Board of Revenue and Road Com'rs of Mobile County v. State

• Citation: 172 Ala. 155,54 So. 995
• Court: Supreme Court of Alabama
• Decision Date: 21 April 1911
• Parties: BOARD OF REVENUE AND ROAD COM'RS OF MOBILE COUNTY v. STATE EX REL. DRAGO.

54 So. 995

172 Ala. 155

BOARD OF REVENUE AND ROAD COM'RS OF MOBILE COUNTY v. STATE EX REL. DRAGO.

Supreme Court of Alabama

April 21, 1911

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Mandamus by the State, on the relation of John S. Drago, against the Board of Revenue and Road Commissioners of Mobile County. From a judgment allowing the writ, respondents appeal. Reversed and rendered.

Sullivan & Stallworth, for appellants.

Pillans Hanaw & Pillans, for appellee.

MAYFIELD J.

Two questions are presented for decision on this appeal: First. Is a county liable to a sheriff for his fees for summoning witnesses to appear before the grand jury, in those cases in which no indictment is found? Second. If so liable, is mandamus against the county commissioner's court or county board of revenue the proper remedy to enforce payment by the county?

The law of this state (however it may be in other jurisdictions) is long and well settled that counties are governmental agencies of the state, and that they are therefore chargeable with and liable for those claims or demands--and those only--which the law imposes upon them, or empowers them to contract for. No officer can charge the county with the payment of any claim due him, however meritorious or whatever benefit the county may derive therefrom, unless expressly or by necessary implication authorized by law. Jack v. Moore, 66 Ala. 187; Posey v. Mobile, 50 Ala. 6; Barbour County v. Clark, 50 Ala. 418; Naftel v. Montgomery County, 127 Ala. 563, 567, 29 So. 29.

The law of fees and costs, in criminal cases, must be held to be a penal law, and to be strictly construed; and no officer is entitled to any fee, unless his right thereto is clearly fixed by law. Code 1907, § 6631.

The statute is clear in allowing sheriffs a fee of 50 cents for serving each subp na in criminal cases (Code, § 6638); and this applies as well to cases in which the subp na commands the witness to appear before the grand jury as to those in which he is cited to appear before a criminal court; but we are unable to find any provision which makes this fee a charge upon or claim against the county, when the grand jury fail to find an indictment in the case in which the witness is subp naed. In some instances the claim of the sheriff might become a claim against the fine and forfeiture fund of the county (but as to this we do not decide, the question not being before us); but we know of no provision making it a claim against the general funds of the county. Sections 6646, 7302, and 6636 of the Code provide, among other things, as follows:

"6646. * * * The fees specified in this article, 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, or may be taxed against the prosecutor, under the provisions of section 7302 (5041); 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."

"6636. * * * And in all trials in the circuit or city courts, or county courts, where the state fails to convict, or the indictment abates, or is nol. prossed or withdrawn, the fees of the sheriffs and clerks of the courts shall be paid out of the fine and forfeiture fund."

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