Opinion
Decided December, 1884.
The county is not liable for costs incurred in prosecuting offences against the police of towns on the complaint of selectmen.
This agreed case presented the question whether the town of Grantham or the county of Sullivan is liable to pay justice, sheriff, and witness fees in the prosecution of persons for being common drunkards, on complaint of the selectmen of Grantham. The respondents were found guilty, and served out their sentences in the house of correction and jail respectively, but were discharged without paying the costs.
Ira Colby, Solicitor, for the county.
"All legal costs attending the arrest, examination, or conveyance of any offender, except when the same is directed or approved in writing by the counsel of the state, or county commissioners, shall be paid by the complainant." G. L., c. 268, 8.13. "No such bills of costs [in criminal proceedings before magistrates] shall be allowed unless an indictment be found in the case, or the prosecution be instituted by the authority and under the direction of the attorney-general or the solicitor for the county." Rule 92. Hall and Thornton were convicted of an offence against the police of towns. G. L., c. 269, s. 17. A person convicted of such an offence may, upon petition and proof of inability to pay his fine or costs, be discharged by the selectmen, and the town is liable for his prison charges in case of his inability. G. L., c. 268, 8.11. County of Merrimack v. City of Concord, 30 N.H. 299; County of Strafford v. Somersworth, 88 N.H. 21; County of Strafford v. City of Dover, 61 N.H. 617. Fines for the violation of police offences or of the by-laws of towns are for the use of the towns. County of Hillsborough v. City of Manchester, 49 N.H. 57, 61. The fines being for the use of the town, the town being liable for the prison charges, and the selectmen having authority to discharge the prisoner, the legislature have not undertaken to impose the expense of such prosecutions upon the county unless they were directed or approved by some other authority than that of the town. In this case the complaints were made by the selectmen of Grantham, acting in their official capacity. The complaints not having been authorized or approved by the counsel for the state, or the county commissioners, the county is not liable. Whether the selectmen had power to bind the town is a question we do not consider.
Case discharged.
CLARK, J., did not sit: the others concurred.