Blake v. State

• Decision Date: 30 May 1912
• Citation: 178 Ala. 407,59 So. 623
• Parties: BLAKE v. STATE EX REL. GOING ET AL.
• Court: Alabama Supreme Court

59 So. 623

178 Ala. 407

BLAKE v. STATE EX REL. GOING ET AL.

Supreme Court of Alabama

May 30, 1912

Rehearing Denied June 29, 1912.

Appeal from City Court of Birmingham; H. A. Sharpe, Judge.

Action by the state of Alabama, on the relation of Job Going and others, against Sam M. Blake. From a judgment for relators defendant appeals. Affirmed.

McClellan J., dissenting.

Nathan L. Miller, of Birmingham, and R. C. Brickell, Atty. Gen amicus curiæ, for appellant.

W. K. Terry, of Birmingham, for appellees.

SOMERVILLE J.

Section 1 of the act of August 26, 1909, "to regulate the disposition and disbursement of witness fees collected by clerks of courts of record and which fees have not been paid out to the parties entitled thereto within two years after collected by the clerk," is as follows: "1. That on the first day of January, in each year, all clerks of courts of record within this state shall file with the state treasurer a full and complete report of all witness fees collected by them or received by them from their predecessors in office which have not been disbursed to the persons legally entitled thereto, and shall pay into the state treasury all such witness fees which have been collected by them or their predecessors more than two years preceding the making of said report. Said report shall show the amount and date of the collection, the name of the witness for whom collected, and the court, style of cause, and date of its final termination, in which said fee was collected." Section 2 provides that the persons entitled to these fees are barred from claiming them after six years from the date of their collection, and that thereafter, on January 1st of each year, the treasurer shall transfer such fees as are thus barred of claim to the general fund of the state. Section 3 provides that retiring clerks shall pay over to their successors in office such fees as they have collected and not paid into the state treasury, together with an itemized statement thereof. See Special Session Acts 1909, p. 213.

On April 5, 1911, an act of the Legislature was approved identical in language with the act above referred to, except that "county" was substituted throughout for "state," thus making the county treasurer the custodian of the unclaimed fees, and the general county fund the ultimate beneficiary of such as were finally barred of claim. Section 4 of this act declares that "all laws or parts of laws in conflict with this act be and the same are hereby repealed." See Session Acts 1911, p. 200.

The petitioners, constituting the board of revenue of Jefferson county, seek by mandamus to compel the respondent, who is clerk of the city court of Birmingham, to file with the county treasurer his report of the witness fees collected by his predecessor in office more than two years prior to January 1, 1911, and to pay over these fees, amounting to $4,788.83, and still retained by respondent, to the county treasurer.

Upon the overruling of his demurrer to the petition, respondent filed his answer, which, on demurrer, was held insufficient; and, respondent declining to answer further, judgment was entered for petitioners in accordance with their prayer.

The single question presented by the appeal, as argued by counsel, is whether the act of 1911 operates upon and controls the disposition of such witness fees...