[Burgin v. Hawkins, Treasurer.] 2d. Because the mandate of said rule nisi does not give the defendant an opportunity to comply with said writ. 3d. Because, according to the mandate of said notice, the defendant is required to do an act not authorized by law. The motion to quash was granted by the court, to which ruling petitioner duly excepted. The petitioner appeals, and assigns this judgment as error. WHITE & HOWZE, for appellant.-Mandamus is the proper remedy, and an appeal to this court is the proper mode of reviewing the judgment of the court below.-Sexsions v. Boykin, 78 Ala. 328. The act the defendant would be required to do under a writ of mandamus was one authorized by law. The statute in question, being a remedial one, must be liberally and beneficially construed, and under such construction the petitioner was entitled to reliet.-Acts of 1882-83, p. 543; Sedgwick on Statutes, 361; Sprowl v. Lawrence, 33 Ala. 674; Herr v. Seymour, 76 Ala. 270; Reese v. State, 73 Ala. 18; Toole v. State, 88 Ala. 158, 7 So. Rep. 42; Carlisle r. Godwin, 68 Ala. 137; Bartlett v. Morris, 9 Por. 266. B. M. ALLEN, contra.-The claim of the petitioner was not a proper charge against the fine and forfeiture fund, but was a claim against the defendant in the case in which the subpoenas were issued, at whose instance and for whose benefit the services were performed.-Cohn v. Coleman, 71 Ala. 496; Bradley v. State, 69 Ala. 323; State ex rel Greene Co. v. Coleman, 73 Ala. 551; Bowen v. State, 98 Ala. 83, 12 So. Rep. 808. STONE, C. J.--Our statutes maintain a marked distinction between costs incurred for the State in State prosecutions, and those incurred for and by the defense. Code of 1886, § 4887. As illustrative of this fact, costs incurred by the State are taxable against the defendant on conviction, and become so much a part of the penalty or punishment, as that the defendant may be sentenced to hard labor for their payment; and in the event the punishment be only a money fine, or fine and costs, the defendant may obtain his liberty by confessing judgment with sureties for fine and costs. But this confessed judgment does not include the costs incurred by the defendant. [Burgin v. Hawkins, Treasurer.] The latter is only a personal, contract debt, and can not be enforced by restraint of defendant's liberty.--Hill v. White, 1 Ala. 576; Carville v. Reynolds, 9 Ala. 969; Bradley v. State, 69 Ala. 318; Tolbert v. State, 87 Ala. 27; Bailey v. State, Ib. 44. In Bradley's Case, Brickell, C. J., speaking for the court, said: "If the defendant is convicted, the compensation claimed by his witnesses and certified by the clerk, becomes part of the costs in which he is amerced by the general judgment for costs. It is taxed as costs and collected by the sheriff for the use of the witnesses. This, however, does not change the nature or character of the compensation. It is simply a debt, a due to the witness from the defendant for services performed at his instance. Of the debt the certificate of the clerk is evidence, upon which an action at law will lie immediately, though the cause is pending and undetermined. For such debt, though it is taxable as costs, the statute can not be construed as subjecting the defendant to hard labor. It is only the costs incurred by the State, or, to which the State, if it were liable for costs, could be subjected, for the payment of which a convict may be compelled to labor. These do not include costs incurred by the defendant in making defense, whether the compensation of witnesses or the fees of officers of court for services rendered to him.” So, in Cohen v. Coleman, 71 Ala. 496, speaking of services rendered by the sheriff in summoning witnesses for a defendant who had been convicted, and was insolvent, we said: "Such services are rendered for the defendants, and must be paid for by them. They are not a charge against the fine and forfeiture fund."-Bilbro v. Drakeford, 78 Ala. 318. In Bowen v. State, 98 Ala. 83, 12 So. Rep. 808, we said: "The word cost, for which a person convicted may be sentenced to hard labor, has been judicially declared. It includes all costs, includidg officers' fees, incurred in behalf of the State. It does not include fees due witnesses summoned on behalf of defendant, or cost incurred by him in making his defense.” In State ex rel v. Coleman, Treasurer, 73 Ala. 550, we defined the fine and forfeiture fund of the counties as a fund accruing from pecuniary penalties and punitive impositions incurred by defendants in the enforcement [Burgin v. Hawkins, Treasurer.] of criminal prosecutions, in the nature of profits arising from our system of criminal procedure." This fund is set apart to meet those occurring and recurring liabilties which will be encountered in the administration of the criminal law. And throughout this entire proceeding, a distinction has been maintained between those expenses which have been incurred at the instance of the State, and those incurred for the defense. Hence, in section 4887 of the Code it is declared that the fees of witnesses subpoenaed for the State are made a charge on the fine and forfeiture fund, "when the defendant is not convicted," and in several other enumerated catagories; but no provision is made for such payment to witnesses summoned for defendant. Can a reason be assigned for paying the clerks and sheriffs for services rendered in issuing and serving subpoenas for witnesses at the instance of defendants, which does not apply with equal force to the payment of witnesses themselves, who may be so summoned and required to attend? Again: Under the authorities supra, the State is without power or authority to secure the payment of clerk's and sheriff's fees for summoning witnesses for defendants in State cases, either by judgment confessed with sureties, or by sentence to hard labor for the county. Would it not be strange and inconsistent to hold that the fine and forfeiture fund is responsible for these costs in cases in which the State fails to convict, while in case of conviction the liability is only a personal debt on the defendant, collectible only as he can be compelled to pay his other contract debts? Why secure the payment when the State fails, and yet leave its payment unsecured, when the convicted defendant can not, by reason of his insolvency, be compelled to pay these officers for the services they have rendered him at his request? Section 4870 of the Code is very comprehensive in its terms, but we can not consent to give them an interpretation, which would work the inequality pointed out above. We adhere to our former rulings.-Bradley v. State, 69 Ala. 318; Cohen v. Coleman, 71 Ala. 496; Bowen v. State, 98 Ala. 83, 12 So. Rep. 808. Affirmed. VOL. 101. [L. &. N. R. R. Co. v. The Peoples Street Railway & Improvement Co.] Louisville & Nashville Railroad Co. v. The Peoples Street Railway & Improvement Co. Proceedings to condemn Right of Way for Street Railroad. 1. No appeal lies from a judgment of a probate court in condemnation proceedings to the supreme court.-No appeal lies directly to the supreme court from any proceeding, judgment, order or decree of the probate court made or entered therein in proceedings to condemn a right of way for a railroad, as provided by the statute, (Code, §§ 3207-3220). APPEAL from the Probate Court of Morgan. HARRIS & EYSTER, for appellants W. R. FRANCIS and G. A. NELSON, contra. * * * * MCCLELLAN, J.-The act of December 10, 1886, conferred upon street railroad companies the "right to condemn and take possession of" land, not exceeding a strip or tract thirty feet in width, for the right of way of such railroads, "on payment to the owner thereof a just compensation, in the same manner as now provided by law for taking private property for railroads and other public uses, in Article II, Chapter 17, Title 2, Part 3 of the Code" of 1876.-Acts 1886-7, p. 122. This act was amended by the act of February 26, 1889, which provides: "That all street railroad companies organized and incorporated under the laws of Alabama * * may acquire by gift, purchase or condemnation real estate in this State for the right of way for street railroads a strip, tract or parcel of land not exceeding thirty feet in width for the right of way of said street railroads, and said street railroad companies shall have the right to condemn and take possession of said land on payment to the owner thereof a just compensation, in the same manner as now provided by law for the condemnation of land for public uses in Article II, * * * 101 331 128 119 0128 120 [L. & N. R. R. Co. v. The Peoples Street Railway & Improvement Co.] Chapter 15, Title 2, Part 3 of the Code" of 1886. Under this last statute and the article of the Code which is made (or possibly only attempted to be made, Bay Shell Road Co. v. O'Donnell, 87 Ala. 375, 6 So. Rep. 119,) a part of it, the Peoples Street Railway and Improvement Company proceeded in the probate court of Morgan county to condemn a right of way along a street of the town of New Decatur over the right of way, road-bed and tracks of the South and North Alabama Railroad Company, which railroad was in the possession of and being operated by the Louisville & Nashville Railroad Company, and from a decree or order of the judge of probate granting the petition to that end, and condemning said right of way, the two last named corporations appeal to this court. We need not go into the merits of the case thus intended to be presented for our consideration further than to say that we find no authorization in the act last quoted, or in the chapter of the Code made a part of it, for the condemnation of the right of way of one railroad company, a public corporation, for a right of way for a street railway company, also a public corporation; and it has quite recently been held by this court that in the absence of special statutory authority such condemnation can not be had. Memphis & Charleston Railroad Company . Birmingham, Sheffield and Tennessee River Railroad Company, 96 Ala. 571, 11 So. Rep. 642. But we are not required to decide that question, nor indeed would it be proper for us to go further than is implied from what we have said, for the reason that this case is not jurisdictionally before us. No appeal lies directly to this court from any proceeding, judgment, order or decree of the probate court had, entered or made therein under the provisions of Article II, Chapter 15, Title 2, Part 3 of the Code, under which this proceeding was had in the probate court of Morgan county. Postal Telegraph Cable Co. v. Alabama Great Southen Railroad Company, 92 Ala. 331, 9 So. Rep. 555. This appeal must, therefore, be dismissed; and this though no motion to that end has been made, since, being without jurisdiction in the premises, no waiver of the point, implied or even expressed, can confer upon us the power to hear and determine the cause. Appeal dismissed. |