State v. Wilder

• Decision Date: 22 May 1906
• Parties: STATE ex rel. SUTER et al. v. WILDER, State Auditor.
• Court: Missouri Supreme Court

95 S.W. 396

196 Mo. 418

STATE ex rel. SUTER et al. v. WILDER, State Auditor.

Supreme Court of Missouri, Division No. 2.

May 22, 1906.

1. COSTS—CRIMINAL PROSECUTION—LIABILITY OF STATE — CERTIFICATE OF JUDGE AND PROSECUTING ATTORNEY — CONCLUSIVENESS ON STATE AUDITOR.

Under Rev. St. 1899, §§ 2845, 2847, requiring the county attorney to strictly examine each bill of costs delivered to him for allowance against the state or county and providing that he and the judge, if the bill appears to be correct, shall certify to the state auditor or clerk of the county court, the amount of the fee bill; section 2856, requiring the state auditor to draw his warrant in payment of fee bills certified to the state, and transmit it to the treasurer of the county; and section 10,389, providing that the auditor shall audit, adjust, and settle all claims against the state, except such as are required by law to be audited and settled by other officers and persons, the certificate of the county attorney and judge to a bill of costs in a criminal case is not conclusive upon the state auditor.

2. WITNESSES—MILEAGE—NONRESIDENTS.

Under Rev. St. 1899, §§ 3259, 3260, prescribing the right of witnesses to mileage for actual and necessary attendance on court in obedience to the process of the court, witnesses on whom subpœnas were served at their residences outside the state were not entitled to mileage from their residences to the place of trial, the service of the subpœnas being ineffective.

3. JURY—JURORS' FEES.

Rev. St. 1899, § 3784, providing that each juror not on the regular panel, and summoned to sit as a juror in any criminal case wherein the offense charged is punishable with death or by imprisonment in the penitentiary, shall be allowed certain sums for attendance and mileage whether he sits in the trial of the cause or is challenged off, embraces only such jurors as were qualified on the panel of 40 from which the panel of 12 to try the cause were to be selected.

Application by John J. Suter and others for mandamus against Wm. W. Wilder, State Auditor. Peremptory writ denied.

This is a proceeding by mandamus—instituted by relators, for the purpose of compelling the respondent, as State Auditor, to audit a certain criminal cost bill, which was signed and certified to by the judge of the circuit court of Ralls county, and also signed by the prosecuting attorney of said county, and presented to said auditor. It is unnecessary to burden this opinion by reproducing the petition upon which this proceeding is predicated. It will be sufficient for the purpose of determining the controverted propositions involved to indicate the substance of the allegations of the petition. It substantially appears from the petition and the cost bill therein contained that one Taylor Jones Watson was charged, by information filed by the prosecuting attorney of Ralls county, with murder in the first degree; that he was tried at the first term of the circuit court of Ralls county thereafter, and was acquitted. Prior to said trial the state, and the defendant had subpœnas regularly issued for a number of persons, commanding them to appear at said trial and testify in said case; said subpœnas being regularly served on them at the residences of the various witnesses, which were in the states of Illinois, Colorado, Indiana, California, Michigan, Iowa, and Virginia. In response to said subpœnas, said witnesses appeared in Ralls county and testified at said trial. The petition and alternative writ further state that all of said witnesses have, for value received, sold and assigned the fees due them for said attendance to the relators herein. That the respondent failed and refused to audit said criminal cost bill because, in his judgment, said nonresident witnesses were not entitled to claim mileage from places outside of this state. The petition and alternative writ further recite, that, in said cost bill, there are the names of a number of citizens of Ralls county, who were summoned to serve on said jury, but were not selected on the panel of 40; and the cost bill also states the amount due each venireman for his attendance and mileage; that the auditor failed and refused to audit and allow said fees because, in his judgment, said persons were not entitled to claim for said attendance and mileage, not having been selected on the panel of 40. It is also alleged that the fees due said veniremen have been sold and assigned, for value received, to the relators herein.

To the petition filed in this cause the respondent interposed a demurrer and assigned the following reasons therefor: "(1) That the petition and alternative writ do not state facts sufficient to constitute a cause of action; (2) that the petition and alternative writ do not state facts sufficient to entitle relators to any relief from this court; (3) that the petition and alternative writ show that some of the witnesses, whose fees relators desire to have taxed against and paid by the state resided at the time they were served with a subpoena without the state of Missouri, and that they have claimed their attendance from their said residences to and from the county seat of Ralls county, Mo.; (4) that the petition and alternative writ do not show that the witnesses, whose fees are by this proceeding sought to be taxed against and paid by the state, ever made oath to the correctness of said fees before the circuit clerk of Ralls county, Mo., as required by statute." This proceeding was submitted to this court upon the petition and demurrer and that constitutes the record before us for consideration.

Roy & Hays, Allison & Allison, and Ben H. Hulse, for relator. The Attorney General and N. T. Gentry, for respondent.

FOX, J. (after stating the facts).

This record presents three distinct propositions for our consideration: (1) Are the costs in criminal cases finally audited by the judge and prosecuting attorney, who certify the bills under the provisions of the statute, and is their certificate to the fee bill final and conclusive upon the auditor? (2) Are witnesses, who are nonresidents of this state, and are served with a subpœna at the place of their residence in a foreign state, commanding them to appear at the trial of a criminal cause in this state, entitled to mileage, as such witnesses, from their place of residence in the foreign state to the place of trial in this state? (3) Are veniremen, who are not chosen on the panel of 40 jurors provided for in capital cases, entitled to their per diem and mileage under the provisions of law respecting the fees of jurors?

The contention of relators upon the first proposition is predicated upon sections 2845-2847, 2856, Rev. St. 1899. Section 2845 substantially requires the prosecuting attorney to strictly examine each bill of costs delivered to him for allowance against the state or county, to ascertain as far as possible, whether the services have been rendered for which charges are made and whether the fees charged are expressly given by law for such services. Then it provides that he and the judge of the court, if the bill appears to be formal and correct, shall certify to the state auditor or clerk of the county court accordingly as the state or county is liable, the amount of such fee bill. Section 2847 simply provides as to what the certificate of the judge and the prosecuting attorney shall contain, that is that they have strictly examined the bill of costs; that the defendant was convicted or acquitted, and if convicted the sentence and extent of punishment assessed, or the case continued generally as the case may be; that the offense charged is a capital one or punishable solely by imprisonment in the penitentiary, as the case may be; that the services were rendered for which charges are made and that the fees charged are expressly authorized by law, and that they are properly taxed against the proper party, and that the fees of no more than three witnesses to prove any one fact are allowed; and an additional statement where the defendant is convicted, the certificate shall show that the defendant is insolvent. Section 2856 is simply a requirement that the clerks of the courts shall make copies of all original fee bills certified to the State Auditor for payment and file them with the treasurers of their respective counties, and the State Auditor required to draw his warrant in payment of such bill on the State Treasurer and transmit the same to the treasurer of the county from whence the bill originated.

Our attention is also directed to section 10,389, Rev. St. 1899, which provides that the auditor shall "audit, adjust, and settle all claims against the state payable out of the treasury, except only such claims as may be expressly required by law to be audited and settled by other officers or persons," etc. It is earnestly insisted by relators that costs bills certified in the manner as indicated by the section herein cited is in effect the auditing and settling of the amount of such bills by the judge and prosecuting attorney, hence fall within the exceptions of section 10,389, which provides that the auditor shall audit all claims except such claims as may be expressly required by law to be audited and settled by other officers and persons. In other words, it is claimed that under the section as herein indicated that the judge and prosecuting attorney are expressly required to audit and settle all cost bills, and therefore under the provisions of the exceptions of section 10,389 the auditor has nothing to do with the auditing or settling of bills of costs in criminal cases. We are unable to give our assent to this contention so ably presented by learned counsel for relators. An analysis of the sections of the statute in reference to bills of costs as herein pointed out, makes it manifest that the Legislature never intended that this section should be regarded as authority on the part of the judge and prosecuting attorney to...