State ex rel. Dardenne v. Cole

The opinion of the Court was delivered by Bermudez, C. J. The object of this proceeding, which is for a certiorari and prohibition, is to have it judicially.declared, that a District Judge has no power, in a criminal proceeding before him, to determine: that certain witnesses, who testified in the case, did so as experts; that they are entitled to compensation as such; that such compensation is chargeable ex parte among the costs; that the parish in which the case was prosecuted is bound for such costs, and that payment of the allowance can be enforced by mandamus in his court. The District Judge has made an elaborate, learned and scientific return to justify his conduct. In the case of the State vs. Baker, indicted for an attempt to com [1357] mit murder, by attempting to administer broken glass in small quantities to one Shiff, it is stated that all the witnesses, who knew of the facts of the case were summoned by both parties, and that on the day of trial, Drs. Postell, Hiriart and Schwing, who had been subpoenaed, were sworn and testified. It is claimed that they knew nothing of the facts, and were heard as witnesses to express an opinion on a scientific question, which was, whether broken glass, administered to a person in his food, was poisonous or not. The court considered them as experts and, for their services as such, allowed each of them ten dollars as compensation, to be included among the taxed costs in the case. On refusal of the parish treasurer to pay these items, a mandamus was asked to coerce payment, but the question presented was not decided. The present proceedings propose to prevent such payment and to have the preceding orders of the District Judge avoided and set aside. The District Court for the Twenty-third Judicial District had jurisdiction over the criminal case and, necessarily, of all matters incidental to or growing out of it, particularly of the question of costs, which no other court could assume to determine for it. The accessary always follows the principal. Under the provisions of article C. P. 462, the court was specially empowered to determine in a civil matter growing out of the criminal proceeding, whether the witnesses had been heard as experts and what compensation they were entitled to receive. The complaint that the compensation was fixed and allowed in an ex parte proceeding, is not well founded. Had an account of the same been made and certified by the clerk and by the judge (which could have been, and is usually, done ex parte), it would have been the duty of the parish treasurer, under the terms of Sec. 2776 of the R. S., to have paid the same had he been in a condition financially to do so. Because the claim is not presented in that, but is established in a different and better form, a decree of court, it does seem that there should be no cause of complaint. On failure by the parish treasurer to pay, without sufficient cause shown, the proper remedy to enforce payment would be by mandamus. C. P. 834; 6 An. 68; 14 An. 225, 249, 289; 18 An. 196; 21 An. 352; 27 An. 168; 30 An. 517. . If the District Judge had a right, which we recognize, of deciding the question of remuneration, and, in his discretion, has allowed the compensation, he certainly had authority to entertain the mandamus proceeding, as judges possess the powers necessary for the exercise of their respective jurisdictions, even though the same be not expressly given by law. C. P. 130. In the case of State ex rel. Houston vs. New Orleans, 30 An. 82 [1358] in which the judge of the Criminal Court had issued a mandamus on the city to pay sheriff’s fees, the question of jurisdiction raised by the corporation was not even noticed by the Court. The Court reversed the judgment of the District Court making the mandamus peremptory, because of the special legislation found in Act No. 5 of 1870, prohibitive of mandamus proceedings against the city for the purpose of drawing money from the municipal treasury and, no doubt, also of other special recent legislation (Act 1877, No. 55, p. 86,) making the approval of the bill of costs in such cases only prima facie from conclusive, which it previously was. 14 A. R. 249, 225; 27 An. 168. A right to that process was distinctly recognized also in 30 An. 517, where the District Judge had approved bills for expenses in criminal cases due the sheriff. We consider that the proceeding before the District Judge is for a mandamus, although the petition be not in the name of the State on the relation, etc., and the name of the writ is not mentioned in the prayer, which is simply that an order be made commanding the payment, etc. It was not necessary that the petition be made in the name of the State. It is the writ that issues in the name of the State. The petitioner was not bound in his prayer to ask for a mandamus. He prayed for an order commanding. Those words cover the word mandamus, and determine the character of the action. The District Judge had authority to entertain the application and has jurisdiction over the demand so as to allow or disallow it, a thing which he does not appear to have done. 33 An. 498; C. P. 829, 834. Whether the District Judge has erred or not, in the exercise of the judicial discretion with which the 'law has vested him, is a question which in an application for a prohibition and certiorari in an unappealable case, we cannot consider. We have nothing to do in such case with the correctness of the rulings of inferior tribunals. Our judgment can be sought and obtained only in cases in which it is distinctly charged that there has been an usurpation of jurisdiction or that the forms of law have been disregarded and its requirements violated. 33 An. 257, and cases there decided. It may be that the District Judge has grossly erred in finding that the witnesses who were heard, acted as experts, not having been previously legally appointed for the purpose of serving as such, and that he was wrong in allowing them a compensation for their services. It is possible, in the abstract, that he intentionally acted in utter disregard of the facts and of the law, but we cannot presume here that he did. If such were the case, he, nevertheless, would have acted within the scope of his judicial authority. He may have abused his discretion; but for such wrongful use he is not now answerable to this Court. He may [1359] be amenable for it at the proper time and before the proper authority; but under no circumstance can we review, in this proceeding, the correctness of his findings and rulings. It may well be, also, on the other hand, when the mandamus proceeding shall come .up for trial, if the correctness of his previous orders is contested for patent errors, that he will permit the relators to establish their defense, acknowledge a mistake, if any was committed, and refuse the relief asked, but, with what he may do, or .will have done, we cannot presently deal. We merely decide, that he has jurisdiction over the proceeding brought to enforce payment of his previous allowance, and that we cannot now pass upon anything but the extrinsic correctness of the rulings complained of, and which, we find, were made in the forms pointed out by law. It is, therefore, ordered that the preliminary orders herein made be revoked, and that the petition for a prohibition and certiorari be refused at the cost of relators. Mr. Justice Poohé dissents.