the solicitor make and file with the auditor, within ten days after the term from which he is absent, an affidavit that such failure to attend or absence was on account of sickness of himself or family, or inevitable accident, or of an epidemic or contagious disease, or wellgrounded apprehension thereof.

1893, p. 679,

5520. Reports to the attorney-general required of all solicitors. Feb. 18, It is the duty of all circuit and county solicitors and all solicitors of $1. city and criminal courts, within ten days after the adjournment of each term of their respective courts, to make and certify to the attorney-general, on blanks to be furnished by the state, a report in writing, stating, as to each character of criminal cases, the number of cases disposed of at each term, the number of convictions, the number of acquittals, the number of nolle prosequies entered, the number which were abated or withdrawn, the number of sentences to death, the number of sentences to the penitentiary, the number of sentences to hard labor for the county, the number of sentences to jail, the number of fines paid or secured, and the totals under each head above mentioned; also the number of criminal cases then pending on the docket.

5521. Penalty for failing to make such report; how recovered. Ib. §2. Any solicitor, or other person acting as solicitor, who shall fail to make full report as and within the time required by the preceding section, forfeits to the state the sum of two hundred dollars, unless he shows a good and sufficient excuse for such failure, to be recovered on motion of the attorney-general in the circuit or city court of Montgomery county, on ten days' notice of such motion. If such defaulting solicitor be paid a salary by the state, such judgment and the costs thereof may be certified to the auditor and the amount retained out of the salary of such solicitor.

5522 (4250) (775) (859) (727). When attorney appointed to act as solicitor; compensation.-The presiding judge, when the solicitor is absent, or when he is connected with the party against whom it is his duty to appear, by consanguinity or affinity within the fourth degree, or when there is a vacancy in the office from any cause, or when the general assembly has failed to elect a solicitor, or when the solicitor refuses to act, must appoint a competent attorney to act in the solicitor's place, who shall act during the absence or disqualification of the solicitor, or until the office is filled by the appointment of the governor, or by an election by the general assembly, or while the solicitor refuses to act; and in all such cases the attorney so appointed shall be entitled to all the fees allowed the solicitors, which shall be taxed against the defendant, on conviction, and collected in the same manner that solicitors' fees are collected.

Appointment must be by the court and entered of record, and can only be proved by the record.-Joyner's case, 78 Ala. 448.

5523 (4251) (776). Solicitor suspended when indicted.-When it shall be made known to any circuit or city court that an indictment is pending against the person who is acting as solicitor of the county in which the court is held, the court must make an order

Feb. 21,
1893,
p. 918.

Ib.

suspending such solicitor; and the solicitor so suspended shall not act as solicitor until such order of suspension shall be set aside.

County solicitor a "ministerial officer," indictable for receiving a bribe, although merely acting solicitor de facto.-Diggs's case, 49 Ala. 311. Conviction of felony vacates office.-Ex parte Diggs, 50 Ala. 78. But right revives on reversal of judgment of conviction.-Ib.

5524 (4252) (777). Same; appointment pro tem.-When any solicitor is suspended, the court shall appoint a solicitor pro tem., who shall perform the duties of the office of solicitor, and receive the fees and emoluments thereof, from such appointment until the original order suspending the solicitor shall be set aside.

See note to preceding section.

5525 (4253) (778). When order of suspension set aside.-When it shall be known to the court that there is no indictment pending in the court in which such indictment was found, or in any court to which a cause may have been removed by change of venue, against a solicitor who has been suspended, the order suspending such solicitor shall be set aside.

5526 (4254) (779). Shall not commence prosecution on own affidavit; exceptions.-It shall not be lawful for a solicitor to commence a criminal prosecution by his own affidavit, except for an offense against his person or his property, or the affidavit be upon his personal knowledge of the commission of the offense charged, except for violation of the revenue laws of the state.

When prosecution will not be dismissed as being brought in violation of this statute. Sale's case, 68 Ala. 530. Statute construed.-Ib.

5527. Salary.-The solicitor for each judicial circuit shall be paid a salary of twenty-four hundred dollars per annum, in monthly installments, on the warrant of the auditor drawn upon the treas

urer.

5528. Commissions.—In addition to the salary provided for in the preceding section, each circuit solicitor shall be paid, at the end of each fiscal year, commissions on fees earned by him at any time prior thereto and actually collected and received into the state treasury during the preceding fiscal year, as follows: Thirty per cent. on the first thousand dollars, or any part thereof, over and above twenty-four hundred dollars; fifteen per cent. on the second thousand dollars, or any part thereof, over and above twenty-four hundred dollars, and ten per cent. on all over forty-four hundred dollars; and at the end of each fiscal year the auditor shall ascertain the amount of fees earned by the solicitor for each judicial circuit which have been actually received into the state treasury during the preceding fiscal year, including fees in penitentiary cases in which the other costs were paid by the state during such year; and if such receipts, as to any circuit, shall exceed the sum of twenty-four hundred dollars, the auditor shall draw his warrant on the treasurer, in favor of the solicitor, for the commissions on such excess as provided in this section. If it shall appear that the fees on which such commissions are allowed were earned by different solicitors of the same

circuit, the auditor shall, after notice to each of them, ascertain and draw warrants for the just and equitable proportion of each such solicitor.

1887, p. 161,

5529. Fees of salaried solicitors paid into state treasury.-All fees Feb. 28, which may be by law taxed as solicitors' fees against defendants on $2. convictions secured by a solicitor who is paid a salary by the state, belong to the state, and, when collected, must be paid into the state. treasury.

5530. Commissions on fines and forfeitures to be paid into county treasury. The five per cent. commissions which such salaried solicitors are entitled to receive on fines and forfeitures must, when collected, be paid into the county treasury to the credit of the fine and forfeiture fund.

Feb. 28, 1889, p.

5531. Solicitor must report fees within ten days after adjourn- : 91. ment of court. It is the duty of each solicitor who is paid a salary $1. by the state, within ten days after the adjournment of any term of the court for which he is solicitor, to make and deliver to the clerk of such court and forward to the auditor, each, a certified statement showing the number and names of the persons convicted at such term of the court, the character of the offense charged, the date of the sentence and the amount of the solicitor's fee in each case.

5532. On such statement auditor charges up fees to clerk.-Upon Ib. §2. the receipt of such statement from the solicitor by the auditor, he must, in a suitable book to be kept for that purpose, charge up against the clerk of the court, the amount of the fees so certified to him by the solicitor; and such fees shall remain charged to such clerk until he shall pay the same into the state treasury and legally account therefor to the auditor. But if it shall be made to appear to the auditor by satisfactory proof that such fees or any part thereof cannot be collected, he shall allow such clerk credit for the amount of such uncollectible fees.

5533. Clerk must make quarterly reports and payments.-At Ib. 8. the end of each quarter of the fiscal year the clerk must report to the auditor and pay over to the treasurer all solicitors' fees by him collected; and for the collection and payment of such fees he may retain five per cent. commissions on the amount so collected and paid over, and the necessary expense of remitting such amount to the treasurer.

1895,

5534. Annual statement of uncollected fees to be furnished so- Feb. 18. licitor. The auditor must, as soon as practicable after the close of p. 1011, §1. each fiscal year, furnish to each solicitor a certified statement of all fees remaining unpaid in his circuit; and such statement shall be prima facie evidence in any proceeding to collect such fees.

5535. Solicitor must proceed to collect fees.-Upon the receipt Ib. 2. 4. of such certificate the solicitor must institute proceedings for the collection of all such fees as remain unpaid; and any solicitor failing to do so forfeits to the state the sum of one hundred dollars, to be recovered on motion and ten days' notice by the attorney-general, in the circuit or city court of Montgomery.

Ib. 3.

Feb. 28,
1887, p. 161,

$4.

Ib.

5536. Failure of clerk to report or remit collections.-Any clerk, who shall willfully or negligently fail for ten days after the end of any quarter to report to the auditor or pay to the treasurer all so- · licitors' fees collected by him during such quarter, less the commissions and expenses of remitting, as provided in this chapter, forfeits to the state five dollars for each and every day that he retains any of such fees, to be recovered of him, on motion and ten days' notice by the solicitor in the circuit court of the county of the residence of such clerk.

5537. Solicitors may appoint deputies in county courts.-The several solicitors may appoint deputy-solicitors to represent the state in the county courts, the deputy to hold office during the term of the solicitor, unless sooner removed by him.

5538. Fees and commissions of deputy-solicitor; limit; residue goes to county.-The deputy-solicitor may collect and retain for his services the fees and commissions earned by him in the county court during the year, not to exceed five hundred dollars per annum; the residue of such fees and commissions must be paid into the treasury to the credit of the fine and forfeiture fund.

county

5539. Deputy-solicitor must report to county treasurer; penalty for failure; duty of treasurer.-At the end of each year of his service the deputy-solicitor must make to the county treasurer an itemized statement, under oath, showing the fees and commissions collected by him during the preceding year; and if he fail to do so, the county treasurer must report the fact of such failure to the county court, whereupon a conditional judgment must be rendered against him for one hundred dollars in favor of the state, to be made absolute after notice to such deputy-solicitor, unless a good excuse is rendered.

5540 (3705) (4448) (3544, 3955). When penal acts take effect. No penal act shall take effect until thirty days after the adjournment of the general assembly at which such act may be passed, unless otherwise specially provided in the act.

See Henback's case, 53 Ala. 523; Taylor's case, 31 Ala. 383. Common-law rule.-Click's case, 2 Ala. 26. Statute fixing time of its effect repeals above section as to such statute.-Henback's case, supra; Olmstead v. Crook, 89 Ala. 228. What is a penal statute.-Ex parte Diggs, 52 Ala. 381. Penal statutes strictly construed, but not to defeat intention of legislature.-Reese's case, 73 Ala. 18; Walton's case, 62 Ala. 197. Legislature presumed to use words in their proper signification.-Thurman's case, 18 Ala. 276. Courts look less at words than at substance.-Thompson's case, 20 Ala. 54. Literal interpretation defeating purpose of statute, not adopted.-Ib. In construing repugnant statutes in Code, original statute consulted to ascertain legislative intent.-Steele's case, 61 Ala. 213. Enrolled bills control errors.-Marshall's case, 14 Ala. 411; Washington's case, 68 Ala. 85. Language, and not punctuation or technical grammatical construction, must control.-Danzey's case, 68 Ala. 296. Where words and terms have changed in meaning since the enactment.-Sike's case, 67 Ala. 80. When part only of statute unconstitutional; and when all fails because of defective part.-Vine's case, 67 Ala. 76; Powell's case, 69 Ala. 10; Walker's case, 49 Ala. 329; Ex parte Pollard, 40 Ala. 77. Rules for interpreting statutes. See Huffman's case, 29 Ala. 40; O'Byrnes's case, 51 Ala. 25; Wetmore's case, 55 Ala. 198; Reese's case, 73 Ala. 18. Act to regulate the doing of business by foreign corporations in this state, and prescribing penalties for failure to comply with its provisions, is a penal act.-Ross v. N. E. Mortg. Security Co.-101 AĬa. 362.

ARTICLE 2.

EFFECT OF REPEAL OR CHANGE OF LAW.

5541 (3706) (4449) (4151). Repeal or change of law; what does not affect; election of new penalty.-No repeal, revision, amendment, or alteration of any law shall in any manner affect any prosecution for an offense committed under the law so repealed, revised, amended, or altered, unless the repealing, revising, amending, or altering law shall otherwise expressly provide; but every such prosecution, whether begun before or after the enactment of such repealing, revising, amending, or altering law, is governed by the law under which the offense may be committed; but in cases where the penalty for the offense may have been altered, the defendant may elect to take the new penalty, but such election must be made before the case is submitted to the jury; nor shall the prosecution for the recovery of any penalty, or the enforcement of any forfeiture, be in any manner affected by the repeal of a statute, but such prosecution shall be carried on to final judgment in all respects as if such statute had not been repealed.

Amendatory statutes, their construction and effect under the constitution, and with reference to the original statute.-Bradley's case, 69 Ala. 318. Repeal and amendment by implication.-Washington's case, 72 Ala. 272; Jackson's case, 76 Ala. 26; Lyman's case, 45 Ala. 78. When statute merely changing mode of punishment will not repeal, by implication, the former statute in its operation on offenses committed prior to the new statute.-Miles's case, 40 Ala. 39; Moore's case, Ib. 49; Miller's case, Ib. 54; Stephen's case, Ib. 67; Wade's case, Ib. 74; Magruder's case, Ib. 347. Statute is repealed by a subsequent repugnant statute; also by a subsequent statute clearly intended to create the only rule that should govern.-George's case, 39 Ala. 675. Without the above enactment, the repeal of a statute exonerated from subsequent prosecution. Freeman's case, 6 Port. 372; Allaire's case, 14 Ala. 435; Jordan's case, 15 Ala. 746; Griffin's case, 39 Ala. 541; George's case, Ib. 677; Burt's case, Ib. 618. Does not apply to changes which only affect procedure.-South's case, 86 Ala. 617. Prosecution under repealed statute.-Bibb's case, 83 Ala. 84. Does not apply to ordinances of municipal corporations.-Barton v. Gadsden, 79 Ala. 495.