Public ledger. [volume] (Memphis, Tenn.) 1865-1893, 1880-04-05

| ~ NANhO0N AaJs NAa bAC OlalO pay VIZ
costs of prosecution and that the SAINT
be certified to the comptroller for pay,
ment. 1t also shows that a bill o.
costs, including not merely the
costs of prosecution, but the defend
ants costs was presented to the comp,
t%rOller, and that a warrant upon the
treasurer therefor was demanded, but
was refused.
To this petition for a mandamus
the defense set up by the comptroller
was two-fold: First. that the circuit
court of the United States had no
power to render the Judgment for
costs against the state Of Tennessee;
and second, that the court had no
power to enforce the collection of the
judgment for costs by mandamus, by
reason of the facts averred in the
petition, the defendant being an Off
Ger of the state, and the court having
no power to- control his action. For
these reasons the court refused to
grant the writ, and that refusal is now
assigned for error. We are not, how.
ever, called upon to consider them, in
view of the Iacts of the case as they
are made to appear.
Costs in criminal proceedings are a
creature of statute, and a court has
no power to award them unless some
statute has conferred it. By the
common law, the public pays no
costs. In England, the king does not.
and the state stands in place of the
king. This is the rule in the state Of
Tennes iee.-( Mooney VS.. the state, 2
Yerger, 57S.) But in that state stat
utes have changed the rule. The act
of 1927, chapter Sc (Hay & Cobb, 50,
enacted as follows: I'm all criminal
cases above the grade of petit lar
eeny originating in the circuit courts.
where the defendant may be acquitted
and in all cases where the defendant
may be convicted, and shall prove in
solvent and unable to pay the costs,
the same shall be paid out of the
treasury of the state" Before that
act, in cases Of acQuittal by che YER
dict of a jury, costs were to be adj
judged against the county. Tact of.
1873, oh. l36, sec. 81
The act of 1927 had no application
to costs in cases ended by a nolle
prosequi. But an act passed in 1893,
chapter 8, section 2, enacted that in
all prosecutions for o%ffenses ~subjecting
the offender to confinement in the
Jail and p%enitentiary house of the
state, in which a nolle prosequi shall
be entered, or the defendant or de-
PENDANTS in such prosecution shall be
otherwise discharged, the costs ofsuch
prosecution shall be paid by the state
in the same manner and under the
same provisions as in cases where the
defendant or defendants may be ac-
Quilted by the verdict of q jury. The
indictment against Phillips was such
a Ease. ~Conceding, then, that the costs
OF the pro ;ecution in that case we're
chargeable to the state, was the comp
troller bound to issue his warrant
for the bill presented to him? 1t is
made his duty by the law of the state
to examine and adjust all accounts
and claims against the state which
are by law to be paid out of the
treasury, and to warrants upon the
treasury for the sums which, upon
such examination and adjustment may
be found due from the tate.5(Ciyil
Code, section 207.) But the statutes
Of the state make some special pro
visions respecting costs. Before the
comptroller can issue a warrant for
their payment, a bill of fees and costs
must be presented to him in legal
form, and it must be shown that all
the preliminary requisites of the law
have been complied with.-(State VS..
Delap, Peck, 81 An examination of
the state statutes will reveal what
these preliminary requisites are.
Section 1868 (Thompson and Steger's
COmpilation), declares that the costs
chargeable upon the state or county
in criminal cases shall be made out so
as 10 show the specific items and be
examined and entered Of record and
certified to be correct by the court or
judge before whom the cause was tried
or disposed of, and also by the district
attorney. Section 5579 directs that
a copy OF the judgment and bill of
costs, certified by the clerk of the
court and by the encouragement and
judge, shall be presented to the comp
t%roller, ETC., y by the clerk
or some person authorized by him. in
writing, to receive the same, where
upon a warrant shall issue for the
amount. Provisions somewhat SINH
lar are found in sections 557l and
5572.
In the present case it does not ap.
pear that these prerequisites to a
c%omptrollers warrant had been com
piled with. The bill of costs had not
been taxed nor had it been examined
and certified by the circuit court nor
by the Encouragement or district
attorney, and it contained the costs of
the defendant, for which the state is
not liable.
Though, therefore, the costs of the
prosecution are undoubtedly a debt of
the state, for which the comptroller
may be compelled to draw a warrant
upon the state treasurer, the demand
made upon him blythe REALTORS was un-
authorized by law, and consequently
the mandamus was properly refused.
The judgment Of the circuit court is
affirmed.
This opinion shows that the United
States court may sometime proceed
to say what are a states liability and
direct by mandamus the payment of
the same. SALTUs MoHEGAN.
Joaquin Miller, the poet, was mar
ried in New York recently to Miss
| Abbie Leland. third daughter ne tbe