Robey v. Prince George's County

McSherry, C. J., delivered the opinion of the Court: This was an application to the Court below for a writ of mandamus to compel the County Commissioners of Prince George’s County, to take action on, and pay the relator certain ¹⁵⁷ accounts for sums of money claimed by him as fees due for services rendered by him to the public in his official capacity as sheriff of the county. The County Commissioners resist the payment on the ground that the accounts have not been approved by the Judges of the Circuit Court for that county. There is a statute, Sec. 2, Art. 36, Sup. Code, which enacts that “no account for officers’ fees by any of the several officers herein named, rendered for services to or in behalf of the counties of this State in this section named, shall be allowed by the County Commissioners thereof until said account has been submitted to and approved by the Judges of the Circuit Court for said county or a majority thereof; and no charge for officers fees shall be paid or allowed by the County Commissioners aforesaid, in any criminal case where jurisdiction to try, hear and determine the matter charged against the party accused has been conferred by law upon justices of the peace, but the County Commissioners may levy or pay to the officers performing service in such cases, such compensation as they, in their discretion, may deem right and proper.” And then the counties to which the section is made applicable are named, and Prince George’s is one of them.

The officers referred to in Art. 36 of the Code are attorneys, bailiffs, clerks of courts, commissioner of the land office, constables, coroners, criers, justices of the peace, notaries public, register of wills, sheriffs and surveyors. The accounts in litigation were not approved by the Judges to whom they were submitted, because the Judges were divided in opinion as to the constitutionality of the statute. Thus the County Commissioners declined to pay the accounts because of the refusal of the Judges to certify to them ; and the Judges refused to certify to or approve the accounts because they did not agree that it was their duty to do so. It is clear on the face of the statute that provision is made as to compensation for two distinct classes of services.

First, services which are specifically designated in Art. 36 of the Code and for the performance of which fees are prescribed. Secondly, services which are rendered in criminal cases heard ¹⁵⁸ before a j ustice of the peace in the exercise of a statutory jurisdiction and for the performance of which services the schedule of fees is not to apply. With regard to the latter it is obvious at a glance that the Judges of the Circuit Court have nothing to do; and the allowance or disallowance of compensation for these services depends in no way upon the approval or the disapproval of the Judges. Over the allowance of compensation for these services the County, Commissioners have exclusive control.

Indeed, the statute distinctly declares that no charge for officers’ fees shall be paid or allowed by the County Commissions in criminal cases tried before a justice of the peace having jurisdiction to hear and determine the matter charged, but in lieu of the fees prescribed by the Code, the Connty Commissioners may levy for and pay to the officers performing those services such compensation as the County Commissioners may in their discretion deem right and proper. With respect to such services the schedule of fees is expressly abrogated, and in place of it the whole matter as to compensation is unreservedly committed to the disci'etion of the County Commissioners. It is pei-fectly clear that no mandamus will lie to compel the County Commissioners to levy or pay a particular sum as compensation for the services rendered in this class of cases. Whilst a writ of mandamus may be used to compel an inferior tribunal to act on a matter within its jurisdiction, it cannot control the exercise of that tribunal’s discretion.

In other words, the writ may be issued in such an instance to compel something to be done, but not to command what shall be done, In re Burtis & Graff 103 U. S. 238 ; Ex parte Newman 14 Wall. 152 ; In re Parsons, 150 U. S. 150 . Accordingly where fees are to be determined by County Commissioners mandamus will not lie to compel their allowance, State v. County Court, 83 Mo. 559 ; but it will lie to require the County Commissioners to act upon the claim made for such fees. With respect to the fees included in the first of the two classes hereinbefore indicated a different question is presented. It is expressly declared that no account for such fees shall be ¹⁵⁹ allowed by the County Commissioners until such account has been submitted to and approved by the Judges of the Circuit Court or by a majority of them ; and the question is, can the Legislature impose upon the Judges the duty of approving all these various accounts and make that approval a condition of their payment ?

In other words, is this precedent condition valid? Whilst the statute does not in terms impose this duty on the Judges, it does so in legal effect. The County Commissioners are prohibited from paying these accounts until they are approved by the Judges, and this is tantamount to saying that the Judges must approve them. Payment is made dependent on a condition, and that condition involves the doing by the Judges of an act, and hence the duty to do that act is necessarily imposed on the Judges.

Let us look for a moment at this provision of the statute and scan its scope and operation. In the counties which are included in the statute, the accounts of every attorney, every bailiff, every clerk, every constable, every coroner, every crier, every justice of the peace, every notary public, every register of wills, every sheriff and every county surveyor, in so far as those accounts contain charges against the county, are directed to be disallowed by the County Commissioners, though the services have been performed, unless the accounts have been approved by the Judges. The effect of this, if the legislation be valid, is to require the Judges to examine these accounts and to pass upon them. Now, it is obvious, that before a Judge can approve an account he must know that the account is accurate.

Whether an officer is entitled to be paid by the county a particular fee in a given case, depends on his having rendered the service charged for; because the law fixes the amount of the fee and his right to receive it can only arise after he has done the service. It comes to this, if the Judge must approve the account, he must examine into the facts to see whether the services have been rendered. To determine that question evidence of some kind must be adduced. Take, for illustration, the account of a justice of the peace.

The amounts which that ¹⁶⁰ officer may lawfully charge for issuing a writ, for issuing a summons for witnesses or for drawing a commitment are plainly set forth in the schedule of fees contained in Art. j6 of the Code; but before the Judges could approve such an account they must know whether the services have been rendered, and they can only know this after evidence has been adduced to show it. They must then go into an inquiry of fact, perhaps require the attendance of witnesses from remote sections of the county and thus in reality become mere auditors for the County Commissioners. Is this the performance of a judicial function which the Legislature may lawfully impose upon the Judges? It is not alone the mode in which a thing is done that determines the character of the thing.

The Legislature may inquire by evidence into the expediency of enacting a particular law; but the enactment of the law thereafter would be no less an exercise of legislative power, because preceding the enactment a distinct judicial function had been exercised in deciding upon the propriety of enacting it. So a Court which has no legislative power may, in the administration of justice, prescribe rules having the force of statutes, but adopted in virtue of its inherent judicial power. Though the auditing of an account involves an inquiry into the accuracy of the items which make up that account and therefore requires an investigation as to whether the services charged for were actually rendered, this function is not a judicial function when imposed upon Judges and when it is to be performed by them in the ex-parte method prescribed by the statute. The fact that an examination of evidence has to be made, which examination is similar to the examination which would be made were the function strictly judicial — were it a proceeding between parties — cannot make that function judicial when it is merely a means of ascertaining the correctness of an account chargeable against the public.

If a Judge may be lawfully required to examine each item of the numerous accounts of the various officers specified in Art. j6 of the Code, he would be forced, in discharging the duty of auditor for the County Com ¹⁶¹ missioners, to neglect-his real judicial functions. It must be borne in mind that the duty to approve these accounts is not a duty required to be performed in a judicial proceeding. In a suit between the officer and the County Commissioners for the recovery of these fees, the Judge would act judicially upon precisely these same matters ; but the statute undertakes to impose on him when there is no judicial proceeding, the duty to audit these accounts, though the County Commissioners are just as able to investigate them as the Judge is. The 8th Art. of the Declaration of Rights ordains: “That the legislative, executive and judicial powers of government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said departments shall assume or discharge the duties of any other.” Can a Judge, who exercises the functions of the judicial department, be required to assume or discharge the duties which pertain to