BINFORD, Sheriff, v. ROBINSON, Judge, et al., 244 S.W. 807

PIERSON, J. Respondent C. W. Robinson, judge of the criminal district court of Harris county, refused to approve the account of relator, T. A. Binford, sheriff of Harris county, for the November term of court 1920, holding that under

article 1122, subdivisions 1 and 5 thereof, of the Code of Criminal Procedure, the relator, Binford, was not entitled to 10 cents per mile for himself and 10 cents per mile for the prisoner in returning with and conveying to jail a prisoner, but that under said

article only 10 cents per mile was allowed for himself and the prisoner when only one was conveyed, and. 8 cents per mile for each additional prisoner when there were more than one. Thereupon the relator changed, his account so as to conform to the judge’s ruling, and the account-was approved. However, respondent Lon A. Smith, the comptroller of the state, refused to approve and order payment of same as reformed and changed, holding that under said

article 1122 relator, the sheriff, was allowed 10 cents per mile for himself and 10 cents for the prisoner, where only one was conveyed, and the 8 cents per mile for each additional one. Thus, between the rulings of the two respondents, relator was unable to secure the approval and payment of his account. Therefore he prays for a writ of mandamus, first, to require respondent Robinson to approve his account for mileage as first presented to him. But if it should be determined that under

article 1122 he is not entitled to 10 cents per mile for himself and 10 cents per mile for one prisoner, then, in the alternative, he prays for a writ to require the comptroller to approve his account for the allowance of mileage of only 10 cents per mile for both himself and the prisoner. He is clearly entitled to his writ of mandamus against one or the other. The issue in the case is the

interpretation or construction of said

article 1122. The parts of

article 1122 of the Code of Criminal Procedure that are material to this case read as follows: “Fees to Sheriff or Constable. — The sheriffs and constables in this state shall receive the following fees: “1. For executing each warrant of arrest or capias, for making arrest without warrant, when so authorized by law, the sum'of one dollar, and in all cases, five cents per mile for each mile actually and necessarily traveled in. going to the place of arrest; and, for conveying the prisoner or prisoners to jail, he shall receive the mileage provided in subdivision five of this act. ****** “5.

For removing or conveying prisoners, for each mile going and coming, including guards, and all other necessary expenses-when traveling by railroad, ten cents.

When traveling otherwise than by railroad, fourteen cents; provided, that where more than one prisoner is so conveyed or removed at the same time, in addition to the foregoing, he shall only be allowed eight cents per mile for each additional prisoner.” We agree with the proposition that statutes of this character are to be strictly construed, and that an officer cannot be permitted to take from the revenues of the state, or to divert from its course to the treasury, money not provided for by statute. State v. Moore, 57 Tex. 307; McLennan County v. Boggess, 104 Tex. 311, 137 S. W. 348.

Yet, the statute here undoubtedly makes provision for the mileage of sheriffs, and, its language not being perfectly clear, it is incumbent upon us, if possible, to ascertain its meaning from its text and to construe it in the light of its setting and'the legislative purpose, if same can be reasonably ascertained. It will be observed that subdivision 1 provides that the sheriff shall receive 5 cents per mile in going after a prisoner, and for returning with the prisoner to jail he shall receive the mileage provided in subdivision 5.

Subdivision 5 provides mileage to be received for removing or conveying prisoners, including guards and all other necessary expenses. The subject in subdivision 1 is the mileage allowed to the sheriff for Ms going after a prisoner and for returning with and conveying the prisoner to jail. The subject in subdivision 5 is the mileage provided for the removal or conveyance of prisoners. We construe subdivision 1 to mean that the sheriff, in conveying the prisoner or prisoners, shall receive for Ms mileage tlie mileage provided in subdivision 5 for tbe conveyance of prisoners.

Subdivision 1 allows bim 5 cents per mile for going after tbe prisoner, and for bis return with tbe prisoner it allows bim tbe mileage provided in subdivision 5, relating to tbe conveying of the prisoners. Tbe subject in subdivision 5 is tbe mileage provided for conveying prisoners, which allows 10 cents per mile for conveying one, and 8 cents per mile for each additional prisoner. An analogous piece of legislation is found in

article 1130 of the Code of Criminal Procedure. There the Legislature was dealing with identically tbe same subject-matter as here, except it was providing for mileage to be allowed in counties of less than "40,000 inhabitants. „ Tbe subdivision numbers and tbe language used are tbe same, and tbe

article is tbe same throughout, except that a larger allowance is made for sheriffs in smaller counties. Subdivision No. 1 of that article, as amended by tbe Acts of the Thirty-Fifth Legislature,

chapter 161, page 370 (Vernon’s Ann. Code Cr. Proc. Supp. 1918, art. 1130, subd. 1), provides that in counties having a population of less than 40,000 inhabitants tbe sheriff is allowed fifteen cents per mile for going after tbe prisoner, and for conveying the prisoner or prisoners to jail, mileage as provided in subdivision 5 of said

article 1130 of the Code of Criminal Procedure, which is 10 cents per mile for conveying one prisoner, and 8 cents per mile for each additional one. Thus it will be seen that the Legislature provided mileage for the sheriff in. going-after a prisoner fifteen cents per mile, and in returning with the prisoner — a more onerous and responsible undertaking — only ten cents per mile, unless it was the legislative intent in the language it used to provide that the sheriff should receive the same mileage for himself as provided in subdivision 5 for one prisoner. As stated, the question of the

interpretation of

article 1122 of the Code of Criminal Procedure, involved in the litigation before us, is the very same as that in

article 1130 of the Code of Criminal I’rocedure. While it might be argued that the Legislature did not have

article 1122 in mind when it amended

article 1130, yet it is at least persuasive as to the general policy of that body upon the same subject-matter. If

article 1130 is to be construed to mean that the sheriff is entitled to 10 cents per mile for himself and 10 cents per mile for one prisoner, and 8 cents per mile for each additional prisoner, then

article 1122, under ebnsideration, must be so construed, as the question is the same. We think there can be but little doubt that the Legislature in enacting

article 1130, meant to provide for 10 cents mileage for the sheriff himself upon his return trip with the prisoner or prisoners. It allowed the sheriff 15 cents per mile for going after a prisoner. Then he was free from the responsibility of keeping his prisoner, and from the care, burden, and necessary expense of looking after and providing for him.

If allowed only 10 cents per mile on his return with the prisoner, for both himself and the prisoner, he would be allowed much less than while going after the prisoner, though free from responsibility and extra expense; and yet, as provided by subdivision 5, the 10 cents per mile was to include “guards a/nd all other necessary expenses.” We apply the same construction to

article 1122. The fact that 10 cents per mile to cover both the mileage of the sheriff and the prisoner, “including guards and all other necessary expenses,"’ is inadequate, and often entailed an actual loss upon the sheriff, supports our construction of this statute. Doubtless this fact was known to the district judges of the state and to the comptroller,, and was in the mind of the Legislature when the law was enacted.

This construction does no violence to the wording of the statute, and is better supported by the reasoning suggested by the wording of the statute itself and by what, more clearly, we think, was the intention of the Legislature. While fee statutes should be strictly construed yet; in applying them and in ascertaining the intent of the Legislature and tlie meaning of the statute, the usual methods and rules of

interpretation are applicable. It is true the Legislature used the words “for conveying” the prisoner or prisoners, in subdivision 1 and subdivision 5, and therein lies the difficulty.

If these words and the sentences in which they appear are given a strictly literal construction, and if the subsequent language used and the general import and meaning of the two subdivisions taken together are ignored or rejected, then perhaps it should be held that the statute limits the sheriff’s mileage on return with his prisoner, “including guards, and all other necessary expenses,” to 10 cents per mile for himself and the prisoner. But we think this construction would do violence to the real meaning of the statute as disclosed by the statute itself.

The analysis is this: The sheriff is allowed 5 cents per mile while going after the prisoner (free and foot-loose, so to speak). On returning to the jail with the prisoner, with the increased burden, responsibility, and hazard of conveying his prisoner, he shall receive far himself the mileage provided in subdivision 5, which is 10 cents per mile; and, as provided in subdivision 5, for removing or conveying the prisoner, including guards, and all other necessary expenses, he shall receive 10 cents per mile. In

article 1122, the

article under consideration, subdivision 5 provides that for each additional prisoner the sheriff shall receive only 8 cents per mile. In the first place, what is the significance of the little word “only”? Simply that the sheriff was to receive 10 cents per mile for conveying one prisoner, and 8 cents for each additional prisoner, thus providing for each individual, 10 cents per mile for each person (including the sheriff, for he had to travel and bear the necessary expenses incident thereto), and when conveying more than one prisoner, then only 8 cents per mile should be allowed for each additional one.

The writ is granted, directing the respondent district judge to approve relator’s account for 10 cents per mile for himself and 10 cents per mile for the prisoner when only one is conveyed. CURETON, C. J., not sitting. <S=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes