Cramer v. Smith

• Decision Date: 11 February 1943
• Docket Number: 38226
• Citation: 168 S.W.2d 1039,350 Mo. 736
• Parties: Fred W. Cramer v. Forrest Smith, as State Auditor, Appellant, Roy McKittrick, as Attorney General, Defendant, George S. Montgomery, Fred W. Klaber and Leslie I. George, as Judges of the County Court of Jackson County, Missouri, Appellants, and Bernard T. Flannery, as Circuit Clerk of Jackson County, Missouri, Defendant, and Jackson County, a Political Subdivision of the State of Missouri, Appellant
• Court: Missouri Supreme Court

168 S.W.2d 1039

350 Mo. 736

Fred W. Cramer v. Forrest Smith, as State Auditor, Appellant, Roy McKittrick, as Attorney General, Defendant, George S. Montgomery, Fred W. Klaber and Leslie I. George, as Judges of the County Court of Jackson County, Missouri, Appellants, and Bernard T. Flannery, as Circuit Clerk of Jackson County, Missouri, Defendant, and Jackson County, a Political Subdivision of the State of Missouri, Appellant

No. 38226

Supreme Court of Missouri

February 11, 1943

Appeal from Jackson Circuit Court; Hon. Ben Terte, Judge.

Reversed and remanded (with directions).

Floyd R. Gibson, County Counselor, and Virgil Yates, Assistant County Counselor, for appellants, George S. Montgomery, Fred W. Klaber and Leslie I. George, Judges of Jackson County Court and Jackson County.

(1) The court erred in giving paragraphs (b) and (c) in Declaration of Law numbered I requested by respondent. (b) State ex rel. v. Hackman, 302 Mo. 273, 257 S.W. 457; (c) Joplin v. Jasper County, 161 S.W.2d 411. (2) The court erred in giving on behalf of Forrest Smith, as State Auditor and Roy McKittrick, as Attorney General, Declaration of Law No. 2. State v. Butts, 159 S.W.2d 790. (3) The court erred in refusing to give the Declaration of Law requested by these appellants, which said declaration was neither lettered nor numbered. (a) The nature of the charge is determined by the pleadings and not by the sentence and verdict. State ex rel. v. Hackman, 302 Mo. 273, 257 S.W. 457. (b) Under the facts of the instant case, Jackson County can never under any circumstances be liable for any of the costs in the James Butts case. State v. Butts, 159 S.W.2d 790. (4) No actual controversy exists between respondent and these appellants and the court had no jurisdiction over these appellants. Joplin v. Jasper County 169 S.W.2d 411.

Roy McKittrick, Attorney General, and William B Teasdale, Assistant Attorney General, for appellant Forrest Smith.

(1) A court reporter is not entitled to costs of a transcript of a bill of exceptions in a criminal case on an appeal by a person unable to pay the costs, until the case is finally decided and determined without right of further appeal. Secs. 4222, 4236, 4244, 13344, 13354, R. S. 1939; State ex rel. Simms v. Carpenter, 51 Mo. 555; State ex rel. Lashley v. Ittner, 292 S.W. 707; State ex rel. Martin v. Wofford, 121 Mo. 61, 25 S.W. 851. (2) The State Auditor is the proper person to decide whether or not fees are due a court reporter and the auditor is not bound by the certificate of the circuit judge and the prosecuting attorney. State ex rel. v. Wilder, 196 Mo. 418; Sec. 13026, R. S. 1939; State ex rel. v. Thompson, 41 Mo. 14. (3) The law does not require the advancing of fees or costs in criminal cases in advance of the final determination of the case. State ex rel. Simms v. Carpenter, 51 Mo. 555. (4) The court erred in refusing to give Declaration of Law I(b) requested by the appellant, Forrest Smith. State v. Police Commissioners, 14 Mo.App. 297; State v. Wright, 194 S.W. 35; State v. Manring, 58 S.W.2d 269; State v. Bode, 113 S.W.2d 805. (5) Petitioner is not entitled to his costs claimed for said transcript in advance of other costs in the case unless he can point to a statute authorizing payment of same. State v. Ball, 158 S.W.2d 182; Sec. 13354, R. S. 1939; State v. Pieski, 248 Mo. 715; State ex rel. Simms v. Carpenter, 51 Mo. 555. Statute of Limitations does not run, until the claim against the State has accued. Sec. 13038, R. S. 1939.

Fred B. Mertsheimer and John C. Grover for respondent.

(1) This case is properly in this court. Constitution of Missouri, Sec. 12, Art. VI, and Sec. 5, Amendment of 1884; Cardwell v. Howard, 132 S.W.2d 960; St. Louis v. Delassus, 205 Mo. 578. (2) A declaratory judgment suit is the proper method to determine the construction of statutes and the powers and duties of governmental agencies. Declaratory Judgment Act, Chap. 6, Art. XIV, R. S. 1939; City of Joplin v. Jasper County, 161 S.W.2d 411. (3) In a criminal case when the trial court is satisfied that the defendant is unable to pay the costs of the transcript for appeal, the court may order the court reporter to prepare such transcript and the cost of such transcript shall be taxed as costs in the case. Sec. 13354, R. S. 1939. (a) In all cases in which the defendant (1) is convicted of a capital offense, (2) and in all cases in which the defendant is sentenced to imprisonment in the penitentiary, the State shall pay such costs. Sec. 4221, R. S. 1939. (b) In all cases in which the defendant is sentenced to imprisonment in the county jail, the county shall pay the costs. Sec. 4222, R. S. 1939; State ex rel. Simms v. Carpenter, 51 Mo. 555. (c) In all capital cases and (2) those in which imprisonment in the penitentiary is the sole punishment for the offense, if the defendant is acquitted, the State shall pay the costs, and (3) in all other cases, if the defendant is acquitted, the county shall pay the costs. Sec. 4223, R. S. 1939; State ex rel. Timberman v. Hackmann, 257 S.W. 457; State ex rel. Spurlock v. Holladay, 67 Mo. 299; State ex rel. Clarke v. Wilder, 197 Mo. 27; State ex rel. Tudor v. Platte County Court, 40 Mo.App. 503. (4) The limitations statute in all such cases on such claims is two years. Sec. 13038, R. S. 1939; State ex rel. Johnson v. Draper, 48 Mo. 56.

Leedy, J. All concur except Gantt, J., absent.

OPINION

LEEDY

This is an appeal by defendants in a proceeding brought under the Declaratory Judgments Act to obtain a decree declaratory of the rights of plaintiff (respondent) with respect to the taxing and payment of an item of criminal costs. The facts are not in dispute, and the case turns on the construction to be given certain criminal costs statutes. The parties will be referred to as they were styled in the trial court.

The facts are these: One Butts was convicted in Division #8 of the Jackson Circuit Court of a capital offense. He was sentenced to the extreme penalty, in accordance with the verdict, and appealed. Plaintiff, as the official reporter of said court, in obedience to an order made under Section 13344, ^[1] furnished Butts a transcript of the testimony for the purposes of said appeal. Division II of this court reversed said conviction, and remanded the case for new trial. [State v. Butts, 349 Mo. 213, 159 S.W.2d 790.] It remains undisposed of on docket of the trial court.

The circuit clerk taxed the costs of said transcript against the state, and issued a fee bill for said single item. It was examined by the prosecuting attorney and judge, found to be correct, and certified to the State Auditor for payment. The State Auditor refused to approve said fee bill, and to draw a warrant for the same for the reason said criminal case had not been determined within the meaning of Section 4236. ^[2] The trial court held, among other things that the state is liable for said transcript fee, and that it became the duty of the auditor, upon presentation of the fee bill, to forthwith draw a warrant for the payment of the same.

"At common law costs as such in a criminal case were unknown. As a consequence it is the rule as well in criminal as in civil cases that the recovery and allowance of costs rests entirely on statutory provisions -- that no right to or liability for costs exists in the absence of statutory authorization. Such statutes are penal in their nature, and are to be strictly construed." [20 C. J. S. p. 677.]

Sections 4221 ^[3] and 4222 ^[4] impose liability for costs (except those incurred on the part of defendant) on the state or county, respectively, on conviction of an indigent defendant under the particular circumstances enumerated in said sections. Where the defendant is acquitted, liability for costs is imposed under the formula prescribed by Section 4223. ^[5]

It is not contended that the provision of Section 13344, that the "court reporter's fee for making the same [transcript] shall be taxed against the state or county as may be proper," (Emphasis ours) which is found in Chapter 94 in relation to court reporters, authorizes a judgment, as for costs, against either the state or county as of the time the order is made. A fair construction requires us to hold that the language means said fee is to be taxed as costs, in the same manner as other costs are taxed, but with ultimate liability for the same on the state or county as may be proper under the general statutes in relation to criminal costs. Being thus relegated to the general statutes, it is apparent the provision of Section 13344 casting liability for such transcript on "the state or county as may be proper" cannot be reconciled with Sections 4221 and 4222, both of which expressly provide that neither the state nor county shall pay such costs "as were incurred on the part of defendant." Section 13344, being the later enacted statute, must be held to have repealed, by necessary implication, the contrary provisions of Sections 4221 and 4222, to the extent noted.

This brings us to the primary contention of plaintiff, viz.: That notwithstanding Butts' appeal, the judgment of conviction and pronouncement of sentence by the trial court, "determined" said case, within the meaning of Section 4236, supra, so as to render the costs payable, and that by virtue of Sections 13344 and 4221 the state is liable therefor, because the conviction was for a capital offense. The trial court so held.

Referring to Section 4236, supra, it will be seen that it is the duty of the clerk to tax the costs and issue fee bills in criminal cases when the same "shall have been determined or continued generally." The verb determine "has been variously defined, the three principal senses being to ascertain, to bound, and to terminate." [26 C. J. S. pp 1257-1258.] ...