State ex rel. Keck v. Seibert, 130 Mo. 202

130 Mo. 202 | Mo. | 1895

Lead Opinion

Sherwood, J.

The decisions are conflicting on the point whether a witness who resides in another state is entitled to fees to his place of residence, he having been subpoenaed or recognized at the place of trial, or brought from his residence to that place to testify. In Howland v. Lenox, 4 Johns. 311; Melvin v. Whiting, 13 Pick. 184; White v. Judd, 1 Met. (Mass.) 293; Kingfield v. Pullen, 54 Me. 398, it was held that the travel fees of a witness not subpoenaed, could not extend beyond the state line although they attended from another state for the express purpose of testifying, and did testify.

In Bank v. Austin, 6 Wend. 548, it was ruled that a witness whose attendance is secured at the place of trial by subpoena, is not entitled to traveling fees. A like ruling was made in Crawford v. Abraham, 2 Ore. 163, no distinction being taken between witnesses attending on subpoena or on request.

A witness, then a resident of the state of Kansas, entered into a recognizance in that state to appear at a criminal trial. Subsequently having changed his place of residence to Massachusetts, he returned from that state, and, in obedience to his recognizance, attended the trial, and it was held that 'he could only recover mileage fees in going and returning from the state line. Board of Commissioners v. Chase, 24 Kan. 774.

In Hutchins v. State, 8 Mo. 210, it was ruled that a witness resident of another state, but recognized here for his appearance as a witness would be allowed mileage from his place of residence. A case is referred to in North Carolina by name as supporting this view, and one referred to in Louisiana without name as of the same effect, but what were the statutory provisions in those states in respect to such matters does not appear..

When that ruling in Hutchins’ case was made, however, which was in 1843, the Revised Statutes of 1835 were in force, and Judge Scott, who delivered the-opinion of the court, pointed out the danger that under the rule thus established and admitted “many unjust and unfounded claims will be preferred, and many abuses practiced on the state under its sanction.” The next legislature, which assembled for the revision of 1845, evidently heeded the warning contained in this adjudication, because at the revising session of that year, they provided respecting fees, “That this act, like penal laws, should be construed strictly.” Revised Statutes, 1845, section 29, page 504. And also enacted for the first time section 22, page 251, Revised Statutes, 1845, now in substance section 4412, requiring the strict examination of bills of costs, and the ascertainment “whether the services have been rendered for which charges are made, and whether compensation is expressly given by law for the services charged.”

At the next revision, section 23, Revised Statutes, 1855, page 453, was added, now section 4414, wherein the judge and prosecuting attorney were required to certify that in the fee bill presented, they had strictly examined the bill of costs, etc., as required in section 22.

This section, 23, remained the same in substance in subsequent revisions (Revised Statutes, 1865, page 867, section 18; Laws, 1874, page 26, section 18; Revised Statutes, 1879, section 2110 until) the last revision, when an addition was required in section 4414 to be made in the certificate of the judge and prosecuting attorney to the fee bill, “that the fees of no more than three witnesses to prove any one fact are allowed.”

These very stringent provisions relative to costs in criminal cases, enacted so soon after the adjudication in. Hutchins’ case, and increasing in stringency as the years go by, must be regarded as greatly modifying the adjudicatory force of that ruling.

When the legislature treats of process and its •service and of recognizances, it will be intended that such process can only be served within this state, and that such recognizances only possess obligatory force within its borders. Neither process nor recognizances can have any extraterritorial operation. State v. Pagels, 92 Mo. loc. cit. 308; State v. Butler, 67 Mo. loc. cit. 62; Board, etc., v. Chase, 24 Kan. 774. And it would be beyond the power of the legislature to authorize process to be effectual outside of this state. Wilson v. Railroad, 108 Mo. 588.

And it is well settled that all statutory bonds and recognizances entered into in the course of judicial proceedings and in accordance with the statute law of the forum where taken, executed in reference to such proceedings, are purely local in their nature, and their enforcement is bounded by, and confined to, the state where entered into, and outside of that sovereignty have no binding or obligatory force, and, consequently, can not be enforced in the courts of another state. Rorer, Interstate Law [2 Ed.], 72, et seq.

But the recognition of a recognizance as one of the' means of securing the attendance of a witness in this state stands on the same footing as a subpoena, section 5003, supra. Either method of service is valid, and “expressly authorized by law;” but for reasons already stated, the recognizances in this case could have no operation beyond the state line, no more than could a subpoena.

For many years this court, in obedience to strict statutory provisions, has sedulously maintained that no costs can be taxed except such as the law in terms allows. Shed v. Railroad, 67 Mo. 687; Crouch v. Plummer, 17 Mo. 420; State ex rel. v. Hill, 72 Mo. 512; Thompson v. Elevator Co., 77 Mo. 520; Williams v. Chariton Co., 85 Mo. 646. This is the rule elsewhere. Crofut v. Brandt, 58 N. Y. 108, and cases cited; City v. Meintz, 107 Mo. 611; State v. Oliver, 116 Mo. 188.

At common law no recovery of costs was ' allowable, and when statutes were passed allowing costs they were always strictly construed. Crofut v. Brandt, supra; Kneass v. Bank, 4 Wash. C. C. 106; Hart v. Fitzgerald, 2 Mass. 509. The right to costs being thus purely statutory, such right can have no existence- except the statute authorizing the item or items can be directly pointed out.

And the auditor acted properly in refusing to allow costs except to the extent stated as being justifiable, and for aught that can be seen a nonresident witness, recognized in this state to appear at a subsequent term, would still be entitled to his costs as aforesaid, in going and returning, notwithstanding he should return to his home in another state.

There are other reasons why the auditor properly refused to allow the fee bill presented; that bill was not certified according to law, in that the certificate to the fee bill does not state “that the fees charged are expressly authorized by law” but only that “compensation is given by law,” etc. Sec. 4414, supra.

1. The foregoing is the principal portion of the opinion as prepared and delivered in division number two of this court. That opinion was concurred in in its general result of denying the issuance of a peremptory writ, on the ground that J. L. Newhouse, the prosecuting attorney who joined the circuit judge in certifying to the bill of costs presented to the auditor for allowance, and who is one of the relators and alleged assignees of said bill herein, was not competent, by reason of interest, to pass on or certify to, said claim.

Owing, however, to the amended return made herein by the respondent, and to the answer of relators thereto, and to the demurrer of respondent to such answer, which changes have occurred since this cause was transferred to court in banc, some additional observations áre rendered necessary.

And in the first place as to the appointment by the order of the circuit court of Kellerman, it is alleged in the answer which makes the order of appointment and the fee bill a part thereof, that the circuit court of Laclede county “appointed E. B. Kellerman special prosecuting attorney to examine and pass upon the fees in controversy, and also ordered the clerk of said court to make a supplemental fee bill for said costs.” The order referred to states as the reason of such appointment- “that J. L. Newhouse, the prosecuting attorney of Laclede county, is an interested party in said fees.”

The section under which this appointment was made, is a section providing that: “If the prosecuting attorney and assistant prosecuting attorney be interested or shall have been employed as counsel in any case where such employment is inconsistent with the duties of his office, or shall be related to the defendant in any criminal prosecution, either by blood or by marriage, the court having criminal jurisdiction may appoint some other attorney to prosecute o,r defend the cause.” Sec. 642, R. S. 1889.

And upon this section this question arises: Did the circuit court have any authority or jurisdiction in the circumstances already related, to make such appointment? The concluding words of the section “tó prosecute or defend the cause,” it seems must give a negative answer to the question propounded, because there was no cause then pending to be prosecuted or defended.

The correctness of this position is further strengthened and additionally exemplified by section 644, providing that: “The person thus appointed shall possess the same power and receive the same fees as the proper officer would if he were present,” because it must be obvious that a prosecuting attorney, or one acting in his stead, receives no fees for discharging the duty of examining and certifying to a fee. bill. And this position gathers additional force from rulings made in analogous cases.

Thus it has been ruled that no authority exists in a probate court to appoint an administrator for the sole purpose of correcting a mistake made in the deed of a prior administrator. Grayson v. Weddle, 63 Mo. loc, cit. 539 et seq.; nor for the single purpose of making a deed which his predecessor had failed to make. Long v. Joplin, etc., Co., 68 Mo. 422; nor in a circuit court to call in the judge of another circuit merely to take the acknowledgment of a sheriff's deed in open court, the judge of the court being the grantee in such deed, Lewis v. Curry, 74 Mo. 49; nor has the judge of the criminal court of St. Louis power to call in the judge of another circuit to pass sentence on a prisoner, who had been convicted while the former judge was circuit attorney. State v. Shea, 95 Mo. 85.

These reasons and citations appear conclusive of an entire lack of power in the circuit court to appoint Kellerman for the single object aforesaid, and of the consequent invalidity of the certificate to the fee bill in question. It can not therefore be regarded as properly authenticated.

2. Other reasons occur which justify the respondent auditor in refusing to audit the fee bill under discussion.

The original fee bill which was before us on a former occasion and is before us now, as-well as the petition of relators, which answers in place of the alternative writ, and the so-called supplemental fee bill, disclose that most of the cost items set forth in the original fee bill appear in the present one.

Now, section 4419, Revised Statutes, 1889, declares that: “When the clerk shall send a bill of costs to the state auditor or county court, as provided in the next preceding section, he shall expressly state in his certificate that he has not at any previous time certified or sent a copy of the same bill, or part thereof, for payment: Provided, that if the clerk shall, by oversight or mistake, fail to include any costs properly chargeable against the state or county in any fee.bill, he may make out and present, as hereinbefore provided for making out bills of costs, a supplemental bill for the costs so omitted.”

In the present bill there is no express statement in the certificate thereto by the clerk “that he has not at any previous time certified or sent a copy of the same bill, or part thereof, for payment.” Nor is there any statement either in such alleged supplemental bill or in its accompanying certificate that any of the items of costs therein .mentioned, had failed of being included in a former bill by “oversight or mistake.”

It is plain from the provisions of the section just quoted, that, first, no items of cost can be presented a second time for adjustment to the auditor; and, second, that no items of cost which should have been included in a former bill, can be included in a supplemental bill, unless it be stated or certified with, or in, the subsequent bill that such items fall within the purview of the proviso. The statute does not intend, contemplate, nor authorize that the auditor shall be harassed by repeated presentations for allowance of the same items of costs; on the contrary, it industriously guards against any such recurrence.

■ Again it is averred in relators’ answer, “that they purchased all of said fees, and took written assignments therefor, which they tender in evidence, and are, therefore, now the only parties interested in said fees.” Such written assignments however, are not “tendered in evidence,” nor do they accompany the answer, nor if they did does it appear nor is it stated in the answer that profert of such written assignments was ever made to the auditor. Manifestly, he could not safely audit a claim for fees until satisfied that such claim had been transferred, and that the claimants were such transferees. This alone would constitute an insuperable objection to the allowance of relators' claim.

An additional reason occurs for the rejection of the claim in question. It stands conceded on the pleadings and record herein, “that J. L. Newhouse, the prosecuting attorney of Laclede county, is an interested party in said fees.” Now, when did that interest accrue? Was it prior or subsequent to his election as prosecuting attorney? We can take judicial notice of who were elected officers at the general election in 1892, and such notice embraces those who were elected to various official positions in Laclede county in that year. Among that number is J. L. Newhouse, then elected prosecuting attorney. 1 Greenl. Ev. [14 Ed.], sec. 6, and cases cited; Himmelmann v. Headley, 44 Cal. 213; Ragland v. Wynn’s Adm’r, 37 Ala. 32; Wade, Notice [2 Ed.], see. 1412. And where the judicial memory is at fault, it may resort to documents of reference.” 1 Greenl., supra. Turning to one of these, we find that J. L. Newhouse was elected prosecuting attorney at the general election in that year. Lesueur's Manual, 1893-4, 152.

Under the public statute which will also be judicially noticed, he entered on the duties of his office on the first day of January next after his election. R. S. 1889, sec. 632. Turning then to the alleged supplemental fee bill, we find that a portion of the costs or fees therein mentioned accrued at the January term, 1893. And as the answer of relators’ alleges that they are the owners of all the fees in question, it would seem that under the provisions of section 3751, Revised Statutes, 1889, Newhouse could not validly purchase any portion of the fees which accrued after his induction into office. As to that portion, cei'tainly no mandamus should lie so far as he is concerned, because mandamus requires the doing of a specific thing, something which can neither be diminished, halved, quartered, -nor otherwise subdivided. Besides, it was the duty of relators, especially after making that fee bill a part of their answer, to make it plain that none of their number was incompetent to become a purchaser or coassignee of the fee bill.

3. Furthermore, section 8606, Revised Statutes, 1889, makes ample provision for the proper settlement of any account against the state, authorizing the auditor to subpoena witnesses, compel their attendance and to examine them and others on oath, touching any matter material to be known in the settlement of such account in the same manner and by the same means employed by courts of record.

This section constitutes the auditor a quasi judicial officer for the adjustment of accounts presented him to be admitted. This being the case furnished of itself conclusive reason for denying relief by mandamus. We therefore deny the peremptory writ. Brace, C. J., Gantt, Burgess, Macearlane, and Robinson, JJ., concur in paragraphs 1, 2, and 3, but not in the first and prior portion of the opinion.

' Barclay, J., concurs in denying the writ.

SEPARATE OPINION.

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Dissenting Opinion

Gantt, J.

I dissent from so much of the foregoing opinion as announces that a nonresident witness duly subpoenaed in this state or having entered into a recognizance under the order of a court having criminal jurisdiction and complied therewith, is not entitled to his mileage, and, being convinced that if the opinion of my learned brother is to prevail it will change the universal practice in this state, I have thought best to state in a few words my reasons therefor.

Throughout our statutes governing criminal procedure the power of the courts to compel witnesses to enter into recognizances for their appearance at subsequent days and terms, is recognized. The witness is placed under the compulsory obligation to appear as effectually as if summoned, and the practice obviates the necessity of resorting to a second or third subpoena and thereby relieves the state and defendant of the cost of new process.

As to the objection that the process of the state can not be enforced beyond our borders, it is sufficient, I think, to say that, in this case, the state is in no position to raise that question. Her court did acquire jurisdiction over the witnesses when they appeared therein and did compel them to enter into the recognizance and the state certainly can not now be heard to complain that they obeyed this obligation to her. by appearing and testifying. Nor am I at all prepared to concede that the contractual obligation assumed by the witness is void.

Having entered into this obligation I see no reason why it should not be enforced by our own courts if the witness or his property can be found in this state, nor do I see why it would violate the policy of any sister state to permit the enforcement of a judgment obtained in this state on the breach of such a recognizance.

As stated by my learned brother this court in Hutchins v. State, 8 Mo. 288, in an opinion by Judge Soott, held that a witness residing in another state who was compelled to enter into a recognizance for his appearance before our courts was entitled to his mileage from his residence.in said state. The proceeding in that case, as in this, was by mandamus. That result was reached in that case though the statute under consideration did not apply in express terms to a witness who was recognized. Section 20, chapter on fees, Revised Statutes, 1835, p. 272. The court said: “And if a witness is recognized on the part of the state, and attends under the recognizance, he is within the meaning of the act, though he was not actually summoned.”

Section 5003, Revised Statutes, 1889, provides that “each witness shall be examined on oath by the court, or by the clerk when the court shall so order, or by the justice, as the case may be, as to the number of days of his actual necessary attendance under subpoena or recoqnimnce and the number of miles necessarily traveled.”

Section 5004 provides for a fee book to be kept by the clerk in which he is required to enter “the name of the witness, the number of days he has attended, and the number of miles he has necessarily to travel in consequence of the summons or recognizance.”

It seems to me that this subsequent legislation purposely conformed the letter of the statute to its spirit as interpreted by this court, instead of avoiding the construction placed by this court upon the statute before amended.

I recognize the rule that no fees are allowed unless expressly given by statute but I think the nonresident witness who regards the obligation into which he has entered with the state and attends and testifies is entitled to his mileage from his place of residence loth ly letter and spirit of an express statute, and I find nothing in the statute upon which bo base the distinction that his mileage should be restricted to our state lines.

Sound policy and justice alike dictate that the state should render some just compensation to a witness who attends our courts from our sister states in the same manner that we reward our own citizens for a similar service. I regard it as a matter of prime importance in the enforcement of the criminal law that the-statute should continue to be construed so as to place-the nonresident witness on the same footing in regard to his fees and mileage as a resident witness.

Brace, C. J., Burgess, Macparlane and Robinson, JJ., concur in my views on this point.