State, for Use and Ben. of Morgan County v. Norwood

• Decision Date: 11 April 1946
• Docket Number: 8 Div. 316.
• Citation: 248 Ala. 128,26 So.2d 577
• Parties: STATE, for Use and Benefit of Morgan County, v. NORWOOD et al.
• Court: Alabama Supreme Court

26 So.2d 577

248 Ala. 128

STATE, for Use and Benefit of Morgan County, v. NORWOOD et al.

8 Div. 316.

Supreme Court of Alabama

April 11, 1946

Rehearing Denied June 27, 1946.

Wm N. McQueen, Atty. Gen., and Randolph G. Lurie, Asst. Atty Gen., for appellant.

Norman W. Harris, of Decatur, for appellees.

The bill, as amended, alleges in substance that the suit is brought by the Attorney General in the name of the State, for the use and benefit of Morgan County, upon direction of the Governor, to recover public funds of that county lost by the neglect or default of C. W. Norwood, a justice of the peace, precinct No. 1, of Morgan County, during the four-year term beginning January 20, 1941; that Norwood made an official bond before entering upon the discharge of the duties of his office with the Fidelity and Casualty Company of New York, in the sum of $1,000; that he served as a justice of the peace continuously beginning January 20, 1941, up to and including April 12, 1944; that an examination of the books and records of said Norwood, made by examiners of public accounts, showed that he, as justice of the peace, collected fines in criminal cases tried by him, from which he deducted fees for the sheriff of Morgan County for services rendered in cases in which the defendant was acquitted or was insolvent and unable to pay after conviction; that the total amount of fees so deducted for and paid to the sheriff in such cases was in the sum of $510.50; that Norwood was not authorized to deduct from fines collected by him such fees for the sheriff and pay the same to the sheriff, but he was required, by Code 1940, Title 13, § 418, to account semiannually to the treasurer of the county for the

same; that his failure to do so constituted a breach of the condition of his official bond. Judgment is sought against Norwood and his surety.

The demurrer contained this, among other grounds: '12. For aught that appears the fund described in the bill of complaint as 'The insolvent fund of the said G. W. Norwood, Justice of the Peace of Morgan County, Alabama, Precinct No. 1' was a fund composed of fines and forfeitures collected by the said Justice of the Peace, and the amounts alleged to have been paid therefrom to the sheriff of Morgan County were paid to said sheriff in payment of fees due to the said sheriff for serving process issued by said justice of the peace in criminal cases pending in the Justice Court of G. W. Norwood in cases in which the defendants were acquitted or were insolvent and unable to pay costs after conviction, and the amounts paid therefrom for the fees due to said sheriff and for the fees due to the said Justice of the peace in such cases did not exceed $50.00 for any calendar month, all as provided by Section 418 of Title 13 of the Code of Alabama of 1940.'

PER CURIAM.

The appeal is by the state in equity for sustaining a demurrer to the amended bill.

It is established in this jurisdiction that the Division of Examiners of Public Accounts of the State Department of Finance is authorized to examine and audit the records and accounts of state and county offices as indicated and that a justice of the peace is a public officer. Code 1940, Tit. 55 § 156 et seq.; State v. Tuscaloosa County, 233 Ala. 611, 172 So. 892; State v. Albright, 155 Ala. 141, 46 So. 470; Thornhill v. Cowart, 205 Ala. 455, 88 So. 563; Montgomery v. State, etc., 107 Ala. 372, 17 So. 157. The suit was based upon such report.

An important ground of demurrer is the insistence that a justice of the peace is entitled to deduct fees from the funds indicated for the sheriff as authorized for the constable of his court by the provisions of Code 1940, Tit. 13, § 418.

In a case like this a bill filed by authority of law may be maintained without alleging any special equitable grounds. Code 1940, Tit. 7, §§ 72, 73, 74 and 75.

In Bradford v. State, 201 Ala. 170, 77 So. 696, 697, the bill was filed in the name of the state by the attorney general against the sureties of the official bond of a county treasurer to recover school funds which had come to the treasurer's hand and lost by deposit in an insolvent bank. The right of the state to maintain a bill for recovery of such county funds was questioned by demurrer, the holding being that such a suit may be instituted in the name of the state, 'whether the funds in question be considered state, or county funds.' To like effect was the decision in National Surety Company v. State, 219 Ala. 609, 123 So. 202, wherein it was held that complainant was not required to make allegation of any special grounds for equitable interference.

In the case at bar the attorney general is proceeding upon the direction of the governor under Code 1940, Tit. 7, § 73. In Montgomery, Supt. of Banks v. Sparks, 225 Ala. 343, 142 So. 769, the holding was to the effect that though the statute authorized the governor to cause suits to be brought for the recovery of public funds, this did not conflict with the statute authorizing the attorney general to institute suits for the protection of the state. Code 1940, Tit. 55, § 169; Code 1923, §§ 854, 5644, 5647, Code 1940, Tit. 55, § 229; Tit. 7, § 72, 73. The court said that the attorney general could act independently in the one case but could act only upon direction of the governor in the other. That there was no conflict in the statutes involved. State ex rel. Sossaman v. Stone, County Treasurer, 235 Ala. 233, 178 So. 18; Colbert County v. Tennessee Valley Bank, 225 Ala. 632, 144 So. 803. The demurrer directed to this phase of the pleading was properly overruled.

Ground of demurrer to the effect that it did not sufficiently appear that Norwood received the moneys or any part thereof in his official capacity is not well taken. It is averred that the money sought to be recovered from Norwood, the Justice of the Peace, was for funds collected by him as justice of the peace and paid to the sheriff of the county for fees for execution of process in criminal cases where the defendant was acquitted in that justice's court or was insolvent and unable to pay the same after conviction in such court. In Culver v. Sparkman, 25 Ala.App. 544, 149 So. 877, 880, the litigation was by a constable against the judge of the inferior court for fees which he had earned as constable for serving process issuing from such court, and it was declared: 'There is no merit in the contention that the judge * * * did not act in his official capacity in the collection of fines and forfeitures coming into his hands as judge of said court. Money coming into the hands of the judge in payment of fines and costs are received by, and accounted for by, the judge in his official capacity. * * *' Grounds of demurrer directed to such phase of the instant bill are without merit.

Defendant's twelfth ground of demurrer will be set out in the statement of facts. That insistence is that the justice of the peace was entitled to deduct fees for the sheriff as he was for the constable under the authority of Title 13, § 418, Code 1940. The provision of statute urged by appellee to have application comes to us unchanged from the Act of February 26, 1875, Acts 1874-75, p. 181; Code 1876, § 731. Pertinent part of that statute is: '* * * To collect all fines imposed where the defendant is not sentenced to jail or hard labor to pay same; or an appeal is taken. He may deduct from fines and forfeitures collected by him, the amount due for his fees and those of the constable in cases in which the defendant was acquitted, or insolvent and unable to pay after conviction, a sum not to exceed fifty dollars for any calendar month; he shall pay the remainder of the fines and forfeitures collected by him to the treasurer or to the custodian of the county funds where there is no county treasurer, same to be paid semi-annually on the first Mondays in January and July of each year, and make his report at the next session of the grand jury; if he should fail to make such payments as herein provided, he shall forfeit all right to make any deduction from his collections for cost due him and the constable for fees as herein provided. * * *' [Italics supplied.]

Title 11, § 79, Code 1940, is to the effect that the law of costs must be deemed and held penal, and no fee must be taken except in cases expressly provided by the law. There are many decisions to such effect. Troup v. Morgan County, 109 Ala. 162, 19 So. 503; Greene County v. Hale County, 61 Ala. 72; Cabler v. Mobile County, 230 Ala. 118, 159 So. 692; Lee v. Smyley, 16 Ala. 773.

The appellee insists that Title 54, Code 1940, § 18, must be read in connection with Tit. 13, Code 1940, § 418, for a reasonable construction of these two statutes. The object of the specific provisions of the statutes and that touching the question before us is contained in Title 13, § 418, Code 1940, and is to compensate the justice of the peace and officer serving process in his court for matters in which the justice has final jurisdiction, whether that officer be the constable or the sheriff; that the law is not concerned with what official serves the process, and only that he receives the payment out of the available fund; and that the allowance of $50 per month is made, and so long as the service for which the allowance is made has been rendered, payment is required, and may be made by the justice out of the specific funds indicated and in his hands.

In Sanders v. Young, 220 Ala. 94, 124 So. 225, and in Culver v. Sparkman, 25 Ala.App. 544, 149 So. 877 and in State v. Smith, 31 Ala.App. 533, 19 So.2d 546, the statute was applied to compensation of the constable serving process from an inferior court, whether that inferior court be a justice of the peace or an inferior court established in lieu...