Amiss v. O'Rear

• Decision Date: 30 June 1925
• Docket Number: 6 Div. 642
• Citation: 104 So. 885,21 Ala.App. 37
• Parties: AMISS v. O'REAR, Sheriff.
• Court: Alabama Court of Appeals

104 So. 885

21 Ala.App. 37

AMISS v. O'REAR, Sheriff.

6 Div. 642

Court of Appeals of Alabama

June 30, 1925

Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.

Petition of Guy V. O'Rear, as Sheriff, for mandamus, to Mae Amiss as Clerk of the Circuit Court of Walker County. From a judgment awarding the writ, respondent appeals. Affirmed.

Sowell & Gunn, of Jasper, for appellant.

C.R Wiggins, of Jasper, for appellee.

RICE J.

Appellee seeks by his petition to require the appellant to pay over to him three items of costs or fees claimed to have been earned by him in a case growing out of a violation of the prohibition laws, and taxed and collected by appellant. These items are (1) $3, in virtue of subdivision 16, section 22, of the act approved January 23, 1915 (Gen.Acts 1915, pp. 8, 24) for executing search warrant; (2) $5, in virtue of the same statute, and also the act approved September 16, 1915 (Gen.Acts 1915, p. 589), expenses in going to the place where the defendant was arrested and transporting him to the county seat, a distance of 50 miles; and (3) $10, in virtue of section 14 of the act approved September 25, 1915 (Gen.Acts 1915, pp. 553, 557), for making seizure of prohibited liquors in excess of 20 gallons, in the possession of the defendant.

Appellant demurred to the petition, assailing the constitutionality of each of the acts above mentioned, and also raising the point that the provision of subdivision 16, section 22, of the Act approved January 23, 1915, was superseded by section 14 of the act approved September 25, 1915. The trial court sustained this latter ground of demurrer, overruling all others. Respondent declining to plead further, judgment was rendered for the plaintiff for the two items claimed of $5 and $10, respectively. The respondent appeals, and assigns as error the overruling of those grounds of demurrer, asserting the unconstitutionality of the three mentioned acts.

Since the trial court by its judgment held the plaintiff not to be entitled to collect the item of $3 by virtue of the Act of January 23, 1915, consideration of that statute is not necessary to a determination of this appeal--no cross-appeal having been taken by plaintiff--and we pretermit all consideration thereof.

Appellant insists that section 14 of the act approved September 25 1915, is void, for the reason that its substance is not foreshadowed by the title of the act, and that the act approved September 15, 1915, likewise offends section 45 of the Constitution of 1901. In these contentions we think there is no merit; nor do we think any very useful purpose would be served by an elaborate treatment of the subject.

The object and purpose of the mandate of section 45, ...