While a majority of the court, in the companion case of Henry v. Wiggins (Ala. Sup.) 92 So. 108,1 held that the construction of section 4 of the Local Acts of 1915, p. 374, restricting salaries within the net earnings of the office, did not apply to deputies, a majority then held, and now hold, that it applies to the sheriff, and that his salary shall not exceed the fees, commissions, and charges earned and collected by him and paid into the treasury during his term of office, less the cost of the conduct and operation of the office. The record in this case shows that, at the time the payment of the warrant in question was refused by the appellant, the expense of the office, already paid out, was over $30,000 in excess, not only of all fees, etc., paid in, but of all that had been actually earned.
Section 4 of the act provides that —
The "board of revenue may pay the monthly salaries of the officials mentioned in this act in anticipation of fees actually earned for services rendered."
This simply means that, if the officers have actually earned fees and commissions, though not at the time collected and paid into the treasury, in excess of the cost of operating the office, the salaries may be paid, but does not mean that the salaries may be paid in anticipation of fees to be earned in the future. Had the Legislature meant to authorize an anticipation of fees to be earned, it would have said, "in anticipation of fees to be earned during the term," or have used words of like import, instead of saying "fees actually earned for services rendered," meaning, of course, services already rendered and not to be rendered in the future.
The trial court erred in awarding the mandamus; its judgment is reversed, and one is here rendered dismissing the petition.
Reversed and rendered.
ANDERSON, C. J., and SAYRE, SOMERVILLE, GARDNER, and THOMAS, JJ., concur.
McCLELLAN and MILLER, JJ., dissent.
1 Ante, p. 251.