Board of Com'rs of Weld County v. Camp

• Decision Date: 02 May 1910
• Citation: 48 Colo. 61,108 P. 972
• Court: Colorado Supreme Court
• Parties: BOARD OF COM'RS OF WELD COUNTY v. CAMP.

108 P. 972

48 Colo. 61

BOARD OF COM'RS OF WELD COUNTY v. CAMP.

Supreme Court of Colorado

May 2, 1910

Appeal from District Court, Weld County; James E. Garrigues, Judge.

Action by D. F. Camp against the Board of County Commissioners of the County of Weld. From a judgment for plaintiff, defendant appeals. Reversed, and cause remanded, with instructions to dismiss action.

Delph E. Carpenter, for appellant.

H. E Churchill, for appellee.

MUSSER J.

This appeal must be dismissed and the action entered as pending on writ of error under section 388a of Mills' Annotated Code.

The action was brought by a constable against Weld county to recover statutory fees, alleged to have been earned by him in serving a warrant of arrest, and as mileage for each mile traveled by him and for transporting the prisoner. The warrant was duly issued by a justice of the peace and placed in the hands of the constable, commanding him to arrest and bring the accused person before the justice. The constable did as commanded. A preliminary examination was held, and the accused was bound over to appear at the next term of the district court. The constable presented his claim against the county for fees, alleged to have been earned by him as aforesaid. The county commissioners disallowed the claim. The constable, as provided by statute, appealed to the district court. That court rendered judgment for the constable. The county brought the case here for review claiming that the fees constituted costs in a preliminary examination, payable in the discretion of the county commissioners, and that the action of the county commissioners was not reviewable by the court. On the other hand, the plaintiff claims that the services rendered by him had no connection with the preliminary examination, and that the commissioners had no power to disallow the fees; the services having been rendered.

Section 1077, Rev. St. 1908, among other things, provides: 'The county commissioners may, in their discretion, pay the costs of all preliminary examinations, except in cases in which the prosecution shall have been adjudged to pay the costs.' A proviso to section 2576, Rev. St., is as follows: 'And provided, further, that the county commissioners may, in their discretion, disallow any charges against the county for fees or costs of district attorneys, or other persons, for the trial or examination of any criminal case, before any justice of the peace, police magistrate, police judge, or any court not being a court of record. They, in counties of the first and second classes, shall not allow any fees for district attorneys, or deputies, or attorney attendance before justices of the peace in misdemeanors.'

In Pitkin Co. v. Sanders, 27 Colo. 122, 59 P. 402, it was said that the proviso of section 2576, quoted above, extended the same discretion over costs of trials in criminal cases in courts not of record, as was given by section 1077 over costs of preliminary examinations, and, further, that the true meaning of the clause or proviso of section 2576 is that the county commissioners 'have the discretion, not reviewable by the courts, to disallow the statutory fees and costs of criminal trials and examinations claimed by all persons for whom fees are therein prescribed, and in whose...