Phillips Co. v. Pillow

• Decision Date: 23 October 1886
• Citation: 1 S.W. 686
• Parties: PHILLIPS CO. <I>v.</I> PILLOW, Sheriff.
• Court: Arkansas Supreme Court

1 S.W. 686

PHILLIPS CO.

v. PILLOW, Sheriff.

Supreme Court of Arkansas.

October 23, 1886.

Appeal from circuit court, Phillips county.

R. W. Nicholls, for appellant. Stephenson & Trieber, for appellee.

SMITH, J.

The sheriff presented to the county court his bill for services in subpœnaing seven witnesses in the case of State of Arkansas against Richard Dortch, charged with murder. Dortch was convicted, and an execution for the costs was returned nulla bona. This made the county liable for all legitimate fees arising out of his prosecution. The county court allowed fees and mileage for supœnaing two witnesses only, rejecting the remainder of the bill. The sheriff appealed to the circuit court, where judgment was rendered in his favor for the whole of his demand.

The controversy involves the construction of section 3248 of Mansfield's Digest, which provides that, where the costs in criminal cases are paid by the county, "no sheriff, etc., serving subpœnas for witnesses, shall be allowed to receive from the county pay for making more than two returns on subpœnas in any given case," etc. The contention of the county is that the word "return" should be construed as meaning "service;" otherwise the section is unintelligible, for the law provides no remuneration for making returns on writs except when the return is non est or nulla bona. The intention of the legislature is somewhat obscure. But "return" has a specific legal meaning. It is a short account, in writing, made by a ministerial officer, of the manner in which he has executed a writ. Steph. Pl. 24. And, where it occurs in a statute regulating fees, it will be presumed to have been used in its technical sense. "The current of authority at the present day is in favor of reading statutes according to the natural and most obvious import of the language, without resorting to subtle and forced constructions for the purpose of either limiting or extending their operation." Waller v. Harris, 20 Wend. 562, per BRONSON, J. "The office of interpretation is to bring sense out of the words used, and not bring a sense into them." McCluskey v. Cromwell, 11 N. Y. 602. Compare Memphis & L. R. Ry. v. Adams, 46 Ark. 163.

The number of witnesses who may be summoned in a criminal case, in behalf of both prosecution and defense, is unlimited; and it would require unequivocal language to convince us of the intention of the legislature that the sheriff, who must serve processes under pain of indictment and...