Osceola County v. State Ex Rel. Newton

Davis, C. J. This was an action of mandamus brought by the Constable of Justice of the Peace District No. 1 of Osceola County, Florida, to require the respondent county to pay relator his lawful fees for services rendered by him in executing a criminal warrant issued by the Justice of the Peace of District No. 1, Osceola County, for the.apprehension and arrest of a .person charged with the larceny of an automobile. The arrest was duly made by the relator, the defendant bound over to the Grand Jury, but the Grand Jury returned “no true bill.” The county refused to pay the Constable his costs of executing the warrant on the ground that the Justice of the Peace who had issued -the process had not required the party who swore out the complaint to comply with Section .8490 C. G. L., 6176 R. G. S., which’reads as follows: *7 “In all cases of justices of the peace and county judges in this State shall require payment in advance or security for costs of process service of the same and of examination, unless the party applying for a warrant shall make an affidavit of insolvency and of substantial injury, to person or property, by him suffered, in which case process shall issue without payment of costs.” (Ch. 1949, Acts 1873, Sec. 2; Ch. 3128, Acts 1870, Sec. 1; Ch. 1949, Acts 1878, Sec. 2; Ch. 5651, Acts 1907, Sec. 1.) . The Circuit Court held that even though no prepayment of costs nor insolvency affidavit had been required by the Justice of the Peace as a condition precedent to his issuance of tjbe warrant, that nevertheless the constable had executed and returned it in due form of law, and that the constable was entitled to be paid for his execution of the warrant. Judgment for peremptory writ was entered. The county has- appealed. There is no error in the judgment. The offense charged in the warrant was of a public nature. Such crime was likewise a felony, to-wit: larceny of ah automobile. Simmons v. State, ex rel. Tew, 71 Fla. 340, 71 Sou. Rep. 278, this Court expressly held that the provision of Chapter 5651, Acts of 1907, which is now Section 8490 C. G. L., 6176 R. G. S., has no applicability to crimes of a public nature. Any felony must be considered to be a crime of a public nature. And the crime charged in the warrant for the execution- of which compensation is claimed by the officer in this case, was undoubtedly a felony. It was such a felony under the statutes of this State (Section 7242 C. G. L., 5142 R. G. S.) that even the injured party would not have had any lawful right to have compounded the offense after its commission. Section 7540 C. G. L., 5399 R. G. S. So the Justice of the Peace was clearly within *8 his rights in issuing a warrant for larceny of an automobile without exacting compliance with Section 8490 C. G. L., supra, by the complaining affiant who swore to the affidavit upon which the warrant was based. Furthermore, under the express terms of Section 8488 C. G. L., 6174 R. G. S., the costs for executing a warrant incident to a commitment trial before a magistrate are payable by the county, even in cases where no information is filed nor indictment found. It was the purpose of this stated exception found in Section 8488 C. G. L., supra, to protect an arresting officer in his right to the collection of his costs for executing a warrant issued by a committing magistrate without regard to the nature or cause of the accusation, or the- foundation in law or fact for the charge made. This is so, since under the statutes it is made the duty of sheriffs and constables to serve all warrants coming into their hands which are fair and valid on their face, in default or neglect of which they are subject to certain penalties. See Section 7522 C. G. L., 5383 R. G. S., 4594 C. G- L„ 2896 R. G. S. Judgment affirmed. Whitfield, Terrell, Brown and Buford, J. J., concur. Ellis, J., dissents.