State ex rel. Keck v. Seibert

• Decision Date: 05 November 1895
• Parties: The State ex rel. Keck et al. v. Seibert, State Auditor
• Court: Missouri Supreme Court

32 S.W. 670

130 Mo. 202

The State ex rel. Keck et al. v. Seibert, State Auditor

Supreme Court of Missouri

November 5, 1895

[Copyrighted Material Omitted]

In this proceeding for a mandamus against the auditor, the petition of relators, which, by agreement is substituted for the alternative writ, is the following: "The relators inform the court, that the respondent, Jas. M. Seibert, is auditor of the state of Missouri and as such auditor, it is his duty to audit and allow all criminal costs legally certified to him for allowance by the judges of the circuit court and prosecuting attorneys; that on the -- day of January, 1894, a fee bill for costs assessed against the state of Missouri in the case of the state of Missouri against Wilson Howard, charged with and convicted of murder in the first degree, in the circuit court of Laclede county was duly certified to the respondent, as auditor, by the judge of the circuit court and prosecuting attorney of Laclede county, allowing witness fees for witnesses on the part of the state as follows, to wit: Henry C. Rice, $ 74.80 A. Coffee, $ 106.70; D. H. Smith, $ 322.85; J. S. Bailey, $ 559.75; M. G. Ward, $ 241.85; H. Kaywood, $ 148.35; J. C. McKnight, $ 154.50; G. B. Turner, $ 248.05; J. E. Turner, $ 246.80; J. K. Bailey, $ 167.00; Milton Jones, $ 162.00; C. Pace, $ 81.05; J. S. Taylor, $ 167.10; A. B. Carnett, $ 129.85; G. H. Malon, $ 86.05; T. S. Ward, $ 170.90; and M. S. Ward, $ 81.05.

"That all of said witnesses were on the part of the state, and were material and important and testified on the trial of the cause at two trials, and that no more than three witnesses were allowed to prove any one fact. That all of said witnesses resided outside of the state of Missouri, and were first summoned at their homes out of the state, but that all were re-summoned in this state, by legal process at the first terms of court at which they attended in this state. That when said cause was continued from time to time, said witnesses were notified by public proclamation of the judge, that they were discharged until the next term of court, and required to return to said court without further service, and that in pursuance of said summons and proclamation, they attended the several terms of court and testified at two trials on the part of the state. That when a change of venue was granted in said cause from Maries county to Laclede county, all witnesses for the state then present were placed under recognizance by the court and among those recognized are J. S. Bailey, J. C. McKnight and Hiram Kaywood, whose fees are in dispute. That when the cause was continued at the November term, 1890, of the Laclede county circuit court, all witnesses for the state then present were placed under recognizance, including the follow persons whose fees are here in dispute, to wit: J. S. Bailey, J. C. McKnight, M. G. Ward, J. E. Turner, Milton Jones, D. H. Smith, G. B. Turner, and J. K. Bailey.

"That there was, and is now, money in the treasury appropriated to pay criminal costs; that the defendant was insolvent and the offense charged is a capital offense and the defendant has been executed. That the fee bill is tendered herewith as a part of the petition in this case.

"That the relators purchased all of said fees, and took written assignments therefor and no other persons are interested therein. That the respondent as auditor of the state has refused and still refuses to audit said fee bill and issue a warrant for the fees so certified and due your relators who have no adequate remedy at law. Wherefore relators pray, etc."

The return of the state auditor, so far as necessary to quote, is as follows: "That a bill of costs in the case of State of Missouri v. Wilson Howard, convicted of murder in the first degree, was certified to him, the said auditor, for payment, by the clerk of the circuit court of Laclede county, where said case had been tried, after having been approved by the judge of the circuit court and the prosecuting attorney of said county; and all of the fees in said bill which were properly chargeable to the state have been allowed by him, the said auditor, and a warrant issued therefor on the treasurer; that at the time the case above referred to was pending, each of said witnesses named in relators' petition was a nonresident of the state of Missouri, and had been subpoenaed at their respective homes in the state of Kentucky; that there is no law authorizing such service, and that each of said witnesses attended the different terms of court in the case named under no compulsory process, but at their own option; that the entire portion of the fees claimed as set forth in relator's petition, except a small amount in each case for per diem, is for mileage of said witnesses in coming to Laclede county and returning to their homes in the state of Kentucky; that there is no law authorizing the payment of mileage by the state in such cases; that he, the said auditor, has no power to audit a fee bill and issue a warrant therefor in the absence of a statute authorizing the same; that there is no statute authorizing the payment of mileage fees to nonresident witnesses in criminal cases.

"Respondent further states that he is informed and believes that although said witnesses were repeatedly in attendance upon the various terms of the circuit court when the case against the said Wilson Howard was pending; that none of said witnesses were examined upon the part of the state, nor did they testify at the trial when the said Wilson Howard was convicted, except A. Coffee and T. S. Ward; that the state is not liable and should not be required to pay the costs of witnesses repeatedly unnecessarily summoned and not examined; that this proceeding is not instituted by the witnesses who, it is stated in relator's petition, earned the fees respectively set out therein; that the relators herein state in their said petition that they have purchased the claims for such fees and are now the only parties in interest in the same; that the said John Newhouse, one of the relators herein, was at the time he examined and approved the fee bill in this cause the prosecuting attorney of Laclede county, where the case against Howard was tried.

"Your respondent further states that by reason of the approval of said fee bill by the said John L. Newhouse, the party in interest thereto, the same has not been approved as required by law and that respondent is not authorized to audit the same.

"Respondent says that the facts as set forth in relators' petition are not sufficient to entitle him to the relief prayed and he therefore asks that the peremptory writ be denied.

James M. Seibert, Respondent.

"By R. F. Walker, his attorney."

The answer to this amended return is the following:

"The relators for their answer to the respondent's amended return, respectfully inform the court that the facts as set forth in relators' petition and the alternative writ of mandamus, are true as therein stated; and further answering deny that all the fees in said fee bill which are properly charged to the state have been allowed by the auditor.

"Admit that each of said witnesses named in relators' petition was nonresident of the state of Missouri, and has been subpoenaed at their respective homes in the state of Kentucky, but deny that each of said witnesses attended the different terms of court in the case named under no compulsory process, but at their own option; and aver the facts to be, that after said witnesses were subpoenaed at their homes in the state of Kentucky, they came into this state to attend court, and were then subpoenaed in this state, and placed under recognizance by the court to attend from term to term, and at each term, before the final trial were discharged by the judge by public proclamation to return at the next term of said court in pursuance to their recognizance.

"Relators further answering, inform the court that defendant was twice put upon trial, the first resulting in a mistrial; that at the first trial eight of said witnesses testified in the case, and at the second trial a less number testified because of defendant's change in the theory of the defense; that most of said witnesses were important and necessary in the impeachment of depositions and proffered evidence on the part of defendant, and all of said witnesses were regarded by the prosecuting attorney as important and necessary, and were subpoenaed under the orders of the court having jurisdiction of the case, and these facts are verified by affidavits herewith filed.

"Relators deny that they are not the only parties in interest in the fees in controversy, but aver that they purchased all of said fees, and took written assignments therefor, which they tender in evidence, and are therefore now the only parties interested in said fees.

"Relators answering the charge that J. L. Newhouse, being interested, was incompetent as prosecuting attorney to examine and approve the fee bill, inform the court that at a subsequent term of the circuit court of Laclede county, said court appointed E. B. Kellerman special prosecuting attorney to examine and pass upon the fees in controversy, and also ordered the clerk of said court to make a supplemental fee bill for said costs, which supplemental fee bill and order of court has been filed with the state auditor and is made a part of this answer.

"Relators further answering, deny each and every allegation in respondent's amended return, not herein admitted or which is in conflict with relators' petition.

"J. W. Farris,

"Attorney for Relators."

To this answer respondent has demurred, assigning as grounds:

"That the same does not state facts sufficient to authorize the granting of the writ of mandamus in this...