Lackland v. Dougherty

15 Mo. 260

• Court: Supreme Court of Missouri
• Decided: October 15, 1851
• Status: Published

Opinion

Ryland, J.,

delivered the opinion of the court.

The point before us questions the duty of the circuit attorney, to prosecute in the cases arising under the statute forbidding free negroes to remain in this State without license. If it be his duty to prosecute in these cases, then he is entitled to his fees, otherwise not.

We consider that the act requiring circuit attorneys to prosecute all civil and criminal actions, in which the State or county may be concerned, and also to prosecute on forfeited recognizances, and other actions for the recovery of debts, fines, penalties and forfeitures, does not apply to the special proceeding under the statute about free negroes remaining here without license. If this were the case, then it would be the duty of every circuit attorney in the State, however large the circuit in which he acts, to attend to such proceedings before any justice of the peace within his circuit, which would be absurd. The legislature never designed nor contemplated such a thing.

It not being his duty, as we conceive, he has no right to charge a fee for his voluntary appearance on the part of the State. The circuit court, therefore, decided correctly, in refusing to make the mandamus peremptory. The other judges concurring, its judgment is affirmed.