State v. Smith, 7 Div. 806.

• Decision Date: 31 October 1944
• Docket Number: 7 Div. 806.
• Citation: 19 So.2d 546,31 Ala.App. 533
• Parties: STATE v. SMITH.
• Court: Alabama Court of Appeals

19 So.2d 546

31 Ala.App. 533

STATE v. SMITH.

7 Div. 806.

Alabama Court of Appeals

October 31, 1944

Appeal from Circuit Court, Talladega County; Lamar Field judge.

J.J Cockrell, of Talladega, for appellant.

C.W Stringer, of Talladega, and L.H. Ellis, of Columbiana, for appellee.

RICE Judge.

There was passed and approved on February 3rd, 1899, an act of the Legislature of Alabama "To regulate the fees of Justices of the Peace and Notaries Public ex-Officio Justices of the Peace in Talladega County, and provide for the payment of the same in certain cases." Local Acts of Alabama 1898-1899 p. 563.

Then there was passed and approved on September 3rd, 1915, an act of the Legislature of Alabama "To establish an inferior court in precinct 11, Talladega county, Alabama, in lieu of all justices of the peace in said precinct, and to define the jurisdiction and powers of said court and the judge thereof, to provide for the execution of processes of said court and the operation thereof, to provide for the appointment, election, term of office, qualifications and compensation of the judge thereof, and to abolish the offices of all justices of the peace in said precinct." Local Acts Alabama 1915, p. 297.

By Section 4 of the local act of the Legislature of 1915 last mentioned it was provided "that the judge of said court shall receive as compensation for his services the same fees now allowed justices of the peace or may hereafter be allowed justices of the peace for services in justice court, which fees shall be taxed and collected as now or may hereafter be provided by law." And by Section 6 of said act it was provided "that all laws affecting or regulating the practice of courts of the justices of the peace in Talladega county shall be applicable to the court hereby established." (Italics supplied by us.)

This is a suit by the State, for itself and for the use of Talladega County--resulting below in a judgment in favor of the defendant--for a claimed excess of fees collected by the judge of the Inferior Court of "precinct 11, Talladega County, Alabama", for the approximate year beginning June 25th, 1942, and ending July 1st, 1943.

It is not controverted that defendant, appellee, collected fees, during the time mentioned, in exact accordance with the provisions of the Local Act of the Legislature approved February 3rd, 1899, supra; but the appellant is claiming that the excess for which it is suing arose by virtue of the scale of fees adopted by appellee being higher than that provided by the general law.

It is unquestioned that the act approved February 3rd, 1899, Local Acts 1898-99, p. 563, supra, was valid legislation at the time it was enacted. But appellant contends that the same was repealed by the adoption of the Code of 1907, or of that of 1923, or of that of 1940.

But Section 10 of the Code of 1907 expressly provides that "Local, private, or special statutes * * * are not repealed by this Code." See Brandon, Auditor, v. Askew, Solicitor, 172 Ala. 160, 54 So. 605. To the same effect is Section 11 of the Code of 1923, and Title 1, Section 9 of the Code of 1940.

It being admitted that defendan...