Board of County Commissioners v. Whiting , 4 Kan. 273 ( 1868 )

By the Court,

Safford, J.

The record in this case presents but one question for our consideration, to wit: Is a county liable, under the laws of this state, for the costs, or any part thereof, made by a defendant in his. own behalf, in a case where such defendant, having been' charged with a criminal offense, has been tried, convicted and sentenced therefor, in the court having jurisdiction, such defendant being found to be insolvent?

Sections 311 and 318 of the code of criminal procedure contain the following provisions: “The costs shall be paid by the county in which the offense is committed, (in cases)^* in which the defendant shall be convicted, and shall be unable to pay them. ” “ Whenever any person shall be convicted of any crime or misdemeanor, no costs incurred on his part, except fees for board, shall be paid by the territory or county.”

These sections — and this is conceded by counsel— embody all the law bearing upon the question under consideration, which is to be found in the criminal code.

So far, then, as the code is concerned, our inquiries in this behalf may well be quite limited.

By taking these provisions together, and the application of just and established rales of construction, we are able to understand that the law-making power in this enactment meant to provide—

1. That when any person has been convicted of a crime against the laws, such person is liable for all the costs which are properly chargeable under the law; that is to say, he is liable for all costs made by prosecution, and for -all costs made in his own behalf.

2. In a case where such convicted person has been found to be insolvent, the county where the offense was committed is liable for, and must pay, all the costs made on behalf of the prosecution, together. with fees for board of such convicted person, but is liable for none other.

The. section last quoted is a limitation upon the first, and as the words used are express and certain, they must be held to exclude all costs from payment by the county in the case mentioned, except as stated.

It follows, then, that the fees of witnesses, sheriff’s .fees, clerk’s lees, and the like, made by and in behalf of the defendant, in cases of conviction and insolvency, are in no way provided for unless it has been done by legislation subsequent to the criminal code.

In chapter 99 of the compiled laws, sec. 22, we find the following provision: “The fees of the district clerk and sheriff, in any criminal action wherein the state fails to convict, or to collect the costs, during the next vacation after sentence, shall be paid out. of the county treasury; but no fees shall be paid by the county during the pendency of the suit.”

This does not affect the law in regard to the liability of a person convicted of a crime, as we have seen it exists under the code; but it seems to be made the duty of the state to collect the costs from such convicted person during the vacation following sentence, and if she fails to do so, then the county must pay all the costs of the district clerk and sheriff out of her treasury.

But it is contended by plaintiff in error that the fees here mentioned are those only which the county would have been liable for, and must have paid to the sheriff and clerk under the law first referred to. We think otherwise. The words used are, “the fees of the district clerk and sheriff, in any criminal action (in cases stated), shall be paid out of the county treasury.’.’ Surely this language is broad enough to cover all the fees' of those officers in any criminal case, and must be so held.

But it is said that if this construction be given to sec. §2, above quoted, then it is repugnant to the'provisions of sec. 318 of the criminal code, and repeals it by implication. This, as it seems to us, is saying too much. The legislature, by the passage of sec. §§, chapter 99, compiled laws, did not intend to repeal sec. 318 of the criminal code, but only to provide a new rule for the payment of the costs of sheriffs and clerks-under certain contingencies.

That sec. 818 was left standing in full force, as to all other fees and costs to which, by its terms, it would be made applicable.

Some other points are incidentally raised by counsel in this argument, but we do not think it 'necessary to discuss them here.

The judgment Of the district court will be affirmed.

All the justices concurring.

* The court, in their interpretation of this section, seem to have supplied'a manifest omission of the words “in cases.”