Pitts v. Logan Cnty.

• Decision Date: 07 September 1895
• Citation: 1895 OK 78,41 P. 584,3 Okla. 719
• Parties: LOUIS E. PITTS v. LOGAN COUNTY, OKLAHOMA TERRITORY.
• Court: Oklahoma Supreme Court

1895 OK 78

41 P. 584

3 Okla. 719

LOUIS E. PITTS v. LOGAN COUNTY, OKLAHOMA TERRITORY.

Supreme Court of Oklahoma

Decided: September 7, 1895

Error from the District Court of Logan County.

Louis E. Pitts, who is the duly appointed, qualified and acting clerk of the district court of the First judicial district of Oklahoma Territory, on the 6th day of April, 1895, presented to the board of county commissioners of Logan county, his itemized statement of costs taxed against Logan county from March 9, 1895 to March 31, 1895, amounting to $ 144.90.On the 12th day of April 1895, the board of county commissioners allowed on said account the sum of $ 17.From the decision of the board of county commissioners, the plaintiff in error appealed to the district court of Logan county.The following agreed statement of facts was submitted:

"I.This is an appeal taken from an order of the board of county commissioners of the county of Logan and Territory of Oklahoma, entered on the 8th day of April, 1895, by the said board, wherein the claim of Louis E. Pitts for one hundred and forty-four dollars and sixty-nine cents, ($ 144.69), was allowed in the sum of seventeen dollars, ($ 17), and disallowed in all other sums.

"II.The plaintiff, Louis E. Pitts, is the duly qualified and acting clerk of the district court of the First judicial district, and of the district court of the county of Logan and territory of Oklahoma.That on the 6th day of April, 1895, he filed with the county clerk in the county of Logan and Territory of Oklahoma, his statement of account for fees claimed to have been earned by him as clerk of the district court of Logan county and Territory of Oklahoma, in criminal cases, between the 9th day of March, 1895, and the 31st day of March, 1895, in suits where the Territory of Oklahoma prosecuted criminal cases in the district court of said county.

"III.That the fees claimed in said bill would be proper charges against said county, according to the territorial laws in force prior to the 8th day of March, 1895, and according to the territorial fee bill approved March 8, 1895, if it were not for the limitation in the said act, approved March 8, 1895, prohibiting the allowance of any sum in excess of seventy-five ($ 75) dollars per quarter to the clerk of the district court for criminal fees, and the decision of this case depends wholly and entirely upon the question of the validity of such limitation contained in said act.

"IV.That the board of county commissioners in acting upon the claim of the plaintiff in this case, allowed the plaintiff's claim upon the basis of the validity of said limitation of seventy-five ($ 75) dollars per quarter for fees, pro-rating the time covered by such fee bill at the rate of seventy-five dollars per quarter, and allowed the bill upon said basis, and rejected the remainder.

"The above and foregoing are the facts of the case and are submitted to the court for decision as a matter of law."

On the 11th day of May, 1895, the court rendered the following judgment on said statement of facts:

"Now, on this 11th day of May, 1895, said cause came on to be heard in its regular order, the plaintiff appeared by Asp, Shartel & Cottingham, his attorneys, and the defendant appeared by Harris Huston, county attorney, and the parties having waived a jury in said cause, the trial of the same proceeded before the court without a jury, and thereupon the parties submitted said case to the court upon an agreed statement of facts; and the court, after hearing the arguments of counsel and being duly advised in the premises, finds the law of the case in favor of the defendant; and thereupon the plaintiff filed his motion for a new trial, and his motion for judgment in said cause on the agreed statement of facts herein, which said motion for judgment on said agreed statement of facts the court overruled; to which ruling the plaintiff duly excepted and excepts; and thereupon said cause came on to be heard upon the motion for a new trial; which motion is by the court overruled, to which ruling the plaintiff excepted and excepts."

The case was then appealed to this court.Reversed.

Syllabus

¶0 CLERKS OF TERRITORIAL COURTS--Fees.Clerks of the district courts of the territory are required by the laws of the United States to account to the secretary of the treasury of the United States for all fees earned by him as such clerk, territorial as well as United States, and any act of the legislative assembly attempting to regulate the same is in violation of the laws of the United States and therefore void.

Asp, Shartel & Cottingham, for plaintiff in error.

A. H. Huston and R. B. Huston, for defendant in error.

SCOTT, J.:

¶1 The principal question for our consideration in this case is, whether the territorial legislature has any right to fix the compensation to be allowed to the clerks of the district courts in this territory, for their services.In the discussion of the subject, we find at the very outset that the district courts of this territory are creatures of congress.The justices of the supreme court are appointed by the president, and are ex-officio judges of the district courts of the districts to which they are assigned by the supreme court.The same instrument that gave life to these courts also provided that the judges of the supreme court should appoint the clerk of that court, and the judges of the district courts should appoint the clerks of said district courts.The language of the act is, "each district court shall appoint its clerk."After having created the office and appointed the clerk, the act further provides what fees the clerk shall receive for his services, which reads as follows:

* * * "There shall be allowed to the attorney, marshal, clerks of the supreme and district courts, the same fees as are prescribed for similar services by such persons in ch. 16, title Judiciary, of the Revised Statutes of the United States."(Organic Act, § 13)

¶2Section 823, ch. 16, title Judiciary, reads:

"The following and no other compensation shall be taxed and allowed to attorneys, solicitors and proctors in the courts of the United States, to district attorneys, clerks of the circuit and district courts, marshals, commissioners, witnesses, jurors, and printers in the several states and territories, except in cases otherwise expressly provided by law.But nothing herein shall be construed to prohibit attorneys, solicitors and proctors from charging to and receiving from their clients other than the government such compensation for their services, in addition to the taxable costs, as may be in accordance with general usage in their respective states, or may be agreed upon between the parties."

¶3The act then provides a fee bill under which the clerks are to tax costs as follows: Section 828 reads:

"For issuing and entering every process, commission summons, capias, execution, warrant, attachment, or other writ, except a writ of venire, or a summons or subpoena for a witness, one dollar.

"For issuing a writ of summons or subpoena, twenty-five cents.

"For filing and entering every declaration, plea, or other paper, ten cents.

"For administering an oath of affirmation, except to a juror, ten cents.

"For taking an acknowledgment, twenty-five cents.

"For taking and certifying depositions to file, twenty cents for each folio of one hundred words.

"For a copy of such deposition furnished to a party on request, ten cents a folio.

"For entering any return, rule, order, continuance, judgment, decree or recognizance, or drawing any bond, or making any record, certificate, return, or report, for each folio, fifteen cents.

"For a copy of any entry or record, or of any paper on file, for each folio, ten cents.

"For making dockets and indexes, issuing venire, taxing costs, and all other services, on the trial or argument of a cause were issue is joined and testimony given, three dollars.

"For making dockets and indexes, taxing costs, and all other services, in a cause where issue is joined, but no testimony is given, two dollars.

"For making dockets and indexes, taking costs, and other services, in a cause which is dismissed or discontinued, or where judgment or decree is made or rendered without issue, one dollar.

"For making dockets, and taxing costs, in cases removed by writ of error or appeal, one dollar.

"For affixing the seal of the court to any instrument, when required, twenty cents.

"For every search for any particular mortgage, judgment or other lien, fifteen cents.

"For searching the records of the court for judgments, decrees, or other instruments constituting a general lien on real estate, and certifying the result of such search, fifteen cents for each person against whom such search is required to be made.

"For receiving, keeping, and paying out money, in pursuance of any statute or order of court, one per centum on the amount so received, kept and paid.

"For traveling from the office of the clerk, where he is required to reside, to the place of holding any court required by law to be held, five cents a mile for going and five cents for returning, and five dollars a day for his attendance on the court while actually in session.

"All books in the offices of the clerks of the circuit and district courts, containing the docket or minute of the judgments or decrees thereof, shall, during office hours, be open to the inspection of any person desiring to examine the same, without any fees or charge therefor."

¶4Section 833 reads:

"Every district attorney, clerk of a district court, clerk of a circuit court, and marshal, shall, on the first days of January and July, in each year, or within thirty days thereafter, make to the attorney general, in such form as he may prescribe, a written return for the half year ending on said days respectively, of all the fees and emoluments of his office, of every name and character, and of all the necessary expenses of his office, including necessary

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