The Birmingham age-herald., 1910-01-12

make report of all judiciary funds coming into his hands, and in the act approved August 2s it is made the duty of clerks of courts of record to make report. To make them harmonize the ruling is that each line of officers must obey the order of the act and make such report to the auditor. that the funds and account of the state in all its branches may be kept in regular and proper shape.
 The attorney general has also ruled that the commissioner of agriculture can use his $500 month maximum for certain ex- penses in the month. That is, he can not use $500 this month and s70O the next. Whatever balance he may have of the $500 allowed each month must go back to the treasury. It was hoped, in view of the depletion of this fund by new laws, that the accumulation might be available. The taking of s7000 a year for county prizes in farm products is going to run this fund down pretty low, there being only s10,e00 that can be used, this $500 a month and lump sum of s4OoO year.
 The opinion In the case of reporting fees follows;
 January 10, 1910. Hon. Walter D. Seed. State Treasurer.
 Capitol:
 Dear Sir-Several days ago you re- quested me to advise you with respect to the duty of clerks of courts of record in the matter of paying witness fees into the state treasury under the act of the leg islature, approved August 26, 1909 Spec. Acts 1909, p. 213), and you also call my attention to the act of the legislature of the same session, approved August 26, 1909 Spec. Acts 1909. p. 166).
 l have received several letters from clerks of courts calling attention to the conflict hereafter noted between these acts, and desiring to be advised of their duty in the premises, and this letter is intended to answer all such inquiries which I have received
 By the aforesaid act of August 26, 1909, 1t is made the duty of every register in chancery, probate judge, sheriff, clerk and clerk and register to prepare report in writing, on the approval of the act, show ing the amount of all iduciary funds in the hands of such official; and section 2 of the act defines fduciary funds to in- clude only sums which have come into the hands of the officer of which he is not the absolute and unqualified owner, including witness fees. The act, then, provides that the report be filed in certain courts of the state. and after a time named in the act the court Is directed to order the funds paid into the treasury of the county.
 By the aforesaid act, approved Au- gust 2e 1909, it is made the duty of clerks of courts of record within this state to file with the state treasurer on the first day of January of each year, a report of all witness fees col lected by them or received by them from their predecessors in office which have not been disbursed to the per sons entitled thereto, and to pay into the state treasury all such fees which have been collected more than two years before the making of the report. The act contains further details which are intended to carry out the general scheme of paying such fees first into the state treasury.
 The act of August 25, 1909, applies to the register In ehancery, probate judge. sheriff, clerk and clerk and register. and requires a report by said officer of all fduciary funds, including witness fees; while the act of August 26, 1909, approved one day after the act Just referred to, applies only to clerks of Couils Ol IcCoios anu TeQulI6b SuCl clerks to report and pay into the stale treasury certain witness fees. Both of these acts must, if possible. be con- strusd so as to give a field of opera ton to each of them. The only con- struction which can be given the acts so as to give each field of operation is to hold that clerks of courts of record must report and pay into the state treasury the witness fees men tioned in the act of August 2e, 1909, and that all other funds which come within the class of fduciary funds as defined in the act of August 25. 1909. are controlled by this act
 It is evident that the attention of the legislature was not called to the con- fict between the two acts. Both sys- tems should not be in operation at tn . same time, but being upon the statute books Of the state they must be fol- lowed until the legislature sees fit ot change them
 Under the said act of August z6, 1eoa, the clerks are required to file their reports with the state treasurer and to pay into the state treasury the wit ness fees there mentioned. This act does not in terms require such fees to be certified into the treasury by the auditor; but in view of the provision of section os5 or the code imposing the duty on the state auditor to superin- tend the fiscal affairs of the state: to keep all accounts between the state i and the state treasurer charging him | with the balance due when he came | into office, and with all moneys re- ceived by him. and crediting him with | all warrants drawn on the state treas- | urer and paid by him; and to draw warrants on the state treasurer for the l, payment of all moneys directed by law l to be paid out of the treasury; and in view of the duty imposed on the state treasury under section SPA of the code ] to pay all warrants drawn under the authority of law by the state auditor, and to pay no money out of the ters- ury except on the warrant of the state auditor; am of the opinion that the auditor should keep an account of all witness fees which are paid into the state treasury as required by the act and further that he should certify into the state treasury such founds when