DISSENTING OPINION.
WALKER, J.— Upon a careful examination of the question here involved I find that I cannot , concur in the conclusion reached in the majority opinion, which, ■in not expressly determining the question submitted, gives tacit approval to the appropriation and apportionment of $15,000 of the funds of Jackson county by its county court for the proposed purpose of defraying the estimated expenses of conducting- a criminal trial therein.
The powers of a county as a subdivision of the State are clearly defined and limited by law, and- its administrative agents, the members of the county court, have no authority except that clearly conferred by law.
The proposed appropriation being foreign to the purposes for which counties are created and beyond the powers of the county court, upon the matter being brought' to our attention it becomes our duty to determine beyond a peradventure whether the appropriation is authorized.
Certain citizens of Jackson county, represented by an attorney who is an officer of this court, submit this question for our determination, and while circumstances may appear which give credence to the conclusion that counsel for the defendant in the case in which this appropriation is proposed to be made, seem to have had a shadowy connection with the matter, *538this should not, and so far as I am concerned will not, prevent an affirmative expression of opinion as to whether this proposed use of county funds is supported by the statute.
It is almost too elementary to justify reference thereto that a criminal prosecution is one in which the State is primarily interested, and with which a county, unless expressly empowered, has nothing to do; not only the Constitution, but the entire Code of Criminal Procedure, proves the correctness of this conclusion, and the supplemental or adjective law in relation thereto defining the manner in which criminal costs must be determined and paid, is additional proof that it is the State, and not its subdivisions, which is charged with criminal prosecutions, and the expenses incident to same; but I “harp upon a mouldered string” as this truth is too well established to need elaboration.
As to whether the case in which this appropriation is proposed to be made is one in which more than ordinary expenses should be incurred, is a matter which should not concern us in passing upon the question as to the power of the county court in the premises. If by our inaction this question having been submitted to us, we tacitly sanction this appropriation when the same is not authorized by law, we open the way by judicial legislation for inroads upon county treasuries which cannot prove otherwise than wasteful and vicious.
I am, therefore, unqualifiedly of the opinion that the writ of injunction herein should be granted, that in so doing the court may place the seal of its disapproval upon this attempted misuse of county funds.
PER CURIAM.— As indicated by the several opinions filed herein, it appears that five of our number are in accord with the proposition that if the suit was collusively instituted by the plaintiffs in the interest of the defense of Dr. Hyde in the criminal case, 'the *539trial court was right in dismissing the plaintiffs’ bill. It also appears that three of that five are of opinion that the evidence in the present record shows snch collusive action, while two of such five do not think the facts of the present record show such collusive action. In addition it would appear that two of our number dissent from the general doctrine herein above first stated. In this state of opinion we were unable to reach a judgment, but to the end that a judgment may be reached, those of us who are of the opinion that if the suit was collusively brought the bill should be dismissed, agree (without changing our views as to the sufficiency or insufficiency of the evidence in the present record, to show a collusive action in the institution and prosecution of the suit) that the judgment nisi shall be reversed and the cause remanded for a new trial, so that the facts as to the collusive character of the action may be more fully investigated.
Let the judgment nisi be reversed and the cause remanded.
All concur, except Woodson and Walker, JJ., who dissent.