State v. Wofford

• Decision Date: 24 May 1893
• Citation: 116 Mo. 220,22 S.W. 486
• Parties: STATE ex rel. STEWART v. WOFFORD.
• Court: Missouri Supreme Court

22 S.W. 486

116 Mo. 220

STATE ex rel. STEWART v. WOFFORD.

Supreme Court of Missouri, Division No. 2.

May 24, 1893.

FEES OF COUNTY MARSHAL.

Under Act 1891, entitled "Fees of Officials," (section 11,) providing that the sheriff, marshal, or other officer who shall have in custody or under his charge any person "undergoing examination preparatory to commitment" shall for transporting, safe-keeping, and maintaining such person receive a certain amount for every day he may have such person under his charge, a county marshal is not entitled to such fee where a prisoner is in his custody as jailer, committed under authority of Rev. St. 1889, §§ 4028, 4030, pending a continuance of his examination.

Mandamus by the state on relation of Henry P. Stewart against John W. Wofford. Writ refused.

A. S. Lyman, for relator. R. F. Walker, Atty. Gen., and John W. Wofford, for respondent.

BURGESS, J.

On August 26, 1892, at Kansas City, James Nocton was arrested upon a warrant charging him with felony. He was brought before the justice who issued the warrant, and on motion of the prosecuting attorney the examination was continued until August 30, 1892, and defendant was "committed to await trial." The cause was continued from time to time until November 4, 1892, when it was dismissed. During this time the relator was marshal and jailer of Jackson county, and had the prisoner in his custody and under his care and control. At the dismissal of the charge by the state the justice certified his transcript and fee bill to the clerk of the criminal court, who thereupon prepared the fee bill in question here, and submitted it to the prosecuting attorney for examination and approval. The prosecuting attorney examined and approved the bill, containing the item of $87.50, due to Henry P. Stewart for 70 days' custody of Nocton "while undergoing examination preparatory to commitment." When the fee bill was presented to the respondent as judge of the criminal court, so that he might ascertain if it "appeared to be formal and correct," he refused to certify the same, for the reason that he did not believe it was a legal charge against the state; whereupon relator brought this proceeding to compel respondent to certify the said fee bill as prepared by the clerk of the criminal court and approved by the prosecuting attorney. It is well-settled law that no officer is entitled to fees of any kind unless provided for by statute, and that the law conferring such right must be strictly construed, because of statutory origin and right. Shed v. Railway Co., 67 Mo. 687; Gammon v. Lafayette Co., 76 Mo. 675; Ford v. Railway Co., 29 Mo. App. 616. If relator is entitled to the fee claimed in this proceeding, it is by virtue of the provisions of section 11 of the law entitled "Fees of officials," enacted by the general assembly in 1891, prescribing the fees to be allowed to sheriffs, county marshals, and other officers in criminal cases, which provides that the sheriff or county marshal or other officer "who shall have in custody or under his charge any person undergoing examination preparatory to his commitment more than one day, for transporting, safe-keeping, and maintaining every such...