M. V. B. GILLETTE, v. JOHN SHARP
Gillette v. Sharp
M. V. B. GILLETTE, v. JOHN SHARP.
M. V. B. GILLETTE, v. JOHN SHARP.
Payment of Jurors’ Pees by Counties — Peremptory Statute. The act of 1871, relating to the fees of-jurors, and requiring the county auditor to draw his warrant on the county treasurer therefor, upon the certificate of the clerk of the court showing the amount due, (Stats. 1871, 56) is peremptory, and admits the exercise of no discretion on the part of the auditor.
The Latest Expression of Legislative Will, Tni! Law. Section 1 of the act of 1871, (Stats 1871, 56) requiring the auditor to draw his warrant upon the treasurer for jurors’ fees upon the ee tificate of the clerk of the court showing the amount due, conflicts, with evident intention, with sections 9, 10 11 and 12 of the act concerning county commissioners, (Stats. 1864-5, 269) ; and being the subsequent expression of legislative will, it overrides them to the extent of creating an exception, in favor of jurors, to the general rules requiring claims against counties to be audited as therein prescribed.
This was an application to the Supreme Court for a mandamus requiring John Sharp, the county auditor of Nye County', to draw his warrant on the treasurer of that county in favor of the petitioner Gillette for $28.50, for his fees and mileage as a juror at the August term, 1871, of the fifth district court. The questions involved were presented on an agreed statement of facts, in which the fact of the petitioner’s attendance as a juror, the distance of his residence from the court, the certificate of the clerk of the amount due, and the demand upon and refusal of the auditor to draw his warrant, were set forth. It was also agreed that the account had not been presented to, or allowed or acted upon by the county commissioners, nor presented to the auditor for allowance or approval. It was also agreed that at the time of the demand upon the auditor there was no money in the treasury of Nye County, and that there were then outstanding and unpaid audited and allowed accounts against the general fund in the sum of nine thousand dollars. Counsel further stipulated that if the writ should issue, it should designate the fund on which the warrant should be drawn.
Frank Owen and John Bowman, for Petitioner.
The act leaves no discretion to the auditor; for when an account is presented to him under the provisions of the act, he is commanded absolutely to draw his'warrant on the treasurer for the amount specified in the account. There being no funds in the treasury was no ground for refusing to draw a warrant as demanded. Mc-Cauley Tevis v. Brooks, 16 Cal. 11; Humboldt County v. The County Commissioners of Churchill County, 6 Nev. 30.
Gceorge JR. Williams, for Respondent.
The act of 1871 .does not wholly repeal sections 9,10,11 and 12 of the act relating to county commissioners, but repeals them, if at all, only so far as they conflict with it. It does not conflict with the portions of those sections which prescribe the duties of the county auditor. The act does not make jurors preferred creditors; their accounts should be presented to the county commissioners and county auditor for their approval, and paid in the order of their registration, the same as other accounts against the county, and out of the general fund.
By the Court,
Whitman, J.:
In 1871, the legislature passed the following act, amendatory of the statute of 1869:
" Section 1. Each juror summoned in the state, whether petit or grand juror, unless he be excused by the court from serving on the day he is summoned to attend court, shall receive three (3) dollars per day for each and every day he may be in attendance upon court, and fifteen cents per mile in traveling to and returning from court, all of which shall be paid out of the county treasury. The auditor shall draw his warrant on the treasurer for the compensation provided in this act, upon certificate of the clerk of the court showing the amount due." Stats. 1871, 56.
The main differences between the statute of 1871 and that of 1869 are, the substitution of the clerk's certificate for any and all other auditing or verification of the demand; and the positive requirement upon the auditor to draw his warrant, upon presentation of such certificate. In these respects it conflicts, with evident intention, with sections 9,10,11 and 12 of the act creating a board of county commissioners, (Stats. 1864-5, 259) ; and, being the subsequent expression of legislative will, must override them to the extent of creating an exception in favor of jurors to the general rules therein expressed.
As the direction to the auditor is peremptory and admits no exercise of discretion, and the agreed facts present no obstacle thereto, the mandamus asked should issue, directing respondent to draw his warrant upon the treasurer in favor of petitioner, for the amount certified by the clerk. What fund should be drawn upon, is for the auditor to ascertain in the proper exercise of his powers.
Let a peremptory mandamus issue.