Hancock County v. Vairin

Ethbidge, J., delivered the opinion of the court. The appellee was sheriff of the county and presented to the board of supervisors a claim for six hundred, forty one dollars and sixty-six cents, being one-third of certain fines collected for liquor cases in which the defendants were fined and convicted, alleging that Yairin made the arrest and procured the evidence for the conviction of defendants, and when doing this he was acting322 as sheriff of Hancock county. The hoard of supervisors refused the allowance, the order of the board reciting as follows: “The claim of J. W. Vairin for six hundred, forty-one dollars and sixty-six cents, being one-third of fines collected in liquor cases, is disallowed, not because the board does not believe that the said J. W. Vairin did not do the work, as the board is of the opinion that the said Vairin should be paid, but the account is disallowed because the board is advised that an officer cannot collect the one-third provided by statute.” An itemized account was filed, giving the list of cases, the first item in the account being as follows: “Statement of fines collected by J. W. Vairin, sheriff, from parties having more liquor in their possession than the law allows. Name, John Henry Davis; date arrested, May 15, 191,6; date tried, May 15, 1916; date paid fine or worked, August 31, 1916; fine twenty-five dollars; date released, August 31, 1916,” etc. All the other parties, with names, date of arrest, date of trial, date when fine was paid or worked out, amount of fine, and date of release, is set forth in the same manner, making tdtal of fines paid or worked out one thousand, nine hundred and twenty-five dollars. The cause was appealed to the circuit court and tried on agreement of the above facts being the facts of the case, and judgment was rendered in the ■ circuit court for the appellee, sheriff. Chapter 124, Laws of 1912, -entitled, “An act to authorize counties and municipalities to appropriate money to aid in the prevention and punishment of the unlawful sale and keeping of intoxicating liquors,” reads as follows: “Be it enacted by the legislature of the state of Mississippi, that the board of supervisors of any county in this state and board of aldermen, or board of aider-men and councilmen, as the case may be, of any municipality in this state, 'are hereby authorized and em [323] powered to appropriate, from time to time, sums of money, not exceeding one-third of the fines which have been collected by them respectively, from the unlawful sale or keeping for sale of intoxicating liquors for the purpose of procuring evidence of the violations of the statutes or ordinances, as the case may be, against the unlawful sale or keeping of intoxicating liquors.” It is contended by the appellant that the judgment should be reversed for the following reasons: First, the statute does not allow the board to appropriate one-third of the fines in any cases except for the unlawful sale or keeping for sale of intoxicating liquors; second, the statute leaves it in the discretion of the board whether or not they may make this allowance and leaves it to them what proportionate amount of the fine they shall allow; third, the sheriff cannot collect anything under this act for his own services because he is an officer whose duty it is to disclose any evidence coming to his knowledge. It does not appear in the agreed state of facts that the board of supervisors had ever passed an order appropriating the money collected from fines for the purpose authorized by the statute in any amount whatever, nor does the record show any order of the board of supervisors specifying how any money shall be expended so appropriated. And, further, it does not appear that the sheriff incurred any expense in procuring the evidence, or that he contracted with anybody to obtain evidence to be paid from any such fund. Under the terms of the statute the board has the discretion to appropriate the money, or not to do so, and discretion as to what sums, not exceeding one-third of such fines, shall be appropriated, and the purpose for which the moneys shall be expended, or for the purpose of procuring evidence of the violations of the statutes or ordinances against the unlawful sale or. keeping of intoxicating liquors. The primary purpose of the stat [324] ute .was to enable the board to use such moneys for the purpose of obtaining evidence, and in such case the money should be first appropriated, and the contract for procuring the evidence should be made by the board, or by some officer authorized by the board to make such contracts, and when the claim is presented for allowance, it should be itemized, or in writing, showing to whom, what amount, and for what" purpose the moneys were expended. This court held in Horton v. Lincoln County, 116 Miss. 813, 77 So. 796, that the discretion of the board under a mere enabling act could not be controlled by the court. That it was discretionary with the board to pay or not to pay for cattle injured in that case in such amount as the board should deem proper. In the present case, the statute is a mere enabling act, authorizing the board in its discretion to appropriate the money for the purposes named in the statute. The court cannot compel the board to do so, and the board can appropriate such amount, less than one-third, as it thinks proper under the circumstances existing in the county. We do not think the sheriff is entitled to one-third of the fines from the simple fact that.he made the arrest and furnished the evidence for conviction. It is his duty as an officer to give information to a peace officer for a violation of law coming to his notice; and it was his duty to execute the process directed to him in arresting parties and summoning witnesses, The sheriff may, when authorized by the board, employ persons to procure evidence and pay such sums as the board may agree to pay for that purpose, and be reimbursed for such sums paid out for this purpose if the board has authorized the funds to be appropriated for that purpose, but he cannot receive additional compensation under this statute for his own services; and his fees for his services in this class of work are provided for in other provisions of the law. [325] It follows that the judgment of the court below must he reversed, and the action of the hoard of supervisors affirmed. ' Reversed, and judgment here.