Stone v. State

• Decision Date: 18 June 1931
• Docket Number: 1 Div. 672.
• Parties: STONE, COUNTY TREASURER, v. STATE EX REL. MOBILE BROADCASTING CORPORATION.
• Court: Alabama Supreme Court

136 So. 727

223 Ala. 426

STONE, COUNTY TREASURER, v. STATE EX REL. MOBILE BROADCASTING CORPORATION.

1 Div. 672.

Supreme Court of Alabama

June 18, 1931

Rehearing Denied Oct. 15, 1931.

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Petition of the State of Alabama, on the relation of the Mobile Broadcasting Corporation, for mandamus to George E. Stone, as Treasurer of Mobile County. From a judgment awarding the writ, respondent appeals. Transferred from Court of Appeals.

Reversed and rendered.

Gordon Edington & Leigh, of Mobile, for appellant.

Stevens McCorvey, McLeod, Goode & Turner, of Mobile, for appellee.

BROWN J.

The appeal in this case is from the judgment of the circuit court granting a peremptory writ of mandamus, commanding the appellant, as county treasurer of Mobile county, to register as a claim against the general funds of the county of Mobile a warrant for $375 issued on May 14, 1930, by A. B. Davis, as president of the board of revenue and road commissioners of Mobile county, payable to the Mobile Broadcasting Corporation, "For account of advertising as per contract three fourths of a month at $500.00 per month."

The warrant was issued in pursuance of an order of the board of revenue and road commissioners of Mobile county, entered on the minutes of the board on March 17, 1930, that, "Claim No. 210, Mobile Broadcasting Corporation advertising as per contract, $375.00," along with other miscellaneous claims "are hereby passed to payment when properly O. K.'d by their respective Chairmen."

The petition for mandamus alleges, in substance, that at a meeting of the board of revenue and road commissioners of Mobile county, held on the 9th day of December, 1929, representatives of the Mobile Broadcasting Corporation appeared before said board and advised the said board that the Federal Radio Commission had granted a permit for a broadcasting station in Mobile, with the call letters "WODX," such station "to be on the air" by February 7, 1930, and Mobile county was requested to appropriate $500 per month as financial aid toward the advertising of Mobile county. After some discussion, which was joined in by several of the members of the board of revenue and road commissioners of Mobile county, Ala., a motion was made that the board's attorney "*** draw up a contract with the Mobile Broadcasting Corporation for $500.00 per month, to be used for advertising the resources and development of Mobile County over the Mobile Radio Broadcasting Station, provided the station was attractive, such contract to be for four years, with a clause for a six months' notice for cancellation included, the said motion further authorizing Chairman A. D. Davis of the said board to sign the said contract"; that in pursuance of said resolution the contract was drawn and signed, on the 12th day of December, 1929; that said broadcasting station was thereafter established and "went on the air on February 7, 1930"; that the petitioner has complied with said contract; and that from time to time members of the board of revenue and road commissioners of Mobile county have broadcast over the said station such information as they desired to send out as provided for in said contract; that after said broadcasting station "had gone on the air" the representative of the petitioner appeared before the board of revenue and road commissioners, at a meeting of said board on February 17, 1930, "and stated that in view of the fact that the undersigned had fulfilled every promise which had been made to the said Board in opening a broadcasting station and putting Mobile on the air, they felt that they were now due some expression of confidence. The said Board of Revenue and Road Commissioners then adopted the following resolution:

"'That in this day of wonders and achievements of science follow with bewildering frequency, and while comparisons are venturesome, surely the radio is worthy to stand in the forefront. It carries to the remotest parts of the earth, the news of the day and brings to the fireside music and mirth, entertainment and instruction most varied, I think we are to be congratulated on the auspicious beginning of WODX.'

"The Chairman of the Board then stated to the meeting, in substance, that he did not fell that the Board had ever received greater returns from any money expended by it than that received from the funds appropriated to the radio station." (Italics supplied.)

That the petitioner's claim was duly audited and allowed, the warrant issued and presented to the treasurer for registration, and he refused to register the same "because he claimed that under the Constitution and laws of Alabama the petitioner is not entitled to collect the said warrant from the county."

That the refusal of the treasurer to register said claim, as authorized by subsection 4 of section 303 of the Code of 1923, was wrongful.

The contract, which is made an exhibit to the petition, recites, that: "(1) A controlling feature in the consideration for this contract is the representation that the party of the second part (the broadcasting corporation) will establish a high-class plant, costing approximately fifty thousand ($50,000.00) dollars, with an authorized power of five hundred watts, in the beginning, which it agrees to increase to one thousand watts as soon as authority therefor is obtained from the proper authority. (2) That it will maintain a continuous service, minimum of six hours daily, except so much of that period as shall be allowed to a station contemplated at Montgomery, Alabama. (3) That during the hours of broadcasting, whenever the name of the station is announced, there shall be coupled with it, suitable expressions, setting forth the advantages to be found here, which phrases shall be varied from time to time, when and as suggested by the Board of Revenue and Road Commissioners of Mobile County. (4) That representatives of this Board may at suitable times, broadcast over such station, such information concerning the resources and opportunities in this County, provided that such remarks will not be extended over a period longer than ten minutes. (5) The party of the second part agrees to send out attractive programs, such as are calculated to cause the owners of radio sets throughout the country to desire to tune in on this station, thereby securing wide dissemination of information concerning Mobile County, thereby set out," etc.

The respondent in answer to the petition, among other defenses asserts that the contract as embraced in said petition was not executed for the bona fide purposes of advertising the...