Parker v. Robertson , 14 La. Ann. 249 ( 1859 )

Cole, J.

On the 15th of December, 1858, an account of E. T. Parker, Sheriff of the parish of Orleans “ for fees incurred in the prosecution of criminals from the 1st of April to the 30th of June inclusive,” was presented to the Auditor of the State of Louisiana, to be audited, which was refused.

The bill included not only fees, but also the expenses incurred during the specified period for cab-hire, refreshment to jurors, the pay of witnesses, candles, lamps, &e., with the exception of the pay of officers.

Plaintiff then applied for a mandamus to direct the Auditor to draw a warrant upon the Treasurer of the State, in his favor, for the amount of the bill, and to deliver the warrant to him.

The order issued, commanding tho Auditor to show cause why the writ should not be granted.

Upon the trial of the rule, it was made absolute. The Auditor appealed.

Tho bill of plaintiff is claimed under the Act of 19th March, 185’?, entitled “ An Act relative to the payment of expenses incident to the prosecution of criminals.” Sess. Acts, 1857, p. 187.

Sec. 1. Be it enacted, &c., “ That all the criminal expenses incurred in the different parishes of this State, by arrests, confinement, and prosecution of persons accused of crime, their removal to prison, the pay of witnesses, and all other expenses attending criminal prosecutions, except the pay of jurors, shall be paid by the State upon the certificate of the Clerk and the presiding Judge of the several courts of this State.”

The bill of plaintiff was certified, as required by the preceding section.

The duties of the Auditor would appear to prevent him from impugning’ the certificate, when it is upon its face within the particular jurisdiction confided to the Judge and Clerk by the section aforesaid of the Act of 1857.

Sections 5 and 12 of the Act of 1855 “ to regulate the office of Auditor of Public Accounts,” read as follows :

See. 5. Be it enacted, &e., “ That it shall also be his duty, first, to audit, adjust, and settle all claims against the State, payable out of the treasury, except such claims as may be expressly required by law to be audited and settled by some other officer or person.”

Sec. 12. “ That in all cases of accounts audited and allowed against the State, and in all cases of grants, salaries and expenses allowed by law, the Auditor shall draw a warrant upon the Treasurer for the amount due, in the following form,” &c. Sess. Acts. 1855, p. 125, §ji 5 and 12.

The Act of 185V, already recited, provides that the criminal expenses shall be paid “ upon the certificate of the Clerk and the presiding Judge of the several courts of the State.”

The Act of 185Y leaves it to the wisdom of the Judge and Clerk to interpret the Act of 185V, and to decide what are the expenses inteuded by it. The duties of the Auditor relative to accounts thus certified are ministerial and imperative. He has no supervisory control over the Judge and Clerk, and is not an appellate or superior tribunal vested with the power of deciding that these officers have been in error in their interpretation of the law.

The Legislature have manifested their confidence by clothing them with the power of certifying these accounts. They are also able to certify knowingly, because the services are rendered in causes that have been tried before them.

It is true, that as the certificate is, according to Mr. Crittenden, “ the evidence of the exercise of a special and limited jurisdiction, it must show upon its face a case within that jurisdiction.”

If, for example, the certificate of the Judge and Clerk should show upon its face, that it was for fees in civil suits, the Auditor might refuse to authorize its payment, because there is no law empowering the Judge and Clerk to certify them in order to have them paid by the State.

But when the law orders that the expenses in criminal matters shall be paid upon the certificate of the Judge and Clerk, it leaves to them the interpretation of the nature of the expenses, and the Auditor is obliged to follow their interpretation and to view as expenses whatever they have so considered, which have been caused in criminal matters before them.

If they abuse their trust, or err in their interpretation, it is easy for the Legislature to deprive them of the power of certifying.

Our construction of the powers of the Auditor appears to have been that of several of the Attorneys General of the United States in analogous cases, and also that of several of the Justices of the Supreme Court of the United States.

The fourth section of the Act of Congress of 8th May, 1V92, (1 Statutes at large, 2YY,) has this provision in relation to the Marshal’s accounts : “ The same having been examined and certified by the court or one of the Judges of it, in which the service shall have been rendered, shall be passed in the usual manner at, and the amount thereof paid out of the Treasury of the United States to the Marshal,” &c.

Mr. Justice Story was of opinion “ that the certificate of the Judge upon the examination of the Marshal’s accounts was conclusive, and that the items of the charges are not re-examinable in any manner, by the officers of the Treasury Department.” He further says, “ Some years since, the same question was brought before the Judges of the Supreme Court of the United States for their consideration, upon the instance of some one of the Judges. It was then fully considered by all of us; and it was the unequivocal opinion of the Judges, (and my impression is, that there was an entire unanimity of opinion), that the certificate of the Judge upon the accounts of the Marshals was conclusive and could not be re-examined at the Treasury Department, but must be passed as of course. I have never, at any time, heard a doubt expressed by any Judge, that this was the true and only legitimate construction of the statute; and I have no objection to its being communicated to the Treasury Department.” Rep. of Com. H. R., No. 132, 2d sess. Oong. p. 8.

See also, upon the same and analogous questions, the opinions of Attorneys General TJ. S., Reverdy Johnson, H. S. Legaré and J. J. Crittenden. Hommerich v. Hunter, State Treasurer, ante p. 225.

Upon the hypothesis, however, that the certificate of the Clerk and Judge is not conclusive, and that the Auditor was entitled to go behind the certificate and to re-examine the Sheriff’s account, he was still bound to issue the warrant demanded, because all the items in the account are for the expenses of criminal prosecutions in the parish of Orleans, which the Legislature in the Act of 1857 declares shall be paid by the State.

The correctness of the fees is not disputed, but the liability of the State for their payment is denied. The expenses in the bill, except the fees of the Sheriff are admitted to be a legal charge against the State. The Attorney General in his brief says, that the expenses of cab hire, lights, &e., are admitted, and that the inquiry is “ narrowed ” down to this : did the State, in the Act of 1857, assume the payment of Sheriff’s fees in criminal cases ? It is denied that fees are included in the word “ expenses ” in the Act of 1857, already quoted. In justification of this denial, reference is made to the Acts of 1805,1807 and 1808 of the Legislative Oouncil of the Territory of Orleans, and to those of 1813,1817,1842 and 1848 of the Legislature of the State.

Even admitting that during this period Sheriffs were not paid by the State their fees in criminal prosecutions, or received in their stead a small compensation fixed by law, not for any particular official acts, but for the whole of their services, still, this would not defeat the demand of plaintiff.

A reference to ancient statutes to illuminate a modern law is not so satisfactory when there is a manifest variation between them, and when the intention of the Legislature to depart from the former jurisprudence has been clearly exhibited, as we shall proceed to show has been done, in their legislation upon the payment of criminal expenses.

In 1852, an Act to change and regulate the expenses of criminal prosecutions throughout the State was passed, which is as follows :

Sec. 1. “ That all the expenses hereafter incurred in the different parishes by the attendance of physicians, and for maintenance and clothing of individuals condemned for the commission of any crime, and of such as are accused of any crime or misdemeanor cognizable by the District Courts of this State, shall be paid by the respective parishes in which the offence or offences charged may have been committed.”

Sec. 2. “ That the fees, salaries and expenses provided by this bill to be paid by the local authorities, shall be fixed and regulated by the said authorities; and until the same be done by the said authorities, the fees, salaries and expenses shall remain as now fixed by law and be paid by the local authorities.”

Sec. 3. “ That all laws, or parts of laws, upon the subjects treated of in this Act, be and the same are hereby repealed.” Sess. Acts, 1852, p. 180.

The point to be noticed in this statute is that “ expenses ” in the first section are made in the second section to include “ fees.”

It is not so clear that Sheriffs would he entitled to he paid, under this law, their fees in criminal prosecutions, but it was so interpreted by the city authorities, and Sheriff Marigny was paid under it for sundry prosecutions.

In 1855, under the title of “ expenses of criminal prosecution,” the Legislature enacted the following statutes :

Sec. 68. Be it further enacted, &c., “ That all the expenses incurred in the different parishes by the arrest, confinement and prosecution of persons accused of crime, their removal to prison, the pay of witnesses, jurors, &c., and all expenses whatever attending criminal prosecutions, shall he paid by the respective parishes in which the offence charged may have been committed.”

Sec. 69. “ That the fees, salaries and expenses to be paid by the local authorities, shall be fixed and regulated by them; and until the same be done, they shall remain as now fixed by law.”

Sec. '73 repeals all other laws contrary to the provisions of this Act. Sess. Acts, 1855, p. 161.

“ Pees ” in the 69th section are included in this statute in “ expenses ” in the 68th section, and these sections clearly provide for their payment; for not only are mentioned the pay of witnesses and jurors, but also the expenses for the arrest and prosecution of persons accused of crime.

Even if the ancient legislation made a distinction between fees and expenses, and expenses did not comprehend fees, yet this statute embraces fees in the word “ expenses ” and repeals all laws contrary to the provisions of this Act.

In 1857, an Act was passed “ relative to the payment of expenses incident to the prosecution of criminals,” which is as follows :

Section 1. Be it enacted, &e., “ That all the criminal expenses incurred in the different parishes of this State, by arrests, confinement and prosecution of persons accused of crime, their removal to prison, the pay of witnesses, and all other expenses attending criminal prosecutions, except the pay of jurors, shall be paid by the State upon the certificate of the Glerk and the presiding Judge of the several courts of this State.” Sess. Acts, 1857, p. 187.

This Act is almost identical with that of 1855, except that it excludes from the expenses to be paid by the State the pay of Jurors, makes the State, instead of the parishes, responsible for the criminal expenses, and ordains that the expenses shall be paid upon the certificate of the Clerk and the presiding Judge of the several courts of the State.

The Act of 1855 .in the use of the word “ expenses ” included therein “ fees, ” and if there were any doubt of the intention of the Legislature in the use of the word “ expenses ” in the Act of 1857, it would be reasonable to interpret “ expenses ” therein to include fees, because it is almost a reenactment of the Act of 1855. If the Act of 1857 were not to be so understood, then the word “ expenses ” would be defined as used, according to the Attorney General, by the ancient jurisprudence, and be considered as not embracing “ fees.” But the ancient legislation upon the subject was repealed by the Act of 1855. It seems more rational, then, to define expenses as used by the Act of 1855, particularly as the Act of 1857 does not contain any repealing clause. The Act of 1857 must be considered to be a substitute for that of11855, and to have used the word “ expenses ” in the same sense as it was understood in the latter Act.

The statute of 1857, however, appears to be clear and comprehensive.

It provides that all the criminal expenses shall be paid by the State, except the pay of jurors, and explains the nature of the expenses, namely all those in-currod by arrests, confinement and prosecution of persons accused of crime, their removal to prison and the pay of 'witnesses. In order, however, to remove all doubt, it adds, that all other expenses attending criminal prosecutions, except the pay of jurors, shall be paid by the State.

Fees of Sheriffs are certainly a part of the expenses attending the arrest,.confinement, removal to prison and prosecution of persons accused of crime.

If such were not the intention of the Legislature, they could have excepted from the expenses the fees of Sheriffs, as they excluded the pay of jurors.

It is admitted that under the Act of 1857, John M. Bell, Sheriff of the parish of Orleans, was paid out of the State Treasury fees and costs of criminal prosecutions in the parish of Orleans, for a part of the year 1857.

It is, however, argued, that the 15th section of the Act of 1855 “ gives the Sheriff a salary of one hundred dollars per annum, for his services in matters of a a criminal nature pending in courts, and that this was intended to compensate him in full for his services in all cases where the accused was acquitted, and in all cases in which the person convicted was unable to pay the costs.”

Sec. 15 is as follows : “ Every Sheriff in this State shall be entitled to one hundred dollars per annum, and each and every Clerk of the several District Courts to fifty dollars per annum, as a compensation for their services in matters of a criminal nature pending in their respective courts.” Sess. Acts, 1855, p. 168.

This statute does not declare that Sheriffs shall not be entitled to more than one hundred dollars for their fees in matters of a criminal nature; and this samo Act, section 12, provides that Sheriffs shall be entitled to demand from the parish one dollar for whipping any person sentenced to that punishment, and twenty-five dollars for executing any person condemned to capital punishment, to be paid by the parish.

Besides, the Legislature have put their interpretation upon section 15, by declaring in the Act of 1857 that the fees of Sheriffs shall be paid by the State.

The Act of 1857 is subsequent to that of 1855, and if there be any portion of the latter Act upon the same subject-matter, which is opposed to the former, it must be considered to have been repealed.

But it is unnecessary in the case at bar to view them as adverse in their provisions, for there arc many services in criminal matters performed by Sheriffs, which are not provided for in the fee bill.

They arc obliged to be with juries when they retire to take their meals, to watch over them when the court takes a recess, to keep an eye over prisoners not upon bail when in court, and they render many other services not detailed in the fee bill.

A hundred dollars appears to be a moderate compensation for services performed by Sheriffs in criminal matters, for which fees are not provided in the fee bill.

It is also objected, that the Act of 1855 provides that the party convicted shall pay the costs of prosecution, and the question is asked, does the Act of 1857 repeal this provision of that Act. It does not, but according to our construction of these two Acts, the party convicted must be condemned to pay the costs, and after a return of nulla bona, or after the Clerk and Judge are satisfied by sufficient evidence that the person convicted has no property, then the State becomes responsible for the costs. See opinion of H. D. Gilpin, Attorney General II. S., July 20th, 1840.

Judgment affirmed, with costs.