28 Kan. 40 | Kan. | 1882
Prior to the convening of the legislature of 1881, §19, ch. 39 Gen. Stat. 1868, fixing the fees of certain officers and persons therein named, read:
“In all cases where the fees prescribed by this act, in criminal cases, for the sheriff and clerk, are not paid by the defendant or the prosecuting witness, they shall be paid by the county in which the criminal prosecution is instituted :■ Provided, That no such fees.shall be paid by the board of county commissioners before the next term after conviction, and not until the sheriff and clerk of the district or criminal court shall file their affidavits that such fees cannot be collected from any other source.”
And § 27, ch. 83, Gen. Stat. 1868, regulating the procedure before justices of the peace in cases of misdemeanor, read:
“No costs shall be paid by the county in any case of misdemeanor of which a justice of the peace has jurisdiction, under this act, when the complainant or defendant shall be adjudged to pay them.”
By ch. 108, Laws of 1881, it was provided:
“That section 19, of chapter 39 of the General Statutes of 1868 be amended so as to read as follows: Section 19. In all cases where the fees prescribed by this act, in criminal cases, for the sheriff, clerk, constables, justices of the peace, witnesses for the state, and j urors, are not paid by the defendant or the prosecuting witness, they shall be paid by the county in which the criminal prosecution is instituted: Provided, That no such fees shall be paid by the board of county commissioners until the sheriff shall have filed his affidavit that such fees cannot be collected from any other source.”
This last expression of the legislature not only amends and changes §19 of ch. 39, Gen. Stat. of 1868, but repeals by implication also § 27 of ch. 83, Laws of 1868, and by express terms creates a liability against counties in which criminal prosecutions are instituted, not existing prior to the enactment of ch. 108 of the Laws of 1881.
Counsel for plaintiff in error refer to the case of Comm’rs of Osborne Co. v. Honn, 23 Kas. 256, and contend that as
The judgment of the district court will be affirmed.