Justices of the Peace are constitutional officers. They constitute part of the Judicial Department of this State. Sec. 1, Art. V, Constitution.
A constable is a constitutional county officer, and he is required to perform such duties and under such regulations as may be prescribed by law. Sec. 23, Art. V, Constitution.
A Justice of the Peace has power to issue process for the arrest of all persons charged with felonies and misdemeanors not within his jurisdiction to try, and make the same returnable before himself or the County Judge for *Page 9 examination, discharge, commitment or bail of the accused. Section 22 of Article V, Constitution.
The regulation of fees of officers, county and State, is a legislative matter to be accomplished by laws of a general and uniform operation throughout the State. Sections 20 and 21, Art. III, Const.
The duties which an officer, whether State or County, are required to perform rest upon him whether any compensation to him for his services is provided by law or not. Having accepted the office he is required by such act to discharge or perform the duties of the office even though no provision is made by law for his compensation by way of salary or fees.
A constable, into whose hands has come lawful process from a Justice of the Peace for the arrest of a person charged with a criminal offense not within the jurisdiction of the Justice of the Peace to try, cannot legally refuse to serve the process by refusing to arrest the person charged with the crime and refusing to bring him before the Justice of the Peace for discharge, commitment or bail, because the Legislature has failed to provide compensation to the constable for the particular service.
Section 8490 C. G. L. 1927 (Chapter 5651, Laws of 1907) was construed by this Court in Simmons v. State, 71 Fla. 340,71 South. Rep. 278, as applying only to those classes of crimes where the complaining witness has suffered special damage in his own person or private property. The phrase "crimes of a public nature" was there used to distinguish between crimes where the complaining witness has suffered special damage in person or property, and crimes in which the complaining witness has not suffered such special damage.
The case at bar is one in which the complaining witness *Page 10 suffered special damage in his private property, see Transcript of the Record, page 7, a case in which his automobile was alleged to have been stolen by the accused.
The case was clearly within the terms of the statute, Sec. 8490, C. G. L., supra, which provides that Justices of the Peace shall require payment in advance or security for costs of process, service of the same and examination, unless the party applying for the warrant shall make affidavit of insolvency and substantial injury to person or property.
That statute was not observed by the Justice of the Peace, but he issued the warrant and the constable served the process, which it was his duty to do.
The grand jury returned no true bill against the accused, and he was discharged from custody.
The constable sought a mandamus against the County Commissioners to require them to pay the constable from the fine and forfeiture fund a certain sum of money as lawful costs due for the service of the process issued by the Justice of the Peace. An alternative writ was issued, a motion to quash it denied, and a peremptory writ issued. To that judgment the county took a writ of error.
Section 8488 C. G. L. 1927 provides that the county shall not pay the costs of a committing trial except the costs for executing the warrant where a person is held on a criminal charge by a committing magistrate and no indictment is found against the accused. That section impliedly provides that the county shall pay the constable for executing the warrant in such circumstances, but it imposes no clear duty upon the county to do it.
Section 9 of Article XVI of the Constitution requires the counties to pay all legal costs and expenses in criminal cases prosecuted in the name of the State when the defendant is insolvent or discharged under such regulations *Page 11 as shall be prescribed by law. This was not a case prosecuted, and no statute provides for the payment by the county of the costs for executing the warrant.
While it is the duty of sheriffs and constables to execute all warrants coming into their hands which are valid on their face, and in refusing willfully and corruptly to do so they are subject to certain penalties, Sec. 7522 C. G. L. 1927, Sec. 4594 C. G. L. 1927, there is no statute requiring the counties to pay their fees in such circumstances as those described in the application for the writ of mandamus. If such obligation rested upon the counties it would be within the power of Justices of the Peace to wreck the finances of a county with little effort.
The theory that because a State or county officer performs services and discharges the duties which devolve upon him by reason of the occupancy of the office, therefore the county is required to pay the fees allowed by law for such services, is a convenient doctrine for the sheriffs' and county officers' organizations, but I am unable to say that any legislative enactment exists which covers such a case as the one presented here. It is a subject for legislative consideration.
Mandamus should not issue until a clear ministerial duty to perform the act exists, and the person whose duty it is to perform the act declines to perform it, and where the person seeking the writ has a clear right to the performance of the act. See Myers v. State, ex rel. Thompson, 81 Fla. 32,87 South. Rep. 80; Tampa Water Works Co. v. State, ex rel. City of Tampa, 77 Fla. 705, 82 South. Rep. 230.
The writ should not have been granted in this case because the constable has an adequate legal remedy against the county by action against it for the payment of his costs if any such duty rests upon the county.
*Page 12I think the judgment should be reversed.