Boswell v. Citronelle-Mobile Gathering, Inc.

• Decision Date: 28 March 1974
• Docket Number: CITRONELLE-MOBILE
• Citation: 292 Ala. 344,294 So.2d 428
• Parties: Charles A. BOSWELL, Commissioner of Revenue, State of Alabama, v.GATHERING, INC., et al. SC 367.
• Court: Alabama Supreme Court

Page 428

294 So.2d 428

292 Ala. 344

Charles A. BOSWELL, Commissioner of Revenue, State of Alabama, v. CITRONELLE-MOBILE GATHERING, INC., et al.

SC 367.

Supreme Court of Alabama.

March 28, 1974.

As Modified on Denial of Rehearing May 9, 1974.

Willard W. Livingston, Counsel, Dept. of Revenue, Philip C. Davis, Asst. Counsel, Dept. of Revenue, and Asst. Atty. Gen., of Ala., for appellant.

W. Dewitt Reams and James D. Brooks, Mobile, for appellees.

HARWOOD, Justice.

This suit involves a controversy between Bart B. Chamberlain, Jr., as General Partner of the Citronelle-Mobile Gathering System, Ltd., Bart B. Chamberlain, Jr., individually and as class representative, as complainants, and Charles A. Boswell, Commissioner of Revenue of the State of Alabama, as respondent.

After a demand by the Commissioner of Revenue that certain funds in the hands of the Gathering System be paid to him under the provisions of Act No. 63, (1971 Acts of Alabama, 1st Ex.Sess., approved 27 April 1971) designated as 'Uniform Disposition of Unclaimed Property Act,' the complainants brought a declaratory action in the Circuit Court of Mobile County seeking a declaration that the funds held by them were not subject to our Uniform Disposition of Unclaimed Property Act, and praying that the commissioner be enjoined to enforce the Act against the complainants.

After a hearing, the Chancellor found and decreed that the funds in the hands of the complainants were not subject to the provisions of the above mentioned Act, and permanently enjoined the respondent from further attempting to enforce its provisions against the complainants.

From this decree the respondent commissioner perfected this appeal.

Act 63 now appears in the 1971 Cumulative Pocket Part of Michie's Recompiled Code of Alabama 1958, as Sections 314--342, Title 47, and for convenience we will use these code sections as references in this opinion.

As a threshhold question, the commissioner-appellant argues that the Chancellor erred in denying his motion to dismiss the bill on the ground, among others, that the action was improperly brought in the Mobile Circuit Court in that the commissioner's official residence is in Montgomery County, and the suit could therefore be prosecuted only in Montgomery County.

It is of course well established that suits against public officials are ordinarily and properly maintained only in the county of their official residence. First National Bank of Linden v. Alston, 231 Ala. 348, 165 So. 241; Tri-State Corp., Inc. v. State, 272 Ala. 41, 128 So.2d 505; Kelley v. Lingo, 280 Ala. 128, 190 So.2d 683.

This general rule is not questioned by either party but appellees point out that under the provisions of the Uniform Disposition of Unclaimed Property Act there is a special provision permitting an action by any person aggrieved by a decision of the commissioner denying such aggrieved person's claim to property held by the commissioner, to maintain a declaratory action against the commissioner in either Montgomery County, or in the county of residence of the aggrieved party.

Section 334, Title 47 of the Uniform Disposition of Unclaimed Property Act provides:

'Any person aggrieved by a decision of the commissioner of revenue or as to whose claim the commissioner of revenue has failed to act within 90 days after the filing of the claim, may commence a suit for a declaratory judgment against the commissioner of revenue in the circuit court of Montgomery county, in equity, or the circuit court in equity of the county of residence of the person aggrieved, to determine or establish his rights. The proceeding shall be brought within 90 days after the decision of the commissioner of revenue or within 180 days from the filing of the claim if the commissioner of revenue fails to act. The suit shall be tried de novo without a jury. (1971, 1st Ex.Sess. No. 63, § 21, appvd. April 27, 1971.)'

The appellant contends that this section provides a special venue only for those persons who file a claim to gain property already in the possession of the commissioner. We do not agree.

Venue, as distinguished from jurisdiction, i.e., the power of a court to entertain an action, pertains to convenience, or policy considerations in the matter of allowing a court having jurisdiction to entertain a cause of action. Ex parte Western Railway of Alabama, 283 Ala. 6, 214 So.2d 284.

Section 334 provides that Any person aggrieved by a decision of the Commissioner of Revenue * * * may commence a suit for a declaratory judgment against the commissioner in the Circuit Court of Montgomery County, Or in the Circuit Court of the county of residence of the aggrieved person.

We think the intent of the legislature is clear to provide that in cases of this nature the aggrieved party may sue in the circuit court of either Montgomery County or the county of his residence. A claimant of abandoned property is equally aggrieved by a decision of the commissioner laying claim to abandoned property in the hands of a claimant as he is by the refusal of the commissioner to return property already placed in his possession.

We hold that venue of this action, under the provisions of Section 334 was properly in either the Circuit Court of Montgomery County, or the Circuit Court of Mobile County, and the appellant can take nothing by his assignments of error 1 and 2. In this aspect this judgment is affirmed.

The stipulations of the parties, and the evidence introduced below tend to show that the land under which lies the Citronelle oil field was not too valuable prior to the discovery of oil thereunder. As a result, the title to many parcels of such land became confused and uncertain. In some instances there had been no administration for several generations of the estates of the one-time owner, or owners, of certain of the parcels.

With the discovery of oil, the Alabama Oil and Gas Board adopted the rule of permitting one oil well to be board on each forty acre tract.

Oil being migratory, if a clear title to an entire tract were required as a prerequisite to obtaining a permit to drill a well, the oil underlying a tract of uncertain title might be materially exhausted by the producing well or wells on the surrounding forty acre tracts where the title was certain and a permit had been issued for boring a well.

For this reason, the Oil and Gas Board adopted a policy of issuing a permit to a prospective operator (driller) for the boring of a well on any forty acre tract where fifty per cent or more of the owners were known.

Once a well is drilled and produces oil, the practice in the Citronelle field is for the operator (driller) to sell the oil to a gathering system, in this case the appellees.

The operator (driller) delivers the oil to the gathering system under the authority of an A--2 form division order where there are multiple title holders. The gathering system pays the known title owners of the mineral rights their pro rata share under a fixed formula. Where owners are unknown, or where title to mineral rights are disputed or in litigation, the payments due on such disputed titles are designated by the appellees as 'suspense accounts' for appellees' accounting purposes. Such funds are not, however, segregated in appellees' general bank account. When a claimant can later show ownership in a share or shares in the 'suspense account' the appellees will pay him the accumulated amount due.

Both parties agree that if the Disposition of Unclaimed Property Act is to apply to the monies held by the appellees for payment to the unknown owners of their proportional interests, such application of the Act is to be determined from Section 322 of Title 47, Code of Alabama 1940. This section reads:

'All tangible and intangible personal property, not otherwise covered by this chapter, including but not limited to and by way of illustration, money, stocks bonds, certificates of membership in corporations, income, amounts due and payable under the terms of insurance policies not covered by section 316 hereof, pension trust agreements, profit-sharing plans, security deposits, refunds, funds deposited to redeem stocks, bonds, coupons and other securities, or to make a distribution thereof, together with any income, interest or increment thereon and deducting any lawful charges, that is held or owing in this state in the ordinary course of the holder's business and has remained unclaimed by the owner for more than seven years after it became payable or distributable is presumed abandoned; provided, however, that unclaimed or unpaid wages and salaries which have remained unclaimed by the owner for more than one year after becoming payable are presumed abandoned. (1971, 1st Ex.Sess. No. 63, § 9, appvd....