Chatters v. Board of Supervisors of Coahoma County

• Decision Date: 20 January 1896
• Citation: 73 Miss. 351,19 So. 107
• Court: Mississippi Supreme Court
• Parties: GEORGE W. CHATTERS, CLERK, v. BOARD OF SUPERVISORS OF COAHOMA COUNTY

19 So. 107

73 Miss. 351

GEORGE W. CHATTERS, CLERK, v. BOARD OF SUPERVISORS OF COAHOMA COUNTY

Supreme Court of Mississippi

January 20, 1896

October 1895

FROM the circuit court of the second district of Coahoma county HON. R. W. WILLIAMSON, Judge.

Petition bye appellant, clerk of the circuit court, for mandamus to compel the defendant board of supervisors to allow and to direct the issuance of its warrant in payment of, an account allowed by the circuit court, one of the items of which was a charge of $ 150 for his fees in state cases where the state failed in the prosecution. A demurrer by defendants, the grounds of which are indicated in the opinion, was sustained and the petitioner appealed.

The statute under which the $ 150 was allowed by the circuit court (code of 1892, § 1996) is as follows: "The clerk's fees in state cases where the state fails in the prosecution, or in cases of felony where the defendant is convicted and the costs cannot be made out of his estate, to an amount not exceeding one hundred and fifty dollars in any one year, shall be paid out of the county treasury, on the allowance of an itemized account of the fees in each case by the circuit court, after its examination and approval by the district attorney, and the allowance thereof by the board of supervisors of the county."

Judgment reversed, demurrer overruled and cause remanded.

R. H Wildberger, for the appellant.

The account involved in this suit does not belong to the class of claims that, under § 292, code of 1892, must be adjudicated by the board of supervisors. It arises, under §§ 1995, 1996, of the code, and after the judicial investigation and allowance of the same by the circuit court, the board is without discretion to reject it. The duty resting on the board of making the orders necessary to secure its payment out of the county treasury is a purely ministerial one, on the nonperformance of which it is subject to mandamus. Jones v. Board of Supervisors of Lee County, 12 So. Rep., 341. It is idle to say that appellant had an adequate remedy by appeal to the circuit court from the order of the board rejecting the account, and also by original suit in that court. The circuit court had already adjudicated the matter.

Cook & Yerger, for the appellee.

The appellant had an adequate remedy under § 290, code of 1892, providing for suits against the county, and also under § 292, which authorizes an appeal to the circuit court from the order of the board of supervisors refusing to pay any claim.

The duty devolved upon the board in respect to the claim in suit was not a purely ministerial one, as appellant supposes.

OPINION

WHITFIELD, J.

So far as the allowance of $ 150 "in cases in which the state failed in the prosecution, " etc., provided for by § 1996, code 1892, is concerned, it is sufficient to say that no "itemized account of the fees in each case" is averred to have been presented to the circuit court or to the board of supervisors. Even if the averment that the allowance was legally made could be treated as involving the averment that an itemized account was presented to the circuit court, it would remain true that no averment of presentation of such account to the board of supervisors appears, and, whether the board has discretion or not to refuse to allow this item of $ 150, it is clear that the itemized account must be presented to it. The allowance without this itemized account would be illegal. "As we understand it, the legal right referred to embraces not only the character of the claim, " says the supreme court of South Carolina, in State v. Fuller , 18 S.C. 246, "but also the form in which it is presented; and this must be determined by the state of the law and facts existing at the time the proceeding was taken. The county treasurer is a public officer, and he cannot be compelled by mandamus to pay any claim, unless it is presented in the form required by law." To the same effect are People v. Elmira , 82 N.Y. 80, last part of opinion, and authorities in note to Ray v. Wilson , 14 L.R.A. 778. As to this item, therefore, the mandamus was properly denied. The other items in the account consist of charges the amount of which is specifically fixed by § 1995, and $ 50 allowed by the circuit court, in its discretion, under paragraph ( d ) of said § 1995. As to these items, the board of supervisors has no discretion. The per diem for attendance on the circuit court, and the compensation for "drawing jurors, " are fixed by the law, and the account sets out the number of days' attendance, and the services rendered in drawing jurors. The $ 50 allowed under paragraph (d ), § 1995, after being properly allowed by the circuit court, must be allowed by the board of supervisors. The board has, in such case, no discretion to reject it. The order of the board of supervisors is "to be entered on the presentation of the circuit court's order." And these allowances may be made in both judicial districts of a county, when the county has two. Code 1892, § 2027 a . These items, then, were properly allowed by the circuit court.

We have, then, this question presented: "When mandamus is asked against the board of supervisors, commanding the board to allow an account, and issue...