Freeney v. Geoghegan

• Decision Date: 13 June 1933
• Docket Number: 9234.
• Parties: FREENEY v. GEOGHEGAN et al.
• Court: Georgia Supreme Court

169 S.E. 882

177 Ga. 142

FREENEY v. GEOGHEGAN et al.

No. 9234.

Supreme Court of Georgia

June 13, 1933

Syllabus by the Court.

Those demanding payment of public money must show clear provision of law entitling them to receive it.

"Court expenses," within constitutional provision authorizing Legislature to authorize county to levy taxes therefor include only items necessary for conducting court, and such others as Legislature determines are proper (Const. art. 7, § 6, par. 2; Civ. Code 1910, § 4872).

Fees of expert accountants employed by solicitor general, with court's approval, to assist prosecution of embezzlement case, held not "contingent expenses of superior court" payable out of county treasury (Civ. Code 1910, § 4872).

1. "Before an officer can be required to pay out public money, or be justified in doing so, those who demand its payment should be able to show a clear provision of the law which entitles them to receive it."

2. "Court expenses include only such items or charges as are necessary for conducting the court, and such others as the legislature may determine are proper to be paid under the words 'court expenses,' as used in the constitution (article 7, § 6, par. 2)."

3. The court erred in entering an order absolute and in requiring the treasurer of Bibb county, by mandamus, to pay for the services of expert accountants to prepare and assimilate and assist the solicitor general in the presentation of the state's case in a criminal prosecution.

Error from Superior Court, Bibb County; Louis L. Brown, Judge.

Petition for mandamus by Brooks Geoghegan and another against A. L Freeney, treasurer of Bibb County. Judgment for petitioners and defendant brings error.

Reversed.

Miller & Lowrey, of Macon, for plaintiff in error.

Jones Fuller, Russell & Clapp, and Douglas M. Orr, all of Atlanta, for parties at interest.

Dasher & Carlisle and Chas. H. Garrett, Sol. Gen., all of Macon, and Henry H. West, Sol. Gen., of Athens, for defendants in error.

RUSSELL Chief Justice.

This record concerns a case pending in the superior court of Bibb county, in which the defendant had been indicted for embezzling the funds of his employer the Union Dry Goods Company. The evidence before the grand jury must have been sufficient, in the opinion of that body, to warrant a trial by jury in the superior court. This is shown by the fact that the indictment preferred by the prosecutor was returned as a true bill. From an examination into the facts of the case, preparatory to a trial, the solicitor general became of the opinion that the aid of expert accountants was necessary to so clearly explain multitudinous entries in bookkeeping as to satisfy a jury beyond a reasonable doubt of the guilt of the accused, though it does not appear from the record that the prosecuting officer, after a prolonged personal investigation, had failed to ascertain the truth as disclosed by the writings to which he wished to direct the attention of experts to be used as witnesses. However, whatever the reasons, the state's counsel and Geoghegan, one of the defendants in error, approached the judge of the superior court, who, after considering the circumstances of the case, approved the tentative employment of Geoghegan and Norris by the solicitor general. After the trial of the case of embezzlement and the conviction of the defendant, the judge approved the bill of Geoghegan and Norris as a necessary expense of court, and it was presented to the treasurer of Bibb county. The treasurer declined to pay the bill. Thereupon Geoghegan and Norris sued out a petition for mandamus, and upon a hearing the mandamus was made absolute, the court commanding the treasurer to pay the account. The county treasurer filed a bill of exceptions, and the case as now before the court raises only one question. Are the fees or charges of expert accountants, employed in behalf of the state in a criminal case by the solicitor general, with the approval of the trial judge, such contingent expenses in the holding of any and all sessions of the superior court as are within the meaning of section 4872 of the Civil Code (1910)?

The precise language of the Civil Code, § 4872, is as follows: "Any contingent expenses incurred in holding any session of the superior court, including lights, fuel, stationery, rent, publication of grand-jury presentments when ordered published, and similar items, such as taking down testimony in cases of felony, etc., shall be paid out of the county treasury of such county, upon the certificate of the judge of the superior court, and without further order." The provision as to contingent expenses appeared as section 3617 of the first Code as follows: "Any contingent expenses incurred in holding any session of the Superior Court, including the above, and similar items, such as taking down testimony in cases of felony, &c., shall be paid out of the county treasury of each county, upon the certificate of the Judge of the Superior Court, and without further order." The words "including the above" in section 3617 referred to the preceding section, 3616, relating to the contingent expenses of the Supreme Court, which were described as follows: "Any contingent expenses incurred in holding the several sessions of the Supreme Court, for lights, fuel, rent, and stationery, &c., shall be paid to the Clerk of said court, out of the State Treasury, on the certificate of the Judges thereof, as to the necessity and fact of such expenditure." The provisions of section 3617 of the Code of 1863 are repeated in section 3692 of the Code of 1873, and appear also as section 3692 in the Code of 1882. In Maxwell v. Cumming, 58 Ga. 384, this court strongly expressed its views as to the strictness with which the contingent expenses of the superior courts should be considered, and held that the statement that named expenses and similar items "shall be paid out of the county treasury *** upon the certificate of the Judge of the Superior Court, and without further order," did not authorize the issuance of mandamus as a matter of judicial discretion, but forbade mandamus unless the expenditure approved by the court was expressly authorized by law. In the case just cited it was held that "the judge of the superior court has no legal authority to appoint a detective or special officer, to hunt up and arrest and bring back to the county, whence he escaped, an escaped prisoner, to pass an order, on the approval of the grand jury or otherwise, that the county pay such detective or special officer $250 for his services, and to enforce such order by mandamus to the county commissioners to pay the same out of the county treasury." In the opinion of the court Judge Jackson said: "Presuming that the court had proof of the validity of the claim, the great question is, did the court have legal authority to employ Cumming upon such a venture, and to make the county foot the bill? We think not. We are acquainted with no law of Georgia which authorizes the superior court to appoint and pay a detective or to employ a special officer to detect an escaped prisoner, to arrest him, to guard him back to the county whence he escaped, and to pay him therefor out of the county treasury, or the pockets of the taxpayers. Such would be a very dangerous power. It might mulct the counties in enormous expenses. Instead of hundreds, as in this case, it might cost thousands of dollars."

In 1889 (Ga. L. 1889, p. 156), the General Assembly amended the Code section to which we have referred by providing for the publishing of grand jury presentments as an expense of court. But before the passage of that statute, the case of Houston County v. Kersh, 82 Ga. 252, 10 S.E. 199 came before this court. Only $10 was involved. It was for the publication of the grand jury presentments of Houston county. The account was approved by the judge of the superior court, and ordered to be paid. The county commissioners refused to pay the account. The publisher sued Houston county in a justice's court, and a jury found in favor of the plaintiffs. Houston county presented a petition for certiorari upon the ground that the account was not lawful. The judge declined to sanction the petition, and the case came to this court, which reversed that judgment. Chief Justice Bleckley, delivering the opinion of the court, said: "Waiving further consideration of whether the action was proper, supposing the liability to be one recognized by law, we hold that there is no provision for paying such a claim. In order for it to be paid legally, it would have to come under the term, in the constitution, 'expenses of courts.' Code [1882], § 5190. It is no expense of any court; certainly not, in the absence of a statute requiring the presentments to be published. The publication of any or all of the proceedings of the superior court might possibly...