This is a proceeding by mandamus j commenced in the circuit court of Greene county, to compel defendant Oliver, as judge of the ■criminal court of Greene county, to certify to the state auditor the fees of ninety-nine witnesses, who were summoned to attend, and did attend the sitting of said criminal court, in the trial of the case of the State v. Berry, charged with the murder of Kinney, in which the defendant was acquitted.
A demurrer to the alternative writ, on the ground that the statements and allegations thereof did not' authorize its issuance, was overruled and defendant answered, averring that a complete fee bill specifying each item of' services and the fee therefor had been made out and delivered to the prosecuting attorney by the clerk of said court, and that defendant with said prosecuting attorney did, after investigating the bill, and correcting the same, allow the fees of ninety-five witnesses in said cause, being all the witnesses examined in said cause on either side, and in such certificate
A reply to the return was filed denying the allegations thereof and the cause was tried upon the pleadings and resulted in a judgment making the writ peremptory, and from that judgment the defendant appealed to the St. Louis court of appeals where the judgment was reversed, but the cause was certified to this court for final hearing under the provisions of section six of the amendment to the constitution establishing the Kansas City court of appeals.
I. There can be no doubt, we think, of the correctness of the ruling of the court of appeals that, “whether defendant was acting in the premises in a ministerial capacity as a member of an auditing committee, or whether he was acting judicially as a judge of an inferior court of record, he was, in either event, subject to the control and supervision of the Q-reene county circuit court.” Const. of Mo., art. 6, sec. 23; State v. Daniels, 66 Mo. 192.
II. The right of a witness to have his fees taxed as costs against one party or the other, if it exists at all, must be found within some statutory provision. “No final costs were recoverable by the plaintiff or defendant at common law.” Tidd’s Practice [3 Am. Ed.] 945; Hoover v. Railroad, 115 Mo. 77, and cases cited. The statute makes provision that “in all civil actions or proceedings of any'kind .the party prevailing shall recover his costs against the other party except in those cases in which a different provision is made by law.” Provision is also made for taxing as costs, the fees of witnesses attending the trial of all civil cases under process of the court, and for the collection of the same. Under these provisions the clerks of courts of records, under the supervision of the court, examine and audit the fees of all witnesses. Secs.
In civil actions the parties to the suit are present, at every step in the proceeding, watching its progress and guarding against unnecessary cost and expense,' not knowing upon whom it may fall. A plaintiff may be required to give security for the payment of costs, or, if unable to do so, may be allowed, in the discretion of the court, to prosecute his suit “without fees, tax or charge.” Sec. 2918. It is manifest that these provisions under which litigants are able to protect themselves against improper and unjust allowance of cost would afford no safeguard against extravagance, impositions and frauds in case the costs should be payable out of the public treasury. A more careful investigation in the allowance of costs in criminal cases and proper limitation upon the number of witnesses in whose favor costs should be taxed became therefore necessary. To meet these wants are the following sections of the statutes of 1889:
Sec. 4411. “The clerk of the court in which any criminal case shall have been determined or continued generally shall, immediately after the adjournment of the court and before the next succeeding term, tax all costs which have accrued in the case; and, if the state or county shall be liable under the provisions of this article for such costs or any part thereof, he shall make out and deliver forthwith to' the prosecuting attorney of said court a complete fee bill, specifying each item of services and the fee therefor.
Sec. 4420. “The judge and prosecuting attorney shall in no case tax the state or county with more than the costs of three witnesses to establish any one fact, nor with the costs of witnesses unnecessarily summoned and not examined, but the costs of such surplus or unnecessary witnesses shall, in the discretion of the court, be taxed against the party or attorney causing them to be summoned.”
The proceedings through which the witnesses, after properly making their claim, were to secure payment of their fees, out of the state treasury, were confined to these sections of the statutes. Now assuming, but not deciding, that each witness, or, as in this case, the assignee of the fees of a number of witnesses, has “such an independent right in the question of taxation of
The matter in issue, was one of fact, whether it were true, as stated in the return, that defendant allowed in the fee bill certified to the state auditor, “fees for at least three witnesses to establish any one fact in said cause.” If the determination of that question called for the exercise of discretionary, powers and judgment, then the action of defendant cannot be controlled by mandamus. Unless suchp'owers were intended to be conferred upon the judge of the criminal court, it is difficult to see any good reason why the supervision of the fee bill made out by the clerk should have been given to and so positively enjoined upon the judge and prosecuting attorney. The mere ministerial -act of calculating the amount of the mileage and per diem of a witness at rates fixed by the statute could have been done as well by the clerk. That is not all that is required by this statute. There must be a determination of what issues of fact were involved in the trial and the number of witnesses necessary, not exceeding three, to each fact to properly present those issues to the jury. The statute does not mean that the number of inde
On the trial it was insisted that there were as many as sixty independent facts in issue and therefore fees for at least one hundred and eighty witnesses should have been allowed. The court stenographer was examined as a witness, and called upon to enumerate the independent facts which were for determination. He ■commenced his enumeration as follows: That Kinney was killed; when Kinney was killed; where Kinney was killed; how Kinney was killed; by whom Kinney was killed, etc. Here we have five facts, which required according to the theory of relator the allowance of fees for fifteen witnesses. It may have been that three witnesses knew of and testified to each of these facts and possibly a number of others in the case. To avoid the allowance of fees for fifteen witnesses, when three were all that should have been paid by the state, was the purpose and intent of the statute. If no discretion was allowed these auditing officers, the statute would be wholly nugatory.
No witness has a right, independent of the statute, to enforce a claim against the state for fees for attendance upon the trial of a criminal case. The question of justice or injustice to the witness is not a matter for consideration. If he is given no right to look to the state, for compensation, then he has no right except it be against the party at whose instance he attended. When it was made to appear that the defendant and •prosecuting attorney decided upon the number and