Birmingham state herald. (Birmingham, Ala.) 1895-1897, 1897-01-30

ton of such products or proceeds, are
all matters naturally and, even, necessa-
rily entering into the idea of any con-
Wet system, any statutory effort to pro-
vide convict system; and while no par
ticular disposition of the proceeds of con-
Wet labor can be said to be a necessary
part thereof, yet any disposition the leg
islature may see proper to make would
be cognate to the general purpose of es-
tablishing a convict system and compile
mentary to the idea involved in the ex-
preston of that purpose, and therefore
covered by and embraced in the title.
though not expressed in words thereb"
within the intent and meaning of the
constitutional requirement that each act
snail contain but one subject, which shall
be clearly expressed in its title Ballen-
tyne VS.. Wickersham, rs Ala, 533: const.
art. 4, para. 2. And 1t is not open we
think, to serious doubt that section 81
of the act of 1893 providing for the pay
ment of the costs of conviction, Il being
the clear intent, if not the express provi-
sion, of the statute that such costs should
be paid out of the fund arising from the
labor of conyicts, is cognate 20 the pur-
pose expressed In the Cal tion and hence
is embraced in the title to The act
TIE t of Feb. 25, 1889, ITO provide for
the payment of costs on convictions of
felony where the defendant Is sentenced
to Imprisonment in the penitentiary,"
is wholly inconsistent with the proyi-
sions of section "a of the act of 1898, no.
tably in respect of the conditions upon
which the auditor is authorized to draw
his warrant on the trea sury for the pay
ment of such costs, the latter act requir-
ing the bill of costs to be sent to the SUI
perintendent of convicts, and providing
that after the convict has been received
in the penitentiary that officer, II he finds
the bill of costs to be correct, shall re-
quest the auditor to draw his warrant
~ hn of trao far tIn ant
amount OF said cost bill-and this re-
quest is the auditors sole authorization
TIC draw such WarraLt-while the act of
1889 provided that the clerk should for
ward the cost bill directly to the auditor,
( that he should carefully examine the
same, and, if he found it correct, he
should draw his warrant on the treasury
for the amount of it, etc., etc. Being
thus, and in other respects, inconsistent
with the act of 1898, the act Of 1889 was
implicitly, If not expressly repealed by 1t.
See section 60. E
Whether the act of 1898 in respect of
its 54th section was in turn repealed by
the act of 1895, we need not decide.
Whether so or not, the petition for man.
damus in this case does not present a
case for the awarding of that writ. If
the act of 1893 was not SO repealed, it
is the law applicable to the case, and
the petition not only fails to show that
the bill of costs was forwarded to the
superintendent of convicts, and by that
officer forwarded to the auditor with a
request for its payment, but, to the con-
trary, shows afflrmatively that the bill
was forwa rded to the auditor in the first
instance, and that the mandamus is
sought because he, on such presentation,
refused to draw his warrant for its pay
ment. Assuming that section 81 of the
act of 1898 Is still of force, the auditor
was without any authority to draw his
warrant in the absence of a request by
the superintendent of convicts, and his
refusal was perfectly proper On the
other hand, if section 81 of the act of
1893 was repealed by the act of 1895, there
is no law authorizing the auditor under
any circumstances to draw his warrant
for the payment of the costs of convicts
when the sentence is to the penitentiary.
The lower court erred in overruling the
demurrer to the petition and in award
ing the writ prayed for therein. The
judgment below must be reversed, and a
judgment will be here entered sustaining
the demurrer and dismissing the petit
ton. Reversed and remanded.