State v. Jackson

46 Ark. 137

• Court: Supreme Court of Arkansas
• Decided: November 15, 1885
• Status: Published

Opinion

Smith, J.

Upon an information filed by the prosecuting attorney, Jackson was removed from the office of constable for drunkenness and incompetency, and was adjudged to pay the costs. The court was moved to assess a fine against •him, but declared that it had no power to impose a fine. The court also refused to order that, if the costs were not immediately paid, the defendant should be confined in the county jail. It further denied a motion to tax a fee of $10 to the prosecuting attorney. The state appeals.

In a proceeding to remove an officer, the judgment extends only to removal, costs following as an incident. No fine or other punishment can be inflicted, because the removal may be for causes which involve no criminality. Thus, in Whitlock’s case, lfiL Ark., Ifi3, a justice of the peace was removed because he was subject to epileptic fits, which incapacitated him from performing the duties of the office. If the removal is for criminal conduct, the «crime is punishable in a separate proceeding. Nor is there any law which authorizes the imprisonment of a defendant for the non-payment of costs, except where th.e judgment is also for fine or imprisonment. Compare Mansfield’s Digest, secs. 3318, 3350, 1310 and 1313. Such authority must be expressly conferred by statute and will never be inferred. The costs in a proceeding of this sort constitute a mere debt to the officers of the court, for which the defendant becomes liable upon his removal. But he cannot be made to work out such costs. The only remedy is by execution, imprisonment for debt being abolished. State v. Erwin, 44 Iowa, 637; State v. Kenny, 1 Bailey (S. C.), 375; State v. Sibley, 4 Lea (Tenn.), 738.

It is not customary in judgment entries to give particular directions for the taxation of costs. The presumption is the clerk knows his duties and will discharge them. But treating this as an application by the prosecuting attorney to the court below to retax the costs, upon the clerk’s refusal to include his fee in such taxation, we may say that he is entitled to a fee of $5 under section 3233 of Mansfield’s Digest, which allows that sum “ for each judgment obtained on complaint, information or otherwise, in the name of the state or any county.”

Affirmed.