68 Ind. 58 | Ind. | 1879
The question for the decision of this court- in this case may be thus stated : Upon the facts stated in the complaint of the appellant’s relator, was or is he entitled by law to any relief?
In his complaint, the relator alleged, in substance, that the appellee James M. Jackson, having been duly and legally elected and commissioned a justice of the peace in and for Anderson township, Madison county, Indiana, for the term of four years from November 11th, 1876, filed his official bond as such justice, with his co-appellees as sureties therein, on said last-named day, which said bond was then and there duly taken and approved by the then clerk of the court below, and that the said James M. Jackson, having duly taken his official oath, entered upon, and had since continued at all times in, the discharge of his official duties, as such justice of the peace; and that
The appellant’s relator further alleged, that the appellee James M. Jackson had not faithfully discharged his
To this complaint, the appellees demurred, upon the ground that it did not state facts sufficient to constitute a cause of action, which demurrer was sustained by the court, and to this ruling the relator excepted, and, declining to amend his complaint, judgment was rendered against him for the costs of suit.
From this judgment the relator has appealed to this court, and has here assigned, as error, the decision of the circuit court, in sustaining appellees’ demurrer to the relator’s complaint.
In his brief of this cause, in this court, the appellant’s relator asks this court “to consider and determine two questions of law,” as follows :
“1st. Who has the right to prosecute criminal eases before justices of the peace, in counties where there is no criminal prosecuting attorney ?
“2d. Is it the duty of justices of the peace to tax a docket fee of five dollars, for the prosecuting attorney, as a part of the costs against the defendant, in every criminal case, where there is a judgment rendered for a fine and costs ? ”
We will now consider and pass upon the 'questions propounded by the relator, in his brief of this case, and heretofore set out in this opinion.
The effect of said section 79, in this regard, as we construe its provisions, in counties having no separate criminal courts, was to give prosecuting attorneys the same rights, powers and duties in criminal causes before justices of the peace, which the district attorneys had by law at the time the office of district attorney was abolished in and by said section. At that.'time, section 1 of “An act to provide for the election, and certain of the duties of prosecuting and district attorneys,” approved June 11th, 1852, provided for the election, in each common pleas district, of a district attorney, who should prosecute the pleas of the State in the common pleas and justices’ courts of such district. 2 R. S. 1876, p. 415.
In section 4 of the same act, it was provided, inter alia, that, “ in suits before a justice of the peace where the fine can not exceed three dollars, the district attorney shall not receive a fee nor in any other case before a justice, except when requested to prosecute the suit by the injured ór complaining party.” 2 R. S. 1876, p. 416.
If the provision last quoted is in .force, and we have been unable to find any statute which repeals it, we think
2. In answer to the relator’s second question, we may say that we are clearly of the opinion, that it is not the duty of justices of the peace to tax a docket fee of five dollars for the prosecuting attorney, as a part of the costs, against the defendant, in any criminal case where there is a judgment rendered for fine and costs, unless such prosecuting attorney, in person or by his deputy, has appeared and prosecuted such criminal case on behalf of the State, before such justice. The modern legislation of this State, on the subject of fees, has certainly been opposed to, and made no provision fox’, the taxation of constructive fees in any case. Thus, in section 1 of the fee and salary act of March 12th, 1875, which act fixes-the fees of prosecuting attorneys, among other officers, it is provided that the persons and officers named in the act shall be entitled to receive, “ for the services herein provided for,” the salaries, fees and compensation allowed and set forth in the act, and none other. 1 R. S. 1876, p. 467.
In section 35 of said act, it is provided, that if any of the officers named in the act, prosecuting attorneys being named therein, shall “ make any charge for services not by him performed,” any such officer “ shall be deemed guilty of a misdemeanor, and, upon conviction thex’eof,
Construing the provisions of these sections together, it would seem to be certain that the Legislature did not intend that any of the officers tiamed in the act should receive constructive fees, or fees “ for services not by him performed.”
The judgment is affirmed, at the costs of the appellant’s relator.