State ex rel. Sossaman v. Stone

• Decision Date: 16 December 1937
• Docket Number: 1 Div. 974
• Citation: 178 So. 18,235 Ala. 233
• Parties: STATE ex rel. SOSSAMAN v. STONE, County Treasurer.
• Court: Alabama Supreme Court

178 So. 18

235 Ala. 233

STATE ex rel. SOSSAMAN v. STONE, County Treasurer.

1 Div. 974

Supreme Court of Alabama

December 16, 1937

Rehearing Denied Jan. 20, 1938

Appeal from Circuit Court, Mobile County; Joe M. Pelham, Jr., Judge.

Petition of the State of Alabama, on the relation of George A Sossaman, for mandamus to George E. Stone, as Treasurer of Mobile County. From a judgment of nonsuit, relator appeals.

Affirmed.

Geo. A Sossaman and Pillians, Cowley & Gresham, all of Mobile, for appellant.

Gordon Edington & Leigh, of Mobile, for appellee.

BROWN Justice.

By resolution adopted on the 19th day of December, 1935, the Board of Revenue and Road Commissioners of Mobile County, a board exercising, generally in Mobile County, the powers of courts of county commissioners, under the general law, by resolution duly adopted, instructed the petitioner Sossaman, the attorney for the board, "to enter suit for and prosecute to a final decision all claims of Mobile County against the various present and former officials of this county, or their estates, arising under House Bill No. 515 of the 1935 Legislature (Gen.Acts 1935, p. 844) and under the Sparks Amendment (Const.1901, Amend. No. 26A) *** that said attorney be and is hereby allowed a reasonable attorney's fee for said services, the amount to be determined when the service is completed." (Italics supplied.)

The petition avers that on the 16th day of September, 1936, petitioner "presented a claim to the Board of Revenue and Road Commissioners of Mobile County, Alabama, for $2,000.00 for services rendered in accordance with the foregoing resolution." That on September 16, 1936, the board adopted a resolution, the minute entry of which is as follows:

"Clerk presented the claim of George A. Sossaman for $2,000.00 'To fees for filing various suits and claims and association in case from Houston County seeking to enforce the collection of between $100,000.00 and $150,000.00 for Mobile County.'

"Commissioner Herzfeld moved, seconded by Commissioner Jefferies, that the claim of George A. Sossaman for $2,000.00 is hereby passed for payment. Motion put and carried."

That on said last date said board issued to petitioner a warrant in words and figures as follows:

"Office of No. 33493

Board of Revenue and Road Commissioners

Mobile, Ala. Sept. 16, 1936

The State of Alabama

County

[Seal]

To Treasurer of said County: When in funds pay out of the Gen. Fund.

To George A. Sossaman $2,000.00 Two thousand and no/100 Dollars for a/c Special Services as follows:

Warrant

Legal Services rendered in compliance with resolution adopted Dec. 19, 1935. Claim allowed and warrant ordered on the date and for the amount all as shown above.

"[Signed] Daniel T. McCall

"President.

County of Mobile"

That petitioner, on September 25, 1935, presented said warrant "to the defendant herein for registration and that the defendant refused to register same as required by law." That on October 19, 1936, petitioner "presented said warrant to the defendant herein for registration under the terms of the act of the Legislature approved April 10th, 1936, and printed in Local Acts of the Legislature of Alabama of 1936, page 58, and that the said defendant thereupon endorsed upon the back of said warrant: 'Presented for registration October 19th, 1936. Geo. E. Stone, Treasurer.' " On this predicate the petitioner prayed for the issuance of the alternative writ of mandamus "commanding and directing the said respondent George E. Stone, as Treasurer as aforesaid, forthwith to register said warrant hereinabove described and set out, and that said registration be made as of September 25th, 1936, and for the purpose of coming under the provisions of said above described act of the legislature of Alabama, also as of October 19th, 1936, and that thereafter the said respondent be required to pay same out of available funds in the regular and proper course," or to appear and show cause why a peremptory writ should not issue. (Italics supplied.)

The respondent, treasurer, demurred to the petition, the circuit court sustained the demurrer, superinducing a nonsuit from which petitioner has appealed.

The appellant contends, first, that the constitutional amendment proposed by Act No. 382, Gen.Acts 1935, pp. 810-813, and the enabling act passed in pursuance of its adoption, Act No. 101, Extra Session, Loc.Laws 1936, p. 58, approved April 10, 1936, confers on the Board of Revenue and Road Commissioners of Mobile County exclusive authority to determine what claims are "valid and enforceable obligations of Mobile County" payable by bonds or out of the proceeds of bonds issued under said enabling act, and that the board's determination is final and conclusive, and cannot be questioned by the treasurer in the civil courts.

And, second, that the appellant's claim is a valid claim, gauged by the general principles of law, irrespective of said amendment and the enabling act.

The treasurer, on the other hand, insists, first, that the board was wholly without authority to employ counsel to institute proceedings to recover the supposed funds arising from the "Sparks Amendment and the Hendley Act"; that this authority is expressly conferred on the county treasurer by subdivision 10 of section 303 of the Code of 1923. And, second, that the claim was not itemized as required by section 225 of the Code 1923, and that the minutes of the proceeding of the board set out in the petition shows that the claim embraced fees rendered in a case from Houston County.

The appellant's first contention might well be disposed of by the observation that there is nothing in the averments of the petition showing that Mobile County has exercised the power conferred on it by said amendment and the enabling act, and, as a consequence, there are bonds or the proceeds of bonds, constituting a special fund for the payment of claim mentioned in the amendment and in the act, nor is the warrant involved in this proceeding drawn on or ordered to be paid out of any such special fund.

We are however, not in agreement with the contention of the appellant that the enabling act confers on the County Board judicial power in respect to claims provided for in the amendment and the act. Our interpretation is...