Trapp v. State ex rel. Burgin

SHARPE, J. — The act of February 26, 1875, which is embodied in section 3741 of the Code of 1896 provides that “The sheriff is authorized to execute all mesne and final process which is required of constables, and shall receive the same fees and compensation therefor.” Its purpose was to extend the authority and duties of the sheriff in matters in which he had thereto [398] fore been without authority or duty. That section ,8741 had no reference to the execution of warrants of arrest appears from the consideration that at the time of its enactment and for a long time prior thereto the sheriff had full authority to execute such warrants, and the statutes giving such authority have been carried into each of the Codes thereafter adopted. — Code of 1896 § 5209. By section 4576 of the Code the constable’s fee for executing a warrant of arrest is fifty cents, and by section 4565 the sheriff’s fee for like sendee is two dollars. But the seeming conflict between these provisions for i fees disappears with the exclusion of warrants of arrest from the operation of section 3741. The case here under consideration falls within the class mentioned in the act of February 18, 1897, (note to section 4511 of the Code), and may, therefore, be determined independently of other statutes relating to such fees. Section 1 of this last act provides that “Whenever defendant is convicted and sentenced to the penitentiary the following items of costs in the case shall be paid out of the convict fund to the extent and in the manner hereinafter prescribed,” and following an enumeration of other items is “Sheriff’s fees executing each warrant or writ of arrest two dollars.” Section 3 of that act is as follows: “That, presently, after such conviction, the clerk of the court in which the conviction is had, shall make out a bill of the costs in the case, containing no items not enumerated in section 1 of this act; he shall make oath to the correctness of each item of said bill, and that the same is a legal charge against the defendant. He shall forward the bill of costs to the president of the board of inspectors of convicts, or the officer discharging his duties, who shall carefully examine the same, and, if found correct, he shall request the Auditor in writing to draw his warrant upon the Treasurer for the payment of said bill to said clerk out of the convict fund. Provided, that no costs shall be paid, until the convict has been delivered to the penitentiary officials, and, "where a convictds sentenced in more than one case, the costs in the succeeding cases shall not be paid, until he has served the preceding sentences.” [399] This statute was enacted after the adoption of the Code, and is an alteration of the law as it had existed in section 4570 of the Code, in so far as that section required execution against a penitentiary convict and a return thereon of no property as a condition precedent to the payment of costs by the State. The latter statute applies “whenever a defendant is convicted and sentenced to the penitentiary ;” whether he is solvent or insolvent; and in view of the peremptory direction therein given that the proceedings for such collection of costs shall he had “presently after conviction” there is no time allowed for the exhaustion of an execution, which under section 4559 of the Code could not have been returned Avithin thirty days after it had gone into the hands of the sheriff. It is the plain duty of the respondent as president of the hoard of inspectors, enjoined upon him by the statute to request the Auditor in writing to draw his warrant on the Treasurer as prayed in the petition; and the judgment of the city court awarding the mandamus aatII be here affirmed. Affirmed.