Finney v. Sullivan County

Currier, Judge, delivered the opinion of the court. This suit was brought to recover of Sullivan county (the defendant) the sum of $2.76 for services rendered by the plaintiff in 1866, in attending before the board of registration in that county as a witness. It is admitted that the services charged were rendered in obedience .to the requirements of a subpoena duly issued by.the board and served upon the plaintiff. There is no dispute about the facts. The single question presented is whether the county, under the circumstances, is legally bound to pay the claim. As showing such obligation on the part of the county, the plaintiff’s counsel refer to sections 20 and 27 of the registration act of 1866 (Gen. Stat. 1865, pp. 908-9). The twentieth section authorizes the registration board to “ issue subpoenas, attachments and commitments,” and directs their service by sheriffs and constables in the same manner as though issued by a judge-of the Circuit Court. It is then provided that these officers shall receive the same fees for the service of such processes as are allowed by law for such services in State cases, and that the same shall be paid by the person against whom the process is issued, or out of the county treasury. The section makes no provision for the payment of witnesses from any source or fund whatever, or for their payment at all. It therefore makes no provision for their being paid by the county. Section 27 merely makes provision for the payment to the officers of registration of such expenses as may be incurred by them. As the plaintiff was not such officer, but a witness merely, there is nothing in this section to support the [352] claim preferred by him. In a word, the law makes no provision for the compensation of witnesses who are summoned to appear before registration boards. On what principle-, then, is the county to be held liable for these fees ? The registration officers were appointed by the supervisor of registration, who was appointed by the governor. They were not the agents of the county, nor was the county a party to the proceedings before the board. (See Kelley v. Andrew County, 48 Mo. 338.) The county cannot be made liable for the fees of witnesses summoned to attend upon the registration officers, without some express statute on that subject imposing the liability, and there is no such statute. (Hawley v. Commissioners of Vigo County, 2 Blackf. 355; Commissioners of Miami County v. Blake, 21 Ind. 32; State v. Daily, 45 Mo. 156.) The county of Sullivan is therefore not liable-for the plaintiff’s claim. It is no new doctrine that citizens may be compelled by the State to attend as witnesses in causes where the State is interested, without being compensated pecuniarily for their services. “The king or any person suing to his use,’-’ says Blackstone, “ shall neither pay nor receive costs, for * * as it is his prerogative not to pay them to a subject, so it is beneath his dignity to receive them.” (3 Blackst. 400.) In Commissioners of Miami County v. Blake, supra, the court sa.y that “ this principle, so far as it applies to the payment of costs by the State, has been adopted as a general principle of American law.” On the same ground costs are never paid by the United-States. (United States v. Buskin, 2 Wheat. 395.) The plaintiff in the case at bar was summoned to appear and testify in regard to a matter of general public interest, and in a proceeding to which the county was not a party. He appeared at the command of the State, and the State has made no provisions for compensating him for his trouble. The law imposes no obligation upon the county in respect to the matter; and the judgment, which was for the plaintiff, must be reversed'. The other judges concur.