The Birmingham age-herald., 1911-06-20
ASKS AN OPINION
 ON ENSLEY JUDGE
Assistant Attorney General Gives Brooke Information
 on Officers Duty

Montgomery, June 19.-(Special.)-De claring that it is the duty of the judge Of the inferior court of Ensley to collect fines, and that it is the duty of the clerk of the court to collect the costs and fees respectively collected, Assistant Attorney General w l.. Martin has rendered an opinion to Assistant Examiner of Public Accounts H. Y. Brooke. It Is believed that the opinion was requested in order that testimony relative to the present judge of the Ensley court might be in- troduced in a report to Gov. Emmet O'Neal It is unofficially reported that the judge is short in his accounts about s2O0, though no dishonest motives are re- ported
 The opinion follows:
 June 19, 1911. "Mr. H. Y. Brooke, Examiner of Public Accounts, Capitol
 Dear Sir: In reply to your favor Of | the 11th inst, requesting this office to | advise you, Q) whether or not witnesses summoned to give testimony to assist you in the examination of public account are entitled to pay and mileage out of the county treasury; and @ whether you shall charge to the judge or to the clerk of the inferior court of Ensley fines col | lected and not paid into the county treas ury, have the honor to advise you as follows:
 Section 547 of the code, section ?, acts 1909, page 252, and section 3, acts 1911, page 492. while authorizing examiners of public accounts to summon witnesses to give testimony to assist them in the ex animation of a public account, are si- lent with reference to the payment of fees to witnesses so attending. Section 3693 of the code prescribes that the law of costs and fees must be held to be penal, and no fee must be demanded or received except in cases absolutely au- thorized by law.
 "Torbert vs. Hale county, 1S1 Ala. 14S. 145.
 "Troup vs Morgan county, 1Os Ala. 162, 16.
 Kahn vs. Locke, 75 Ala. 332.
 'Tillman vs. Wood, 5S Ala 57S.
 'City council of Montgomery vs. Eos ter, 54 Ala. 62.
 "The act creating the inferior court of Ensley (acts 1907, page S90) does not pro- vide specifically to whom fines therein imposed and collected shall be payable, but while setting out in detail the duties of the clerk and failing to state that fines shall be paid to him, it invests the judge of the court with the duties. pow CTS and Jurisdiction of a justice of the peace. Section 6SSS of the code requires that all fines be paid into the county treasury in which the indictment was found or the prosecution begun, and sec tion 74Ss fixes the penalty to be imposed on a. justice of the peace for failure to pay to the county treasurer the amount of fines and forfeitures collected by him, less cerain deductions. Section of the act In question prescribed that the clerk shall pay into the county treasury all costs and fees collected.
 q am, therefore, of the opinion, d) that in the absence of absolute authority for the payment of a witness fee and mile age, such could not be taxed against the county treasury; and (2) that it is the duty of the judge of the inferior court of Ensley to collect the fines therein im- posed and that of the clerk to collect the costs and fees, and each is required to pay into the county treasury the fines and the costs and fees respectively col lected. Yours very truly. 'W. l.. MARTIN, Assistant Attorney General"