Chicot County v. Matthews

• Citation: 179 S.W. 1002,120 Ark. 505
• Decision Date: 01 November 1915
• Docket Number: 203
• Parties: CHICOT COUNTY v. MATTHEWS, SHERIFF. CHICOT COUNTY v. ALCORN, CLERK
• Court: Supreme Court of Arkansas

179 S.W. 1002

120 Ark. 505

CHICOT COUNTY v. MATTHEWS, SHERIFF. CHICOT COUNTY v. ALCORN, CLERK

No. 203

Supreme Court of Arkansas

November 1, 1915

Appeal from Chicot Circuit Court; Turner Butler, Judge; reversed.

Judgments reversed and causes dismissed.

E. L Compere and Harry E. Cook, for appellant.

Section 990 of Kirby's Digest does not apply to this class of cases. The word "demand" as therein used does not embrace a mere legal right of action to enforce a civil penalty. 9 Ill.App. 39; 18 Wis. 166, and cases cited.

The sheriff and clerk would not be permitted, even if that section applied, to multiply their alleged demands and collect costs on 363 imaginary "demands," where but one existed. 107 Ark. 450.

For the public good, many services are required of officials to be performed for the county or State for which no fees are allowed. For such service they are amply paid by fees they are permitted to charge in other matters, which, standing alone, would be excessive. 32 Ark. 45; 25 Ark. 235; 57 Ark 487; 56 Ark. 249; Kirby's Dig., §§ 1458 and 3493, note.

The sheriff is entitled to the actual number of miles traveled and no more. And as to the clerk, the causes were and should have been consolidated. He had no right to treat the causes as consolidated in many instances and then to sever and spread at large said causes on the records for the mere purpose of multiplying costs. Kirby's Dig., § 3502; 57 Ark. 565; 47 Ark. 442; 64 Ia. 11; 51 N.W. 598; 65 Ark 219; 93 Ark. 535.

Before fees are allowable against a county, there must be specific statutory authority therefor--the statute must expressly, or by fair intendment indicate, an intention to authorize the fee allowed by the statute to be charged against the county. 57 Ark. 487; 58 Ark. 117; 62 Ark. 273; 73 Ark. 598; 85 Ark. 385; Id. 610. See also 47 Ark. 442; 73 Ark. 600; 102 Ark. 106; 25 Ark. 235, and cases cited.

N. B. Scott, for appellee Matthews, and J. R. Parker, for appellee Alcorn.

Appellees are entitled to recover under section 990 of Kirby's Digest.

OPINION

HART, J.

The question involved in both these appeals is whether or not Chicot County is liable to the sheriff and circuit clerk of said county for the costs in certain cases brought by the State against the St. Louis, Iron Mountain & Southern Railway Company, for failing to comply with Act No. 23 of the General Acts of 1911. Separate suits were instituted by the sheriff and clerk against the county, but one opinion will settle the issues involved.

The facts are as follows: The prosecuting attorney instituted 362 suits in the name of the State against the St. Louis, Iron Mountain & Southern Railway Company to recover a penalty for the failure of the railway company to maintain sufficient street lights at the town of Dermott during the nights specified in the complaint. Similar suits had been instituted in Bradley County, and this court held that an action against the railway company for failure to maintain the lights as provided in the act was a civil action in which a penalty was collected in the name of the State and that the act did not create a public nuisance.

It was further held that the statute did not authorize the recovery of accumulated penalties and that but one penalty could be recovered for all the acts prior to the commencement of the suit. St. Louis, I. M. & S. Ry. Co. v. State, 107 Ark. 450, 155 S.W. 517.

Following that decision, the circuit court rendered judgment in one case and the remaining 361 cases against the railroad company were dismissed.

C. M. Matthews was the sheriff of Chicot County and served the summons upon the railway agent at Dermott. He charged mileage from the county seat to Dermott, and also a fee for service in each case. The total amounted to $ 1,201.20. The county court denied his claim in toto, and he appealed to the circuit court. The circuit court refused to allow him mileage but allowed him fifty cents in each case for serving summons and ten cents for calling each case, making a total of $ 217.20.

From the judgment rendered both the county and the sheriff have prosecuted an appeal to this court.

The clerk presented to the county court a claim for $ 4.60 in each case or a total of $ 1,665.20 in the three hundred and sixty-two cases. The county court disallowed his claim and he appealed to the circuit court. The circuit court allowed him fees in the sum of $ 868.80 and Chicot County has prosecuted an appeal to reverse the judgment in his favor for this amount.

The statement of facts raises the question of whether or not costs can be taxed against the county in cases of failure in the prosecution of suits by the State against railroad companies for failure to maintain sufficient lights during the night time on all their main line switches as prescribed by Act No. 23 of the General Acts of 1911.

It may be stated here that the statute does not provide in terms who shall pay the costs. It is contended by counsel for the sheriff and clerk that the county is liable under section 990 of Kirby's Digest. This section provides in effect that when a county has any demand against any person or corporation, suit may be brought in the name of the State for the use of the county and that all costs and expenses not recovered from the defendant shall be paid by the county.

We do not think that section has any application to suits like the one under consideration. The act in question provides that the penalties established by the act shall be recovered in a civil action in the name of the State. St. Louis, I. M. & S. Ry. Co. v. State, 107 Ark. 450, 155 S.W. 517.

The suits in which the sheriff and clerk claim costs were brought in the name...