¶1(after stating the facts.) Construing these acts together, we are of the opinion that the deputy prosecuting attorney, when present prosecuting before the justice, is entitled to a fee of $25 in case of conviction. Section 3 of the act of April 9, 1895, supra, indicates a purpose upon the part of the Legislature to provide specifically for a fee for the deputy prosecuting attorney in case of a conviction before the justice when he is present prosecuting. And we do not think he can be deprived of this fee because the- defendant appeals to the circuit court. This is the only compensation contemplated for the deputy prosecuting attorney. He is to be paid by the defendant in case of conviction, not by the State or the prosecuting attorney. But if the simple matter of appeal to the circuit court would operate to cut off his fee in case defendant was convicted in the circuit court, and because the prosecuting attorney was there also allowed a fee, then,- indeed, would the matter of compensation for his services hang upon a slender thread. But where the defendant is convicted before the justice, this conviction is not annulled or set aside unless on appeal to the circuit court he is acquitted. For if he is convicted before the circuit court and on appeal to this court that conviction is affirmed, the defendant has been convicted on a charge that originated before the justice.
¶2The prosecuting attorney in case of conviction before the circuit court is also allowed a fee of $25. But there is nothing in the act to warrant the construction that in such case only the fee of the prosecuting attorney is to be allowed. On the contrary, the purpose seems to have been in the particular offense named to alíow a fee for. the deputy prosecuting attorney for conviction before the justice, and also to the prosecuting attorney for conviction before the circuit court.
¶3The double fee allowed the prosecuting officers in such cases was designed and operates as part of the punishment.
¶4The motion to retax is therefore overruled.