Wallace v. The Board of Commissioners of McPherson County

• Decision Date: 01 January 1883
• Parties: WALLACE, GLEASON v. THE BOARD OF COMMISSIONERS OF MCPHERSON COUNTY
• Court: Kansas Supreme Court

1 P. 384

30 Kan. 53

WALLACE, GLEASON v. THE BOARD OF COMMISSIONERS OF MCPHERSON COUNTY

Supreme Court of Kansas

January 1, 1883

Error from McPherson District Court.

JANUARY 2, 1882, a certain bill for fees and costs in the case of The State v. Carter, duly verified by Wallace Gleason, as sheriff of McPherson county, was presented for allowance to the Board of Commissioners of that county; but the board rejected the bill, and refused to pay it. Thereupon the sheriff appealed to the district court, and sought to recover the fees, $ 22.85, due to himself. Trial at the February Term, 1883, of the district court, and finding and judgment for the defendant board. Plaintiff brings the case here. Other facts are stated in the opinion.

Judgtement reversed and case remanded.

Frank G. White, for plaintiff in error.

Lucien Earle, county attorney, for defendant in error.

BREWER J. All the Justices concurring.

OPINION

BREWER, J.:

But a single question is presented in this case. One John Carter was arrested and brought before a justice of the peace charged with the crime of grand larceny. The justice found there was probable cause to believe him guilty and committed him for trial. Thereupon he sued out a writ of habeas corpus before the probate judge, and upon a hearing before him the latter found there was no probable cause, and discharged him from custody. Was this habeas corpus proceeding before the probate judge a criminal case, within the scope of § 1, chapter 108, Laws 1881? We think it was, and that the county, upon the contingencies named in the section, was liable for the fees of the sheriff. It is true that habeas corpus is not a criminal action within the definition given in § 7, chapter 80, Comp. Laws 1879. Nor is it indeed an action at all, but a special proceeding. It is true that with other special proceedings, it is grouped in the single statute entitled "An act to establish a code of civil procedure." And it is also true that in many cases it is a purely civil remedy, as where it is sought in behalf of parents to obtain the custody of children, or for the relief of imprisoned debtors; but we think that it is also a criminal proceeding, when sought as in this case, for the relief of a party charged with crime. In the case of In re Snyder, 17 Kan. 542, we said, after quoting one of the sections in respect to habeas corpus, that "this section gives a party committed for a crime by an...