Commissioners of Shawnee County v. Ballinger , 20 Kan. 590 ( 1878 )

The opinion of the court was delivered by

Horton, C. J.:

The facts in this case are substantially as follows: The defendant in error was subpenaed as a witness on behalf of the prosecution in the case of “The State of Kansas v. A. J. Mowrey,” a criminal action pending in the district, court of Shawnee county. He attended the court in obedience to the subpena, but was not called as a witness, because a molle prosequi 'vras entered in the action, with leave of the court. Afterward he brought an action to recover his fees and mileage as a witness. The court below rendered judgment against plaintiff in error.

Was the county liable? We answer no. It is conceded that the county is not liable in the absence of a statute maleing it liable; and counsel for defendant in error confesses he cannot point out any section of the statute clearly and certainly fixing such a liability. He ingeniously argues however, that by a liberal construction of the statutes relating to costs, it is evident the legislature did not intend to leave the costs in cases of acquittals, and where nottes were entered, unprovided for; and he very forcibly suggests that the lawmakers never intended to tempt a witness to color or distort his testimony with the reward that, if the defendant was convicted, he would obtain compensation for his services and expenses, but if discharged, he could have no pay.. The latter portion of the argument of counsel would be valuable to present to the attention of the legislature; but with our view of the law we think there has been an omission to provide by statute for the payment of the costs in such cases as this, and that omission .we cannot supply. We cannot legislate. The argument of counsel tends to the belief that this omission was accidental, rather than intentional, as stated in The State v. Campbell, 19 Kas. 481. Whether the omission was an oversight, or intentional, is really immaterial. It exists in fact, and we cannot cure the defect of the statute. The State v. Campbell, supra.

The judgment of the district court must be reversed, and the case remanded with instructions to sustain the demurrer of plaintiff in error to the petition filed by defendant in error.

All the Justices concurring.

The case of the board of county commissioners of Pawnee county v. J. M. Miller, on error from Pawnee district court, was also an action against the county to recover witness fees in a criminal action, and is here on demurrer to the petition. In accordance with the decisions in The State v. Campbell, 19 Kas. 481, and Commissioners of Shawnee County v. R. H. Ballinger, just decided, the judgment of the district court must be reversed, and'the case remanded with instructions to sustain the demurrer of the plaintiff in error.

All the Justices concurring.