State v. Stone, 1 Div. 701.

• Decision Date: 28 January 1932
• Docket Number: 1 Div. 701.
• Citation: 139 So. 328,224 Ala. 234
• Parties: STATE EX REL. FRENCH ET AL. v. STONE, COUNTY TREASURER.
• Court: Alabama Supreme Court

139 So. 328

224 Ala. 234

STATE EX REL. FRENCH ET AL. v. STONE, COUNTY TREASURER.

1 Div. 701.

Supreme Court of Alabama

January 28, 1932

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

Petition of the State of Alabama, on the relation of H. W. French and H. C. Steiner, for mandamus to George E. Stone, as Treasurer of Mobile County. From a judgment denying the writ petitioner appeals.

Affirmed.

Robert T. Ervin, Jr., and Pillans, Cowley & Gresham, all of Mobile for appellant.

Gordon Edington & Leigh, of Mobile, for appellees.

KNIGHT J.

One Claude Moberg was indicted for the offense of violating the prohibition law. The indictment was returned by a grand jury in the circuit court of Mobile county. Upon his arrest defendant was released upon bail bond executed by appellants, petitioners in the court below. The penalty of this bond was fixed at $500.

When Moberg's case was called for trial in the circuit court of Mobile county, he failed to appear to answer the indictment, as by the terms and conditions of his bond he was required to do. A conditional judgment was thereupon entered against defendant and his sureties, as the statutes provide. The case against this defendant was reset for trial, in the same court, for December 2, 1927. Notice of the rendition of the conditional judgment was duly served upon the sureties of Moberg. At the time set for the trial of this defendant in December, he was again in default, and the conditional judgment theretofore rendered against the sureties was made final and absolute for the full amount of the penalty of the bond and cost of the forfeiture proceedings.

It appears that, in their efforts to apprehend Moberg and produce him at his trial, in exoneration of their undertaking of bail, the sureties expended, in payment of reward and other charges, a large sum of money, somewhat in excess of their original undertaking. As a result of their efforts, Moberg was surrendered finally by his sureties to the court having jurisdiction of his case, and he was put on trial and duly convicted.

In their efforts to obtain relief and to be refunded the amount the sureties had paid to the state, for the use of Mobile county, in satisfaction of the judgment rendered against them in the forfeiture proceedings, the sureties, appellants here, secured the passage by the Legislature of a special or private act (Loc. Acts 1931, p. 44), which is as follows, omitting the caption:

"Section 1: There is hereby appropriated out of the Treasury of Mobile County, Alabama, the sum of five hundred dollars ($500.00) to be paid to H. W. French and H. C. Steiner.

"Section 2: The monies appropriated by Section One of this act shall be paid on a warrant drawn by the County Treasurer of Mobile County, Alabama, against the general fund of Mobile County, Alabama, for the sum of five hundred dollars ($500.00), payable to H. W. French and H. C. Steiner; and the County Treasurer of Mobile County, Alabama, is hereby authorized, empowered and directed to draw and issue said warrant and to pay the same."

The treasurer of Mobile county, presumably under advice of counsel, declined to issue or draw said warrant, or to make the payment provided for in the act, taking the position that the act in question was unconstitutional and void. Thereupon the said H. W. French and H.C. Steiner applied by petition to the Honorable Claude A. Grayson, as judge of the circuit court of Mobile county, for writ of mandamus against the treasurer to require him to make the payment, to them as authorized and directed by said act. A rule nisi was ordered to be issued by Judge Grayson, on the presentation of the petition.

Upon the day set for the hearing of the petition, the treasurer appeared and answered the same, justifying his action in declining to pay the petitioners the money they demanded by asserting the invalidity of the above-quoted act; the treasurer's contention being that the act in question is violative of subdivision 28 of section 104 of the Constitution. The judge of the circuit court of Mobile county held to the view that the act in question was unconstitutional, and refused the writ; and from this holding the present appeal is prosecuted.

The insistence of appellants here is that the "forfeitures" that the Legislature is forbidden to remit are forfeitures of the criminal laws of the state, and necessarily imposed upon the ones who violate those laws, and that the word "forfeitures" must be given a meaning, not as the word generally imports, but as restricted to cases where they have been imposed by way of punishment of the wrongdoer, and that the judgment rendered against sureties on bail bonds is in no sense a forfeiture as falls within the inhibition of section 104, subd. 28, of the Constitution.

In this view we cannot concur for the reasons hereinafter stated.

The state government is divided into three co-ordinate branches legislative, judicial, and executive; each has a sphere of action, and within that sphere each is, and must be regarded, as supreme. powers confided to one cannot be exercised by the others. That the Legislature, in the absence of constitutional restraint, is all-powerful in dealing with matters of legislation, it must be conceded, but the Legislature can at no time usurp the functions of either the executive or judicial department, and,...