White v. Burgin , 113 Ala. 170 ( 1896 )

MoCLELLAN, J.

The caption of the act, approved February 18, 1895, “To regulate the management of State and county convicts,” as the word “management” therein has been construed and defined by this court, is not sufficiently broad and comprehensive to embrace the provisions of sections 84 and 85 'thereof, relative to the payment by the State of certain costs incurred in the prosecution, trial and conviction of convicts. These provisions are indeed obviously even more foreign to the “management of convicts” than that part of section 94, which provides when the sentence shall be to the penitentiary and when to hard labor for the county, and. which was held to be unconstitutional, because not expressed in the title of the act, in Ex parte Gayles, 108 Ala. 514; and upon the considerations adverted to in that case, and the authority of it, and we hold that sections 84 and 85 of said act are unconstitutional and void.

The caption of the act approved February 14, 1893, in relation to convicts is as follows : ‘ ‘To create a new convict system for the State of Alabama, and to provide for the government, discipline and maintenance of all convicts in the State of Alabama.” The second clause of this caption, “and to provide for the government, disciple and maintenance of all convicts in the State of Alabama, ” is, in substance, the same as the entire caption of the act of 1895, “To regulate the management of State and county convicts.” So, that the difference between the captions of the two -enactments lies in the absence from the caption of the later act of the first clause in the caption of the earlier one, viz. : “To create a new convict system for the State of Alabama.” These words are manifestly much broader than either the second clause of the caption in which they occur, or the whole caption of the act of 1895. Indeed, they are sufficiently comprehensive to cover any provision for the government, discipline and maintenance of convicts, since these things are all suggested by the words “convict system, ” and are, indeed, but necessary component parts of any convict system ; and beyond that, they manifestly embrace every provision necessary or proper in and to the creation, establishment and administration of a perfect and complete system for the confinement, occupation, &c., &c., of convicts. The labor of convicts, the products or proceeds of their labor and the disposition of such products or proceeds, are all matters naturally, and even necessarily, entering into the idea of any convict system, any statutory effort to provide a convict system ; and while no particular disposition of the proceeds of convict labor can be said to be a necessary part thereof, yet any disposition the legislature would see proper to make would be cognate to the general purpose of establishing a convict system, and complementary to the idea involved in the expression of that purpose, and therefore covered by and embraced in the title, though not expressed in words thereby, within the intent and meaning of the constitutional requirement that each act shall contain but one subject, Avliich shall be clearly expressed in its title.-Ballentyne v. Wickersham, 75 Ala. 533; Const. Art. IV, § 2. And it is not open, we think, to serious doubt that section 54 of the act of 1893, providing for the payment of the costs of conviction, it being the clear intent, if not the express provision, of the statute that such costs should be paid out of the fund arising from the labor of convicts, is cognate to the purpose expressed in the caption. and hence is embraced in the title to the act.

The act of February 25, 1889, “To provide for the payment of costs on convictions of felony, where the defendant is sentenced to imprisonment in the penitentiary, ’ ’ is wholly inconsistent with the provisions of section 54 of the act of 1893, notably in respect of the conditions, which the Auditor is authorized to draw his warrant on the treasury for the payment of such costs ; the later act requiring the bill of costs to be sent to tbe superintendent of convicts, and providing that after the convict has been received in the penitentiary, that officer, if he finds the bill of costs to be correct, “shall request the Auditor to draw his warrant on the State Treasurer” for the correct amount of said cost bill — and this request is the Auditor’s sole authorization to draw such warrant — while the act of 1889 provided that the clerk should forward the cost bill directly to the Auditor, that he should carefully examine the same, and, if he found it correct, he should draw his warrant on the treasury for the amount of it, &c., &c. Being thus, and in other respects, inconsistent with the act of 1893, the act of 1889 was impliedly, if not expressly, repealed by it. See section 60.

Whether the act of 1893, in respect of its 54th section, was in turn repealed by the act of 1895, we need not decide. Whether so or not, the petition for mandamus in this case does not present a case for the awarding of that writ. If the act of 1893 was not so repealed, it is the law applicable to the case, and the petition not only fails to show that the bill of costs was forwarded to the superintendent of convicts, and by that officer forwarded to the Auditor, with a request for its payment, but to the contrary, shows affirmatively that the bill was forwarded to the Auditor in the first instance, and that the mandamus is sought because he, on such presentation, refused to draw his warrant for its payment. Assuming that section 54 of the act of 1893 is still of force, the Auditor was without any authority to draw his warrant in the absence of a request by the superintendent of convicts, and his refusal was perfectly proper. On the other hand, if section 54 of the act of 1893 was repealed by the act of 1895, there is no law authorizing the Auditor, under any circumstances, to draw his warrant for the payment of the costs of convictions, when the sentence is to the penitentiary.

The lower court erred in overruling the demurrer to the petition, and in awarding the writ prayed for therein. The judgment below must be reversed, and a judgment will be here entered sustaining the demurrer and dismissing the petition.

Reversed and rendered.