State ex rel. Fowler v. Stone

• Decision Date: 25 November 1938
• Docket Number: 1 Div. 35.
• Citation: 237 Ala. 78,185 So. 404
• Parties: STATE EX REL. FOWLER v. STONE, COUNTY TREASURER.
• Court: Alabama Supreme Court

185 So. 404

237 Ala. 78

STATE EX REL. FOWLER v. STONE, COUNTY TREASURER.

1 Div. 35.

Supreme Court of Alabama

November 25, 1938

Rehearing Denied Jan. 12, 1939.

Appeal from Circuit Court, Mobile County; Jas. H. Webb, Judge.

Petition of the State of Alabama, upon the relation of H. W. Fowler for mandamus to George E. Stone, as Treasurer of Mobile County, to require numbering and registration of certain county warrants. From a judgment of nonsuit, relator appeals.

Affirmed.

McCorvey McLeod, Turner & Rogers, of Mobile, for appellant.

Gordon Leigh, Leigh & Gordon, of Mobile, for appellee.

THOMAS Justice.

The appeal challenges the sustaining of demurrer to the petition as last amended. Its prayer was for mandamus to the county treasurer, to compel him to number and register specific warrants against the county for alleged services rendered as member of the board of equalization.

The facts are stated in substance as follows: Petitioner was a member of the county board of equalization in a county of more than 75,000 population; that soon after the passage of the act of the legislature (General Acts of Alabama 1915, pp. 414-421, § 70 et seq.) creating a county board of equalization for the several counties of the state, the Board of Revenue and Road Commissioners of Mobile County, fixed the compensation for the services of the members of said county board of equalization; that petitioner, in the months of April, May, June and September in the years of 1916 and 1917 discharged the services of a member of such board of equalization, and the county board of revenue and road commissioners regularly certified the number of days so served, issued and delivered to petitioner warrants aggregating the amount fixed for his said services; that certain amounts were paid to petitioner for services rendered and the amounts due for August, 1916, and September, 1917, were not paid.

It is further averred in the petition that thereafter, the Treasurer of Mobile County appeared before the board of revenue and road commissioners and requested that no warrants be issued to petitioner for twenty-six days in July, 1917, one day in August, and eighteen days in October, 1917, for which services the compensation of petitioner was not in dispute, but that the matter "be handled by issuing to petitioner a warrant for only $20.00 to cover two days for services rendered in the month of October, 1917, using this balance of $450.00 which was admittedly due your petitioner, to off-set the claim which Mobile County was asserting against your petitioner on account of the payment of $450.00 theretofore made to petitioner for services during the said forty-five days in the months of April, May and June, in the year 1916; that the matter was accordingly so arranged by the said County Treasurer and by the said Board of Revenue and Road Commissioners of Mobile County, Alabama, the effect of which arrangement was to compensate your petitioner for the said forty-five days services rendered by him during the year 1917, for which he was admittedly due compensation, and by taking away from petitioner the compensation theretofore paid him for the said forty-five days services rendered by him during the months of April, May and June, 1916; that since such time the matter has been so treated by all of the interested parties, and, consequently your petitioner is advised and takes the position that in view of the fact that Mobile County has, in effect, taken away from him the money which was admittedly due him to reimburse itself for money which it claimed to have erroneously paid him for the services rendered by him during the months of April, May and June, 1916; that the situation should be here treated as if the services for which your petitioner has not been paid are the services rendered by petitioner during the said forty-five days in the months of April, May and June, in the year 1916; that in addition to not being compensated for the services rendered by your petitioner during the months of April, May and June, 1916, your petitioner has not been compensated for the forty-seven days' services rendered in August, 1916, September, 1916, and April, 1917, hereinabove referred to, making the total number of days for which your petitioner has not been compensated ninety-two days."

It is further averred that petitioner requested the board to again consider his claim for compensation for which he had not been paid; that a committee was appointed and reported to the board; that said report was that if the board refused payment, its action would invite litigation which would cost the county substantial sums and there was "no certainty that the county would be finally successful in its contention," and that it would be well for the county to "cancel account" as they would pay practically the same moneys to litigate it.

It is further averred that upon receipt of said report the board passed the claim of petitioner and authorized the President of the said Board of Revenue and Road Commissioners of Mobile County, to execute and deliver to petitioner a warrant for the controverted sum of $920 in words and figures as follows:

"Office of Board of Revenue and Road

Commissioners of Mobile County.

"No. 17520

Mobile, Ala. Aug. 19, 1919.

"To the County Treasurer: When in Funds pay to H. W. Fowler or Order Nine Hundred Twenty & No/100 Dollars For Account of Services as Member Equalization Board Mobile County, 92 Days at $10.00 during years 1916 & 1917.

"$920.00

John D. Hagan,

President."

It is further averred that the warrant so issued was presented to the county treasurer, demand made of that official to "number and register the said warrant in the order in which it was presented, having such register to show the number of the said claim, the date presented for registration, to whom allowed, when allowed, the character of the claim and the amount thereof, in all respects as provided by Subdivision 4 of Section 211 of the Code of Alabama of 1907;" that said treasurer failed and refused to accept the warrant and to number and register the same as required by law, resting his refusal on the fact that under the constitution and laws of Alabama petitioner was not entitled to the compensation "which he seeks."

It is further averred that thereafter and subsequent to the enactment by the legislature providing for the payment of equitable claims against counties (General Acts of Alabama 1920, p. 154) petitioner surrendered his warrant in order that he might obtain from the Board of Revenue and Road Commissioners of Mobile County, a warrant issued subsequent to the approval of the last named act.

It is further averred that petitioner's claim was again presented to the board in all respects as required by law, which fact is duly shown by the minutes of the board of revenue, and a new warrant was issued to petitioner in the sum of $920 of date of March 1, 1921, which was substantially in the same form as the above quoted warrant, and which was duly evidenced by the minutes of the Board of Revenue and Road Commissioners of Mobile County, and that the minutes of the board concluded with the statement that John D. Hagan, as President of the Board, was authorized to forthwith draw and deliver to the former members of the Mobile County Board of Equalization warrants "to compensate them for their said services as such commissioners" in the respective sums as follows: "To Joseph Espalla, Jr., $950.00; to A. S. Lyons, $920.00, and to H. W. Fowler, $920.00." It is further averred that pursuant to such resolution, warrants were duly drawn and delivered in such sums.

It is further averred that thereafter on the 21st day of November, 1921, said board duly amended, nunc pro tunc, the resolution adopted by the board at its former meeting, reciting the facts as indicated with the addition that, "Whereas, the said Joseph Espalla, Jr., A. S. Lyons and H. W. Fowler have now surrendered to this Board for cancellation the warrants heretofore issued to them under resolutions of this Board adopted at meetings held on August 16th, 1919, and March 1st, 1921, respectively, covering the services hereinabove referred to," that the clerk was authorized to destroy the said two series of warrants issued respectively on August 19, 1919, and March 1st, 1921.

It is further averred that aside from the Act of the Legislature of Alabama, passed and approved at the 1920 Special Session (Acts of 1920, p. 154), authorizing payment of equitable claims against a county, the Legislature of Alabama at its 1919 Regular Session passed an act for the relief of Joseph Espalla, Jr., A. S. Lyons and H. W. Fowler for the payment of specific sums of $920 and $950 (Local Acts of Alabama 1919, pp. 24 and 25), and which act directed the county treasurer to pay said warrants "in the same manner and out of the same funds as warrants for compensation of said members of the board of equalization of said county are paid."

It is further averred that petitioner presented the warrants to said treasurer for numbering and registration, that the official refused to so number and register the same, claiming that under the constitution and laws of Alabama petitioner was not entitled to the compensation which he seeks, notwithstanding the fact that "it is not denied that petitioner rendered the services above referred to;" and that the said George E. Stone, as such County Treasurer, "endorsed on the back of the said warrant the following: 'Presented for numbering and registering April 23rd, 1921, and registration and numbering refused. George E. Stone, Treasurer.' "

It is further averred that for the time indicated petitioner was entitled to be paid by the county the sum of $920; that the same was refused of registration or...