author: ROY NOBLE LEE, Justice,

text:
    David CAYLOR v. STATE of Mississippi.
    No. 54440.
    Supreme Court of Mississippi.
    Sept. 14, 1983.
    Vernon L. Witherspoon, Irving, Tex., for appellant.
    Bill Allain, Atty. Gen. by Bill Patterson, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, ROY NOBLE LEE and HAWKINS, JJ.
   ROY NOBLE LEE, Justice,

for the court:

David Caylor filed an instrument designated as “Petitioner’s Original Application for Writ of Habeas Corpus” in the Circuit Court of Jackson County, Mississippi, for the purpose of vacating his guilty plea to the offense of armed robbery on the first day of December, 1981. After a full evi-dentiary hearing, the lower court, Honorable Clinton E. Lockard, presiding, denied the relief prayed for and dismissed the petition. Caylor has appealed here. We affirm.

The appellant has assigned four errors in the trial below. They are interrelated and all may be considered together. Appellant contends under those assignments (1) that the lower court erred in failing to have a pretrial jury resolve the mental competency of appellant to stand trial; (2) the physicians evaluating appellant, his trial counsel and the lower court all used the unconstitutional M’Naghten rule to determine appellant's competency to stand trial and enter the guilty plea; (3) the question of appellant’s mental competency was improperly determined and his guilty plea was involuntary; and (4) appellant’s counsel under the totality of the circumstances was ineffective in his representation of the appellant.

Mississippi Code Annotated § 99-13-11 (1972), provides the following:

In any criminal action in the circuit court in which the mental condition of a person indicted for a felony is in question, the court or judge in vacation on motion duly made by the defendant, the district attorney or on the motion of the court or judge, may order such person to submit to a mental examination by a competent psychiatrist selected by the court to determine his ability to make a defense; provided, however, any cost or expense in connection with such mental examination shall be paid by the county in which such criminal action is pending. (Emphasis added)

The purpose of the above statute is to avoid placing an accused on trial unless he is capable of conducting a rational defense by intelligently conferring with his counsel. Tarrants v. State, 236 So.2d 360 (Miss.1970); Frierson v. State, 250 Miss. 339, 165 So.2d 342 (1964); McGinnis v. State, 241 Miss. 883, 133 So.2d 399 (1961).

In Emanuel v. State, 412 So.2d 1187 (Miss.1982), this Court addressed the question as to whether the lower court erred in refusing to grant a jury hearing on the question of the defendant’s mental competency to stand trial. The Court said:

The trial of a defendant, when his mind is so clouded that he cannot remember and intelligently relate what occurred at the time of the commission of the alleged offense, is a denial of due process and contrary to public policy, and when it appears to the trial court that there is a probability that defendant is incapable of making a rational defense, the trial should not proceed until the defendant’s mental condition has been investigated and it appears that he is sufficiently rational to make a defense. [Citations omitted]. [412 So.2d at 1188].

In the case sub judice, appellant and his father had been drinking at King’s Inn, Jackson County, Mississippi. They left the establishment and were approaching their automobile in the parking lot when appellant told his father that he was going back to get some cigarettes. Appellant went inside, robbed the place, and returned to his father’s car without disclosing what he had done, and they drove away. The incident occurred on May 31, 1981, and, subsequently, they were arrested near Pascagoula for the crime. Both were indicted, and on December 1, 1981, appellant exonerated his father, entered a plea of guilty in the Circuit Court of Jackson County, Honorable Robert T. Mills, presiding, for armed robbery and was sentenced to seven (7) years in custody of the Mississippi Department of Corrections, without parole.

Prior to the guilty plea, appellant’s trial attorney, after discussing instances of appellant’s emotional instability (obtained from appellant’s mother, Mrs. Caylor), filed a motion for psychiatric examination of appellant, which was granted. He was evaluated by a clinical psychologist with the Singing River Mental Health and Retardation Services, Dr. John Stoudenmire, and a psychiatrist, Dr. William D. Bridges. Mrs. Caylor was not satisfied with their findings and evaluations, and employed another psychiatrist, Dr. Else Tracy, to evaluate her son. Appellant’s attorney studied the evaluations and reports, conferred with appellant and his mother and advised that, in his opinion, a guilty plea would be in appellant’s best interest. After thorough consideration and understanding of what the guilty plea involved, appellant entered the plea, and a complete record and transcript was made at the time it was accepted. On the hearing to vacate the guilty plea, that transcript and the evidence before the sentencing judge was presented to the court. Pertinent parts follow.

Trial attorney Sigalas testified:
A. After I ... after I advised his mother and David of what had happened, of what the doctors’ reports were, then we determined that it would be of no use to have a competency hearing. In my opinion, the evidence against him was overwhelming. I had ... I had no reasonable reason to believe that a competency hearing would have any results any different.
Q. Alright. So, it’s your position that he had no right to a competency hearing.
A. No, I didn’t say that.
* * * [After objection]
Q. Now, did David or his mother ever discuss with you the possibility of having a competency hearing?
A. No, I discussed it with them. I explained ... I explained primarily to David’s mother ... is who I had most of the conversations with, and I asked her did she think that they would be in his best interest and she said, “I really don’t know.” She said, “You ought to discuss it with David.” David told me he wanted to plead guilty and be done with it. I told him, I said, “At this hearing,” I said, “what will be placed in issue is whether or not you are competent to stand trial.” I had no reason for him ... after the doctors had evaluated him and read them reports, I had no reason to believe that David wasn’t competent to discuss it with me. (Emphasis added)

Dr. John Stoudenmire, the psychologist who evaluated appellant, testified:

Q. Now, Doctor, did this defendant at any time exhibit any characteristic or any condition which would prevent him from correctly and from intelligently communicating with his lawyer?
A. No, sir.
Q. Did he at any time display any characteristic which would prevent him from relating the facts of the crime to his attorney and assisting in his defense in the courtroom?
A. No, sir.
Dr. William D. Bridges testified:
Q. Okay. Did you understand that you were to use the McNaughton [sic] Rule, as you have related to the Court, in examining David Caylor?
A. That’s ... that is correct. That’s basically what I was asked ... to examine the Defendant as to his mental capacity to know right from wrong, to determine the Defendant’s ability to aid his counsel in the preparation of his defense.

The psychiatric evaluation of Dr. Else Tracy, while not answering directly the question that is involved in this case, indicated that there was no evidence of any psychotic disorder; that there was no evidence of hallucinations or delusions; that he was very capable of doing abstract thinking as judged by his response to proverbs as well as similarity; that there was no evidence through the interview of any bona fide depressive effect; that there was no anxiety manifest in the interview, other than a general air of mistrust; that his intellect was judged to be certainly average or somewhat above average; and that he was very capable of doing calculations rapidly in his head.

The sentencing judge placed the appellant under oath and conducted an exhaustive examination of him to determine whether or not he understood his guilty plea and knew what he was doing. At that time, appellant testified that he understood the charge against him and the maximum sentence for the crime; that no one induced him to plead guilty; that his attorney had acted and advised him in his best interest; that he understood he had the right to a jury trial and to be confronted with witnesses against him; that he could call witnesses in his own behalf and could testify or not testify; that he knew and understood it would be the duty of the state to prove a case against him beyond reasonable doubt and that all twelve jurors must agree on a verdict of guilty; that he had a right, if tried and convicted, to appeal to the Mississippi Supreme Court;- that he understood the State would recommend a sentence of seven years, without parole, if the plea of guilty was accepted; that he was pleading guilty for no other reason than that he robbed the King’s Inn; that he understood the court was not bound by the State’s recommendation and would not have to accept it; and that he understood all other questions asked him by the court.

The attorney for appellant’s father was present during that examination of the appellant and the guilty plea. At the conclusion, he asked the court to permit appellant to explain his father’s connection with the armed robbery and stated that the district attorney’s office had agreed to nol-pros the charge, but, for the record, wanted an explanation from appellant as to what participation his father had in the robbery. Thereupon, appellant stated; “My father had no participation in the armed robbery whatsoever, he had no knowledge. We had been drinking and we had just come from the place where we were drinking and I told him I was going back in and get a pack of cigarettes. I went in and robbed the place, he didn’t know about it or nothing.”

The lower court on the petition hearing held that appellant knew right from wrong, that he was able to aid his counsel, that he had average or better intelligence; that he was without psychosis; that there was no reason at that point for the sentencing judge to hold, on his own initiative, any separate hearing; and that appellant’s counsel was not ineffective. We agree.

The appellant takes the position on the questions involved here that the sentencing court used the incorrect standard in determining whether or not he was sane and competent to stand trial, or to enter the guilty plea on the armed robbery indictment. He argues that the M’Naghten rule was applied when the Dusky rule should have been applied.

While appellant’s trial attorney and some of the examining physicians used confusing terms in distinguishing between the M’Naghten rule and the Dusky rule, they all stated that appellant knew the difference between right and wrong and that he was rational and able to confer with his attorney concerning his defense of the case. Likewise, those conclusions stand for the fact that he was also rational and competent to enter the guilty plea. Even though a sign may be placed on a horse to the effect that the horse is a cow, the sign or name does not change him from being a horse.

The judgment of the lower court is affirmed.

AFFIRMED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.

      . Briefly, the M’Naghten rule is the difference between right and wrong test in the trial of a case on its merits. Myrick v. State, 290 So.2d 259 (Miss. 1974); Hixon v. State, 165 So.2d 436 (Fla.App.1964). The Dusky rule presents the question of whether or not a defendant has the present competency to stand trial and whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).


source: Caselaw Access Project

author: WALKER, Presiding

license: Public Domain

text:
    MISSISSIPPI PUBLIC SERVICE COMMISSION v. COAST WATERWORKS, INC.
    No. 53891.
    Supreme Court of Mississippi.
    Sept. 14, 1983.

      Billy F. Brown, John G. McDonnell, Brown & McDonnell, Biloxi, for appellant.
    Hassell H. Whitworth, Watkins & Eager, Jackson, Owen T. Palmer, Jr., Palmer & Gaines, Gulfport, for appellee.
    Before WALKER, ROY NOBLE LEE and HAWKINS, JJ.
   WALKER, Presiding

Justice, for the court:

This is an appeal from the Chancery Court of the Second Judicial District of Harrison County, wherein the chancellor vacated an order of the Mississippi Public Service Commission denying a rate increase to the appellee.

Coast Waterworks, Inc. (hereinafter Coast) provides water and sewage services to residents of Harrison and Jackson Counties. On June 3, 1980, Coast filed with the Mississippi Public Service Commission (hereinafter PSC or Commission) separate applications to adjust its water and sewer rates. Attached to the applications were a balance sheet for the year ending December 31, 1979 and a proforma operating statement.

Coast received its last rate increase on July 1, 1977. Since that time, the appellee argues that the cost of providing these services has increased due to inflation, government regulations, and needed improvements in the plant. In order to secure a reasonable rate of return, Coast sought to raise its residential water rates from $8.00 to $10.00 per month and its residential sewer rates from $10.00 to $15.00 per month. An increase in commercial and industrial rates was also requested.

On Friday, September 19, 1980 Coast filed a revised proforma operating statement showing expenses of $68,609.00 in excess of those shown in the proforma statement previously submitted. Part of the reason for this revised statement was that Coast determined only the day before the revised proforma was filed that one of its wells contained manganese. In order to rid the water of this element a treatment plant costing approximately $50,000.00 would have to be constructed. This plant would also necessitate additional operating expenses.

The Public Service Commission set hearing dates of September 22-23,1980 for both the water and sewer applications. Prior to the hearing Coast made a motion to consolidate the cases. This motion was denied by the Commission and the application for an increase in water rates was heard on September 22-23, 1980. It was followed on September 23 by the hearing on the application for an increase in sewer rates.

On October 7, 1980, the Public Service Commission entered an order denying all of the proposed water increase. On that same date it entered an order allowing an increase of only $2.00 for residential sewage service and $4.00 for commercial sewage service. Thereafter Coast filed a petition for rehearing. When the Commission failed to act on the petition within twenty days, it was deemed refused under Mississippi Code Annotated section 77-3-65 (1972).

Coast then perfected an appeal to the Chancery Court for the Second Judicial District of Harrison County. Coast also petitioned the court for an order staying enforcement of the Commission’s order. With its petition it filed supersedeas and refund bonds. On October 30, 1980 the chancellor granted the petition and allowed Coast to implement the proposed rates subject to refund with interest of any amount determined to be excessive. On December 15, 1981 the chancellor issued an opinion and decree vacating the orders of the PSC and returning the cases to the Commission for determination of a rate that would allow Coast a reasonable return on its investment. It is from this order that the PSC appeals. Several issues are presented, each of which will be discussed separately.

I.

WAS IT ERROR FOR THE COURT NOT TO CONSOLIDATE THE CASES?

The Mississippi Public Service Commission is vested with broad discretion in determining how applications for rate increases are to be heard. We cannot say that the Commission abused that discretion when it refused to consolidate the water and sewer application of the appellee. Therefore, no error was committed in this regard. It appears, however, that a consolidation would facilitate a better understanding of the highly integrated water and sewer operations of Coast Waterworks, Inc.

The decree of the chancery court is therefore affirmed in this regard.

II.

WAS IT ERROR NOT TO ALLOW INTO EVIDENCE COAST’S REVISED PROFORMA SUBMITTED ON SEPTEMBER 19,1980, THREE DAYS BEFORE THE HEARING?

A utility is required to submit a proforma operating statement with its application for a rate increase. Amendments to the proforma, except to correct errors, are allowed at the discretion of the PSC. The Commission refused to admit the revised proforma filed by the appellee in both the water and sewer cases.

During the hearing on the water application, evidence established that only after Coast filed the first proforma operating statement did it learn that a water treatment plant would have to be constructed at one of its wells. The plant was needed to cleanse the water of certain elements that originate in the earth’s strata from which the water is drawn. It is evident that the lateness of the revised proforma was neither intentional nor due to the neglect of Coast. Therefore, it should have been admitted into evidence and considered to the extent that the Commission might find it relevant to the water application.

In the sewer case, however, Coast acquired no new information which would justify the lateness of the revised proforma. For this reason, the Commission properly exercised its discretion in not allowing the revised proforma to be considered with the sewer application.

The decree of the chancery court on this point is therefore affirmed in both the water and sewer cases.

III.

MUST A TYPICAL TEST YEAR, BASED UPON EXPERIENCE, BE USED TO ESTABLISH THE RATE BASE AND RATE OF RETURN?

The Commission (appellant) contends that it properly based its order upon a typical test year. While the use of a projected test year is permissible, the utility must meet its burden of showing by substantial evidence that the test year adopted for use in calculating the rate base and rate of return is reasonable and better suited for such determination than all other alternatives. Mississippi Power & Light, et a1. v. Mississippi Public Service Commission, 435 So.2d 608 (Miss.1983).

In the Commission’s brief it is stated that “in determining the rate base and rate of return, the Commission’s calculations were based on the figures for the test year ending December 31, 1979, without any projected rate of return for the proforma period.” This was error without taking into consideration any increased expenses caused by inflation or otherwise. When operational expenses increase and such increases are properly substantiated, then it is error for the Commission not to take the increases into consideration. According to the Commission’s own brief that was not done in this case.

IY.

IS WORK-IN-PROGRESS PROPERLY INCLUDED IN THE RATE BASE?

The appellee contends that the cost of the new water treatment plant, along with the cost of other repairs and improvements, should be included in the rate base. Bobby Berry, an engineer for Coast, testified as to the cost of these repairs and improvements and the time needed to complete them.

In Mississippi Power & Light, et al. v. Mississippi Public Service Commission, supra, the Commission properly excluded work-in-progress. However, in that case there was no evidence as to when the additions were to be placed in service. The Court clearly indicated, however, that if there had been such proof, the work-in-progress could be used as part of the test year rate base to the extent that it would be “used or useful” during the test year. The Court stated that:

We are of the opinion the Commission did not err in excluding CWIP from the proposed rate base. As MP & L contends it would lower future rate base depreciation and tax costs which would benefit future customers as opposed to existing customers. It must also be noted that although MP & L presented evidence as to what percentage of the CWIP would be “used or useful” during the test year, they did not show what percentage would be used or useful during any given time during the test year. Therefore, the Commission found the inclusion of these projects would not reflect the actual expenditures, and it appears to us this was correct. Had MP & L proven what percentage would go “on-line” during what particular months of the year, and made the appropriate adjustments, the Commission’s order seems to indicate this amount could properly have been included. We are of the opinion that since MP & L did not meet its burden of proof concerning this issue, the Commission was correct in denying its inclusion in the rate base.

(435 So.2d at p. 626).

It is evident from the testimony that the proposed repairs and improvements would be operational during the test year. Therefore, these items would properly be included in the rate base to the extent of their usefulness in the test year.

Y.

IS DEPRECIATION ON CONTRIBUTIONS IN AID OF CONSTRUCTION AN ALLOWABLE OPERATING EXPENSE?

It is well settled that contributions in aid of construction may not be included in the utility’s rate base. See Southern Bell Telephone & Telegraph Company v. Mississippi Public Service Commission, 237 Miss. 157, 113 So.2d 622 (1959) and Mississippi Public Service Commission v. Hinds County Water Company and Dixie Water Company, 195 So.2d 71 (Miss.1967).

Coast contends, however, the depreciation on contributed property should be allowed as an operating expense. The chancellor, relying upon Mississippi Public Service Commission v. Hinds County Water Company and Dixie Water Company, supra, held that the Public Service Commission erred in not allowing the depreciation expense on contributed property as a deduction from the net utility income. However, the issue of depreciation on contributed property was not before the Court in the Hinds County Water Company case and it does not support the contention that such an expense should be allowed.

The Commission properly excluded the annual depreciation on contributions in aid of construction. To permit such a deduction would allow the utility to recover the cost of property for which it had invested nothing. Accordingly, the chancellor’s decision on this question is reversed.

VI.

ARE LEGAL AND ACCOUNTING FEES INCURRED IN PREPARATION FOR THE RATE HEARING ALLOWABLE EXPENSES?

The Commission contends that legal and accounting expenses incurred in preparing for the rate case are abnormal, non-recurring expenditures and, therefore, should be disallowed. While these expenses are not annual ones, they are expected by any utility subject to regulation by the Public Service Commission. The legitimacy of such expenses, when reasonable, is well recognized. See 1 A. Priest, Principles of Public Utility Regulations 67-69 (1969). However, since utilities normally do not apply for an increase each year, the total cost for preparing for the rate case should not be allowed in the test year. Instead, the cost should be amortized over a number of years reasonably representing the period, as shown by experience, between applications for a rate increase.

For the reasons stated above the decree of the chancery court is affirmed in part, reversed in part, and this cause remanded to the Public Service Commission for further hearings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED TO THE PUBLIC SERVICE COMMISSION FOR FURTHER HEARINGS CONSISTENT WITH THIS OPINION.

PATTERSON, C.J., BROOM, P.J., and ROY NOBLE LEE, BOWLING, HAWKINS, PRATHER and ROBERTSON, JJ., concur.

DAN M. LEE, J., concurs in result only.

APPENDIX “A”

OPINION

This is an appeal of the Coast Waterworks, Inc. from the Order of the Mississippi Public Service Commission dated October 7, 1980, denying the appellant any increase in its water rates and also the Order of the Mississippi Public Service Commission dated October 7,1980, granting the appellant a $2 per month rate increase to residential customers and a $4 per month rate increase for commercial customers in their sewerage rates. Appellant had filed a notice of increase with the commission on its water rates of $2 per month from a flat rate of $8 per month, on its residential sewer rates for an increase of $5 per month from a flat rate of $10 per month, plus other small increases in the commercial and industrial sewer rates.

Although the water and sewer applications were heard separately before the commission, they were combined for the purposes of appeal.

The appellant has assigned numerous errors in the two cases now before the Court.

Of those assigned, the most specific ones are as follows:

1. The commission erred in both orders with respect to its findings that the annual depreciation expenses on contributed facilities should be disallowed.

2. The commission erred in its refusal to admit the revised pro forma operating statements into evidence and thereby failed and refused to base its findings of fact on the undisputed evidence reflected by the most up-to-date financial data.

3. That the commission erred in overruling Appellant’s motion to consolidate the two cases for all purposes.

4. And finally, the commission’s orders are not supported by any evidence, is contrary to the overwhelming weight of the evidence, and is the result of the commission’s failure to follow the testimony in the case. While there were other errors assigned, the Court feels that those stated are the most applicable to this appeal.

The Court is of the opinion that the Supreme Court of this State in the case of Mississippi Public Service Commission vs. Hinds County Water Company and Dixie Water Company, 195 So.2d, 71, clearly holds that annual depreciation expenses on contributed facilities are an allowable deduction from the net utility income. This Court is therefore of the opinion that the commission erred in not allowing those deductions.

In considering whether the commission erred in its refusal to admit the revised pro forma operating statements into evidence, the Court notes that a very large portion, if not the majority, of the evidence in Cause No. 10,433 related to the “red water problem” at the Pecan Park Water System. The evidence further reflects that this is the primary basis for the revised pro forma. The record further reflects that the information contained in the revised pro forma concerning the treatment of the water at Pecan Park was available to the utility only the day before the revised pro forma was filed with the commission. The Court feels therefore that the failure to admit the revised pro forma in Cause No. 10,433 was error. The revised pro forma operating statements in the sewerage rate increase was not based upon information that came to the utility’s attention immediately prior to hearing and therefore the Court is of the opinion that it was not error to refuse to admit the revised pro forma operating statements in Cause No. 10,434.

The Court, in considering the error assigned based on the refusal of the commission to consolidate the water and sewerage cases for all purposes, is aware that this is a discretionary function with the commission and therefore, in the absence of a showing of abuse of discretion, this Court will uphold the commission’s decision to not consolidate the bases. The Court is of the opinion, however, that the consolidation of the cases would have been more fair and a more economical method of handling the matters. It is difficult to give a fair picture of the total operation of the company without this combination.

The utilities filed an assignment of error complaining that the commission’s orders were not supported by any evidence and therefore were contrary to the overwhelming weight of the evidence and is a result of the commission’s failure to follow the testimony in the case. The Court, in reviewing the record of these two hearings, finds that the commission’s only witness, Mr. Browning, made numerous errors in the calculations of the rate bases that were presented to the commission. These errors were brought out on cross-examination and many of them were admitted by Mr. Browning. Apparently the commission, in its orders, sought to rectify some of these errors. Other corrections were not apparent in the orders. While it may be a correct calculation, this Court is unable to determine, for instance, why Income Taxes were deducted in the commission’s ruling in Cause No. 10,434 and not in Cause No. 10,433. Although this Court has searched long and hard, it has been unable to determine where the tax figure of $10,916, deducted from the utility income in Cause No. 10,434, originated. The Court cannot find this figure mentioned anywhere in the record. The Court therefore feels that the commission’s orders were, at least in part, not supported by any evidence.

The Court therefore is of the opinion that both of the cases involved herein must be returned to the commission for further action so as to allow the utility a reasonable rate of return based upon the ruling of this Court.

This the 15th day of December, 1981.

      . A proforma balance sheet is one “containing imaginary accounts or figures for illustrative purposes.” Webster’s Third New International Dictionary 1812 (1971).
      The Commission rules require a utility seeking to adjusts its rates to file along with its application:
      “(3) A balance sheet of the utility prepared as of the last day of the latest month in which data shall be readily available.
      (5) A pro forma operating statement in the same form as the actual for the same period giving effect to the proposed changes in rates and adjusted for known changes in cost of operation.
      (6) A pro forma operating statement in form as the actual showing estimate of revenue and expenses for the twelve (12) month period beginning with effective date of the changed rates (a) without giving effect to the changed rates and (b) giving effect to the changed rates.” (Rule 7 of the Utility Rules of Practice and Procedure issued by the Mississippi Public Service Commission).

      . See Appendix “A”.


author: MADDOX, Justice.

text:
    Richard O. RAMER v. CITY OF HOOVER, an Alabama Municipal Corporation, et al.
    81-820.
    Supreme Court of Alabama.
    July 22, 1983.
    Rehearing Denied Aug. 19, 1983.

      William M. Acker, Jr., J. Terrell McElhe-ny and Susan Dominick Doughton of Dominick, Fletcher, Yeilding, Acker, Wood & Lloyd, Birmingham, for appellant.
    Jack H. Harrison of Harrison, Jackson & Lee, Edwin A. Strickland, Birmingham, for appellees Chriss Doss, Ben Erdreich and Ray Moore as Commissioners of Jefferson County, Ala.
    John P. Scott, Jr., and Randolph H. Lanier of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellee The Harbert-Equitable Joint Venture.

      David P. Whiteside, Jr. and Michael L. Hall of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for amicus curiae The Personnel Bd. of Jefferson County, Ala.
   MADDOX, Justice.

This case arises out of the annexation of the Riverchase development into the City of Hoover, and the primary issue is whether a landowner had a right to tie-in to a trunk sewer line which ran through his property. The appellant, Richard Ramer, owner of a tract of land through which the sewer passed, contends that the trial court committed numerous errors in this case, but he asks this Court to consider only the most “glaring errors.” Those errors are stated thusly:

1. Does a sewer right-of-way deed, prepared by the grantee, which recites that the real property through which the right-of-way passes is benefited, create a right in the property of access to the sewer line, or, in the alternative, does a subsequent denial by the grantee of sewer access amount to a taking requiring the payment of just compensation?
2. Should the annexation election incorporating Riverchase within the City of Hoover be annulled?
3. Were the annexation agreements between the City of Hoover and Harbert-Equitable Joint Venture valid?
4. Under the totality of circumstances in this case, has Ramer received due process and/or equal protection as required by the Fourteenth Amendment?
Ramer’s 58-acre tract of property is located in Jefferson County. Ramer resides in the county, but he neither resides in nor votes as an elector in Hoover. He sued the City of Hoover, the Harbert-Equitable Joint Venture (HEJV), and the County Commissioners of Jefferson County, claiming that by their combined actions, they had blocked the development of his property. The trial court made extensive findings of fact. We incorporate pertinent portions, which we find are sustained by the evidence:
“The Plaintiff, Ramer, is the owner of 58 undeveloped acres in the City of Hoover through which a County trunk line sewer runs within a right of way conveyed in 1958 by Ramer's predecessor in title. The sewer line now in use runs to the Cahaba River Treatment Plant of the County. The right of way deed contains language in the words of a release that the parties to the deed acknowledge that the sewer when constructed will be of benefit to the property of the grantor.
437 So.2d — 12
“At the time Ramer acquired the property in January 1977, it was unimproved, undeveloped and not subdivided. It was zoned agricultural. All of the property was not in the City at the time of purchase and a portion of it was in the unincorporated area of the County.
“Prior to the time Ramer became the owner of the property, the drainage area where the property is located, as is most if not all of southern Jefferson County, [was] subject to a sewer connection moratorium adopted by the Jefferson County Commission in February 1976. Suffice it to state here that the moratorium was imposed as a result of increased sewage demands and the inability of the existing treatment facilities to meet permit authorization of the Environmental Protection Agency of the Federal Government. See Peterson v. Jefferson County, 372 So.2d 839 (Ala.Sup.Ct.1979). Ramer had notice of the moratorium, but was aware of the possibility of a partial lifting of it by Jefferson County at a subsequent date.
“Within a day or so of his purchase of the property, Ramer inquired of obtaining a change of zoning to permit use of land for apartments from the City of Hoover but did not apply for a change of zoning nor meet the requirements of the City for rezoning until October 9,1978, he having previously filed his annexation petition on July 3, 1978. The delay was occasioned by the necessity that Ramer seek and obtain the annexation to Hoover of the unincorporated portion of his property and completion of his development plans. Ramer’s property was thereafter annexed by ordinance to Hoover and rezoned by the Hoover City Council on November 6, 1978.
“On March 22, 1977, the Jefferson County Commission adopted a so-called ‘lifting resolution’ permitting limited additional sewer connections to the extent of approximately 800,000 gallons per day. This resolution authorized applications for sewer connection permits and provided that
“ ‘... all property to be served by the requested sewer connection must be properly zoned...’
“Applications were authorized to be received until 5:00 P.M. on April 29, 1977.
“At the time for applications under the lifting resolution, Ramer had owned the property for three months, had no development plans and had not sought to have Hoover annex his unincorporated land, nor met Hoover requirements for rezoning. The land was then zoned for agricultural use. It is uncertain whether Ramer had available approximately $80,-000 required for obtaining sewer connection permits.
“The Moratorium Committee established by the County Commission received 42 applications for sewer allocations under the lifting resolution, one of which was on behalf of the Harbert-Equitable Joint Venture (H-E Joint Venture). The total requests for allocations far exceeded the 800,000 gallon addition available and the Moratorium Committee apportioned the allocations among the applicants based upon their stated needs. The Riv-erchase development of Harbert-Equita-ble Joint Venture was allocated 300,000 gallons of sewer use. This allocation was in addition to a 100,000 gallon allocation previously granted Riverchase under the original moratorium in 1976.
“In January 1979, Ramer sought from Jefferson County and the Moratorium Committee a sewer allocation. He made no formal application but appeared before the Committee. His request was denied as not being within one of the authorized exceptions and not having a prior allocation.”

In 1974 HEJV started the Riverchase development. The planned community covers some 3,000 acres of land in Jefferson and Shelby Counties. The development includes commercial and residential construction. HEJV maintains that the scale of the project demands access to a large volume of water for sewage treatment capacity. HEJV asserts that the Jefferson County Commission in letters of commitment promised to provide adequate treatment capacity for Riverchase from the then existing Caha-ba River Treatment Plant.

In 1979, HEJV began negotiations with the City of Hoover for the annexation of Riverchase into Hoover. An annexation agreement between HEJV and Hoover included the following provisions: (1) residents of Riverchase would be exempt from any increase in ad valorem taxes for 15 years; (2) workers in Riverchase would be exempt from any increase in occupational taxes for 15 years; (3) Hoover would purchase the Riverchase Plant from HEJV; and (4) Riverchase would have exclusive use of the Riverchase Plant. The administration of the City of Hoover ratified the agreement.

A proposed bill was introduced in the Alabama Legislature to annex Riverchase to Hoover. In its Opinion of the Justices, 381 So.2d 632 (Ala.1980), this Court questioned the adequacy of the legal notice given for the proposed legislation regarding the annexation and raised doubts about portions of the annexation agreement, specifically the tax exemption provisions. Another proposed bill was enacted into law (1980 Ala.Acts 590).

On September 9, 1980, Hoover conducted the Riverchase annexation election. A majority of the electors who voted did vote for annexation. Ramer argues that because: (1) the electors of Hoover did not vote in the election; (2) the Boards of Registrars for Jefferson and Shelby Counties allegedly, failed to provide a list of qualified voters for the election; and (3) portions of the annexation agreement are invalid, that this Court must nullify the election. Ramer also questions the propriety of Hoover’s planned purchase and use of the Riverchase Plant.

In August 1979, Hoover adopted the Planned Unit Development (PUD) HEJV submitted to the municipality which altered the zoning ordinance of the City of Hoover. Ramer argues this plan exceeded the powers granted to Hoover by law.

Ramer commenced this action against the appellees to have the annexation election and various portions of the annexation agreement declared invalid. Ramer also sought to have the trial court order Jefferson County to make a sewage allocation to him for his 58 acres. The trial court, hearing evidence presented ore tenus, refused to invalidate the election or to require the county to allocate Ramer any sewage tonnage capacity. In its final judgment, the trial court held that the portions of the annexation agreement exempting River-chase from ad valorem and occupational tax increases for fifteen years violated Alabama law.

Ramer appeals from the trial court’s final judgment.

I. THE DEED

Does Ramer have an unequivocal right to tie into the sewer trunk line?

Ramer argues that the sewer right of way deed that his predecessor in title executed reserved a benefit for his property, “if and when” the county constructed a sewer line, to hook into the sewer trunk line. The pertinent language in the right of way deed reads:

“For the consideration aforesaid, the undersigned do grant, bargain, sell and convey unto said county the right and privilege of a perpetual use of said lands for such public purpose, together with all rights and privileges necessary or convenient for the full use and enjoyment thereof, including the right of ingress to and egress from said strip and the right to cut and keep clear all trees, undergrowth, and other obstructions on the lands of the undersigned adjacent to said strip when deemed reasonably necessary for the avoidance of danger in and about said public use of said strip, and the right to prohibit the construction or maintenance of any improvement or obstruction (except fencing) on, over, across or upon said area herein conveyed.
“In consideration of the benefit of the property of the undersigned by reason of the construction of said sewer, the undersigned hereby release Jefferson County, the State of Alabama, and/or the United States of America, and/or any of their agents from all damages present or prospective to the property of the undersigned arising or resulting from the construction, maintenance and repair of said sewer, and the undersigned do hereby admit and acknowledge that said sewer if and when constructed will be a benefit to the property of the undersigned.” (Emphasis added.)

The trial court reviewed the deed and in its judgment stated:

“Ramer’s contention that the Court should order the Jefferson County Commission to issue him a sewer permit to serve from 318 to 400 apartment units is due to be denied.
“The deed of Ramer’s predecessor in title contains no commitment to a sewer allocation. This deed is a right of way deed dated October 25, 1968 from Ram-er’s predecessors in title to Jefferson County. It predates the sewer moratorium by sixteen years. It recites consideration of $979.00 (a rate of $1,000 per acre) for ‘the right and privilege of a perpetual use of said lands for such public purpose .... ’ In a separate paragraph of the deed, a release to Jefferson County is recited and in such paragraph is the wording,
“ ‘In consideration of the benefit of the property by reason of the construction of said sewer .. . and the undersigned do hereby admit and acknowledge that said sewer if and when constructed will be a benefit to the property of the undersigned.’
“This [sic] above recited words do not constitute an agreement of Jefferson County to permit a sewer connection at any time under any circumstances. At best, it is an implied agreement that the sewer will be available and of benefit to the property if constructed. The deed expression, however, did not and could not anticipate that a subsequent intervening circumstance could make the sewer unavailable to a great number of property owners in Southern Jefferson County including the owner of Ramer’s property. Based upon these matters, the Court concludes that the deed to Ramer’s predecessor in title does not grant to Ramer the unequivocal right to connect to the sewer trunk line through his property at any time he desires.
“Aside from the question whether the deed is a contract to obligate Jefferson County to provide Ramer, as the present owner sewer usage, the imposition of the sewer moratorium is a valid exercise of police powers by Jefferson County. Peterson v. Jefferson County, supra.
“The evidence shows Ramer to be an experienced and knowledgeable developer. He knew the ‘lifting resolution’ was possible, but he did not seek a sewer allocation until January 1979. There is no evidence that he did not know of the March 22, 1977 ‘lifting resolution’ and it is unlikely that such was the case. The simple facts are that, taking into consideration the sewage emergency and conditions existing in Jefferson County at the time Ramer purchased his property, there was insufficient time for him to obtain the required zoning of his property and create development plans in time for the fortunate circumstances that permitted the moratorium to be partially lifted in March 1977. And, without question, Ramer had knowledge of the moratorium at the time he purchased the property. the procedures and hearing afforded by the moratorium and the Moratorium Commission met the tests of due process. Katy [Katz] v. Alabama State Bd. of Medical Examiners, 351 So.2d 890 (Note 6) (Ala.Sup.Ct.1977). There is no ‘taking’ involved here. Ramer has his property and, assuming regulatory requirements to have been met, could have developed his property with an on site sewage disposal system that had been approved. His use of public sewage facilities is stopped now by a temporary limitation.”

“Ramer has not, as claimed, been denied due process. The sufficiency of the due process procedure of the Moratorium Commission has twice been confirmed. Peterson v. Jefferson County, supra; Custred v. Jefferson County, 360 So.2d 285 (Ala.Sup.Ct.1978). Notwithstanding these decisions, the evidence shows that

After reviewing the entire deed, we agree with the trial judge that Jefferson County was not under a legal obligation to provide the grantor a “sewer connection at any time, under any circumstances.”

Regarding Ramer’s argument that the County’s actions constitute a taking of his property without just compensation in violation of the Fifth Amendment to the United States Constitution, the County, in brief, has directed the Court’s attention to recently decided federal cases which address the issue of whether a governmental moratorium on sewage allocation constitutes a taking of property without just compensation. In Kent Island Joint Venture v. Smith, 452 F.Supp. 455 (D.Md.1978), a landowner-developer brought suit against local officials for blocking his development plans. The landowner alleged in part that the defendants misrepresented the effects of certain proposed amendments to the county sewage plan. In addressing the land developer’s claim that the defendants were taking his property without just compensation, the Court held:

“One of the constitutional violations claimed by plaintiff here is the alleged taking of its property without just compensation.
U * * *
“This Court is satisfied that the acts alleged do not constitute a ‘taking’ within the alleged constitutional sense which would permit claims to be asserted in this suit against these defendants.
“Although governmental interference by regulation of the use of private property can constitute a de facto or constructive taking, there is no taking in the constitutional sense unless the interference is so substantial as to render the property worthless or useless. Steel Hill Development, Inc. v. Town of Sanbornton, 469 F.2d 956, 963 (1st Cir.1972); Smoke Rise, Inc. v. Washington Suburban San. Com’n, 400 F.Supp. 1369, 1382 (D.Md.1975). It is not enough that the regulation deprives the property owner of the most profitable use of the property, United States v. Central Eureka Mining Co., 357 U.S. 155, 168, 78 S.Ct. 1097, [1104] 2 L.Ed.2d 1228 (1958), or that the regulation causes a severe decline in the property’s value. Goldblatt v. Town of Hempstead, 369 U.S. 590, 594, 82 S.Ct. 987, [990] 8 L.Ed.2d 130 (1962). In Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143,60 L.Ed. 348 (1915), a decline in value from $800,000 to $60,000 was found by the Supreme Court to be insufficient to constitute a taking. Before a court can conclude that there has been an unconstitutional taking of property, the government regulation must deprive the landowner of all reasonable uses of his land. C.F. Lytle Co. v. Clark, 491 F.2d 834, 838 (10th Cir.1974); see Donohoe Const. Co. v. Maryland National C.P. & P. Com’n, 567 F.2d 603, 608 n. 13 (4th Cir.1977).
“Plaintiff has done no more than allege that the actions of the defendants have deprived it of the ‘most reasonable’ use of its property and have resulted in ‘substantial decrease’ in the property’s value. These allegations are clearly insufficient to establish a taking in the constitutional sense. Goldblatt v. Town of Hempstead, supra; United States v. Central Eureka Mining Co., supra; Steel Hill Development, Inc. v. Town of Sanbornton, supra.

452 F.Supp. at 460.

II. ANNEXATION ELECTION

Ramer argues this Court should declare the annexation election a nullity. In support of his position, he sets forth three reasons: (1) the electors in Hoover did not participate in the election; (2) the Boards of Registrars of Jefferson and Shelby Counties allegedly failed to provide election officials with a list of qualified voters; and (3) material contractual commitments between HEJV and Hoover to induce a favorable annexation vote are void and unenforceable.

At trial, the appellees asserted that Ram-er did not have standing to contest the annexation election, but the trial judge in his order held: “Ramer, though not a Hoover elector, is a property owner and taxpayer of Hoover. As a taxpayer, he has a right to protect and the totality of his annexation claims assert a misuse of corporate power. The Court thus holds that Ramer has standing to assert these issues.... ”

After consideration of the standing issue, we hold that the trial judge correctly found that Ramer had standing to contest the annexation election; therefore, we will address the contentions Ramer makes regarding the annexation election, viz: (1) the Boards of Registrars of Jefferson and Shelby Counties failed to furnish a proper list of the qualified electors in the area to be annexed, and (2) when two crucial provisions of the annexation agreement between HEJV and Hoover, which were inducements to vote for annexation, were declared invalid by the court, then the favorable vote for annexation should not be effective and binding. The trial court, in a lengthy decree, addressed these issues as follows:

“Ramer’s contention that Act No. 80-590 is void because of a variance between the published notice of the proposed local act and the act as adopted into law is rejected.
“Section 106 as amended by Amendment No. 341 of the Alabama Constitution 1901 provides that no local law shall be passed unless notice of intention to apply to the Legislature for passage of such law shall have been published, which notice shall state the substance of the proposed law.
“The substance of the proposed legislative act as advertised cannot be material- ¡y changed or contradicted. State ex rel. Wilkinson v. Allen, 219 Ala. 590, 123 So. 36 (1929). In the case of the bill here, it was published in detail and such details cannot be materially changed throughout the legislative process to final passage and approval. Wilkinson, supra. The proposed act was published both in Shelby and Jefferson Counties. In the publications setting forth a legal description of the territory involved, the description ran over eight printed pages in length and described the boundary of lands of approximately 3,000 acres. One metes and bounds call was published as ‘665 feet’ while the same call in the adopted act was ‘655 feet.’ There was no evidence that the variance was material in any respect or that the land described in the adopted act cannot be ascertained. For such reasons, the Court rejects this contention.
“Ramer contends that the annexation is void because the Hoover voters did not participate in the election. In Opinion of the Justices, 381 So.2d 632 (1980) cited by Ramer, the Supreme Court of Alabama rendered its advisory opinion to the Legislature regarding an earlier version of the Riverchase annexation bill. Except for the identical territory involved and the referendum requirement of that bill, the adopted act (80-590) bears no similarity to the earlier bill. There, the Supreme Court rendered its opinion that the offered bill violated Section 106 of the Alabama Constitution in respect to failures of the published notice. Those defects are not material here. The Court, however, in In Opinion of the Justices suggested that,
“ ‘Annexing and annexed citizens clearly share general concerns with the governance and welfare of the area. Given the similar interests of the two areas (the existing city and the territory to be annexed), disfranchising either seems improper.’
“The Court thus noted that,
“ ‘The residents of both areas have an interest; therefore, both must be notified.’
“This Court does not deem these pronouncements mandate a ruling or even a suggestion that the voters in Hoover must also vote in the Riverchase annexation election. The Supreme Court was speaking in the context of the lack of published notice of the bill before it in respect to annexation agreements incorporated by reference only in the legislative bill. The notice did not include those agreements and the bill was clearly constitutionally defective for such reasons.
“The notice preceding the adoption of Act 80-590 did not contain the same defects. The sponsors of Act 80-590 obviously ‘went to school’ on the Supreme Court opinion and corrected the opined problems.”

The trial judge correctly held that the advisory opinion of this Court, Opinion of the Justices, 381 So.2d 632 (Ala.1980), only addressed the question of the adequacy of notice to the electors of the annexing and the annexed territory. Even though this Court did quote a Harvard Law Review article in that advisory opinion which suggests that electors in both the annexing municipality and the proposed annexed area should vote, the law of this state is that the Legislature, in the exercise of its sovereign power, can alter the territorial limits of a municipality without the approval of the municipality’s electors. City of Birmingham v. Norton, 255 Ala. 262, 50 So.2d 754 (1950).

Ramer argues that the Boards of Registrars of Shelby and Jefferson Counties failed to provide the Hoover city clerk with “a list of qualified electors in the area to be annexed,” and thus failed to comply with 1980 Ala.Acts 590. The trial judge, in his final judgment, found and concluded, as follows:

“In brief, Ramer asks rhetorically, ‘Did the failure of the Boards of Registrars of Jefferson and Shelby Counties to furnish a list of qualified electors ... vitiate the election?’ No evidence is cited or referred to that such facts were proven.
“Section 2 of Act 80-590 provides,
“ ‘The Boards of Registrars of Jefferson and Shelby Counties shall furnish to the City Clerk of the City of Hoover the names of those electors qualified to vote in this election ... ’
“The evidence shows that each of the registrars involved furnished to the Hoover City Clerk a voters list. The list provided by the Jefferson County Board of Registrars may have included some voters not within the area to be annexed but no evidence has been presented as to this circumstance. Moreover, there has been no evidence presented that any ineligible voter voted in the annexation election. Assuming such to be the case, there has been no evidence that such votes would have altered the outcome of the election. The contention of Ramer regarding the voter list is denied.”

We hold that the trial judge was justified in concluding that the lists the registrars provided sufficiently complied with the requirements of the annexation statute.

III. THE ANNEXATION AGREEMENTS

The trial judge, finding Ramer had standing to challenge the Annexation Agreement, declared two provisions of the Annexation Agreement void.

The trial judge addressed the agreement, as follows:

“Ramer next contends that the pre-election agreement between Harbert-Eq-uitable Joint Venture and Hoover constituted an illegal inducement to the River-chase electors to consent to the annexation and that such agreement is illegal.
“The agreement involved was executed by the Joint Venture and the Mayor of Hoover and dated November 1,1979. At this time, the joint venture was characterized as the developer of a planned development and the agreement contemplated the introduction of a legislative bill authorizing the annexation of River-chase (a planned development). It is a comprehensive document dealing with the subjects outlined below with a severability clause.
“The Agreement
“1. The city will seek the enactment of a legislative bill to annex Riverchase subject to approval by referendum.
“2. That the Planned Development plan of the developers in the process of construction and implementation will receive a Planned Unit Development (PUD) zoning classification under the City zoning ordinances upon annexation.
“3. That the City will purchase at a cost not to exceed 3.5 million dollars the sanitary sewage disposal plant then under construction by the developer and thereafter agree to operate and maintain it. Further, that the initial capacity of the plant of 1.5 million gallons per day would be solely reserved for the Riverchase area and that an agreed upon sewer service charge tap fee and sewage treatment charge would be paid the City by the owners of the lots served, subject to the provision that if sales tax revenues of the annexed area do not produce at least $1.5 million dollars per year the rate limitation or sewage treatment charges will not be applicable. The developer further agreed to share one half of any deficits of the sewage treatment plant during the term of bonds to be issued by the City to pay for the plant costs. The parties agreed to arbitrate factual disputes as to proposed sewer maintenance necessity. All parts of the sewer agreement to be made the subject of the ordinance of the city.
“4. That the annexed area would be exempt from increases in ad valorem tax increases for a period of fifteen years and the imposition of any new or additional occupational taxes for a like period of time. City sales taxes were exempted from the limitations of the agreement.
“5. The agreement contains a sever-ability clause.
“The evidence does not support Ram-er’s contentions that the agreement between Hoover and the joint venture constituted an illegal inducement to the Riv-erchase electors unless the agreement itself is illegal. Ramer makes this latter contention as well.
“Ramer contends and argues that the agreement unlawfully binds future governing bodies of Hoover and constitutes an unlawful delegation or abdication of police and legislative powers. He argues this to be so in respect to certain aspects of the agreement relating to planning and subdivision standards, use of the sewage plant by property only in Riverchase, specifications of the sewage plant to be purchased, repair and maintenance of the sewage plant by Hoover and expense sharing, and exemption from increased ad valorem taxes.
“The agreement provides that planning and engineering standards of Riverchase shall supersede inconsistent ordinances or regulations of Hoover and more stringent City standards will not be applied unless the standards are mutually agreed upon. (Sections 3, 12(b), Agreement). It is also provided in the Agreement that River-chase would be exempt from increases in ad valorem taxes and new occupational taxes for fifteen years. (Section 14, Agreement).”

The trial judge concluded that “the tax exemption aspect of the agreement is void to the extent that it exceeds the authority granted by Act No. 787, 1977.” The trial court addressed the tax exemption issue, as follows:

“In respect to the taxation issue, Hoover argues that Act No. 787 of the 1977 Legislature of Alabama permits such exemption by authorizing a tax exemption for annexed territory for not less than ten years nor more than fifteen years of territories annexed to municipalities having a population of 600,000 or more according to the 1970 or any subsequent federal decennial census. This Court judicially knows that Hoover’s population according to the 1980 federal decennial census effective April 1, 1980 was 19,792 and that Hoover is in a county having a population of 600,000 or more. Pickens County v. Jordan, 239 Ala. 589, 196 So. 121 (1940). The Act, as contended, does apply to Hoover. The Agreement, however, overreaches and exceeds that statutorily authorized exemption in Act No. 787.
“Section 2 of the Act provides that, “ ‘All territory brought within the corporate limits of a city to which this act applies ... may be exempt from city taxation or the payment of taxes to the city for the period of not less than ten nor more than fifteen years from the time when such territory is brought within the corporate limits of the city.’
“Section 3 of the Act provides, however, that,
“ ‘From time to time after the lapse of five years from the time such territory is brought within the corporate limits of the city, all portions of such territory as has residing on it a population of at least twenty persons on a contiguous ten acres of land ... shall thereafter be subject to taxation by the city and taxes shall be paid to the city.’
“The Act also provides for an agreement by resolution setting forth the minimum level of services which will be provided the annexed territory for a period not to exceed five years.
“No other authority has been cited to the Court to support Hoover’s agreement to exempt the Riverchase area from ad valorem tax increases and new occupational taxes for a period of fifteen years and the Court’s research has failed to reveal such authority. Act No. 787,1977, fails to provide the authority for Hoover to exempt tax increases in the Riverchase area for more than five years. As stated, the Agreement exceeds this authority. For such reasons, the Court concludes that the tax exemption aspect of the Agreement is void to the extent that it exceeds the authority granted by Act No. 787, 1977.”

It should be noted that the Act No. 787, 1977 Ala.Acts, would allow a total exemption for a period of five years from city ad valorem and occupational taxes, while the annexation agreement only exempted the property owners of the annexed Riverchase area from “increases in the rate of ad valo-rem taxation in effect on the effective date of such annexation for the period of fifteen (15) years from such date” and “the imposition of any new or additional occupational taxes during such fifteen (15) year period.... ” (Emphasis added.)

Ramer contends that the tax exemption portion of the agreement was an inducement to obtain favorable votes for annexation, and when the trial court voided these provisions insofar as they exceeded the authority granted by Act 787,1977, that there was a “failure of consideration” and that the annexation election should have been declared invalid.

We disagree. Prior to annexation, property owners within the Riverchase area were not subject to any municipal taxes. Additionally, the evidence showed that there had been no increases in taxes since the date of the annexation election, and the evidence further showed that all property owners within the annexed area were paying the same rate of city taxes as were being paid by property owners similarly situated in other areas of the city. Furthermore, Act No. 787 would have authorized the City of Hoover to grant property owners a full exemption for five years.

While we recognize that the exemption from new taxes constituted an inducement for property owners to vote favorably for annexation, City of Mobile v. Salter, 287 Ala. 660, 255 So.2d 5 (1971), we cannot say that the trial court erred in refusing to invalidate the entire agreement and the annexation election because a portion of this inducement was held to be beyond the authority of the city to grant. The City of Hoover was authorized by Act No. 787 and under the authority of the City of Mobile-decision to grant tax exemptions for the annexed territory for a period of time, and the exemptions actually made by the city were considerably less favorable to the annexed area than otherwise could have been granted under the full tax exemption allowed under the statute. In view of all these circumstances, therefore, we hold that the trial court did not err by refusing to find a “failure of consideration” which would void the entire agreement and the election.

Regarding Ramer’s argument that the annexation agreement provided that planning and engineering standards of River-chase would supersede inconsistent ordinances and regulations of the city of Hoover, the trial judge held:

“Notwithstanding the fact that the Agreement provides that the planning and engineering standards of Riverchase shall supersede inconsistent ordinances or regulations of Hoover unless mutually agreed upon, the evidence has failed to show that there exist any ordinances or regulations of Hoover that are superseded. This appears to be an empty agreement and presents no controversy to adjudicate. For such reason, the Plaintiff’s contentions in this regard ai’e denied.”

It has been held that a person who seeks to challenge exclusionary zoning practices must allege specific, concrete facts demonstrating that the challenged practices harm him, and that he would personally benefit in a tangible way from the court’s intervention. Warth v. Seldin, 422 U.S. 490, at 508, 95 S.Ct. 2197, at 2210, 45 L.Ed.2d 343. The court, although allowing Ramer to present evidence, nevertheless found as above-quoted, that “the evidence has failed to show that there exists any ordinance or regulations of Hoover that are superseded. This appears to be an empty agreement and presents no controversy to adjudicate.”

Ramer has failed, on appeal, to cite any ordinance or regulations of Hoover that the annexation agreement supersedes. He does correctly cite authority which prohibits a municipality from relinquishing certain legislative powers. See City of Leeds v. Town of Moody, 294 Ala. 496, 319 So.2d 242 (1975). The evidence does show that the City of Hoover passed ordinance No. 321 which adopted the Planned Unit Development (PUD) HEJV submitted for River-chase, and when Hoover enacted the PUD, the planning and engineering standards HEJV drafted for Riverchase became part of the zoning code for Hoover, but we find evidence to support the trial court’s finding that Hoover never relinquished any legislative duties. The trial court was authorized to find that Hoover exercised its legislative powers and adopted the planning and engineering standards set forth in the annexation agreement. While Ramer has made various accusations about the motives of Hoover when it accepted the annexation agreement, he has failed to produce enough evidence to convince this Court that the trial court’s findings were palpably wrong or unjust.

The appellant’s final challenge to the annexation agreement regards Hoover’s purchase of the Riverchase plant from HEJY. Ramer contends that the annexation agreement illegally gives the residents of Riverchase exclusive use of the River-chase plant and, thereby violates Section 22, Constitution of Alabama, which prohibits making “exclusive grants of special privileges or immunityes.” He also contends that the purchase violates Section 94 of the Constitution of Alabama, which prohibits any municipality from lending its “credit or to grant public monies * * * to any individual, firm, association or corporation whatsoever.” Alabama Constitution, Art. I, § 22, provides:

“That no ex post facto law, nor any law, impairing the obligations of contracts, or making any irrevocable or exclusive grants of' special privileges or immunities, shall be passed by the legislature; and every grant or franchise, privilege, or immunity shall forever remain subject to revocation, alteration, or amendment.”

Ramer contends that Hoover’s agreeing to allow residents of Riverchase exclusive use of the Riverchase plant equates to “exclusive grants of special privileges or immunities.” The trial court correctly answered Ramer’s arguments regarding Ala. Const., Art. I, § 22, when it held:

“At the time of the Agreement, the Joint Venture had let contracts for the construction of the sewage disposal plant. The Agreement provided that, in the event the annexation was approved, the City would purchase, finance, construct, operate and maintain the plant to serve the portions of the Riverchase area south of the Cahaba River. The evidence shows this area to be the natural drainage basin of the area to be served. By the date of annexation, the plant had been substantially completed.
“The City clearly has the authority to purchase, to contract for the construction, operate, maintain and incur debt for and in connection with sanitary sewer systems. Sections ll-47-3(a), 11-48-4, 11-50-50, 11-50-71, Code of Alabama 1975.
“The beneficiaries of the exclusive feature of the sewer contract are the present and future owners of the lots, parcels and lands to be served by the sewage plant. It will incidentally benefit the Joint Venture to the extent that it also is apparently still the owner of some of the lands in the area.
“The issue then is whether the owners of the properties served is a reasonable classification and whether the contract is for the convenience of the public and benefit of the public. Franklin Solid Waste Services, Inc., et al. v. Jones, et al., 354 So.2d 4 (Ala.1978); Crabtree v. City of Birmingham, 292 Ala. 684, 299 So.2d 282 (1974). There is no question but that public sanitary sewage facilities are for the convenience and benefit of the public. The evidence, further, has failed to show that any property in the drainage area served by the plant will not be so served. This is particularly the circumstance of the Plaintiff. His property is located in a different drainage area. This contract, in the Court’s opinion, does not violate Section 22.”

The trial court also correctly addressed Ramer’s arguments regarding the purchase of the Riverchase plant and any possible violation of Ala. Const, Art. IV, § 94. That section of the Constitution provides:

“The legislature shall not have power to authorize any county, city, town, or other subdivision of this state to lend its credit, or to grant public money or thing of value in aid of, or to any individual, association, or corporation whatsoever, or to become a stockholder in any such corporation, association, or company, by issuing bonds or otherwise.”

The trial court correctly relied on Rogers v. City of Mobile, 277 Ala. 261, 268, 169 So.2d 282 (1964), and found:

“When a contract of a public body is an ordinary commercial contract, with benefits flowing to both parties and a consideration on both sides, it is not a lending of credit by the public body. Otherwise, §§ 93 and 94, Constitution 1901, as amended, would prohibit any public body from entering into any contract where-under the other party gained any benefits whatever.”

In this instance, Hoover’s proposed purchase of the Riverchase plant from HEJV is “an ordinary commercial contract” that does not violate Ala. Const, Art. IV, § 94.

Further, Ramer contends that any purchase of the Riverchase plant must be assessed to the residents of Riverchase that actually have use of the facility and cannot come from monies in the general fund of the City of Hoover. He relies on § 11-50-71, Code 1975, which provides:

“All cities and towns in this state shall have authority to purchase sanitary sewers or sanitary sewer systems already constructed and draining territory within their corporate limits, although the trunk sewers and disposal plants thereof may be located outside their corporate limits, and to cause the purchase price of said sewers or sewer systems with the disposal plants, together with the cost of improvements made thereon, to be assessed against the property abutting on the streets, avenues, alleys, highways or other public places so improved or drained by said sewers or sewer systems to the extent of the increase of the value of such property by reason of the special benefits derived from such sewers or sewer systems and from the purchase of the same by the municipality.”

When read with other statutes authorizing the construction, maintenance and purchase of sewage facilities, it becomes clear that § 11-50-71 provides one alternative to finance the purchase of sewer plants. Code 1975, § 11-50-78, provides that the municipal councils may purchase a sewage plant “out of the general funds of the city.... ” The trial court’s judgment correctly held that Code 1975, §§ ll-47-3(a), 11-48-4, 11-50-50, and 11-50-71, grant the City of Hoover the power to “purchase, to contract for the construction, operate, maintain and incur debt for and in connection with sanitary sewer systems.” No grounds are presented on appeal which require that this Court declare Hoover’s proposed purchase of the Riverchase plant illegal.

DUE PROCESS AND EQUAL PROTECTION

Ramer finally argues that the “totality of circumstances” in this case compound to deny him due process and equal protection guaranteed in the United States Constitution, Amendment XIV. Basically, he contends that the appellee’s treatment of him while he was attempting to secure a sewage allocation has violated notions of “fundamental fairness.” In part, Ramer questions the propriety of an attorney that represented the Jefferson County Commission and who also served as a member of the Moratorium Committee, which denied Ramer’s request for a sewage allocation. Ramer made no objection to the attorney’s membership on the Moratorium Committee when he took his allocation request before the committee or during the lower court trial. Therefore, this issue cannot now be raised on appeal. McDuffie v. Hooper, 294 Ala. 293, 315 So.2d 573 (Ala.1975).

Ramer contends that the appellees’ combined actions constitute an unlawful “taking” of his property. He claims that the decision of the Jefferson County Commission to allot HEJV a large percentage of the available sewage allocation is arbitrary and capricious. Further, he argues that the appellants negotiated “sweetheart deals” that afforded HEJV special treatment and, therefore, violated his equal protection rights.

We have reviewed the vast record in the case and examined Ramer’s argument and the appellees’ rebuttal. We turn again to the learned trial court’s final judgment where he made this statement about the final issue Ramer raises on appeal:

“Ramer has not, as claimed, been denied due process. The sufficiency of the due process procedure of the Moratorium Commission has twice been confirmed. Peterson v. Jefferson County, supra, Custred v. Jefferson County, 360 So.2d 285 (Ala.1978). Notwithstanding these decisions, the evidence shows that the procedures and hearing afforded by the moratorium and the Moratorium Commission met the tests of due process. Katy [Katz] v. Alabama State Bd. of Medical Examiners, 351 So.2d 890 (Note 6), (Ala.1977). There is no ‘taking’ involved here. Ramer has his property and, assuming regulatory requirements to have been met, could have developed his property with an on site sewage disposal system that had been approved. His use of public sewage facilities is stopped now by a temporary limitation.
“Ramer’s equal protection of the law claim and contention is also due to be denied. The Jefferson County moratorium applied to all sewer connections but with certain exceptions to protect property owners who had incurred substantial obligations in reliance on their ability to connect to the public sewer, i.e., possession of a valid building permit; property already improved for construction which contains lots not yet built upon but which already have the individual sewers installed and ready for service; existing septic tank systems which have been declared by the Health Department to be a health hazard. There has been no evidence that these exceptions are unreasonable or arbitrary. It is clear that Ramer was not singled out but, instead, was among a class of persons who did not fall within one of the exceptions.
“The equal protection clause does not deprive government of its police powers to pass statutes for the protection of public health, safety, morals and for the general welfare. In such matters, the legislative body has wide discretion as long as the acts have an equal and uniform application to all persons similarly situated. When the act does not apply equally and uniformly to all who are similarly situated or there is no reasonable basis for the classification, it is in violation of the Fourteenth Amendment to the Federal Constitution. Hale v. State, 217 Ala. 403, 116 So. 369; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369.
“Ramer’s burden is to show that he fits within the classification or that the classification is arbitrary. He has done neither. In the same regard, Ramer has failed to show a denial of equal protection in respect to the Riverchase allocation. The parties were and are in different positions and classifications. Preter-mitting Ramer’s standing under the facts here to challenge Riverchase’s allocation (Ramer was not eligible for a sewage allocation whether Riverchase was eligible or not), there has been no substantial evidence presented that Riverchase was not within the exceptions of the moratorium.”

CONCLUSION

The trial was lengthy, and the issues were varied and complex, but the trial was presided over by a learned trial judge, and we could have substantially adopted his extensive findings of fact and conclusions of law as our own.

For the reasons stated, the trial court’s judgment is due to be affirmed.

AFFIRMED.

JONES, ALMON, SHORES and BEAT-TY, JJ., concur.


author: SHORES, Justice.

text:
    Charles ATKINS, d/b/a Atkins Ford Sales v. Mark Steven DRAKE.
    81-262.
    Supreme Court of Alabama.
    Aug. 12, 1983.
    Edward R. Jackson of Tweedy, Jackson & Beech, Jasper, for appellant.
    Thomas J. Spina of Daniel, Fawal & Spi-na, Birmingham, and J. Stephen Salter of Groenendyke & Salter, Birmingham, for ap-pellee.
   SHORES, Justice.

Charles Atkins, d/b/a Atkins Ford Sales, defendant below, appeals from judgment entered on a verdict against him.

The plaintiff, Mark Drake, alleged that Atkins, owner of a commercial truck dealership, had sold him a used truck, which Atkins knew at the time of sale to be used, but had represented to him that the truck was new and not damaged. Drake claimed he bargained and paid for a new truck.

Drake filed this suit and sought compensatory and punitive damages for fraud, misrepresentation, deceit, breach of warranty, and violation of 15 U.S.C. §§ 1988 and 1989 (1982) (mileage disclosure and odometer requirements). After a full trial on the merits, the jury returned a verdict of guilty on the charges of fraud and violation of the federal odometer statute. It awarded Drake $1,500.00 compensatory damages and $15,000.00 punitive damages.

There are two issues before us: (1) Did the trial court err in admitting an out-of-court statement alleged to have been made by an agent of Atkins, without first requiring proof of agency? (2) Were statements made by plaintiff’s counsel during closing arguments so improper and prejudicial as to require a mistrial?

The testimony which Atkins claims is inadmissible hearsay came out on the direct examination of Drake. The pertinent portions are as follows:

“[MR. DRAKE]: ... And, then, Ken Moore and I believe it was C.W. Wallace, went inside and an older man came outside and me and a friend of mine was standing there talking about it, and he come out with—
“[MR. SALTER]: The man that came out, did he work with Atkins Ford Sales at that time?
“[MR. DRAKE]: Yes sir.
“MR. JACKSON [Counsel for Atkins]: I object to that unless he knows.
“COURT: Do you know, in your judgment?
“[MR. DRAKE]: In my judgment and opinion, I saw him up there several times that I had been up there and as I was standing—
“COURT: He appeared to work there? “[MR. DRAKE]: He appeared to work there.
“MR. JACKSON: Judge, Mr. Atkins, I represent to the Court, has a lot of people to come up there and stay from time to time. And they don’t work there, and I don’t know who he is talking about, and unless he knows this man works there, and whatever this man told him is not binding upon Atkins Ford.
“COURT: I understand, and you can clear that up on cross.
“MR. JACKSON: Judge, if he goes ahead and says it, you can’t erase that from the jury’s mind. There is no way to do that.
“COURT: You can show how ridiculous it might be.
“MR. JACKSON: I need to do that before he says it.
“COURT: Overruled.
“[MR. DRAKE]: This gentleman came out that I supposed worked at Atkins Ford.
“MR. JACKSON: All right, I move to exclude that. He says ‘he supposed.’ “COURT: Overruled.
“[MR. DRAKE]: He came out and a friend and I were sitting there talking about what he had just got through telling me about fixing the scratches and all. He walked out to us and he said, ‘Look,’ he said, ‘If you are worried about the scratches in the bed of your truck and the side of your truck,’ he said, ‘There is nothing to worry about.’ He said, ‘What happened was they took the truck. They had to haul some tin in it.’ He said they had to haul some tin in it.”

The scope of review is stated in Rule 45 of the Alabama Rules of Appellate Procedure:

“No judgment may be reversed or set aside, nor new trial granted in any civil ... case on the ground of ... improper admission or rejection of evidence ... unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties."

The witness simply said that a man who appeared to work at the dealership attempted to explain how the truck came to be scratched. The statement in question is relevant to the jury’s determination of whether the truck was in fact used and damaged at the time of sale and whether the dealership had knowledge of this. We think the trial court correctly held that Atkins could show by cross-examination that the plaintiff was relying on a statement of a bystander. We also note that this evidence was cumulative. Plaintiff’s witness, Terry Martin, testified to the same thing, without objection.

There was additional evidence to support the jury’s finding that the truck was not new and that Atkins misrepresented its condition to Drake. Drake testified that, two days after the sale and delivery of the truck, he found the underside and a portion of the interior of the truck to be covered with mud, and found a bent stabilizer bar, patches of rust on the trailer hitch and brake pedal, a dirty air filter, and particles in the oil. He testified that he had not driven the truck through any mud or been in any accident in which the front of the truck had been struck during those two days. These facts were corroborated by testimony of an acquaintance of Drake’s.

We hold, without deciding whether the statement is inadmissible hearsay or not, that it was not reversible error for the trial court to admit the evidence in the context involved here. The question of agency was properly presented to the jury under a correct charge. There was sufficient evidence from which the jury could have concluded that the person making the statement complained of was a salesman for Atkins. The plaintiff and his friend both testified that they had seen him there several times, and he appeared to work there. He certainly had apparent authority. Blue Cross-Blue Shield of Ala. v. Thornton, 56 Ala.App. 678, 325 So.2d 187 (1975).

The statements of Drake’s counsel, made during closing argument, which are claimed to be improper and prejudicial so as to require a mistrial, are set out below:

“MR. SPINA [Counsel for plaintiff]: And to be sure that people don’t run around and take advantage of me and you and everybody else in the world, they allow for this punitive-type damage which is punishing that person for his behavior. Whatever you decide, if you do decide some punitive damages should be awarded, make sure that that purpose is served.
“I don’t know if y’all are tennis fans or whatever, but recently at the Wimbledon, John McEnroe went berserk on a court and everybody ranted and raved and he made a fool of himself, and however you look at that. But the folks at Wimbledon assessed him a $1,500.00 fine, I think. Well, I think he won, probably $75,000.00 for being there and one of the coaches for the other player—
“MR. JACKSON: I am going to object to this line of argument based on the fact that he is referring to the economic side of this case, the financial part of this case, and that is improper argument. And I ask the Court to instruct the jury not to consider that part of his argument. “COURT: Overrule.
“MR. SALTER: All right, if I may finish up. One of the fellow coaches for another tennis player made the comment to the news people that, you know, he gets a million dollars worth of publicity and a fifteen hundred dollar fine.
“MR. JACKSON: Now, I object to that....
“COURT: Ladies and gentlemen, I don’t see how that would help us in this case. Go ahead and argue.
“MR. JACKSON: ... I now make a motion for the Court to instruct the jury to disregard that line of argument he was talking about.
“COURT: Ladies and gentlemen, I don’t see how that would help us in this case. You heard the argument and I can’t take it out of your brain. I can’t do that. But I don’t see how it could help us in this ease.
“MR. JACKSON: Now, I respectfully ask for a motion for a mistrial based on the argument that has just been made. “COURT: Overruled.”

The rule governing the scope of review on a question dealing with the propriety of an attorney’s closing argument was set out in Alabama Farm Bureau Mutual Casualty Ins. Co. v. Humphrey, 54 Ala.App. 343, 348, 308 So.2d 255, 259 (1975):

“In a case of improper argument where the trial judge overrules objection and fails to instruct the jury as to impropriety with direction to disregard, the test upon appeal is not that the argument did unlawfully influence the jury, but whether it might have done so.”

We note at the outset that plaintiffs counsel did not refer directly to the wealth of Atkins nor did he say that Atkins and McEnroe were within the same income level. A fine imposed by a tennis official on John McEnroe for “going berserk” is a far cry from punitive damages awarded in a court of law by a jury upon deliberation of the evidence.

The instant case is clearly distinguishable from Estis Trucking Co., Inc. v. Hammond, 387 So.2d 768 (Ala.1980), in which the same test was applied. The judgment was reversed and remanded for a new trial. The statement in that closing argument directly addressed the wealth of the defendant and stated it as a fact. Furthermore, it was found that the trial judge’s instructions to the jury to decide the ease on the evidence only and not to consider the statements of counsel as evidence were insufficient to eradicate the prejudicial effect.

It was pointed out in Estis Trucking that the trial judge failed to instruct the jury that the statement was improper. We recognize that the trial court in the case at bar also did not use the exact language of the test and instruct the jury that the statement of Drake’s attorney was improper. However, he did tell them that the statement was of no use, which is in effect an instruction to disregard it. Whatever harm or prejudice there may have been was eradicated by the judge’s admonishment.

The other portion of the closing argument alleged to be prejudicial to Atkins is as follows:

“MR. SALTER [Counsel for plaintiff]: Now, I want to move on to the big question in this case. What do y’all think about this? Is this the way that you want to be treated? Is there a message that you can send out to Atkins Ford Sales?
“MR. JACKSON: I object, to that. That’s not the proper argument in this case. He’s referring to individuals and personalities and asking the jury to put themselves in his place and that is not inferred from the evidence. It is not arguing the evidence.
“MR. SALTER: I will argue it — I withdraw it.
“COURT: Rephrase it.

In Estis Trucking, 387 So.2d 768, 774, it was held that a statement that is “merely a bare invitation for the jurors to put themselves in the place of the plaintiff” is not prejudicial. We hold that the above statement is no more than just such an invitation. It is a question to the jury asking whether they would have believed the statements of Atkins’s agents about the truck. The last question asked by counsel is simply restating one of the issues — is this a case in which punitive damages are appropriate? This issue was properly before the jury.

We hold that the statements made by plaintiff’s counsel during closing argument were not prejudicial and that any harm there might have been was eradicated by the trial court’s instructions.

AFFIRMED.

TORBERT, C.J., and MADDOX, JONES, ALMON, BEATTY and ADAMS, JJ., concur.

EMBRY, J., dissents.

FAULKNER, J., recused.


author: ADAMS, Justice.

text:
    Joseph R. TAYLOR v. TROY STATE UNIVERSITY, et al.
    82-23.
    Supreme Court of Alabama.
    Aug. 12, 1983.

      J. Victor Price, Jr., Montgomery, for appellant.
    Dow T. Huskey of Johnson, Huskey, Hornsby & Etheredge Dothan, and Richard F. Calhoun of Brantley & Calhoun, Troy, for appellees.
   ADAMS, Justice.

This appeal arises from an action filed in the Circuit Court for Pike County. The appellant, Joseph R. Taylor, filed a petition for an alternative writ of mandamus to Troy State University; Ralph W. Adams, its president; and Robert M. Paul, vice-president of Troy State University, Do-than/Ft. Rucker. Taylor alleged that he was a tenured professor of Troy State University, and that his employment had been wrongfully terminated, notice of such termination having failed to comply with the rules and regulations of Troy State University regarding termination of tenured employees. Taylor sought to require the defendants to deliver to him a contract of employment for the 1982-1983 school year.

After the trial court issued the alternative writ of mandamus, the defendants filed an answer, denying all the material allegations. They also filed a motion to dismiss, claiming that Troy State University and Ralph W. Adams were not proper parties to the action, that the petition failed to state a claim upon which relief could be granted, and that the petition was barred by the constitutional immunity of the State of Alabama from suit pursuant to Article 1, Section 14, Constitution of Alabama 1901. The circuit court granted the defendants’ motion to dismiss, and Taylor filed this appeal.

The following issue and questions raised thereby are dispositive of this appeal:

Was the trial court correct in granting the defendants’ motion to dismiss?

a. Is the petition for writ of mandamus barred by the Constitutional immunity of the State of Alabama?
b. Does the petition fail to state a claim upon which relief can be granted? ■

We affirm the lower court’s judgment in dismissing defendant Troy State University from the suit. As regards the two individual defendants, we reverse.

I.

Article 1, § 14, Constitution of Alabama 1901, states:

Sec. 14. State not to be made defendant.
That the State of Alabama shall never be made a defendant in any court of law or equity.

Because of this section, Alabama has been held to have virtually complete sovereign immunity. Sanders Lead Co. v. Levine, 370 F.Supp. 1115 (M.D.Ala.1973). This immunity extends to the state’s institutions of higher learning. See, e.g., Hutchinson v. Board of Trustees of University of Alabama, 288 Ala. 20, 256 So.2d 281 (1971); Harmon v. Alabama College, 235 Ala. 148, 177 So. 747 (1937). The State’s immunity bars suits for relief by way of mandamus or injunction, no less than suits for any other remedy. See Engelhardt v. Jenkins, 273 Ala. 352, 141 So.2d 193 (1902).

Our cases adhere to the view that the State has an interest such as will prohibit suit against the State official or employee where the action is, in effect, against the State. DeStafney v. University of Alabama, 413 So.2d 391 (Ala.1982). However, this Court has held that certain categories of actions do not come within the prohibition of § 14: (1) actions brought to compel State officials to perform their legal duties; (2) actions brought to enjoin State officials from enforcing an unconstitutional law; (3) actions to compel State officials to perform ministerial acts; and (4) actions brought under the Declaratory Judgment Act seeking construction of a statute and its application in a given situation. Gunter v. Beasley, 414 So.2d 41 (Ala.1982); Aland v. Graham, 287 Ala. 226, 250 So.2d 677 (1971). Other non-prohibited actions are inverse condemnation actions brought against State officials in their representative capacity and actions brought against State officials in their representative capacity and individually where it is alleged that they have acted fraudulently, in bad faith, beyond their authority, or in a mistaken interpretation of law. Gunter v. Beasley, supra; Ex parte Carter, 395 So.2d 65 (Ala.1980).

This court has held that where discretion of a state official is exhausted and that which remains to be done is a ministerial act, mandamus will lie to require the act. See Hardin v. Fullilove Excavating Company, Inc., 353 So.2d 779 (Ala.1977). Thus, a writ of mandamus has been issued to require the State Board of Health to issue septic tank permits, when the court found that the denial of the permits was outside the realm of the Board’s standard practice, and no justification for the variance was presented by the Board. State Board of Health v. Atnip Design & Supply Center, Inc., 385 So.2d 1307 (Ala.1980). Likewise, this court has held that mandamus would lie to require University of Alabama in Birmingham officials to pay an architect’s fee due under contract, if the facts showed that payment was being withheld arbitrarily. Dampier v. Pegues, 362 So.2d 224 (Ala.1978). Based on the foregoing, we conclude in the instant case that, if the individual defendants have not acted toward the plaintiff in accordance with their own rules and regulations, their acts are arbitrary, and an action for writ of mandamus will not be barred by the sovereign immunity clause of the Constitution of 1901.

II.

With regard to whether the petition fails to state a claim upon which relief can be granted, we must examine the substance of the petition, which follows:

1. Plaintiff is a tenured professor employed by defendant Troy State University holding such status under rules and regulations of said defendant in effect on the date of his employment. As such he may be dismissed only for proven cause. Plaintiff is currently completing his eighth consecutive year of employment as an assistant professor.
2. Defendant Ralph W. Adams is President of Troy State University and is its chief executive officer responsible for seeing that rules and regulations of Troy State University are carried out, and is responsible for and has authority to terminate employment of contract employees at Troy State University.
3. Defendant Robert M. Paul is Vice-President of Troy State University, Do-than/Ft. Rucker, and was at all times pertinent to these proceedings. He has no authority to terminate employment of contract employees such as the plaintiff.
4. Plaintiff received on January 13, 1982, notice that Defendant Robert M. Paul, Vice-President of Troy State University, Dothan/Ft. Rucker, had written a letter terminating his contract with Troy State University. Robert M. Paul was not and is not authorized to terminate the employment of faculty members employed by Troy State University.
5. The said notice received by the plaintiff did not comply with rules and regulations of Troy State University in that it was written and signed by an unauthorized person, and gave no notice of the reasons for the termination of employment.
The plaintiff is ready, willing and able to continue his duties as a tenured member of the faculty of Troy State University-
6. Plaintiff has been informed that the defendants will not honor his tenure status or pay his salary for the 1982-83 school year, notwithstanding plaintiff’s request and demand of defendants that they do so.
WHEREFORE, plaintiff prays that the Court will issue to said defendants its alternative writ of mandamus commanding them to show cause why they should not be required to: Deliver to the plaintiff his contract of employment executed by the defendants for the 1982-83 school year for the plaintiff’s signature.

Dampier v. Pegues, supra, involves a motion to dismiss. In that case this court stated:

The complaint is not to be construed strictly against the pleader when challenged by a motion to dismiss. Butts v. Weiss, 346 So.2d 422 (Ala.1977). It is clear that if the plaintiff proved each allegation in his complaint, his claim would fall squarely within the holdings of Hardin and [«State Board of Administration, et a 1. v.] Roquemore [218 Ala. 120, 117 So. 757 (1928)]....
Therefore, considering the complaint in a light most favorable to the plaintiff, we hold that his petition is sufficient to withstand a motion to dismiss.
Motions to dismiss should only be granted when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Jeannie’s Grocery v. Baldwin County Elec. Mem. Gorp., 331 So.2d 665 (Ala.1976).

Dampier v. Pegues, 362 So.2d at 225.

In the case before us, we hold that if the plaintiff proved every allegation against the individual defendants in his complaint, mandamus would lie. The defendants’ answer denies each and every material allegation in the complaint. Their motion to dismiss states, in addition, that Taylor has no contractual relationship with Troy State University, being at all times employed by Troy State University Do-than/Ft. Rucker, which defendants claim is an autonomous institution. While the record indicates that there was a hearing on the motion, and both sides filed memoranda in support of their respective positions, there is no indication that any evidence was presented to the court. Thus, it does not clearly appear that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

In light of the foregoing discussion, the judgment granting the motion to dismiss is, as regards the individual defendants, reversed, and the cause is remanded.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

TORBERT, C.J., and ALMON, EMBRY and BEATTY, JJ., concur.