26 So. 2d 577 | Ala. | 1946
Lead Opinion
The appeal is by the state in equity for sustaining a demurrer to the amended bill.
It is established in this jurisdiction that the Division of Examiners of Public Accounts of the State Department of Finance is authorized to examine and audit the records and accounts of state and county offices as indicated and that a justice of the peace is a public officer. Code 1940, Tit. 55, § 156 et seq.; State v. Tuscaloosa County,
An important ground of demurrer is the insistence that a justice of the peace is entitled to deduct fees from the funds indicated for the sheriff as authorized for the constable of his court by the provisions of Code 1940, Tit. 13, § 418.
In a case like this a bill filed by authority of law may be maintained without alleging any special equitable grounds. Code 1940, Tit. 7, §§ 72, 73, 74 and 75.
In Bradford v. State,
In the case at bar the attorney general is proceeding upon the direction of the governor under Code 1940, Tit. 7, § 73. In Montgomery, Supt. of Banks, v. Sparks,
Ground of demurrer to the effect that it did not sufficiently appear that Norwood received the moneys or any part thereof in his official capacity is not well taken. It is averred that the money sought to be recovered from Norwood, the Justice of the Peace, was for funds collected by him as justice of the peace and paid to the sheriff of the county for fees for execution of process in criminal cases where the defendant was acquitted in that justice's court or was insolvent and unable to pay the same after conviction in such court. In Culver v. Sparkman,
Defendant's twelfth ground of demurrer will be set out in the statement of facts. That insistence is that the justice of the peace was entitled to deduct fees for the sheriff as he was for the constable under the authority of Title 13, § 418, Code 1940. The provision of statute urged by appellee to have application comes to us unchanged from the Act of February 26, 1875, Acts 1874-75, p. 181; Code 1876, § 731. Pertinent part of that statute is: "* * * To collect all fines imposed where the defendant is not sentenced to jail or hard labor to pay same; or an appeal is taken. He may deduct from fines and forfeitures collected by him, the amount due for his fees and those of theconstable in cases in which the defendant was acquitted, orinsolvent and unable to pay after conviction, a sum not to exceed fifty dollars for any calendar month; he shall pay the remainder of the fines and forfeitures collected by him to the treasurer or to the custodian of the county funds where there is no county treasurer, same to be paid semi-annually on the first Mondays in January and July of each year, and make his report at the next session of the grand jury; if he should fail to make such payments as herein provided, he shall forfeit all right to make any deduction from his collections for cost due him and the constable for fees as herein provided. * * *" [Italics supplied.]
Title 11, § 79, Code 1940, is to the effect that the law of costs must be deemed and held penal, and no fee must be taken except in cases expressly provided by the law. There are many decisions to such effect. Troup v. Morgan County,
The appellee insists that Title 54, Code 1940, § 18, must be read in connection with Tit. 13, Code 1940, § 418, for a reasonable construction of these two statutes. The object of the specific provisions of the statutes and that touching the question before *132 us is contained in Title 13, § 418, Code 1940, and is to compensate the justice of the peace and officer serving process in his court for matters in which the justice has final jurisdiction, whether that officer be the constable or the sheriff; that the law is not concerned with what official serves the process, and only that he receives the payment out of the available fund; and that the allowance of $50 per month is made, and so long as the service for which the allowance is made has been rendered, payment is required, and may be made by the justice out of the specific funds indicated and in his hands.
In Sanders v. Young,
The last headnote in the opinion of the attorney general of October 11, 1939 [Opinions, October, November and December, 1939, p. 78-84] is as follows: "Sheriffs — Constables — Word 'constable', as used in Section 3850, Subsection 2, Code of 1923 [Code 1940, Tit. 13, § 418] held not to include sheriff." The attorney general said: "In my opinion your seventh inquiry must be answered in the negative. It is true that Section 10199 of the Code [Code 1940, Tit. 54, § 18] authorizes sheriffs to execute all mesne and final process which is required to be served by constables. But this provision is not authority for the payment of the fees of the sheriff out of the Justice of the Peace Insolvent Cost Fund provided by Section 3850(2) of the Code of 1923. Said section specifically limits the payment of insolvent costs from said fund to the Justice of the Peace and to the Constable. There is no authority of law for the payment of the fees of the sheriff accruing on account of services in connection with Justice of the Peace Courts from said Justice of the Peace Insolvent Cost Fund."
The attorney general did not have before him the decision in Sanders v. Young,
It is noted in the opinion of the attorney general that Section 18, Tit. 54, Code 1940, was considered in connection with Code § 418, Tit. 13, Code 1940. The general law has long prevailed, coming to the last code unchanged. We do not entertain the view that the decision in Sanders v. Young,
The rule touching costs in cases of felony has been recently well stated in White v. Lyon,
Prior to the passage of the Act of Feb. 26, 1875, Acts 1874-75, p. 181, now embodied in Code 1940, Tit. 54, § 18, sheriffs *133 were without authority to serve anything but initial criminal process, issued by a justice of the peace, such as warrants of arrest. They were authorized to serve warrants of arrest by § 5209, Code 1896. The purpose of the Act of 1875 was to confer authority on sheriffs to serve process issued by justices of the peace, which they did not then have, and provided that for such services they should "receive the same fees and compensation therefor as constables except in cases of forcible entry and detainer and unlawful detainer"; and made the sheriff and the sureties on his official bond liable for any abuse of the process that he might execute under that act, now said § 18.
The legislative intent is clear that the statute was intended to confer authority for the services, to provide compensation in the form of fees such as constables were authorized to receive, and to be received from the same sources provided or set up for compensating constables for their services, when the constable served the process issued by a justice of the peace in any case civil or criminal in which the justice has final jurisdiction, including the execution of warrants of arrest, and service of subpoenas. That it was not intended for the sheriff to be compensated in the same case in his capacity as sheriff for some of the service and as constable for other features of it. In such a suit the sheriff in serving all process is acting as a constable under authority of § 18. We should not construe § 18 so as to cause the sheriff to act in a dual capacity in the suit and in the same court, and be paid in a different way for the services. The Trapp case was dealing with preliminary trials, essentially relating to the circuit court, and if it is so understood as to prevent this interpretation of § 18, to that extent it should not be followed, for it was not considering a situation such as is now in hand. Otherwise stated, the sheriff in performing the service is pro hac vice the constable.
Construing the averments of the bill most strongly against the pleader, the services satisfied by appellee Norwood, out of the fund set up by § 418, Title 13, Code 1940, were fees which the sheriff earned in the service of process as authorized by § 18, Title 54, Code 1940. The demurrer specifically takes the point and was, therefore, properly sustained.
Affirmed.
GARDNER, C. J., and BROWN, FOSTER and STAKELY, JJ., concur.
LIVINGSTON, LAWSON and SIMPSON, JJ., dissent.
The foregoing opinion was prepared by Mr. Justice Thomas, now deceased, and upon consideration of the cause is adopted as the opinion of the court. Accordingly the decree of the lower court is affirmed.
Dissenting Opinion
The writer is of the opinion that the demurrer of appellee should have been overruled in that the statutes concerned do not authorize a justice of the peace to deduct from fines and forfeitures collected by him and pay over to a sheriff the amount due the latter for fees in cases in which the defendant was acquitted or insolvent and unable to pay after conviction. § 418, Title 13, Code 1940, contains no such authorization nor does § 18, Title 54, Code 1940.
In my opinion, § 79, Title 11, Code 1940, and the construction placed thereon by this court in a long line of cases, is decisive of the question here presented. § 79, Title 11, supra, is as follows: "§ 79. No fee charged unlessexpressly authorized. — The law of costs must be deemed and held a penal law, and no fee must be taken but in cases expressly provided by law. The fees prescribed in this Code shall be the only fees that can be collected by any officer." It was interpreted in the early case of Lee, Sills et al. v. Smyley,
The opinion of the majority, although it takes cognizance of § 79, Title 11, Code 1940, proceeds to construe together § 18, Title 54, Code 1940, and § 418, Title 13, Code 1940, and concludes that in so doing the legislative intention was to allow a sheriff to receive his fees in certain cases from the fund which may be designated as the justice of the peace fine and forfeiture fund. Such is not a strict construction of the statutes involved but on the contrary extends their express terms and writes into them something that the legislature did not include. The word "sheriff" is not found in § 418, Title 13, nor does § 18, Title 54, expressly authorize the sheriff to go against the justice of the peace fine and forfeiture fund. The effect of the opinion of the majority is to determine that the legislature intended to include such provisions and proceeds to remedy this legislative omission, notwithstanding the long established rule that statutes relating to costs and fees must be strictly construed.
The fact that the sheriff in performing duties as authorized by § 18, Title 54, supra, may not receive any compensation for services rendered by him in justice of the peace courts where the defendants are acquitted or if convicted, executions are returned "no property found," does not affect the case. The fact that the sheriff may never receive compensation for such services is of no significance, since he accepted the office cum onere and must perform its duties whether there is compensation attached to their discharge or not. Hawkins v. State ex rel. O'Brien, supra.
This court has heretofore been very careful not to extend by construction the payments out of the county fine and forfeiture fund. § 393, Title 15, Code 1940. In the case of McPherson v. Boykin,
In writing to the question, this court applied the rule of strict construction and held that McPherson, a justice of the peace, was not entitled to be paid from the county fine and forfeiture fund in cases which had been appealed from his court to the circuit *135
court, even though the above-quoted section specifically provided that in such cases the cost must be certified by the justice of the peace to the court to which the proceedings are removed or to which the process was returnable and there taxedand collected like other costs, for the reason that Section 4461, Code 1876, makes the fees only of officers of court payable, in certain cases, out of the fund arising from fines and forfeitures and that a justice of the peace was not an officer of the circuit court within the meaning of the statute, notwithstanding a prosecution originally instituted before him may be removed to the circuit court. It was held that the provisions of Section 5038, Code 1876, "must be there taxed and collected like other costs," referred to the general statutory mode of taxing and collecting costs in criminal cases in the circuit court or city court; that is, to be taxed as costs against the defendant on conviction (or against the prosecutor, or the foreman of the grand jury, as provided by the statute), and collected by execution. The court in that case preferred to follow the rule of strict construction rather than to construe together the two sections involved, and by so doing conclude that the justice of the peace was pro hac vice an officer of the circuit court. McPherson was denied the right to receive payments from the county fine and forfeiture fund, from which fund costs are payable in certain cases, even though the statute provided that where cases were appealed from the justice court he should certify the costs incurred in his court to the court to which the proceedings were removed to be theretaxed and collected like other costs. In the instant case, § 18, Title 54, supra, merely provides the schedule of fees to which a sheriff is entitled for the performance of the new duties imposed upon him by the section, by making them the same as those provided for constables (Trapp v. State ex rel. Burgin,
Mr. Chief Justice Brickell, in the case of Mickle et al. v. Montgomery,
It appears from the above quotation that the legislature at the time it enacted what is now § 18, Title 54, supra, was giving to the sheriff power and authority in connection with civil process issued by a justice of the peace, which he theretofore did not possess, and provided for compensating him for his services in connection therewith. Justices of the peace and constables can deduct from the justice of the peace fund only in certain instances for their services in connection with criminal cases. It appears strained, therefore, to say that § 18, Title 54, supra, when read in connection with § 418, Title 13, supra, clearly shows that the legislature by the passage of the former section intended for the sheriff to receive payment from the so-called justice of the peace fine and forfeiture fund.
That § 18, Title 54, does not control in all instances the amount of the fee to which a sheriff is entitled for services performed in a justice of the peace court has been decided twice by this court. In the recent case of White v. Lyon,
The decision in White v. Lyon, supra, was no doubt predicated on the opinion in the case of Trapp v. State ex rel. Burgin,
If warrants of arrest are excluded from the provisions of § 18, Title 54, supra, there is no provision of law to which a sheriff may look for authority to go against the justice of the peace fine and forfeiture fund in cases where he has made arrests on warrants issued by a justice of the peace.
However, as I understand the majority opinion, it limits the decisions in the cases of White v. Lyon, supra, and Trapp v. State ex rel. Burgin, supra, to felony cases. I can find no justification for such a limitation. It is true that both of those cases dealt with instances where the justice of the peace acted as a committing magistrate, the accused having been arrested on a felony charge. But the reasoning which this court applied in those cases likewise applies to all services performed by a sheriff in the justice of the peace court which he was authorized to perform prior to the enactment of § 18, Title 54, supra. In the Trapp case, supra, the opinion discloses that Section 5209 of the Code of 1896 had been a part of our statutory law long before the enactment of what is now § 18, Title 54, Code 1940. Section 5209 of the Code of 1896 (now § 152, Title 15, Code 1940) is in the exact language as when it first appeared as Section 434 of the Penal Code of 1866. It is as follows: "An arrest may be made, under a warrant, or without a warrant, by any sheriff, or other officer acting as sheriff, or his deputy, or by any constable, acting *137 within their respective counties, or by any marshal, deputy marshal, or policeman of any incorporated city or town, within the limits of the county."
In my opinion, the sheriff had the same authority to execute a warrant out of the justice of the peace court prior to the enactment of what is now § 18, Title 54, Code 1940, in cases in which the justice of the peace had final jurisdiction, as he had in cases where the justice of the peace acted only as a committing magistrate. There is nothing in its language which would justify the conclusion that it only authorized the sheriff to make arrests on warrants executed by a justice of the peace in felony cases.
Certain it is that the opinions in the cases of White v. Lyon, supra, and Trapp v. State ex rel. Burgin, supra, do not contain any such express limitation; on the contrary, what is there written is general in its nature and relates to the general subject of the authority which sheriffs possessed prior to the enactment of § 18, Title 54.
If the rule of statutory construction is followed in this case, it is not necessary to go into the historical background of the statutes involved, but even if the rule of strict construction is not followed I am of the opinion that the historical background of the statutes involved discloses that the legislature never intended for § 18, Title 54, to authorize sheriffs to collect fees from the so-called justice of the peace fine and forfeiture fund. Mickle v. Montgomery, supra.
It is my opinion that for their services performed in connection with their duties in criminal matters in the justice of the peace courts sheriffs are entitled to the fees set out in the schedule for sheriffs and are not limited to the fees prescribed for constables. White v. Lyon, supra. I am also of the opinion that sheriffs cannot look to the justice of the peace fine and forfeiture fund for the payment of any such fees.
In view of the foregoing, I am compelled to dissent from the majority opinion.
LIVINGSTON and SIMPSON, JJ., concur.