Blake v. State ex rel. Going

SOMERVILLE, J.

Section 1 of the act of August 26, 1909, “to regulate the disposition and disbursement *409 of witness fees collected by clerks of courts of record and which fees have not been paid out to the parties entitled thereto within two years after collected by the clerk,” is as follows: “1. That on the first day of January, in each year, all clerks of courts of record within this state shall file with the state treasurer a full and complete report of all witness fees collected by them or received by them from their predecessors in office which have not been disbursed to the persons legally entitled thereto, and shall pay into the state treasury all such witness fees which- have been collected by them or their predecessors more than two years preceding the making of said report. Said report shall show the amount and date of the collection, the name of the witness for whom collected, and the court, style of cause, and date of its final termination, in which said fee was collected.”' Section 2 provides that the persons entitled to these fees are barred from claiming them after six years from the date of their collection, and that thereafter, on January 1st of each year, the treasurer shall transfer such fees as are thus barred of claim to the general fund of the state. Section 3 provides that retiring clerks shall pay over to their successors in office such fees as they have collected and not paid into the state treasury, together with an itemized statement thereof. —See Special Session Acts 1909, p. 213.

On April 5, 1911, an act of the Legislature was approved identical in language with the act above referred to, except that “county” was substituted throughout for “state,” thus making the county treasurer the custodian of the unclaimed fees, and the general county fund the ultimate beneficiary of such as were finally barred of claim. Section 4 of this act declares that “all laws or parts of laws in conflict with this act be and *410 the same are hereby repealed.” See Session Acts 1911, p. 200.

The petitioners, constituting the board of revenue of Jefferson county, seek by mandamus to compel the respondent, who is clerk of the city court of Birmingham, to file Avith the county treasurer his report of the witness fees collected by his predecessor in office more than two years prior to January 1, 1911, and to pay over these fees,' amounting to $4,788.83, and still retained by respondent, to the county treasurer.

Upon the overruling of his demurrer to the petition, respondent filed his answer, Avhich, on demurrer, Avas held insufficient; and, respondent declining to ansAver further, judgment Avas entered for petitioners in accordance with their prayer.

The single question presented by the appeal, as argued by counsel, is whether the act of 1911 operates upon and controls the disposition of 'such witness fees as, under the act of 1909, should have been reported and paid over to the state treasurer on January 1, 1911.

It is argued Avith both force and reason that the Legislature, in passing the later act, could not have had in contemplation the failure of clerks to obey the mandates of the earlier act, and hence could not have intended to subject to the influence of the later act such fees as may have been improperly retained by them in violation of the pre-existing law. Wé would be inclined to so construe the act of 1911 if its language Avere at all ambiguous in meaning or application. But it clearly repeals the act of 1909, and is intended as a complete substitute therefor. Its language with respect to the fees included within its operation is general and comprehensive, viz., “all such witness fees which have been collected by them or their predecessors, more than two years preceding the making of said report,” and *411 “which have not been disbursed to the persons legally entitled thereto'.” We are satisfied that this language does not admit of any implied exceptions, and that to interpose any would amount to judicial legislation. Where the language of a statute is plain and unequivocal, and its application definite and certain, courts Avill not search for unexpressed intention, nor indulge in speculations as to possible or even probable qualifications that may have been in the mind of the Legisla ture. — Lehman Co. v. Robinson, 59 Ala. 219, 239 .

It is a general rule, also, that when a statute is repealed it stands as if it had never existed, except as to vested lights which have accrued under its operation. —36 Cyc. 1169. Under the act of 1909, the state had acquired no vested rights in the fees in question. Doubtless it had, prior to the act of 1911, a right to compel respondent to report and pay them over to the state treasurer as their appointed custodian. But, except as it had been already executed, the influence and operation of the act of 1909 was completely nullified by its repeal in 1911. “The Legislature has full power to take aAvay by statute, rights not vested, Avhich have been conferred by statute. If the repealing statute is general and unconditional, Avithout a saving of pending proceedings . and prosecutions, these fall with the statute Avhich may have authorized them.” — Luke v. Calhoun County, 56 Ala. 415 . This principle seems clearly applicable to the two acts under consideration.

Our conclusion is that the rulings of the trial court are free from error, and the judgment must be affirmed.

Affirmed.

All the Justices concur, except McClellan. J„ dissenting. Justice McClellan

is of the opinion that the fund in question \vas not subject to the operation of the act of April 5, 1911.