Mobile County v. Byrne

• Decision Date: 10 May 1928
• Docket Number: 1 Div. 486
• Citation: 117 So. 83,218 Ala. 5
• Parties: MOBILE COUNTY v. BYRNE.
• Court: Alabama Supreme Court

117 So. 83

218 Ala. 5

MOBILE COUNTY v. BYRNE.

1 Div. 486

Supreme Court of Alabama

May 10, 1928

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Assumpsit by Pat Byrne against the County of Mobile. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Smiths Young & Johnston, of Mobile, for appellant.

Harry T. Smith & Caffey, of Mobile, for appellee.

BROWN J.

Action of assumpsit for money had and received, instituted by the appellee against Edward J. Huet. The money, the subject-matter of the suit, came into the hands of the defendant, as clerk of the inferior criminal court of Mobile county, as costs and fees assessed and collected in criminal cases disposed of in said court, and the plaintiff, who is the sheriff of the county, asserts his right to recover these costs and fees, under the provisions of the act of the Legislature approved September 29, 1923, entitled:

"An act to prescribe the duties of sheriffs, as to inferior courts in all counties having a population of over eighty thousand according to the last federal census, or which may hereafter have such population according to any federal census hereafter taken, in which the sheriff is not on a salary basis under and by virtue of a constitutional amendment, and to fix the compensation of the sheriffs of such counties, as well as the compensation of the sheriff of all other counties in which the sheriffs are now or may hereafter be required to perform for the inferior criminal courts of their respective counties the services and duties by this act specified and enumerated for sheriffs of counties having a population of over eighty thousand, for executing process out of such courts, and for other services rendered in or to such courts, and to provide the method of payment and to limit the amount of fees and allowances to be paid by counties in cases wherein the fine and costs are not paid by convicted defendants, and to repeal all laws and parts of laws, general, local, private and special, in conflict herewith." Gen.Acts of 1923, p. 675.

Before issue joined, the defendant, Huet, made affidavit as prescribed by section 10386 of the Code, alleging that the county of Mobile and George E. Stone, the treasurer of said county, "without collusion with him," claimed the money in controversy, and with the filing of the affidavit deposited the money in court. The county of Mobile and Stone were duly made parties, but, on motion of the plaintiff George E. Stone, as treasurer, was stricken as a party, and the case proceeded to judgment against the county, and from that judgment it has appealed.

The question of prime importance arises on the assertion of the appellant that the act under which the appellee claims was passed in violation of sections 45, 96, 104, 106, and 110 of the Constitution of 1901.

Pertinent to the history of the legislation involved and the questions presented, we observe, as a matter of judicial knowledge that, by the local act approved February 23 1899, "an inferior criminal court in the county of Mobile" was established, with the jurisdiction of justices of the peace in criminal, and certain quasi criminal, matters. The local act creating the court authorizes the judge of said court, or the clerk, under his direction, to tax the same costs and fees as are authorized to be taxed by justices of the peace, and provides that all processes issuing out of said court shall be addressed to the sheriff of the county, and imposed upon him the duty of executing such process, and, further, on the request of the judge of said court, to furnish bailiff to attend its sittings.

The act provided that all costs and fees collected should be paid into the county treasury, and that the officers of said court, the judge and clerk, should be paid a salary, and that the sheriff, for his services, should be allowed out of the county treasury a specified amount for the services performed. Local Acts 1898-1899, pp. 1164-1168.

By the local law approved February 21, 1907, the salaries of the judge and clerk, and the allowance to the sheriff, were increased; the allowance to the sheriff being fixed by the later act of $1,800 per annum, "to be paid monthly out of the county treasury." Local Laws 1907, pp. 87, 88.

The only counties in Alabama having a population according to the last federal census, in excess of 80,000, are Mobile Montgomery, and Jefferson, and the sheriffs of Montgomery and Jefferson counties are "on a salary basis under and by virtue of a constitutional amendment relating specifically to each."

Section 1 of the act in question provides that sheriffs in all counties having a population of over 80,000, according to the last or any federal census hereafter taken, in which the sheriff is not on a salary basis under and by virtue of a constitutional amendment (excluding Montgomery and Jefferson counties), "shall perform all of the duties that are now required of them by law in the execution of process of whatever nature or kind that may be issued out of all inferior criminal courts in such counties, as well as all other duties now required of them in and to such courts, and in addition thereto shall be required to keep in attendance upon such co...