Stone v. Thompson , 100 Ky. 307 ( 1896 )

CHIEF-JUSTICE PRYOR

delivered the opinion or the court':

This question involves the construction of the statute, fixing the fees of the courts in this Commonwealth for holding examining courts in felony cases.

In the General Statutes, under the title of “Fees,” we find this item: “For presiding at examining courts in felony cases, per day, to be paid out of the treasury, $2.00.”

This • court in Auditor v. Kinkead, 80 Ky., 596, in determining the legislative intent, said that the purpose of the Legislature was to allow only $2.00 per day, and no more, although the judge or magistrate might try as many as two or more cases on the same day; that he was paid by the day, and not for the trial of each-case. Under this construction, the magistrate or justice of the peace, if trying only one case, could prolong the tidal from day to day; and if the trial continued as long as five days, and it lasted sometimes longer, the magistrate would be entitled to $2.00 for each day, making $10.00 for the one case, increasing thereby the burden on the treasury, and offering an inducement to prolong the trial that the fee might be enlarged. To remedy this evil, or at least to make the fees of such officers more definite and certain, the Legislature changed the statute, and the fees of examining courts so regulated as that no greater fee could be charged for holding an examining court in any one case than $4.00.

The statute, as it now stands, reads: “To county judges and other magistrates for holding examining courts in felony cases, for the first day’s service, $2.00; for each additional day, $1.00, not to exceed $4.00 in any one case.” The Legislature, by the act just quoted, was more explicit and certain as to its meaning than in the General Statutes, and limited by the language used “not to exceed $4.00 in any one case,” the magistrate to that sum, and no greater, where he held his examining court longer than four days; in other words, you shall not charge more than $4.00 in any one case, $2.00 for the first day and $1.00 for each day thereafter, not to exceed $4.00 in any one case, making manifest an intention on the part of the Legislature to pay for each case tried, not to exceed $4.00, instead of permitting such courts to be held for an indefinite period that greater fees might be obtained.

It is insisted that this view of the question is in conflict with the case of Auditor v. Kinkead, 80 Ky., 596, when it is apparent the language used “not to exceed $4.00 in any one case,” which is not in the General Statutes, was intended to explain the legislative meaning, and give to the magistrate his fees in each case, but not to exceed the sum fixed by the statute.

Judgment affirmed.

Judges Lewis, Guffy and DuRelle dissenting.