Troup v. Morgan County , 109 Ala. 162 ( 1895 )

HARALSON, J.

Section'4 of the act creating the city court of Decatur, (Acts 1888-89, p. 316) provides, the clerk and register of said court “shall have the same powers and perform all the duties which may be lawfully exercised or performed by clerks of the circuit courts and registers in chancery in this State, including the power to issue attachments and other extraordinary process. His fees shall be the same as those allowed by law in like cases to said clerks and registers.”

Fees allowed to clerks .of the circuit court are specified, for each particular service, in section 3682 of the Code, which concludes with the general provision: “Performing official duties not otherwise provided for, to be paid from the county treasury, such sums as maybe allowed by the court of county commissioners, not exceeding per annum $200.” Reference is here made evidently to what are called ex-officio services. Section 3675 provides : “Persons entitled to an allowance by the court of county commissioners, for what are commonly called ex-officio services, shall, before the allowance is made, itemize such services, and make oath there: o, as in the case of other claims against the county.” It will not be denied that it was competent for the legislature to make the compensation of the clerk of said court larger or smaller than the compensation provided for clerks of other courts, or registers in chancery; nor will it be denied that he can receive only such compensation for services as are provided in the act creating said court. And, it will be seen, the only compensation therein provided for him, for any services he may officially perform, is contained in the words, — ‘ ‘His fees shall be the same as those allowed by law in like cases to said clerks [of the circuit court] and registers [in chancery] .” It appears, also, from the statute we .have above referred to and quoted, in reference to compensation that may be allowed to circuit court clerks, “for what are commonly called ex-offixio services,” that no provision is made for special compensation therefor, but the persons rendering them are to be paid, “such sum ás may be allowed by the court of county commissioners, not exeeding per annum $200.” Compensation for these ex-officio services can not, by any liberality of construction, be included in the word “fees.” If then, the statute creating said court makes no provision for the compensation of its clerk and register, except the fees he is to receive, he can receive no other pay for official services, except that which may be classed as “fees.” What this word means has received in this State judicial construction; and it is well settled that statutes giving costs are not to be extended beyond their letter, but are strictly construed, because costs are in the nature of a penalty. The statute itself provides, that “the law of fees and costs must be held to be penal, and no fee' must be demanded or received except in cases expressly authorized by law.” Code, § 3665. In practice, while costs and fees are different in their nature, — the one being an allowance to a party for expenses incurred in prosecuting or defending a suit, the other, compensation to an officer for services rendered in the progress of. a cause, — they are placed for their allowance upon the same strictness of construction of the statute allowing them ; and' when any public officer demands a fee for services rendered, he must point to some clear and definite provision of the statute, which authorizes him to make the charge or demand.— Tillman v. Wood, 58 Ala. 578; Bradley v. The State, 69 Ala. 318; Williams v. Flowers, 90 Ala. 136; Dawson v. Matthews, 17 So. Rep. 19.

We must hold, that in declaring that the city court clerk shall have the same powers and perform all the duties which may be lawfully performed by clerks of the circuit court, or register* in chancery, the statute referred to such powers and duties as have been given or imposed upon these officers, by virtue of their officers, and which attach and belong to them, respectively, and not to such powers and duties as have been conferred specially upon them by independent statutes, and which might have been conferred upon some other persons as well, without any infringement upon the full and free exercise of the ordinary statutory powers and duties of these officers. These outside duties which are imposed upon circuit court clerks, especially, commonly called ex-officio duties, do not attach or belong to the office or to ordinary and general duties of such clerks. Except for special statutory provision, they would not be thought of as attaching to the office. Enough has been said to show that the plaintiff has no right of action for the services he claims to have performed, and there was no error in sustaining the demurrer to the complaint.

Affirmed.