McCourtney v. Morrow

Leflar, J. This appeal is from an order of the Circuit Court disposing of a dual motion by petitioner McCourtney for (1) retaxing costs and (2) allowance of statutory penalty (Ark. Stats., § 12-1738) against the Circuit Clerk for demanding extortionate fees. The Circuit Court’s order eliminated from the Clerk’s fee bill, in accordance with the prayer of petitioner’s motion, certain items of costs originally charged by the Clerk, but sustained the Clerk’s charge of the statutory fee (Ark. Stats., § 12-1710) of 75 cents “for each page in making and preparing” the transcript in question,1 and assessed no penalty against the Clerk. Petitioner appeals from the two holdings last mentioned. As to the charge of 75 cents per page for “making and preparing ’ ’ the transcript, it is shown that the transcript was actually typewritten in McCourtney’s law office, and not by the Clerk. But after it was typed it was handed by McCourtney to the Circuit Clerk for checking and certification, and the Clerk compared it with his notes, made certain corrections, and then certified it. We hold that this constituted a “making and preparing” of the transcript within the meaning of § 12-1710. The responsibility for the transcript was the Clerk’s, regardless of who did the typing, and he cannot escape the responsibility (nor in this case did he seek to do so) by allowing some other interested party to type it for him. Petitioner McCourtney also contends that the Clerk waived the right to make a full charge for the transcript by some remarks he made -at the time he received the typed copy from McCourtney. In a memorandum opinion delivered by this Court on February 21, 1949, we said in reference to this contention in this case by this petitioner that the Clerk was without power to waive the statutory fees. The law of the case on this point has therefore already been determined against the petitioner. The other ground of appeal is the Circuit Court’s failure to allow petitioner the penalty of $5.00 for each item eliminated by the Court from the Clerk’s fee bill. The relevant statute (§ 12-1738, enacted in 1842) allows a $5.00 penalty against “any officer” for each illegal charge made by him, payable to the person against whom the charge was made. But “it is apparent that this legislation is highly penal, and it must, therefore, be strictly construed.” Sebastian Bridge District v. Lynch, Chancery Clerk, 200 Ark. 134, 144, 138 S. W. 2d 81, 86. Also see Johnson County v. Bost, 139 Ark. 35, 213 S. W. 388. We have held in criminal cases2 arising under § 12-1738 that the statute requires, as a prerequisite to liability, a finding of fact that the public officer acted corruptly, with bad motive or evil intent. Leeman v. State, 35 Ark. 438, 37 Am. Rep. 44; Hood v. State, 156 Ark. 92, 245 S. W. 176. It would be improper to give one meaning to the statute in its criminal aspect and a different meaning to the same words in the same section in its civil penal aspect. Our conclusion' is that, in order to collect the private penalty permitted by the statute, a claimant must prove that the officer not only made an unlawful charge, but did so corruptly, with bad motive or evil intent. A thorough examination of the entire record in the present ease shows that petitioner has not by his evidence sustained this burden of proof. Since the order of the Circuit Court against the appellant petitioner must in any event be affirmed, we do not pass on the procedural propriety or timeliness of his motion for retaxing costs. See Buchanan v. Parham, 95 Ark. 81, 128 S. W. 563; Cain v. Carl-Lee, 170 Ark. 859, 281 S. W. 661; Lewis v. Jones Constr. Co., 194 Ark. 602, 108 S. W. 2d 1093. Nor do we decide whether it was permissible, after our per curiam order of February 21,1949, for the petitioner to file his motion to retax costs in the Circuit Court. Affirmed. Chief Justice Griffin Smith dissents in part and concurs in part. Footnotes [1] This transcript was in the case of McCourtney v. Ellington, 215 Ark. 539, 221 S. W. 2d 410. Preliminary relief to petitioner in reference to the same fee bill was denied in a per curiam order issued by this Court on February 21, 1949. [2] A similar provision for criminal liability appears in § 12-1739, enacted in 1923. Compare Ark. Stats., § 27-2320.