Hedges v. County Commissioners of Lewis & Clarke County

4 Mont. 280 | Mont. | 1882

. Wade, C. J.

The respondent, claiming certain fees as probate judge of Lewis and Clarke- county, presented his account therefor to the board of commissioners of the county, and the same was disallowed, and the respondent appealed to the district court, where he recovered judgment for the amount of his claim, from which the board of commissioners appeal to this court.

It is admitted that the probate court had jurisdiction to try the cases in which these fees were charged, and that the items thereof are correct, providing the act of the legislative assembly of January 12, 1872, in relation to fees of clerks of the district court, is in force and applicable to the fees of a probate judge.

The act referred- to (see Codified Statutes, p. 420) prescribed the fees that clerks of the district court should be entitled to charge for and receive.

The act of May 3, 1873 (Rev. Stat. p. 531), provides for the fees of probate judges in matters' pertaining to their probate jurisdiction, to which is added the following provision: “ For all civil cases, and other than probate matters, the same fees as are allowed to clerks of district court in similar cases.”

By an act of February 21, 1879, the legislature provided that the clerks of the district court should receive a salary for their services, and repealed all acts and parts of acts relating to the fees of clerks of district courts. This act did not repeal that of May 3, 1S73, wherein it is provided that probate judges, for all civil casés and other than probate matters, shall be entitled to receive the same fees as clerks of district courts in similar cases. Its purpose was to provide a salary for the clerks, and, as to them, to repeal the fee bill contained in the act of January 12,1872. The act of May 3, 1873, remaining in force as to the fees of probate judges, and necessarily referring to the act of January 12, 1872, and, as it might be said, forming part thereof, it follows that, as to the fees of probate judges, the act of January 12, 1872, is still in force. It cannot be repealed as to probate judges while the act of May 3,1873, is in force. Its repeal as to clerks-of district courts, while that act remains in force, does not repeal it as to probate judges.

The fees charged for in the account of the probate judge herein arose in criminal cases, and it is contended by appellants that the act of May 3, 1873, does not cover, or is not applicable to, fees in criminal cases. The act provides first for the fees in probate matters, then for fees in civil cases, and then for fees in all other cases, which must necessarily include the fees in criminal cases as specified and provided for in the act of January 12, 1872. Any different construction would require us to say that probate judges should receive no fees in any other than probate matters and civil cases, which would be a plain misinterpretation of the legislative intent.

In construing a statute effect must be given to all its language, if possible, and so, giving effect to the language used in the act of May 3, 1873, we hold that it authorized probate judges to charge for and receive such fees in criminal cases as the act of January 12, 1872, provided for and authorized the clerks of district courts to receive for similar services.

It is further contended that, by virtue of an act entitled “An act to curtail certain expenses,” approved February 13, 1871, the board of county commissioners is given the arbitrary power and discretion to allow or disallow the fees of probate judges in the cases therein named, which includes the class of fees the respondent seeks to recover in this action.

That act provides as follows: “That the county commissioners of the several counties of this territory, when any bill of costs of any justice of the peace, constable, marshal, sheriff or other officer of this territory, or of any county, township or precinct therein, is presented to them for fees, in any case of misdemeanor not prosecuted by indictment, for allowance, shall not allow the same unless, in their judgment, it appeared at the time such cause was prosecuted and said fees accrued to said officers that the public welfare and good order and peace of the territory would be promoted by such prosecution; nor shall they, in any event of conviction, allow any fee or cost of any officer out of the public funds, until they are satisfied that every reasonable effort has been exhausted to collect out of the property of the defendant or defendants convicted such fees.”

This statute must be construed in connection with section 410 of the Criminal Practice Act, which provides: “If any person charged with any offense less than a felony shall be discharged by the officer taking his examination, the costs shall be paid by the prosecutor or person on whose oath or information the same shall have been instituted, unless the officer shall certify that there was probable cause for the prosecution, in which event they shall be paid by the county in which the offense was committed.”

The certificate of probable cause mentioned in this section is a judicial act, and cannot be reviewed, except by judicial authority. The county commissioners have no judicial powers. They cannot, in any sense, exercise the functions of a court. By the organic act, the judicial powers of the territory are vested in the supreme court, the district courts, the probate courts, and courts of justices of the peace, and any statute of the territory that attempts to clothe county commissioners with judicial authority is necessarily null and void. They cannot be given authority or discretionary power to say when the criminal laws of the territory shall take effect or be enforced. They have no authority to declare that a statute giving an officer certain designated fees for services performed by him is a nullity. When any person charged with a misdemeanor is discharged by the officer taking the examination, and such discharge is accompanied with a certificate of probable cause, the county in which the examination is held thereby becomes liable for the fees provided by law consequent upon such examinations, and it is the duty of the board of county commissioners to audit and pay the same.

The judgment is affirmed, with costs.

Judgment affirmed.