Kouns v. Draper

• Decision Date: 31 January 1869
• Citation: 43 Mo. 225
• Parties: NATHAN C. KOUNS, Petitioner, v. DANIEL M. DRAPER, State Auditor, Respondent.
• Court: Missouri Supreme Court

43 Mo. 225

NATHAN C. KOUNS, Petitioner,

v.DANIEL M. DRAPER, State Auditor, Respondent.

Supreme Court of Missouri.

January Term, 1869.

Petition for Mandamus.

N. C. Kouns, pro se.

I. The costs in the case of The State v. Finley, of which the attorney's fee is part, must be paid by the State, and not by the county. (Gen. Stat. 1865, ch. 219, § 10.)

II. The justices of the peace not only had the power, but it was their duty, to appoint some one to represent the State in the case. (Gen. Stat. 1865, ch. 18, § 26.)

III. The compensation provided for in section 31, chapter 18, has no reference to the fees of the county or circuit attorney, because these officers get no fee unless there be a conviction; and their salaries are paid as compensation for cases in which there is no conviction. But the “competent person” appointed as prosecutor by the justice is entitled to compensation, whether the defendant be convicted or not.

IV. The sense of the law is (§§ 26, 31, ch. 18) that the State shall be represented; and the very object of the law would be defeated if the word “vacancy” (§ 31) should be so construed as to deprive the justice of the power to appoint, if there is actually a county attorney. Such a construction would have made it necessary for the justices to have kept the defendant under guard or in prison for an indefinite time, in consequence of the absence of the county attorney, which the law does not intend.

V. Taking the whole law together, the only fair construction of it is that the words “vacancy in office” mean to give the justice power to appoint, either where there is no county attorney or where he is unavoidably absent.

VI. Justice requires that the “competent person” appointed by the magistrate in the absence of the county attorney should be paid for the services which he rendered to the State. In this case there is no provision of the law which makes the county responsible. By section 31, chapter 18, the attorney's fee must be “taxed as costs in such cause;” and by section 10, chapter 219, such costs must be paid by the State.

H. B. Johnson, attorney-general, for respondent.

I. The law prohibits the payment of such costs out of the State treasury. (Gen. Stat. 1865, ch. 18, § 27.)

II. Such services can only be contracted for when there is a vacancy in the office of county attorney. (Gen. Stat. 1865, ch. 18, § 31.) Absence does not create a vacancy.

CURRIER, Judge, delivered the opinion of the court.

This is a mandamus proceeding, and involves a construction of section 31, chapter 18, Gen. Stat. 1865, which provides for cases of vacancy in the office of county attorney. The petition avers that “the county attorney for Callaway county was” absent from said county “for an indefinite time” on the occasion when the petitioner rendered the service set out in the petition; and that the petitioner rendered the services charged under the appointment of two justices of the peace, before whom a criminal proceeding was pending. It is contended that the “indefinite” absence of the county attorney from the county created a “vacancy” in the office, within the meaning of the statute (ch. 18, § 31).

Section 22, chapter 18, Gen. Stat. 1865, authorizes county courts to appoint county attorneys. Sections 24 and 25 define their duties, one of which is to “prosecute, on behalf of the State, all cases before justices of the peace, where the State is made a party thereto;” and section 26 prohibits justices from proceeding with such cases in the absence of the attorney, unless “some one properly qualified to prosecute for...