
    HILL v. BUTLER COUNTY, Appellant.
    Division One,
    March 30, 1906.
    1. APPEALS: Record Matters. The record proper, on appeal, must show that the motion for a new trial was filed, and the ruling of the court on such motion, and the order extending the time for filing a bill of exceptions, if there was such order, and an entry in the record of the court ordering the bill to be filed or an entry in the record showing that it was filed. A recital in the bill of exceptions that these things were done does not prove that they were done, and if such recitals are contained only in the bill of exceptions the bill of exceptions will not be considered on appeal.
    2. PROSECUTING ATTORNEY: Fees: Felony Cases: Prelimiinary Examinations. A prosecuting attorney is entitled to no fee for attending and representing the State in a preliminary examination before a justice of the peace of his county in a felony case. For such service he is compensated by his salary, and is entitled to no fee.
    3. -: -: Allowed Only by Statute. A public officer is entitled to no fee for services performed for the State or county unless such fee is specifically allowed him by statute. And the statutes are reviewed and it is held that they do not entitle a prosecuting attorney to fees for services rendered the State as its representative in preliminary examinations before justices of the peace in felony cases.
    Appeal from Butler Circuit Court. — Hon. J. L. Fort, Judge.
    Reversed.
    
      J. T. Davison for appellant.
    In addition to the salary based upon the population of his county, the prosecuting attorney shall also receive for his services in the circuit and other courts such fees as are allowed by law. Sec. 4949', R. S. 18991. The prosecuting attorney “shall also attend and prosecute, on behalf of the State, all cases before justices of the peace when the State is made a party thereto;”which -undoubtedly includes preliminary examinations, hut no provision is here made for a fee for the prosecuting attorney for his services in such cases. See. 4951, R. S. 1899. Section 3237, Revised Statutes 1899; provides what fees shall he allowed prosecuting attorneys for their services; but therein there is no fee specified for preliminary examinations. No officer is entitled to fee of any kind for any services unless they are provided for by statutes allowing such fees. State ex rel. v. Brown, 146 Mo. 401. All statutes in reference to costs must be construed strictly, and an officer cannot legally claim remuneration unless the State has especially conferred the right. Jackson County v. Stone, 168 Mo. 577. The county is liable for costs in felony cases only when the punishment may he imprisonment in the county jail, a fine or both. Secs. 2830, 2831, R. S. 1899. The rendition of services by a public officer is to be deemed gratuitous unless a compensation is provided by statute, when the officer is confined to the mode, manner and amount prescribed by the statute, and is entitled to no other or further compensation, or to any different mode of securing the same. State ex rel. v. McCracken, 60 Mo. App. 650; Gammon v. Lafayette Co., 76 Mo. 675
    
      David W. Hill pro se.
    
    (1) A prosecuting attorney is a county officer and entitled to receive his pay from the county, unless otherwise provided by law. This is indisputable. (2) Section 4949, Revised Statutes 1899, after fixing the prosecuting attorney’s salary, uses the following language: “And the said prosecuting attorney shall also receive for his services in the circuit and other courts such fees as are allowed by law.” (3) Among other things, section 4951, Revised Statutes 1899, provides as follows: ‘ ‘ He shall also attend and prosecute, in behalf of the State, all eases before justices of the peace, when the State is a party thereto.” (4) Section 2441, Eevised Statutes 1899, provides that a person may be charged in writing, on oath, with a felony before a magistrate, etc., which instrument of writing is neither an indictment nor an information. (5) Sections 2447, 2453 and 2455, Eevised Statutes 1899, provide for the holding of a trial as in a court of record. In such cases, the State being a party, the prosecutor is required to attend and represent the State, and generally earns his money. (6) And section 3237, Eevised Statutes 1899', contains the following clause: “For judgments had under proceedings of a criminal nature, otherwise than by indictment or information,- five dollars.”. Such is the judgment of a justice of the peace of probable guilt of one charged with a felony. That clause means nothing, if it does not cover the prosecutor’s services in preliminary examinations. (7) However, the Legislature, in order to make the prosecutor secure in matters of compensation, by section 3237, supra, provided as follows: ‘ ‘ For his services in all actions -which it is, or shall be, made his duty to prosecute or defend, five dollars.” And, by this clause, it appears that it was intended that a prosecutor should have at least five dollars for his services, regardless of results, in all matters not otherwise specifically provided, for this clause certainly covers preliminary examinations.
   VALLIANT, J.

—While plaintiff was prosecuting attorney for Butler county he attended eighteen preliminary examinations in felony cases before justices of the peace and presented his bill for services in those cases to the county court for ninety dollars, being five dollars for each case. The county court disallowed the bill, and the plaintiff appealed to the circuit court where a trial was had and judgment rendered for the plaintiff, from which judgment the county prosecutes this appeal.

I. The ease comes here on a short transcript which shows the judgment and order allowing the appeal. There is in the abstract filed what purports to be a bill of exceptions which purports to contain the evidence, instructions, those given and those refused, the motion for new trial, order overruling the motion, exception, and order extending time for filing bill of exctpfions; there is also what purports to be the indorsement of the filing of the bill of exceptions by the clerk, within the period of the alleged extension. But there is nothing appearing on the record proper or the abstract of the record proper showing that the motion for a new trial was filed, or the ruling of the court on such motion, or an order of the court extending the time for filing the bill, or an entry in the record of the court ordering that the bill be filed, or an entry in the record showing that it was filed. A bill of exceptions cannot prove itself by reciting on its face that those acts were done, the doing of which the law requires to be entered in the record proper. We have said that so often that it seems unnecessary to say it again. In this condition of the record this bill of exceptions must be discarded from further consideration.

II. The only question that the record proper presents is, does the plaintiff’s bill for services in attends ing the preliminary examinations in felony cases before justices of the peace in his county, state a cause of action? If so, the court having rendered judgment in plaintiff’s favor, we must presume, in the absence of a bill of exceptions, that .the plaintiff proved his claim and that no error occurred during the trial.

Is a prosecuting attorney entitled to a fee for attending and representing the State in a preliminary examination before a justice of the peace of his county in a felony case? There is no question of quantum meruit in this case; if the officer is entitled to the fee claimed he can point to the statute'which gives it to him, and this he has attempted to do.

Section 4949, Revised Statutes 1899, begins thus: The prosecuting attorney shall receive for his services, to be paid out of the county treasury, in all coun'ties having a population,” etc. Then the section goes on to prescribe the salary of the officer, grading it according to the population of his county, from $300 to $1,000, after which it adds: “and the said prosecuting attorney shall also receive for his services in the circuit court and other courts such fees as are allowed by law.” Thus the Legislature has provided that the officer is to be compensated for his services in two ways, by salary and by fees, both as, and only as, expressly prescribed by statute. If the law imposes on him a certain duty, but prescribes no particular fee for its performance, he cannot say that it imposes on him a duty for which he receives no compensation, because the statute says that his salary is given him in payment of his services. We do not mean that the salary is given as compensation for only such services as for which no particular fee is prescribed, for that is not the meaning of the statute; the salary is in payment of all his services, with the addition that for certain services particular fees are also given, and there may be other services for which no particular fee is given, but which are fully compensated by the salary. The general duties of a prosecuting attorney are declared in section 4950, R. S. 1899); then follows section 4951, prescribing certain particular duties in which it is made his duty to attend to all civil suits and give advice in matters in which the county is interested, after which comes this clause: “He shall also attend and prosecute, on behalf of the State, all cases before justices of the peace, when the state is made a party thereto. ’ ’ That is the clause which the plaintiff thinks makes it the duty of a prosecuting attorney to attend preliminary examinations in felony cases before justices of the peace.

Section 3237, Revised Statutes 1899, specifies the fees a prosecuting attorney may have in certain cases. In that section are two clauses, either of which the plaintiff thinks sustains his claim: first, “for judgments upon any proceeding of a criminal nature otherwise than by indictment or information.” The preliminary examination before a justice of the peace in a charge of felony is not embraced in that clause; that contemplates a proceeding before a court in which a final judgment may be rendered and a mere preliminary examination is not that kind of a proceeding. Besides, it cannot be said of a felony case, at any stage, that it is merely of a criminal nature; it is essentially criminal The second clause in that section reliedonis the concluding clause of the sentence:“for his services in all actions which it is or shall be made his duty by law to prosecute or defend, five dollars.” The foregoing are the statutory provisions on which the plaintiff relies to sustain his two propositions, first, that the statute made it his duty to attend the preliminary examinations; second, that it prescribed a fee of five dollars for his services in each case.

Attending preliminary examinations before a committing magistrate is within the general scope of a prosecuting attorney’s duties, but it is not especially prescribed in the clause of section 4951 above quoted or in any other statute. The “cases before justices of the peace, where the State is made a party thereto,” mentioned in section 4951, are cases for trial in a justice’s court, nor mere preliminary examinations. This is not only apparent on the face of the section itself, but is shown in the two sections next following; section 4952 makes it the duty of the prosecuting attorney to attend in behalf of the State in habeas corpus proceeding; then comes section 4953: “No justice of the peace or judge of a court of record having jurisdiction shall allow any such cases as are alluded to in the two preceding sections, to be tried before him, unless the prosecuting attorney shall be present or some one properly qualified to prosecute for him; and it shall be the duty of any justice of the peace or county judge, before trying such cases as are alluded to in the two preceding sections, to give due notice to the prosecuting attorney. ” If the clause in section 4951 on which plaintiff relies should be construed to include preliminary examinations, then section 4953 operates as a serious hindrance to the power of a magistrate to conduct such an examination, it forbids him doing so in the absence of the prosecuting attorney; that is not what the statute means.

Returning to the clause in section 3237 above quoted: “for his services in all actions which it is or shall be made his duty by law to prosecute or defend, five dollars,” we construe the word “actions” as there used to mean suits in court upon which judgments may be rendered ; it does not include preliminary examinations before a committing magistrate.

For services of the kind rendered by the plaintiff in the case before us he is compensated by his salary and is entitled to no fee. The account or bill sued on does not constitute a cause of action against the county. The judgment is therefore reversed.

All concur.  