THE STATE OF FLORIDA EX REL. MOSES GUYTON, CLERK OF THE CIRCUIT COURT OF JACKSON COUNTY, FLORIDA, PLAINTIFF,

v.

A. C. CROOM, AS COMPTROLLER OF THE STATE OF FLORIDA, RESPONDENT

Hocker, J.

(after stating the facts). — The following provisions of the constitution and of the statutes are involved in the consideration of the questions presented: Section 1 of Chapter 4121, laws of 1893, provides “that within four weeks of the commencement of any term of the Circuit Court in and for any county in this State, whether the same be a regular, special or adjourned term, the clerk of the Circuit Court of said county shall make an estimate of the amount necessary for the payment of jurors and witnesses to be paid by the State at said term of court, and shall forward such estimate to the Comptroller of the State, and at the time of forwarding such estimate the clerk shall make his requisition upon the Comptroller for the amount of such estimate, and the Comptroller shall have the power to reduce the amount if in his judgment the requisition is excessive.” Section 2 of said act provides : “Upon the receipt of such estimate, and the requisition from the clerk of the Circuit Court, the Comptroller shall endorse on the same the amount that he may deem necessary for the pay of said jurors and witnesses to be paid by the State, and the Treasurer shall transmit that amount to such clerk of the Circuit Court.” Section 3 provides for the apportionment of the appropriation among the counties, and where the amount appropriated is insufficient for its apportionment among the jurors and witnesses and for the giving of certificates showing the compensation still due. Section 4 provides that if the amount transmitted the clerk is unexpended, the residue shall be returned to the Comptroller. Section 5 provides that if the estimate by the clerk is insufficient he shall make a further requisition in the same manner as the original was made. Section 6 provides for triplicate pay rolls of every juror and witness to be paid by the State, the form to be prescribed by the Comptroller; that two of such pay rolls shall be forwarded to the Comptroller; that the Comptroller shall audit the same and draw his warrant on the Treasurer for the amount due therein, and shall pay over to the Treasurer such warrant, and the amount returned by the clerk of the court as provided in section 4.

Section 9, Article XVI, of the constitution of 1885, had not been amended when the foregoing act was passed, and was as follows: “In all criminal cases prosecuted in the name of the State where the defendant is insolvent or discharged, the State shall pay the legal costs and expenses, including the fees of officers, under such regulations as shall be provided by law.” This section was amended in 1894, and now reads as follows: “In all criminal cases prosecuted in the name of the State when the defendant is insolvent or discharged the legal costs and expenses, .including the fees of officers shall be paid by the counties where the crime is committed, under such regulations as shall be prescribed by law; and all fines and forfeitures collected under the penal laws of the State shall be paid into the county treasuries of the respective counties as a general county fund to be applied to such legal costs and expenses.” It is not contended by the respondent that there is any other provision of the constitution of 1885, relating expressly or by implication to the payment of witnesses before grand juries, or that there is in the constitution any inhibition against such witnesses being paid by the State. His contention, as we understand it, is that there is no statute law providing for the payment by the State of witnesses before the grand jury.

Section 2, Chapter 4130, laws of 1893, provides: “Witnesses duly summoned for the State shall receive for each day of attendance in the Circuit Court * * * one dollar for each day’s actual attendance, and five cents for each mile traveled,” etc.

Section 1, Chapter 4119, laws of 1893, provides: “That no person who voluntarily appears before the grand jury * * * shall be paid a per diem or mileage as a witness unless the grand jury finds a true bill in the case or cases about which such witnesses appeared to testify, or caused himself or herself to be summoned to testify.”

Section 3, Chapter 5114, laws of 1903, appropriates for the payment of jurors and witnesses before the grand juries of 1904, $70,000.

The first question which is presented is, does section 9, Article XVI of the constitution as amended in 1894, impose upon the counties of the State the duty of paying the per diem and mileage of witnesses who appear before a grand jury?

In the case of Craft v. State, 42 Fla. 567, 29 South. Rep. 418, this court held that under our judicial system a grand jury is an .appendage or adjunct to the Circuit Court, and that perjury committed before that body was a crime committed in a judicial proceeding as defined by our statute law, The phrase “all criminal prosecutions” occurs in the eleventh section of the Declaration of Rights, and we think it is perfectly clear that it does not there apply to investigations by a grand jury, because if it did it would give the accused the right to appear before the grand jury, to meet the witnesses against him face to face, and to have compulsory process for the attendance of witnesses in his favor before that body. It also requires that the accused shall be furnished with a copy of the indictment against him. Considering that the grand jury is simply an investigating and accusing body which determines whether a case shall be made and prosecuted, and which puts such a case into form and inaugurates a prosecution by presentment or indictment, we do not think that the phrase “all criminal cases prosecuted in the name of the State,” used in section 9, Article XVI,constitution of 1885, as amended in 1894, embraces proceedings before that body. The proceedings before a grand jury are ex parte on behalf of the State, and while it may be proper for a grand jury to examine all such witnesses as may be necessary to enable it to act reasonably, yet an accused person has no right to demand to be present, or have his witnesses before that body. 10 Ency. Pl. & Pr., 396; State v. Branch, 68 N. C. 186. We therefore, do not think that section 9, Article XVI, constitution, supra, imposes upon the counties the duty of paying the per diem and mileage of witnesses before grand juries.

The next quesion is, is there any statute law in Florida making it the duty of the State to pay the per diem and mileage of witnesses before grand juries? In construing the language “witnesses duly summoned for the State,” etc., of section 2, Chapter 4120, laws of 1893, we are aided in determining what is meant, by considering in connection therewith section 1, Chapter 4119, laws of 1893, these statutes being pari materia. It will be seen that this section is constructed upon the theory that witnesses before a grand jury are to be paid by the State, and it creates an exception to this rule. It is a legislative recognition of what is meant by the language “witnesses duly summoned for the State” in the second section of the succeeding chapter, and is a construction of that language, to the effect that it embraces witnesses summoned before a grand jury. We think this is a proper construction, and that witnesses before a grand jury are State witnesses, and entitled to a per diem and mileage, which is to be paid by the State.

The next inquiry is whether this proceeding is properly brought on the relation of the clerk of the Circuit Court. In Holland v. State ex rel. Duval County, 23 Fla. 123, 1 South. Rep. 521, it is held in the 6th headnote: “When a statute imposes a power or duty upon a board of officers and to execute such power or perform such duty it becomes necessary to obtain a writ of mandamus they may apply for the same.” We see no reason why this rule should not apply to the clerk of the Circuit Court whose duties and powers, as here attempted to be enforced, are conferred by law. 13 Ency. Pl. & Pr., 627.

It is next contended by respondent that Chapter 4131, laws of 1893, is in conflict with section 24, Article IV of the constitution. That section is as follows: “The Treasurer shall receive and keep all funds, bonds and other securities, in such manner as may be prescribed by law, and shall disburse no funds, nor issue bonds, or other securities except upon the order of the Comptroller, countersigned by the Governor, in such manner as shall be prescribed by law.” The contention is that said Chapter 4121 requires the Treasurer to disburse funds without an order of the Comptroller, countersigned by the Governor, and contrary to the provisions of the constitution. It is an established rule of construction of statutes that they will not be regarded as unconstitutional unless they are plainly so. This chapter, as before stated, in its first section, requires the clerk of the Circuit Court to make a requisition upon the Comptroller for the estimated amount necessary to pay jurors and witnesses to be paid by the State, at any regular or special term of the Circuit Court. The second section requires the Comptroller to endorse on such requisition the amount he may deem necessary for such purposes, and that the Treasurer shall transmit that amount to such clerk. The statute does not in terms call such an endorsement on the requisition by the Comptroller an order, nor does it require it to be countersigned by the Governor; but we think such an endorsement by the Comptroller, if countersigned by the Governor would amount to an order such as is required by the constitution, section 24, Article IV, and we can discover no reason why the Governor, in order to carry out the clear intent of the Legislature, should jjot countersign such an endorsement, unless in his judgment there were other sufficient reasons, independent of the defect of the statute, why he should not do so. As there is no prohibition in the constitution against such action on his part, and as he is the chief executive officer of the State, charged with the high function of seeing to it that the laws are executed, we are not able to discover in what respect such action would be an infraction of any constitutional duty. This Chapter 4121, laws of 1893, provides a special method of disbursing money by the Treasurer, and does not conflict with the general law, section 119, Revised Statutes of 1892, providing for warrants. We do not intend hereby to infringe upon any discretionary power which is vested in either the Governor or the Comptroller. We simply mean to say that construing the statute and the constitution together, the law can be executed and carried into effect without any infraction of the constitution by any official, and in such manner as to protect the Treasurer, and that, therefore, the statute is not unconstitutional.

The motion to quash the alternative writ is overruled, and the respondent is allowed until the 26th of July, A. D. 1904, to show cause why a peremptory writ should not then be issued.

Taylor, C. J., and Carter, Shackleford and Cockrell, JJ., concur. Whitfield, J., being disqualified, took no part in the consideration of this case.