Hempstead County v. Harkness

• Decision Date: 21 January 1905
• Parties: HEMPSTEAD COUNTY v. HARKNESS
• Court: Arkansas Supreme Court

84 S.W. 799

73 Ark. 600

HEMPSTEAD COUNTY v. HARKNESS

Supreme Court of Arkansas

January 21, 1905

Appeal from Hempstead Circuit Court, JOEL D. CONWAY, Judge.

Reversed.

Judgment affirmed to those items; to all others reversed.

George W. Murphy, Attorney General, and W. M. Greene, for appellant.

1. No fee is allowed for recording indictments. 32, Ark. 45. Section 3306, Sandels & Hill's Digest, allows no such fee. No constructive fees allowed. 56 Ark. 581; 57 Id. 487; 32 Ark. 45; 70 Id. 607. The county not liable for fee for entering order of appointment by special bailiffs and deputy sheriffs, the sheriff being liable. 57 Ark. 487. He is only allowed 50 cents for certifying cost to the county court. 57 Ark. 487. No fee for indexing commissioners' accounts, petit jury orders etc., is allowed; but only a fee for indexing each case. Sand. & H. Dig., § 3306; 32 Ark. 45. No fees allowed in nol. pros. cases. 30 Ark. 431; 10 Ark. 467; 47 Id 80; 50 Id. 431.

James H. McCollum, for appellee.

1. The fee for indexing approved in 56 Ark. 253; 57 Id 487.

2. Costs of filing in cases dismissed by grand jury are clearly chargeable. Sand. & H. Dig., §§ 3306, 3333.

3. The law requires indictments to be recorded, and the county is liable. 39 Ark. 176.

4. In Logan County v. Trimm, 57 Ark. 487, it was held that fees for copying orders of court appointing commissioners of accounts, issuing summons for jury commissioners, and for orders in matter of grand and petit jurors were legitimate charges.

5. Fees in nol. pros. cases clearly allowable. Sand. & H. Dig., § 2316.

OPINION

HILL, C. J.

This is an appeal by the county from a contest over circuit clerk's fees. A preliminary question was raised by the Attorney General as to the appeal from the county court, but the record brought here by certiorari eliminates that question.

1. The first items are for indexing orders of court regarding commissioners of accounts, regarding the petit jury, and regarding the grand jury. The statute allows the circuit clerk: "For indexing each case, each item, 10 cents." Kirby's Dig., § 3400. Appellee relies upon Trimble v. Ry., 56 Ark. 249, 19 S.W. 839, and Logan County v. Trimm, 57 Ark. 487, 22 S.W. 164, to sustain these items. Trimble v. Ry. was a civil suit, and it was contended by the railroad that this fee for indexing was for each case each term. The clerk contended that it referred to every order made in the case which he was required to index. The court held that the clerk was required to make a complete index of the record, and that such index should point to every record entry, and that the clerk was entitled to the fee for it. While deciding that the clerk must index all these orders, it does not decide that such routine orders are charged against the county. It only reached to the question between individuals. Logan County v. Trimm, 57 Ark. 487, 22 S.W. 164, is not an authority to sustain appellee. On the contrary, that case is decisive against him. Chief Justice Cockrill said therein: "Again a fee is expressly allowed the clerk for every order entered by him; he enters an opening and adjourning order on every day of the court; but these orders are requisite only to the history of the judicial proceedings of the court making them. They are not incident to business which the statute indicates shall be at the charge of the county, and it cannot be said that the statute intends to cast the liability on the county clerk. The clerk therefore gets nothing for the service. It is a burden that accompanies the office." These orders are but part of the "history of the judicial proceedings of the court making them." Their entry and index are part of the burden of the office.

2. The next items are for filing "all and several" papers in various cases which went before the grand jury from justices' courts, and were dismissed by it. The clerk must file and present these papers. Kirby's Dig., § 2157. The fee therefor is sought to be justified in this clause: "For filing complaint, answer, reply, petition, demurrer, affidavit or other paper in a cause, 10 cents." Kirby's Dig., § 3490. The words "complaint," "answer," "reply," "petition," and "demurrer," are all well known legal terms, applicable to certain papers in civil causes. "Affidavits" may be filed in either civil or criminal causes, and "other papers" is, of course, a general term. It is an old and settled rule of statutory construction which confines the meaning of additional and general descriptive words to the class to which the preceding specific words belong. Eastern Arkansas Hedge Fence Co. v. Tanner, 67 Ark. 156, 53 S.W. 886; Matthews v. Kimball, 70 Ark. 451, 66 S.W. 651; Sedgwick, Stat. Const. (2d Ed.) 3 pp. 360, 361; Endlich, Interpretation of Statutes, §§ 400-407; Sutherland, Stat. Const. 268-276. This rule would confine "affidavit" and "other paper" to the specific class to which "complaint, answer, reply, petition and demurrer" belong, a civil suit. This rule is especially applicable to statutes regulating costs which are to be strictly construed against the party claiming fees under them. State v. Blackburn, 61 Ark. 407, 33 S.W. 529.

3. The next items are for recording indictments. It is argued that under the rule in Logan County v. Trimm, 57 Ark. 487, 22 S.W. 164, allowing fees to officers for services expressly required of them, this fee should be allowed; but that rule is limited in the Trimm case, and all others, to fees specifically provided for. Probably, the clause under which the clerk claims is: "For copies of bonds and papers for every 100 words, 10 cents." Kirby's Dig., § 3490. But whatever he may claim under, there is a specific fee for his services in this matter, and his compensation is necessarily limited to it. "For each indictment returned into court, 50 cents." Kirby's Dig., § 3490. This came from the act of 1875, and at that time the filing and preservation of the indictment was his only duty in regard to it for which he received this fee. In 1881 the General Assembly passed an act making it his duty to record indictments (Ki...