Torbert v. Hale County

• Decision Date: 11 June 1901
• Citation: 131 Ala. 143,30 So. 453
• Court: Alabama Supreme Court
• Parties: TORBERT v. HALE COUNTY.

30 So. 453

131 Ala. 143

TORBERT v. HALE COUNTY.

Supreme Court of Alabama

June 11, 1901

Appeal from circuit court, Hale county; John Moore, Judge.

Action by W. E. Torbert against Hale county. Judgment for defendant. Plaintiff appeals. Affirmed.

This action was brought to recover of the county a sum of money alleged to be due the plaintiff by the county for services rendered by him while sheriff of said county in attendance upon the terms of the circuit and county courts of said county. The complaint contained two counts, as stated in the opinion. The defendant filed a demurrer to each of the counts, which assigned in various ways the ground that there was in law no warrant or authority by which the plaintiff, as sheriff, could claim, or the commissioners' court allow such compensation for his attendance upon said court. The court sustained each of these demurrers, and, the plaintiff declining to plead over, judgment was rendered for the defendant. The plaintiff appeals.

De Graffenried & Evins, for appellant.

Thos E. Knight, for appellee.

TYSON J.

The complaint contains two counts. The first seeks to enforce a liability against the county for services rendered by the plaintiff, in his official capacity as sheriff, for attendance upon the county court; the second, for services rendered for attendance upon the circuit court during and while that court was engaged in the trial of criminals. A demurrer going to the right of the plaintiff to have compensation for the services rendered by him was sustained to each of the counts. "The law of fees and costs must be held to be penal, and no fee must be demanded or received except expressly authorized by law." Code, § 1353. An officer demanding fees for services rendered must point to some clear and definite provision of the statute which authorizes the demand, and the compensation cannot be allowed unless it is conferred by a strict construction of the language employed in the statute. Statutes giving costs or fees will not be extended beyond their letter. Troup v Morgan Co., 109 Ala. 162, 19 So. 503, and cases cited. It is of no consequence that the law imposes the duty upon the plaintiff to perform the services alleged to have been performed if there is no provision compensating him for it. "Those who accept public offices which require them to render services to the state must take the office cum onere,-the rendition of such services gratuitously,-unless by express statutory provision compensation is fixed, and an express liability for its payment imposed." State v. Brewer, 59 Ala. 130. Two sections of the Code are relied upon as fixing the compensation claimed by plaintiff in the first count, and as imposing a liability upon the defendant. The first, to which we will now advert, is section 4596 of the Code. Confessedly this section imposes the duty upon the sheriff or deputy sheriff to attend upon the sittings of the county court; and also provides, in the event that either of them fails to attend, for the appointment by the court of some suitable person to perform the duties which they would be required to perform if present, and for compensation to be paid to that person. Clearly, under the rule requiring a strict construction, the provision for compensation cannot be extended to the sheriff or his deputy. Indeed, by no rule of construction can the language employed be held to refer to either of them. The next section relied upon is section 4565 of the Code. This makes provision for fees of sheriffs in criminal cases. After enumerating certain fees to which sheriffs are entitled, the following...