State v. Mcmillan

• Decision Date: 12 February 1908
• Court: Florida Supreme Court
• Parties: STATE ex rel. LOFTIN, County Solicitor v. McMILLAN, Circuit Court Clerk.

45 So. 882

55 Fla. 254

STATE ex rel. LOFTIN, County Solicitor v. McMILLAN, Circuit Court Clerk.

Florida Supreme Court

February 12, 1908

On Rehearing, March 17, 1908.

In Banc. Error to Circuit Court, Escambia County; J. Emmet Wolfe, Judge.

Application by the state, on the relation of Scott M. Loftin, county solicitor, for writ of mandamus to A. M. McMillan, clerk of the circuit court. Demurrer sustained, and plaintiff brings error. Reversed and remanded.

Syllabus by the Court

SYLLABUS

Laws should be construed with reference to the Constitution and the purpose designed to be accomplished, and in connection with other laws in pari materia, though they contain no reference to each other.

Where one statute in comprehensive terms covers a subject, and another later statute embraces only a particular part of the same subject, the two should be construed together, unless a different legislative intent appears; and the statute relating to the particular part of the general subject will operate as an exception to or qualification of the general terms of the more comprehensive statute to the extent only of the repugnancy, if any.

The Constitution provides that: 'In all criminal cases prosecuted in the name of the state, when the defendant is insolvent or discharged, the legal costs and expenses including the fees of officers, shall be paid by the counties where the crime is committed, under such regulations as shall be prescribed by law.' Section 3878 of the General Statutes of 1906 prescribes that the prosecuting attorney shall receive a conviction fee of $5 for each misdemeanor. Section 3266 provides that every person convicted of carrying concealed weapons shall pay as costs a conviction fee of $10 for the prosecuting officer: provided, if the party convicted is insolvent, no liability shall attach to or be incurred by the counties for such $10 fee. Held: (1) Section 3266, being a later act, operates as an exception to or a qualification of section 3878, in so far as it is repugnant thereto in undertaking to prescribe a different conviction fee in misdemeanor cases of carrying concealed weapons. (2) The proviso to section 3266 is not a regulation for the payment of prescribed fees, but prescribes particular fees, and is in conflict with the constitutional provision requiring the legal costs and expenses, including the fees of officers, to be paid by the counties when the defendant is insolvent. (3) As the elimination of the proviso from section 3266 will cause results not contemplated or desired by the Legislature in that it would increase the conviction fee in certain cases, and make the counties liable therefor under the Constitution where the defendant is insolvent or discharged the whole of section 3266 is declared to be unconstitutional and void.

Under section 3878, Gen. St. 1906, the prosecuting attorney is entitled to a conviction fee of $5 for each misdemeanor, to be paid by the proper county when the defendant is insolvent or discharged under such regulations as shall be prescribed by law.

On Rehearing.

Section 3266 of the General Statutes of 1906, in providing that every person convicted of carrying concealed weapons shall pay a conviction fee of $10, to be taxed as costs, fixes a legal fee that is unconditional as against the convicted person whether solvent or insolvent, and the proviso of the section exempting the counties from liability for such conviction fee when the convicted person is insolvent is in conflict with the constitutional provision that when the defendant is insolvent the legal costs and expenses shall be paid by the counties.

Where it appears beyond all reasonable doubt that a statute is unconstitutional, it is the duty of the court to so declare.

COUNSEL

Scott M. Loftin, in pro. per.

Blount & Blount & Carter, for defendant in error.

OPINION

WHITFIELD J.

An alternative writ of mandamus was issued in the circuit court for Escambia county, Fla., commanding the defendant clerk of the circuit court and clerk of the board of county commissioners for Escambia county to draw a warrant on the treasurer of Escambia county in favor of Scott M. Loftin, county solicitor, for $5 as a conviction fee in a criminal prosecution in the criminal court of record for Escambia county, Fla., wherein an insolvent defendant was convicted of carrying concealed weapons, or to show cause for not doing so. The defendant demurred to the alternative writ on the grounds that: (1) The county is not liable as alleged. (2) The county is not liable in any event for the conviction fee of the county solicitor for carrying concealed weapons. (3) No statute authorizes a conviction fee of $5 in cases of conviction for carrying concealed weapons. (4) The drawing of the warrant would be illegal; the county not being liable for the conviction fee alleged. This demurrer was sustained. The relator announced that he did not desire to amend, and asked for final judgment. The defendant was dismissed without day, and the relator took writ of error, assigning as error the order sustaining the demurrer to the alternative writ and entering final judgment for the defendant.

The Constitution of Florida (section 24, art. 5) provides for establishing criminal courts of record. Section 27 provides: 'There shall be for each of said courts a prosecuting attorney. * * * His compensation shall be fixed by law.'

The General Statutes of 1906 provide (section 3877) that 'the prosecuting attorney of the criminal court of record shall be called the county solicitor.' Section 3878, originally enacted in 1891: 'He shall be paid two dollars per diem quarterly by the county, and conviction fees of ten dollars for each felony, and five dollars for each misdemeanor, to be paid in like manner as other criminal costs.' Section 3266, originally enacted in 1901: 'Every person convicted in any court in this state of carrying concealed weapons, said court having a regular or special prosecuting officer, shall pay a conviction fee of ten dollars, which shall be taxed as costs in addition to the other costs and fines imposed: provided, however, where the party convicted is insolvent and unable to pay the costs and conviction fee that no liability shall attach to or be incurred by the respective counties for such conviction fee herein provided for.'

Laws should be construed with reference to the Constitution and the purpose to be accomplished, and with reference to other laws in pari materia, though they contain no reference to each other. Board of County Commissioners of Escambia County v. Board of Pilot Commissioners of Port of Pensacola (Fla.) 42 So. 697; State ex rel. v. Commissioners of Volusia County, 28 Fla. 793, 10 So. 14; Ferrari v. Board of Health of Escambia County, 24 Fla. 390, 5 So. 1; Morrison v. McKinnon, 12 Fla. 552; Heirs of Bryan v. Dennis, 4 Fla. 445.

Where one statute in comprehensive terms covers a subject, and another later statute embraces only a particular part of the same subject, the two should be construed together, unless a different legislative intent appears; and the statute relating to the particular part of the general subject will operate as an exception to or a qualification of the general terms of the more comprehensive statute to the extent only of the repugnancy, if any. See Keech v. State, 15 Fla. 591, 601; Lewis' Sutherland, Stat. Const. (2d Ed.) § 275, 346, and authorities cited in note 99 on page 532; Howard v. Hulbert, 63 Kan. 793, 66 P. 1041, 88 Am. St. Rep. 286; McGavish v. State, 34 N. J. Law, 509.

The provisions of sections 3878 and 3266 of the General Statutes of 1906 relate to the compensation of prosecuting officers, including county solicitors. They should be construed together and with reference to the constitutional provisions controlling them. The general provision fixing conviction fees of county solicitors contained in section 3878 governs, except where valid special provisions exist as to any subject covered by the general provision.

Section 3266 relates to a particular portion of the general subject covered by section 3878, and it is evident the lawmakers intended the provisions of the former section to be a qualification of, or an exception to, the general provisions of section 3878.

It is apparent that the trial court sustained the demurrer to the alternative writ upon the theory that the proviso to section 3266 relieved the county from the payment of any conviction fee where there has been a conviction for the misdemeanor of carrying concealed weapons and the convicted defendant is insolvent.

The effect of section 3266, with its proviso, is an attempt to carve out of the general provisions of section 3878 the particular misdemeanor of carrying concealed weapons, and to prescribe a conviction fee of $10 for the prosecuting officer in such cases, to be collected out of the convicted defendant if possible; and the proviso declares that the county shall not be liable for such prescribed conviction fee in cases where the defendant is insolvent. In short, the Legislature by this section has undertaken to prescribe a conviction fee to which the prosecuting officer shall be entitled in all cases of conviction for a certain misdemeanor, but to absolve the county from any liability for such prescribed fee whenever the convicted defendant proves to be insolvent and unable to pay the conviction fee. It does not provide that the prosecuting officer shall be entitled to such prescribed fee only in cases where he convicts a solvent defendant; but by its terms it entitles the prosecuting officer to such prescribed fee in all cases of conviction for such misdemeanor, whether ...