Union County v. Hyde

37 P. 76, 26 Or. 24, 1894 Ore. LEXIS 64

• Court: Oregon Supreme Court
• Decided: June 28, 1894
• Status: Published

Opinion

Per Curiam.

The questions in this case are:—

1. Is the action of the circuit court, under section 1074, Hill’s Code, in ascertaining the fees to which the district attorney is entitled, and directing an order to be entered upon the journal that the same be paid, a final adjudication, so as to prevent a county which has paid the amount so allowed from recovering so much thereof as was unauthorized by law? We are of the opinion that in such case the court acts in an auditing capacity,, or as auditor, and, while the sums allowed are prima facie evidence as to the amounts due the district attorney, the order is not to be regarded as conclusive, and, therefore, in our opinion, a county has a right to recover from the district attorney, as for money had and received, so much of the amount thus allowed and paid as was unauthorized by law,

2. Is a district attorney entitled to fees for “not true bills” returned by a grand jury? We think not. The statute (section 1073) prescribing his fees limits them to “criminal actions,” and by section 1210 a criminal action in the circuit court is commenced when an indictment is found by the grand jury, and duly filed with the clerk of the court. We are of the opinion that his salary and per diem are intended to compensate him for work of the character indicated.

3. Where several persons are jointly indicted for the same offense, and jointly tried, is the district attorney entitled to a separate fee for each defendant? We think not. The statute provides for fees in a criminal action, and in the case stated there is but one criminal action, one trial, and one judgment, although there may be several defendants.

4. Where several persons are arrested and examined before a committing magistrate, is the district attorney who appears for the state entitled to a separate fee for each defendant so arrested? We think clearly not. By statute (section 2167, Hill’s Code,) he is allowed a fee for attending and conducting an examination before a committing magistrate, without regard to the number of defendants. Judgment will be entered accordingly.

Reversed.