In Re Egan
| Decision Date | 04 October 1916 |
| Docket Number | 3819 |
| Citation | 37 S.D. 642,159 N.W. 393 |
| Parties | IN THE MATTER OF THE DISBARMENT OF GEORGE W. EGAN, |
| Court | South Dakota Supreme Court |
Original proceedings
#3819--Costs disallowed
Clarence C. Caldwell, Attorney General
Byron S. Payne, Assistant Attorney General
Attorney for prosecution.
Attorneys for accused.
Opinion filed October 4, 1916; Rehearing denied January 6, 1917
On April 4, 1916, judgment was entered in this matter disbarring the accused from further practice as an attorney at law in any and all of the courts of this state, and that his license as such attorney theretofore issued be canceled. In re Egan, 37 S.D. 159, 157 N.W. 310. In addition thereto the judgment contained the following paragraph:
"It is further ordered and adjudged that judgment herein enter in favor of the state of South Dakota and against the said George W. Egan in the sum of $___; the costs of this proceeding to be hereinafter taxed and inserted herein.",
The matter is now before us upon an application for the taxation of costs. The following is a statement of the disbursements which have been advanced and paid by Minnehaha county, the county to which said proceeding was referred for trial:
Jerry Carleton, sheriff's fees, serving papers $ 5.70
A. W. Campbell, referee's fees and expenses 244.94
A. H. Orvis, referee's fees and expenses 226.26
Chambers Keller, referee's fees and expense's 312.85
Miss Carlotta East, reporting and transcribing testimony, itemized as follows:
and including "W. A. Renner, three days, $6, 120 miles travel one way $12") 284.40
Objection is made that it is sought to charge accused with disbursements that have already been taxed and assessed against Minnehaha county without notice to him and without giving him any opportunity to file and urge any objections to any of the items. Such objection is without merit. The accused now has, and he has availed himself of, the opportunity to urge objections to the items in said account.
Objection is made that disbursements paid by Minnehaha county are not recoverable by the state, and, as the total bill of $1,643.95 is shown to have been paid by that county, nothing can be recovered under this application. Section 5, c. 85, Laws 1911, reads:
The last clause of section 6 of said chapter reads as follows:
"And whenever judgment is rendered against the accused there may be included therein, in the discretion of the court, as a part thereof, a judgment in favor of the state for all necessary disbursements made on behalf of the prosecution."
It is clear that the disbursements above specified have been made "on behalf of the prosecution." It is also clear that a county is but a local subdivision of the state for governmental purposes. State v. Board, 36 S.D. 606, 156 N.W. 96. We are of the opinion that the reasonable interpretation of the clause quoted from section 6, taken in connection with section 5 of said chapter, is that a judgment may be entered against the accused for all necessary disbursements made on behalf of the prosecution, by whomsoever advanced, and that, inasmuch as all of the items sought to be taxed in this proceeding have been advanced by Minnehaha county, the judgment rendered "in favor of the state" will of necessity be for the benefit of that county. This matter was considered in the recent decision in Re Samuel C. Polley, 159 N.W. 42, where the same conclusion was arrived at with reference to taxing costs against the accuser under section 6 of said chapter.
Specific objection is made to the three items for referees' fees and expenses, for the reason that such fees and expenses are payable by, and a charge against, the county of Minnehaha. They are, however, "necessary disbursements made on behalf of the prosecution," and no good reason has been advanced why they should not be included in the judgment. We are now considering, a statute different from the one in...
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