State ex rel. Clarke v. Wilder
| Decision Date | 01 June 1906 |
| Citation | 94 S.W. 499,197 Mo. 27 |
| Parties | THE STATE ex rel. CLARKE v. WILDER, Auditor |
| Court | Missouri Supreme Court |
Peremptory writ denied.
William Zachritz and Johnson, Houts, Marlatt & Hawes for relator.
(1) The Auditor's refusal to draw his warrant for the payment of the costs involved in this suit was based wholly upon the view that under the law all costs accruing in the juvenile court should be paid by the city of St. Louis. There is no controversy about the facts. Such being the case, if the costs are properly chargeable against the State, the Auditor's duty to allow the cost bill and draw his warrant upon the State Treasurer is purely ministerial and mandamus is a proper remedy to enforce the performance of such duty. State ex rel. v. Gibson, 184 Mo. 507. (2) The defendant in the cause in which these costs accrued was charged with and acquitted of an offense punishable solely by imprisonment in the penitentiary. Under the general statutes of the State governing criminal costs prior to the enactment of the Juvenile Court act, there was no question that the costs in such cases were payable by the State. R. S. 1899 sec. 2831. (3) The Juvenile Court act contains express provision for the payment of costs in proceedings against or concerning "neglected" children, but nowhere provides for the payment of costs in trials of "delinquent" children. Laws, 1903, p. 213-217. (4) Section 2831, Revised Statutes 1899, which provides that where a defendant is acquitted of an offense punishable solely with imprisonment in the penitentiary the State shall pay the costs, is not inconsistent or in conflict with any of the provisions of the Juvenile Court act and is not repealed either expressly or by implication, by the Juvenile Court act. (5) The right to recover costs is statutory and "such right can have no existence unless the statute authorizing the item or items can be directly pointed out." Statutes allowing costs are strictly construed. The Juvenile Court act contains no provisions for the payment of costs in cases against "delinquent" children and no liability for such costs can be read into the act by implication.
Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for respondent.
(1) It is a well-established principle that costs can not be recovered except in cases where the statute specially provides for same. State ex rel. v. Seibert, 130 Mo. 217. By reading the statute which created the juvenile court, and the interpretation thereof in Ex parte Loving, 178 Mo. 194, it will be seen that there is no provision in said act for the payment of costs by the State. Laws 1903, pp. 213-217. In sections 5 and 12 it is distinctly provided that certain costs shall be paid by the county, or city, in which said court is situated. In no place is there any provision for the payment of fees to any one out of the State Treasury. This law establishes such courts in different counties, or cities, having a population of 150,000; hence, it is a law for the benefit of the larger cities and counties of our State. Such benefit is recognized in the Loving case, supra; and its necessity to a large city or county was also recognized by the General Assembly of 1903. It is but reasonable, therefore, to infer that the General Assembly intended that the county or city which derived the benefit from such court should pay the expenses incident to its operation. (2) A portion of relator's brief is devoted to an argument to the effect that the city of St. Louis is not liable for the costs here in controversy. Even admitting that the city is not liable, that does not necessarily fix liability for same on the State. It frequently happens in criminal, as well as civil, cases that the court officers receive no compensation for time and money expended by them. The fact that the county or city or municipal township or some other body can not be made to pay such fees does not make the State liable therefor.
OPINION
In Banc
Mandamus.
The petition of Patrick H. Clarke, sheriff of the city of St. Louis, was filed in this court on the -- day of October, 1905, in which he prayed for an alternative writ of mandamus against William W. Wilder, State Auditor, to compel the drawing of a warrant upon the State Treasurer in payment of certain criminal costs hereinafter referred to. On the 20th of October, 1905, the alternative writ was issued from this court returnable to the April term. To this alternative writ the State Auditor, acting through the Attorney-General, filed a demurrer on April 10, 1906, and the cause is for adjudication upon the petition as set out in the alternative writ and the demurrer thereto.
The petition alleges that Patrick H. Clarke was, at all times therein referred to, the sheriff of the city of St. Louis; that William W. Wilder was, at all said times, the Auditor of the State of Missouri; that on the 2nd day of December, 1904, an information was filed in the circuit court of the city of St. Louis, charging one John Meier with the offense of murder in the second degree committed in the city of St. Louis; that said John Meier was arrested upon a warrant issued under such information; that he was a minor under sixteen years of age, and that, in pursuance of what is known as the "Juvenile Court act" he was arraigned in the juvenile court of the city of St. Louis, Missouri, pleaded not guilty, was tried by the jury and was acquitted. The petition further alleged that for his services in said cause, the sheriff of the city of St. Louis became entitled to fees amounting to $ 24.90; that the clerk of the circuit court of the city of St. Louis became entitled to fees amounting to $ 13.50, and that certain other fees were taxed as costs, amounting to $ 14.50, making the total costs in said cause $ 52.90; all of which costs were duly taxed in the cause against the State of Missouri; that thereupon a fee bill was duly made out according to law embracing the foregoing costs and, being duly certified by the judge of the juvenile court, circuit attorney and by the circuit clerk, this fee bill was transmitted to the Auditor with the request that he draw his warrant upon the State Treasurer in payment thereof. The petition then alleges that the State Auditor refused to allow said fee bill as a charge against the State of Missouri and refused to draw his warrant on the State Treasurer in payment thereof; "that the said refusal of the State Auditor to allow said fee bill and to draw his warrant in payment of the same upon the State Treasurer was expressly placed by said State Auditor upon the ground that he believed that under the provisions of said Juvenile Court act all fees accruing in cases pending in said juvenile court in said city of St. Louis are chargeable solely against the city of St. Louis and not against the State of Missouri, and the said refusal of the State Auditor was not based upon any contention that the services charged for in said fee bill were not rendered, nor upon any contention that said fee bill was not duly and properly made out and certified, and not upon any contention that any of the facts herein set out were untrue, but that the said refusal of said State Auditor was based solely upon the ground that said fees, under the foregoing facts, should be paid by the city of St. Louis and not by the State of Missouri." The petition further alleged that there were sufficient funds in the State Treasury appropriated to the payment of criminal costs to pay said costs.
The sole question arising from the facts alleged by the relator and admitted by the State Auditor, is whether the State is liable for the...
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