
    The State ex rel. Rickey, Sheriff, etc., v. Coffin, Warden, etc.
    
      Costs Jor transporting convict to and from a court — No compensation to guard for time.
    
    1. It is the duty of the warden of the penitentiary under Sec. 7336, R. S., to allow and certify a cost bill which contains only such items of costs as the court has certified as accruing during the trial, and such additional items as are the proper expenses of transporting the :convict to the penitentiary.
    2. Guards of the penitentiary while engaged in taking a convict before the court which has issued a subpoena for him and there detaining him subject to its order, are engaged in the service for which their monthly compensation is fixed by statute: and no deduction can be made from such compensation because of their absence from the penitentiary while engaged in such service, nor can compensation of the guards for such service be taxed as costs in the case in which, such subpoena is issued.
    (Decided April 2, 1897)
    In Mandamus.
    The relator, who is sheriff of Scioto county, prays for a peremptory writ of mandamus to compel the defendant, who is warden of the penitentiary, to certify a cost bill delivered to him by the relator, with a convict, the costs not having been made on execution against the convict. The warden refuses to certify the bill for the reason only that the common pleas court had not allowed and certified as costs the amount of the compensation of guards of the penitentiary while engaged in taking before the common pleas court, and there detaining-, subject to its order, a convict who had been subpoenaed to testify.
    
      Henry Hannon, for relator.
    
      F. S. Monnett, Attorney General, for defendant.
   By the Court.

When a sheriff delivers to the warden of the penitentiary a convict and a bill of the costs in the case in which he was convicted, such costs not having- been made on execution against the convict, it is the duty of the warden, under section 7336, Revised Statutes, to inspect suc’h bill, to determine that it contains only such items as were certified by the common pleas court, and such further items as are the proper expenses of transporting the convict to the penitentiary. But he is without authority to review the action of the court as to the items of costs accruing during the trial.

When a subpoena has been issued under section 7200, Revised Statutes, for a convict confined in the penitentiary it is the duty of the warden, under section 7291, Revised Statutes, to take such convict before the court, issuing' such subpoena and there to detain him until he is discharged by order of the court, or to cause him to be so taken and detained. Guards of the penitentiary wno take a convict before such court in obedience to a subpoena are, while so engaged, performing their appropriate duties for which their compensation is fixed by section 7388-14, Revised Statutes, and no deduction from the monthly compensation so fixed by the statute can be made on account of their absence from the penitentiary while engaged in such service, nor can compensation to them for such service be taxed as co'sts in the case.

Peremptory writ allowed.  