dissenting: The account in dispute is for the sum of $2801 60, is stated to be for “ fees incurred in the prosecutions of criminals, from the 1st day of April to the 30th of June, 1858, inclusive,” and is certified by the Judge and the Clerk of the First District Court of New Orleans to be correct.
That the Legislature has the right to declare what expenses, fees and salaries, in criminal prosecutions, shall be paid by the State, and to fix the amount thereof, and to prescribe the mode of payment, is not disputed. This right has at all times been exercised by the State, and from an examination and comparison of the laws now in force, upon the subject of Sheriff’s fees in criminal cases, with th & former laws upon the same subject-mattter, they are found to be uniform, consistent and identical.
The Act approved March 28th, 1813, to “ establish explicit fee bills,” provides that the several Sheriffs throughout the State shall be entitled to demand and receive certain fees for their services in civil and criminal cases, and the 14th section thereof provides, “ that the Sheriff' of the First District shall be allowed for his services in criminal prosecutions and all ex-officio services not otherwise provided for, a sum not to exceed two hundred dollars; and all other' Sheriffs for like services, a sum not to exceed forty dollars, which allowance shall annually be paid by the District Judge, and shall be paid out of the public treasury on the warrant of the Judge.”
*256Tho ^,c(, 0f 1855 “ to regulate and define costs and fees generally,” approved March 14th, which is the law now in force, provides that the Sheriffs throughout the State shall be entitled to demand for their services in civil and criminal cases certain fees, and no more, and the 15.th section thereof provides, “ that every Sheriff in this State shall be entitled to one hundred dollars per annum, and each and every Clerk of tho several District Courts to fifty dollars per annum, as a compensation for their services in matters of a criminal nature pending in the respective courts.”
This provision in the Act of 1855, granting to Sheriffs a fixed compensation or salary for their services in criminal cases pending in the courts, has been the settled policy of the State, so far as I can learn from the statutes, since the year 1813.
This policy was not changed by the Act of 1852, which imposed upon the parishes respectively, the obligation of paying all expenses in criminal prosecutions, nor by the Act of 1855, which continued that obligation in force, until the passage of the Act of 1857, by which the payment of these expenses was resumed by the State.
It is admitted that at the date of the passage of the Act of 1852, the State did not pay to Sheriffs, fees for their services in criminal cases pending in court, and as the Act of 1852 expressly declares that the fees, salaries and expenses in criminal prosecutions shall remain as then (now) fixed by law, until changed by the local authorities, it necessarily follows, that the parishes were not bound to. pay any greater or other fees, salaries or expenses than the State had paid prior to the passage of that Act, and that whether the parishes paid the salaries formerly paid by the State, or paid specific fees in place thereof, was a matter left by the Act to the discretion of the local authorities. The Act of 1855 contained the same provision, that the fees, salaries and expenses shall remain as then fixed by law, until changed by the local authorities. It is also admitted that at the date of the passage of this Act the State did not pay to Sheriffs, fees for their services in criminal cases pending in court.
It appears from these various Acts, and the admissions in the record, that the public policy of the State to allow Sheriffs, a fixed compensation or salary for their services in criminal cases pending in the courts, instead of specific fees, has remained unchanged from the year 1813 to 1857, and the question presented to this court is, whether the Act of 1857 has changed that policy, or repealed the laws establishing it.
The Act of 1852, page 188, -is as follows :
Section 1. That all the expenses hereafter incurred in the different parishes, by the attendance of physicians and for maintenance and clothing of individuals condemned for the commission of any crime, and of such as are accused of any crime or misdemeanor cognizable by the District Courts of this State, shall be paid by the respective parishes in which the offence or offences charged may have been committed.
Section 2. That the fees, salaries and expenses provided by this bill, to be paid by the local authorities, shall be fixed and regulated by the said authoritiés ; and until the same ba done by the said authorities, the fees, salaries and expenses shall remain as now fixed by law, and be paid by the local authorities.
The Act of 1855 is in these words :
Section 69. All the expenses incurred in the different parishes, by the arrest, confinement and prosecution of persons accused of crime, their removal to prison, *257the pay of witnesses, jurors, &c., and all expenses whatever attending criminal prosecutions, shall be paid by the respective parishes in which the offence charged may have been committed.
Section 70. The fees, salaries and expenses to be paid by the local authorities, as above provided, shall be fixed and regulated by them, except for the maintenance of prisoners ; and until the same be done, they shall remain as now fixed by law.
The Act of 1857 is as follows:
Section 1. That all the criminal expenses incurred in the different parishes of this State, by arrests, confinement and prosecution of persons accused of crime, their removal to prison, the pay of witnesses and all other expenses attending. criminal prosecutions, except the pay of jurors, shall be paid by the State, upon the certificate of the Clerk and the presiding Judge of the several courts of this State.
It is evident that the only intention of the Acts of 1852 and 1855, was to impose upon the parishes the payment of all expenses in criminal prosecutions ; and it is equally evident that the only intention of the Act of 1857 was to resume the payment thereof on the part of the State.
The language of the Acts imposing upon the parishes the payment of all expenses in criminal matters, is more general and comprehensive than the language of the Act of 1857, resuming the payment thereof.
It has already been shown, that it was only the intention of the Legislature, by the use of the general terms, fees, salaries and expenses, in the Acts of 1852 and 1855, to impose upon the parishes the payment of such fees, salaries and expenses as were then established by law, and which the State itself was bound to pay — for those Acts declare, that the fees, salaries and expenses thus imposed, shall remain as then fixed by law, until changed by the local authorities. It has also been shown by the statutes, that the State at the respective dates of the Acts of 1852 and 1855 was only bound to pay Sheri® for their services in criminal cases pending in the courts, the salaries provided by law, and not specific fees.
It is also shown by an admission in the record, that no liability on the part of the State to pay Sheriff’s fees in criminal cases was acknowledged at the treasury from the year 1814 to 1857.
The Act of 1855, “ to define and regulate fees and costs generally,” is the law now in force, and which determines the fees which Sheriffs are entitled to demand and receive in civil and criminal cases. The only fees allowed by this Act, which Sheriffs are entitled to demand and receive in criminal cases from the State, in addition to the salary of one hundred dollars granted by the 15th section, are the fees for keeping and maintaining prisoners in jail, and for transporting prisoners to the penitentiary, or from one parish to another.
The Act of 1857 does not expressly repeal the last mentioned Act of 1855, or any part thereof, nor does it contain any provision inconsistent with or repugnant thereto.
The fees claimed by plaintiff are the fees to which Sheriffs are entitled in civil cases. There is no law providing that Sheriffs shall be entitled to demand lilce fees from the State in criminal cases.
The Act of 1855, establishing explicit fee bills, is similar to the former Acts on the same subject-matter, and the interpretation given to those Acts, and acquiesced in from 1814 to 1857, was, that Sheriffs were not entitled to demand of the State fees in criminal cases. This interpretation of the former laws, identical with the *258present, must have been known to the Legislature when the Act of 1857 was passed ; and the failure of the lawgiver to declare specially in the Act of 1857, that Sheriffs should be entitled to demand for their services in matters of a criminal nature pending in the respective courts, other and greater fees than allowed by the Act of 1855, is conclusive to my mind that such was not his intention.
In my opinion, the Act of 1855, “ to define and regulate costs and fees generally,” is in full force, and is decisive against plaintiff’s right to demand the payment of fees from the State in matters of a criminal nature, and that as the fees claimed by him are not allowed by that Act, that he is not entitled to demand and receive them from the State.
Debts against the State can only be created by express and unequivocal legislation, and not by implication or the interpretation of general and indefinite words in a statute, such as are used in the Act of 1857.
Article 94 of the Constitution provides, that no money shall be drawn from the treasury but in pursuance of a specific appropriation made by law, and this provision presupposes the existence of a debt specially created and acknowledged to be due from the State, anterior to the appropriation itself.
The appropriation of one hundred thousand dollars made to pay the expenses in criminal prosecutions under the Act of 1857 was nearly exhausted at the date of the Treasurer’s report to the Legislature, and was wholly insufficient to pay the acknowledged claims for expenses in criminal matters, together with claims of the character of the one in dispute ; and the assumption that the appropriation was made to pay the fees claimed by plaintiff, as part of the expenses in criminal prosecutions, for which the State is liable, is entirely unsupported.
The fact that a part of the fees claimed by Sheriff Bell and his successor the plaintiff, was paid at the treasury under the Act of 1857, cannot affect the question as to the meaning of the Act itself This suit shows that these payments are considered at the treasury to have been made in error.
The argument that the compensation of one hundred dollars, allowed to Sheriffs for services in criminal prosecutions, is insufficient, unjust or impolitic, can with more propriety be considered by the Legislature than this court.
The office of Sheriff is no where vacant. The State compels no citizen to hold the office. It is filled throughout the State by able and efficient incumbents who voluntarily assume the burden of service in criminal prosecutions for the inadequate compensation provided by law, in consideration of the fees to which they are entitled in~>civil proceedings, and, therefore, have no legal right to complain.
In my opinion, the judgment of the lower court is erroneous, and should be reversed. '
Yoortiies, J., absent.