State v. Northrup , 13 Mont. 424 ( 1893 )

Per Curiam.

In this case the attorney general moves this court for an order requiring the clerk to receive and file the appeal herein prosecuted by plaintiff without collecting the fee provided by section 2 of the act of March 6, 1891 (2 State Sess. Laws, p. 208.) That provision of the statute requires the clerk of this court to collect in advance from appellant a docket fee of ten dollars, on filing the transcript.

The various counties of this state are charged with the duty of prosecuting all criminal cases arising in their respective jurisdictions, and in such eases the law provides that the county wherein the prosecution is had shall pay the costs and expenses thereof; of course, subject, ultimately, to be collected from the defeated party.

This prosecution was instituted in Park county, and an appeal was taken by the prosecution. There is no doubt that said county is chargeable with the payment of the fees provided to be collected by the clerk of this court on filing the record. The attorney general points out section 517, Code of Civil Procedure, and insists that under that section no fees can be required, in advance, from those prosecuting this appeal. That section, so far as it applies to the collection of fees by the clerk of this court, is modified by the act of 1891, cited supra, which requires the clerk to collect said fees iu advance. That requirement is made more imperative by section 3 of said act of 1891, which provides that the clerk shall charge himself with, and account for, the “full amount” of all such fees as are provided by section 2 of the same act to be collected by him, and pay the same into the state treasury. He is under bond so to do.

The order moved for is denied.

Harwood and DeWitt, JJ., concur.