105 Ala. 485 | Ala. | 1894
In the act to create a new convict system for the State of Alabama, (Acts, 1892-93, p. 214), it is provided in section 54 : “That upon the conviction and sentence of any person to the penitentiary, the clerk of the court in which the sentence is pronounced, shall immediately transmit to the superintendent of convicts, a certified copy of such sentence, and a certified copy of the statement put upon the minutes of the court under the direction of the court as required by this law, [which statement has reference to the convict’s trade and business &c., as provided to be entered on the minutes, by section 19 of said act], and also a certified statement or bill of costs of said conviction, containing the following items only : clerk’s fees for issuing subpoenas for State witnesses,” &c.
By section 20 it is provided : “That the warden of the penitentiary shall receive into his custody, on the order of the Governor, any person convicted of any crime punishable by death, and whose sentence shall have been commuted to a term of years or for life, and confine such prisoner according to the terms of such order or commutation.” There is no provision in the law for taxing and certifying a bill of costs to the superintendent of convicts , in case a defendant' is convicted and sentenced to death, nor any in respect to a defendant who has been so convicted and sentenced, and whose sentence has been commuted by the Governor to the penitentiary for life.
By the common law costs and fees were different in their nature. The one was an allowance to a party for expenses incurred in litigation ; the other, compensation to an officer for services rendered in the progress of a cause. In reference to criminal prosecutions especially, our statutes do not observe the distinction between costs and fees. All the taxable costs, except witness fees, consist of fees fixed by statute for services rendered by the officers of court.—Bradley v. The State, 69 Ala. 318. And it is well settled, that statutes giving costs and officers’ fees are not to be extended beyond their letter, and must be strictly construed, for the reason, as held, that costs are in the nature of a penalty.—Skinner v. Dawson, 87 Ala. 348; Shields v. Sheffield, 79 Ala. 96; Kahn v. Locke, 75 Ala. 332; Pollard v. Brewer, 59 Ala. 130; Tillman v. Wood, 58 Ala. 578; Code, § 4892.
The statute has not provided for such a case as we have in hand, and without it, the costs are not payable by the State. The superintendent of convicts did right to refuse to request the Auditor to pay the bill, and the
Reversed and dismissed.