Opinion
No. 34608.
May 26, 1941.
1. JUSTICES OF THE PEACE.
One object of the statutes constituting the county convict system is that officers of courts of justices of the peace can thereby obtain their costs, when convictions are had in such courts.
2. JUSTICES OF THE PEACE.
Where costs are not paid by or for accused convicted in justice of peace court, the first of the days during which convict is held prisoner must be credited on a $1 per diem basis for application to discharge of costs, and such credits belong to justices of the peace and not to county, and county must pay credits to officers at reasonable intervals on presentation to board of supervisors of verified, itemized cost bills correctly made up under statutes governing costs in criminal cases in courts of justices of peace.
3. JUSTICES OF THE PEACE.
Where defendants convicted in justice of peace court did not pay fines and costs assessed against them, and were committed to county jail, and work was not provided for them by county board of supervisors so that they could not work out their fines and costs, but instead defendants were given a credit of $1 per day on their fines and costs for remaining in jail, justice of peace was entitled to payment of costs out of such credits.
APPEAL from the circuit court of Prentiss county, HON. WM. H. INZER, Judge.
R.T. Jarvis, of Booneville, for appellant.
Boards of Supervisors are not authorized to pay any costs accruing to justices of the peace in criminal prosecutions in their courts out of the public treasury, except such of said costs as are expressly authorized to be paid by statute.
U.S. ex rel. Phillips v. Gaines, Comptroller of the State of Tenn., 275 U.S. 70, 72 L.Ed. 168, 48 Sup. Ct. 97; C.J.S., "Costs," sec. 441; 15 C.J. 326; State ex rel. Knox v. Bd. of County Supervisors, 141 Miss. 701, 105 So. 541; Brabham v. Supervisors of Hinds County, 54 Miss. 363, 28 Am. Rep. 352; Jefferson County v. Grafton, 74 Miss. 435, 21 So. 247; Adams v. First Nat. Bank, 103 Miss. 435, 60 So. 770; Greene County v. Snellgrove, 103 Miss. 898, 60 So. 1123.
The expenses of criminal prosecutions, except those before justices of the peace shall be borne by the county in which such prosecutions shall be begun; and all net fines and forfeitures shall be paid into the treasury of such county. Defendants, in cases of conviction, may be taxed with the costs.
Sec. 261, Const. of 1890.
There is no statute now in effect which even so much as intimates a legislative intent that such costs may be paid from the public treasury. Section 4059, Code of 1930, as amended by Chapter 269, Laws of the Regular Legislative Session of 1936, which provided that boards of supervisors shall require each convict to work out his fine, term of imprisonment and costs, on the public roads, the county farm or any public works, does not mention the payments of these costs to the officers, and appears only to fix the term of imprisonment, and are a part of the punishment. This appears to be the purpose of the requirement that the convict shall work out the costs.
Ex Parte Meyer, 57 Miss. 85.
Section 870, Code of 1906, provided that it should be the imperative duty of the board of supervisors to require each convict to work out his sentence in one or other of three ways: first, by hiring out such convicts to the best bidder; second, by delivering such convicts to the county contractor to work out such sentence as required by law; or third, by requiring the convicts to work out such sentence, under the direction of said board, on the public roads or works of the county, or on county farms; and further provided that when the board of supervisors work convicts in the third mode mentioned it may, in its discretion, at the next meeting after the delivery of any convict to the board, issue a warrant on the county treasurer to pay the costs of the officers of the court wherein the convict was tried and sentenced. Such authority is not found either in the Code of 1930 or in Chapter 269, Laws of 1936, the last statutory enactment on the subject.
The general rule is that where any statute is revised, or when one statute is framed from another, some parts being omitted, the parts omitted are to be considered as annulled.
Clay County v. Chickasaw County, 64 Miss. 534, 1 So. 753; M. O.R.R. Co. v. Weiner, 49 Miss. 725.
In enacting Section 1792, Code of 1930, the Legislature undertook to provide for all compensation which justices of the peace are to receive for their services — not only from litigants in civil causes in their courts and those convicted of crimes, but from the county treasury as well. Paragraph (x) of said Section 1792 provides: "For services as conservators of the peace and for examinations or trials of all state cases in which the state fails in the prosecution, to be paid out of the county treasury on the allowance of the board of supervisors, on a detailed fee bill in each case, annually, a sum not exceeding $60." If the Legislature had intended that the county should pay the costs in cases where the state succeeds in the prosecution, and the convicts have been remanded to jail for default in the payment of their fines and costs, it would have provided for such payment out of the public treasury in said Section 1792 or in the law requiring prisoners to be worked.
Sharp Sharp, of Booneville, for appellee.
It cannot be seriously contended that the Legislature ever intended that justices of the peace and constables should receive no compensation for services rendered in enforcing the criminal laws of the state.
That the costs of criminal prosecutions belong to and are the property of the officers entitled to same is clearly established in the case of Ex Parte Gregory, 56 Miss. 164, in which case it was held, that even a pardon from the governor could not relieve a party convicted of crime for liability for costs.
Ex Parte Meyer, 57 Miss. 85.
Chapter 269, Laws 1936, provides that: "It is the imperative duty of the board of supervisors in each county in this state to require each convict sentenced to imprisonment in the county jail and the payment of a fine and costs or to imprisonment and payment of costs, or to payment of fine and costs, to work out the sentence on the county convict farm or on the public roads or other public works of the county, or in a contiguous county."
Section 4065, Code of 1930, provides that "every convict for each day's work he is required to do shall receive credit on his fine and costs assessed against him of one dollar until such fine and costs are fully paid."
The case of Murch v. Supervisors, 73 Miss. 356, 18 So. 540, clearly and emphatically provides for the payment of the costs where the convict has performed the amount of work required, and we think this absolutely settles the question on the account wherein the convicts worked out the time. And this case when read and construed in connection with the case of Ex Parte Jackson, 177 Miss. 509, 171 So. 545, also establishes the liability of the county for the account wherein the convicts were confined in the jail and were offered no opportunities to work out the fine and costs.
Since the convict is required to work each day that he is able to work, the statute is, in consequence, equally plain that he is entitled to a dollar a day for each day he is physically able and willing to work. And it is no answer to this that no work was furnished him. Since he was by law expressly required to work, and the law mandatorily required that he be furnished the means therefor, he had the corresponding right both to work and to have furnished to him the means therefor; and although no work was furnished him, he was and is as much entitled to the lawful credit therefor, as would a servant, who had made a contract with a master to do a certain number of days' for a dollar a day, be entitled to that dollar a day for the contract period when willing and able and ready to do the work, athough the employer failed or refused to furnish the place or means or opportunity by which the work might be done.
Ex Parte Jackson, 177 Miss. 509, 171 So. 545.
A board of supervisors cannot take advantage of its own wrong and disregard of the law to detriment of other officers or private individuals any more than could a private individual, and we respectfully submit that the judgment should be affirmed.
The facts sufficiently appear in an order of the board of supervisors of appellant county, which is in the following words and figures:
"Came on for consideration claims of W.T. Crouch, Justice of the Peace, numbered 2445 and 2447, in Claims Docket No. 18 of Prentiss County, Mississippi, and it appearing to the Board that said Claim No. 2445, as itemized in the accounts attached to said claim and made a part thereof, is made up of costs accrued in criminal prosecutions in the court of the claimant, in which prosecutions the defendants were convicted and sentenced by said Justice of the Peace to pay fines, and costs, and in which cases the defendants failed and refused to pay such fines and costs, were committed to the county jail for failure to pay same, and worked out their fines and costs at public works provided by this Board at one dollar per day allowance to each of said convicts on his fine and costs; and
"It appearing to the Board that said claim No. 2447 as itemized in the accounts attached to said claim and made a part thereof, is made up of cost items accrued in criminal prosecutions in the Court of the claimant, in which prosecutions the defendants were duly convicted and sentenced by the claimant to pay fines and costs, and in which prosecutions said defendants were committed to the county jail for failure and refusal on their part to pay such fines and costs, and in which cases said defendants were not provided work by this Board, and for that reason did not work out such fines and costs, but were given a credit of one dollar per day on their fines and costs for remaining in the said jail and were discharged by the Sheriff when they had served correct number of days at one dollar per day credited to their fines and costs.
"Although, this Board of Supervisors finds that the accounts mentioned are properly itemized, that the defendants mentioned in said accounts were duly convicted and sentenced by a court of proper jurisdiction that the claimant is a duly elected, qualified and acting Justice of the Peace of the County, and that the costs set out actually accrued to the claimant and that he is entitled to recover same from the defendants mentioned, it is the opinion of this Board that it is not authorized by law to allow and pay such costs from the County Treasury, and that said claims should, therefore, be disallowed."
From this order the justice of the peace appealed to the circuit court, and there the action of the board was reversed and the claims were ordered paid.
In Ex Parte Jackson, 177 Miss. 509, 171 So. 545, we distinctly held that it is mandatory upon the county to furnish work to a county convict and, that for application to, and discharge of, his fine and costs, he must be credited with one dollar per day for every day that he is held prisoner, and this whether he is furnished with work or not. One among the several objects of the statutes constituting the county convict system is that the officers of courts of justices of the peace, when convictions have been had in those courts, shall thereby obtain their costs. In order to fully conserve this purpose it must be held that, unless the costs have otherwise been paid by or for the convict, the first of the days during which the convict is held prisoner must be credited on the per diem basis aforesaid for application to the discharge of the costs, which credits belong to the officers aforesaid and not to the county, and which the county must pay to the officers at reasonable intervals upon presentation to the board of supervisors of verified, itemized costs bills correctly made up under the statutes governing costs in criminal cases in the courts of justices of the peace. Compare Murch v. Board of Sup'rs of Warren County, 73 Miss. 356, 18 So. 540.
Affirmed.