Board of Com'rs of Fremont County v. Wilson

• Decision Date: 25 September 1893
• Citation: 3 Colo.App. 492,34 P. 265
• Parties: BOARD OF COM'RS OF FREMONT COUNTY v. WILSON.
• Court: Colorado Court of Appeals

34 P. 265

3 Colo.App. 492

BOARD OF COM'RS OF FREMONT COUNTY v. WILSON.

Court of Appeals of Colorado

September 25, 1893

Appeal from district court, Fremont county.

Proceedings by John Wilson against the board of county commissioners of Fremont county for the recovery of fees as clerk of the district court. Plaintiff had judgment, and defendant appeals. Reversed.

Waldo &amp Dawson, for appellant.

Sam. P Dale, for appellee.

THOMSON J.

At a regular session of the board of county commissioners of the county of Fremont, John Wilson, who was clerk of the district court in and for that county, presented certain bills to the board, for fees due him as clerk for official services in behalf of defendants in certain criminal cases tried in his court. A portion of these bills, aggregating $118.75, were disallowed by the board of commissioners, and Wilson appealed to the district court. The case was heard in the district court upon the following agreed statement of facts:

"It is hereby stipulated and agreed by and between the above-named parties to this appeal that the following are the facts upon which this cause shall be submitted for the decision of said court, to wit: That, at the regular session of the board of county commissioners of said county of Fremont, in said state of Colorado, held in January, A.D.1892, certain bills were presented to said board by the appellant above named, who is, and then was, the clerk of the district court of the eleventh judicial district of the state of Colorado, in and for said county of Fremont. That said bills were presented in all respects in accordance with all of the provisions of law in regard to the presentment of such bills. That part of the items included in said bills were allowed and paid by said board of commissioners, and that other items included in said bills amounting, in the aggregate, to the sum of one hundred and eighteen dollars and seventy-five cents, ($118.75,) were disallowed by said board of commissioners. That the items so disallowed were as follows, to wit:

"In case No. 1,216. The People vs. R.C. McCoy. Ind. for murder. Defendant's clerk's costs at and prior to Oct. term, 1889, the time of the first trial, and for which no bill of same has heretofore been presented:

April, 1889. Entering appearance of 4 attorneys, at 20c ..	$ 80
Oct., 1889, Issuing 31 subpoenas for Oct., 1889, 60c ......	18 60
Filing 47 papers, at 12 1/2c ...............................	5 87
Affidavit for habeas corpus, and filing same .................	25
Issuing habeas corpus, and filing same .....................	1 12
Swearing 35 witnesses, at 12 1/2c ..........................	4 37
62 witnesses' affidavits, and filing same at 25c ..........	15 50
62 witnesses' certificates, at 75c ........................	46 50
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$93 01

"In same case, at October term, 1891, defendant's costs:

Filing two papers, (not subpoenas) .................................	$ 25
6 affidavits and filings for defendant ..............................	1 50
Oath to Elizor, and filing same .......................................	25
3 witnesses' affidavits, at 15c .......................................	45
3 witnesses' certificates, at 15c .....................................	45
Other items which cannot now be certainly separated from the bill ...	1 97
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$4 87

"People vs. Kasper Schaeferhoff. No. 1,340. Indictment for assault with intent to kill and murder. Fees at October term, 1891:

Entering appearance of attorney .............	$ 20
Swearing 4 witnesses, at 12 1/2c ...............	50
Issuing 3 subpoenas, at 60c ..................	1 80
8 witnesses' affidavits and filing, at 15c ...	1 20
8 witnesses' certificates, at 15c ............	1 20
Filing 4 papers for def't, at 12 1/2c ..........	50
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$5 40

"People vs. Frank Salvo. No. 1,341. Murder. Defendant's costs not in court order, Oct., 1891:

Entering appearance of attorneys ........................................	$ 20
Affidavits, certificates, and swearing 2 witnesses not ordered by court, 15c., 15c., and 12 1/2 c. each ...........................................	84
Some other items not now distinguishable ...................................	16
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$1 20

"People vs. Ben Boyer. No. 1,318. Murder. Defendant's costs, October term, 1891:

Entering appearance of attorneys, at 20c.................	$ 40
Filing 15 papers for def't, at 12 1/2c ....................	1 87
Issuing 12 subpoenas, at 60c ..............................	7 20
Certificates for 16 witnesses for def't, 15c...............	2 40
Affidavits and filings for 16 witnesses for def't, 15c ....	2 40
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$14 27

"Summary of disallowed costs:

People vs. Richard C. McCoy .....	$ 97 88
People vs. Kasper Schaeferhoff .....	5 40
People vs. Frank Salvo .............	1 20
People vs. Ben Boyer ..............	14 27
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Total ......................	$118 75

"That the services were rendered by said clerk for said defendants as above charged for at the request of said defendants, and that the several amounts charged are entirely unobjectionable. That said defendants Richard C. McCoy, Kasper Schaeferhoff, and Frank Salvo, and each of them, were at said October term, A.D.1891, convicted, and that in each and all of said cases it was made to appear in a lawful manner that said defendants, and each of them, were unable to pay costs, or any part of said costs; and that at the same term of said court said defendant Ben Boyer was acquitted. That in said cases of McCoy and Salvo application was regularly made to the court, under the provisions of section 1001 of the General Statutes of the state of Colorado, (section 1507, Mills' Ann.St.,) and under the provisions of section 5 of an act of the general assembly of the state of Colorado, entitled 'An act to amend sections 65, 123, 133, 197, and 313 of chapter 25 (the same being general sections 753, 811, 827, and 1001) of the General Statutes of the state of Colorado, entitled "Criminal Code," ' approved April 9, 1891, and in force on that day, (Laws 1891, p. 126,) for orders that certain witnesses be subpoenaed if found within the limits specified in said statutes; but that all fees of said clerk incurred by the process for such witnesses, and all fees incurred in connection with such witnesses so subpoenaed in accordance with such orders, have been paid, and are not included in the fees disallowed as aforesaid; and that said fees disallowed as aforesaid, (including the amounts above stated to be not separable from other items in the bills,) amounting to the sum of $99.08, are costs for the payment of which no order has ever been made by said court, or by the judge thereof. That in the cases of said Schaeferhoff and Boyer no application was ever made to said court, or to the judge thereof, for any order directing that any witness or witnesses be subpoenaed; and that no such order was ever made; and that the $5.40 in the Schaeferhoff Case and the $14.27 in the Boyer Case are costs of said defendants for whose payment no order of said court was made. That the only objection to the payment of said costs so disallowed as aforesaid, and every part thereof, is that, in the absence of such previous orders of court, made under the statutes above cited, no law of the state of Colorado requires them to be paid by said Fremont county or by its board of county commissioners; wherefore, on said facts, the opinion of this court as to whether or not said laws require the payment of said costs by said county is prayed.''

Upon the hearing, the court reversed the action of the commissioners, and gave judgment to the plaintiff for the amount of his claim. The board brings the case here by appeal. The plaintiff bases his right to judgment on section 699, Mills' Ann.St., (Sess.Laws 1889, p. 100.) That section, in so far as it affects this controversy, reads as follows: "The costs in criminal cases shall be paid by the county in which the offense was committed, when the defendant shall be convicted and shall be unable to pay them when the defendant is acquitted the costs shall be paid by the county in which the offense was committed, unless the prosecuting witness be adjudged to pay them." If the term "costs," as used in that section, be construed to mean the entire costs incurred, both for the prosecution and the defense in a case, the plaintiff's contention must prevail, and judgment was properly and rightfully rendered in his favor by the district court; but if, on the other hand, the term, as used, refers only to the costs incurred by the people in the prosecution, then the judgment is erroneous, and must be reversed. The language itself is indefinite. The word "costs" is not qualified or limited by any other language in the section, so as to clearly indicate the legislative intent; and if the section stood alone, if there were no other legislation affecting its subject-matter, there might be some difficulty in arriving at a satisfactory conclusion as to its meaning. At common law there was no recovery of costs either in civil or criminal cases. In civil suits each party to the controversy paid his own expenses. In criminal causes the costs made by the defendant, whether he was convicted or acquitted, if paid at all, were paid by him; the costs of the prosecution, no matter what the event of the trial, were unpaid. On the part of the state or sovereign there was neither payment nor recovery of costs. The right to...