
    Gray, Treasurer, etc., v. Abbott.
    
      Application for Mandamus.
    
    1. County treasurer; when required to register witness certificates; mandamus. — Under the provisions of the statute it is the duty of the county treasurer to file and register State’s witness certificates when they are duly authenticated (Code, § 1429, Subdiv. 5); and the fact that such witness certificates had been paid in part by the State out of the convict fund as provided by statute constitutes no excuse for the treasurer’s refusal to file and register such certificate as a claim for the balance due thereon; and upon his failure to so file and register the certificate he can be compelled thereto by mandamus.
    
    Appeal from the City Court of Birmingham.
    Heard before the Hon. W. .W. Wilkerson.
    The appeal in this case is from the judgment of the city court awarding a peremptory writ of mandamus upon the petition of appellee. The facts of the case are sufficiently set forth in the opinion.
    Dill & Allen, for appellant,
    cited Criminal Code, § 4511; 28 Am. & Eng. Ency. Law, 484; Pierpont v. Gronch, 10 Cal. 315; Kora v. Oittj of Ottowa, 32 Ill. 121.
    Kobert N. Bell, contra.
    
   DOWDELL, J.

This was an application by appellee, John P. Abbott, for a peremptory writ of mandamus to Henry B. Gray, appellant here, as 'county treasurer, to compel him, as such treasurer, to file and. register against the fine and forfeiture fund of the county, a State’s witness certificate, issued to one D. O. Keene, for attending as a State’s witness in the case of the State v. Jim Tucker, indicted, tried and convicted for grand larceny in the criminal court of Jefferson county, and which said certificate had been transferred to the said petitioner, John P. Abbott. Said certificate, covering per diém and mileage, was for the sum of $2.80, and on it had been paid the sum of $1.01, that being the pm rata amount payable to said witness out of the convict fund paid on the certificate of the clerk under the provisions of the statute authorizing and directing the payment of certain fees and items of cost in felony cases, leaving a balance due upon the certificate of $1.79.

It is admitted by the appellant, Henry B. Gray, that said certificate was duly authenticated pursuant to the prolusions of 'sections 4584 and 4586 of the Criminal Code. Subdivision 5 of section 1429 of the Code of 1896 makes it the duty of the county treasurer to file and register State’s witness ¡certificates when duly authenticated. The treasurer refused to file and register said certificate, his contention being that the law did not authorize the filing and registering of the certificate of a State’s witness in such a case, because, when payment is made by the State out of the convict fund, as provided by the statute, that such payment fully discharges the witness certificate, whether the same is sufficient to cover the whole amount or not. This contention, we think, is without merit.

The statute which provides for the payment of certain fees and costs out of the convict fund on the certificate of the clerk contains a provision that in no one case in the payment of such fees and costs shall the amount paid exceed the sum of $150. It was not the purpose or intention of the legislature, by the enactment of this statute to abrogate and annul the statute fixing the per diem and mileage of State’s witnesses. To put the construction upon the statute regulating payment of fees and costs out of tbe convict fund as contended for by tbe appellant, would lead to tbe result of fixing tbe per diem and mileage of a State’s witness in a felony case where tbe defendant is convicted and sentenced to tbe penitentiary wherein tbe whole costs exceeded $150, different from that in a case where tbe whole cost was equal tO' or less than $150. We ai*e satisfied that tbe legislature, in tbe enactment of this statute, never bad in contemplation such purpose or result. On tbe admitted facts in tbe case the petitioner was entitled to have bis certificate for tbe balance due thereon filed and registered as a claim against tbe fine and forfeiture fund of the county.

Tbe judgment ’of tbe court below, in awarding tbe peremptory writ of mandamus, is affirmed.  