
    The State, on relation of Joseph Cooper, v. A. W. Armstrong, Auditor of Hamilton county.
    When it becomes necessary for the sheriff to furnish food, etc., to juries impanneled in capital cases, the court will allow the account for such expenditures a necessary incident to their powers, and will compel the county auditor, by mandamus if necessary, to draw his order upon the treasurer for the amount expended by the sheriff. '
    This is a mandamus, reserved in Hamilton county.
    The relator is the sheriff of Hamilton county. During the May term, 1850, of the supreme court in said county, said sheriff expended the sum of $174.47, in and about the boarding and care of two traverse juries, impanneled to try a person charged, in two indictments, with the crime of murder.
    This money was expended in obedience to a special order of the court, made necessary for the furtherance of the administration of justice in an important criminal proceeding in the county. The allowance and order of the court were duly presented to the defendant, who is the auditor of the county of Hamilton, with a request that he would issue an order on the treasury, which he refused to do.
    On these facts, a rule was granted by the court for an alternative mandamus to the defendant, in answer to which he states that he refused to issue the order on the treasurer be cause he had not been able to find any law of the state authorizing or requiring an auditor to issue the same upon the allowance of the court. A motion for a peremptory mandamus being made by complainant, the court reserved the motion for the advice of all the judges.
    
      Morris, Tilden, and Rairden, for relator.
    The question, for the decision of this court is, whether the court had the power to make the allowance and order in favor of the sheriff.
    
      If the court had the authority to make the allowance and order, then the amount allowed became and is a valid charge against the county, and the auditor is bound to audit the claim, and issue an order for the amount ■ on the treasury, and on refusal, we think it clear, that this court could compel the performance by mandamus. ,
    
    The writ of mandamus may be issued by this court in all cases to an officer, to enforce and compel the performance of a public duty enjoined by law upon him, and the orders, decrees, and judgments of courts of record in this state ; — and the use of the writ is not restricted, as claimed by the defendant’s counsel, to “ duties specially enjoined” upon him (the officer) by some provision of law.
    The only question, therefore, in this case is, whether the supreme court, in the exercise of its criminal jurisdiction, had the authority, in' preserving the purity of its administrartion, to compel the sheriff to perform the duties imposed on him in this case by the court; for.if the court had the right and authority to impose such duties on the sheriff, then it is clear that any expenditure by him in the necessary discharge of those duties, is a legal charge upon the county; and the auditor was bound to audit the same and issue an order on the treasury for the amount.
    Swan’s Statutes, page 107, sec. 12, provides, “ That all accounts, debts and demands, justly chargeable against any county, and which.are not directed by law, to be settled and allowed by some other person or tribunal, shall be examined and settled by the auditor of such county; and for all such just debts, accounts, and demands, settled and allowed by the auditor, or settled or allowed by any other person or tribunal, authorized by law to do so; and for all demands against the county, the amount of which is fixed by law, the county auditor shall issue orders on the treasury of such county,” etc.
    By this section, there are three classes of claims provided for. 1st. Claims, accounts, debts, etc., chargeable against the county, not directed by law to be settled and allowed by some other person or tribunal, shall be settled and allowed by the auditor; and when settled and allowed by him, he is bound to issue an order. His only discretion is, in ascertaining if the same is a just charge on the county; when that is done, he is bound to issue an order. In the other two classes of cases, the auditor has no discretion; he is merely an executive officer. When the accounts, etc., against the county are allowed and settled by any other person or tribunal, the evidence of the allowance is all he can look to, and he cannot inquire into the propriety or justness of the claim. It is sufficient for him that the proper tribunal has made the allowance ; and when the amount is fixed by law, the duty is equally imperative upon him. He cannot go into the inquiry, whether the service for which the charge is made was well performed, or. was worth the money charged.
    The laws of Ohio allow specific fees for jurors and witnesses, in criminal proceedings, and direct the same to be audited, taxed, and paid. See Swan, page 890 and 891, and see page 497. All claims of witnesses or jurors, under the above provisions, for services, must be settled and allowed by the courts; and yet the law is silent as to the tribunal by which the matter of claim is to be determined — the power must be implied, to be in the court from necessity; and the allowance or determination of the court, in those, as well as all other matters, which necessarily come within its control, must be the exclusive power to settle and allow the claim. The court may in all cases refuse to allow the claim of witness, juror, or other officer of the court, for services in court; and may control the action of its clerk in certifying any claim to the auditor, on motion to re-tax in case of costs and fees, or by striking out the allowance for good cause; and with all these matters, the auditor can exercise no discretion. The court alone can have control of all matters arising from judicial proceedings.
    We do not understand the defendant’s counsel as denying the power of this court, in a capital case, to do what was done in the Summons case by which the claim of the plaintiff.was incurred; nor can the exercise of such power, in our opinion, be denied to the court, without destroying entirely the purity of the administration of justice in criminal cases. It is a power inherent in the criminal courts, to protect and preserve the jurors from corruption and improper influences, and to exert the means to secure those ends; and the duty imposed on the sheriff, in the present case, was most clearly of that character. If the court had the power to enforce this duty to any extent upon the sheriff, then the expenditure in discharge of the duty became a just charge on the county treasury, and the court, and not the auditor, the proper tribunal to settle and allow the charge ; and whether reasonable, or in all respects just, is not for the auditor to question. The defendant’s counsel deny that there is any law authorizing this court to make a contract binding on the county, and therefore the county is not liable for this claim. Now we do not claim this charge by virtue of any contract under express statute, but that it is an obligation incurred by the county by the acts of its officers, in the discharge of a legal duty — and if it is a legal obligation, then the right to the relief claimed is clear.
    Finally, we claim that, whenever a duty is imposed on the courts of any county, which involves the ■ expenditure of money,- or requires the services of- others, the expenditure so made, and the services rendered, become a legal charge on the treasury of the county, and must be settled and allowed by such court. And such we understand to have been the practice throughout the state, from the commencement until now.
    The cases in 9 O. R. 25, and 12 O. R. 54, are authorities in favor of the remedy by mandamus, if the court had power to make an order binding on the county; and the argument that the amount of the claim should be liquidated before the remedy will lie, is not sound, because the amount had been so liquidated by the court itself. The whole case turns upon the point whether the court has, by implication, power to make such an allowance. It is not pretended that there is any statute conferring the power in express terms, but if it exist by construction, it is equally within the 12th section of the act cited, and the demand is one “ directed by law to be settled and allowed by some other tribunal. ”
    
      Fox, French, and Pendleton, for defendant.
    We claim that the auditor has no power or authority to make the 'order, and if he has not, this court has no authority to require him to do the act.
    The writ of mandamus in Ohio, as we understand it, is a command to the officer to whom it is directed to perform some public duty specially enjoined upon him by some provision of law.
    
    The question therefore is presented whether by any law of Ohio it is made the duty of the auditor to issue an order on the county treasurer, requesting him to pay such a bill as the one in question, incurred upon the order of the court. If there is such a law, he must obey it, if there is no such law, the court has no authority to compel him to do the act.
    The only statute we have on this subject is the act prescribing the duty of county auditors. Swan 105.
    By the 12th sec. of this act it is provided, “ that all accounts, debts, and demands justly chargeable against any county, and which are not directed by law to be settled and allowed by some other tribunal, shall be examined and settled by the auditor of such county, and for all such just accounts, debts, and demands, settled and allowed by the auditor, or settled or allowed by any other person or tribunal, authorized by law to do so, and for all demands against such county, the amount of which is fixed by law, the county auditor shall issue orders on the treasury of such county, payable to the several persons entitled thereto.”
    There are some contracts made by the county commis-sioners on which the auditor is not authorized to draw an order on the treasurer, until directed to do so by the com missioners. There are many cases in which the auditor is specially authorized to draw such orders: 48 Ohio Laws 100 ; 44 Ohio Laws 71; 45 Ohio Laws 32.
    We can find no authority in any law of Ohio for the audit- or to draw an order on the treasurer for this bill. If this is a debt justly chargeable on the county, the auditor is to allow it; but is this debt justly chargeable to the county ? If it is, it must be because some person authorized to contract for the county, has made the latter liable. We have statutes showing who are authorized to make contracts for and on behalf of the county, and we maintain no other persons can bind the county by contracting on its behalf. It is said this court has an inherent power to allow all necessary expenses attending the administration of justice, that it is necessary the court should have the power to order jurors to be kept together in certain cases, and that it must of necessity have the further power to furnish them with meat and drink while so detained, by the order of the court. If this court has such power, then every other court in the state has the same power, and it exists as well in civil as in criminal cases. For, if it is to be allowed on the ground of necessity, the court only can determine of that necessity, and its decision in fact must be held as conclusive evidence of the necessity.
    We maintain however, that there is no law authorizing this court to impose this obligation on the county. Wadsworth v. Wetmore, 6 Ohio Rep. 438.
    We maintain that the courts of this state have no more-power to order anything to be done at the expense of the county,, than the sheriff, or the clerk, or any one judge of the court. We maintain that all the powers which the commissioners, the auditor, the sheriff, the clerk, and the courts have on this subject are statutory powers, and if the statute has not conferred the power, the court has it not by implication. Such has been the whole theory of our legislation. And whenever the legislature has thought it advisable to authorize the courts to act, it has done so. Hence the law has declared that constables shall be allowed one dollar per day for every day’s attendance on the court, by order of the court, to be paid out of the county treasury. Swan’s Statutes 391.
    So the court of common pleas is authorized to make allowances to the sheriff of not more than $100 per year for services, (where the state fails to convict criminals,) and for other services not provided for in the fee bill. Swan’s Statutes 393.
    So the court is authorized to determine the number of guards to be allowed the sheriff to take convicts to the penitentiary. Swan 729.
    So the law declares what fees witnesses shall draw from the state and county treasury in criminal case’s, which are to be certified by the president judge. Swan 729.
    If power is inherent in the court to order all expenses of administering justice on the plea of necessity, then why legislate as to these items ? They are all necessary to the administrar tion of justice in one sense.
    The result of this examination of the statutes is, that where-ever money is authorized to be drawn out of the county treasr ury under this first branch of the 12th section, it must be some debt for which the county is justly chargeable. The county is not chargeable for debts created by the courts, unless in those cases particularly provided for by statutes, and this debt not being so provided for, cannot be allowed without violating the law, instead of enforcing it. ■
    And such we suppose to be the view taken by this court in the case of Wadsworth v. Commissioners of Portage county. 5 Ohio 188.
    In that case it was held that the county could not be made liable for the support of debtors confined in jail on civil process, and although it was made the duty of the sheriff to provide for prisoners, that did not authorize him to claim the amount of the debtors’ support from the county.
    
      And the court act on the idea throughout the whole case, that there can be no liability unless the statute has provided one.
    It is said that the court must be possessed of the .power of ordering jurors to be kept together in order to secure an impartial administration of justice. This might be a sufficient argument if addressed to the legislature, to induce that body to grant the power claimed to the county. But this court is not making a law, but carrying into execution the law already made. And there is no more necessity that the power claimed should exist, than that the court should have the power to say how many constables are necessary to protect it, and yet this is a statutory power, expressly conferred on the courts. There is no greater necessity than there is for feeding poor debtors. The latter no doubt ought to be fed, but has the law made the county liable for their feed ? That is the question. We claim that the court not being authorized to order the food, nor to audit the bill presented, cannot make a valid order on the auditor.
    As to the next class of cases mentioned in the 12th section, ' they are such as are allowed by any other person or tribunal authorized hy law to do so. We suppose this clause only embraces such cases as are particularly authorized to be brought before a judicial tribunal on a special statute, or such claims as have been prosecuted and recovered in a suit at law brought against the county.
    As in the first class of cases where a claim has been presented to the commissioners and they have refused to allow it, the cause may be appealed to the common pleas. Of course in a such a case the decision of the latter court would be authorized by law, and the auditor would be bound to give an order on the county treasury. 12 Ohio Rep. 57.
    So in an ordinary suit when decided against the county after a fair trial, the judgment would be by a tribunal authorized to render judgment, and the order ought tp be granted.
    Again, is this case proper for a mandamus? Supposing that it is proper for the court to order the sheriff to incur the expenses claimed, and that the county is liable because so ordered, does it follow from this fact that a mandamus ought to issue; or that this court ought to audit,-adjust, and-sett-le the bill, and that its adjustment ought to govern the auditor ?
    If any person has a claim against the county, and the county commissioners refuse to allow it, he can appeal to the court of common pleas, whose decision binds the parties.
    Or we suppose the party might resort to his common law remedy, and recover like any other creditor. We suppose if the account had been presented to the auditor, and he had refused to allow the amount as claimed, but had offered to allow a certain amount, he could not be compelled by mandamus to allow more. Although if he had refused to act, the court could have compelled him to act, and allow what was right. 12 John. Rep. 415; 12 Ohio Rep. 57, Burnet v. Auditor of Portage county.
    
    But the refusal of the auditor to make a sufficient allowance would not prevent the creditor from commencing an action at law. And that would be the proper mode of asserting the claim now set up. If the court had the power to order the jurors to be supplied with food, etc., still the amount ought to be adjusted by the auditor or the county commissioners, or by a jury. We know of no instance wherein the supreme court is authorized to audit the accounts against the county. If the court can order a jury to be fed and kept in a separate room at a tavern, it does appear to us that the auditing of the accounts at least, might be left to the auditor, or to a jury, as in ordinary cases. We claim, therefore, that the account has never been presented to the auditor as it ought to have been. We deny the authority of this court to audit -the account, and we deny the power of the court to grant a mandamus to pay the particular amount claimed. And we insist that the creditor, if he has any just claim, can prosecute it by an ordinary action at law, and, therefore, a peremptory mandamus ought not to issue.
   Spalding, J.

There is no difference of opinion amongst our number, in respect to the justice of this claim, and tin-propriety of the expenditure by the sheriff, under the circum stances.

Indeed we would with one voice unite in advising the de fendant to audit and allow the account as a proper charge against the county of Hamilton, but we do not see the way clear to carry out the remedy by mandamus, as the law no where, in express terms, makes it the duty of the auditor to act upon the allowance of the court, in cases of this sort.

• A majority of the court, however, believe it to be a necessary incident to their authority, to make a provision for the sustenance and care of juries when called to administer the criminal laws of the state, in any county; and as the speediest way of re-imbursing the sheriff for money advanced by him for this salutary purpose, they will direct the county auditor to consider an account of this character, audited and allowed by the court, as “ a just demand against the county, settled and allowed by a tribunal authorized by law to do so.”

A peremptory mandamus will issue.

Hithcock, C. J., dissented.  