State v. Middleton

Montana Supreme Court

State v. Middleton

34 P. 184, 13 Mont. 368, 1893 Mont. LEXIS 44

DecidedOctober 2, 1893

StatusPublished

This text of 34 P. 184 (State v. Middleton) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Middleton, 34 P. 184, 13 Mont. 368, 1893 Mont. LEXIS 44 (Mo. 1893).

Pincite

Opinion

De Witt, J.

It is not claimed that the county attorney has now any right to tax up costs under the law of March 14, 1889, as a compensation for himself. It is conceded that his salary is his full and only compensation. But the state contends on this appeal that the county attorney should tax costs, as provided in the law of 1889, against a convicted defendant for the benefit of the state, and that said costs should be collected for the state. We cannot agree to this view. Sections 8 and 9 of the law of 1889 provide the compensation of county [370]*370attorneys. The county paid this by way of salary and fees, and tliose fees in a particular case were taxed as costs against the defendant convicted in that case. Then came the act of 1891, and provided another and different compensation for the county attorneys, to wit, a salary alone, and which was to be, and is now, his only compensation. (2 Sess. Laws, § 3, p. 237.) So the act of 1889 was swept away, as providing compensation for county attorneys, and the act of 1891 took its place. Therefore, there is now no law for taxing and collecting these fees for the county attorney himself, and there was no law for taxing these fees for the benefit of, and paying them into, the county treasury; for section 1 of the act of March 6, 1891, provides for the payment into the county-treasury of the fees collected by sheriffs, treasurers, and other officers, naming them, but the section omits to mention county attorneys. Therefore, this seems to be the result. As the fees mentioned in seetion 9, act March 14, 1889, are collectible and payable neither to the county attorney nor to the county treasurer they are not taxable against the defendant. The judgment of the district court is affirmed.

The chief justice and Harwood, J., concur.

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De Witt, J.

It is not claimed that the county attorney has now any right to tax up costs under the law of March 14, 1889, as a compensation for himself. It is conceded that his salary is his full and only compensation. But the state contends on this appeal that the county attorney should tax costs, as provided in the law of 1889, against a convicted defendant for the benefit of the state, and that said costs should be collected for the state. We cannot agree to this view. Sections 8 and 9 of the law of 1889 provide the compensation of county [370]*370attorneys. The county paid this by way of salary and fees, and tliose fees in a particular case were taxed as costs against the defendant convicted in that case. Then came the act of 1891, and provided another and different compensation for the county attorneys, to wit, a salary alone, and which was to be, and is now, his only compensation. (2 Sess. Laws, § 3, p. 237.) So the act of 1889 was swept away, as providing compensation for county attorneys, and the act of 1891 took its place. Therefore, there is now no law for taxing and collecting these fees for the county attorney himself, and there was no law for taxing these fees for the benefit of, and paying them into, the county treasury; for section 1 of the act of March 6, 1891, provides for the payment into the county-treasury of the fees collected by sheriffs, treasurers, and other officers, naming them, but the section omits to mention county attorneys. Therefore, this seems to be the result. As the fees mentioned in seetion 9, act March 14, 1889, are collectible and payable neither to the county attorney nor to the county treasurer they are not taxable against the defendant. The judgment of the district court is affirmed.

The chief justice and Harwood, J., concur.

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Bluebook (online)

34 P. 184, 13 Mont. 368, 1893 Mont. LEXIS 44, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-middleton-mont-1893.