The appeal is by the state in equity for sustaining a demurrer to the amended bill.
It is established in this jurisdiction that the Division of Examiners of Public Accounts of the State Department of Finance is authorized to examine and audit the records and accounts of state and county offices as indicated and that a justice of the peace is a public officer. Code 1940, Tit. 55, § 156 et seq.; State v. Tuscaloosa County, 233 Ala. 611, 172 So. 892; State v. Albright, 155 Ala. 141, 46 So. 470; Thornhill v. Cowart,205 Ala. 455, 88 So. 563; Montgomery v. State, etc., 107 Ala. 372,17 So. 157. The suit was based upon such report.
An important ground of demurrer is the insistence that a justice of the peace is entitled to deduct fees from the funds indicated for the sheriff as authorized for the constable of his court by the provisions of Code 1940, Tit. 13, § 418.
In a case like this a bill filed by authority of law may be maintained without alleging any special equitable grounds. Code 1940, Tit. 7, §§ 72, 73, 74 and 75.
In Bradford v. State, 201 Ala. 170, 77 So. 696, 697, the bill was filed in the name of the state by the attorney general against the sureties of the official bond of a county treasurer to recover school funds which had come to the treasurer's hand and lost by deposit in an insolvent bank. The right of the state to maintain a bill for recovery of such county funds was questioned by demurrer, the holding being that such a suit may be instituted in the name of the state, "whether the funds in question be considered state, or county funds." To like effect *Page 131 was the decision in National Surety Company v. State, 219 Ala. 609,123 So. 202, wherein it was held that complainant was not required to make allegation of any special grounds for equitable interference.
In the case at bar the attorney general is proceeding upon the direction of the governor under Code 1940, Tit. 7, § 73. In Montgomery, Supt. of Banks, v. Sparks, 225 Ala. 343,142 So. 769, the holding was to the effect that though the statute authorized the governor to cause suits to be brought for the recovery of public funds, this did not conflict with the statute authorizing the attorney general to institute suits for the protection of the state. Code 1940, Tit. 55, § 169; Code 1923, §§ 854, 5644, 5647, Code 1940, Tit. 55, § 229; Tit. 7, § 72, 73. The court said that the attorney general could act independently in the one case but could act only upon direction of the governor in the other. That there was no conflict in the statutes involved. State ex rel. Sossaman v. Stone, County Treasurer, 235 Ala. 233, 178 So. 18; Colbert County v. Tennessee Valley Bank, 225 Ala. 632, 144 So. 803. The demurrer directed to this phase of the pleading was properly overruled.
Ground of demurrer to the effect that it did not sufficiently appear that Norwood received the moneys or any part thereof in his official capacity is not well taken. It is averred that the money sought to be recovered from Norwood, the Justice of the Peace, was for funds collected by him as justice of the peace and paid to the sheriff of the county for fees for execution of process in criminal cases where the defendant was acquitted in that justice's court or was insolvent and unable to pay the same after conviction in such court. In Culver v. Sparkman,25 Ala. App. 544, 149 So. 877, 880, the litigation was by a constable against the judge of the inferior court for fees which he had earned as constable for serving process issuing from such court, and it was declared: "There is no merit in the contention that the judge * * * did not act in his official capacity in the collection of fines and forfeitures coming into his hands as judge of said court. Money coming into the hands of the judge in payment of fines and costs are received by, and accounted for by, the judge in his official capacity. * * *" Grounds of demurrer directed to such phase of the instant bill are without merit.
Defendant's twelfth ground of demurrer will be set out in the statement of facts. That insistence is that the justice of the peace was entitled to deduct fees for the sheriff as he was for the constable under the authority of Title 13, § 418, Code 1940. The provision of statute urged by appellee to have application comes to us unchanged from the Act of February 26, 1875, Acts 1874-75, p. 181; Code 1876, § 731. Pertinent part of that statute is: "* * * To collect all fines imposed where the defendant is not sentenced to jail or hard labor to pay same; or an appeal is taken. He may deduct from fines and forfeitures collected by him, the amount due for his fees and those of theconstable in cases in which the defendant was acquitted, orinsolvent and unable to pay after conviction, a sum not to exceed fifty dollars for any calendar month; he shall pay the remainder of the fines and forfeitures collected by him to the treasurer or to the custodian of the county funds where there is no county treasurer, same to be paid semi-annually on the first Mondays in January and July of each year, and make his report at the next session of the grand jury; if he should fail to make such payments as herein provided, he shall forfeit all right to make any deduction from his collections for cost due him and the constable for fees as herein provided. * * *" [Italics supplied.]
Title 11, § 79, Code 1940, is to the effect that the law of costs must be deemed and held penal, and no fee must be taken except in cases expressly provided by the law. There are many decisions to such effect. Troup v. Morgan County, 109 Ala. 162,19 So. 503; Greene County v. Hale County, 61 Ala. 72; Cabler v. Mobile County, 230 Ala. 118, 159 So. 692; Lee v. Smyley,16 Ala. 773.
The appellee insists that Title 54, Code 1940, § 18, must be read in connection with Tit. 13, Code 1940, § 418, for a reasonable construction of these two statutes. The object of the specific provisions of the statutes and that touching the question before *Page 132 us is contained in Title 13, § 418, Code 1940, and is to compensate the justice of the peace and officer serving process in his court for matters in which the justice has final jurisdiction, whether that officer be the constable or the sheriff; that the law is not concerned with what official serves the process, and only that he receives the payment out of the available fund; and that the allowance of $50 per month is made, and so long as the service for which the allowance is made has been rendered, payment is required, and may be made by the justice out of the specific funds indicated and in his hands.
In Sanders v. Young, 220 Ala. 94, 124 So. 225, and in Culver v. Sparkman, 25 Ala. App. 544, 149 So. 877, and in State v. Smith, 31 Ala. App. 533, 19 So. 2d 546, the statute was applied to compensation of the constable serving process from an inferior court, whether that inferior court be a justice of the peace or an inferior court established in lieu thereof. Section 3850 of the Code 1923, of which this court was speaking in Sanders v. Young, supra, is identical with the present section 418, Tit. 13, Code 1940. It is said in the Sanders case as to the specific fees of the constable or sheriff that they were not required to be paid into the treasury or the custodian of the county funds, being the property of such individual, should be given over to him by the officer of that court if they come into his hands. It is true that in this Sanders case the specific Local Act of 1911, p. 220, provided that the sheriff and coroner are made officers of said court, and that it was made the duty of such official to execute and make return of process. This was no more than is required of the sheriff under the long prevailing act in this jurisdiction. Code 1940, Tit. 54, § 18.
The last headnote in the opinion of the attorney general of October 11, 1939 [Opinions, October, November and December, 1939, p. 78-84] is as follows: "Sheriffs — Constables — Word 'constable', as used in Section 3850, Subsection 2, Code of 1923 [Code 1940, Tit. 13, § 418] held not to include sheriff." The attorney general said: "In my opinion your seventh inquiry must be answered in the negative. It is true that Section 10199 of the Code [Code 1940, Tit. 54, § 18] authorizes sheriffs to execute all mesne and final process which is required to be served by constables. But this provision is not authority for the payment of the fees of the sheriff out of the Justice of the Peace Insolvent Cost Fund provided by Section 3850(2) of the Code of 1923. Said section specifically limits the payment of insolvent costs from said fund to the Justice of the Peace and to the Constable. There is no authority of law for the payment of the fees of the sheriff accruing on account of services in connection with Justice of the Peace Courts from said Justice of the Peace Insolvent Cost Fund."
The attorney general did not have before him the decision in Sanders v. Young, 220 Ala. 94, 124 So. 225, rendered in 1929. In that case the fees of the constable only were for consideration under a local act of 1911 [acts 1911, p. 220], containing the following: "The constable of precinct one, the sheriff and coroner of Madison county, shall be the officers of said court and they are authorized and it is hereby made their duty to execute and make due return thereof of all processes issued out of said court, and they shall be entitled to receive the same fees and compensation as now or as hereafter may be allowed for like services."
It is noted in the opinion of the attorney general that Section 18, Tit. 54, Code 1940, was considered in connection with Code § 418, Tit. 13, Code 1940. The general law has long prevailed, coming to the last code unchanged. We do not entertain the view that the decision in Sanders v. Young,220 Ala. 94, 124 So. 225, is decisive of this case.
The rule touching costs in cases of felony has been recently well stated in White v. Lyon, 246 Ala. 279, 20 So. 2d 523 (citing Trapp v. State ex rel. Burgin, 122 Ala. 394,25 So. 194), wherein it is indicated that sheriff's fees on preliminary trials are those stipulated by law for such officer, and are entitled to be paid out of the state convict fund to the extent enumerated in § 69, Tit. 45, Code 1940.
Prior to the passage of the Act of Feb. 26, 1875, Acts 1874-75, p. 181, now embodied in Code 1940, Tit. 54, § 18, sheriffs *Page 133 were without authority to serve anything but initial criminal process, issued by a justice of the peace, such as warrants of arrest. They were authorized to serve warrants of arrest by § 5209, Code 1896. The purpose of the Act of 1875 was to confer authority on sheriffs to serve process issued by justices of the peace, which they did not then have, and provided that for such services they should "receive the same fees and compensation therefor as constables except in cases of forcible entry and detainer and unlawful detainer"; and made the sheriff and the sureties on his official bond liable for any abuse of the process that he might execute under that act, now said § 18.
The legislative intent is clear that the statute was intended to confer authority for the services, to provide compensation in the form of fees such as constables were authorized to receive, and to be received from the same sources provided or set up for compensating constables for their services, when the constable served the process issued by a justice of the peace in any case civil or criminal in which the justice has final jurisdiction, including the execution of warrants of arrest, and service of subpoenas. That it was not intended for the sheriff to be compensated in the same case in his capacity as sheriff for some of the service and as constable for other features of it. In such a suit the sheriff in serving all process is acting as a constable under authority of § 18. We should not construe § 18 so as to cause the sheriff to act in a dual capacity in the suit and in the same court, and be paid in a different way for the services. The Trapp case was dealing with preliminary trials, essentially relating to the circuit court, and if it is so understood as to prevent this interpretation of § 18, to that extent it should not be followed, for it was not considering a situation such as is now in hand. Otherwise stated, the sheriff in performing the service is pro hac vice the constable.
Construing the averments of the bill most strongly against the pleader, the services satisfied by appellee Norwood, out of the fund set up by § 418, Title 13, Code 1940, were fees which the sheriff earned in the service of process as authorized by § 18, Title 54, Code 1940. The demurrer specifically takes the point and was, therefore, properly sustained.
Affirmed.
GARDNER, C. J., and BROWN, FOSTER and STAKELY, JJ., concur.
LIVINGSTON, LAWSON and SIMPSON, JJ., dissent.
The foregoing opinion was prepared by Mr. Justice Thomas, now deceased, and upon consideration of the cause is adopted as the opinion of the court. Accordingly the decree of the lower court is affirmed.