State v. Blackburn

• Decision Date: 21 December 1895
• Citation: 33 S.W. 529,61 Ark. 407
• Parties: STATE v. BLACKBURN
• Court: Arkansas Supreme Court

33 S.W. 529

61 Ark. 407

STATE v. BLACKBURN

Supreme Court of Arkansas

December 21, 1895

Appeal from Johnson Circuit Court, JEREMIAH G. WALLACE, Judge.

Judgment reversed.

E. B Kinsworthy, Attorney General, for appellant.

The county is not liable for costs in bastardy cases. Sand. & H Dig. sec. 474. When justices had jurisdiction, this court held that such cases had the principal features of criminal cases less than a felony, where no indictments were required. 29 Ark. 62-68. The liability of counties in criminal prosecutions rests alone on the statute (Sand. & H. Dig. sec 2316), and under that statute the county is not liable. Counties are not liable in misdemeanors. Ib. sec. 2315. Nor are they liable unless the statute expressly makes them so 32 Ark. 45. Statutes regulating costs are strictly construed, and all doubts are decided in favor of the county. Suth. on Stat. Constr. sec. 371.

OPINION

BUNN, C. J.

Appellee was arrested on affidavit before the county court of Johnson county on the charge of bastardy. He was convicted in the county court, appealed to the circuit court, and was acquitted. The court gave judgment against the state for costs, and ordered the circuit clerk to make out a certified list of the cost in the case, which was done. The circuit court approved the same, and ordered the county court to allow and pay the same. To this order of the court in taxing the cost against Johnson county, the state at the time excepted, and prayed an appeal to this court.

This raises the question, whether or not, in bastardy cases, in cases of failure in the prosecution, the costs of the procedure can be taxed against the county. It is well to state in the outset, that the statutes nowhere provide, in terms, who shall pay the costs in such cases. Under the constitution of 1868, when justices of the peace had jurisdiction of bastardy, it was treated in so far at least as a criminal matter that the costs were paid by the county as in misdemeanors, when the prosecution failed. At least we infer as much from decisions reported. Jackson v. State, 29 Ark. 62.

The county court now has, by the constitution, exclusive original jurisdiction of the subject; and this court, under the new order of things, holds that bastardy is the subject of civil proceeding. The costs, therefore, cannot be assessed against the county, as in case of criminal proceedings. It was said in Cole v. White County, 32 Ark. 45, that "it is an established rule of law that, where the compensation of an officer is regulated by fees, he can only demand such fees as are fixed and authorized for the performance of his official duties, and he cannot charge for a particular service, for which no special fee is given unless its payment is allowed by some general provision * * * to the effect that, in all cases where an officer or other person is required to perform any duty for which no fees are allowed by any law, he shall be entitled to receive such pay as would be allowed for similar services." So much for the amount of the compensation or fees, and this is regulated by statute. See section 474, Sand. & H. Digest. But the court in Cole v. White County, supra, continuing, said: "Such general provision, however, does not embrace services required to be performed for...