Trapp v. State ex rel. Roney , 120 Ala. 397 ( 1898 )

TYSON, J.

This is an appeal prosecuted by S. B. Trapp, as President of the Board of Inspectors of. Convicts, for the State of Alabama, from a judgment of the city court of Montgomery, awarding a peremptory writ of mandamus against him, compelling him to request the Auditor of the State in writing to draw his warrant upon the State Treasurer, for the payment of a certain bill of costs, including a solicitor’s fee earned by a solicitor pro tern., duly and regularly appointed by the court to prosecute for the State in the absence of the solicitor, who was sick.

There are only two questions presented, for consideration : First, is a solicitor pro tern., who has been legally appointed, entitled to compensation for services rendered to be jraid out of the State treasury? Second, is the President of the Board of Inspector's of Convicts required to request the Auditor in writing to draw his warrant to pay a bill of costs until after an execution against the defendant is returned “No property found?”

Section 4561 of the Code of 1896 provides for and specifies the amount of each solicitor’s fee to be taxed against a defendant on conviction. Prior to February 21, 1893, these fees when collected were paid to the solicitor as compensation for services rendered by him, and were the only perquisites attached to this office. By an act of the General Assembly of that date, circuit solicitors’ compensation is fixed at a salary of twenty-four hundred dollars per annum, to be paid monthly in instalments, on the warrant of the Auditor drawn upon the State Treasurer, and certain commissions which it is not necessary here to note. Under the provisions of this act, all fees, which maybe by law taxed as solicitors’ fees against defendants, on convictions secured by a solicitor who is paid a salary by the State, belong to the State, and when collected must be paid into the State treasury.— Code of 1896, § 5529. It is clear that the State under this provision is entitled to only those fees secured or earned by a solicitor who is paid a salary.

When fees are earned or secured by a solicitor pro tern. legally appointed by the court, he is entitled to all fees allowed the solicitor, which shall be taxed against the defendant, on conviction, to be collected in the same manner that solicitor's’ fees are collected. — Code of 1896, § 5522.

Under the provisions of the act of February 18, 1895, (Code, 1896, §§ 4431 etseq.), organizing and establishing a convict system, the Board of Inspectors of Convicts are, among other things, given the entire control of all State convicts, that is, those convicted of a felony, in the matter of making contracts for their hire, etc. Certain items of costs are enumerated in these provisions to be taxed against the defendant upon conviction of a felony, and sentenced to imprisonment in the penitentiary, but the amount of each is not fixed ; among these is a solicitor’s fee when the conviction is secured by a solicitor other than a solicitor who is paid a salary by the State. These cost bills are to be paid out of the State treasury, upon a warrant drawn by the Auditor in favor of the clerk of the court, in which the conviction is had. Asa condition precedent to the authority of the Auditor to draw this warrant, the clerk must make oath to the correctness of the bill of costs, and forward it to the President of the Board of Inspectors, whose duty it is to examine the same carefully, and if found correct, shall request the Auditor to draw the warrant.

On the 18th day of February, 1897, (Code, 1896, p. 214) an act was passed, to provide for the payment out of the convict funds, certain items of costs, in felony cases, to fix the amount of said items, to prescribe the extent to which such costs will be paid, and the manner of paying them. Among the items named, we find that when “the conviction is secured by a solicitor other than a solicitor who is paid a salary by the State, or when the solicitor is paid a salary by the county, such bill of costs shall also include the solicitor’s fee which is now or may be allowed by law.’’ That the clerk of the court, in which the conviction is had, shall make out a bill of the costs in the case, make oath to its correctness and that the same is a legal charge against the defendant, and forward it to the President of the Board of Inspector’s of Convicts, whose duty it is, to carefully examine the same, and if found correct, he shall request the Auditor in writing to draw his warrant upon the Treasurer for its payment to the clerk out of the convict fund. We have stated the substance of all the enactinents touching the subject under consideration, notwithstanding by doing so it involved repetition.

It appears from the record in this case that the only reason assigned by appellant for refusing to give the appellee the written request to the Auditor, was upon the ground that the bill of costs presented or forwarded to him contained a solicitor’s fee for services rendered by a solicitor pro tern. We must conclude, therefore, that the bill as presented was unobjectionable in all other respects.

It requires no argument to show that it was the manifest intention of the legislature, from what appears in the foregoing enactments, to compensate solicitors pro tem. for services rendered, and that such compensation is fixed in amount by section 4561, cited supra. Indeed, in every instance, where the question of compensation for services rendered by solicitors was being legislated upon, there is a clear expression of legislative intent to provide compensation for services rendered by a solicitor pro tem.

The contention involved in the second inquiry stated in the first part of this opinion, that appellant was not required to make the written request of the Auditor until an execution against the defendant is returned “No property found,” is untenable. This contention arises out of a misconstruction of section 4570 of the Code of 1896, in which the provision is found providing for the payment of certain fees after return of execution. This section is substantially the same in all the Codes, since the penal Code of 1866. We find it first in a codified form in the Code of 1866. In each of these Codes, it has reference to the fees allowed sheriffs, and regulates their manner of payment. Besides, it only purports to regulate the mode, in those cases, where no other provision is made by law for their collection. At the time of its first codification, a very different system for the hiring of convicts and the collection of costs taxed against them prevailed in this State. We have no doubt that this section has no bearing upon the questions involved in this case, and, therefore, can exert no influence in its consideration. It was the plain duty of appellant under the facts in this case to request the Auditor, in writing, to issue the warrant upon tide treasurer to appellee to pay the cost bill presented to him, including the fee for services rendered by the solicitor pro tem. in securing the conviction.

Judgment affirmed.