Birmingham state herald. (Birmingham, Ala.) 1895-1897, 1896-04-15
YESTERDAY IN THE COURTS
Text of The Montgomery Courts
Opinion inthe Burgin Case.
GRAND JURY'S TRUE BILLS
Argument Concluded in the Driver and Sulli-
van Murder Cases.Torrey Will Case
Is Still On. %

Judge Winter of the city court of Mont
gomery has granted the petition filed by
William NJ. Burgin, Jr, clerk of the GRIM
inal court of Jefferson county, wherein
the petitioner asks that a mandamus is
sue against John Purifoy, state audi
tor, for the amount of a bill of costs
made out by Clerk Burgin and presented
to the auditor. In this bin Clerk Burgin
followed the old law which allows wit
nesses 81. 30 per diem and cents mile
for court attendance, instead of so cents
per diem and cents mile for court IT.
tendance under the new law. The audi
tor is allowed ten days to appeal the case
which will probably be done. Locally the
purchase of witness certificates is bust
ness that has grown to considerable pro-
portions among money lenders, who, it
Is said, discount the witness certificates
at 20 to 80 cents on the dollar. The de-
csion will be of great interest to this
class, as well as to the general public in
the state at large.
The Opinion
in full is follows.
Elk parte William M. Burgin, Jr., clerk
, of the criminal court of jefferson coun-
ty, ADMINISTRATION for mandamus
to the judge of the city court of Mont
This petition is filed by William M.
Burgin, Jr., as clerk of the
criminal court of Jefferson county.
The prayer of this petition is
that a writ of mandamus may is
sue against John Purifoy, state auditor,
for the amount of a. bill of costs made
cut by said clerk and presented to the
auditor, copy of which is attached TO
the petition, wherein it is shown that
$3.50 per day for the attendance of states
witnesses was charged in case where
conviction and sentence to the peniten-
tiary was had.
Said petition also shows that the bill
of costs was forwarded to said Purifoy,
as state auditor, and not to the president
of the board of convict inspectors. This
petition is demurred to upon these
grounds and upon the further ground
that petitioner had no such interest or
concern in the matter in controversy as
would authorize him to institute this pro-
ceeding The first two grounds of de-
murrer involve the constitutionality of
sections 81 and IS of an act entitled IAN
act to regulate the management of state
and county convicts," approved Februa-
ny IS, 1895 (acts 1894-5, p. 849).
Section "a provides that whenever
defendant is convicted of felony and
sentenced to Imprisonment in the peni-
tentirary the clerk of the court shall
make out a full and complete bill of costs
in said case, which cost bill shall con-
tain among other items, state witness
fees which shall be SO cents per diem
and cents a mile for each mile travel
ed to and from court"
Section IS provides that the bill of costs
shall be forwarded to the president OF
the board of inspectors, who shall. If
found correct, draw his warrant on the
treasurer In favor of the clerk for the
amount of said bill. 81.
These sections are attacked as being
in contravention of article 4, section 2, OF.
the constitution, requiring that each
law shall contain but one subject which /
shall be clearly expressed in the title.
yIx.I0 I. ts, te. Pow
doubt of establishing an entire system
in itself for the regulation and manage
ment of state and county convicts, can
not see in what respect these two sections
are referable or cognate to the question
of 1.-The regulation and management of
state and county convicts," pertaining,
as they do, to matters of costs, to be as
certained and adjudged by the courts on
the conviction, and not to the regulation
and management of -convicts who
of conviction. Bearing in mind
the principle that every reasonable in
tendment must be INDUCED in favor of
the constitutionality of statutes l am
nevertheless constrained to hold, for the
foregoing reasons and under the authori-
ty of ex parte Gayles, recently decided
by the supreme court of Alabama and re-
ported in volume 10 of the Southern Re-
porter, page ~, that these two sections
are violative of this clause of the consti-
tuition. This decision involves the con-
sttutionality of section "a of this act in
reference to the terms of sentence of con-
victs to hard labor for the county and to
the penitentiary; but, in my opinion, the
same reasoning applies to the sections
now under consideration.
Section lis of this act repeats the act
of February IA, 1893, upon the same sub
ject (Acts 1929 page 194) 1t is contend
ed that If the act of 1S94-5-is unconstitu-
tional this repeating clause has no eff
feet, and consequently the act of 1928
Is In full force. l am of the opinion that
the act of 1894-5 Is not, as a whole, un-
constitutional and, therefore, the repeal
ing clause therein must have effect.
See Randolph VS.. Builders and Paint
ers' Supply company, IL Southern Re-
ports 721. Even If otherwise, I am In
cined to the opinion that the same con-
stitutional objection applies to like sec
lions to be found In the act of 1923, and
for the same reasons.
II correct in the above proposition, it
must follow that the act approved Feb
ruary %, 1889, entitled ian act-to provide
for the payment of costs on convictions
for felony where the defendant is sem
fenced to Imprisonment in the peniten-
tiary" (acts 1889, page 5O as amend
ed by an act approved December 10,
1890 (acts 1890, page 112), and section 1886
of the code are in full force and effect
By this act, as amended, 1T is provided
that whenever a defendant is convicted
of a felony and is sentenced to imprison-
ment in the penitentiary the bill of costs
shall include fees of state witnesses, and
by section 2 1t is made the duty of the
clerk to forward said bill of costs to the
state auditor, who shall draw his war
IN TILE Ns9e1EYE II