Foley v. State ex rel. Gordon

• Decision Date: 23 January 1951
• Citation: 50 So.2d 179
• Parties: FOLEY et al. v. STATE ex rel. GORDON, Constable Fifth Justice District, Polk County.
• Court: Florida Supreme Court

Page 179

50 So.2d 179

FOLEY et al. v. STATE ex rel. GORDON, Constable Fifth Justice District, Polk County.

Supreme Court of Florida, en Banc.

Jan. 23, 1951.

Milton D. Wilson, Bartow, and J. Lewis Hall, Tallahassee, for appellants.

H. E. Oxford and J. C. Rogers, Lakeland, for appellees.

HOBSON, Justice.

This is an appeal by the Board of County Commissioners of Polk County, Florida, from an order for issuance of peremptory writ of mandamus directed to said Commissioners on the relation of Pat Gordon as Constable of the Fifth Justice District of said County, commanding said Commission to pay the relator the sum of $247.82 fees for services in bringing back a prisoner from Norfolk, Virginia.

The petition for alternative writ of mandamus alleges that the relator was the constalbe of the said Fifth Justice District of said County; that a warrant for the arrest of Frank E. Fales upon the charge of embezzlement was issued by the Justice of the Peace of the district wherein the relator was acting as constable and was delivered to relator for execution; that said relator made exhaustive investigation and search to apprehend and arrest the said Frank E. Fales and that through relator's efforts said Fales was apprehended in Norfolk, Virginia; that the alleged felon waived extradition, whereupon in the month of July, 1947, the relator, as constable aforesaid, drove his automobile from Lakeland, Florida to Norfolk, Virginia, where he took the said Frank E. Fales into custody and returned him to Florida, and that the said Frank E. Fales thereafter entered a plea of guilty to said charge in the Criminal Court of Record of Polk County and was sentenced to serve a term of imprisonment in the State Penitentiary; that subsequently the relator prepared statement in the amount of $247.82 and presented the same for payment to the Board of County Commissioners of Polk County, Florida, but that said Board failed and refused to pay the same, although it was their legal duty so to do.

The Board of County Commissioners of Polk County, by and through its attorney, filed motion to quash the alternative writ on the grounds, among others, that said alternative writ showed no right in relator to the relief prayed for, that the laws of the State of Florida did not require respondents to do or perform the acts sought to be compelled, that the alternative writ did not show authority of relator to leave the State of Florida for the purpose therein alleged, and that said alternative writ did not allege that the Governor of the State of Florida had appointed relator to go out of the State of Florida and return the prisoner aforesaid.

Thereafter, the Honorable D. O. Rogers, Judge of the Circuit Court in and for Polk County, Florida, entered order that peremptory writ of mandamus issue to the County Commissioners commanding them to pay to the relator the sum of $247.82, from which order appeal has been perefected to this Court.

It is not contended that the constable, appellee herein, did not perform the services which he claims to have performed; nor is his good faith questioned.

In our consideration of this cause there is at the threshold the question of the constable's authority to go, as he did, into another state and return an alleged felon. The determination of this question was necessarily involved in the proceedings below and it must be presumed that the lower court, in issuing its peremptory writ, decided this question favorable to the constable. The appellant has not expressly raised or argued this question; hence, we do not pass upon it under the well recognized theory of appellate procedure that an appellate court will review only those alleged errors properly presented to it.

The real question presented for our determination is whether the Board of County Commissioners is authorized by law to pay appellee, Pat Gordon, as Constable of the Fifth Justice District of Polk County, Florida, the fees or mileage allowance demanded by him. Determination of this question requires careful consideration of several acts of the legislature. The services of the appellee were rendered in July, 1947. The 1947 Session of the Florida Legislature enacted Chapter 24337 which Act went into effect on the 16th day of June, 1947. Section 1 of said Act amended Section 16.19 Florida Statutes 1941, F.S.A., and reads as follows:

'16.19. Revision Adopted. The revision, consolidation and compilation of the public statutes of this state of a general and permanent nature, prepared by the attorney general under the provisions of chapter 19140, Laws of Florida, Acts of 1939, and adopted and enacted as the statute law of this state, by chapter 20719, Laws of Florida, Acts of 1941, under the title of 'Florida Statutes, 1941,' together with the general laws of the 1941 session of the legislature embraced in the bound volume of said Florida Statutes, 1941, and the repeals, amendments, corrections and additions to said statute, made by the general laws of the 1943 and 1945 sessions of the legislature, as the same now appear in the 1945 Cumulative Supplement to Volume 1, Florida Statutes, 1941, including the readoptions made by chapters 22000 and 22858, Laws of Florida, Acts of 1943 and 1945, and the corrections made by Sects. 7 of said chapters, and by the 1947 session of the legislature, and except as otherwise provided by Sects. 16.20 to 16.23, Florida Statutes, 1941, as hereby amended, be and the same are hereby adopted and enacted as statute law of this state under the title of 'Florida Statutes, 1941,' which may be cited as 'Florida Statutes, 1941,' or as 'F.S. '41." (Italics supplied.)

It is necessary for us to construe the foregoing section of Chapter 24337, Laws of Florida 1947, because it is contended by the appellants that Section 1 of said law had the effect of enacting Section 37.20 as it was amended apparently by the revisor (Attorney General) when he prepared the 1945 Cumulative Supplement to Volume 1, Florida Statutes, 1941. Unless Section 1, supra, was an effectual legislative enactment of Section 37.20, F.S. '41, F.S.A., as it was changed or amended by the revisor, Section 37.20 as it read prior to such attempted amendment is the existing law and applies in the instant suit because the legislature did not in any of the subsequent sections of Chapter 24337, supra, expressly amend Section 37.20, F.S. '41, F.S.A. Section 37.20, Florida Statutes, 1941, F.S.A., read as follows: 'The fees of constables shall be the same as are at this time allowed sheriffs for like service.'

This section in the revisor's compilation which he denominated the 'Cumulative Supplement of 1945' reads as follows: 'The fees of constables shall be as provided in § 30.23.'

Section 30.23, F.S. '41, as amended, F.S.A., does not expressly provide mileage or other fees for a sheriff or constable who might go out of the State of Florida to return a fugitive from justice. Section 30.24, F.S. '41, F.S.A., has not been amended since the legislative session of 1941 and it provides that a sheriff who is required to go beyond the limits of this state to bring back a prisoner charged with any crime should be allowed the sum of 7 cents per mile for the actual distance traveled by him beyond the limits of this state and 7 cents per mile for his prisoner.

Section 30.24, F.S. '41, F.S.A., does not apply to constables unless Section 37.20, F.S. '41, F.S.A. as attempted to be amended is an invalid law. Its validity depends upon a determination as to whether Section 37.20, F.S. '41, F.S.A., as it now appears in the so-called 1945 Cumulative Supplement was ever duly enacted by the legislature. Counsel for appellants admit that after the enactment of Chapter 22587, Laws of Florida, Acts of 1945, revising fees of sheriffs and constables, there might have been a question as to whether or not said Chapter amended Section 37.20, F.S. '41, F.S.A., but they vigorously insist that when the Attorney General, acting pursuant to the authority vested in him by virtue of Section 2(12)(g) of Chapter 22012, Laws of Florida, Acts of 1943, construed said Chapter 22587 to be amendatory of Section 37.20, F.S. '41, F.S.A., and changed said section in accordance with his interpretation and understanding and submitted the same to the legislature in the 1945 Supplement and the legislature enacted and adopted the said Supplement and the changes, repeals, etc. as set forth in the 1945 Supplement, that the original volume of Statutes of 1941 and the changes, amendments and corrections contained in the 1945 Supplement became and were thenceforth statute law of the State of Florida. We would agree with this contention if we could give to that portion of Section 1 of Chapter 24337, Laws of Florida, 1947, which refers to repeals, amendments, corrections and additions, the construction which is given thereto by counsel for appellants. We cannot agree, however, that said Chapter 24337, Laws of Florida, 1947, had the effect of enacting the revisor's concept of the 1945 Cumulative Supplement in its entirety or the repeals, amendments, corrections and additions to the 1945 compilation which might have been incorporated in the revisor's--as distinguished from the legislature's--1945 Cumulative Supplement to Volume 1, Florida Statutes, 1941, by the sole act of the Attorney General or someone or more of his assistants.

In order for the statutory law to be amended it is necessary that the law as amended be enacted by the legislature, either by expressly enacting the Cumulative Supplement in which it is contained in toto or by a separate specific enactment of the amendment itself. We have previously set forth Section 1 of Chapter 24337, Laws of 1947, and have emphasized the following language: 'made by the general laws of the 1943 and 1945 sessions of the legislature'. Counsel for appellants emphasize the language which immediately follows the foregoing quotation, to-wit: 'as the same now appear in the 1945 Cumulative...