195 Mo. 511 | Mo. | 1906
—While plaintiff was prosecuting attorney for Butler county he attended eighteen preliminary examinations in felony cases before justices of the peace and presented his bill for services in those cases to the county court for ninety dollars, being five dollars for each case. The county court disallowed the bill, and the plaintiff appealed to the circuit court where a trial was had and judgment rendered for the plaintiff, from which judgment the county prosecutes this appeal.
II. The only question that the record proper presents is, does the plaintiff’s bill for services in attends ing the preliminary examinations in felony cases before justices of the peace in his county, state a cause of action? If so, the court having rendered judgment in plaintiff’s favor, we must presume, in the absence of a bill of exceptions, that .the plaintiff proved his claim and that no error occurred during the trial.
Is a prosecuting attorney entitled to a fee for attending and representing the State in a preliminary examination before a justice of the peace of his county in a felony case? There is no question of quantum meruit in this case; if the officer is entitled to the fee claimed he can point to the statute'which gives it to him, and this he has attempted to do.
Section 3237, Revised Statutes 1899, specifies the fees a prosecuting attorney may have in certain cases.
Attending preliminary examinations before a committing magistrate is within the general scope of a prosecuting attorney’s duties, but it is not especially prescribed in the clause of section 4951 above quoted or in any other statute. The “cases before justices of the peace, where the State is made a party thereto,” mentioned in section 4951, are cases for trial in a justice’s court, nor mere preliminary examinations. This is not only apparent on the face of the section itself, but is shown in the two sections next following; section 4952 makes it the duty of the prosecuting attorney to attend in behalf of the State in habeas corpus proceeding; then comes section 4953: “No justice of the peace or judge of a court of record having jurisdiction shall allow any such cases as are alluded to in the two preceding sections, to be tried before him, unless the prosecuting attorney shall be present or some one properly qualified to prosecute for him; and it shall be the duty of
Returning to the clause in section 3237 above quoted: “for his services in all actions which it is or shall be made his duty by law to prosecute or defend, five dollars,” we construe the word “actions” as there used to mean suits in court upon which judgments may be rendered ; it does not include preliminary examinations before a committing magistrate.
For services of the kind rendered by the plaintiff in the case before us he is compensated by his salary and is entitled to no fee. The account or bill sued on does not constitute a cause of action against the county. The judgment is therefore reversed.