The Ottawa free trader. [volume] (Ottawa, Ill.) 1843-1916, 1883-07-21
state. Attorney and justices Of the Pesos'

states AttOrnOy enu Jussioos Va '"0 0eo'
The following opinion, by Attorney. Ger
eral Mccartney, sent States Attorney Brewer
Of this county, will be OF special Interest
Justices Of the Peace, as well as to the put
lie:
Hon. L. W. BREWER, States attorney l.
Sale County:
DEAR SIR-Your communication Of the 2
inst. received, in which you ask me
lst. Is it made the duty Of States Attol
news, by the law going into force July Isl
1883, to try all cases coming before justice
Of the peace where they have original Jurk
dictiOny
Previous to July LIST, 1888, states attorney
were not required to appear before justice
Of the peace, except in preliminary exam
nations. Now, however, they are require
TO appear before them in all cases where tn
people are parties. The present law require
the Justice OF the peace, where conviction
Is had, to tax q fee OF S. for the states attor
ncy and collect the same as other COSTS. !
Is the duty OF the states attorney to atten'
all trials before a justice OF the peace wher
the people are party, II 10 Is possible Tor hin
TO do so, the same as in the circuit or count.
court; and IL IL is not possible for him TO az
SO, IL Is his duty to secure the attendance o
competent counsel to represent him. IN eaci
case where the states attorney is represented
by counsel IL will be the duty OF the justice u
tax the same fee as If the states attorney
were personally present. But If neither Tho
states attorney nor any one authorized u
represent him should be present, fee
should not be taxed therefor.
I'd You further ask il IL Is now or was
heretofore the duty of states attorneys TO at
tend before Justices preliminary examina'
lions.
You will find this question plainly answer
ed In the sixth paragraph OF Sec. D. CHAP H.
Rev Stat IL is there said that The duties
OF each states attorney shall he 10
attend before justices of the peace and pros
ecute charges of felony and misdemeanor,
for which the offender is required to be re-
cognlzed to appear before court OF record,
when In his power so to do.
Your third question, asking whether IL Is
the duty Of the Justice OF the peace To TAX us
costs fee In cases Of original jurisdiction lot
the states attorney, has been answered. But
YOU also ask, in the same interrogatory,
whether it Is the duty Of the justice to tax as
costs fee OF five dollars for the states attor-
ney in a trial on a preliminary examination,
and to report the same with his other costs
to the court to which the defendant may be
bound over.
In no case can fee or other service be
taxed as costs against party unless express
ly authorized by statute. Previous 10 tnel
passage OF the act Of 1883 | find no law FOR
the taxing OF fee in such case; but in that
act find it is provided that fee shall bel
taxed as costs, OF five dollars, "for each de-
PENDANT recognized or held TO answer on a
charge of felony" Therefore, where theI
charge is for felony, the justice should tax
a fee Of five dollars for the states attorney,
TO be reported with the other costs to the
court TO which the prisoner Is bound. But
in all cases, | think, no fee should he taxed
for a states attorney where he has not been
present in person or by proxy, AS II would De
contrary to all precedent as well as our sense
OF right to charge and be allowed for services
never rendered.
You ask, fourthly, II justices OF the peace
should pay over the fines collected In cases
where they have original jurisdiction TO the
states attorney.
Sec 81 of Chap. l22 Rev. Stat, provides
that "it shall DC the duty OF the states attor.
news OF the several judicial circuits TO en-
force the collection Of all fines, forfeltures
and penalties imposed or incurred IN the
courts Of record in their several circuits, ana
TO pay the same over to the school superin-
tendcnt Of the counties wherein the same
have been imposed or incurred, retaining
thereirom the fees and commissions allowed
them by law; and 1t shall be the duty OF the
said Justices OF the peace to enforce the col
lection of all fines imposed by them by any
lawful means, and when collected the same
shall be paid by the officer charged with the
collection thereof to the school superintend-
ent Of the county in which the same was
imposed" |
A penalty was attached for failure to pay
the money a. directed; and 1t was also prOyi-
ded that report should be made by the first
day Of March annually OF the amount OF
fines collected by each of the officers charged
with their collection. This law, therefore,
made it the duty OF justices Of the peace to
pay the money collected on tlnos directly to
the school superintendents; and while the
law was enacted previous to the adoption
of the present constitution and applied to
states attorneys elected for circuits instead
OF county attorneys, yet 1t does not seem to ,
have been repealed or amended.
The law of 1888 provides that States at
torneys shall have a lien for their fees on
judgments for fines or forfeitures procured {
by them for their fees and earnings until they {
are fully paid, and such payment shall opec- |
rate as II release Of the lien created by this ,
act" 1t IS suggested that this lien cannot :
DC made effective unless the fines shall be
paid over to the states attorney by the JUS
ticc Instead of the school superintendent,
and that this law creating lien must be held {
TO he an implied repeal OF the former law re. |
curing the fines to be paid to the school ,
superintendent. But it is arule OF construc.
ton that one law shall not be held to i'm.
pliedly repeal another law unless there is
such an irreconcilable conflict between the
two that upon no reasonable hypothesis can
they be both made to stand together. APP I
plying this rule, think they can easily be ,
reconcilcd The old law seems TO make the I
first day Of March in each year general day ,
Of settlement between each officer who has :
the charge of the collection Of fines and the
school superintendent. On that day, when
the states attorney makes his report to the
school suuorlnteudeut, he should also report