Tilden v. Esmeralda County

32 Nev. 319 | Nev. | 1910

By the Court,

Noecross, C. J.:

Appellant is the district attorney of Esmeralda County, and brings this action against said county to recover the sum of $740 alleged to be due him as fees for official services. To his complaint a demurrer was interposed in the lower court and sustained. He elected to stand upon the sufficiency of his complaint, and judgment for costs was entered in favor of the respondent county. From the judgment he appeals.

The appeals presents the following questions of law: (l) Is the district attorney of Esmeralda County entitled, in addition to his salary, to fees for convictions in felony cases as provided in Comp. Laws, 2306? (2) Is he entitled to a fee of $10 for all convictions in vagrancy cases under the provisions of Comp. Laws, 4866?

By an act entitled " An act regulating the compensation of county officers in Esmeralda County in the State of Nevada” approved March 15,1905, it is provided:

"SÉcxioN 1. From and after the approval of this act, the county officers of Esmeralda County, State of Nevada, named in this act, shall receive the following salaries and fees in full compensation for their services: * * * The district attorney and ex officio superintendent of public schools shall receive eighteen hundred ($1,800) dollars per annum. * * *

"Seo. 2. All acts or parts of acts in conflict with the provisions of this act are hereby repealed.” (Stats. 1905, p. 210.)

By an act entitled "An act pertaining to compensations of county officers in Esmeralda County, in the State of Nevada, and repealing all acts or parts of acts in conflict therewith” approved March 11, 1907, it is provided:

"Section 1. From and after the passage of this act the county officers of Esmeralda County, named in this act, shall receive the following salaries, fees and commissions for their services and none other: * * * The district attorney and ex officio superintendent of public schools shall receive $3,000 per annum, and such fees and commissions as are now allowed by law. * * *

"Sec. 2. All acts and parts of acts in conflict with this act are hereby repealed.” (Stats. 1907, c. 50.)

It is conceded by respective counsel that prior to the act of 1905, supra, the district attorney of Esmeralda County was entitled to the fees pertaining to that office, prescribed in the general laws. The general act relating to the office of district attorney, and which prescribes the duties of that officer, was approved March 11; 1865, and is entitled "An act concerning district attorneys.” (Comp. Laws, 2296-2310.) By the twelfth section of this act it is provided: "The district attorney, in addition to the yearly salary allowed by law, shall receive the following fees: For each conviction in capital cases, the sum of one hundred dollars; on conviction of any other felony, fifty dollars, and for a misdemeanor. * * *” (Comp. Laws, 2306.)

By section 7 of an act entitled "An act concerning vagrancy and vagrants)’ approved March 5, 1877 (Comp. Laws, 4860-4867), it is provided: "For each and every legal conviction under this act the district attorney shall be entitled to receive the sum of ten dollars from the county. * * *” (Comp. Laws, 4866.)

It is the contention of counsel for respondent that the appellant is not entitled to any fees, because by the act of 1905, supra, all former laws, were repealed, and he was limited to $1,800, which was his only compensation, and, because the words,"and such fees and commissions as are now allowed by law” used in the statute of 1907, supra, could not operate to create a law which did not theretofore éxist, nor could they operate to revive a dead or repealed law; hence, that such words are of no force or effect.

The act of 1905, supra, being special, and applicable only to Esmeralda County, did not operate as a repeal of any portion of the general laws applicable to the office of district attorney, but only to suspend the operations of such general laws as to said county, in so far as they were in conflict with the special act.

In Lewis’s Sutherland on Statutory Construction, 2d ed. vol. 1, sec. 275, p. 532, the author says: "If the special statute is later, the enactment operates necessarily to restrict the effect of the general act from which it differs. These interpretations harmonize with the rule that when a general intention is expressed, and also a particular intention, which is incompatible with the general one, the particular intention shall be considered an exception to the general one. The special act is in the nature of an exception to the general law and suspends its operation in the field covered by the special act, and when the latter is.repealed the general law operates as if the special law had never existed.” (Santa Barbara v. Eldred, 95 Cal. 378, 30 Pac. 562; People v. Hunt, 41 Cal. 435; State v. Sawell, 107 Wis. 300, 83 N. W. 296.)

We do not think it was the intention of the legislature, by section 7 of the vagrancy act, supra (Comp. Laws, 4866), to give to district attorneys, as contended, a fee of $10 for every conviction under the act, regardless of whether the district attorney actually prosecuted the case, or even had knowledge that the same was being so prosecuted.

A similar question was presented to the Supreme Court of California in the case of Edwards v. County of Fresno, 74 Cal. 475, 16 Pac. 239. The court disposed of it in the following apt language: " It will be perceived that the district attorney for Fresno County was -by law to be paid for his services a salary, and, in certain cases, fees for convictions. We can discover nothing in our laws relating to the district attorney, his duties or fees, which permits us to think that the legislature intended the plaintiff here should be entitled to charge and receive the sum of $15, or any other sum, from the County of Fresno, for convictions where he never instituted any proceedings at all, never appeared before the magistrates where the convictions were had, or rendered any service whatever, either by himself or deputy. The pervading-idea that runs through the whole law pertaining to the compensation allowed district attorneys is for services rendered as such. Where the law allows him a fee for each conviction, it would seem as if a conviction was meant in which the district attorney or his deputy took some part, either by the institution of the proceedings, by being present or aiding at the trial, or in some other way performing some service as district attorney. In the present instance, the record shows no connection by the district attorney with the convictions for which fees are claimed, except the presentation of his bill to the board of supervisors, and the action brought to cover his alleged fees.”

The ordinary vagrancy case is not one which requires the services of the district attorney. Occasionally a case may arise such that a district attorney should consider it his duty to prosecute it, or his services may be required by a justice of the peace; but, unless so required, no duty is imposed upon him by law to prosecute misdemeanor cases in justices’ courts. The language of the statute is: " He shall attend the district courts held in his county, for the transaction of criminal business; he shall, also, attend justices’ courts in his county, when required by the justices of the peace, and conduct all prosecutions on behalf of the people for public offenses.” (Comp. Laws, 2-299.)

If it were the intention of the legislature to make the district attorney a present of |10 every time there was a conviction in a vagrancy case in his county, one "would naturally expect to find some intimation of such intended benefaction in the title of the act. Section 7 of the vagrancy act should be construed with reference to other statutes in pari materia affecting the office of district attorney, and, when so construed, the legislative intent, we think, is manifest.

It is our conclusion that appellant is entitled to fees for convictions in felony cases, but that he is not entitled to such fees for convictions under the vagrancy act where services were neither performed nor required.

The judgment and order sustaining the demurrer are reversed, and the cause remanded, with directions to the trial court to rule upon the demurrer in accordance with the views in this opinion expressed.