Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1862-11-02
AUDIToR's 0YBIoE, FRANKLIN County,
COLUMBUS, o., Oct. 81, l662.S

COLUMBUS, o., Oct. ~, lo6%}
To--,J.P.:
DEAR SR--Your letter Of the 2lst inst /. rel
ativo to the payment Of costs In minor often.
ses, before justices of the peace, mayors, ETC.
10 before me. have had several inquiries from
persons interested, on the same subject, and am
informed that complaints are made of my de.
cision; as it Ia q matter of Importance 10 the
officers, and the people, and az desire oil In.
terested shall know what my decision is, and up.
on what II Is based, and to avoid personal ex.
PLANTATION, take the liberty of publishing my
reply to your letter.
By the act passed March 81, 1887, o. L. vol.
80, p. 81, defining the powers Of JUSTICES OF the
Peace, and constables In criminal cases, SEQ.
%. ID was provided "that in overy prosecution
for any ofense, instituted before justice of
the peace, or Judge, where the State shall fail
In any stage OF the prosecution, or where the
defendant Is recognized or committed, and shall
afterward be acquitted In the further progress
Of the case, or If tho defendant after convio-
ton prove unable TO pay the costs Of prosecu-
tion, the whole costs, including fees Of justices,
constables and witnesses, shall be paid out Of
the treasury Of the proper county, on the order
of the County Auditor" etc.
IL Ia clear, that under this section, the county
must pay tho costs where the defendant Was
acquitted by the justice, or whore the defendant
was recognized or committed, and afterWard
acquitted, and was unable to pay the costs.
BY Sec. "a Of the samo act Il was provided
that in all cases arising under this, or any
other act In which Justice Of tho peace shall
have power to fine persons charged with the
commission Of an offense," he may render judg
ment for costs, and Issue execution therefor,
and II said costs cannot be collected, then they
shall be paid out of the county treasury on the
order Of the Auditor.
On the 7th of March, ls42, o. l.. vol. 40,
p. So, an act was passed, amending the act Of
March 9Th, 1887. and repeating the above
named sections, the lst section Of which pro-
vides " that the Justice Issuing any warrant, on
the affidavit Of any person, for an offense not
punishable by confinement in the penitentiayy,
may at his discretion require such complainant
to acknowledge himself responsible for costs, In
oase the defendnnt be dismissed, etc.; Provided,
however, that in no such case shall the coete be
paid out OF the county treasury"
By this act, the justice had the power to re.
qure the person making the affidavit to become
responsible for the costs, but in no such case
could the costs be paid by the county.
The meaning Of this act was controverted,
and different constructions given it. In l945,
March 9th, o. L. vol. 43, p. GO, an act was
passed to "amend and explain" the act of 7th
OF March, l842, concerning the powers and du-
tIes OF Justices OF the peace and constAbles in
criminal cases, as follows:
"Sec. lst. That from and after the passage
OF this act, the propisO n the lst section of the
act, In the preamble above reoited, shall be
deemed and taken to mean, that no costs shall
be paid out OF the county treasury, which may
In NJ m nR0o hafo. ..nk;
this State, for any ofense not punished CAPT.
tally, or by confinement in the penitentiary,
whom the Justice shall have dismissed said
prosecution without recognizing the defendant
to the Court Of Common Pleas"
| Sec. I'd Of same act. No coats shall be paid
out Of the county treasury, in any case where
the justice Of the peace has, or shall have pow.
er by law to impose fine, or where the defend
ant ehall plead guilty In case of assault and
battery; no county auditor or other person
performing his duties, shall issue any order On
the county treasury In such cases.
The fret section above quoted, provided that
no costs should be paid by the county, If the
"justice dismissed the prosecution without re-.
cogniring the defendant 10 the Court Of Com
mon Pleas" whereas, the law now requires the
defendant to be recognized and indicted before
the county can pay the costs.
The second section prohibited the payment
Of costa by the county 10 cases where the los.
tiee had power TO fine, or where the defendant
plead guilty In case Of assault and battery.
The act Of the l0!h Of March, 1860, 8. &
C.'s Rev. Stats, vol. l, page S2l, provides,
"that no costs taxed by any justice of the peace
| or mayor Of any city or incorporated village in
the State of Ohio, In prosecutions hereafter
commenced before them for any offense, the
punishment whereof Ia less than imprisonment
in the penitentiary, shall be paid out of the
county treasury, anltsS an information shall be
filed in the proper court, or o bill of Indictment
be found against the person or persons charged
with such offense.
Section repealed sections ! and 2 of "an
act to amend and explain the act of the 7th of
March, le42," passed March 9Th, ls45.
This unquestionably applies not only 60 cases
where the defendant ia acquitted, but to all cases
where costs are taxed by justice or mayor for
crimes whereof the punishment Ia less than i'm.
prisonment in the penitentiary, unless an iu-
formation is filed by the prosecuting attorney
or On indictment found by the grand Jury.
Under thiA act, cases of simple dssauh and
| battery were OF rare occurrence; they had al.
most entirely disappeared, and in their places
any number of cases Of "aeaault and battery
with intent to kill or MURDER" we're to bs found
on tho files In the auditors office, demanding
and receiving the costs out Of the county treas,
ury; in fact they formed the great bulk of the
costa paid on transcript. II was very seldom
oase Of assault and battery occurred where
murder was NOT intended. So general had this
become that some unchayitatle people, who
were compelled to keep the treasury supplied
with money TO pay the costs, began TO intimate
that II was done for the purpose Of constituting
nf anoanIk anA hafl
ofensee, 30 that the county was compelled un-
der the law to pay the costs, which it would NOS
do IL they were cases of assault and battery
UithOut the intent to kill or murder.
Whether this was true or not, the legislature
OF 1862, with the ayoWed intention Of cutting
Of these cases, passed On act on the 18th Of
April 20, L, vol. So, page 49), precisely the
same as that of 1860, except that it included in
those cases whore the county should not nav
the costs, the offenses named In the l7th sec. |
tlon Of an act entitled "an act providing for the
punishment Of crimes" passed March 4, 1885. |
which are ian assault With intent to commit
murder. rape, or robbery" This act of 1862
places the above named crimes on the same |
grounds with minor offenses, so far az the pay. |
ment by the county Is concerned.
gln my judgment, ss the law now stands. no |
costs taxed by any justice Of the peace, police
Judge, or mayor In minor offensea, or for an as |
sault with intent TO commit "murder. rape or |
robbery" can be paid out of the county treas |
ury, unless an information be filed by the Pros |
ecutipg Attorney, or the grand jury finds bill |
of indictment. II the defendant pleads guilty. |
or is convicted, and fined or imprisoned BY the |
justice, police judge or mayor, they must look |
to the defendant for the costs, as In these cases
no Information is filed with the Probate Court,
or indictment found by the grand jury, and in