State ex rel. Hensick v. Smith

• Decision Date: 20 March 1878
• Citation: 5 Mo.App. 427
• Parties: STATE OF MISSOURI, EX REL. W. B. HENSICK, Appellant, v. A. J. SMITH, AUDITOR, Respondent.
• Court: Missouri Court of Appeals

5 Mo.App. 427

STATE OF MISSOURI, EX REL. W. B. HENSICK, Appellant,

v.A. J. SMITH, AUDITOR, Respondent.

St. Louis Court of Appeals, Missouri.

Mar. 20, 1878.

In the absence of any statutory provision for the payment of such expenses, the St. Louis Criminal Court has the power to order that a jury be kept together, and their meals furnished them; and the expense of feeding such jury is a necessary one, the account for which is to be audited and allowed by the court; and when this is done, it is the duty of the city auditor, upon presentation, to certify the balance thus found; and if in proper form and itemized as the law requires, and the amount required to pay it has been appropriated, and is in the treasury for the payment of the current expenses of the city, to draw his warrant on the treasurer in payment of the account. In such a case, the auditor's duties are ministerial. To the court alone belongs the right to determine what expenditures are necessary to carry on the public business of the court with efficiency.

APPLICATION for mandamus.

Peremptory writ ordered.

HARRIS & JOY, for relator: In capital cases, the jury should not separate after being empanelled.-- McLean v. The State, 8 Mo. 154; The State v. Brown, 33 Mo. 483. And the city of St. Louis is liable for the expense of boarding a jury while so kept together, as for other necessary expenses of the St. Louis Criminal Court.-- The State v. Maus, 41 Mo. 470.

LEVERETT BELL, for respondent: The city is not liable for food furnished jurors serving in the Criminal Court.--Acts 1874, p. 238; The State v. Clark, 57 Mo. 25. The pretended contract between the relator and the city is invalid.--Acts 1874, p. 44; City Charter, secs. 7, 11, art. 16. The auditor's powers are discretionary, and will not be controlled by mandamus.--City Charter, sec. 21, art. 4; Decatur v. Paulding, 14 Pet. 497; Bledsoe v. Railroad Co., 40 Texas, 537; High on Rem., secs. 102, 346.

BAKEWELL, J., delivered the opinion of the court.

The application of the relator in this case shows a refusal on the part of the city auditor to draw a warrant upon the city treasurer of the city of St. Louis for an account duly certified for payment by the judge of the St. Louis Criminal Court. The case is to be considered upon a motion to quash the alternative writ heretofore issued by this court. The facts stated in the application are to be taken as true.

It appears that on Nov. 20, 1877, the judge of the St. Louis Criminal Court directed the marshal of that court to receive bids for furnishing meals to jurors in the cases in which the court might order that the jurors be kept together during the progress of the trial; that various bids were presented and examined, and the court thereupon ordered the marshal to contract with relator, who was one of the bidders, at the rate of thirty-five cents for each meal, and to certify all bills rendered under such contract to the court for examination and allowance; that the marshal, accordingly, contracted with relator; and that from Nov. 22, 1877, to Feb. 22, 1878, relator furnished the jurors, and to the marshal in whose custody they were, meals at the rate named, to the value of $150.15. Bills were rendered by the relator to the marshal, setting forth the dates at which the meals were furnished, the style of the case in which each jury was sitting at the time, and the separate charge and number of meals furnished to each jury. The correctness of each bill is certified upon its face by the marshal, and each bill is marked “examined and allowed” by the judge of the Criminal Court, in open court. These bills were presented to respondent, with the demand that he audit them and draw his warrant upon the treasury for the amount; and although there was at that time in the hands of the city treasurer a balance unexpended of appropriations for the current expenses of the city, more than sufficient to pay these accounts, the auditor refuses to audit them and to draw a warrant for the amount due upon them.

It is the duty of the judge of the Criminal Court in many cases to direct that the jury shall be kept together until discharged by him at the close of the case. McLean v. The State, 8 Mo. 153; 33 Mo. 483. Whilst kept together, they must be fed, in common with the officer in whose custody they are. Whilst the court has the right to direct that the jurors shall not choose, each for himself, where he shall eat, it has no power whatever to compel each juror to pay for his own meals. The feeding of the jurors is, therefore, a necessary expense, without incurring which the business of the court could not be carried on, and the administration of criminal justice must come to an end. The general law directs (Wag. Stat. 431, sec. 4) that all accounts for expenditures accruing in courts shall be paid out of the treasury of the county in which the court is held, in the same manner as other demands, and (Wag. Stat. 424, secs. 41, 42) shall be audited and adjusted by the court in which the services were rendered. That tribunal has the means of determining the correctness of the account, as to which the auditor can know nothing; and to that tribunal alone have the people delegated the power of determining what expenditures are necessary to carry on, with efficiency and decorum, the public business of the court. There is manifestly, therefore, no occasion for any further action on the part of the auditor. His duty is merely ministerial; and whenever a court has certified to the correctness of an account presented by the sheriff or marshal of the court, for necessary things furnished for the use of the court, and ordered by the court, the auditor must allow the demand. The State, etc., v. St. Louis County Court, 42 Mo. 498. To hold otherwise would be to say that the people have committed to the auditor the power of suspending the session of any court in the city at his pleasure, which is manifestly absurd. If the judge of a court of record certifies that an account for meals furnished to jurors by his direction, in his court, through the marshal or sheriff, is correct, there is an end of the matter. If the judge has abused his power in directing the expense, he is not responsible for this to the auditor,...