
    
      Ex parte Mason.
    
      Application for Mandamus to State Auditor.
    
    1. Sheriff’s compensation for feeding prisoners. — Under the act “in relation to feeding prisoners in jail,” approved February 9, 1877 (Sess. Acts 1876-7, p. 65), which reduces the compensation of sheriffs for feeding prisoners in jail, from forty to thirty cents per day, while (he proviso declares “that the provisions of this act shall not apply to any sheriff in office at the time of the adoption of the constitution now in force, but shall be of force after the expires tion of the terms of such sheriffs"; a sheriff who has been appointed since the passage of the act, to fill the unexpired term of one who was in office at the time of its passage, can not claim the benefit of the proviso.
    APPLICATION by George R. Mason for a mandamus to Hon. Willis Bbeweb, State auditor, to compel that officer to draw bis warrant on the State treasurer, in favor of the petitioner, for the sum of $582, the amount of the petitioner’s account, as sheriff of Dallas county, for feeding prisoners in the county jail of Dallas, during the month of May, 1877, at the rate of forty cénits per day. The petition alleged that said Mason was appointed to the office of sheriff by the governor, on the 3d March, 1877, to fill the unexpired term of Charles M. Shelley, who had been appointed to fill a vacancy caused by the failure of one Hamilton White (who had been elected in November, 1874) to file his bond within the time prescribed by law; that he had presented his account, properly sworn to and certified, to the auditor, who refused to allow it, on the ground that the charges were excessive; that he had then, applied by petition to Hon. John A. Minnis, the judge of the City Court of Montgomery, for a mandamus to the auditor, and that said judge refused to grant the writ. The only question in the case involves the construction of the proviso to the act approved February 9, 1877, entitled, “An act in relation to feeding prisoners in jail,” wbicb is copied in tbe opinion of tbe court.
    W. Boíles, and E. W. Pettus, for tbe petitioner,
    cited Dwarris on Statutes, 110; 54 Penn. St. 180; Walker, Micb. 394; 8 Story, 87; 4 Zabr. 86; 1 Wheat. 30; 1 Kent’s Com. 462.
    John W. A. Saneoed, Attorney-General, for tbe State.
   STONE, J. —

Tbe act “ In relation to feeding prisoners in jail,” approved February 9tb, 1877 (Pampb. Acts, 65), declares, “ tbat from and after tbe passage of tbis act, tbe sheriffs of tbe different counties in tbis State shall be allowed thirty cents per day for feeding prisoners in jail, to be paid as now prescribed by law.” There is a proviso, “Tbat tbe provisions of tbis act shall not apply to any sheriff in office at tbe time of tbe adoption of tbe constitution now in force, but shall be of force after tbe expiration of tbe terms of such sheriffs.” Under tbe provisions of tbis statute, the general result was to reduce the pay of sheriffs for feeding prisoners in jail to thirty cents per day. Such would have been tbe immediate effect upon all sheriffs then in office, if tbe statute bad contained only tbe first clause. But, in tbe proviso, it is declared, tbat tbe act shall not “apply to” a named class of persons, or persons in certain named conditions. What are the conditions? First, tbe person claiming tbat tbe statute does not apply to him, must be a “ sheriff in office at tbe time of tbe adoption of tbe constitution now in force.” But it does not apply, for all time, to persons who filled tbis condition. It was not a continuing personal privilege granted to tbis class of persons. Persons then bolding the office of sheriff might be afterwards re-elected to another term. Tbe intention was not to extend tbe privilege through a second term. Hence, to come within tbe proviso, tbe sheriff must meet tbe requirement of a second condition. He must not only have been in office at tbe time of tbe adoption of tbe constitution now in force; but, tbe claim of exemption from tbe operation of tbe statute, to be available, must be during tbe then term of bis office as sheriff. After the expiration of bis then term of office, tbe provisions of tbe statute apply to him as to all other persons. The petitioner, in tbe present case, meets neither of tbe required conditions.

Judgment of Oity Court of Montgomery affirmed, and mandamus refused.  