Dissenting Opinion.
Poché, J.I cannot concur with the opinion of the majority in this case.
The writ of mandamus is not a writ of right, and must not issue in doubtful cases.
It cannot issue against political corporations, such as police juries, when the duty required of them implies the exercise of judgment and discretion, hence, it cannot issue to a police jury to compel the payment of a specific sum of money not judicially ascertained, and finally adjudicated upon contradictorily with the corporation. In the case of the State ex rel. J. D. Houston vs. City of New Orleans, where relator was asking for a writ of mandamus to compel the payment of fees due him in criminal cases, our immediate predecessors held that the approval of such bills by the clerk and the judge of the court was not conclusive of their correctness against the city, and recognized the power of the latter to protect itself- against the illegality or error of such approval, and the opinion concluded that, in a case where the relator’s claim had not been acknowledged by a final decree of a competent court, it cannot be enforced by mandamus.
This rule is so well established that it is not gainsayed by the majority of the Court in this case.
But it is held that under section 2776 of the Devised Statutes, providing' for the mode of paying expenses in criminal prosecutions, the claim of Dr. Postell, as expert in the case of the State vs. Baker et al. *1360having been approved and ordered to be paid by the judge, the objection of the parish authorities to pay such claim, under an approval which is conclusive and equivalent to a decree of a competent court, becomes merely a ministerial duty, which can be enforced by mandamus.
It is in this conclusion that I humbly differ with my learned brothers. I hold that such an approval is binding upon the parish in so far only as it does not appear upon its face to be made without authority of law, or in direct violation of law.
In this conclusion I am borne out by numerous decisions of this Court, as well as by reason. If the bill on its face showed that it was to reimburse jthe ¡accused for the expenses incurred by him in his defence, such as the employment of counsel, or for the bribery of witnesses, no one would claim that such a bill, duly approved by'the clerk and by the judge, would be conclusive against or binding upon the parish authorities, and no couft of justice would enforce the payment of such a bill of eosts by mandamus or otherwise.
As stated by this Court in the case of Parker vs. Robertson, 14 An. 246, “ As the certificate is the evidence of the exercise of a special and limited jurisdiction, it must show upon its face a case within that jurisdiction.
“ If, for example, the certificate of the olerk and judge show upon its ‘ face that it was for fees in civil suits,’ payment might be refused * * ‘because there is no law empowering the judge and clerk to certify them in order to have them paid by the State.’”
The same doctrine was recognized in the case of Fitzpatrick vs. City of New Orleans, 27 An. 457, and in State ex rel. Barrow vs. Fisher, 30 An. 517. Now, in the case at bar, the record fails to show that Dr. Postell was summoned or testified as an expert; the only, reference to him as an expert, being in the ex parte order of the judge, fixing his compensation as such.
But be that as it may, I am aware of no law in this State authorizing the judge of a court to fix the compensation for services rendered by witnesses as experts in criminal prosecutions, and I, therefore, maintain that the act of the judge fixing such compensation, being unauthorized by law, is not binding upon the parish.
The law regulating the payment of expenses incurred in criminal'. prosecutions is to be found in the Revised Statutes of 1870, sections 1042 and 2776, which are identical, and both provide that such expenses, including specifically the pay of witnesses, shall be paid by the respective parishes in which the offence charged may have been committed, the same to be paid by the parish treasurer after an account thereof shall be duly certified to be correct by the clerk and the presiding j udge thereof; and section 3946, which provides that “ witnesses in all criminal *1361prosecutions shall be paid one dollar for each day they may be detained on the trial of such cause,” etc. As the law thus fixes and restricts to one dollar a day the compensation of all witnesses in all criminal prosecutions, the question presented is, therefore, where did the District Judge find any law authorizing him to fix the compensation of the witness, Dr. Postell, at ten dollars a day, because he testified as an expert ? If, without warrant or authority of law, he can increase the compensation of a witness in a criminal prosecution from one dollar to ten dollars a day, what can prevent him from increasing such compensation to one hundred dollars or more ? And yet we are told that his action in such a ■case is final and conclusive and that the treasurer must be coerced by mandamus to pay such claim, without the right or power to contest the legality of the approval. I have sought in vain for, and I undertake to assert that there is no law in this State which makes a difference for the purpose of compensation, between ordinary witnesses and experts in ■criminal prosecutions.
Art. 462 of the Code of Practice authorizing the court to fix the compensation of experts, etc., refers manifestly and exclusively to civil suits, and not to criminal prosecutions, in which the payment of costs is regulated by other special and distinct provisions of law.
I therefore conclude that the certificate of the judge and clerk, allowing to Dr. Postell, a witness in a criminal prosecution, a compensation of ten dollars a day, is unwarranted by law, is therefore not conclusive on the parish, has not the force of a decree emanating from a competent court, is open to legal resistance on the part of the parish treasurer, and that therefore such a claim cannot be enforced by mandamus. One of the principal objects which prompted the Constitutional Convention to frame Art. 90, under which we have a supervisory control over all inferior courts, was to confer on this tribunal the means of shielding and protecting the people against the very abuses of power illustrated by the conduct of the District Judge.in this case, the repetition of which has greatly contributed to entail .on the parishes of this State the immense debt which weighs them down, and has created high taxation. A proper case is now presented and we should have applied the remedy.
Por these reasons I dissent from the opinion and decree in this case: