State ex rel. Tompkins v. Stone

72 Ala. 185 | Ala. | 1882

BRICKELL, C. J.

The claim of the relator is founded on the second section of an act approved February 11th, 1813, entitled “An act to regulate the expenditures of Mobile county, and for other purposes” (Pamph. Acts 1842-3, p. 77), which reads as follows: “ That the moneys arising from fines and forfeitures shall be subject to a charge of five per cent., on the amount that shall be collected, in favor of the solicitor of the circuit to which the county of Mobile may be attached, in consideration of the number of cases in which the costs remain uncollected, and in consideration of his services in collecting and paying the same to the county treasurer.” The collection of fines and forfeitures was not an official duty of the solicitor, and authority to collect them was given only to the officers of court in which judgment for them was rendered, whose duty it was to pay them to the county treasurer. — Olay’s Dig. 249, § 10. The act under consideration confers on the solicitor authority to collect fines and forfeitures, — -an authority not exclusive, but cumulative to that of the sheriff or clerk, — and compensates him for the services rendered in collecting and paying to the county treasurer. The reason assigned in the act, for conferring the authority and allowing the compensation to the solicitor of the circuit to which the county of Mobile is attached (a special authority, and special compensation, confined to that county), is, “ the number of cases in which costs remain uncollected.” But the statute limits the compensation, nevertheless, to services rendered in collecting and paying over the fines and forfeitures to the county treasurer. If the service is not rendered, the compensation is not allowed, though fines and forfeitures arise from services rendered by the solicitor in his representation of the State in the courts. For such representation, the statutes provide other compensation, and the mode of its payment.

“ The invariable test, by which the right of a party applying for a mcmdamus is determined, is to inquire, first, whether he has a clear, legal right; and if he has, then, secondly, whether there is any other adequate remedy to which he can resort.” Withers v. State, 36 Ala. 252. The relator does not aver that he collected and paid to the county treasurer any of the fines upon the amount of which he claims the compensation of five per-centum. It is not shown that he has rendered the services the statute compensates. Not showing that he has a legal claim upon the Fine and Forfeiture Fund, the county treasurer properly refused to register the claim presented.

As this conclusion is decisive of the case, we do not deem it necessary to enter on a consideration of the other questions which have been argued by counsel. Let the judgment be affirmed.