Peagin v. Comptroller , 42 Ala. 516 ( 1868 )

JUDGE, J.

§ 788 of the Penal Code — which is the same as § 4339 of the Revised Code — prescribes the “fees and allowances ” to which sheriffs are entitled íd criminal cases, among which are the following:

“ Eor victualing white prisoners in jail, to be paid by the defendant, on conviction, or by the State, if he is insolvent, or is not convicted, for each day, fifty cents.”

“ Eor victualing free person of color, to be paid in same manner as fees for white persons, for each day, forty cents.”

By the act of December 7, 1866, (Sess. Acts, 105,) it js provided “ that all the fees now allowed by law to be charged by county officers, shall be increased fifty per cent., so far as the county of Barbour is concerned;” the act not applying to “ sheriff’s commissions for the collection of money on execution, or other legal process that may come into his hands for the collection of money.”

The sole question for our determination is, whether the act last above cited increases the compensation of the sheriff of Barbour county fifty per cent, for victualing prisoners in jail in criminal cases ?

The prior law, as we have seen, gave to the sheriff “fees and álloioances” in criminal cases; while the subsequent statute refers to “fees” only — increases the fees of the sheriff, but says nothing of the allowances.

Is there any distinction between the two terms; or did the legislature intend to make such distinction ?

It may be conceded that the word fee is ample enough in its signification to cover an allowance of specific compensation to a sheriff for victualing prisoners in criminal cases; but with this concession the question still recurs, what did the legislature intend by the use of the word “allowances,” in connection with the word “fees?”

To answer this question, we must look at the act itself in which the terms are used.

Under the head of “ fees and allowances ” to sheriffs in criminal cases, many items are specified in the statute which we deem it unnecessary to mentioh in detail. After enumerating them all with particularity, the Code specifies in what manner they shall be collected and paid; and in providing for their collection and payment, certain of them are specified as fees only, viz: “ the fees which accrue against defaulting persons, witnesses and bail;” “ the fees which accrue on the removal of a convict to the penitentiary;” “the fees for services rendered in each criminal case,” &e; but the claims of sheriffs for victualing prisoners are not called fees; they are designated as accounts; and a mode is provided for the proof and payment of “ the accounts due to sheriffs tohich are payable by the State.” Thus we have a fair exposition in the act itself of the legislative intent in the use of the phrase “ fees and allowances,” by which it appears to be reasonably clear and certain that sheriff’s accounts for victualing prisoners do not come under the denomination of fees, but fall under the head of alloiuances. The word allowance means, according to Webster, “ to put upon allowance, to restrain or limit to a certain quantity of provisions or drink,” &c.

After providing how the accounts of sheriffs for victualing prisoners shall be proved and paid, the Code proceeds as follows: “No sheriff must be paid out of the State treasury any fee or allowance whatever, on account of any prisoner who has escaped from his custody,” <fcc; thus keeping up the distinction between fees and allowances, and using, as we understand it, the latter in contradiction to the former ter n. — See Revised Code, § 4840.

We can not hold, then, that the act of December 7,1866, increases the allowances of the sheriff of Barbour for victualing prisoners in criminal cases; that act is restricted in terms to fees — increases the fees only, of the county officers of said county, fifty per cent.

A contrary construction would make the act increase the compensation of the tax assessor, who is a county officer, fifty per cent., and would make it also increase the compensation of úhe tax collector fifty per cent.; and would, perhaps, increase, in like proportion, the compensation of other county officers not named. We can not believe such to have been the legislative intention; and such intention would have to be clear and unambiguous bofore we could so hold.

We are referred to other and prior acts of the legislature — for instance, the act of August 27, 1863, p. 24 — to show that the legislature has, in such acts, expressly used the term fees, as applicable to the compensation of jailors for victualing prisoners. But the intention of one legislative body in the use and application of the term, in an act passed by it, is not conclusive as to the intention of another and different legislative body in the use of the term in the passage of another and different act. True, it is proper to look at such a circumstance, in arriving at a correct interpretation of the subsequent law; but still that interpretation must be such as is demanded by tbe terms of tbe act itself, if they are clear and unambiguous.

Tbe judgment of tbe circuit court is affirmed.