(concurring.)—I am of the opinion that the constitutional question decided by the court is not necessarily presented on this record, and that the case may be effectively disposed of on a non-constitutional ground.
The special act passed by the legislature to bring about “the Effectual and Vigorous Prosecution of the Offense of Carrying- Arms Secretly,” as declared in the title—Chap. 4926, Laws of 1901, doubled the fee allowed generally for conviction in misdemeanors, but declared that the “fee herein provided for,” that is the double fee should not be allowed if the costs be cast against the county. There is no repealing clause in the act and the repeal by implication of the general act prescribing a fee of five dollars in all misdemeanors irrespective of the solvency of the convict is not so clear, as to impel us to hold that the legislature intended to deprive the prosecuting attorney of all compensation should one convicted of a crime which required “effectual and vigorous prosecution” prove insolvent.
This construction entitles the prosecuting attorney to the demand he is now making and brings about the same result as the majority opinion. Should he demand the ten dollar fee provided -by chapter 4926, then the constitutional question would be necessarily involved.
Parkhill, J., concurs.