On Rehearing. It is insisted by the respondent that the proviso appearing in Section 1 of the Acts of the Legislature of 1936, Ex.Sess., p. 30, should only apply to and modify that Act so as to make it read: "No Solicitor's fee shall be taxed or collected for the service of a Solicitor in the Circuit Court, when the Solicitor's fee in such Court is the same as the Solicitor's fee in the County or Inferior Court." This is not the wording of the enactment, but is insisted upon by the appellee in this case.
We are familiar with the general rule which provides that: "The operation of a proviso is usually and properly confined to the clause or distinct portion of the enactment which immediately precedes it, and does not extend to or qualify other sections, unless the legislative intent that it shall so operate is clearly disclosed." But there is an exception to this rule; when from the context, and a comparison of all the provisions relating to the same subject-matter, it is manifest, that the object and intent were to give to the proviso a scope extending beyond the section, and effect beyond the phrase immediately preceding, it will be construed as restraining or qualifying preceding sections relating to the subject-matter of the proviso, or as tantamount to an enactment in a separate section, without regard to its position and connection. Mayor of Cumberland v. Magruder, 34 Md. 381; United States v. Babbit, 1 Black 55, 17 L. Ed. 94; Wartensleben v. Haithcock, 80 Ala. 565,1 So. 38; National Bank of Commerce v. Cleveland, D.C., 156 F. 251; Cox v. Hart, 260 U.S. 427, 43 S. Ct. 154,67 L. Ed. 332; McDonald v. United States, 279 U.S. 12, 49 S. Ct. 218,73 L. Ed. 582. There are many more authorities not here cited to the same effect.
In the instant case all of the various statutes set out in the original opinion, together with other statutes, relate to solicitor's fees and the way and manner in which they are to be taxed as costs against persons convicted of crime. Considering all of these together with those statutes covering such fees into public treasury, either of the State or of the county, we are of the opinion, and so hold, that it was the intent of the Legislature to prevent the collection of double fees whatever the amount, and the Local Statute in Jefferson County having limited the solicitor's fee in this case to $2.50, there is no authority of law for taxing a greater fee on appeal to the circuit court.
The application for rehearing is overruled, and it is ordered that the petitioner be discharged from custody.
Overruled.