Crawford County v. Barr

Mr. Justice Trunkey delivered the opinion of the court, January 5th 1880. Eor prevention of trespasses upon railway trains it has been enacted that the trespasser, on conviction before a justice of the peace, shall forfeit and pay a penalty of not less than five dollars nor more than fifteen, and be committed to the county jail for a period not exceeding ten days; but if he neglect to pay the penalty and costs immediately, he shall be committed for a further period of ten days: Act March 24th 1878, Pamph. L. 125. Punishment at hard labor is not authorized. The act has not provided that the [363] county shall pay the costs, if the convicted trespasser be lawfully discharged without having paid the same. To recover costs, accrued in a criminal proceeding, it is necessary to show a statute obliging the county to pay, and when this cannot be done, an action against the county must fall. It is said the plaintiff may recover by virtue of a clause in the 64th section of the Act of March 31st 1860, Pamph. L. 445, namely, “ that in all cases of conviction all costs shall be paid by the party convicted, but when such party shall have been discharged according to law, without payment of costs, the costs of prosecution shall be paid by the county.” That Section is a part of the Criminal Procedure Act, and is a consolidation of sections 11 and 15 of the Act of September 23d 1791, 4 Carey & Bioren’s Laws 80, section 1 of the Act of March 20th 1797, 5 Id. 224, and section 13 of the Act of March 28th 1814, Pamph. L. 359. The Act of 1791, sect. 13, declared the county should pay the costs on indictments returned ignoramus, and the Act of 1797 imposed like obligation when a party charged should be acquitted by the petit jury. Later acts made other provision in all cases of such acquittal, except felonies. The Act of 1791, sect. 15, enacted, “That in all cases where any person shall be convicted of any offence or offences, which shall be punished capitally or by imprisonment at hard labor, the county” shall pay the costs of prosecution if the defendant hath not property to discharge the same. Prior to 1860 it was decided that the county was liable, under that section, for costs on conviction and sentence of a person, before a justice of the peace, for an offence punishable at hard labor; but not, unless the conviction and sentence showed the case was within said act: County of Northampton v. West, 4 Casey 173; County of Cumberland v. Holcomb, 12 Id. 349. The Act of 1814, sect. 13, enacted, “That*in case of conviction in any Court of Oyer and Terminer, Quarter Sessions or mayor’s court, all costs shall be paid by the party convicted, but when such party shall have been discharged according to law, without payment of costs, the same shall be paid by the county.” Section 64 of the Act of 1860, on its face, applies to costs on bills of indictment, it is part of an act directing the procedure in Courts of Oyer and Terminer and Quarter Sessions, and said act is silent as to convictions and costs before justices. The clause relied on as making the county liable in this, and like cases, is taken from the Act of 1814 which was limited to the courts therein named. Nothing in the report of the code commissioners indicates a purpose to extend the liability of the county to convictions before justices, and we see no reason for taking a clause out of a sentence, which constitutes the section, and giving it a construction it would not bear in its proper place. The detached clause may be separated without destroying its sense, yet it must be interpreted as in its true relation. It may be within the intendment of the consolidated [364] statute to continue the liability which was imposed by the Act of 1791; but, manifestly, there was no intention to include cases of convictions, before justices, punishable only by simple imprisonment. County commissioners have no power to discharge a prisoner, or to remit fines, forfeitures and costs. If courts ' have sanctioned their acts in paying costs out of county funds, where a party was committed solely in default of payment of costs, that does not authorize their interference when, there has been a conviction and sentence for a criminal offence. A judge considers the pecuniary ability of the party when he imposes the «fine, and often will make the period of imprisonment shorter, because of the probability that the convict will remain, after its expiration, the prescribed time before he can be discharged under the insolvent laws : Schwamble v. The Sheriff, 10 Harris 18; Berks Co. v. Pile, 6 Id. 493. Stebbins was not discharged according to law; and the plaintiff could not recover, even if the county were liable in such a case after a lawful discharge without payment of costs. Judgment reversed, and now on the case stated, judgment for defendant below.