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H. Cason, and returned by the sheriff of Barton county, no property can be found belonging to C. H. Cason;' that on the -day of October, 1881, the sheriff and the clerk of the district court of Barton county, Kansas, filed with the commissioners of said county their affidavit stating that the costs adjudged against Cason could not be collected from him, and plaintiff alleges that said costs cannot be collected from said C. H. Cason; that the commissioners of said county, well knowing the premises, have refused and still refuse to allow and to pay said fees, although payment has been demanded. "Therefore, plaintiff prays judgment against defendants for the sum of two hundred and ninety-five 50-100 dollars, with interest thereon at 7 per cent. from November 1, 1881, and costs of suit."

To this petition the defendants filed a demurrer upon the ground that the petition did not state facts sufficient to constitute a cause of action against the defendants. The cause came on to be heard upon the demurrer at the November term, 1883, when it was overruled by the court, and, the defendants electing to stand upon their demurrer, judgment was rendered against the defendants in the sum of $338.32. The defendants excepted to the ruling of the court upon the demurrer, and bring the case to this court by petition in error and transcript of the record.

C. F. Diffenbicher and Waters & Ensminger, for plaintiff in error. Maher & Osmond, for defendant in error.

JOHNSTON, J. The claim sued on in this case was for the fees of witnesses for the state in a criminal prosecution, in Barton county. C. H. Cason was charged with embezzling the sum of $1,000, and at a preliminary examination before a justice of the peace of that county was recognized to the district court to answer the charge, where he was tried at the September term, 1880, and convicted of embezzling $15, for which he was sentenced to pay a fine and the costs of prosecution. As the defendant in that prosecution was unable to pay the costs, the witnesses for the state seek to recover them from the county. It will be observed that the fees sued for were earned, and the conviction obtained, in that case long prior to the enactment of chapter 108, Laws 1881, which has repealed some of the provisions then existing respecting costs in criminal cases, and has created a liability against the county for such costs, which did not exist prior to the taking effect of that law. Commissioners of Labette Co. v. Keirsey, 28 Kan. 40. The defendant in error, plaintiff below, bases his right to recover upon section 325 of the Criminal Code, which provided that "the costs incurred on the part of the prosecution shall be paid by the county in which the offense is committed, when the defendant shall be convicted and shall be unable to pay them." This general provision, as has been decided, was limited by section 27, c. 83, Comp. Laws 1879. The last-mentioned section was later legislation, and provided that no costs should be paid by the county in any case of misdemeanor of which a justice of the peace had jurisdiction, when the complainant or defendant shall be adjudged to pay them. Commissioners of Johnson Co. v. Wilson, 19 Kan. 485.

The claim of counsel for defendant in error, however, is that the case of State v. Cason was a prosecution for felony, and therefore did not come within the prohibition of the section last quoted. They say that the original complaint charged a felony; the justice of the peace bound the accused over, finding that there was probable cause for believing that felony had been committed; the county attorney filed an information charging a felony, and the defendant had a trial as for a felony; and that all these things give character to the case and entitled it to be classed as a case of felony. It will be seen that in this case the defendant was convicted of only a misdemeanor. The offense of which the accused is guilty is to determined by the verdict, and not by the charge. We think that so far as the question of liability for costs, under the statute as it then existed, is concerned, the case is to be classed, and its character determined, by the conviction. It was held in State v. O'Kane that where an information charges an offense which includes both a misdemeanor and a felony, and the jury find the defendant guilty of a misdemeanor only, the defendant can only be required to pay costs as for a misdemeanor. 23 Kan. 244.

Upon the same question, see, also, State v. Granville, 26 Kan. 158. No reason is seen for the application of a different rule where the liability is sought to be imposed upon the county in such a case, and, within the principles announced in these decisions, we must hold that the county is not liable for the costs sued for.

The judgment of the district court will be reversed, and the cause remanded, with instructions to sustain the demurrer filed in the court below by the plaintiff in error.

(All the justices concurring.)

(34 Kan. 378)

MORSE and others v. BRUNSWICK and others.

Filed November 7, 1885.

ERROR-TRIAL-NEW TRIAL-AFFIRMANCE,

Error from Marion county.

L. F. Keller and J. H. Morse, for plaintiffs in error.

Frank Doster, for defendants in error.

PER CURIAM. The only errors discussed in this case in the brief of plaintiff in error are those alleged to have occurred upon the trial. No motion for a new trial is contained in the record, and therefore the judgment of the district court must be affirmed. Ferguson v. Graves, 12 Kan. 39; Nesbit v. Hines, 17 Kan. 316; Hover v. Cockins, Id. 518; Typer v. Sooy, 19 Kan. 598.

(34 Kan. 306)

BOARD OF COUNTY COM'RS OF MARSHALL Co. v. MCLEOD.

Filed November 7, 1885.

COUNTY-PAUPERS-ORDER OF COUNTY COMMISSIONERS DIRECTING DISCHARGE FROM ASYLUM.

The superintendent of the county asylum, in the management thereof, and in the care and custody of paupers placed therein, is under the control and subject to the order and direction of the county commissioners; and where the commissioners find that persons who have been placed in such asylum are no longer entitled to support at the public expense, and make an order directing the superintendent to discharge them from the asylum, it is his duty to comply with such order.

Error from Marshall county.

E. A. Berry, for plaintiff in error.

W. A. Calderhead and C. H. Lemmon, for defendant in error. JOHNSTON, J. This action was brought by Alexander McLeod, defendant in error, to recover from the county of Marshall the sum of $2,389.91 for services performed by him as superintendent of the county asylum for the poor, and for the care and keeping of certain paupers that had been committed to his charge. It appears that in Marshall county there is a regularly established county asylum for the support and protection of the poor of that county, and that the board of county commissioners designated and employed the defendant in error as superintendent of the county asylum for a term of three years, commencing March 1, 1880. By the terms of the employment he was to receive from the county board the sum of $3.75 per week for taking care of and supporting ordinary paupers, while for those that were insane or idiotic, and who required extra attention, he was to receive $8 per week. Among the persons committed to the charge of the superintendent was Kate Patten and her infant child, Tilly, who were placed in the asylum on January 1, 1882, by the trustee of Marysville township, and remained there until January 26, 1883. The bill for their maintenance from the time when they were admitted until July 1, 1882, was presented by the superintendent, and allowed by the county board, at the regular July session, 1882. But it seems that about the latter date the members of the board of county commissioners visited the asylum and found Kate Patten to be a healthy and robust person, and that her child was then about 18 or 20 months old, and they determined that she was no longer entitled to public support, and ought to be discharged from the poor-house, and so notified the superintendent, McLeod. The superintendent, however, did not discharge them from his custody until January 26, 1883, and at a subsequent meeting of the county board he presented for allowance a bill of $225 for their support and maintenance from July 1, 1882, to January 26, 1883, which the board disallowed. To recover this and other charges claimed by the plaintiff below, this proceeding was brought, but as the county had tendered to the superintendent all that was claimed by him other than the item for the main

tenance of Kate Patten and her child, that item was the only real controversy between the parties.

Upon the trial the board of county commissioners offered to prove— First. That at the time of their visit in July, 1882, to the county poorfarm, as aforesaid, they found the said Kate Patten and her child to be unfit persons to be supported by the county, and they looked for and found a situation for her and her child in the family of A. G. Barrett, where she could earn support for herself and child. Second. That on their return they made an order, which order was entered upon the journal of proceedings as follows, to-wit: "State of Kansas, County of Marshall, ss.: OFFICE OF COUNTY CLERK, Thursday, July 13, 1882. The board of county commissioners met in regular session, pursuant to adjournment. Present, C. E. Tibbetts, I. C. Legere, L. W. Libby, J. A. Broughten, county attorney. The following proceedings were had, to-wit: Ordered by the board of county commissioners that Miss Kate Patten and her child be discharged from the county poor-house forthwith, and that a quarterly allowance of $20 be made her for the third quarter of 1882." Third. That a written copy of said order was, on the fourteenth day of July, 1882, by the county clerk of said county, served upon the plaintiff; that the county board at that time, the same being the regular July meeting, made an allowance of $20 to aid said Kate Patten for the three months after she had left the poor-farm. Fourth. That the members of the board severally, at the time of said visit, told said plaintiff that the said Kate Patten and child should no longer remain at the poor-farm, and directed him, as superintendent of the asylum, to have them removed at the cost of the county to the home of the said A. G. Barrett, where a place had been provided for them. Fifth. That said plaintiff refused to remove said persons, or to allow them to be removed by said commissioners, giving as a reason for refusing so to do that the board of county commissioners had no authority to remove or discharge an inmate of the county poor-house. This testimony was excluded from the jury upon the objection of the plaintiff below, and afterwards the court in effect instructed the jury that the superintendent was entitled to compensation for the support of Kate Patten and her child for the entire time they were in the poor-house, notwithstanding the order of the board that they be discharged. These rulings were excepted to and are assigned for error here, and the question is presented, can the superintendent of the asylum for the poor retain in the asylum and collect payment from the county for the support of persons who have been ordered discharged by the board of county commissioners as not entitled to public support?

The mayor and council of incorporated cities and the township trustees of the various townships of the state are, by the statute, constituted overseers of the poor within their respective townships or cities, and the contention of the defendant in error is that by virtue of this authority the overseers of the poor alone have jurisdiction or

control over the person of the pauper. The power to discharge persons from the poor-house is not expressly conferred by the statute upon any officer or board, but it was certainly not contemplated that all who were placed in the asylum for the poor should permanently remain there. Persons are not to be supported at the expense of the public who are not needy. Many are placed in the poor-house who only need temporary relief, and the authority to determine when such persons are no longer entitled to public support should be placed somewhere; and in this case it seems to us to be conferred upon the board of county commissioners. It appears, upon an examination of the provisions of "An act for the relief of the poor," Comp. Laws 1879, c. 79, that the duty of determining in the first instance who are entitled to public support does devolve upon the overseers of the poor, and in counties where a county asylum has not been established the supervision or control of persons who have been determined to be entitled to relief at the expense of the public remains to a great extent with the overseers of the poor. But where there are regularly. established county asylums, different rules govern, some of which are pointed out in the case of Smith v. Commissioners of Shawnee Co., 21 Kan. 669. The authority of the township trustee is necessarily limited to the township in which he resides, and section 1, c. 79, places a further limitation upon his power, by expressly declaring that he shall perform such duties respecting the poor of his township as may be prescribed by law. Nowhere is he given any authority or control over the county asylum, its superintendent, or over the persons who have been placed in the asylum. The county commissioners are the chosen agents of the county for the management of its affairs, and by section 25, c. 79, the board is authorized, whenever it is deemed advisable by them, to purchase land, and build, establish, and organize an asylum for the poor, and to employ a superintendent, who shall take charge of and conduct the asylum upon such terms and under such restrictions as the board shall consider most advantageous for the interests of the county. The duties of superintendents, and the authority by which they are to be governed, are stated in section 26 of the act, wherein they are required "to receive into his or their care and custody all persons who may become a county charge as paupers, and to take such measures for the employment and support of such paupers, and to perform such other duties as the board of county commissioners shall from time to time establish, order, and direct, consistent with the laws of this state." By section 31 the superintendent is required to give a bond to the county board conditioned for the faithful discharge of his duty; and he is further required to make to the board a detailed written report of the paupers admitted to the asylum, the condition of their health, and their fitness for labor, the result of their industry, and the expense incurred in their maintenance. In the same section it is made the duty of the members of the county board to personally visit and inspect the poorv.SP,no.7-26

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