State ex rel. Kemp v. Hannibal & St. Joseph Railroad

Ellison, J. This proceeding was originally instituted by the prosecuting attorney of Livingston county under section 806, Revised Statutes, on the information of John Hudgins. The penalty was recovered against the railway company and appealed to the Supreme Court, where the judgment was affirmed. The case can be found reported in 89 Mo. 571. In taxing the costs against defendant, the clerk of the circuit court included five dollars as a fee for the prosecuting attorney. . A motion was made to re tax the costs and was sustained as to some items, but overruled as to the item mentioned. The correctness of this ruling is the sole question presented by counsel. By section 5596, Revised Statutes, “ prosecuting attorneys shall be allowed fees as follows, * * * for judgments upon any proceedings of a criminal nature, otherwise than by indictment, or information, five dollars.” Qui-tam actions for a -penalty may be prosecuted civilly or criminally by information (3 Blackstone, 308), and so it is permitted by our statute (sec. 1674). Am ong the reasons assigned, why the prosecuting attorney should not be allowed a fee as costs, is, that this is a civil action. The case was undoubtedly begun as a civil action. It was so tried and considered below. It could not be held to be a criminal information for the plain reason that it lacks essential requisites to make it such ; it is not verified by affidavit and was not filed under the statute relating to prosecutions by inf donation. The Supreme Court stated, in disposing of the case, that it [498] might be prosecuted under section 1674, supra. The ■disposing of the case by either proceeding is an end of the matter and bars further prosecution by the other mode. But the question is, is this proceeding “of a criminal nature ” under the statute above quoted % I am inclined to think it is. It is one of those cases to which the prosecuting attorney must attend, and which may be prosecuted “otherwise than by indictment or information,” as we have just seen. It has for its object the infliction of a penalty for a violation of the command -of a penal statute, and must be prosecuted by the prosecuting attorney. I am persuaded that it is covered by the provisions of the statute quoted and that the judgment should, therefore, be affirmed. All concur.