The State ex rel. Dickmann v. Clark

• Decision Date: 10 November 1902
• Citation: 70 S.W. 489,170 Mo. 67
• Parties: THE STATE ex rel. DICKMANN, Sheriff, v. CLARK et al
• Court: Missouri Supreme Court

70 S.W. 489

170 Mo. 67

THE STATE ex rel. DICKMANN, Sheriff, v. CLARK et al

Supreme Court of Missouri

November 10, 1902 ^[*]

Peremptory writ awarded.

Morton Jourdan and Johnson, Houts, Marlatt & Hawes for relator.

(1) At the time of the passage of the statute in question in 1839 the circuit court alone had jurisdiction to try all felonies and all misdemeanors (except breach of the peace). Laws 1835 pp. 135, 372. (2) And it was therefore made imperative by the statute that in every case, both of felonies and misdemeanors, the officer should, upon the arrest of any person, take him before a magistrate for examination as soon as possible, where he might be discharged, recognized or committed. R. S. 1835, art. 2, p. 476, secs. 12 et seq. (3) The Act of 1839, was passed for the purpose of compensating the officer for his custody of the prisoner from the time of the arrest until he should be discharged, recognized or committed. Laws 1839, p. 97. (4) The words "undergoing an examination preparatory to his commitment," in view of the express purpose of the Legislature to compensate the officer for his custody of the prisoner, should be construed to cover the entire time from the arrest to the end of such custody, whether by discharge, recognizance or commitment, providing such custody extends over more than one day. (5) It is immaterial that, during a part of the time Gognon was in custody, he was confined by the sheriff in the holdover. Thomas v. St. Louis County, 61 Mo. 547. (6) It is immaterial that the city of St. Louis maintains the holdover, paying for food, light and heat. A separate charge is allowed for board and all other necessary expenses of a prisoner, which the sheriff does not and never has claimed. R. S. 1899, sec. 3246. (7) The St. Louis Court of Criminal Correction exercises the dual functions of an examining magistrate and a trial court, and proceedings before it are both an examination and a trial. State v. Hoffer, 44 Mo.App. 543; sec. 21, R. S. 1899, p. 2545.

H. A. Clover, Chas. W. Bates and Wm. F. Woerner for respondents.

(1) Relator did not have the prisoner in his custody, or under his charge, for as much as one day while said prisoner was "undergoing an examination preparatory to his commitment." State ex rel. v. Wofford, 116 Mo. 220. (2) The prisoner was not "transported" at all, and his "safe-keeping and maintaining" was not done by the relator, nor at the relator's expense, but by the city of St. Louis through its police officers and by means of its calaboose or holdover, all at the expense of the city, which has already paid for the very services for which the sheriff is now suing. (3) The sheriff has not performed any of the services for which the statute allows the fees claimed by him. (4) It was not more than one day from the time the prisoner was arrested by relator until the "examination preparatory to his commitment," was closed, and the prisoner committed to jail by the court. (5) No officer is entitled to fees of any kind unless provided for by statute. Statutes allowing fees must be strictly construed. State ex rel. v. Brown, 146 Mo. 406; State ex rel. v. Wofford, 116 Mo. 223; State ex rel. v. Seibert, 130 Mo. 216; State ex rel. v. Oliver, 116 Mo. 191. (6) The judge and prosecuting attorney found as a fact that the sheriff did not perform the service for which the statute allows the fees claimed. This finding is conclusive on the courts as said officers act in a quasijudicial capacity and exercise a judgment and discretion in such matters, and can not be required by mandamus to make a contrary finding of fact. State ex rel. v. Oliver, 116 Mo. 194. (7) Besides, on the agreed statement of facts, the sheriff had not performed the service for which the fees claimed are allowed by law, and, hence, is not entitled to the fees. A prisoner is not undergoing examination until brought into court for that purpose, which occurred on the morning of October 31st, the very morning on which the examination closed, and he was committed to jail by the court to await trial. State ex rel. v. Wofford, 116 Mo. 220. (8) If any one has earned the fees claimed by the sheriff in this case it is the officer who performed the services, and not the sheriff, and such officer has already been paid by the city of St. Louis. Moutier v. Stumpe, 39 Mo.App. 161.

OPINION

In Banc

Mandamus.

MARSHALL J.

-- This is an original proceeding by mandamus, to compel the respondents who are, respectively, the judge and prosecuting attorney of the court of criminal correction of the city of St. Louis, to audit and certify to the city auditor, a fee bill for two dollars and fifty cents, in favor of the relator, who is the sheriff of the said city, for the safe-keeping by him, for two days, of one Ted Gognon, while "undergoing an examination preparatory to his commitment" by the said court of criminal correction, upon a charge of petit larceny. The return admits all the facts stated in the alternative writ, and then sets up that the relator is not entitled to the compensation claimed, because the city of St. Louis maintains a calaboose, which is under the control of the police department, one portion of which is set apart for the sheriff's prisoners, and when the sheriff arrested Gognon, he placed him in said portion of said calaboose, where he was safely kept by the police force, and not by the sheriff, and upon this it is claimed that the sheriff has not performed the service, and therefore is not entitled to the fees provided by statute.

The case is submitted upon the following agreed statement of facts:

"It is agreed between the parties hereto that the above entitled cause may be heard and determined upon the following agreed statement of facts.

"1. Said Joseph F. Dickmann is and was at the times hereinafter stated the duly elected, qualified and acting sheriff within and for the city of St. Louis.

"2. That the said Willis H. Clark is and was at the times hereinafter stated the duly elected, qualified and acting judge of the court of criminal correction of the city of St Louis, and that the said Harry A. Clover is and was at said times the duly elected, qualified and acting prosecuting attorney within and for said city.

"3. That, on October 25, 1901, an information was duly filed in the St. Louis Court of Criminal Correction charging one Ted Gognon with the larceny of a bicycle of the value of $ 20; that upon the filing of said information a warrant was, on said day, duly issued to the plaintiff, as sheriff, commanding him to take said Gognon, and him safely keep, and to have his body be before the said court of criminal correction forthwith, to answer the complaint made against him for said larceny.

"4. That on October 30, 1901, the said sheriff did arrest and take said Ted Gognon into his custody under said warrant.

"5. That said Ted Gognon was arrested in said city of St. Louis after said court had adjourned for the day, and the judge thereof had departed from the building in which said court is held, so that the said Gognon could not be produced before said court on said day.

"6. That at the time of the arrest of said Ted Gognon, as aforesaid, the city of St. Louis had and maintained, and for many years prior thereto had continuously maintained, a jail in the said building in which the St. Louis Court of Criminal Correction is located as the place for the detention of prisoners legally committed thereto; and that said jail was in charge of a jailer employed and paid by the city, who, together with the guards and other attendants in the employ and pay of the city, maintained said jail, guarded the prisoners and attended to the furnishing of all the necessaries in the way of food, lodging, heat, etc., of the prisoners, and the city of St. Louis paid all the expenses of maintaining said jail, keeping prisoners, and furnishing all necessaries.

"That the city of St. Louis had also, prior to the arrest of said Ted Gognon, provided in said building what was known as the holdover or calaboose, for the use of the police force of the city of St. Louis, and to that end placed the same under the charge and control of the board of police commissioners of the city of St. Louis, which board of police commissioners had, prior to said arrest of Gognon, assigned a portion thereof for the use of the sheriff, for the purpose of enabling said sheriff to place therein prisoners when arrested by him, and for the safe-keeping of said prisoners between the time of said arrest and the bringing of them into court by the sheriff.

"That the entire expense of keeping and maintaining said holdover or calaboose, including that portion thereof set apart for the reception of prisoners arrested by the sheriff aforesaid, is, and always was, paid by the city of St. Louis; that the city of St. Louis pays, and has always paid, all of the keepers, police turnkeys and force in charge of said calaboose or holdover, including said portion set apart for the use of prisoners arrested by the sheriff, and pays, and always has paid, for all food, bedding, lights, heat and other necessaries of prisoners and others confined therein.

"That upon the said Gognon being arrested as aforesaid, he was placed by the sheriff in the part of the holdover or calaboose which is set apart for prisoners so arrested by the sheriff, and said Gognon, while in said calaboose, was kept and guarded by the police officers of the city of St. Louis who were in charge of the said calaboose or holdover, without any charge or expense whatever to the said sheriff; and the said Gognon was maintained and necessaries of life furnished him, while in said calaboose, at the expense of the city of St. Louis, without any charge whatever to the said sheriff.

"7. That at no time from the...