Herrmann v. Mobile County

• Decision Date: 27 June 1918
• Docket Number: 1 Div. 52
• Citation: 202 Ala. 274,80 So. 112
• Parties: HERRMANN v. MOBILE COUNTY.
• Court: Alabama Supreme Court

80 So. 112

202 Ala. 274

HERRMANN v. MOBILE COUNTY.

1 Div. 52

Supreme Court of Alabama

June 27, 1918

Rehearing Denied Nov. 4, 1918

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Action by F.W. Herrmann against Mobile County. Judgment of nonsuit and plaintiff appeals. Transferred from the Court of Appeals under section 6, p. 450, Act April 18, 1911. Reversed and remanded.

Following is plaintiff's complaint, referred to in opinion:

Plaintiff claims of the defendant the sum of $399, together with interest from the 12th day of November, 1917, for the following: Plaintiff is, and has been during all of the time hereinafter mentioned, ex officio clerk of the inferior civil court of Mobile county. As such clerk he did, during the year 1916, prepare a large number of search warrants out of said inferior court of Mobile county for the purpose of seizing certain prohibited liquors, and with connection with such cases did also issue notices to all persons claiming any right, title, or interest in said liquors seized under search warrants in all respects as required by law. He attended the trials of all of said cases and performed all the duties required of him as such ex officio clerk by law in connection with the seizure and destruction of such liquors. Embraced in Exhibit A, attached hereto and made a part hereof, is a tabulated list of the said causes, showing in the first left-hand column the date of the issuance of the search warrant, giving the number of the month, the day and the year on which such issuance took place; in the second column the place authorized to be searched; in the third column the number and page of the record kept in the inferior civil court of Mobile county in which the case is docketed; in the fourth, fifth, and sixth columns the respective items of clerk's fees in each case; and in the ninth column the date of the judgment condemning the liquors seized. In each of said cases a search warrant was issued, prohibited liquors were seized, no one appeared to contest the order of forfeiture and condemnation, and said liquors were forfeited and condemned by order of the court in each case, and the fees listed on said Exhibit A were duly taxed as costs.

Under the law creating the inferior civil court of Mobile county plaintiff, as ex officio clerk of said court, is entitled to one half of all of the judge's and clerk's fees taxed as costs and collected in the causes in the said court, and Mobile county is entitled to the other half. Under the prohibition statutes of 1915 the costs in condemnation cases against prohibited liquors when no one appears to contest the order of forfeiture and condemnation are to be taxed and paid as costs are taxed and paid in criminal prosecutions wherein the state fails. In Mobile county there is no fine and forfeiture fund, and costs so taxed become claims against the general fund of the county. Wherefore plaintiff became entitled to have from Mobile county one-half of the amount of said fees, which one-half is the aforesaid sum of $399. Within one year after the trial of the earliest of said causes, and before the bringing of this suit, plaintiff presented his said claim, duly itemized and sworn to by him, to the board of revenue and road commissioners of Mobile county, Ala., at a regular session of the said board, a copy of which itemized and sworn claim is hereto attached, marked Exhibit A, and made a part hereof. The said board of revenue and road commissioners on, to wit the 19th day of November, 1917, refused and disallowed said claim. Wherefore petitioner sues, etc.

Stevens McCorvey & McLeod, of Mobile, for appellant.

Gordon & Edington, of Mobile, for appellee.

THOMAS J.

The suit is by F.W. Herrmann, the ex officio clerk of the inferior civil court of Mobile, for fees disallowed by the board of revenue and road commissioners of that county.

Demurrer was sustained to the complaint, and because of such adverse ruling on pleadings it became necessary for plaintiff to take a nonsuit; and, prosecuting his appeal, he now duly assigns error presenting for review this ruling of the court. Code, § 3017; Schillinger v. Wickersham, 75 So. 11; Berlin Machine Works v. Ewart Lumber Co., 184 Ala. 272, 279, 63 So. 567; Ex parte Martin, 180 Ala. 620, 61 So. 905; A.G.S.R.R. Co. v. Altman Co., 191 Ala. 429, 67 So. 589; Priebe v. Southern Railway Co., 189 Ala. 427, 66 So. 573.

What of the constitutionality of that part of the act creating the inferior civil court of Mobile which provides for the office which appellant held--ex officio clerk--and fixes the compensation for services rendered in discharge of such official duties as such? Loc.Acts 1911, p. 274. The title of the act is:

"To establish an inferior civil court in lieu of justices of the peace for all precincts lying within or partly within the city of Mobile."

This act was considered and upheld, as to the right of the judge to exercise the functions and powers of the office from which he was sought to be ousted by quo warranto. State ex rel. Clarke v. Carter, 174 Ala. 266, 275, 56 So. 974, 977. In that case, after reviewing several of the objections made to the constitutionality of the act, it is said:

"It is also contended that the act is in violation of section 45 of the Constitution, in that the title contains two subjects. We cannot give our assent to this contention. *** This title is clearly in conformity with, and not in violation of, section 45 of the Constitution. While the bill does create an inferior court, and does abolish the justices' courts, yet the declared object and purpose is to establish the one in lieu of the other, which the Constitution expressly authorizes, and which, therefore, constitutes but one subject, which is clearly expressed in the title. Finding no objection to this act, nor to any part of it which would render the whole unconstitutional and void, or which would prevent the accomplishing of its declared end of establishing an inferior court in lieu of justice courts, we are unable to affirm the judgment of the lower court in sustaining the demurrer to the petition or complaint and dismissing the proceedings." Ballentyne v. Wickersham, 75 Ala. 533; Ex parte Birmingham, 116 Ala. 186, 22 So. 454; State v. Sayre, 118 Ala. 36, 24 So. 89.

On rehearing it was further declared (State ex rel. Clarke v. Carter, supra) that the provision of the act making the judge of the inferior criminal court of said county the ex officio judge of the inferior civil court created by the act in question was not offensive to the inhibition of section 280 of the Constitution, "nor, unless otherwise provided in this Constitution, *** notaries public, and commissioner of deeds." The same reasoning there employed as to the ex officio judge must apply to the ex officio clerk touching the discharge of his duties and compensation therefor. State v. Roden, 73 So. 657, 658; State ex rel. Vandiver v. Burke, Judge, 175 Ala. 561, 57 So. 870; Chisholm, Comptroller, v. Coleman, 43 Ala. 204, 94 Am.Dec. 677, L.R.A.1917A, 242, note. If the title of the act was sufficiently expressed in general terms to comprehend and provide for the discharge of the duties of the office of judge and compensation therefor by the judge of the inferior criminal court, it embraced also the provisions authorizing the clerk of the inferior criminal court of Mobile county to discharge the duties of the ex officio clerk of the said inferior civil court, and provided for his compensation.

In McGeheee v. State ex rel. Tate, 74 So. 374, 376, Mr. Justice Sayre said:

"We held in the recent case of State v. Roden, 73 So. 657, that, where an inferior court is set up in lieu of justices of the peace--that is, justices are abolished and their powers and jurisdiction are conferred upon an inferior court--the jurisdiction of the inferior court in respect of subject-matter, like that of the justices of the peace whom it supersedes, may not be extended to cases of libel, slander, assault and battery, or ejectment, nor to any civil case where the amount in controversy exceeds $100; but it was not decided that in every or any other respect the inferior court must be fashioned in the exact pattern of a justice's court. [ Italics supplied.] If it was so intended, no purpose would be served by the alternative of the Constitution which, to state its effect as we understand it, authorizes the consolidation of all the official functions of all the justices of the peace of a number of precincts in an inferior court

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