McFountain v. State Ex Rel. Russell

83 So. 53 | Ala. | 1919

Section 6638 of the Code of 1907 deals with sheriff's fees and allowances in criminal cases generally, while section 6655 deals specifically with officer's fees in transactions before the county court. These two sections, appearing in the Code as they do, should be so construed as to give each of them a field of operation, if it be practicable and reasonable to do so. Pritchard v. Fowler, 171 Ala. 662, 55 So. 147; City of Montgomery v. Wyche, 169 Ala. 181, 53 So. 786. There is a field of operation for both sections, and section 6638 must be construed as fixing the sheriff's fees for arrests generally, taking bonds, etc., except in cases specially provided for by section 6655. "Generalibus specialia derogant."

So the question is: Has section 6655 of the Code been so amended or repealed as to change the fees there provided as to arrests upon prosecutions in the county court? Acts 1911, p. 41, in no wise amends or repeals section 6655 of the Code. It is directed to section 6638, and does not specifically deal with county court fees as fixed by said section 6655.

Acts 1915, p. 603, amending sections 6655 and 6656 of the Code of 1907, does not attempt to change the amount of fees or charges, but merely requires the same to be paid into the county treasury, and for the payment to the judge of the county court a fixed compensation per year in lieu of fees. It is true that this act purports upon its face to make all fees collectable under sections 6655 and 6656 payable into the county treasury; but we think it was intended only to apply to all fees for services performed by "the county court or by the judge of said court," and not for the fees taxed for other services and which go to other officers. It is evident that it was the intent of the Legislature to merely change the method of compensating the judge of the county court by paying him a fixed salary, instead of fees out of the treasury, and to require the fees earned by him to go into the treasury, and just as they went under the last part of section 6655. It could not have been the legislative purpose to direct the sheriff's fees into the treasury without making some provision for the payment of same, or any sum, in lieu thereof. There is nothing in this act to change the amount of his fees provided by these sections, or dispensing with the taxation or collection of same, so as to authorize the application of other fee bill sections to county courts, and the Legislature could not have intended to make the sheriff's fees go into the treasury and in effect deprive him of same altogether.

The compensation as fixed by section 9 of Acts 1915, p. 862, subd. 3, confines said section in its operation only to counties falling within the class there defined and to which Monroe county does not belong. Thomas v. State, 77 So. 35;¹ State ex rel. Garrett v. Torbert, 77 So. 37.² See opinions on rehearing. Section 9 of this act, however, clearly indicates that the Legislature did not think that section 6638 covered fees in the county court, for if it entertained such an opinion there would have been no occasion for giving the sheriffs in the counties there dealt with the same fees fixed by law for similar services in the circuit court.

Local Acts 1907, p. 36, was repealed by section 6 of Acts 1915, p. 864. Moreover, if such were not the case, it would, in so far as the fees in question are concerned, be repugnant to section 96 of the Constitution of 1901.

The trial court erred in not sustaining respondent's demurrer to the petition for mandamus, and the judgment is reversed, and the cause remanded.

Reversed and remanded.

ANDERSON, C. J., and MAYFIELD, SOMERVILLE, and THOMAS, JJ., concur.

¹ 200 Ala. 661.

² 200 Ala. 663.