Dawson v. Matthews

HARALSON, J. In the act to create a new convict system for the State of Alabama, (Acts, 1892-93, p. 214), it is provided in section 54 : “That upon the conviction and sentence of any person to the penitentiary, the clerk of the court in which the sentence is pronounced, shall immediately transmit to the superintendent of convicts, a certified copy of such sentence, and a certified copy of the statement put upon the minutes of the court under the direction of the court as required by this law, [which statement has reference to the convict’s trade and business &c., as provided to be entered on the minutes, by section 19 of said act], and also a certified statement or bill of costs of said conviction, containing the following items only : clerk’s fees for issuing subpoenas for State witnesses,” &c. By section 20 it is provided : “That the warden of the penitentiary shall receive into his custody, on the order of the Governor, any person convicted of any crime punishable by death, and whose sentence shall have been commuted to a term of years or for life, and confine such prisoner according to the terms of such order or commutation.” There is no provision in the law for taxing and certifying a bill of costs to the superintendent of convicts , in case a defendant' is convicted and sentenced to death, nor any in respect to a defendant who has been so convicted and sentenced, and whose sentence has been commuted by the Governor to the penitentiary for life. [488] By said section 54, it is further provided, in case of conviction and sentence to the penitentiary, that the superintendent of convicts — when the convict is received at the penitentiary, and he receives the bill of costs in his case, which the clerk by said section is required to certify to him — shall, if said bill of costs is correct, request the Auditor to draw his warrant on the State Treasurer, in favor of the clerk, for the correct amount of said cost bill. After the Governor had commuted the sentence of the defendant from death to the penitentiary for life, the clerk made out and certified the statements of the conviction and his costs and fees required by said section, and forwarded them to the superintendent of convicts, who, after the prisoner had been received at the penitentiary, declined to request the Auditor to pay said bill of costs. His refusal to do so, was indorsed on the cost bill as follows : “This man having been sentenced to hang, there is no law providing for my approval of this cost bill. [Signed.] R. H. Dawson, Supt.” The question presented for review is, whether, under the foregoing statement of the facts, the superintendent can be required by our mandamus to request the Auditor to draw his warrant for the payment of said costs. There is no dispute as to the correctness of the bill. By the common law costs and fees were different in their nature. The one was an allowance to a party for expenses incurred in litigation ; the other, compensation to an officer for services rendered in the progress of a cause. In reference to criminal prosecutions especially, our statutes do not observe the distinction between costs and fees. All the taxable costs, except witness fees, consist of fees fixed by statute for services rendered by the officers of court.—Bradley v. The State, 69 Ala. 318. And it is well settled, that statutes giving costs and officers’ fees are not to be extended beyond their letter, and must be strictly construed, for the reason, as held, that costs are in the nature of a penalty.—Skinner v. Dawson, 87 Ala. 348; Shields v. Sheffield, 79 Ala. 96; Kahn v. Locke, 75 Ala. 332; Pollard v. Brewer, 59 Ala. 130; Tillman v. Wood, 58 Ala. 578; Code, § 4892. The statute has not provided for such a case as we have in hand, and without it, the costs are not payable by the State. The superintendent of convicts did right to refuse to request the Auditor to pay the bill, and the [489] city court erred in granting the writ of mandamus, to compel him to do so. Its judgment to that effect will be reversed, and one will be here entered dismissing the petition of the appellee, who will pay the costs in this court and in the court below. Reversed and dismissed.