Logan County v. Trimm

• Citation: 22 S.W. 164,57 Ark. 487
• Parties: LOGAN COUNTY v. TRIMM
• Decision Date: 08 April 1893
• Court: Supreme Court of Arkansas

22 S.W. 164

57 Ark. 487

LOGAN COUNTY v. TRIMM

Supreme Court of Arkansas

April 8, 1893

Appeal from Logan Circuit Court, HUGH F. THOMASON, Judge.

Judgment reversed and cause remanded.

Anthony Hall for appellant.

1. The county court is prohibited from allowing any officer any fee not specifically allowed such by law, and in no case can constructive fees be paid by counties. Mansf. Dig. sec. 1414. "Specifically" is defined "definitely," "particularly." Webster's Dict. The fee must be allowed in direct terms. Mansf. Dig. sec. 3285, does not include any fee for "swearing jurors to qualifications," "swearing witnesses to testify," "swearing witness to claim for attendance," etc. It says: "for administering each oath, 10c," but to claim that this authorizes the claims for swearing jurors to qualifications, or witnesses to testify or to attendance, would simply be to allow constructive fees.

2. Section 3235 allows no fee for certifying costs to county court, and to allow as "a certificate and seal 50c," is an allowance of constructive fees.

3. No fee is prescribed or allowed for "entering and swearing" grand jury and petit jury, by the statute. These duties are required by sections 2075 and 4007, but no fee is pointed out for these services. The fee "for swearing and entering each jury 50c," provided for by section 3235, refers to each jury sworn in each State case or vacancy in regular panel filled in a civil suit, under section 4009. This fee should be taxed as costs in each case.

4. The fees for issuing certificates of attendance to grand and petit jurors are constructive fees. Section 3265 requires the clerk to give jurors a certificate of their attendance, but no fee is provided for such services. This is true also of the fee for certificates, summons and copies for commissioners.

5. No fee is prescribed for orders in the matter of grand jury petit jury, jury commissioners or special bailiffs. An officer is not entitled to a fee for every act. He can only collect when the law makes provision to pay him. 25 Ark. 236. Persons who serve the public must be content with the compensation provided by the plain letter of the law. 32 Ark 45; 47 id. 442; 55 id. 387. Sec. 3287 Mansf. Dig. applies to services performed by clerks for individuals, and not to services for the county. 32 Ark. 45.

Evans & Hiner for appellee.

1. 19 S.W. 839, settles the question as to the charges for administering oaths to witnesses, jurors, etc.

2. The clerk is allowed 50c for "certificates and seal." Section 2345 requires him to certify the costs in criminal cases. Every certificate is under his hand and seal of the court of which he is clerk. He is clerk of a court armed with a seal to attest the verity of his acts.

3. Witnesses can get their fees only by swearing to their attendance. Mansf. Dig. 3270. The statute indicates that the per diem is net, and the fee for swearing should be charged as costs in the case. Mansf. Dig. sec. 3273.

4. The items for "entering and swearing each jury," for "each certificate and seal," "each summons," "each order," "each oath," are specifically allowed by the statute.

5. The fee bill is applicable to cases where the county pays the costs. 47 Ark. 404.

OPINION

COCKRILL, C. J.

This appeal involves the consideration of divers questions in reference to the allowance of fees by the county court to be paid by the county to a circuit clerk for services performed by him in his official capacity.

Observance of a few general rules deducible from the statutes and decisions will serve to simplify the questions.

1. Three things must be found to concur before the county court is authorized to allow a claim against a county in favor of an officer for fees: 1st. There must be specific statutory authority to the officer to make a charge for the service rendered. Mansf. Dig. sec. 1414. 2d. He must be required by the statute, or by the rules of practice or order of the court, to perform the service. 3d. The statute must indicate expressly or by fair intendment the intention to permit the fee allowed by the statute for the service to be charged against the county. Cole v. White County, 32 Ark. 45. To illustrate: The statute makes the county liable under certain circumstances for the costs in criminal cases. In such a case the express intention to make the county liable is found in the statute, and we have only to ascertain what fees are specifically allowed the officer by the statute for services rendered in the cause, to ascertain the county's liability. 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. The clerk therefore gets nothing for the service. It is a burden that accompanies the office. Cole v. White County, 32 Ark. sup.

An examination of the items of the various claims presented to the county court by the circuit clerk in the case will show that they fall in one of these classes.

Claims for fees in five criminal cases were presented. It is conceded that the county is liable for costs in these cases. The third general rule above stated is therefore satisfied.

In each of the cases the following items of charge appear:

It is argued that there is no specific allowance in the statute for swearing jurors to qualifications, and that the item was not therefore a proper allowance. But there is a specific allowance of ten cents "for administering each oath." Mansf. Dig. sec. 3235. The duty of swearing the juror upon his voir dire is required of the clerk. When he performs the duty in the course of a trial, he is entitled to a fee therefor, to be taxed as costs. If the county becomes liable for the costs, it is a proper charge against the county. If a number of jurors are sworn together, that is a single act for which the clerk is entitled to but one fee; but if he is required to swear them separately, he is entitled to charge for each oath administered, Trimble v. Railway Company, 56 Ark. 249, S. C. 19 S.W. 839; Bagley v. Shoppach, 43 Ark. 375.

The statute allows the clerk fifty cents for "swearing and entering each jury." The jury is separately sworn in each criminal case. Chiles v. State, 45 Ark. 143. The fee for such service goes with the cost in the cause in which it is rendered, and, can be made a charge against the county only when the costs of the criminal case become a charge against it.

But the names of 24 jurors are entered upon the record at the beginning of the term, and a general oath is administered to the panel, which binds them in all civil causes submitted to them. Mansf. Dig. secs. 4006-7. This is not a service performed in a cause, and cannot be taxed in any case. The same is true of empaneling and swearing the grand jury. But a fee for swearing each jury is specifically allowed by the statute. The question is, can the county be charged with the expense? The statute provides that "the expenses accruing in the circuit court shall be paid out of the county treasury in which the court is held in the same manner as other demands," after the accounts of the officers therefor have been audited by the circuit court. Mansf. Dig. secs. 1485-1488. It has been ruled that the compensation due jurors is part of the current expense of holding the circuit courts, within the meaning of this statute. Independence Co. v. Dunkin, 40 Ark. 329. Also that the sheriff is entitled to mileage for summoning the grand jury, upon the same theory (Williams v. Hempstead Co. 39 Ark. 176); and that the sheriff and clerk are entitled to the fees allowed by law for issuing and serving subpoenas for witnesses to appear before the grand jury. Jefferson Co. v. Hudson, 22 Ark. 595. The fee bill did not indicate that any of these services performed by the officers were expenses to be charged against the county, nor did it specify that there should be mileage for summoning the grand jury, or fees for issuing or serving subpoenas for witnesses before the grand jury. But fees were specifically allowed for issuing and serving all writs and process; the clerk was required to issue and the sheriff to serve the writs; these services were incident to the work of the grand jury for whose expenses the county was liable; it was held therefore in these cases that the fees allowed for the services were chargeable as expenses of the circuit court for which the statute makes the county liable.

The same reasoning leads to the conclusion that the county is chargeable with the expense of swearing the grand jury and regular panels.

The statute allows a fee of twenty cents for each order. The services charged for were required of the clerk by the court. Under the rule governing the last mentioned items, the fees are allowable.

The statute specifically allows the clerk 10 cents for administering each oath. Mansf. Dig. sec. 3235. If he is required by the court to administer oaths to persons summoned as jurors to serve on the regular panel or on the grand jury, the county would be chargeable with the fee, under the rule announced in considering items above mentioned.

If the jurors are summoned to serve, not upon the regular panel, but for a particular cause, the costs are chargeable in that cause; and unless it is a case in which the county is liable for costs, the fee for the service can not be charged against it. ^[*]

There is nothing here to show that the special petit jurors were summoned for service on the regular panel, or in a cause wherein the...