
    The State, ex rel. Commissioners of Franklin County, v. Guilbert, Auditor.
    
      Employment and pay of expert witnesses — Section 1302-1, Revised Statutes — Bill of costs not to be paid out of state treasury.
    
    1. The compensation of expert witnesses for their services rendered under Section .1302-1, Revised Statutes (95 O. L., 282), is not costs that the statutes authorize to be paid out of the state treasury.
    2. The inclusion by the clerk of the court of common pleas of such compensation in the bill of costs of prosecution, and the certificate by the prosecuting attorney of the correctness and legality of such item, and its allowance by the warden of the penitentiary, do not make it the duty of. the auditor of state to draw a warrant for its payment.
    (No. 10536
    Decided December 17, 1907.)
    In mandamus.
    This is an original action in this court. The petition prays for a writ of mandamus directing the auditor of state to issue his warrant on the treasurer of state for the amount paid by the commissioners of Franklin county for the services of an expert witness in a case of murder in the second degree.
    It is averred in the petition, that on the trial, it appeared necessary to the prosecuting attorney to have the testimony of an expert witness; that a certain expert was subpoenaed and testified; that the expert presented a bill for his compensation; that the prosecuting attorney certified that the services were necessary; that the county commissioners allowed the claim, the trial judge approved it, the county auditor issued a warrant on the county treasurer for its payment, and that the , county treasurer paid it. It is further averred that the accused was convicted and sentenced to the penitentiary for life and to pay the costs of prosecution, and that thereupon a writ of execution against the property of the defendant was issued and returned by the sheriff “No goods, etc,” and that thereupon the clerk of the court made a complete bill of the costs in the prosecution and included therein the compensation paid said expert, and that the prosecuting attorney examined into the correctness and legality of each and every item therein charged and certified that each and every item was correct and legal, and it is averred that the bill of costs so certified was then .presented to the warden of the penitentiary, who allowed the same and certified such allowance, and that said bill, with such certificate of the warden, was then presented by the sheriff to the auditor of' state, who deducted the item for the compensation of the expert from the amount of the bill, and refused to issue a warrant for the payment of that item.
    The defendant has filed a general demurrer to the petition.
    
      Messrs. Webber, McCoy, King & Game, for relator.
    The compensation allowed an expert witness under Section 1302-1, Revised Statutes, when all the requirements of. that statute have been complied with, is a part of the costs in the case; and in a criminal prosecution is a proper item to be included in the complete bill of costs required to be made o under Section 7332, Revised Statutes, and to be paid by the state.
    This question involves the interpretation and construction of Sections 1302-1, 1306, 7332, 7333 and 7336, Revised Statutes.
    The very purpose of Section 1302-1, Revised Statutes; is to provide for the necessary payment of a necessary witness, and the necessary payment of a necessary witness is a necessary part of the costs of the action in which that witness appears.
    In case of a conviction for felony the justice of the peace, police judge or justice, mayor, marshal, chief of police, constable and witnesses shall be paid out of the county treasury and inserted in the judgment of conviction, so that except in capital cases the same may be paid to the county out of the state treasury. Section 1306, Revised Statutes.
    Now there is no distinction made here between an expert witness and any other witness. If he is a witness in the case he must be paid out of the county treasury. And expert witnesses are not excluded because they are to receive special compensation for their special services. According to this statute, the costs of witnesses shall be paid out of the county treasury, and inserted in the judgment of conviction, so that the same may be paid to the county out of' the state treasury.
    The word “costs” has a certain definite meaning as used in Section 7332, Revised Statutes, and in criminal proceedings.'
    Costs in criminal proceedings are those charges fixed by law which have been necessarily incurred in the prosecution of one charged with crime, as compensation to officers for their services, and disbursements to witnesses for their testimony. Am. & Eng. Ency. Pr., Vol. 8, 955; Albertson v. Kriechbaum, Sheriff, 65 Ia., 17; State v. Belle, 92 Ia., 258.
    The word “costs” includes those charges fixed by law or rule of court which the record shows have been necessarily incurred in the prosecution of an action or proceeding. Swartzel v. Rogers, 3 Kan., 380.
    Where, a criminal cost bill, properly certified as to its legality and the correctness of the items included therein, is presented to the auditor of state, such auditor has no authority to arbitrarily strike from such bill an item of costs on the grounds that the item is illegal or that it is not a proper claim against the state. But it is his duty under such circumstances to refer such item to those who by law are charged with the duty of determining the correctness and legality of the items included in such cost bill. Section 7332, Revised Statutes.
    If the auditor of state has some power to- finally determine the legality of a cost bill or an item of such bill, the provision of the statute enjoining this duty upon the prosecuting attorney is a vain and useless formality.
    
      Mr. Wade H. Ellis, attorney general, and Mr. W. EL Miller, for defendant.
    No contention is made- by defendant as to the right of the prosecuting attorney to employ an expert witness, or the county commissioners to compensate said witness in such amount as they may deem just and proper. Defendant’s contention is, however, that such compensation when paid by the county commissioners may not be included in the cost bill to be paid out of the state treasury. While it is true that Section 1306, Revised Statutes, provides for the payment of witness fees out of the county treasury, it is equally true that Section 1302 fixes such witness fees at $1.00 per day and five cents per mile, and no more. The expert witness in a case may be subpoenaed, compelled to attend upon the court and there testify the same as any other witness and is entitled to the same fees as provided in Section 1302, and such fees may be properly taxed in the “bill of costs.”
    If, however, it is deemed essential by the prosecuting attorney to the due administration of justice to enter into a special contract with such witness by reason of some special or expert knowledge he possesses relative to the issues involved in the trial such employment may be made under the provisions of Section 1302-1, and the county commissioners may allow said witness such extra compensation for his service rendered the prosecuting attorney in the preparation and trial of the case, as they may deem just and proper, but there is no authority of law to tax such extra compensation in the “bill of costs” to be paid out of the state treasury.
    Section 7332, Revised Statutes, contains no provision for including in the complete “bill of costs” the extra compensation paid a witness for his services as an expert under Section 1302-1.
    The word “costs” has a legal signification and-includes only those expenditures which are by law taxable. State, ex rel., v. Commissioners, 14 C. C., 26.
    The only witness fees that may be taxed in the bill of costs to be paid out of the state treasury in criminal cases are those provided for in Section 1302, Revised Statutes.
    The auditor of state is made the chief accounting officer of the state and no money can be lawfully drawn out of the treasury except upon , his warrant; and it is required that he shall not draw any warrant on the treasurer for any claim unless he finds the same legal. Sections 153 and 154, Revised Statutes.
   Summers, J.

Counsel for relator contend that a bill of the costs made in a prosecution would not be complete without including the compensation of the expert; and that the law having imposed upon the prosecuting attorney the duty of examining into the “correctness and legality of each and every item therein charged,” it is neither the duty nor the privilege of the auditor of state to pass upon the legality of any item so certified by the prosecuting attorney.

Costs, in the sense the word is generally used in this state, may be defined as being the statutory fees to which officers, witnesses, jurors and others are entitled for their services in an action or prosecution and which the statutes authorize to be taxed and included in the judgment or sentence. The word does not have a fixed legal signification. As originally used it meant an allowance to a party for expenses incurred in prosecuting or defending a suit. Costs did not necessarily cover all •of the expenses and they were distinguishable from fees and disbursements. They are allowed only by authority of statute, and the word not having a fixed legal signification, it does not follow that the compensation of the expert, though an expense, is costs made in the prosecution. The following sections of the Revised Statutes are cited as supporting the contention of the relator.

“(1302-1) Sec. 1. (Employment and pay of expert witnesses.) When, in the examination or trial of any person accused of the commission of crime, or upon inquiry before the grand jury it shall appear to the prosecuting attorney or the assistant prosecuting attorney to be necessary to the due administration of justice to procure examination by chemical or other experts, or the testimony of expert witnesses, the county commissioners may, upon the certificate of the prosecuting attorney or his assistant, that such services were or will be necessary to the due administration of justice, allow and to pay such expert such compensation for his services as the court approves and' as the commissioners may deem just and proper.”

“Sec. 1306. (When costs in criminal case paid out of county treasury.) In all felonies, when the defendant- is convicted the costs of the justice of the peace, police judge, or justice, mayor, marshal, chief of police, constable and witnesses, shall be paid out of the county treasury and inserted in the judgment of conviction, so that, except in capital cases, the same may be paid to the county out of -the state treasury; provided in all cases when recognizances are taken, forfeited and collected and in which there is no conviction said-costs shall be paid out of the county treasury.”

“Sec. 7332- (Cost bill in case of felony to be made up and certified.) Upon sentence of any person for felony, the officers claiming costs made in the prosecution shall deliver to the clerk itemized bills thereof, who shall make and certify, under his hand .and seal of the court, a complete bill of the costs made in the prosecution, including any sum paid by the county commissioners for the arrest and return of the convict on the requisition of the governor, or on the request of the governor made to the president of the United States, which said complete bill of costs shall be presented by the clerk to the prosecuting attorney and it shall be his duty to examine into the correctness and legality of each and every item therein charged, and to certify to the same if correct and legal.”

“Sec. 7333- (Writs of execution to issue on sentence.) The clerk shall immediately issue to the sheriff of the county in which the iijdictment was found, and to the sheriff of any other county in which the convict has property, executions against his property for the costs of prosecution, which shall be served and returned within ten days, with the proceedings of the sheriff indorsed thereon, or the want of property upon which to levy the same, as the case may be; when a levy is made upon property under such execution, a writ shall immediately be issued by the clerk for the sale thereof; and the sheriff shall proceed to sell the property as in other cases, and make return thereof according to law, and after paying the costs of conviction, and of execution of sale, pay the balance to the person authorized to receive the same.”

“Sec. 7336. (Warden shall certify correctness of cost bill, etc.) When the clerk certifies on the cost bill that execution was issued according to the provisions of this chapter, and returned by the sheriff indorsed, ‘No goods or chattels, lands or tenements, found whereon to levy/ the warden shall allow so much of the cost bill and charges for transportation as he finds to be correct, and certify such allowance, which shall be paid by the state.”

However, Chapter 30, Title IX, Revised Statutes, relating to fees and costs, comprising Section 1302, and Section 1302:i, was not enacted as supplementary to that chapter, or as amendatory of, or supplementary to, Section 1302, but as an independent act. It is entitled: “An act relating to the employment and pay of expert witnesses” (95 O. L., 282). It was passed April 28, 1902, and first appeared in sectional numbering in Bates’ Annotated Statutes, 4th edition, published in 1903. There is nothing in the act authorizing this expense to be taxed as costs, or to be paid otherwise than by the county commissioners. Nor is it at all certain that the statute would have authorized the payment of this expense from the state treasury if the act had been passed as supplementary to Section 1302.

The next contention is, that the duty of the auditor of state is merely ministerial, while the duty enjoined'on the prosecuting attorney is, “to examine into the correctness and legality of each and every item therein charged, and to certify to the same if correct and legal,” and that this requires him to pass judgment upon the legality of the item and that the legislature must have intended that his determination should be binding upon the auditor of state. If so, 'why is it provided in Section 7336 that: “The warden shall allow so much of the cost bill and charges for transportation as he finds to be correct?” Section 153, Revised Statutes, provides that no money shall be drawn out of the treasury except on warrant of the auditor of state. And Section 154 provides that, “he shall not draw any warrant on the treasurer for any claim unless he finds the same legal, and that there is money in the treasury which has been duly appropriated to pay the same.” These provisions, that the clerk shall make up and certify the cost bill, that the prosecuting attorney shall examine into the correctness and legality of each item, and that the warden shall only certify what he finds correct, and that the auditor of state shall not draw a warrant unless he finds the claim legal, are cumulative safeguards of the public funds. And being such, the auditor of state is not concluded by the determination of the prosecuting attorney, and the expenses of the expert witness not being authorized to be drawn from the state treasury, the writ must be refused, and the petition is dismissed at the cost of the relator.

Petition dismissed.

Shauck, C. J., Price, Crew, Spear* and Davis, JJ., concur.  