THE COUNTY COMMISSIONERS OF DESOTO COUNTY, PLAINTIFF IN ERROR,

v.

A. U. HOWELL, DEFENDANT IN ERROR

Hocker, J.,

(after stating the facts.) Section 9, Article NYI of the Constitution of 1885, as amended in 1894 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.”

Chapter 4401 Laws of 1895, provides for the payment of costs by counties in criminal cases in the Circuit Courts and in Supreme Court, when the judgment is reversed or the prisoner discharged, and upon presentation of a certified copy of the judgment against a county for costs for the auditing and allowing the same by the County Commissioners, and for a warrant for the same on the County Treasurer. This statute does not apply to 'the present case, which was a proceeding before a County Judge.

Section 1, Chapter 5131, Laws of 1903, provides: “In all criminal cases prosecuted in the name of the State where the defendant is insolvent or discharged, the county shall pay the legal expenses and costs as is now prescribed by law for the payment of costs incurred by the county in the prosecution of such cases; Provided, That there shall not be more than (2) two witnesses summoned and paid to prove the same fact.” Chapter 4672 Laws of 1899, amends sections 1 and 8 of the act of 1895, which provides for the establishment of a fine and forfeiture fund in the several counties, regulates the payment of criminal costs, &c. Section 8 of the act as thus amended imposes on the county commissioners the duty of investigating accounts for costs, and give them authority to reject all or any portion of any account which is not a .valid claim against the county, and requires that they shall allow and pay costs only when they are just, correct and reasonable, and that they shall not pay any constructive mileage, or any illegal or unnecessary item or charge in any frivolous case.

It is established law in this State that when mandamus is resorted to for the purpose of enforcing a private right, the person interested in having the right enforced must be the relator, and must make his right appear. Florida, C. & P. R. Co. v. State ex rel. Town of Tavares, 31 Fla. 482, 13 South. Rep. 103. It is also established that the relator must show a clear prima facie, case. Puckett v. State ex rel. Johnson, 33 Fla .385, 14 South. Rep. 834, and cases cited.

We think it is clear that under the quoted constitutional provision before its amendment in 1894, construed by this court in Buckman v. Alexander, 24 Fla. 46, 3 South. Rep. 817, in connection with sections 11 and 14 of the Declaration of Rights, that a person accused -of crime is entitled to compulsory process for the attendance of his witnesses and that he cannot be compelled to pay costs except after conviction on a final trial. If he is acquitted or discharged' he is not liable for any costs; but if he has paid any taxable costs in such a case he is entitled to have them refunded under section 2988 of the Revised Statutes of 1892, and this would be his -right independent of this section. The amendment of section 9, Article XVI of the constitution shifted the duty of paying costs from the State to the several counties.

In the case at bar the relator does not show that he has any personal pecuniary interest whatever in collecting from the county of DeSoto the costs of the mileage and attendance of the witnesses who were subpoenaed and attended the trial before the County Judge on his behalf. He does not allege that he has paid them, and he affirmatively shows that he is not liable for them, because he was acquitted and discharged. He therefore does not show that he has any right to maintain mandamus. In the cited case of Buckman v. Alexander, the defendant was acquitted of a criminal charge in the Circuit Court. A motion was made in that case on behalf of his witnesses that the clerk be required to pay them their fees. The court in this case reviews the law including the constitutional provisions referred to, and concludes that the Circuit Court had authority to enter a general judgment for costs, in favor of movants, but could not direct an execution to be issued for their collection, and that their pajnnent must be made in accordance with the directions of existing statutes. The court in treating of those directions and regulations ©ays: “The State, departing from the ancient rule, undertakes to pay the costs of criminal cases prosecuted in its courts, where the defendant is insolvent or discharged; but that this liberality may not be made the source of abuse, the undertaking i® to be guarded by regulations of law. The regulations adopted may seem to be stringent and hard, but not for that reason, invalid; and would only be so where the effect would be to defeat the undertaking entirely, or to render its practically null.” We think these views are applicable to the existing stat utory provisions contained in amended section 8, Chapter 4672, Laws oí 1899. A general judgment of a trial court, fixing liability upon a county for the costs when a defendant is discharged or acquitted, is not a finality upon the question of such costs, but they are to be investigated, audited and allowed by the County Commissioners, in the exercise of a legal, and not arbitrary discretion, and the liability of a county does not become fixed as to the items and amount to be paid until the Commissioners have determined them to be legal, or they have been established by suit. If the Commissioners refuse to act they may be compelled to do so by mandamus; but if they have acted, and have erred, the remedy is not by mandamus, but by suit of the aggrieved party against the county. We do not think that the case made in the alternative writ independent -of the question of proper relator is one in which mandamus will lie. The county has the right to have the disputed facts determined by a court and jury.

The judgment sustaining the motion to quash the return i® reversed, and the case is remanded with directions that the proceeding be dismissed, at the cost of the relator. Taylor and Parkhill, JJ., concur. Shackleford, C. J., and Cockrell and Whitfield, JJ.. concur in the opinion.