
    Commissioners et al. v. State ex rel. Jones.
    
      Compensation allowed by court to attorneys assisting prosecutor— Section 7264 Revised Statutes — County commissioners may reduce such allowance.
    
    The compensation allowed by the court to the assistant prosecutor under section 7264, Revised Statutes, is by that section made part of the .costs ; and such allowance is not conclusive as against the board of county commissioners, but the same may be reduced by the board before allowance and payment, to such sum as in its judgment is just and reasonable.
    (Decided June 13, 1899.)
    Error to the Circuit Court of Fayette county.
    The second amended petition of Humphrey Jones, the relator, in the court of common pleas is as follows:
    “At the January Term,.1895, of the common pleas court of Fayette county, Ohio, three separate indictments for manslaughter were found and returned by the grand jury of said county, against one Alonzo B. Coit, who soon thereafter was arrested under said indictments and arraigned on said charges, and plead “not guilty” thereto, and put himself upon the country as did also the prosecuting attorney.
    Said cases were numbered 947, 948 arid 949, on the Criminal Docket of said county.
    On the — day of February, 1895, the said Alonzo B. Coit made an application to said court for a change of venue in said three cases to some adjoining county, alleging as grounds therefor, his inability to obtain a fair and impartial trial of said cases in the county of Fayette.
    On the second day of March, 1895, said court of common pleas of the county of Fayette, after full hearing upon said application for a change of venue, did find that a fair and impartial trial of said cases could not be had in said Fayette county, and did order and direct that the venue in said cases be and the same was thereby changed to the adjoining county of Pickaway.
    And the court did further order and direct that the said Alonzo B. Coit, the defendant in said pases be tried in said county of Pickaway, and did fix the amount of the recognizance the defendant should give for his appearance on the first day of- the next term of the said court of common pleas of Pickaway county, Ohio, at the sum of $2,500 to be given by the twelfth day of March, 1895, which was accordingly done, and said Coit was regularly recognized for his said appearance before said common pleas court of Pickaway county, at the next term thereof, to-wit, at the term beginning on the seventh day of April, 1895, and did so appear and attend upon said court in said Pickaway county.
    At the January term of the court of common pleas of Pickaway county, Ohio, to-wit: On the —■ day of----, 1895, and after the venue in said cases had been changed to said county, the said court of common pleas of said Pickaway county, Ohio, on the application of the prosecuting attorney of Fayette county, Ohio, and it appearing that the public interest required the same, did appoint this relator to assist the said prosecuting attorney in the trial of said cases in said Pickaway county on the said change of venue, and thereupon this relator accepted said appointment and entered upon the discharge of his duties thereunder.
    Said cases were of great public importance and interest, the legal questions involved therein were new and difficult and this relator, during the six months following said change of venue, spent a large amount of time, labor and expense in the investigation and examination of the same.
    Said cases were assigned for trial in said com- ■ mon pleas court of Pickaway county, Ohio, on the tenth day of October, 1895, and the trial of one of the same was then entered upon, and this relator, under the said appointment aforesaid, participated in and assisted said prosecuting attorney of the county of Fayette, in the trial of said case to a final determination, said trial occupying a period of four months time.
    The services rendered and expenses incurred by the relator in assisting the said prosecuting attorney of the county of Fayette, in the said prosecution and trial of said cases in said county of Pickaway, were and are reasonably worth the sum and amount of three thousand dollars ($3,000) and said court of common pleas, of said county of Pickaway, on the sixth day of November, 1896, said court being then held by the same judge before whom said case was tried, did allow and fix the compensation of the relator on account of services performed by him in the trial of said cases in said Pickaway county, at the sum of ($3,000) including expenses incurred by the relator.
    ■ On the ninth day of December, 1896, the relator presented to the defendants, the Board of Commissioners of Fayette county, Ohio, and to said E. B. Jaynes, N. B. Hall and E. E. Cocke rill, acting as such commissioners, at a regular session of said board, a duly certified copy of the order of said common pleas court of Pickaway county, fixing and allowing this relator said sum of three thousand dollars ($3,000,) as and for his compensa tion for services performed in assisting the prosecuting attorney of Fayette county, Ohio, in the trial of said cases in said Pickaway county, and requested the allowance and payment to the relator of the said compensation so fixed and allowed by the said common pleas court, and also presented to said T. J. Lindsey, as auditor, he being the duly elected and qualified auditor of said county, a duly certified copy of the order of said common pleas court of Pickaway county, so fixing and allowing said compensation to the relator, and demanded that said Lindsey as such auditor, draw a warrant on the county treasurer. in favor of the relator in payment of said compensation, but the said auditor conspiring with said commissioners to deprive the relator of said compensation, refused to draw a warrant in favor of the relator for the amount thereof.
    The said defendants, E. L. Jaynes, N. B. Hall and E. E. Coekerill, then and there in violation of their duties as such commissioners, and the said T. J. Lindsey, as such auditor, in violation of his duties and without any legal excuse, and ever since have refused to draw a warrant for said amount in favor of relatpr, or to allow and pay to this relator the said compensation, although requested by this relator so to do.
    Wherefore the relator prays that a writ of mandamus issue commanding said board of' commissioners of said Fayette county, to allow and pay to the relator the said compensation so fixed and allowed by the said common pleas court of Pickaway county, and commanding said auditor to draw his paper warrant for the same in favor of the relator, and for all proper relief.”
    To this second amended petition the commissioners and auditor, defendants below, demurred, on the ground that the said petition does not state facts sufficient to constitute a cause of action against said defendants.
    The court of common pleas sustained the demurrer, and the relator not desiring to amend further, a final judgment was rendered against him.
    The circuit court reversed the judgment of the ■ court of common pleas and remanded the cause to that court for further proceedings according to law.
    Thereupon the commissioners and auditor filed a petition in error in this court seeking to reverse the judgment of the circuit court, and for an affirmance of the judgment of the court of common pleas.
    
      Post <& Reid, for plaintiffs in error.
    Literally speaking under the provisions of section 7264 two tribunals are provided for fixing the compensation of the attorneys appointed to assist the prosecutor — the trial court and the' county commissioners, but such was not the intention of the legislature. It intended to follow the general statute, 7196, and the true construction to be placed upon section 7264 is that the commissioners shall allow and pay Such compensation as the court approves so that it will be in harmony with section 7196, and the legislation upon the subject, be uniform.
    The court is to allow and the commissioners are to allow and pay such compensation.
    The writ may be issued to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust, or station.
    It may require an inferior tribunal to exercise its judgment, or proceed to discharge its judicial functions; but it cannot control judicial discretion. Code section. 569; 26 Ohio St., 369; Shepherd v. Commissioners, 8 Ohio St., 354.
    We contend that the board of county commissioners have a right-of discretion as to the amount it could order paid to the relator.
    The board of county commissioners will not be , compelled by madamus to allow and pay any specific sum. Ohio ex rel. v. Com., 40 Ohio St., 331.
    The statutes 7264, says the compensation of the attorney appointed to assist the prosecuting attorney, shall be allowed and paid by the commissioners of the county in which such indictment was found. It does not differ materially from section 7196. Allow, means to approve of, to sanction, to permit, to consent, to. Anderson’s Dictionary of Law, page 51.
    In every statute where the court appoints an attorney to assist the prosecuting attorney, or to defend an indigent prisoner, the compensation is made payable on the allowance of the county commissioners. The policy of our legislature has been to vest in the commissioners a discretion as to these claims. Formerly the practice was for the court to allow, and the auditor to pay them. Trustees v. White, 48 Ohio St., 586. Gerke v. Com., 26 Ohio St., 364; Handy v. Com., 1 Disney, 263.
    Under their statutes the Supreme Court of Indiana has held that the order of the court in auditing and allowing the costs and. expenses enumerated upon a change of venue is not final and conclusive as against the county from which the change of venue is taken. Truant, Auditor, v. State ex rel. Com., 140 Ind., 414; 39 N. R. Rep., 513.
    The Supreme Court held that the court was not the final tribunal, and that the commissioners were vested with a discretion in the premises.
    
      In the earlier ease of the State ex rel. v. Miller, 107 Ind., 39 (7 N. E. Rep., 758), the Supreme Court held the contrary doctrine, but reversed their former decision in the 140th, and followed the Truant case in the later case of Montgomery County v. Tippecanoe County, 142 Ind., 679; 37 N. W. Rep., 626, and 14 N. W. Rep., 549; Union County v. Hyde, 37 Pacific Rep., 76.
    
      Humphrey Jones and Ilidy & Sanderson, for defendant in error.
    The sole question presented is, whether the amount which the court of common pleas fixes as compensation to an assistant to the prosecutor on a change of venue, is final and conclusive, or whether the commissioners of the county from which the case is sent, have the right to determine the amount of such compensation.
    There has never been a time since 1852, at which time the statute first authorized the appointment of an assistant prosecutor for special cases, when the commissioners did not have the final and ultimate control of the amount to be paid to the assistant in such cases. During the whole period the commissioners have allowed the compensation, and the court simply approved it.
    This court has a number of times taken the view that the commissioners were the sole judges in such cases. Commissioners v. Osborne, 46 Ohio St., 271; State v. Wallace, 24 Ohio St., 597; Ohio v. Commissioners, 20 Ohio St., 423; Trustees v. White, 48 Ohio St., 586.
    The act of May 1, 1871, is entirely unambiguous; there is no doubt under its terms that the court is the sole and exclusive judge of the amount to be paid to the assistant to the prosecuting attorney-on a change of venue, and the law stood as then enacted until the codification of 1880, and speculation as to the purposes and intention of the legislature cannot in the face of plain provisions of statute, be indulged in. Brower v. Hunt, 18 Ohio St., 341; Bruner v. Briggs, 39 Ohio St., 484, and State v. Beck, 25 Ohio St., 28.
    Nor can the court permit any idea it may hold of public policy to influence in the construction of statutes. Smith Bridge Company v. Bowman, 41 Ohio St., 52 ; Hurd v. Robinson, 11 Ohio St., 237.
    . Conjecture as to the legislative intent cannot be permitted to vary the plain and explicit language employed in a statute. Two acts similar in character, but different in material points, must be construed separately. Olds v. Commissioners, 20 Ohio St., 423.
    If we are correct in the position that under the act of May 1, 1871, the commissioners had the right to fix the compensation to an assistant to the prosecutor on a change of venue, it then becomes important to see what, if any, changes were made in this act by the codification of 1880 when it was carried into section 7264.
    It is well settled in Ohio that when statutes are revised, they are intended to have the same meaning, force and effect, and are to receive the same construction as the original acts, unless a contrary intention be clearly manifested. Williams v. The State, 35 Ohio St., 175 and cases there cited; State v. Jackson, 36 Ohio St., 286; State v. Commissioners, 36 Ohio St., 326; Warren v. Davis, 43 Ohio St., 449; Ebersole v. Schiller, 50 Ohio St., 702.
    
      We contend that the meaning of the act of May 1,1871, was not at all changed when it was carried' into section 7264 of the codification.
   By the Court.

Section 7264, Revised Statutes, at the time of the Coit trial read as follows: “When the venue is changed, the clerk of the county in which the indictment was found shall make a certified transcript of all the proceedings in the case, which together with the original indictment, he shall transmit to the clerk of the court of the county to which the case is sent, and the trial shall be conducted in all respects as if the indictment had been found in that county. The prosecuting attorney of the county in which the indictment was found shall take charge of and try the. case; and the court, on application, may appoint one or more attorneys to assist him in the trial, and allow such compensation as it deems reasonable; and the costs accruing from a change of venue, including the compensation of the attorneys appointed to assist the prosecuting attorney, and the reasonable expenses of the prosecuting attorney incurred in consequence of such change of venue, shall be allowed and paid by the commissioners of the county in which such indictment was found.”

The relator claims that under this section three items of expense on account of change of venue must be borne by the county in which the indictment was found: (1) The costs of the case, (2) the compensation of the assistant prosecutor, and (3) the reasonable expenses of the prosecuting attorney. That the first and third of these items must be submitted to the board of county commissioners and allowed before payment. So far he is right. But he contends further that the second item is not required to be allowed by the commissioners, but must be paid by them upon the allowance made by the court.

This last contention is not tenable. The statute treats the compensation of the assistant prosecutor as costs, and the allowance is made to him by the court so as to fix the amount of his compensation at a definite sum so that it may be carried into the cost bill, and then all costs, including his com pensation, are certified to the county where the indictment was found; and then the whole matter of costs, including his compensation and the expenses of the prosecuting attorney, must be submitted to the board of county commissioners for consideration and correction, and when the board is satisfied that the amounts are reasonable and just, it is its duty to allow and pay the same. If the commissioners think any of the items too large they have the right and power to reduce the same before allowance and payment.

The allowance made by the court is not binding or conclusive as to the commissioners, but is only for their information as to the court’s opinion as to the value of the services rendered, and to so fix the amount as to enable the clerk to make out and certify the costs. The court allows the compensation, the statute makes the compensation a part of the costs, and the commissioners then allow and pay the costs, and also expenses of the prosecuting attorney.

The circuit court erred in reversing the judgment of the common pleas, and the judgment of the circuit court will be reversed, and that of the common pleas affirmed. Judgment revended.

Williams, J., did not sit in this case.  