State v. Henley {State report title: Henley v. State}

• Decision Date: 19 April 1897
• Parties: STATE v. HENLEY et al.
• Court: Tennessee Supreme Court

41 S.W. 352

98 Tenn. 665

STATE v. HENLEY et al.

Supreme Court of Tennessee.

April 19, 1897

Appeal from criminal court, Shelby county; L. P. Cooper, Judge.

Action by John Henley and others to tax against the state certain costs. The motions were allowed, and the state appeals. Reversed.

Snodgrass C.J., dissenting.

Atty Gen. Pickle, J. M. Greer, and L. M. Harvis, for the State.

C. R Barteau, Peter Turney, and J. J. Vertrees, for appellees.

WILKES J.

The question involved in this case is the validity and constitutionality of the act of the general assembly of Tennessee passed February 3, 1897, commonly known as the "Jarvis Law." The contest arises upon motions made in the criminal court of Shelby county to tax against the state certain costs, which motions were allowed, and the costs taxed, upon the ground that the act referred to is unconstitutional and void. The state has appealed. The act in question is in the words and figures following:

"An act to regulate and restrict the payment of costs and fees in criminal prosecutions.

"Section 1. Be it enacted by the general assembly of the state of Tennessee, that neither the state of Tennessee, nor any county thereof, shall pay or be liable in any criminal prosecution for any costs or fees hereafter accruing except in the following classes of cases:

"(1) Cases of homicide, rape, robbery, burglary, arson, embezzlement, incest or bigamy, where the prosecution has proceeded to a verdict in the circuit or criminal court.

"(2) Cases under the small offense law where the defendant has submitted before a justice of the peace and been sent to the workhouse; and,

"(3) All cases where the defendant has been convicted in a court of record and the execution issued upon the judgment against the defendant has been returned nulla bona: provided,

"That neither the state of Tennessee, nor any county thereof, shall be liable for, or pay any costs in any criminal case where security has been accepted by the officer taking the security, and an execution afterwards returned nulla bona as to the defendant and his securities.

"Provided, that the compensation for boarding prisoners, expenses of keeping and boarding juries, compensation of jurors, costs of transcripts in cases taken to the supreme court by appeal or writ of error, mileage and legal fees for removing or conveying criminals and prisoners from one county to another, or from one jail to another, and compensation and mileage of witnesses for the state duly subpoenaed and required to attend before any court, grand jury, or magistrate in a county other than that of their residence, and more than five miles from such residence, and where any witness for the state shall be confined in jail to await the trial in which he is to testify, shall be paid in all cases as heretofore.

"Sec. 2. Be it further enacted, that neither the state of Tennessee, nor any county thereof, shall pay or be liable in any criminal case or prosecution for the fees, costs, or mileage which may hereafter accrue in favor of any witness who shall, at the time of his attendance as such witness, before any court, grand jury, or magistrate, reside within five miles of the place where he attends as such witness.

"Sec. 3. Be it further enacted, that this act take effect from and after its passage, the public welfare requiring it.

"Passed February 2, 1897."

After the passage of this act, and while it was in force, on the 17th of March, 1897, John Henley and others were indicted in the criminal court of Shelby county for grand larceny, and were tried and acquitted. If the defendants had been convicted, officers and witnesses who rendered services in the case, but received no compensation under the act, would have been entitled to fees or compensation as follows: Hunter, the clerk of the court, $4.30; Carnes, the sheriff of the county, $5; Taylor, a justice of the peace, who bound the defendants over for trial, $2.65. Witnesses for the state: Marlet, fees and mileage, $6; Wilkens, fees and mileage, $6; Shore, fees and mileage, $6.80; Hall, fees and mileage, $6.80; Kelley, fees and mileage, $6.96; Battle, fees and mileage, $6.80.

It is said the act in question is unconstitutional and invalid because it demands the particular services of individual citizens as officers and witnesses, and takes their property for public use without compensation; that the law is partial in its application, and not a general law of the land; that it deprives persons accused of a fair and impartial trial; and that it amends or repeals quite a number of former acts, but does not, in its body or caption, recite or refer to such acts. To be more explicit as to the grounds of objection, it is said that witnesses and officers are required to give their time and services and to pay their own expenses upon the trial of certain cases, and are refused any fees therefor. It is insisted that time and labor and money expended by witnesses while at trial or en route represent just so much property which is thus taken without compensation, and the officers and witnesses are in this way required to give to the state, without pay, that which is valuable to themselves, and necessary to their families, while other citizens of the state in such cases are required to contribute nothing. It is urged with much earnestness and force that the services and property of the citizen are protected by the same section of the bill of rights, and that under it his time and services can no more be taken without compensation than can his farm or his flocks, and it is tersely said that the state has no more right to require an individual's time and services to make a convict, without compensation, than it has to take the same individual's corn or wheat without pay to feed the convict after he is made, and that such requirement violates the rights of the individual, even though it may be a benefit to the public. It is further insisted that when the bill of rights was declared, in 1796, the common law in America was that witnesses for the state should be paid for their services, and the constitution provides that the laws then in force should be preserved and remain in existence as though the constitution had not been framed. It is conceded that there is a sovereign power superior to the constitution, and not limited by it, and that it is the prerogative, as well as the duty, of this sovereign power to preserve the state in great emergencies, and, if necessary, to take the property, time, and services of individuals for this purpose, and, if need be, without compensation. To illustrate: A man's property, time, and services, it is said, may be required without pay in case of war or invasion, or an individual may be placed in quarantine, and temporarily deprived of his liberty, if the public safety demand; but these, it is argued, are emergencies, and not matters arising in the ordinary administration of the government. In the ordinary conduct and operation of the government no such emergencies can arise, and in the usual course of administering the affairs of the state no such demands can be made of the citizen. It is insisted that if a justice of the peace, or sheriff, clerk, or witness is required to render service for the state without compensation, it is, to that extent, taxing his property and labor, and requiring him thus to bear an unequal part of the burden of the public expense, and that inequality in burdens, whether in the shape of taxes imposed, services required, or property taken, is contrary to the letter and spirit of the constitution, and to the genius of our government. Again, attention is called to the fact that it is claimed by the state that it is the object and purpose of the law to relieve the state from the immense burden of criminal costs, and it is said that, while this is a laudable purpose, and may result in the relief of the state to the extent of many hundreds of thousands of dollars now annually paid out for the prosecution of criminals, still the act is so framed as to operate unjustly, inasmuch as it does not prevent or extinguish these costs, but simply shifts the burden of bearing them from the body of taxpayers onto the shoulders of the few who, from locality, situation, or other circumstances and conditions, are required to bear them. In other words, the argument is that costs remain the same as heretofore, but they are required to be borne by the few whose time and services are taken without pay, while the many, who contribute neither time nor service, can give the proceeds of their labor to their own advancement, and the benefit of their estates and families, relieved of all burdens. Again, it is insisted that the law is partial in its application and operation, and not the law of the land, which affects all individuals alike. It is said there is a discrimination made between witnesses and officers that is arbitrary, and based upon no legal or reasonable ground. To illustrate: In eight named felonies witnesses are paid whenever trial is had, no matter what the result may be, but, unless a verdict is reached, there is no compensation. Attention is called to the fact that a prosecution for one of these offenses may be pending for a time, and costs may accrue. It may then be terminated by death, or by the state refusing to further prosecute. In these contingencies witnesses receive no pay, while, if the case had proceeded to verdict, they would be paid. At the same time, they have no voice in saying whether the case shall proceed or not; but in each case they are compelled to give the same time and service, and incur the same expense, during the trial or trials. Again, in other cases witnesses are paid only in the event the accused is convicted. To illustrate: When...