72 Mo. App. 651 | Mo. Ct. App. | 1898
Lead Opinion
This is a proceeding by mandamus. The alternative writ, after averring the election and qualification of respondent as sheriff of the city of St. Louis, states that one of its duties as sheriff is to attend upon all the courts of record in said city of St. Louis, at every term thereof, and that under the law he is allowed $3 per day, and $3 per day for each
“Now comes said defendant, and for answer to the petition herein, and as a return to the order to show cause why a writ of mandamus should not issue against the the defendant, respectfully represents and shows unto the court as follows:
“ ‘Defendant admits that plaintiff Troll is the regularly elected and qualified sheriff of the city of St. Louis, and that it is his duty as such to attendthe circuit court of the city of St. Louis, together with the other courts mentioned in the petition; that it is provided by law that the sheriff shall be allowed for his services and for the services of each deputy, not exceeding two, three dollars per day for each and every day (Sundays excepted) during the term of said court, but respondent denies that plaintiff attended each of the seven divisions of the circuit court of the city of St. Louis on fifty-four days during the December term, 1895, of said court, or that he was, or is, entitled to the sum of $1,134 therefor.
“ ‘Respondent admits that the account of plaintiff for said amount for said attendance was certified by the judges of said court, and by the clerk of said court, and was presented to him to be audited and that he refused to audit the same except as to $162, being $3 per day for fifty-four days of the session of the circuit court, and refused to audit $972 of said claim and account, being $3 per day for alleged attendance on six of the divisions of said court for said term.
“ ‘Respondent admits that there were funds sufficient to pay said account, duly appropriated by the municipal assembly, but avers that plaintiff is not entitled to more than $162 as aforesaid, which has been paid to plaintiff.
*655 “ ‘Respondent further shows unto the court that the circuit court of the city of St.' Louis is the circuit court of the eighth judicial circuit of the state of Missouri, and as such is only one court; that although there are seven divisions thereof, nevertheless it is but one court, and that plaintiff is only entitled to $3 a day for each and every day (Sundays excepted) that the circuit court of the eighth judicial circuit is in session during a term, and that it is manifestly a physical impossibility for plaintiff to be present, or in attendance upon, all seven divisions at all times or on all the days when said divisions may be in session.’
“Wherefore, having fully answered and shown cause, respondent prays to be hence dismissed with its costs.” .
The case was submitted to the circuit court upon the pleadings and the following stipulation, to wit:
“It is hereby stipulated and agreed for the purpose of a determination of this case that the sheriff, the petitioner herein, did not in person attend upon any of the seven divisions of the circuit court on any of the days during the December term, 1895, and February term, 1896, but that he attended by his deputy upon each of the seven divisions of the circuit court on each of the days of the December term, 1895, and February term, 1896.”
The circuit court ordered a peremptory writ, from which, after an unsuccessful motion for a new trial, Brown duly appealed to this court.
‘ ‘ Said sheriff shall, within ten days next after the end of each six months of his term of office, make and file in the office of the clerk of the circuit court of St. Louis city, an itemized statement, verified by oath, of all such fees, commissions, emoluments and expenses of his office for such period of six months; and such clerk shall note the filing of such statement upon the docket of the court in general term; and the court in general term shall, without delay, proceed to examine and settle with such sheriff his accounts of the fees, commissions, emoluments, and expenses of his office, and in such settlement shall carefully inquire into and charge such sheriff with all the fees, commissions, and emoluments of his office for such period; and in like manner inquire into the expenses of such office for such period; and disallow all such expenses as the court may find have been improperly incurred, and in such examination the court may compel the attendance of and examine witnesses, and compel the production of books and papers, as occasion may require; and such settlements, when made, shall be conclusive of the amounts of such fees, commissions, and emoluments, and of the expenses of such office.” By the expressed provisions of this section the settlement of the sheriff’s account by the*657 circuit court in general term is final and conclusive against the city of St. Louis, and binding upon all of its officers. The auditor is without right of authority to inquire into the correctness of the settlement; his sole duty is to issue his warrant for the amount shown by the settlement to be due the sheriff, and mandamus is the proper remedy to compel him to do so when he refuses to perform this duty.
With the concurrence of the other judges, the judgment will be affirmed.
Concurrence Opinion
(concurring). — There is a clear distinction between the attempted exercise of an unlawful jurisdiction and the erroneous exercise of a lawful one. * * * Thus in the case at bar, if the statute had imposed on the relator the duty of attending the circuit court of the city of St. Louis, and had failed to provide any compensation therefor, and the circuit judges in general term had nevertheless made an allowance for such services, that would have been an assumption of an umlawful jurisdiction, and hence the allowance would have been a nullity. If such had been the case, the appellant would have been justified in refusing to draw a warrant for the amount, and the courts could not have compelled him to do so. State v. Halladay, 70 Mo. 137; State v. Oliver, 50 Mo. App. 217; State v. Heege, 40 Mo. App. 650; State v. Buchanan, 41 Mo. 254; State v. Walker, 80 Mo. 610; Crouch v. Plummer, 17 Mo. 420. But the statute imposes the duty on the relator to attend the court, and it provides for his compensation therefor. The jurisdiction to determine the extent of his services and the amount to which he is entitled is vested in the judges of the circuit court in general term. In the discharge of these duties the circuit judges must construe and apply the statute and