State v. Billings , 81 Iowa 566 ( 1890 )

Per Curiam.

The grand jury of Bremer county returned an indictment against defendant, charging him with the commission of a felony. The place of trial was changed to Black Hawk county, and defendant was there tried and convicted. From the judgment of conviction defendant appealed to this court, and the judgment of the district court was reversed. In prosecuting his appeal, defendant prepared and filed in this court a number of printed copies of an abstract of the record, as required by the rules. The attorney general, believing that the abstract so presented was imperfect, caused to be prepared and printed copies of an additional abstract. Application is now made to us to tax the costs of printing the abstracts to the state, to the end that they may be paid by Bremer county.

We understand it to be conceded that there is no statute expressly requiring the payment of such costs as those in question, by the county liable for the costs of prosecution. But it is urged that such liability arises, by implication, from a fair construction of certain provisions of law which we will now consider. Section 2, of chapter 73, of the Acts of the Twenty-first General Assembly provides that, “in every criminal case appealed from his county to the supreme court, he [the county attorney] shall, at least thirty days prior to the term at which the case is to be heard, prepare and deliver to the attorney general a properly prepared abstract of the case.” Paragraph 4, of section 308, of the Code provides that the board of supervisors shall “examine, settle and allow all just claims against the county, unless otherwise provided for by law.” Section 4386 of the Code is as follows: “The county in which the offense was committed, and from which the prosecution was transferred, shall pay all the costs attending the prosecution.” It is claimed that the provision first quoted requires the county attorney to have the'abstract printed; that the cost of printing is within the purview of the section last quoted; and that paragraph 4 of section 303 of the Code requires the board of supervisors to pay it as a just claim against the county. But a claim against a county is not just, unless the law either requires or authorizes its payment. Foster v. County of Clinton, 51 Iowa, 548; Turner v. Woodbury Co., 57 Iowa, 440. We think it is clear that section 4386 was designed to relieve the county, to which a criminal cause should be transferred, from liability for costs of its prosecution, and to require their payment by the county in which the offense charged was committed, and from which the case was transferred. It was not designed to increase the items of taxable costs. When chapter 73 of the Acts of the Twenty-first General Assembly was enacted, and for many years prior bo that time, it was the practice for the executive council to pay for the printing deemed necessary, on behalf of the state in prosecuting appeals to this court, in criminal cases. Section 150 of the Code requires the attorney general to prosecute and defend, for the state, criminal causes in the supreme court. Section 120 of the Code provides that the executive council shall procure for the offices of governor, attorney general and others certain specified supplies, and “any other thing necessary to enable such officers to promptly and efficiently perform the duties of their several offices;” also, that “the accounts for any expenditures under this section, including repairs of the state house, and such other necessary and lawful expenses as are not otherwise provided for, shall be audited upon the certificate of such council, and the warrants drawn therefor paid by the treasurer of the state.” The executive council claimed that the practice of paying for printing for the state, referred to, was authorized by the provisions of the Code last mentioned. Chapter 73 of the Acts of the Twenty-first General Assembly was enacted, we must presume, with knowledge of the established practice of the executive council in regard to criminal cases. It provides for the preparation of abstracts, in such cases, by the county attorneys, but makes no provision for the expenses of printing them. We, therefore, conclude that it was not the legislative intent to require the counties to pay such expense, but, rather, that the practice of the executive council should be continued, and we think this is so, whether thé printing is done by virtue of an agreement made with the county attorney or the attorney general. In neither case can the county be made liable therefor, but, as the expense is necessary to enable the attorney general to properly prosecute or defend for the state, it may be allowed and paid by the executive council.

What we have said has no application to abstracts prepared and printed by defendants in criminal cases. It was decided in Red v. Polk Co., 56 Iowa, 98, that a county is not liable for the cost of printing such abstracts, even though the defendant be discharged after a reversal of the judgment by this court. In State v. Rainsbarger, 74 Iowa, 540, it was held, that neither the county nor the state is liable for such costs. It follows from what we have said that, although the state should pay for printing the abstracts prepared by the county attorney, such payment should be made on application to the executive council, and that the expense of printing cannot be taxed as costs in this case. The motion to so tax them is, therefore, over-