State v. Wilder

• Decision Date: 30 June 1906
• Citation: 198 Mo. 166,95 S.W. 910
• Parties: STATE ex rel. CLAIBORNE v. WILDER, State Auditor.
• Court: Missouri Supreme Court

95 S.W. 910

198 Mo. 166

STATE ex rel. CLAIBORNE v. WILDER, State Auditor.

Supreme Court of Missouri.

June 30, 1906.

JUDGES—SPECIAL JUDGES—COMPENSATION.

Rev. St. 1899, § 2595, provides for the selection of a special judge when the judge of a criminal court is disqualified, and section 2597 provides that a special judge shall receive a certain sum per day for the time engaged in a trial and a certain sum while coming to and returning from the place of trial, if he resides out of the "county" where the cause is tried. The St. Louis court of criminal correction has by section 13, 2 Rev. St. 1899, p. 2544, § 13, exclusive original jurisdiction of misdemeanors. The court was established in the county of St. Louis by Laws 1865-66, p. 78, while the city was within the limits of the county, and Rev. St. 1899, art. 18, § 13, declares such court to be a court of record and makes all provisions concerning costs in criminal causes applicable to such court. The Constitution of 1875 provided that all criminal courts existing in the state should continue to exist unless otherwise provided. Rev. St. 1899, § 2723, makes the provisions of the Code applicable to the circuit court and judges thereof applicable to any court of record exercising criminal jurisdiction. Section 4 of the act establishing the St. Louis court of criminal correction provides that in the event of sickness or absence of the judge of said court the circuit court of St. Louis city may appoint a provisional judge. Section 4160 provides that, whenever the word "county" is in any law general in its character to the whole state, it shall be construed to include the city of St. Louis. Held, that sections 2595 and 2597 are applicable to the St. Louis court of criminal correction.

In Banc. Mandamus by the state, on the relation of James R. Claiborne, to compel William W. Wilder, as State Auditor, to audit and allow a bill of relator for services as special judge in the St. Louis court of criminal correction. Demurrer to the conditional writ overruled, and peremptory writ awarded.

T. J. Rowe and Henry Rowe, for relator. The Attorney General and N. T. Gentry, for respondent.

BURGESS, P. J.

This is an original proceeding by mandamus to compel the respondent State Auditor to audit and allow the bill of James R. Claiborne for $10 for one day's services as special judge in the St. Louis court of criminal correction on the 14th day of September, 1905, in the trial of the case of State of Missouri v. J. W. Kelly, upon the charge of wife abandonment, then pending in said court. Upon the filing of the petition for the writ of mandamus with the clerk of this court, there was duly issued by said clerk against the respondent a conditional writ, the only part of which necessary to reproduce in order to an understanding and determination of this case is as follows: "Whereas, it has been represented to our honorable Supreme Court, in banc, by the said relator, James R. Claiborne, that William W. Wilder is Auditor of the state of Misouri, and was such at all times hereinafter mentioned; that on the 14th day of September, 1905, in the case of State of Missouri v. J. W. Kelly, then pending in the St. Louis court of criminal correction, Hon. Hiram N. Moore, who was the judge of the St. Louis court of criminal correction, disqualified himself for cause; that afterwards, on the 14th day of September, 1905, in said case of State of Missouri v. J. W. Kelly in the St. Louis court of criminal correction, James R. Claiborne was duly elected and chosen by the attorneys representing the plaintiff and defendant in cause to try the same, and that his election and selection was approved on said 14th day of September, 1905, by Hon. Hiram N. Moore, judge of said St. Louis court of criminal correction. Afterwards, to wit, on said 14th day of September, 1905, James R. Claiborne appeared and accepted the appointment as special judge to try said cause of State of Missouri v. J. W. Kelly, then pending in the St. Louis court of criminal correction, and the oath of office was duly administered to the said James R. Claiborne; and that thereafter, to wit, on said September 14th, the said James R. Claiborne did, September 14, 1905, set, as special judge, to try, hear, and determine said cause of State of Missouri v. J. W. Kelly, and did as such special judge try, hear, and determine the same on September 14, 1905, and for said service he is entitled to a fee from the state of Missouri of $10." It is conceded that the services were rendered by the relator for which he claims compensation, and that the clerk of the said court of criminal correction did, in the usual form, forward to respondent a certificate to that effect. Respondent demurred to said petition and writ upon the following grounds: "(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 relator to any relief from this court. (3) That upon the face of the alternative writ and petition the relator is not entitled to the relief asked, or to any relief."

There is but one question presented by the pleadings in this case, and that is whether the statute which provides for the payment of a fee to a special judge in criminal courts applies also to special judges in the St. Louis court of criminal correction. The respondent's position is that it does not, while the relator's contention is that it does. Section 2594, Rev. St. 1899, provides when the judge of a criminal court shall be deemed incompetent to hear and try a cause. Section 2595 provides for the selection of a special judge when the regular judge, under section 2594, is incompetent to hear and try the cause. Section 2597 provides for the calling in of the judge of some other circuit to try the cause, when the person elected as special judge will not serve, and for the compensation of such judge; and said section also provides that, "whenever the special judge elected to try a cause shall appear and hold the court for the trial thereof, he shall receive ten dollars per day for the time necessarily engaged in such trial, and five dollars per day while going to and returning from the place of trial, if he...