Greene v. Smither

• Court: Kentucky Court of Appeals
• Writing for the Court: CLARKE, J.
• Citation: Greene v. Smither, 178 Ky. 742, 202 S.W. 485 (Ky. Ct. App. 1918)
• Decision Date: 22 January 1918
• Parties: GREENE, AUDITOR, v. SMITHER. GREENE, AUDITOR, v. FINLEY.

202 S.W. 485

178 Ky. 742

GREENE, AUDITOR, v. SMITHER.

GREENE, AUDITOR, v. FINLEY.

Court of Appeals of Kentucky.

January 22, 1918

Appeal from Circuit Court, Franklin County.

Two suits by Kelly C. Smither against Robert L. Greene, Auditor and by Lewis Finley against the same defendant. Judgment in each case for the plaintiff, and Greene appeals. Each judgment reversed, with directions to dismiss the petitions.

Chas H. Morris, Atty. Gen., and Jno. C. Duffy, Asst. Atty. Gen for appellant.

Leslie W. Morris, of Frankfort, for appellees.

CLARKE J.

The sole question presented by these two appeals is whether or not a clerk of the circuit court, under section 355, Kentucky Statutes, is entitled to charge and be paid out of the state treasury 25 cents for excusing each person summoned, but not accepted for jury service, upon a special venire ordered by the court.

The section of the Statutes referred to provides that circuit clerks shall receive for an "order excusing juror, for each juror excused, except regular panel, twenty-five cents." It is the claim of appellees that, under the authority of Auditor of Public Accounts v. Cain, 61 S.W. 1016, 22 Ky. Law Rep. 1888, they are entitled to charge 25 cents for each person excused, who is summoned for jury service, whether he is or not accepted and sworn as a juror except members of the regular panel. It was held in that case that circuit clerks were entitled to charge a fee of 25 cents for each person summoned and excused, regardless of whether he was accepted and sworn as a juror; but the question presented there, as far as we are able to determine from an examination of the record in that case, seems to refer only to such persons as were summoned for service upon the regular panel, although the language employed would seem applicable to those persons who were summoned upon a special venire as well. As that case was rested solely upon a contemporaneous construction, which seems to have been applied only to those who were summoned for service on a regular panel, the construction therein adopted, if followed at all, ought to be so confined and ought not to be extended and made to apply to those summoned but not accepted upon a special venire, especially since in appellant's answer in these two cases he pleaded that under a contemporaneous construction of many years' standing the statute had never been applied to, nor the fees allowed for, summoning persons for jury service upon a special venire who were neither accepted nor sworn; and this allegation of contemporaneous construction with reference to the fees involved here was not denied by appellees. So that, if the statute is to be construed here as it has been construed by executive officers and the circuit court, as appears from the Cain Case and the pleadings in the...