Board of Commissioners v. Keirsey

*42 The opinion of the court was delivered by Horton, C. J.:

Prior to the convening of the legislature of 1881, §19, ch. 39 Gen. Stat. 1868, fixing the fees of certain officers and persons therein named, read:

“In all cases where the fees prescribed by this act, in criminal cases, for the sheriff and clerk, are not paid by the defendant or the prosecuting witness, they shall be paid by the county in which the criminal prosecution is instituted :■ Provided, That no such fees.shall be paid by the board of county commissioners before the next term after conviction, and not until the sheriff and clerk of the district or criminal court shall file their affidavits that such fees cannot be collected from any other source.”

And § 27, ch. 83, Gen. Stat. 1868, regulating the procedure before justices of the peace in cases of misdemeanor, read:

“No costs shall be paid by the county in any case of misdemeanor of which a justice of the peace has jurisdiction, under this act, when the complainant or defendant shall be adjudged to pay them.”

By ch. 108, Laws of 1881, it was provided:

“That section 19, of chapter 39 of the General Statutes of 1868 be amended so as to read as follows: Section 19. In all cases where the fees prescribed by this act, in criminal cases, for the sheriff, clerk, constables, justices of the peace, witnesses for the state, and j urors, are not paid by the defendant or the prosecuting witness, they shall be paid by the county in which the criminal prosecution is instituted: Provided, That no such fees shall be paid by the board of county commissioners until the sheriff shall have filed his affidavit that such fees cannot be collected from any other source.”

This last expression of the legislature not only amends and changes §19 of ch. 39, Gen. Stat. of 1868, but repeals by implication also § 27 of ch. 83, Laws of 1868, and by express terms creates a liability against counties in which criminal prosecutions are instituted, not existing prior to the enactment of ch. 108 of the Laws of 1881.

Counsel for plaintiff in error refer to the case of Comm’rs of Osborne Co. v. Honn, 23 Kas. 256 , and contend that as *43 counties were not liable in misdemeanor eases for sheriffs’ fees prior to the amendment of 1881, there is no liability-now for such fees or for the fees of the other officers and persons named in the amendment. Sec. 19 of ch. 39, Gen. Stat. 1868, was subsequent legislation to § 27, ch. 83, Gen. Stat. 1866, the former having been approved March 2, 1868, and the latter February 29,1868, and such original section in no way conflicted with said § 27. This was the condition- of the law at the time of the rendition of the decisions in Comm’rs of Osborne Co. v. Honn, supra; The State v. Campbell, 19 Kas. 481 ; and Comm’rs of Johnson Co. v. Wilson, 19 Kas. 485 . But ch. 108, Laws of 1881, does not embody the restrictions or limitations contained in the original §19 of ch. 39. Constables, justices of the peace, witnesses for the state and jurors are expressly named therein, as well as the sheriff and clerk. Sec. 1 thereof provides that in all cases where the fees prescribed in criminal cases for such officers and persons are not paid by the defendant or the prosecuting witness, they shall be paid by the county in which the criminal prosecution is instituted. The scope of this section is amply broad enough to contradict and conflict with said § 27 of ch. 83, and therefore we think the intention of the legislature was to set aside the provisions of said § 27.

The judgment of the district court will be affirmed.

All the Justices concurring.