72 So. 536 | Ala. | 1916
Appellee’s brief in its first paragraph, which the reporter will reproduce, correctly states the nature of this case.
By the act of February 21, 1907 (Local Acts, p. 86), amending the act which established the inferior criminal court of Mobile, it was provided as follows: “That the same costs shall be taxed and collected in the said inferior criminal court, and in the same manner as is provided by sections 4574, 4576 and 4577 of the Code.
The reference was to sections of the Code of 1896. Section 4574 dealt with the fees of justices of the peace; section 4576, which has been brought forward in the Code of 1907 as section 6653, provided for the fees of constables in criminal cases; while section 4577 provided that the fees specified in section 4576 should be taxed and collected as other costs. The act referred to above
The two provisions of the act of February 21, 1907, quoted above, were reproduced from the act of February 23, 1899, establishing the inferior criminal court (Local Acts 1898, 1899, p. 1164), the only difference being that in the act quoted from the clerk was authorized to issue process and tax and collect costs, services which the original required the judge to perform.
Section 6638 of the Code of 1907 provided for “fees and allowances” to sheriffs in criminal cases. By the act of February 28, 1911 (Gen. Acts 1911, p. 41) § 6638 was amended, inter alia, by the incorporation of-a new item as follows: “For guarding each prisoner lawfully committed to jail in the following cases: (1) In all felony cases whether convicted or not $2.00. (2) In all arrests under indictment whether convicted or not $2.00. In all other cases where convictions follow arrests $2.00.”
Appellant insists that no authority is to be found in these statutes for taxing the item of $2 for guarding prisoners as costs in the inferior criminal, court, and that, however that may be, the sheriff receives the sum of $1,800 per annum in lieu of all compensation for services required of him in or for the inferior criminal court, including the item of costs in question.
Roughly speaking, the inferior criminal court exercises jurisdiction and authority in cases cognizable by justices of the peace in Mobile county and some other misdemeanors, and has the same power to imprison and sentence to hard labor that is possessed by criminal courts of general jurisdiction. Most of the items of compensation claimed by the sheriff in this proceeding are claimed in cases in which there have been convictions for misdemeanors and executions have been returned “No property.” In three cases the fees are claimed on account of prisoners committed on charges of felony. No question is made about the sheriff’s right to the fees claimed in these three last cases.
Our judgment is that appellee was entitled to have his claim registered for its full amount as the trial court commanded. We
But in this case there is no question about there being a statute allowing to sheriffs in general the compensation in controversy ; the only question is whether in the statute governing the inferior criminal court sufficient reason is found for making an exception against the sheriff in respect of cases originating in that court, and this is to be determined at the end of a fair and reasonable effort to ascertain the legislative intent. Section 6638, as lately amended, is general in terms, it makes no exceptions, and its general provisions is to be made effective unless the prior local statute contains a provision to the contrary. To quote again the local act: “The sheriff shall receive no fees, but as compensation for the services required of him, and for furnishing the bailiff, he shall receive eighteen hundred dollars,” etc.
The “costs” of the local act are clearly the “fees” of section 4576 of the Code of 1896 (section 6653, Code 1907), and the court is of the opinion that the services required of the sheriff (in addition to furnishing a bailiff), within the meaning of the act, and the services for which he is allowed a fixed compensation, are the services for which fees are allowed by the section and services of like kind, that is, services performed in executing process issued from the court, within which category may fairly be included the taking of bail in misdemeanor cases. — State, ex rel. Drago v. Smith, Auditor, 185 Ala. 384, 64 South. 364. The additional compensation for guarding prisoners allowed by amended section 6638 is not a fee within the prohibition of the local act; it is rather an allowance. That our statutory system in respect of the compensation of public officers intends and must observe a distinction between fees and allowances, and that compensation for guarding prisoners falls within the latter class, is convincingly shown by section 68 of the Constitution which provides that the inhibition against increasing or decreasing the fees and compensation of public officers during their terms of office shall not “prevent the Legislature from increasing or diminishing at any time the allowance to sheriffs or other public officers for feeding, transferring or guarding prisoners.”
It will be observed that under the Constitution and the statutes to which we have referred services rendered in feeding and
We have quoted amended section 6638 so far as pertinent to this inquiry. The amendment does not designate the source from which the sheriff is to receive the compensation claimed in the event it is not collected from the defendant. Section 6646 provides that: “The fees specified in this article (which includes section 6638) except where some other provision is made by law, are to be collected and paid in the following manner: * * * The fees for services rendered in each criminal case must be taxed against the defendant on conviction. * * * And if an execution is returned ‘No property found/ or if the costs are not otherwise taxed, such costs must be paid by the state, except when they are payable by the county.”
Hence our conclusion that the judgment of the law and equity court of Mobile should be affirmed.
Affirmed.