State v. Barnes

• Decision Date: 01 February 1888
• Citation: 24 Fla. 29,3 So. 433
• Parties: STATE EX REL. MURPHY v. BARNES, COMPTROLLER.
• Court: Florida Supreme Court

3 So. 433

24 Fla. 29

STATE EX REL. MURPHY v. BARNES, COMPTROLLER.

Florida Supreme Court

February 1, 1888

Application for mandamus.

The state ex rel. J. Hugh Murphy, prosecuting attorney of Orange county, applied for a writ of mandamus to compel W. D Barnes, state comptroller, to audit and allow him a certain per diem.

COUNSEL

A. W. Owens, for the motion.

The Attorney General, contra.

OPINION

Maxwell C.J.

This case is a motion for an alternative writ of mandamus, based on a petition of the relator, which states, in substance that he is the duly-appointed prosecuting attorney for the criminal court of the county of Orange; and that there is due him from the state, under section 14, c. 3731, Acts 1887, as per diem, the sum of $204, which it is the duty of the comptroller to audit and allow, but that the comptroller refuses to perform that duty. The motion is resisted by the comptroller, on the ground that it is apparent from the face of the petition that the relator is not entitled to payment from the state, as the claim rests upon a statute which is in violation of section 15, art. 12, Const. That statute is as follows: "The county solicitors shall be paid three dollars per diem, and receive the same conviction fees that are now paid to the state's attorneys in like cases, to be paid quarterly by the state in like manner as the per diem and conviction fees of the state's attorneys are now paid; and the said conviction fees shall be paid in cases when new trials are granted, and appeals taken, the same as in other cases of convictions."

There can be no doubt of the right of the relator to his claim if it is to be determined by this statute alone. In the section of the constitution establishing the office of prosecuting attorney, it is provided that "his compensation shall be fixed by law." That is what the above section was intended to do; but it is urged that, in requiring the state to pay that compensation, the legislature exceeded its authority, because, under section 15 above named, the constitution requires it to be paid by the county in which the office is located. The section is this: "The compensation of all county school officers shall be paid from the school fund of their respective counties, and all other county officers receiving stated salaries shall be paid from the general funds of their respective counties."

If the relator is a county officer, and the fixing his compensation at "three dollars per diem, *** to be paid quarterly by the state in like manner as the per diem of the state's attorneys *** are now paid," is a stated salary, this provision of the constitution certainly imposes payment of it on the county. The fact to which relator attaches importance that the section is found in an article headed "Education," and that county officers generally are in that section linked with school officers of the county, does not render doubtful or lessen the force of the plain, unmistakable language used. That its place in the constitution cannot be held to affect its broad meaning is apparent from the history of the proceedings of the constitutional...