In re Morrison

GATES, J. The Attorney General has applied for an order directing the payment of fees of witnesses, fees for serving subpoenas and expenses of taking depositions on behalf of the prosecution out of the Supreme Court disbarment fund. He claims that such fees and expenses should be paid out of such fund because of the decision on rehearing of the proceeding entitled In re Egan, 38 S. D. 224, 160 N. W. 814. [1] In that opinion we were not considering whether expenses incurred should be paid' out of the Supreme Court fund on the one hand, or by the county to which- the matter was referred on the other hand. We were then considering whether the prosecution on the one hand or the disbarred attorney- on the other hand should be charged with the payment of the following expenses; (a) Fees and expenses of the referee; (b) per diem and mileage of stenographer; (c) stenographer’s charges for transcript. We therein held that those items were not properly taxable against the disbarred attorney. We have no disposition [44] to overturn that decision, but whatever may have been stated therein as to what fund those items should be payable from was obiter, and was not then given due consideration. Section .5, c. 85, Laws of 1911 (section 5278, Rev. Code 1919) provides: “All costs of a reference in such proceedings, including the fees and expenses of the stenographer for taking the evidence and making transcript thereof, shall be paid by the county to which such procedings may be referred for trial. All other disbursements made upon behalf of the prosecution in such matters shall be paid' by the state of South-Dakota upon an itemized statement thereof approved by the Supreme Court or a judge thereof.” [2] The question now is whether the fees of witnesses who appeared before the referee on behalf of the prosecution, fees for serving subpoenas and expenses of taking depositions on behalf of the prosecution for use before the referee are embraced' within the term “costs of a reference in such proceedings,” or whether they are embraced in the words, “all other disbursements made on behalf of the prosecution.” If the former, the fees should be paid in the first instance by the county to which the reference was made; if the latter, the fees should in the first instance be paid out of the Supreme Court disbarment fund. We are clearly of the opinion that such fees and expenses are legitimately, properly, and in the very nature of tilings a part of the “cost of reference.” When a matter is referred to a referee, all of the costs of the trial are payable by the county to wihi-ch the matter was referred. We are of the opinion that the last clause in section 6 of said chapter (§ 5279> Rev. Code 1919), viz. “and whenever judgment is rendered against the accused there may be included therein, in the discretion of the court, as a part thereof, a judgment in favor of the state for all necessary disbursements made on behalf ■ of the prosecution,” does not militate against this conclusion. In Re Egan, 37 S. D. 642, 159 N. W. 393, this court said: “It is clear that the disbursements above specified have been made ‘on behalf of the prosecution.’ It is also clear that a county is but a local subdivision of the state for governmental purposes. State v. Board, 36 S. D. 606, 156 N. W. 96. We are of the opinion that the reasonable interpretation of the clause quoted [45] from section 6, taken in connection with section 5 of said chapter, is that a judgment may be entered against the accused for all necessary disbursements made on behalf of the prosecution, by whomsoever advanced, and that, inasmuch as all of the items sought to be taxed in this proceeding have been advanced by Minnehaha county, the judgment rendered in favor of the state will of necessity be for the benefit of that county.” The principle there laid down was not intended to be overruled upon the rehearing of that cause in 38 S. D. 224, 160 N. W. 814. We intended upon the rehearing simply to lay down the rule that the expense of providing a court and its officers, including the stenographer and transcript, was an expense that should not be taxed against the disbarred attorney. [3] We are of the opinion that the word “state” in said section 6 embraces the “county,” and that if a judgment be recovered by the state against the accused attorney for disbursements made on behalf of the prosecution, which were paid in the first instance by the county, the county should be repaid such amount out of the judgment when collected. The statements to the contrary in the opinion on rehearing in Re Egan, supra, would render the clause in the latter section, “all necessary disbursements, made on behalf of the prosecution,” to be the equivalent of the clause in the former section, “all other disbursements made upon behalf of the prosecution.” We do not think those clauses are synonymous. To the. extent that the. decision in Re Egan, on rehearing, 38 S. D. 224, 1C0 N. W. 814, conflicts with this opinion it is overruled. ■An order will be entered directing the county of Walworth to pay the fees and expenses hereinbefore referred to.