State ex rel. Thomas v. Treasurer of Callaway County

Bliss, Judge,

delivered the opinion of the court.

On the 20th of October, 1868, the account of the members of the board of registration of the county of Callaway, composed of the relators, for expenses and per diem, amounting to $413.70, was allowed by the County Court, and a warrant drawn upon the treasurer of the county, which warrant was duly presented, and the proper indorsement made of “ no funds.” Afterward, when in funds, the warrant was again presented, and payment refused, upon the ground that the County Court had ordered him to pay only part of the warrant. The return to the alternative writ does not deny the auditing of the account, the issuing and protest of *230 the warrant, the subsequent receipt o£ funds and refusal to pay the warrant, but sets up as an excuse that, on the 18 th of November, 1868, the County Court made an order upon him to pay only $306 of the warrant, and that he is ready to pay that amount. The return also exhibits a copy of the adcount allowed, and shows that $306 covers the per diem of the board, and that the balance is for cash paid for expenses. The relators demur to the return. There is no doubt that County Courts may ordinarily vacate and set aside an order made during the term, upon notice to those to be injuriously affected by it. (Caldwell v. Lockridge, 9 Mo. 358 ; Price v. Jackson Co., 15 Mo. 433 .) But the order recited in the return was not made at the same term in which the account was allowed, neither does it reverse the original order, nor was any notice given to the relators. The original account was allowed, the warrant was issued; and at a subsequent term, without notice, the County Court makes an order on the treasurer to pay only a part of the warrant. We know of no authority for such a proceeding. It is unnecessary to suggest the remedy where a claim clearly illegal has been allowed, either corruptly or by mistake, and the term has passed — whether against the officer, or by appeal, or injunction, or in some other way. But where the allowance by the court has been regularly had upon.a claim they are required to pass upon, and the warrant has been drawn and presented, and the court adjourned for the term, the treasurer has but one duty; and no subsequent court, not of superior jurisdiction, can excuse him from the performance of that duty. There is no doubt of the jurisdiction of this court by mandamus against county treasurers who refuse to pay claims properly audited. They are ministerial officers, and can be compelled to perform their plain duties.

But in entertaining the application we will look into the olaim allowed by the court. It does not follow that, because it is the duty of the treasurer to pay, we will necessarily, in this form of action, order him to do so. If it should appear that the County Court has, by mistake or otherwise, audited an illegal claim — one which should have been rejected — we will leave the parties to such remedies as they may have by ordinary proceedings. (The People ex rel. Merritt v. Lawrence, 6 Hill, 244 ; The People v. *231 Edmonds, id. 472; The People v. Stout, id. 350; Baker v. Johnson, 41 Maine, 15.)

What, then, is- the character of the claim which the treasurer refuses to pay? The account allowed is among the exhibits, and consists, first, of claims for sundry sums due to the relators as members of the hoard of registration and review, at $3 per day; and that part of the warrant covering those services the defendant is willing to pay. The account also claims for cash paid by relators for necessary expenses, which were also allowed by the County Court. We cannot inquire into the care and discretion used by the court in auditing their expenses. We are bound to suppose it had the proper proof that the amount allowed had been actually expended. We can only consider its power to allow anything for the expenses of this board in the performance of its duties. And in deciding that question we need only look to the statute. Section 29 of the act of March 21, 1868 (Sess. Acts 1868, p. 138), provides that the supervisor and each member of the board of registration shall receive each $3 per day, to be paid by the county. Section 27 of the same act is as follows : “All expenses incurred by the board of registration and board of review, in pursuance of this act, shall he paid out of the county treasury.” There can be no doubt that the section intends to cover other expenses than the per diem of the members of the board. Without such a provision the act would be nugatory. It is not to be expected that these officers, for such a per diem, would pay the various and necessary expenses attendant upon their sessions. The $3 per day is their compensation. The other expenses, as well, must be paid by the county.

A peremptory mandamus will issue.

The other judges concur.