Rochelle v. Lane

• Decision Date: 12 June 1912
• Citation: 148 S.W. 558
• Parties: ROCHELLE v. LANE, State Comptroller.
• Court: Texas Supreme Court

Page 558

148 S.W. 558

ROCHELLE v. LANE, State Comptroller.

Supreme Court of Texas.

June 12, 1912.

On Motion for Rehearing, June 27, 1912.

Mandamus proceeding on relation of J. F. Rochelle against W. P. Lane, State Comptroller. Writ issued.

Rodgers & Dorough, of Texarkana, for plaintiff. Jewel P. Lightfoot, Atty. Gen., and C. E. Mead, Asst. Atty. Gen., for defendant.

BROWN, C. J.

Relator was, during the time in which the facts herein stated transpired, and now is, the duly elected and qualified sheriff of Bowie county, and respondent was during said time and now is the duly elected and qualified Comptroller for the state of Texas.

Relator filed a petition for mandamus against respondent alleging: That "on the ____ day of February, A. D. 1911, the relator, as sheriff aforesaid, in compliance with the laws relating thereto did make out a bill or account of the costs claimed to be due him by the state in the felony cases tried at the November term, A. D. 1910, of the district court in and for said Bowie county, showing the style and number of cases in which the costs are claimed to have accrued; the offenses charged against the defendants; the term of the court at which the cases were disposed of; the disposition of the cases; the name and number of defendants, and if more than one, whether they were tried jointly or separately; where each defendant was arrested or witness was served, stating the county in which the service was made, giving distance and direction from county seat of county in which process was served and mileage therefor charged for distance by the most direct and practicable route whence such process issued to the place of service; and such other information and data provided by law to be shown in said account. That said account during said term of court was duly presented to the district judge, presiding at said term of court, who after examining the same carefully and inquiring into the correctness thereof, approved the same; and such bill, with the action of the judge thereon, was duly entered on the minutes of said court, and a certified copy thereof with the action of the judge thereon duly transmitted and presented to said respondent on the ____ day of March, A. D. 1911."

Of each of said accounts it is alleged: "That, when said account or bill of costs was so presented to said presiding judge, he set the same down for hearing on October 14, 1911, and on said date, and prior thereto, did examine the same carefully and inquire into the correctness thereof and thereupon approve the bill and account of the costs due to this relator for said term of court to be paid by the state in the sum of four thousand, four hundred twenty-two and 45/100 ($4,422.45) dollars; that said account of costs was duly entered in the minutes of the district court of Bowie county, Tex., as appears from certificate of the clerk thereof annexed to the said account so presented for payment as hereinafter set forth."

It is also alleged that the clerk of the district court of Bowie county made a certified copy of the record of each account according to law and transmitted such copy to the Comptroller as directed by the law of the state, which were received by respondent and are now on file in his office.

It is alleged that the respondent upon examination of the accounts refused to issue warrants for certain amounts of each account. The sum of each is immaterial to the decision of this case. The allegations are full and present clearly the issue of the respondent's duty in regard to said accounts.

The respondent has not submitted to this court any facts from which the correctness of his action in refusing the warrants may be judged. The answer assumes that the law empowers the Comptroller to review the action of the district judge, and, as he alleges no facts upon which his own action is based, the only issue presented is that the respondent is by law empowered to review and annul the judgment of the district judge without regard to the facts, and that his action in so doing is not subject to review. This is a correct presentation of the real issue, for if the law permits the Comptroller to go into the facts to determine the correctness of the judgment of the district judge, or if we were required to examine the facts to determine the correctness of the Comptroller's action, this court would have no jurisdiction to try the issue. We conclude that the only question for our decision is: Had the respondent the authority to review the accounts approved by the Honorable P. A. Turner, judge of the Fifth judicial district? If he had the power, the mandamus must be refused; if he had it not, the writ will be granted.

The articles of the Code of Criminal Procedure which must control the decision of this case are:

"Art. 1132. (1087) Officer shall make out cost bill, and what it shall show.—Before the close of each term of the district court, the district or county attorney, sheriff and clerk of said court shall each make out a bill or account of the costs claimed to be due them by the state, respectively, in the felony cases tried at that term; the bill or account shall show: (1) The style and number of cases in which the costs are claimed to have accrued. (2) The offense charged against the defendant. (3) The term of the court at which the case was disposed of. (4) The disposition of the case, and that the case was finally disposed of, and no appeal taken. (5) The name and number of defendants; and, if more than one, whether they were tried jointly or separately. (6) Where each defendant was arrested or witness served, stating the county in which the service was made, giving distance and direction from county seat of county in which the process is served; and mileage shall be charged for distance by the most direct and practicable route from the court whence such process issued to the place of service. (7) In allowing mileage, the judge shall ascertain whether the process was served on one or more of the parties named therein on the same tour, and shall allow mileage, only for the number of miles actually traveled, and then only for the journey made at the time the service was perfected. (8) The court shall inquire whether there have been several prosecutions for an offense or transactions that is but one offense in law; and, if there is more than one prosecution for the same transaction, or a portion thereof, that could have been combined in one indictment against the same defendant, the judge shall allow fees to sheriffs, clerks and district and county attorneys in but one prosecution. (9) Where the defendants in a case have served on the trial, the judge shall not allow the charges for service of process and mileage to be duplicated in each case as tried; but only such additional fees shall be allowed as are caused by the severance."

It is important to observe the particularity with which the facts must be stated. If the test is applied according to these provisions, the correctness and justness of the claim must be passed upon by the judge, whose duty is prescribed as follows:

"Art. 1133. (1088) Duty of judge to examine bill, etc.—It shall be the duty of the district judge, when any such bill is presented to him, to examine the same carefully, and to inquire into the correctness thereof, and approve the same, in whole or in part, or to disapprove the entire bill, as the facts and law may require; and such bill, with the action of the judge thereon, shall be entered on the minutes of said court; and immediately on the rising of said court, it shall be the duty of...