State v. Hinkson

Opinion of the Court, delivered by Tompkins, Judge. The State of Missouri sued Hinkson in the circuit court of Washington county, when judgment being given for Hink-son, she sues out her writ of error to reverse that judgment. Hinkson was sheriff of Washington county, and was sued by the State on his official bond; and it is assigned as a breach, that he retained in his hands $594.74 of moneys belonging to the State. Hinkson set off a demand against the State of $659.75, for fees and charges for the keeping Edward Wideman, in the years of 1831 and 1832, who had been indicted in the circuit court of Washington county for murder. This allowance had been made to the person who was sheriff in those years, and it was admitted that Hinkson [354] WaS ent^ec^ to ^ie same credit on account of that allowance^ that the then sheriff was. This account had been presented to the auditor of public accounts, and he had rejected it, The'allowance to the sheriff for keeping a prisoner, that is, his board, is thirty-seven and a half cents per day; and if it be admitted that the prisoner was kept in confinement two years, the sheriff would not on that account have been entitled to the half of what has been allowed him. We must suppose then that a guard was employed by the sheriff, and that the pay of the guard is charged to the State. It cannot otherwise be conceived how his account should have been run up to such an amount. If this be the case it is clear that the State is not liable. ' The act of 30th of December, 1824, (see Digest, page 414,) declares that the expenses of a guard (when necessary) shall be audited and paid as the other county expenses. Each county is required to keep in good and sufficient repair a common jail. (See 1st section of same act, p. 410.) To the same purpose is the act of 1835. (See sections 1 and 23, of the act on pages 135 and 137 of the Digest of the year 1835.) It is the opinion of every member of this court that when an account is certified to the auditor as the law requires, it is only con-elusive on the auditor as to the correctness of the Statements therein made : But it is equally the opinion of each member of this court, that it is the right and duty of the auditor to decide whether the county or the State ought to pay the whole or any part of such account. He is the immediate agent of the State; and as such it is bis duty to guard its interests, and see that no improper demands are ° r r paid by the treasury. Should the auditor refuse to allow a account, the creditor of the State must resort to some tribunal having jurisdiction of the subject matter, Casgs have occurred in which the auditor has refused to a^ow accounts certbied by the supreme court of this State, but they do not appear to have been reported. The law at that time did not require all the cases decided to be reported, well recollect that a mandamus issued to the auditor, and that the court re-examined the account assisted by the adv*ce ^ie attomey general, and in all respects treated the [355] matter as an appeal from the decision of the auditor. The aw of 183? requires the clerk of the circuit court to out under the direction of the circuit judge and of the circuit attorney, a full statement of all the costs incurred in cases where the state is liable to pay costs; and this statement is required to be signed by the judge and circuit attorney, and the auditor is required to audit and adjust the same, and draw his warrant, for the amount by him allowed, on the treasurer. But it could not be for a moment supposed that the auditor ought to have allowed the charge for a guard to the jail, even though the accounts were certified by the judge, and circuit attorney. Their cirtificate was intended to ascertain the truth of the facts only, as whether such costs and charges were incurred. But if by negligence or mistake they charge to the State what the State is not bound to pay, it is the duty of the auditor to reject so much of such accounts as is improperly charged to the State. When an ac-che"state'¡s1St Auditor of1116 Public Ac-only tSconclu-.sive on the au-coiTCctuess of the statements therein made, and it is the or to decide or the county na^tiie whole ór'any part of It is his°duty to mands are í3tateby the Each co™ed to keep a §°[entjaii.,Suf" and there is Meeting the ¿j^eetforany guarding _ oounty The act declares indeed that all accounts so certified shall be a sufficient voucher for the auditors warrant, but it did not intend that he ought to draw his warrant, whether the costs allowed were legal or illegal. The judgment is reversed and the cause remanded.