Torbert v. Hale County , 131 Ala. 143 ( 1901 )

TYSON, J.

The complaint contains two counts. The first seeks to enforce a liability against the county for services rendered by the plaintiff, in his official capacity as sheriff, for attendance upon the county court. The second, for services rendered for attendance upon the circuit court during and while that court ivas engaged in the trial of criminals. ' A demurrer' going to the right of the plaintiff to have compensation for the services rendered by him was sustained to each of the counts.

“The law of fees and costs must be held to be penal and no fee must be demanded or received except expressly authorized by law.” — Code § 1353. An officer demanding fees for services rendered must point to some clear and definite provision of the statute, which authizes, the demand, and the compensation cannot be allowed, unless it is conferred by a strict construction of the language employed in the statute. Statutes giving costs or fees will not be extended beyond their letter. — Troup v. Morgan County, 109 Ala. 162, and cases cited. It is of no consequence that the law imposes the duty upon the plaintiff to perform the services' alleged to have been performed if there is no provision compensating him for it. “Those who accept public offices, which require them to render services to the State, must take the office own onere — the rendition of such services gratuitously, unless, by express statutory provision, compensation is fixed, and an express liability for its payment imposed.” — Pollard v. Brewer, 59 Ala. 130.

Two sections of the Code are relied upon as fixing the compensation claimed by plaintiff in the first count and as imposing a liability upon the defendant. The first, to which we will now advert, is section 4596 of the Code. Confessedly, this section imposes the duty upon the sheriff or deputy sheriff to attend upon the sittings of the county court; and also provides, in the event that either of them fails to attend, for the appointment by the court of some suitable person to per-for the duties which they would be required to perform, if present, and for compensation to be paid to that person. Clearly, under the rule requiring a strict construction, the provision for compensation cannot be extended to the 'sheriff or his deputy. Indeed, by no rulo of construction can the language employed be held to refer to either of them.

The next section relied upon is section 4565 of the Code. This makes provision for fees of sheriffs in criminal eases. After enumerating certain fees to which sheriffs are entitled, the following provision is made: “For summoning jury in capital case, or at any specal court for trial of criminal, $3. For attendance each, day on such court, to be paid by the county, $2.” These provisions first made their appearance into our statutory system of laws in 1852, when the Code of that date was adopted. — § 3992. As there found they read: “For summoning jury in capital case, $3. For summoning jury at any special court for trial of criminal, $3. Attendance on such court each day, $2.” It is apparent that the only substantial difference in phraseology between the two statutes quoted is such as resulted in combining the two provisions allowing the fee of $3 for summoning jury in a capital case and for summoning jury at any special court for the trial of criminals, and by imposing the liability for attendance on such court upon the county; a difference which cannot and does not work any change of such nature, as would justify a different construction, so far as the point lieie involved is concerned. When the Code of 1852 was adopted, the only court at that time, and for many years thereafter, having jurisdiction of criminal, cases to be tried by jury, whs the circuit court. County courts had not been established, and were hot established until the adoption of the penal Code of 1866. — §§..380, et seq, Under section 634 of the Code of 1852, special or extra, terms of the- circuit court were required to be holclen for the trial of any person charged with a felony, upon his application.' Sections 3446, et seq. provided íiow the jury was to be drawn, and required the sheriff to summon them. Section 690 required the sheriff to attend upon those special terms of the court. It will be well to observe that the words used in section 3446 designate the court as “a special court for the trial of a person charged with a felony,” etc. Doubtless the words employed in the provision for summoning jury “at any special court” Avere borrowed from the language employed in section 3446, which as used in that section meant nothing more than a special term of the circuit ■court for the trial of criminals. In each codification of our laAArs since the Code of 1852, special terms of the circuit court have been authorized to be holden for the trial of criminal oases, and sheriffs were required to attend upon these courts. — Code of 1896, §§ 914, 3739. It is clear, therefore, that the compensation allowed sheriffs under the provisions of section 4565 above quoted is for attendance upon special terms of the circuit courts, and has no application to county courts.

What we have said 'sustains the correctness of the judgment on the demurrer to the first count. As the second count predicates the plaintiffs right of recovery for attendance upon the regular terms of the circuit court when engaged in the trial of criminal cases, and not for -attendance upon special terms of that court held for that purpose, the demurrer to it was properly sustained.

Affirmed.