concurring'. I do not attach much importance to the fact, that the fees of officers in criminal prosecutions, were not paid t>y the State from 1814 to 1857, for the reason that the State is a sovereignty, and such payments could only be made by some special legislation. Salaries were paid to Sheriffs instead of detailed fees.
In 1852, a new system was inaugurated. The “ expenses” in criminal proceedings were thrown upon the parishes and city, by the first section of the Act of 1852, and the second section of the same Act defined what was meant by “ expenses,” in saying, “ that the fees, salaries and expenses provided by this bill, to be paid by the local authorities, shall be fixed and regulated by said authorities ; and until the same be. done by said authorities, the fees, salaries and expenses, Shall remain as now fixed by law, and be paid by the local authorities’’
There, then, was new legislation and a declaration by the sovereign, that fees, salaries and expenses, were to be paid by the local authorities.
To aid the parishes in meeting the new burden thus imposed, the Legislature, the following year, granted the parishes and the city of New Orleans, all fines and forfeitures collected in the same respectively. Acts 1853, p. 295.
In 1854, a law was passed declaring the moneys collected for fines and forfeited bonds in the parish of Orleans, a special fund out of which “ all costs and expenses accruing in criminal prosecutions, in the First District Court of New Orleans,” should be paid. Acts 1854, p. 58.
In 1855, as is well known, the Legislature undertook to reduce to one body the previous legislation on many subjects, and in pursuance of this object, the Act of 14th of March, 1855, l'elative to criminal proceedings was passed, which uses the word “ expenses” in the same comprehensive sense as the first section of the Act of 1852. The sixty-eighth section, p. 161, is in these words: “ That all the expenses incurred in the different parishes by arrest, confinement and prosecution of persons accused of crime, their removal to prison, the pay of witnesses, jurors, &c., and all expenses whatever attending criminal prosecutions, shall be paid by the respective parishes, in which the offence charged may have been committed.”
Here again the word “ expense” is used in its usual sense, and is expressly declared by the lawgiver to comprehend costs and fees.
And in the following section, he reiterates the same definition as contained in the second section of the Act of 1852, and confers on the local authorities the same powers. See Acts 1855,161, secs. 68, 69.
Up to this point, the case presents no difficulty. But in 1855, in an Act, to define and regulate costs and fees generally, the Legislature, notwithstanding it had conferred upon the local authorities the power to regulate fees, &o., and bound them to pay the fees and costs of criminal prosecutions, gave, it would seem, to the Clerk and Sheriffs, (at least whenever it was to their advantage,) a cumulative mode of obtaining compensation, (which in some parishes would doubtless more than equal their fees,) by awarding the Sheriff one hundred dollars, and the Clerk fifty dollars. Acts of 1855, p. 168.
But whatever may have been the object of the Legislature in reviving the former provisions of law, at the same time it compelled the local authorities to pay .the fees and costs of prosecution, and gave them power to regulate the same, it cannot annihilate the plain provisions of the special Act relative to criminal proceedings.
The last named Act professed to treat directly of the subject matter in hand, and it compelled the local authorities to pay, under the term “ expenses,” the She*255riff's fees, viz, “ all expenses incurred by arrest, confinement, and prosecution of persons accused of crime, their removal to prison, the pay of witnesses, jurors, &e., and all expenses whatever attending- criminal prosecutions, and is thus a special Act on the subject. See St. Martin v. The City, ante p. 113.
Under these laws, the Sheriffs of New Orleans were paid their fees in criminal cases, from 1852 to the year 1857, and it was never pretended or supposed that the cumulative compensation of the Act of 14th of March, 1855, could deprive the Sheriff of the compensation explicitly given him by the Act to regulate criminal proceedings. Indeed, what compensation would $100 be to the Sheriff of the parish of Orleans for his fees in the criminal prosecutions ?
It is well known that the people of some of the parishes complained of the ’burden imposed upon them by this legislation. In 1857, therefore, the Legislature, using a term which it had so repeatedly defined, took upon itself, by the same terms, and by nearly the same words, the burden which it had previously imposed upon the local authorities.- Its language is :
“ That all expenses incurred in the different parishes in this State by arrests, confinement and prosecution of persons accused of crime, their removal to prison, the pay of witnesses, and all other expenses attending criminal prosecutions, except the pay of jurors, shall be paid by the State, upon the certificate of the Clerk and the presiding Judge of the several courts of this State.”
And whilst the State relieved the local authorities in this manner, it attempted, by a subsequent section, (which has been declared unconstitutional,) to withdraw from them the fines and forfeitures which had been granted to meet the burden.
It appears to me, therefore, that the fees of the Sheriff in criminal prosecutions form a part of the subject-matter confided to the Clerk and Judge to audit.
And I concur with my colleagues, that on any matter confided to them, their action is conclusive upon the Auditor of Public Accounts, and when they have once directed the fees of the Sheriff in criminal prosecutions to be paid, the duty of the Auditor is only ministerial, and he must draw a warrant for the same.