Herr v. Seymour

76 Ala. 270 | Ala. | 1884

CLOPTON, J.

— This is a suit on the official bond of the county treasurer. The breach of the bond ^assigned is, the failure and refusal of the treasurer to pay, on demand, some State witnesses’ certificates, which were chargeable against the fine and forfeiture fund, and which had been registered ; the treasurer having money, belonging to that fund, sufficient to pay them. Both parties took an appeal. The two appeals were submitted together, and are decided as one case.

Section 4459 of Code 1876 provides : “ If the defendant is not convicted, and the costs are not imposed on the prosecutor ; or, if the indictment be withdrawn and filed ; or the prosecution abated by the death of the defendant; or, if the costs are imposed on either the defendant or the prosecutor, and an execution against him for the same is returned ‘no property found or, if no indictment is found by the grand jury, before whom the witnesses appear; or, if a nol-pros. be entered ; in each of these cases, the fees of witnesses on the part of the State, appearing either before the grand jury or the court, must be paid by the county, in the manner specified in the next section.” The next section (4460) makes it “ the duty of the clerk of the court, to issue a certificate to each witness appearing on the part of the State, stating therein the amount of compensation to which he is entitled, and the facts which, under the provisions of the preceding section, make it a good claim against the county ; which certificate is receivable in payment of any debt due to the county for fines and forfeitures, and payable by the treasurer out of any fines and forfeitures in the county treasury.”

The Legislature having provided for a fine and forfeiture fund, these sections of the Code prescribe what witnesses, appearing on the part of the State in criminal cases, are entitled to have their compensation paid out of such fund, and the manner in which they shall be paid. This fund does notarise from taxation. It is a special fund, created for special purposes. The sources from which it is derived, and the claims to be paid out of it, are prescribed by special legislation. The claims are filed, registered and paid, without being previously audited and allowed by the Court of County Commissioners. — Palmer v. Fitts, 51 Ala. 489. The authentication of such claims, upon which the treasurer is authorized to pay them, is the certificate of the clerk of the court. The foreman of the grand jury is required to give each witness a certificate of his attendance, showing’ the case in which, and the number of days he attended, the number of miles travelled, and amount due such witness, and to enter the same in a book ; which book, certified by him to be correct, wfith a list of all such witnesses, he must return to the court, and which must be filed as a record by the clerk. Acts 1882-3, 158. This act does not authorize the foreman to certify the facts which make it a claim against the county. A certificate, issued to a wdtness by the foreman, is no authentication or verification to the county treasurer of the amount of compensation to which the witness is entitled, and of the facts which make it a good claim against the county, payable out of the fines and forfeitures in the county treasury. The treasurer is under no legal duty to pay such certificates, and a refusal to pay them is no breach of the condition of his bond.

Section 4460 is a remedial statute, and should be liberally and. beneficially construed. The language of the statute is : “ It is the duty of the clerk of the court, to issue a certificate to each witness appearing on the" part of the State, stating therein the amount of compensation to which he is entitled, and the facts which, under the provisions of the'preceding section, make it a good claim against the county.” A construction that makes it indispensable for the clerk to state in one certificate, and upon its face, both the amount of compensation, and the facts which make it a good claim against the county, is too strict and narrow. A certificate by the clerk, of the amount of compensation, and the indorsement thereon of a certificate stating the facts which make it a good claim against the county, is a substantial compliance with the statute, and comes within its reason and spirit. The two certificates, having been simultaneously made in respect to the same subject-matter, and connected by a reference 'of the one to the other, may be considered as constituting but a single certificate, in the same manner as if embodied in one.

The principal defense relied upon is, two special acts of the Legislature. The first is, “ An act to make the fees of the officers of court of Sumter county receivable in payment of debts due said county for fines and forfeitures.” This act was approved February 24, 1881, and provides : “ That in all criminal cases, in the Circuit and County .Courts of Sumter county, in which the fees of the officers of court are a proper charge upon the fine and forfeiture fund of said county, it shall be the duty of the Commissioners Court of said county, to issue certificates to said officers for the amounts due them, upon proof made before them ; which certificates shall be a charge upon the fine and forfeiture fund of said county, and shall be registered as presented to the county treasurer against said fund, and, after such registration, shall be receivable in payment of any debt due to said Sumter county, the same as State witnesses’ tickets are now received.” — Acts 1880-1, pp. 280.

The other is, “An act to further regulate the payment of the fine and forfeiture scrip of Sumter, Pickens and Randolph counties,” which was approved February 22, 1883. This act makes it the duty of the treasurer, when there is any money in his hands, with which he can pay the outstanding scrip of fines and forfeitures, to advertise the registered number of said fund to which he is able to pay, and persons who hold the scrip numbered for payment by such advertisement, are required to present it for payment within one month after such advertisement. If such claims are not presented within one month, the treasurer is to apply the money to the payment of succeeding claims due; and claims not presented within one month after such advertisement, are to be re-registered if presented within six months; 'and if not presented within that time, are forever barred.

This defense was set up by special pleas, to which a demurrer was sustained, and these acts were afterwards offered in evidence under the general issue. The bill of exceptions shows that there was not enough money in the treasury, belonging to the fine and forfeiture fund, to pay the witnesses’ certificates held by the plaintiff, and to pay the claims for the fees of the officers of the court, which had been registered prior to the certificates; but enough to pay the certificates, by postponing payment of the claims of the officers of court.

By the general law (Code 1876, § 4461), the fees of officers of court, arising from specified criminal cases, must be paid, “ whenever there shall be a surplus of the fund arising from fines and forfeitures, in the county treasury of any county, over and above the sum required to pay the registered claims of State witnesses.” This provision of the general statute requires the payment of all registered certificates of State witnesses, whether registered prior or subsequent to the registration of the claims of officers of court, before any money accruing from fines and forfeitures can be applied to the payment of the claims of officers of court, which are to be paid only wh'en a surplus remains. The purpose was to provide a mode and means for the payment of the compensation due to State witnesses, as speedily as practicable; and the effect of the statute is, to give all their registered certificates a priority of payment over the claims of officers of court.

It is insisted, however, that this provision of the general law is repealed, as to Sumter county, by the special acts referred to ; and that the effect of these acts is, to require the payment of registered claims against the fine and forfeiture fund of that county, in the order of their registration. There are no express words of repeal. “ The law does not favor the repeal of statutes by implication ; and only declares such repeal, when all efforts at reconciliation have failed. Only when there is a real repugnance in the provisions, does the earlier enactment yield to the later; and if part of the provisions of an older statute, can be given effect to, without violating any of the provisions of the newer one, the repeal by implication is only partial, and pro tanto. — Enloe v. Reike, 56 Ala. 500; Parker v. Hubbard, 64 Ala. 203. If there is not an irreconcilable conflict between the two statutes — if there can be found a reasonable field of operation for the later statute, without displacing the provisions of the previous law — the conclusion results, that the legislature intended both statutes should stand. If it can be reasonably done, a construction should be given that will prevent the provisions of a later from colliding with the provisions of an older statute.

The special act of February 24, 1881, makes the certificates, issued by the Court of County Commissioners to the officers of court, for the amounts of the fees due them, after having been registered, receivable in payment of any debt due to the county for fines and forfeitures, the same as State witnesses’ certificates are receivable by the general law. The intention was to place both classes of certificates upon an equality, so far as being receivable in payment of fines and forfeitures. 'This, as expressed in the title, is its scope, and is an ample, and the only field of operation. There is nothing in the act that refers to the order in which registered claims against the fine and forfeiture fund shall be paid by the treasurer, or that conflicts with the' provision of the general law, which makes registered witness certificates preferred claims upon the fine and forfeiture fund.

The purpose of the act of February 22, 1883, is to prevent the fund remaining unemployed in the county treasury, because of registered claims not being presented for payment. It requires the appropriation of the fund to the payment of “succeeding claims due,” notwithstanding there may be prior registered claims, whether witness certificates or others, unpaid, on account of the failure of the holders to present them, within one month after notice by advertisement; and to bar such claims, if not presented and re-registered within six months thereafter. To the extent that the statute provides for the payment of “ succeeding claims due ” in a specified contingency, although there may be registered witness certificates unpaid, it repeals the general law — a repeal pro tanto. The pleas do not aver, nor does the evidence show, the facts necessary to bring the claims of the officers of court within the provisions of this statute. To entitle them to payment in preference to registered witness certificates, there must be averment and proof of the facts, showing that the contingency provided for by the statute has happened.

Affirmed.