Simmons v. State ex rel. Tew

Cockrell, J. A peremptory writ of mandamus issued against the County Commissioners, ordering the payment of the fee bill of the County Judge on the trial and acquittal of one charged with a violation of the Local Option Law. The sole basis for the refusal to pay the bill when presented and for bringing the case to this court, is that no insolvent affidavit or bond for cost had been filed with the County Judge, which in the judgment of the County Commissioners was made a prerequisite condition by Chapter 5651, Laws of 1907. This Act reads: “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.” The constitutionality of the act is here questioned, but we may readily dispose of this case by an inspection of the act itself which clearly has reference only to those classes of crimes where the complaining witness has suffered special damage in his own person or private property, and it has no applicability to the crimes of a public nature like the instant one. [342] Judgment affirmed. Taylor, C. J., and Shackleford and Ellis, JJ., concur. Whitfield, J., absent on account of illness.