44 So. 702 | Ala. | 1907
Lead Opinion
It appears that section 1372 of the Code of 1896, in providing for ex officio services for circuit clerks, says: “Such sum as may be allowed by the court of county commissioners, not exceeding per an-num $200” — making an exception as to the amount to the extent of $500 for Calhoun and a few other counties. If this section stood alone and controlled in the case at bar, it might be that the sum to be allowed would be discretionary with the commissioners’ court in so far as it did not exceed the maximum. But section 1363 of the same Code, in providing for the presentation and allowance of claims for ex officio services, says: “The compensation allowed shall be the fair and reasonable value of the services, m no ease to exceed two hundred dollars per annum, unless otherwise provided by law.” There is an apparent conflict between these two sections; for one leave's the sum to be allowed to the discretion of the commissioners’ court, while the other requires them to allow such compensation as is the fair and reasonable value for said services. In tracing the history of these two sections, we find that section 1363 is of more recent enactment, and must be construed to modify and amend
The second count of the complaint may be bad for failing to aver that the reduction had been refused. — Code 1896, § 13; Looney v. Jackson County, 105 Ala. 597, 17 South. 105. But this omission was not properly raised by the demurrer. The ninth ground attempts to point out the defect, but it complains of a failure to allege what amount was allowed and refused. The complaint does aver what amount was allowed, and we cannot put the trial court in error for overruling this demurrer.
The trial court erred in permitting the plaintiff to prove the item charged for attending court. The law requires the clerk to attend during the session of court. Indeed, the circuit court without the clerk would be like
There was no error in giving chage 1, requested by the plaintiff. It makes no service an ex officio charge, unless it was for the performance of some duty required by law, and then only in case no fee was specified, and upon the further condition that it could not be taxed as cost against any plaintiff or defendant. There was no error in giving charges 2 and 13, requested by the plaintiff. They are fully discussed in the first part of the opinion.
The purpose of the law is to afford fair and impartial trials to all litigants, which can only be accomplished by absolutely unbiased juries, and trial judges cannot be too zealous in ridding the jury of men whose interest and environment is calculated to sway them in the slightest clegree. The fact that the jurors excused by the court were employed by the commissioners may be but a slight incentive for bias, yet it was the action of the commissioners that was being assailed by this suit, and we think the action of the court was authorized by section 5020 of the Code of 1896. This section gives the trial judge much discretion in excusing jurors for reasonable and proper cause, and we are inclined to commend, rather than criticise, the action of the trial judge in excluding these jurors.
Reversed and remanded.
Rehearing
On Rehearing.
It is insisted by counsel, in brief upon rehearing, that inasmch as the law requires the clerk to attend court, and as the fee bill makes no provision for compensating him for so attending, he should be paid a per diem by way of ex officio service. We think the purpose of the law is to pay the clerk for every act he is required to perform, and, where he is required to do things not covered by the fee bill, that it would come in in the nature of a change for ex officio service. But to permit the clerk to charge for discharging a duty, whether under the fee bill or by way of an ex officio charge, and at the same time charge the county for the time consumed by him in the discharge of said act or acts, would, in effect, be allowing him double compensation. For instance: We find upon appellee’s account items charged and allowed which were for services that could have been rendered only in open court and while he was in attendance: “Swearing in four regular juries; swearing in foreman, grand jury, and bailiff.” While this service could only be performed by the clerk while attending court, and notwithstanding he gets compensation for the rendition of same, a per diem allowance would necessarily be allowing him pay for the time consumed by him in earning fees already allowed. There ■ are other items on appellee’s account which
It is also argued that the clerks are discriminated against because sheriffs and bailiffs get pay for attending court. This is an argument to be addressed to the Legislature, and not the courts. The statute expressly provides for sheriffs and bailiffs, and makes no such provision for clerks, and clerks were doubtless omitted for the very reason that the Legislature realized that they were or could be compensated for every act they did while attending court, either under the fee bill or the ex officio clause, and that to pay them a per diem for attending court would, in effect, be paying them twice for the same thing.