Ex parte State

Supreme Court of Alabama

Ex parte State

89 Ala. 177

CourtSupreme Court of Alabama

DecidedNovember 15, 1889

StatusPublished

Cited by5 cases

This text of 89 Ala. 177 (Ex parte State) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ex parte State, 89 Ala. 177 (Ala. 1889).

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Opinion

STONE, C. J.

The amendment of section 4731 of the Code of 1876, approved February 26, 1881 (Sess. Acts, 37), declared a limit on the term for which a convicted offender can be sentenced to hard labor for non-payment of costs. Code of 1886, § 4504. Before that time, the only limit was the amount of costs adjudged, at the rate the statute permitted the presiding judge to fix as the per diem allowance. The amended statute fixed the limit of the sentence for costs, in convictions of misdemeanor, at eight months, and not less than thirty cents per diem for each day. Under the statute, if the labor of the convict, at the rate per day fixed by the presiding judge, pays the whole adjudged costs in less than eight months, whenever the payment is completed, the prisoner is entitled to his discharge. On the other hand, if, at the rate fixed, it requires more than eight months to make such payment in full, then the term of the imprisonment on that account can not be extended beyond that term. This is a mere boon extended to convicted offenders, by shortening the term of the alternate mode of collection. It is not a release of the residue of the costs.

Theamount of the costs adjudged in this case was $172.75, whereas the wages of the prisoner for eight months, at thirty cents, would amount to only seventy-two dollars. His right to be discharged from the sentence against him for costs depends, not on the payment of the balance of $72.00, as claimed by him, but on the payment of the balance of $172.75, the costs adjudged against him.

Upon payment of the costs — the whole adjudged costs, less the part paid in labor — the defendant will be entitled to his discharge, but not till then. The statute prescribes in what manner such payment shall be certified; by “the judge, or the clerk of the court in which the conviction was had.” This is a purely ministerial act, and can not be restrained by prohibition, or by any other original, supervisory writ this court can issue. — Atkins v. Siddons, 66 Ala. 453; High

[179]*179Extr. Legal Bemedies, § 762. Should the clerk attempt improperly to give such certificate, a mandatory order of the court of which he is clerk would probably be the remedy. If the attempt be made by the judge of the court, then mandamus would appear to be the remedy, issued by the Circuit Court, or this court, dependent on the inquiry whether the trial court was one of limited or general jurisdiction. — Code of 1886, §§ 758, 695, subd. 2.

Prohibition denied.

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STONE, C. J.

The amendment of section 4731 of the Code of 1876, approved February 26, 1881 (Sess. Acts, 37), declared a limit on the term for which a convicted offender can be sentenced to hard labor for non-payment of costs. Code of 1886, § 4504. Before that time, the only limit was the amount of costs adjudged, at the rate the statute permitted the presiding judge to fix as the per diem allowance. The amended statute fixed the limit of the sentence for costs, in convictions of misdemeanor, at eight months, and not less than thirty cents per diem for each day. Under the statute, if the labor of the convict, at the rate per day fixed by the presiding judge, pays the whole adjudged costs in less than eight months, whenever the payment is completed, the prisoner is entitled to his discharge. On the other hand, if, at the rate fixed, it requires more than eight months to make such payment in full, then the term of the imprisonment on that account can not be extended beyond that term. This is a mere boon extended to convicted offenders, by shortening the term of the alternate mode of collection. It is not a release of the residue of the costs.

Theamount of the costs adjudged in this case was $172.75, whereas the wages of the prisoner for eight months, at thirty cents, would amount to only seventy-two dollars. His right to be discharged from the sentence against him for costs depends, not on the payment of the balance of $72.00, as claimed by him, but on the payment of the balance of $172.75, the costs adjudged against him.

Upon payment of the costs — the whole adjudged costs, less the part paid in labor — the defendant will be entitled to his discharge, but not till then. The statute prescribes in what manner such payment shall be certified; by “the judge, or the clerk of the court in which the conviction was had.” This is a purely ministerial act, and can not be restrained by prohibition, or by any other original, supervisory writ this court can issue. — Atkins v. Siddons, 66 Ala. 453; High

[179]*179Extr. Legal Bemedies, § 762. Should the clerk attempt improperly to give such certificate, a mandatory order of the court of which he is clerk would probably be the remedy. If the attempt be made by the judge of the court, then mandamus would appear to be the remedy, issued by the Circuit Court, or this court, dependent on the inquiry whether the trial court was one of limited or general jurisdiction. — Code of 1886, §§ 758, 695, subd. 2.

Prohibition denied.

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Bluebook (online)

89 Ala. 177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-state-ala-1889.

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