
    Caldwell v. The State.
    
      Indictment for Violation of Revenue Lato.
    1. Solicitor’s fee for conviction under revenue law. — Section. 3652 of the Revised Code, specifying the punishment for violations of the revenue law, was necessarily repealed by the inconsistent provisions of the subsequent revenue laws of 1868 and 1875, which increased the punishment of those offenses ; and the repeal of this section left no statutory provision for the solicitor’s fee for conviction in such cases, except as “misdemeanors not expressly provided for,” to which a fee of seven dollars and a half was affixed by section 1343, which was increased to thirty dollars by the act approved March 7, 1876 (Sess. Acts 1875-6, p. 213).
    2. Costs in criminal cases not within constitutional provision abolishing imprisonment far debt. — The constitutional provision which prohibits imprisonment for debt, Art. I, § 21, does not apply to the costs which accrue on conviction in a criminal case; nor is there any other constitutional provision which prohibits the legislature from mating the payment of such costs a part of the. punishment, and subjecting their non-payment to an increased punishment.
    3. Ex post facto law; law increasing costs in criminal cases. — A law increasing the costs on conviction in a criminal case is penal, and cannot apply to offenses committed prior to its passage, although the trial and conviction may take place subsequent to its passage; if applied to such cases, it would be an ex post facto law.
    Appeal from tbe Circuit Court of Wilcox.
    Tried before tbe Hon. John K. HenRY.
    Tbe defendant in tbis case, wbo was a practicing physician, was indicted for a violation of tbe revenue law in failing to take out a license. He pleaded guilty, and was fined thirty dollars, Having paid tbe fine and costs, be moved tbe court to re-tax tbe costs, and to reduce tbe solicitor’s fee from thirty dollars to seven dollars and a half; and tbe overruling of tbis motion, to which be reserved an exception, is. the only matter here assigned as error. Tbe material facts are stated in tbe opinion.
    B. GaxllaRD, for tbe appellant,
    cited Sedgwick on Stat. & Const. Law, 126, 358; Dwarris on Statutes, 643-4; Morgan v. The State, 47 Ala. 36.
    John W. A. Sanford, Attorney-General, for tbe State.
   STONE, J. —

Section 3652 of tbe Bevised Code declares, that “ any person, wbo does any business, or does any act, for which, under tbe provisions of tbe revenue law, be is required to procure a license or to pay a tax, without having first obtained a license from tbe proper legal authority, or paid the tax required by law, is guilty of a misdemeanor, and, on conviction thereof (unless some other punishment is expressly provided by law), must be fined double the amount of the required license or tax.” Section 4343 of the Revised Code gives to the solicitor, for each conviction under section 3652, a fee of thirty dollars. The same section, in a subsequent clause, gives to the solicitor, “for each conviction of a misdemeanor, not herein above expressly provided for,” seven dollars and fifty cents. The revenue law, approved 81st December, 1868 (Pamph. Acts, p. 330, § 111), and the act on the same subject approved 19th March, 1875 (Pamph. Acts, p. 36, § 101), each provides different and increased punishment for the offense denounced by section 3652 of the Revised Code, and necessarily repeals that section of the Code. George v. Skeates, 19 Ala. 738.

The effect of the repeal of section 3652 of the Revised Code was to leave the offense provided for in section 101 of the act of 1868, and section 101 of the act of 1875, without any specified fee to the solicitor for convictions under them. This offense, then, fell into the class of misdemeanors not expressly provided for; and the fee of the solicitor under it was thereby reduced to seven dollars and fifty cents.

The act of 1875 provides, “that any person who, after the first Monday in April, 1875, * * * shall be engaged in, or carry on, any business or profession,” for which a license is required, “ without having paid for and taken out such license, shall be guilty of a misdemeanor,” <Sbc. The defendant was indicted, under this section, at the Spring term, 1875, of Wilcox Circuit Court. The indictment charged that, before the finding of the indictment, “ and after the 15th day of April, 1875,” the defendant committed the offense for which he was indicted. This indictment was “ filed in open court, May 1st, 1875.” At the November term, 1876, the defendant pleaded guilty, and judgment was pronounced against him. The clerk, in taxing the costs, allowed and taxed a fee of thirty dollars in favor of the solicitor. A motion was made, and overruled, in the court below, to have the solicitor’s fee re-taxed, and reduced to seven dollars and fifty cents. This is the only question presented for our consideration.

The act “ to regulate the duties, and provide for the compensation of solicitors of judicial circuits,” approved March 7,1876 — Pamph. Acts, 218= — declares, in section 5, “that for each conviction of a violation of the revenue laws of this State, the solicitor shall be entitled to a fee of thirty dollars.” It will be observed that this act was passed after the offense was committed, and after tbe indictment was found, but before tbe trial and conviction. Tbe question for our decision is, wbat law is to govern tbe taxation of costs ?

In tbe case of Morgan v. The State, 47 Ala. 36, tbe question was, whether, under tbe constitution, tbe court could sentence a prisoner to imprisonment, or bard labor for tbe county, for tbe non-payment of costs, tbe fine having been paid. This court, Chief Justice Peoe delivering tbe opinion, said: In criminal cases, the cost is no more a debt than tbe fine, and, accurately speaking, not so much so; for tbe fine is a sum certain, and the cost is not.” And tbe court refused to reverse tbe sentence to bard labor, for tbe nonpayment of costs.

In tbe following eases, costs due to tbe officers of court, on conviction in criminal cases, are treated as only money debts, and not punitive in their character: State v. Farley, 8 Blackf. 229; Thompson v. State, 16 Ind. 516; Anglea v. Commonwealth, 10 Grat. 700; Duncan v. Commonwealth, 4 Serg. & R. 450; Edwards v. The State, 7 Eng. 124; Playford v. Commonwealth, 4 Barr, 144. We do not think, however, that this is decisive of the present case, even if it were an open question in this court. It certainly is competent for the legislature to declare, that the payment of the costs that may accrue to the officers, in the prosecution and conviction of an offender, shall constitute a part of the punishment. No provision of the constitution can be pointed out, which forbids this. The fact that tbe costs, when collected, go to tbe officers of court, and not to the State or county, exerts no decisive influence on the question. On conviction for malicious mischief, under sections 3733 to 3738 of the Be-vised Code, the fine goes to the party injured, when private property is the subject of the mischief; yet no one will contend that such fines are not punishment for the public of-ígusg»

Sections 3760, 3762 and 4061 of the Bevised Code go very far to show, that the legislature intended to make the nonpayment of costs, imposed in a criminal cause, the ground of an increase of punishment. When such increased punishment was added, its benefits, if any, as the statute originally stood, did not enure to the officers to whom the costs were due. The statute contained no provision which authorized that. It simply augmented, to that extent, the punishment imposed, as a consequence of the non-payment of fine and costs. Such additional punishment is, doubtless, as much within the pardoning power of the executive, as any other part of the sentence pronounced on a convicted offender.

The non-payment of costs imposed on conviction of a criminal offense being thus shown to be penal under our statutes, it follows, that any statute enacted after the corn-. mission of an offense, which increases the cost to be adjudged on convic~ion, n~cessarily increases the punishment on non-pay~inent. Such statute, when applied to past offenses, is ex pos~facto.-1 Bish. Or. Law, sections 572 et seq. The solicitor was not entitled to the fee of thirty dollars, under the act of March 7th, 1876, and the Oircuit Oourt should have ordered the re-taxation moved for.

Reversed and remanded.  