
    William T. Williams, et al. Plaintiffs in Error, v. State ex rel. Fred W. Newberger, Defendant in Error.
    
    En Banc.
    Opinion filed December 20, 1930.
    Petition for rehearing denied January 15, 1931.
    
      
      Sutton, Tillman & Beeves, for Plaintiffs in Error;
    
      D. C. McMullen, for Defendants in Error;
    
      Macfarlane, Pettingill, Macfarlane & Fowler and A. B. Small, as Amici Curiae.
    
   Whitfield, J.

In mandamus proceedings the Circuit Court held that under Section 2899 Rev. Gen. Stats., 4593 Comp. Gen. Laws, the fees of a constable are the same as those allowed sheriffs for like services under Chapter 10091, Acts of 1925, Section 4588 Comp. Gen. Laws, and Chapter 12021, Acts of 1927, Section 4589 Comp. Gen. Laws, are not the same as the fees prescribed by Section 2891 Rev. Gen. Stats. After the ruling was affirmed on writ of error a rehearing was granted.

Sections 3 and 5, Chapter 2089, Acts of 1877, amended stated Sections of Chapter 1981, Acts of 1874, and fixed the fees of sheriffs and constables separately and specifically. Section 2, Chapter 3106, Acts of 1879, amended Section 3, Chapter 2089, and fixed in detail the fees of sheriffs, and Section 4, Chapter 3106, amended Section 5, Chapter 2089; and provided that “The fees of constables shall be the same as is allowed to sheriffs of the counties for like services.” This quoted provision of Section 4, Chapter 3106, had reference to the fees allowed to sheriffs by Section 2 of the same Act, Chapter 3106.

The two sections of Chapter 3106, Acts 1879, were successively re-enacted as Sections 1255, and 1261, Rev. Stats., 1892, Sections 1683 and 1689, Gen. Stats. 1906, Sections 2891 and 2899, Rev. Gen. Stats 1920.

Chapter 7886, Acts 1919, “An Act fixing the compensation of the sheriffs of the several counties of the State of Florida,” specifically fixed the fees of sheriffs. This Act did not change the reference of Section 1683, Gen. Stats., to Section 1689, Gen. Stats.

Chapter 10091, Acts 1925, “An Act fixing the Fees to be Charged by the Sheriffs of the Several Counties of the State of Florida, and to Repeal Chapter 7886, Acts of 1919, Laws of Florida, Entitled ‘An Act Fixing the Compensation of Sheriffs of the Several Counties of Florida,’ ” specifically defined the fees and per diem compensation of sheriffs in all the counties of the State, and expressly repealed Chapter 7886, Acts 1919; but Chapter 10091, by title or contents, does not refer to Section 2899, Rev. Gen. Stats., or to its subject matter and does not make the latter Section refer to Chapter 10091'; and the express repeal of Chapter 7886 by Chapter 10091 does not change the reference of Section 2899, Rev. Gen. Stats., to the fees allowed sheriffs by Section 2891, Rev. Gen. Stats., since Section 2899, Rev. Gen. Stats., referred to Section 2891, Rev. Gen. Stats., and not to Chapter 7886. If, under the restrictive title of Chapter 10091, provisions relative to the fees of constables had been included in the Act, such provisions as to fees of constables would be inoperative under Section 16 of Article III, Constitution, because the fees of constables are not a part of, or matter properly connected with, the restricted subject expressed in the title of the Act.

Section 4, Chapter 3106, amending Section 5, Chapter 2089, by providing that the fees of constables shall be the same as is allowed to sheriffs of the counties for like services, had reference to the sheriff’s fees fixed by Section 2, Chapter 3106, amending Section^ 3, Chapter 2089; and Sections 2 and 4, Chapter 3106, have been re-enacted in the revisions of 1892, 1906, and 1920, but Section 4, Chapter 3106, as successively re-enacted, has not been amended to make it refer to Chapter 10091; and the amendment of Section 2891, Rev. Gen. Stats., by Chapter 10091, does not in terms or by intendment change the reference of Section 2899 to Section 2891 since the purpose of Chapter 10091 was and is to amend the law fixing the fees of sheriffs, but not to amend Section 2899, Rev. Gen. Stats., which by reference to the provisions of Section 2891, Rev. Gen. Stats., fixes the fees of constables.

The provision of Section 4, Chapter 3106, Acts of 1879, that “the fees of constables shall be the same as is allowed sheriffs for like services,” has reference to the fees of sheriffs “allowed” by Section 2 of the same Act, Chapter 3106; and Section 4, Chapter 3106, had the same reference, when the two Sections of Chapter 3106 were re-enacted in the general revisions of the statutes of 1892, 1906 and 1920. There is nothing in Chapter 10091 indicating an intent that the reference of Section 2899, Rev. Gen. Stats., to the provisions of Section 2891, Rev. Gen. Stats., shall be changed so as. to make Section 2899 refer to the provisions of Chapter 10091 The sole purpose of Chapter •10091 is to revise the fees of sheriffs; and there is no intent that such revision should affect the then existing law with reference to the fees of constables.

The Rev. Gen. Stats, of 1920 are one enactment; and Section 2899 thereof refers to the fees “as are allowed” by the provisions of Section 2891 of the same revision. Both Sections being in the Rev. Gen. Stats, Section 2899, fixes the fees of constabes to “be the same as are allowed sheriffs for like services” meaning the fees that “are allowed” by the same general enactment and not by subsequent statutes.

Reversed.

Terrell, C. J., and Strum and Brown, J. J., concur.

Ellis and Buford, J. J., dissent.

Buford, J.,

(dissenting)—Heretofore I prepared an opinion in this case which was filed January 3, 1930, it having then been concurred in by all of the Justices of this Court. Later a motion for rehearing was filed and a majority of the Court, after further consideration of the case, decided to recede from the views and judgment expressed in that opinion and a majority opinion was then prepared by Mr. Justice Whitfield.

I am unable to concur in the majority opinion. The history of legislation in regard to the statutes involved is correctly stated in the majority opinion, but it is my view that the legislative Acts since the enactment of Chapter 3106 of 1879 amending Section 3 of Chapter 2089 of 1877, including the compilations and revision of statutes adopted by the Legislature as the law of this State, lead to a conclusion other than that which is expressed in the majority opinion.

Section 23, Article V of the Constitution of the State of Florida provides as follows:

"A constable shall be elected by the registered-voters in each Justice’s district, who shall perform such duties, and other regulations as may be prescribed by law.”

Section 2899 Rev. Gen. Stats, of Fla. Section 4597 Comp. Gen. Laws, provides as follows:

"The fees of constables shall be the same as are allowed sheriffs for like services.”

In 25 R. C. L., page 908, the writer, supported by ample authority, says:

“It is a general rule that when a statute adopts a part or all of another statute, domestic or foreign, general or local, by a specific and descriptive reference thereto, the adoption takes the statute as it exists at that time. The subsequent amendment or repeal of the adopted statute has no effect on the adopting statute, unless it is also repealed expressly or by necessary implication. But when the adopting statute makes no reference to any particular statute or part of statute by its title or otherwise, but refers to the law generally which governs a particular subject, the reference in such a case includes not only the law in force at the date of the adopting' act, but also all subsequent laws on the particular subject referred to, so far at least as they are consistent with the purposes of the adopting act. When a prior act is incorporated in a subsequent one in terms or by relation, the repeal of the former leaves the latter in force, unless also repealed expressly or by necessary implication. ’ ’

The fees provided by law to be paid to sheriffs for official services are prescribed by Chapter 10091, Acts of 1925, Section 4588, Comp. Gen. Laws, 1927, and Chapter 12021 Acts of 1927, Section 4589 Comp. Gen. Laws, 1927.

By the provisions of Section 2899 Rev. Gen. Stats., 4597 Comp. Gen Laws, Chapter 10091 Acts of 1925, ■ Section 4588 Comp. Gen. Laws, upon its enactment, became operative as the law of this State governing fees to be paid to constables. For the rule in support of this construction see Jones et al. v. Dexter, Administrator, 8 Fla. 276.

Therefore I think the judgment should be affirmed.

Ellis, J., concurs. ,  