(104 So. 851)

#### Ex parte ALLGOOD, State Auditor. ALLGOOD, Auditor, v. STATE ex rel. WILSON.

(3 Div. 707.)

(Supreme Court of Alabama.

May 7, 1925.

Rehearing Denied June 25, 1925.)

1. Statutes <®=>220 — Sentence of statute held legislative interpretation, persuasive, though not binding on courts, of provision for payment of amount earned by convict serving part of sentence pending appeal.

Last sentence of Code 1923, § 3672, providing that amount to be paid convict, electing to serve part of sentence pending appeal,- on reversal of conviction, is amount state would otherwise have received from proceeds of his labor, is legislative interpretation, which is quite persuasive of intent expressed, though not binding or conclusive on courts.

2. Convicts <@=»2 — State, spending more for control and maintenance of convict pending appeal than his earnings, not indebted to him on reversal of conviction.

State, spending more for control and maintenance of convict, serving part of sentence pending appeal from conviction, than his earnings, received nothing as proceeds of his labor, and hence owed him nothing, under Code 1923, § 3672, requiring payment of amount state would have received from proceeds of his labor, if judgment had not been reversed.

Sayre and Thomas, JJ., dissenting in part.

<g=>For other cases see same topic and KBX-NUMBER in all Key-Numbered Digests and Indexes

Certiorari to Court of Appeal.

Petition of W. B. Allgood, as State Auditor, for certiorari to the Court of Appeals, to review and revise the judgment and decision of that court in the case of Allgood, Auditor, v. State ex rel. Wilson, 20 Ala. App..665, 104 So. 847.

Writ awarded, judgment reversed, and cause remanded.

The relator, Wilson, applied to the Circuit Court for a writ of mandamus to be directed to W. B. Allgood, as State Auditor, requiring him to issue to relator a warrant for the amount earned by him as a convict for services rendered pending appeal, his conviction having been reversed. From a judgment granting the writ, respondent, Auditor, appealed to the Court of Appeals, and, the judgment being there affirmed, this petition follows.

Harwell G. Davis, Atty. Gen., for appellant.

Statutes requiring the payment of money for the state treasury are strictly construed against the party demanding payment. State ex rel. v. Brewer, 64 Ala.- 289; Cloverdale Homes v. Town of Cloverdale, 182 Ala. 419, 62 So. 712, 47 L. R. A. (N. S.) 607.. The meaning of a word or phrase is to be gathered from the entii’e context. Gex-nex-t v. Limbach, 163 Ala. 413, 50 So. 903. Where there is seeming conflict between the terms of a statute, the last expression prevails. Wimbex-ly v. Mayberry, 94 Ala. 258, 10 So. 157, 14 L. R. A. 305. As to- definitions of earnings, see Loomis v. MacFarland, 91 P. 466; Baldwin v. Miller *&*Lux, 152 Cal. 454, 92 P. 1030; Livingston County Bank v. First State Bk. 136 Ky. 546, 121 S. W. 451,124 S. W. 829.

Thos. B. Hill, Jr., of Montgomery, and H. T. Burns, of Wedowee, for appellee.

It was the purpose of the statute that the gross earnings of the convict be paid him upon reversal. Code 1923, § 3672 ; 3 Words and Phrases,- First Sex-ies, “Earnings,” p. 2303; 32 Cye. 439; 31 O. J. 400; 19 C. J. 854.

ANDERSON, C. J.

Section 3672 of the Code of 1923, reads as follows:

> . *“Barnmgs of Convict Paid Sim on Reversal or Rendering Sis Case on Appeal.*— When any person is convicted of a felony and takes an appeal from said judgment of conviction to the Supreme Court of Alabama, and pending said appeal he elects to not have said judgment and sentence suspended, pending said appeal, and goes to the penitentiary and performs labor as directed under said sentence of judgment, if the case be reversed and' remanded or rendered, the state of Alabama must at once pay him or his attorney of record the amount earned while performing said labor under said sentence. When such persons elect to have said judgment and sentence suspended pending said appeal, and the case is affirmed and such person goes to the penitentiary, and performs labor-as directed under said sentence of judgment, and if upon rehearing the case is reversed and remanded or rendered, the state of Alabama must at once pay to such person or his attorney of record, the amount earned while performing said labor under said sentence. The amount to be paid him is the amount which the state would have received from the proceeds of his labor, if said judgment of conviction had not been reversed and remanded or rendered.”

[1] But for the last sentence of the statute there might be some room for doubt and uncertainty as to the legislative intent, that is, whether the convict was to receive his gross or net earnings. This question, however, is answered and foreclosed by the last sentence which says:

> “The amount to be paid him is the amount which the state would have received from the proceeds of his labor, if said judgment of conviction had not been reversed and remanded or rendered.”

[2] This seems to be a legislative interpretation of the provision, and, while not bind-' ing or conclusive on the courts, must be considered as quite persuasive of the intent there expressed. Had this petitioner’s case been affirmed, what would the state have received from the proceeds of his labor ? According to the undisputed facts, nothing, as the expense incident to his service exceeded his earnings, and, if it cost the state more to *427maintain him than he earned, it did not receive anything from the proceeds of his labor. While this statute was enacted primarily for the benefit of the convict and not the state, it was not the legislative purpose to burden the state by requiring it to account for the gross earnings of the convict, regardless of the expense to which it was put. If his case was affirmed, he got the benefit of the time served upon his sentence, and it was merely the legislative purpose io give him the benefit, in case of a reversal, of the amount that the state may have received from the fruits of his labor — not to require that the state should be a loser by virtue of his election to not have the sentence suspended. The proof showing that the expense of control and maintenance of the petitioner, during the time' he served, pending his appeal, exceeded his earnings, the state necessarily received nothing as the proceeds of his labor and there was therefore nothing to pay over to him under the terms of sections 3672 and 3673 of the Code of 1923.

The writ of certiorari is awarded, the judgment of the Court of Appeals is reversed, and the cause is remanded to said court for further consideration in conformity with this opinion.

Writ awarded, and reversed and remanded.

SOMERVILLE, GARDNER, MILLER, and BOULDIN, JJ., concur in the opinion and result.

SAYRE and THOMAS, JJ., concur in awarding the writ, but think the statute is properly construed in the opinion of Judge Samford.