Cnty. of Boone v. Todd

• Decision Date: 31 December 1832
• Citation: 3 Mo. 140
• Parties: COUNTY OF BOONE v. TODD.
• Court: Missouri Supreme Court

3 Mo. 140

COUNTY OF BOONE

v.TODD.

Supreme Court of Missouri.

December Term, 1832.

ERROR FROM THE CIRCUIT COURT OF BOONE COUNTY.

M'GIRK, C. J.

It appears by the record that Todd is clerk of the Circuit Court of Boone county, and that the county of Boone has not provided any house to keep the clerk's office in, and that Todd furnished a house for several years for that purpose; that he presented an account to the Circuit Court for rent of office, and that the court allowed him one hundred and twenty dollars that the court ordered the County Court to order and direct the treasurer to pay the same. The County Court refused to do so. Todd than applied to the Circuit Court for a conditional mandamus, to which the County Court returned, in substance, as a reason why they did not order the allowance to be paid, that by law they had the right alone to audit demands against the county; and secondly, that by the law of the clerk of the Circuit Court is not entitled to any rent of a house to keep his office in; but is bound at his own expense to provide the same. The Circuit Court then ordered and adjudged that a peremptory mandamus issue; whereupon the county of Boone took a writ of error to this Court.

The first point made by the Attorney General is, that a mandamus is not the proper remedy, because by law the county may be sued in an action; and that where the party has another specific remedy, a mandamus will not lie. It is conceded that this principle is correct as a general rule. We see no reason to apply that rule to this case. It may be true, that if the county is bound by law to furnish a room or house to keep the office in, that an action would well lie against the county, as the law has provided for suing the county; but it is equally clear, that the Circuit Court is by express statute, to audit all the expenses against the county, incurred for books, stationery and other necessaries relating to the office of its clerk. And with respect to these matters, when allowed by the Circuit Court, the County Court is bound by law to issue their warrant to the treasury of the county, directing him to pay the same; and if the County Court refuse to order the warrant to be issued, a mandamus is, beyond doubt, an appropriate remedy.^(a)

The second objection is, that the demand allowed by the Circuit Court is not one which the county of Boone is bound to pay. The words of the statute are, “that each clerk appointed as aforesaid, shall (where it has not already been done) procure a seal, purporting to be the seal of the court of which he is clerk, with such emblems, &c., and a screw and other necessary apparatus for impressing the same, and shall provide and safely keep and preserve suitable books, furniture and other necessaries for their respective offices, and keep regular and faithful accounts thereof; and the courts respectively shall audit and settle such accounts, and allow, in their discretion, such sums as shall be reasonable for their expenditures under the provision of this section; and all such allowances made to the clerks of the Supreme Court shall be paid out of the state treasury, and all others out of the county treasury. See Revised Code 208, § 5. The Attorney General insists that the words in this 5th sec., other necessaries for their respective offices, cannot be made to include the house in which the business of the clerk is transacted, so as to entitle the clerk to rent or provide a house at the expense of the county; and that nothing of higher value or greater degree can be embraced by the words, than things of like kind. It is insisted by Mr. Kirtly, for the defendant in error, that a house for the office is to be included in the words, because the house is not the office; but that the office of a clerk is made up of the authority the clerk has to do particular acts relating to the public administration of justice, and the duties required of him to be performed by the law relating thereto, and that a house is only an incident, as a book to record the judgments of the court is an indispensable incident. We are of opinion that a house is a necessary incident; that no clerk's office can be kept without a house to perform the duties in. The law requires the clerks to perform certain duties and has provided specific fees in general, and it seems to us to suppose that the Legislature could intend that he should furnish a house to keep the books and papers in at his own expense, would be unreasonable. In some of the counties, as in St. Louis, the building a house would be an item of...