The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1898-08-04
HUGE COURT COSTS
Provoke the Opposition of
Judge Hainer.
HIS INITIAL ONSLAUGHT
To Be Followed by a Vigorous
Crusade.

Perry, o. T, Aug S.-(Special)-Judg
Hainer has charged on the intrenchments
Of the clerks of the district courts and
exciting times will follow among the mem
bers Of the bar throughout Oklahoma In
an oral opinion given here Aug. 1, Judge
Hainer reads the riot act to his clerk for
excessive court costs, and issues g. virtual
invitation TO the members of the bar to
file motions for the retaxing of costs.
For years courts have ben excessive in
Oklahoma and the charge has ben made
that the clerks, being appointees Of the
judges, were protected in extortA0n by the
judges
But now that flte attack has been open
ed there Is expected to be shaking up
all over the territory and a general revi-
sion of all dockets.
The decision, which created a sensa-
ton here. is as followst
In the District Court OF Noble County,
Oklahoma Territory.
Territory Of Oklahoma. Plaintiff. vs.
Frank W. Hall defendant. Motion to
Relax Costs.
This IS a motion to retax theh clerks
costs in the case Of the Territory of Ok
lahoma, against Frank w. Hall. The
clerks fees in that case appear to be tax
ed at S244.4 IS. There aretwo grounds upon
which the motion to retax cost is made;
Gthat the county Is not liable in case Of
felony for any costs: 2)that the items Of
the clerks costs are excessive and illegal.
These are two very important questions
not only in this case but in all criminal
cases in this territory. At common law
there was no such thing as costs in crimi-
nal ca ses. The costs are a creature of the
statute, and are to goe constructed strictly.
The firrt question IS, whether or not there
IS any Eabkty for costs in this territory.
The clerk Of the district court is appoint
ed BY the judge, pursuant to section six
of the Organic Act. Section thirteen pro-
vides that the clerk shall receive mis- fees
as provided for by the revised statutes
Of the United States which is section S2S-
Now 1t has been held that these clerks are
United States officers. deriving their ap-
Dointment from the judge, and that the
fees charged by them are fees provided
by the Federal statute and not by the
statute Of the territory. This question was
involved in the case of Pitt s VS.. Logan
county. and the supreme court held that
States and that the legislature could not
provide for a schedule Of fees governing
and controlling them. 1t was held that
the act limiting the fees was void. OF
course, that decision is binding on this
court. We think that rule has been as
serted i'm the case of NIc0Inlen VS.. The
United States, by the supreme court of
the United States. We think that under
these decision and the provisions of our
statute of 1890, that the county is liable
for the criminal costs for services ac-
tually performed by the clerk and such
services as are actually necessary TO he
performed by thecerk under thestatute
and especially as in this case the judg-
ment was against the territory for the
costs Of action, the defendant having
been acquitted. But if the clerk performs
services not required 10 be performed
under the statute he IS not entitled TO
pay. Such services as the statutes i'm
poses upon him and makes II necessary
for him TO perform he may receive the
fees provided for under the United States
statute. I have spent a good dead of time
in the examination of this matter and
it is a troublesome question. It involves
the examination of a great many author
tiles. A great many fees are charged here
that are not authorized by law. For in
stance there Is no authority for the clerk
10 make copies of subpoenas and sum-
mons. 1t is the duty Of the sheriff 20
serve the summons. and the clerk simply
issues the summons. The statute no.
where provides that the clerk shall make
copies of summons? Hence he is not en-
titled for fees for that. The same rule
applies fer subpoenas. He issues the sub
poenas and the sheriff is the officer to
serve the same. OF course if the sheriff
cannot afford TO serve them there IS no
law 10 prevent him from resigning. The
clerk makes a copy Of q subpoena, GER
hes to il and puts his seal on 1t. That is
a duty imposed on the sheriff. The clerk,
under the law has no authority to tax
costs for making these copies. The first
objection made is to entering subpoena
four time on the Subpoena docket"