Greene v. Ballard

• Decision Date: 23 March 1917
• Citation: 174 Ky. 808,192 S.W. 841
• Parties: GREENE, AUDITOR, v. BALLARD.
• Court: Kentucky Court of Appeals

192 S.W. 841

174 Ky. 808

GREENE, AUDITOR, v. BALLARD.

Court of Appeals of Kentucky.

March 23, 1917

Appeal from Circuit Court, Franklin County.

Mandamus by John W. Ballard against Robert L. Greene, Auditor, to compel the issuance of treasury warrants. From a judgment granting the writ, defendant appeals. Reversed and remanded with directions.

M. M Logan, Atty. Gen., and Chas. H. Morris, Asst. Atty. Gen., for appellant.

J. M Benton, of Winchester, for appellee.

SETTLE C.J.

The single question presented for decision by this appeal is whether the circuit court in which a defendant indicted for a felony is tried has the authority to order his witnesses summoned at the cost of the commonwealth and to allow their claims for attendance and mileage as claims against the commonwealth, and certify them to the auditor of public accounts for payment as such.

The appellee, John W. Ballard, by his petition filed in the Franklin circuit court, alleged, in substance, the following facts: That following the return in the Breathitt circuit court of an indictment found by the grand jury of Breathitt county against one Elihu Allen, charging him with the crime of murder, by an order of that court entered April 10, 1916, the venue of the prosecution was changed and the case transferred to Clark county for trial in the Clark circuit court, and thereafter set for trial in that court; that the homicide occurred in Breathitt county, and the defendant's witnesses resided in that county and Perry county, some of them at a distance of 80 miles from Winchester, the county seat of Clark county; that the defendant and his witnesses were poor people without money to defray the expense of attending his trial; and that the attendance and testimony of such witnesses was indispensably necessary to enable the defendant to make his defense to the charge in the indictment. The facts last mentioned were shown by the affidavit of the defendant Allen filed before the day on which the case was set for trial. The petition further sets forth that, upon the filing of the defendant's affidavit, the judge of the Clark circuit court entered an order directing that his witnesses be subp naed at the expense of the commonwealth, and that, when so subp naed, they be allowed by the clerk to claim their per diem and mileage, payable by the auditor in the same manner as those of witnesses summoned by the commonwealth are paid; that subp nas were thereafter issued for the defendant's witnesses containing the statement that the witnesses named therein would be paid by the commonwealth, and were duly served by the officers to whom they were delivered; that the claim of each of the several witnesses thus summoned for the defendant was, by an order of the circuit court duly entered at the term of their attendance, allowed as a claim against the commonwealth, and certified as such to the auditor for payment. The names of these witnesses and the per diem and mileage allowed each of them are set out in detail in the petition, followed by an allegation of the sale, assignment, and delivery of the claims by the holders thereof to the appellee, and the further allegation of the presentment by the latter of the claims, amounting in the aggregate to $190.32, to the auditor for payment, and his refusal to pay same or any part thereof. The particular ground upon which appellee rests his right to compel of the auditor payment of these claims is concisely stated in the petition, as follows:

"Petitioner says that in view of the statements made in said affidavit of said Elihu Allen, and which statements this plaintiff believes were true, the judge of the Clark circuit court had the legal right and it was his duty to enter said order and to authorize the witnesses in behalf of said Allen to be summoned and to direct their per diem and mileage to be paid by the commonwealth, and that in no other way could said judge have secured to said Allen the fair trial guaranteed to him by the Constitution of the state or given him the benefit of that provision of the Constitution which entitled him to have compulsory process for obtaining witnesses in his favor."

It was also alleged in the petition that, for 25 years or more, it has been the custom of the circuit judges of the state, and of its auditing and paying officers, under such circumstances as appear in the instant case, to construe the Constitution and statutes so as to allow and pay the claims of the defendant's witnesses as a part of the costs of prosecution chargeable to the state, which custom and contemporaneous construction so long continued as to ripen into a law, under and by virtue of which appellee was entitled to payment by the state of the claims assigned him by Allen's witnesses. The petition concludes with a prayer for a writ of mandamus commanding the auditor to issue his warrant upon the treasurer in favor of appellee for the aggregate amount of the claims, $190.32.

The appellant, auditor, filed a general demurrer to the petition, and, at the same time, an answer, which, without waiving the demurrer, denied that the witness claims in question constituted a part of the cost, growing out of the prosecution of Allen, chargeable to the commonwealth, or that upon the affidavit of Allen, or otherwise, the circuit court had the legal right to enter an order allowing defendant's witnesses to be paid as commonwealth's witnesses, or that Allen could not have had a fair trial as guaranteed by the Constitution without imposing upon the commonwealth the cost of procuring the attendance and testimony of his witnesses. The answer also denied the alleged contemporaneous construction of the Constitution and statutes on the part of circuit judges of the state, or of the auditing and paying officers of the state, whereby such claims as these had been allowed and paid as claims against the commonwealth; and alleged that, if such custom or construction had ever obtained, it was a mistake on the part of the officers, both judicial and ministerial. By the concluding paragraph of the answer it was denied that upon presentation of the claims, with a copy of the order of the circuit court allowing and certifying them, it became or was the duty of the auditor to issue the warrant demanded therefor, or that he was without right to refuse to issue same. It will be observed that the denials of the answer, save that denying the contemporaneous construction alleged in the petition, raised only issues of law, and the issue of fact as to the question of contemporaneous construction was waived by appellee because of his willingness to rest his right of recovery on the law of the case. Hence he interposed a general demurrer to the answer, following which the case was submitted on the demurrers to the petition and answer. By the judgment entered, the court overruled appellant's demurrer to the petition, sustained that of appellee to the answer, and granted the writ of mandamus prayed in the petition. Complaining of that judgment, the auditor has appealed.

As preliminary to consideration of the principal question to be determined, it is deemed proper to say that the auditor has the right to refuse to issue a warrant for the payment of any claim presented to him, the correctness of which he may question, and on the advice of the Attorney General conclude to contest; such right being conferred by sections 340a and 143, Kentucky Statutes; the first providing:

" Auditor May Contest Claims Allowed by Courts.--That the order of any of the courts of this commonwealth now authorized by law to approve and allow the fee bills, settlements, credits, charges, and claims against the treasury of any of the officers of the commonwealth, or of other persons having claims against the treasury, shall only be regarded as prima facie evidence of the correctness and legality of such fee bill, settlement, credit, charge, or claim; and such order shall in no case be treated as a judgment, or be made conclusive against the state; but the auditor, if he believe such fee bill, settlement, credit, charge, or claim is fraudulent, erroneous, or illegal, may, with the advice of the Attorney General, refuse to pay, and may contest the same in the Franklin circuit court, which said court shall have jurisdiction of all suits or proceedings against the auditor to compel the payment of claims against the treasury."

Section 143, supra, provides:

" Warrant--Claimant May be Required to Cite Law.--A warrant of the auditor upon the treasury shall state upon its face the date, amount, and the name of the person to whom payable, and on what account, and out of what fund to be paid; and shall not be issued unless the money to pay the same has been appropriated by law; and he may require any claimant to state on the face of his claim the law under which it is payable."

It is apparent that these sections overthrow appellee's contention, suggested but not seriously urged, that it was the imperative duty of the auditor to issue the warrant demanded upon presentation of his claim, supported by an attested copy of the circuit court's order allowing it and certifying it to him for payment.

As stated in the beginning of the opinion, the important question to be determined is: Had the Clark circuit court authority, under the law, to allow the claims of Allen's witnesses as a part of the costs of the prosecution chargeable to the commonwealth, and payable out of its treasury? If, as held by the Franklin circuit court in awarding the writ of mandamus, such authority was possessed by the Clark circuit court, the auditor, notwithstanding his primary right to withhold the warrant demanded until the validity of the claims could be passed on by the Franklin circuit court, must issue it as required by...