Stoll v. Board of County Commissioners

Potteh, Justice. The plaintiff brought this action in the district court to recover from the county of Johnson the amount of certain witness fees, the claims for which had been assigned to the plaintiff. The fees thus claimed are alleged to have accrued' to sundry witnesses who were in attendance upon the trial of a certain criminal prosecution originally instituted in the district court of the county of Johnson, taken on change of venue to the county of Laramie, and there tried; that claim for such fees were made to the district court of the latter county, that they were allowed by such court, and certificates therefor issued by the clerk of that court. The petition alleges the due presentation to the defendant, for allowance of an account for such fees, duly [236] itemized and verified, together with the certificates therefor so issued, and the disallowance of the same. A demurrer was interposed to the petition, on the ground among others, that it fails to state facts sufficient to constitute a cause of action. The other grounds of demurrer are not material to the questions before this court. Upon consideration of such demurrer, the district court reserved the case to this court for its opinion upon the following questions : First. Had the clerk of the district court of the county of Laramie any authority to draw an order, in the shape of court scrip against Johnson County, as the same appears from the petition of plaintiff in this cause, and are the certificates of such clerk sued on in this case void ? Second. Is Johnson County liable in the first instance for the costs of the criminal action mentioned in plaintiff’s-petition, taken on change of venue from Johnson to Laramie County, and there tried ? We will, for convenience, consider said questions in reverse order. It will be unnecessary to recite or discuss in detail the statutory regulations concerning changes of venue in criminal cases, and we will content ourselves by a reference only to the statute making provision for the payment of costs accruing after the change has been allowed. The last clause of Section 3276 of the Revised Statutes of 1887 controls this matter, and is as follows : (t The costs accruing from a change of venue shall be paid by the county in which the indictment Was found.” We are given to understand, although we have no brief' on behalf of defendant, that the ultimate liability of Johnson County is not questioned, but that the contention is that Laramie County is first required to pay snch costs, and then recover from the county of Johnson. It is the duty of the board of the county commissioners of each county to examine and settle' all accounts of the receipts and expenses of the county, and to examine, settle, and allow all accounts chargeable against the county, and when so settled- and allowed, to issue county orders. [237] therefor as provided by law. (Sec. 1801, Eev. Stat., 1887.) The requirements that the costs accruing from a change of venue shall he paid by the county in which the indictment was found, renders such costs chargeable against the county wherein the prosecution originated; they do not in any sense constitute a debt or liability of the county to which the- ease is taken, and it is difficult to see how it can be seriously claimed that such latter county, should audit, allow, or pay the accounts or claims arising out of any of the costs of such trial. The commissioners of such county are only authorized to audit and allow accounts which are .chargeable against it. The -commissioners, of Johnson County should not be held concluded, in the absence of a statute to that effect by any such allowance or payment by another county, if made, as the duty is imposed on them to audit and allow such accounts if chargeable against their county. The costs being payable by Johnson County, we are of the opinion that it is liable in the first instance. The first question requires our decision as to the authority of the clerk of the court of Laramie County to draw an order in the shape of court scrip against Johnson County, as appears from plaintiff’s petition, and whether or not the certificates sued on are void. It is only when an important or difficult question arises in an action or proceeding pending before the district court that the same is authorized to be reserved and sent to this court for its decision. If the question propounded does not arise in the action or proceeding, we are not required in a reserved case to express our judgment thereon, and for obvious reasons should hesitate to do so. An inspection of all the allegations of the petition convinces us that the cause of action sued upon is not the certificates of the clerk of court, but the claims on accounts themselves of the sundry witnesses for their respective fees for attendance and mileage, and we are quite clear that in the consideration and disposition of the demurrer it is not at all material whether the certificates referred to in the peti [238] tion are void or not; but it may not be improper for this, court to say that with respect to the first subdivision of the question, such certificates do not purport to constitute an order upon Johnson County, or any other county. Each one merely states that a certain person attended as a witness at the November, 1892, term of the court a certain number of days, and is entitled to two dollars per day therefor, and also mileage for a specified number of miles of actual and necessary travel, and that the same is payable by Johnson County. Indorsed on the back appears the following statement: “Any person purchasing this, certificate does so at their own risk, as this certificate is simply an unaudited bill against the county.” This in-dorsement clearly indicates the scope of the instrument, so far as the purpose of the oflScer issuing the same is concerned. It can not be said, in any sense, to amount to an order upon the county liable for the payment of the fees, specified therein. Its effect, at most, independently of any judicial proceeding determined from its own statements is as a voucher in the hands of the party entitled thereto, which may be accepted or not by the county liable as satisfactory evidence that the holder is entitled to receive the sum set out upon its face. It is probable that the possession of such voucher tends to facilitate the transfer or assignment of the claim, and, as was said in a case involving the forgery of such a certificate in Oklahoma Territory v. De Lena, 41 Pac., 618, “If the party presenting it and claiming a bill against the county, swears to it, the same as any other claim is subscribed to, it might be evidence that the party owns the claim. ” Again, although there is no statutory authority for the issuance of certificates to witnesses such as are referred to in the petition in this case, as counsel concede, and they may not be sufficient in themselves to constitute an independent cause of action, yet we think it can hardly be said that they are entirely void or of no force for any purpose. The statute expressly provides that the clerk shall issue such certificates to jurors (Rev. Stat., Sec. 1209), and with reference to239 witnesses Re is required to keep a record of their attendance and fees for which the county is liable (Sec. 1211), and to render to the county commissioners a statement, thereof (Sec. 1212). What force, if any, such witness certificates may have as evidence upon the trial of an action to recover the fees specified therein, is unnecessary and indeed improper for us to determine in this hearing, as such an inquiry is not, involved in the questions reserved, nor in the issues presented by the demurrer. It may be that the first question intends to suggest a-distinction between such instruments when issued to witnesses whose fees are payable by the county wherein the court is held, in attendance upon which the fees are earned, and where, as in this case, the attendance is upon court in one county and the fees are payable by another; but', in this respect we are unable to perceive any distinction with regard to the value and effect of the certificates. This sufficiently answers the reserved questions. Our opinion, therefore, upon the first question is that the certificates are not orders upon the county of Johnson, and do not constitute the cause of action sued On, and under the issues as presented by the demurrer, the force, effect, or value of such instruments are not involved, and such question is therefore not decided. Upon the second question our decision is that Johnson County is liable in the first instance for the costs of the criminal action mentioned in plaintiff’s petition, taken on change of venue from Johnson to Laramie County and. there tried. GRObsbbck, C. J., and Conaway, J., concur.