in light of the Cranman standard indicates that Trooper Wharton is protected under the doctrine of State-agent immunity because the accident occurred while he was discharging his duty to enforce the criminal laws of the State.

The evidence before us indicates that Trooper Wharton’s decision to pursue the Mustang, which was traveling in excess of the speed limit and endangering the safety of other drivers, was made while he was acting in his official capacity. Trooper Wharton pursued the Mustang for approximately two minutes before he lost control of his vehicle and hit Dunn’s vehicle. James Patterson, the leader of the Alabama Department of Public Safety accident investigation team that analyzed the accident, testified that the review board for the Alabama Department of Public Safety found that Trooper Wharton was not negligent. The investigation indicated that Trooper Wharton was unable to safely negotiate a curve in the road where the accident occurred because during the pursuit he was driving approximately 13 miles per hour above the speed at which it is possible to negotiate the curve without entering the oncoming lane of traffic. Additionally, the evidence indicated that Trooper Wharton failed to perceive the actual radius of the curve and to observe a dip in the surface of the road. The review board concluded that the evidence indicated that Trooper Wharton had followed all the orders, regulations, and State laws required of a law-enforcement officer engaged in a vehicle pursuit.

Section 32-5A-7(b)(3), Ala.Code 1975, authorizes a law-enforcement officer pursuing a violator of the law to “[e]xceed the maximum speed limits so long as he does not endanger life or property.” Indeed, the officer is not relieved of the duty to exercise “due regard for the safety of all persons” during the pursuit. § 32-5A-7(d). However, “[t]he mere fact that a police officer exceeds the maximum speed limit during a pursuit ... does not present a genuine issue of material fact as to the liability of that officer for negligence.” Doran v. City of Madison, 519 So.2d 1308, 1314 (Ala.1988).

Nothing before us indicates that Trooper Wharton was not acting without “due regard” for the safety of others. Trooper Wharton was authorized to pursue the driver of the vehicle, who was violating the law. He followed the applicable policies and procedures of the Department of Public Safety before and during the pursuit. Trooper Wharton was engaged in pursuit of the fleeing vehicle for approximately two minutes before the accident occurred. During the pursuit, Trooper Wharton did exceed the speed at which he could safely navigate the curve, but nothing indicates that in doing so he was acting without “due regard” for his safety or for the safety of others. Nothing before us indicates that another law-enforcement officer when confronted with the same or similar circumstances would have reacted differently or driven differently. Indeed, the report of the investigation team indicates that Trooper Wharton exercised the standard of care expected of a law-enforcement officer engaged in hot pursuit. Additionally, while Trooper Wharton may have misjudged the speed at which he could safely navigate the curve, nothing before us indicates that Trooper Wharton acted willfully, maliciously, fraudulently, in bad faith, or beyond his authority.

While it is easy to question Trooper Wharton’s judgment during the pursuit in light of the resulting accident and fatality, at the time of the incident, Trooper Wharton was exercising his judgment in the enforcement of the criminal laws of this State. To hold that there is a genuine issue of material fact in this case when Trooper Wharton was pursuing a driver who was violating the traffic laws of this State and endangering the safety of other drivers, imposes upon all law-enforcement officers “the responsibility to ponder and ruminate over decisions that should be made in a split second.” White v. Birchfield, 582 So.2d 1085, 1087 (Ala.1991).

Viewing the facts in a light most favorable to Dunn, I would conclude that there is no genuine issue of material fact as to whether Trooper Wharton exercised “due regard” for the safety of others during his pursuit. There is no evidence indicating that Trooper Wharton acted beyond his authority or without “due regard” as compared to other law-enforcement officers engaged in hot pursuit. State-agent immunity protects law-enforcement officers of the State in the exercise of their judgment in enforcing the laws of this State. While I acknowledge that in hindsight Trooper Wharton’s actions may appear unwise and questionable, his decision to enforce the laws of this State and to pursue a traffic offender was, in this situation, within the scope of his judgment as a state trooper. Applying the Cranman standard to the facts of this case, I conclude that the trial court erred in denying Trooper Wharton’s motion for a summary judgment.

In light of the foregoing, I respectfully dissent. In dissenting, however, I do not mean to negate the gravity of this accident. The grief of the victim’s family and the burden Trooper Wharton must carry-are profound.

BROWN, J., concurs.


author: STUART, Justice. JOHNSTONE, Justice

text:
    Ex parte John A. HAYLES and Terry L. McDuffie. (In re Dalton Phillips et al. v. Alabama Department of Conservation and Natural Resources et al.)
    1011811.
    Supreme Court of Alabama.
    Nov. 27, 2002.

      William H. Pryor, Jr., atty. gen., and Scott L. Rouse, asst. atty. gen., for petitioners.
    Dana G. Taunton of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery; and James E. Williams of Melton, Espy & Williams, P.C., Montgomery, for respondents.
    William H. Pryor, Jr., atty. gen.; J. Coleman Campbell, deputy atty. gen.; and James E. Long, asst. atty. gen., for amicus curiae State of Alabama Department of Human Resources.
   STUART, Justice.

The petitioners, John A. Hayles and Terry L. McDuffie, employees of the Alabama Department of Transportation (“AL-DOT”), filed this petition for a writ of mandamus directing Judge Charles Price to dismiss all claims against them in their individual capacities based on State-agent immunity.

In Ex parte Butts, 775 So.2d 173 (Ala.2000), this Court provided the underlying facts of this cause of action:

“The Alabama Department of Conservation and Natural Resources (‘ADOC’) owned a bridge over Lake Martin known as the Old Kowaliga Bridge (‘the old bridge’). When a new Kowaliga Bridge was constructed to take the place of the old bridge, ADOC closed the old bridge to traffic and designated it for use as a public fishing pier. The old bridge fell into a state of disrepair, and ADOC decided to demolish it. ADOC solicited bids for the demolition project. The Alabama Department of Transportation (‘ALDOT’) offered the lowest bid, at $ 67,681; ADOC accepted that bid. AL-DOT formulated a plan and assembled a crew for the demolition project. During the demolition of the old bridge, however, it collapsed prematurely. Two AL-DOT employees, Randall Phillips and Frank Williams, who were working on the old bridge when it collapsed, died when pieces of the old bridge pinned them at the bottom of Lake Martin.
“The widows of Phillips and Williams, acting as administratrices of their husbands’ estates, along with their minor children (hereinafter the widows and the minor children will be sometimes referred to collectively as ‘the families’), sued ADOC; ALDOT; [James D.] Martin, the former director of ADOC; [Jimmy] Butts, the former director of ALDOT; [Ray] Bass, ALDOT’s chief engineer; [Douglas ‘Mitch’] Kilpatrick, ALDOT’s chief maintenance engineer; [Terry L.] McDuffie, an assistant bridge-maintenance engineer for AL-DOT; [Bob] Campbell, an assistant bridge-maintenance engineer for AL-DOT; and [John A.] Hayles, the supervisor of the ALDOT work crew to which Phillips and Williams were assigned. Each of the individual defendants was sued in both his official capacity and his individual capacity. The families’ complaint alleged (1) that Butts had negligently or wantonly authorized the use of ALDOT personnel to demolish the bridge; (2) that Martin had negligently or wantonly allowed ALDOT to use unqualified personnel to demolish the bridge; (3) that the defendants had negligently or wantonly failed to halt the demolition project after discovering that insufficient funds had been allocated to the project; (4) that the defendants had negligently or wantonly hired, trained, and/or supervised the personnel assigned to demolish the bridge; (5) that Bass had negligently or wantonly submitted ALDOT’s bid for the project; (6) that Kilpatrick had negligently or wantonly developed the plan to demolish the bridge; (7) that McDuffie, Campbell, and Hayles had negligently or wantonly implemented the plan; and (8) that Kilpatrick, McDuffie, Campbell, and Hayles had negligently or wantonly assumed the duties of a ‘bridge and/or structural engineer,’ without proper qualifications for those duties.”

775 So.2d at 175.

In Butts, several employees of ALDOT, including McDuffie and Hayles, petitioned this Court for a writ of mandamus directing the trial court, among other things, to dismiss the claims against them in their individual capacities. We, however, denied the petition as to that request, stating:

‘We emphasize that this mandamus petition asks for a writ directing the circuit judge to dismiss claims against the defendants, not to enter a judgment for them on the merits.
“... At first blush, it appears that some claims, such as those regarding the use of personnel, hiring and supervising personnel, and the formulation of the demolition plan, are due to be dismissed, pursuant to the [Ex parte ] Cranman[, 792 So.2d 392 (Ala.2000),] test. However, if any employee failed to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist, or acted willfully, maliciously, fraudulently, in bad faith, beyond his authority, or under a mistaken interpretation of the law, then it is possible that that employee would not be entitled to State-agent immunity. ... It is eon-ceivable that the families could prove facts that would show that one or more of the employees failed to discharge duties pursuant to a checklist or acted willfully, maliciously, fraudulently, in bad faith, beyond his authority, or under a mistaken interpretation of the law. If so, the families ‘may possibly prevail’ on their claims. Therefore, the trial court properly denied the employees’ motion to dismiss the claims stated against them in their individual capacities.”

775 So.2d at 177-78 (emphasis added).

We acknowledged in Butts that after the parties conducted discovery, the employees would have the opportunity to seek a summary judgment on the ground that they are entitled to State-agent immunity and that if the trial court denied the employees’ motion for a summary judgment, they could petition this Court for a writ of mandamus. 775 So.2d at 178.

After we issued our opinion, the parties conducted extensive discovery, and the employees moved for a summary judgment on the ground that they are entitled to State-agent immunity. The trial court entered a summary judgment for all the employees except Hayles and McDuffie, who petition us for a writ of mandamus directing the trial court to enter a summary judgment in their favor on the ground that they are immune from civil liability based on State-agent immunity.

Standard of Review

“While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion grounded on a claim of immunity is reviewable by petition for writ of mandamus. Ex parte Purvis, 689 So.2d 794 (Ala.1996). ...
“Summary judgment is appropriate only when ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ Rule 56(c)(3), Ala. R. Civ. P., Young v. La Quinta Inns, Inc., 682 So.2d 402 (Ala.1996). A court considering a motion for summary judgment will view the record in the light most favorable to the nonmoving party, Hurst v. Alabama Power Co., 675 So.2d 397 (Ala.1996), Fuqua v. Ingersoll-Rand Co., 591 So.2d 486 (Ala.1991); will accord the nonmoving party all reasonable favorable inferences from the evidence, Fuqua, supra, Aldridge v. Valley Steel Constr., Inc., 603 So.2d 981 (Ala.1992); and will resolve all reasonable doubts against the moving party, Hurst, supra, Ex parte Brislin, 719 So.2d 185 (Ala.1998).
“An appellate court reviewing a ruling on a motion for summary judgment will, de novo, apply these same standards applicable in the trial court. Fuqua, supra, Brislin, supra. Likewise, the appellate court will consider only that factual material available of record to the trial court for its consideration in deciding the motion. Dynasty Corp. v. Alpha Resins Corp., 577 So.2d 1278 (Ala.1991), Boland v. Fort Rucker Nat'l Bank, 599 So.2d 595 (Ala.1992), Rowe v. Isbell, 599 So.2d 35 (Ala.1992).”

Ex parte Rizk, 791 So.2d 911, 912-13 (Ala.2000).

Analysis

Hayles and McDuffie ask this Court to issue a writ of mandamus directing the trial court to enter a summary judgment in their favor, on the ground that they are protected against civil liability by the doctrine of State-agent immunity.

In Ex parte Cranman, 792 So.2d 392 (Ala.2000), this Court held:

“A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s
“(1) formulating plans, policies, or designs; or
“(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
“(b) allocating resources;
“(d) hiring, firing, transferring, assigning or supervising personnel; or
“(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner. ...
“Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
“(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.”

792 So.2d at 405.

We review Hayles’s and McDuffie’s claims of immunity pursuant to the standard set forth in Cranman.

Hayles, the supervisor of the ALDOT work crew responsible for demolishing the Old Kowaliga Bridge, and McDuffie, an assistant bridge-maintenance engineer for ALDOT, are protected under the doctrine of State-agent immunity because their actions were undertaken in their capacities as supervisors for ALDOT. Nothing before us indicates that they exceeded the scope of their authority. No evidence was presented indicating that they acted in violation of the rules or regulations of ALDOT or that they acted “willfully, maliciously, fraudulently, in bad faith,” or beyond their authority.

The evidence before us indicates that McDuffie formulated a general plan for the demolition of the bridge, but that he and Hayles worked together to form a specific daily plan for the demolition. Testimony indicated that none of ALDOT’s rules or regulations at the time the bridge was being destroyed required a detailed written plan for the bridge’s demolition. The evidence further indicates that while McDuffie supervised Hayles, his crew, and the demolition of the bridge, Hayles was authorized to make daily decisions to facilitate the demolition. The evidence clearly indicates that all decisions made by McDuffie and Hayles were made while they were acting in an official capacity.

The respondents specifically argue that Hayles and McDuffie should not be granted State-agent immunity because, they say, the men’s actions exceeded the scope of their written job descriptions.

With regard to Hayles, the supervisor of the work crew demolishing the bridge, the respondents maintain that in modifying the order in which the bridge was dismantled he exceeded the scope of his authority as defined by the written job description for his position. .Testimony indicated that Hayles was a valued employee of ALDOT with extensive experience and knowledge in bridge maintenance. Hayles’s supervisors indicated that, although it was not specifically noted in his job description, Hayles did have discretion in the day-to-day activity of dismantling the bridge. Indeed, his supervisors indicated that they relied on Hayles’s expertise in making decisions with regard to the demolition of the bridge. Nothing before us indicates that Hayles exceeded the general scope of his authority as that authority was defined by his supervisors and his job description. Cf. Ex parte Spivey, 846 So.2d 322 (Ala.2002).

Likewise, nothing before us indicates that McDuffie exceeded the scope of his authority. While the respondents contend that McDuffie, an assistant bridge-maintenance engineer, did not have the authority to delegate any engineering decision-making to Hayles, they ignore the fact that McDuffie’s job description includes “providing] engineer guidance [and] mak[ing] recommendations to crew superintendents.” Nothing before us indicates that McDuffie exceeded the scope of his authority by allowing Hayles to make daily job-site decisions. Cf. Ex parte Spivey, supra.

With regard to the respondents’ contention that Hayles “unilaterally” changed the demolition plans without discussing the change with McDuffie, all parties appear to agree that although McDuffie developed the plan for the demolition of the bridge, no detailed checklist for the demolition was created for Hayles to follow. The evidence indicates that Hayles and McDuffie worked together to determine the day-today operations of the demolition and that Hayles was authorized to make decisions to carry out the day-to-day operations. We recognize that the evidence appears to indicate that the general plan for the demolition of the bridge designated that the concrete deck on the last span of the bridge and the concrete pier should be removed before the diagonal bracing was cut. Evidence was presented indicating that the diagonal bracing may have been cut before the concrete slab on the last span and the concrete pier was removed. The respondents maintain that the bridge collapsed prematurely because, they say, Hayles disregarded the master plan for the demolition and ordered the diagonal bracing to be cut before the concrete slab on the last span and the concrete pier was removed. ALDOT’s investigation of the accident, however, indicated that several of the timber piles supporting the bridge had not been driven into the ground and that ALDOT had no way of knowing of this structural instability when it developed and implemented the plan for demolishing the bridge. ALDOT attributed the cause of the premature collapse of the bridge to the instability of those timbers and their weakening of the structure. Hayles’s actions with regard to the day-to-day decisions regarding the demolition of the bridge were made within the scope of his job authority.

The depositions of various employees of ALDOT describe the duties McDuffie and Hayles were discharging during the destruction of the bridge and demonstrate that McDuffie and Hayles were exercising their judgment in discharging their duties. McDuffie and Hayles also established their good faith, their lack of malice, and their authority for their actions. The respondents do not present substantial evidence to the contrary. Therefore, McDuffie and Hayles have established that they are entitled to State-agent immunity as to the State-law causes of action.

By our holding today we do not discount the tragedy of the accident that took the lives of Frank Williams and Randall “Lane” Phillips and the suffering of their families. With the benefit of hindsight, especially the knowledge of the improper installation of the timber piles supporting the bridge, one might question the wisdom of McDuffie and Hayles’s method of demolishing the bridge; we will not, however, second-guess their decisions. Viewing the facts in a light most favorable to the respondents, as we must, see Ex parte Rizk, supra, we conclude that there is not sufficient evidence to indicate that McDuf-fie and Hayles acted “willfully, maliciously, fraudulently, [or] in bad faith” in exercising their judgment during the demolition of the Old Kowaliga Bridge. State-agent immunity protects state employees, as agents of the State, in the exercise of their judgment in executing their work responsibilities. Applying the law established in Ex parte Cranman and its progeny to the facts of this case, we conclude that the trial court erred in denying the motion for a summary judgment.

Conclusion

Hayles and McDuffie have shown a clear legal right to the relief sought. The trial court is directed to enter a summary judgment in favor of Hayles and McDuffie.

PETITION GRANTED; WRIT ISSUED.

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

SEE, J., concurs in the result.

MOORE, C.J., and JOHNSTONE, J., concur in part and dissent in part.

JOHNSTONE, Justice

(concurring in part and dissenting in part).

I concur in the main opinion insofar as it grants relief to McDuffie, the engineer. I respectfully dissent insofar as the main opinion grants relief to Hayles, the work-crew supervisor.

Hayles relies on the restatement formulated by Ex parte Cranman, 792 So.2d 392 (Ala.2000), and adopted by a majority of this Court in Ex parte Butts, 775 So.2d 173 (Ala.2000). More specifically, Hayles re-des on that part of Butts that grants a state agent immunity against claims “based upon the agent’s

“ ‘(1) formulating plans, policies, or designs; or
“ ‘(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
“ ‘(b) allocating resources;
“ ‘(d) hiring, firing, transferring, assigning, or supervising personnel ....’”

Butts, 775 So.2d at 177-78 (emphasis added) (quoting Ex parte Cranman, 792 So.2d at 405).

The record presents a jury question on the issue of whether or not these deaths resulted from Hayles’s “formulating plans, policies, or designs” on the one hand, or from his simply bungling the mechanics of the demolition on the other hand. The notion that the deaths resulted from Hayles’s “administ[ering] ... a department or agency of government” in any respect at all either exceeds the ambit of this ground of immunity or lacks substantial supporting evidence. Indeed, the record contains substantial if not conclusive evidence that Hayles was not “administ[er-ing] ... a department or agency of government.” Therefore, we should not issue a writ of mandamus instructing the trial judge to enter summary'judgment in favor of Hayles.

The general policy of the Cranman restatement is to immunize governmental judgments, not workaday judgments as common to private enterprise as to government. If we are not careful, our decisions will regress into the pve-Cranman morass which accorded immunity to the likes of a school janitor “exercising discretion” in failing to keep an exposed underground boiler pipe covered with a piece of plywood, Louviere v. Mobile County Bd. of Education, 670 So.2d 873 (Ala.1995).

MOORE, C.J., concurs.