Henry v. State

• Decision Date: 02 July 1917
• Docket Number: 6 Div. 620
• Citation: 200 Ala. 475,76 So. 417
• Parties: HENRY v. STATE ex rel. WELCH.
• Court: Alabama Supreme Court

76 So. 417

200 Ala. 475

HENRY v. STATE ex rel. WELCH.

6 Div. 620

Supreme Court of Alabama

July 2, 1917

Appeal from Circuit Court, Jefferson County; H.A. Sharpe, Judge.

Mandamus by the State, on the relation of W.S. Welch, against M.V Henry, Treasurer of Jefferson County, to compel the payment of warrant. From a decree granting the writ, the Treasurer appeals. Affirmed.

Sayre and Somerville, JJ., dissenting in part.

Hugo L Black, of Birmingham, for appellant.

Forney Johnston, of Birmingham, for appellee.

PER CURIAM.

The majority, composed of ANDERSON, C.J., McCLELLAN, GARDNER, and THOMAS, JJ., concur in the conclusion of Justice SOMERVILLE as to what constitutes the "solicitor's fund" of Jefferson county, but do not agree that section 11 of the act of 1900, or the amendment thereof by the act of 1915 (Local Acts, 1915, p. 23), is violative of section 45 of the Constitution. We think that said section before and after amendment was germane and cognate to the general subject title of the act of 1887 (Acts 1886-87, p. 835) establishing the criminal court for Jefferson county. Nor do we think that the same is repugnant to so much of said section 45 of the Constitution as forbids the extension, amendment, or revision of a law by reference to the title only as the acts are complete in themselves. State ex rel. Terry v Lanier, 72 So. 320; State v. Rogers, 107 Ala. 444, 19 So. 909, 32 L.R.A. 520. The case of Ferguson v. Court of County Commissioners, 187 Ala. 645, 65 So. 1028, was rested upon Tuskaloosa Bridge Co. v. Olmstead, 41 Ala. 9, wherein it was held that under what is now section 45 of our Constitution a law could not be amended or revised by reference only to its title, and wherein it was pointed out that the purpose of said constitutional provision was that the Legislature may not be misled or mistaken as to the enactment, and also that the Governor may be better informed as to what he is called upon to approve or to veto, and that others may also be assisted as against any misapprehension. The acts under review in the above authorities attempted amendment of a law by reference to title only and by addition of other sections thereto, nothing appearing in the amendment to indicate the law sought to be amended, and hence these cases came directly within the prohibitory clause of said section 45 of the Constitution. Such is not the situation here presented, as much of the act sought to be amended is set out, and indeed the substance thereof appears in the amendatory act, and the Tuskaloosa Bridge Co. and Ferguson Cases, supra, cannot be extended so as to embrace the act under review.

While we hold that the act of 1915 (page 23) is still in force, and that the county solicitor is clothed with certain authority there given and as to which he has a discretion, and that this power was preserved until 1919 by the general solicitors' act subsequently enacted, we must not be understood as holding that other parts of the general solicitors' law may be ignored by the county solicitor in the exercise of the powers given him under said general law, or the local act of 1915, so as to clothe him with the authority to disregard the prosecuting officers expressly provided for the administration of the criminal laws of the Tenth circuit, which is composed entirely of Jefferson county. In other words, the Legislature has expressly furnished a circuit solicitor to be paid by the state, and expressly authorized him to appoint three assistants to be paid in the greater part by the state, and it was contemplated that these officials should be utilized to the fullest extent before the temporary chief prosecuting officer of the county would deem it necessary to resort to assistance at the expense of the solicitor's fund. The Legislature evidently did not intend to furnish these expressly designated and well-paid officials to remain idle or become pensioners upon the state upon a capricious abuse of the authority and discretion of the county solicitor, who was made the chief prosecuting officer of the circuit until 1919. It is manifest that he was expected to see that they did work and not prevent them from doing so, and until the force expressly provided is proven inadequate to properly administer the criminal laws of the circuit no occasion should arise for the employment of assistants by the "chief prosecuting officer." Why the Legislature should have made the county solicitor, and not the circuit solicitor, the chief prosecuting officer of the circuit, or why the circuit solicitor, and not the county solicitor, was given the authority to name the assistants, we are not concerned; but this court is concerned with a reasonable and common sense interpretation and enforcement of the law.

It is well-settled law that when the duty to be performed is judicial or involves the exercise of discretion on the part of a tribunal or officer, mandamus will lie to set judgment or discretion in motion, but will not direct the manner of its exercise.

"The writ cannot be used for the correction of errors. If, however, judgment or discretion is abused and exercised in an arbitrary and capricious manner, mandamus will lie to compel a proper exercise thereof." 19 Amer. & Eng.Ency., pp. 737-739; State ex rel. Mobile v. Board of Revenue, 180 Ala. 494, 61 So. 368; White v. Decatur, 119 Ala. 476, 23 So. 999.

Whether or not these observations are essential to a decision of the present controversy matters not, as they are at least appropriate to prevent a misconception of the scope and extent of what we have decided in holding that the mandamus should have been awarded under the facts and issues here involved.

In granting the petitioner's relief we assume that the discretion given the county solicitor to employ "assistance" has not been capriciously abused, nothing to the contrary appearing from the record. We therefore hold that the trial court correctly awarded the writ of mandamus in the Welch Case and erroneously refused the same in the Ray Case.

ANDERSON, C.J., and McCLELLAN, GARDNER, and THOMAS, JJ., concur. SAYRE and SOMERVILLE, JJ., dissenting in part. MAYFIELD, J., not sitting.

SOMERVILLE J. (dissenting in part).

The refusal by the county treasurer of Jefferson county to pay the salary warrant here exhibited challenges the constitutional validity of section 11 of the act approved December 7, 1900 (Acts 1900-01, p. 217), and also of the act approved July 9, 1915 (Local Acts 1915, p. 23); and this appeal requires us to consider and determine that question. It is to be noted, by way of preface, that the criminal court of Jefferson county was established by an act approved February 18, 1887, entitled "An act to establish the criminal court of Jefferson county" (Acts 1886-87, p. 835), and which did not in any way deal with or relate to the office of county solicitor of Jefferson county, or the disposition of fees collected upon convictions in said criminal court. The office of county solicitor of Jefferson county was created by an earlier act approved November 27, 1886 (Acts 1886-87, p. 709), and his compensation was made the same as that of circuit solicitors, viz. the solicitor's fees taxed by law in convictions secured in the courts wherein he served. By an act approved February 28, 1887 (Acts 1886-87 p. 996), said county solicitor was placed on a salary, and the solicitor's fees theretofore paid him on convictions in the county, city or criminal court were turned into the general fund of the county.

It is to be noted also that by the act approved February 18, 1891 (Acts 1890-91, p. 1148), there was provided a fund of $3,000, to be appropriated by the commissioners' court out of moneys paid into the county treasury as solicitor's fees, "to assist the solicitor of Jefferson county in suppressing crime as hereinafter provided." The purposes thereinafter specified for the use of this fund were: (1) The employment by the solicitor of a competent assistant prosecutor and a clerk or stenographer for his own office; and (2) the payment of $500 per annum to the solicitor of the Tenth judicial circuit. In addition, it was also provided that, in the discretion of the commissioners' court, with the approval of the judge of the criminal court, they might pay claims for expenses in transporting criminals or state's witnesses from beyond the state out of county funds paid in as solicitor's fees.

By the act approved February 18, 1897 (Acts 1896-97, p. 1121), it was provided:

"That the moneys in the county treasury of said [Jefferson] county paid into said treasury as solicitor's fees, after the payment of the salary of the solicitor of said county and an appropriation of three thousand dollars per annum to be paid out to assist the solicitor of Jefferson county in suppressing crime, as provided in an act approved February 18, 1891, shall be paid into the fine and forfeiture fund of said county, and shall be a part of said fund."

So far as the series of local acts above noted undertake to deal with solicitor's fees, or funds derived from such fees their operation, with a single exception, is clearly restricted to solicitor's fees collected on convictions in the county, city or criminal courts of Jefferson county, and does not include such fees collected in the circuit courts. The exception noted is found in the act of December 10, 1900 (Acts 1900-01, p. 308), which provides for the employment of a stenographer to transcribe testimony for the solicitor and to attend grand jury sessions of the criminal court for the same purpose. The compensation there provided is "to be paid out of the solicitor's fund arising from convictions in said court," i.e., the criminal court. This act is, by necessary implication, repealed by the Court Consolidation Bill (Acts...