Calhoun County v. Watson , 152 Ala. 554 ( 1907 )

ANDERSON, J.

It appears that section 1372 of the Code of 1896, in providing for ex officio services for circuit clerks, says: “Such sum as may be allowed by the court of county commissioners, not exceeding per an-num $200” — making an exception as to the amount to the extent of $500 for Calhoun and a few other counties. If this section stood alone and controlled in the case at bar, it might be that the sum to be allowed would be discretionary with the commissioners’ court in so far as it did not exceed the maximum. But section 1363 of the same Code, in providing for the presentation and allowance of claims for ex officio services, says: “The compensation allowed shall be the fair and reasonable value of the services, m no ease to exceed two hundred dollars per annum, unless otherwise provided by law.” There is an apparent conflict between these two sections; for one leave's the sum to be allowed to the discretion of the commissioners’ court, while the other requires them to allow such compensation as is the fair and reasonable value for said services. In tracing the history of these two sections, we find that section 1363 is of more recent enactment, and must be construed to modify and amend section 1372, so far as there may be any necessary conflict or incongruity between the two sections. — Gunter v. State, 88 Ala. 96, 3 South. 600; Steele v. State, 61 Ala. 213; Zaner v. State, 90 Ala. 651, 8 South. 698. The quotation from section 1372 of the Code of 1896 was contained in the Code of 1852 as section 3043, and was continuously brought down to the code of 1896, while section 1363 appears for the first time in the Code of 1876 as section 5025, and was amended before getting into the Code of 1896. The plaintiff, therefore, had the right to sue the county for his ex officio services, and to recover such sum as was fair and reasonable compensation for same, not to exceed the maximum, upon averment and proof of a compliance with section 13 of the Code of 1896. — Shinbone v. Randolph County, 56 Ala. 183; Schroeder v. Colbert County, 66 Ala. 137. The demurrer proceeding upon the idea that plaintiff could not maintain this suit was properly overruled. The authorities cited by counsel for appellant would doubtless apply if section 1372 stood alone or controlled in the case at bar, but have no application to section 1363, which must control.

The second count of the complaint may be bad for failing to aver that the reduction had been refused. — Code 1896, § 13; Looney v. Jackson County, 105 Ala. 597, 17 South. 105. But this omission was not properly raised by the demurrer. The ninth ground attempts to point out the defect, but it complains of a failure to allege what amount was allowed and refused. The complaint does aver what amount was allowed, and we cannot put the trial court in error for overruling this demurrer.

The trial court erred in permitting the plaintiff to prove the item charged for attending court. The law requires the clerk to attend during the session of court. Indeed, the circuit court without the clerk would be like the play of “Hamlet” without the ghost; but he is in effect paid either under the fee bill or through the items he has charged for as ex officio services. Nor is he entitled to anything for keeping the minutes, as that is but an incident to the discharge of the duties for which he is already compensated by the fee bill. The trial court did not err in permitting proof of the other items of the account, nor in so much of the oral charge as was excepted to by the appellant.

There was no error in giving chage 1, requested by the plaintiff. It makes no service an ex officio charge, unless it was for the performance of some duty required by law, and then only in case no fee was specified, and upon the further condition that it could not be taxed as cost against any plaintiff or defendant. There was no error in giving charges 2 and 13, requested by the plaintiff. They are fully discussed in the first part of the opinion.

The purpose of the law is to afford fair and impartial trials to all litigants, which can only be accomplished by absolutely unbiased juries, and trial judges cannot be too zealous in ridding the jury of men whose interest and environment is calculated to sway them in the slightest clegree. The fact that the jurors excused by the court were employed by the commissioners may be but a slight incentive for bias, yet it was the action of the commissioners that was being assailed by this suit, and we think the action of the court was authorized by section 5020 of the Code of 1896. This section gives the trial judge much discretion in excusing jurors for reasonable and proper cause, and we are inclined to commend, rather than criticise, the action of the trial judge in excluding these jurors.

For the errors above designated, the judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

Tyson, C. J., and Dowdell, and McClellan, JJ., concur.