The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1899-05-20

was void for being in conflict with the
| federal law, and various ac1s Of congress,
creating courts in this territory. and pro-
viding for the appointment Of the district
clerk by the judge. Section Of our or
ganic act provides that the territory has
the power to legislate upon all rightful
subjects Of legislation not inconsistent
with the constitution and laws Of the
United States. 1t is a well settled prin-
ciple OF law that the legislature of a state
or territory has the power to pass any
law that is not in conflict with the con-
stitution or organic law of the several
states or of the United tsates. This ter
ritory has right to legislate upon every
subject not inconsistent with the constitu-
ton and laws of the United States, and
where the constitution and laws are silent
upon any subject Of rightful legislation,
then the territory has the right to legis-
late upon that subject, unless it is abso-
Iutely in conflict with the constitution Of
the United States or some positive act OF
congress.
"After examining the organic act and
various acts of congress, am clearly Of
the opinion it is within the power Of the
legislature to pass a fee bill 70 regulate
the costs in territorial criminal cases
that it is rghtful subject of Legislation
The legislature if it 50 desired. could
wipe out our territorial procedure for any
portion Of It. The legislature has the
nower to say what shall be a crime in thtfs
territory, and what the punishment shall
be and what procedure shall govern the
trial. and unless shuch law passed by the
legislature is in conflict with the consti-
tuition of the United States or any act
fcongress, then it is a rightful subject
Of legislation, and it is absolutely within
the power of the legislature Of the terri
tory to legislate upon it.
Hence, I hold upon the first propo-
sition, that the clerks of this territory
in all territorial cases should tax the costs
under the fee bill as prescribed by the
legislature of 1897, which is the last act
upon that subject.
II find, upon a careful examination, that
great many excessive and unauthorized
charges have been made. I find that many
items are contained IN this account that
are unauthorized either under the federal
Zee bill or the territorial fee bin.
''The clerk has made numerous charges
for copies of subpoenas and other writs
and processes not authorized by the stat
ute or by any rule of this court. I have
repeatedly held that the clerk was not
authorized 10 charge for making copies
of subpoenas. I decided this question
nearly a year ago, in the case Of Territory
VS.. Hail. a criminal case brought here en-
a change of venue from Pawnee county.
The clerk is not authorized to charge fees
for copies Of suhpoenas, either under the
federal law or under the territorial Jaw,
unless ordered by the court. There is no
such rule In force in this district. On the
contrary the rule has been that the clerk
should no: tax the costs in such cases.
Another large item in this bill IS the
taking Of bonds and recognizances. I
find upon examination Of this account,
that in some instances, the clerk has
charged as high as S13 fees for filing and
recording a bond in criminal case. This
is exorbitant, and a burden that should
not be borne by the county. It is unjust,
oppressive and should not be tolerated by
any court
I have examined all the items in this
voluminous account and have noted in the
margin of each item the amount that
should be allowed under the territo~ill
fee ibI Voucher No is as follows:
TO attendance on court as clerk me fcI-
lowing days, to-wit: November %, % and
80 1898 and December /, 8, 4, 3. 6, 7, 8,
9. 10. y, Is. IA, Is, Is, Il, 10, %, q, %, !
3, "a. 1898, a total Of twenty-four days, at
S per day, of $40"
That was the original voucher. It ap-
pears there has been some alteration
made but in order to settle the question |
thought it proper 10 pass upon II. The !
charge for per diem is wholly unauthor;z- |
ed and is disallowed. The clerk IS not
entitled to a per diem while the court is !
transacting business as a territorial cont. |
and in my judgment he Is not entitled TO !
per diem under the United States laws |
except when the court IS actually trans !
acting business as a United States court /
1t is true in the federal courts the clerk /
taxes such costs under the federal fee |
bill. which provides that when the United /
States circuit and district court Is &c
tually in session the clerk IS entitled 10 a /
per diem of $. / think the various acts
Of congress modified this law as - ter
ritorial district clerks, and thar the in /
tent and purpose of the act Is that the /
clerk would only receive per diem when
United States business IS actually trans /
acted.
In voucher No : amount claimed by the
clerk IS S165; amount allowed Is SSn
Voucher No. 3. miscellaneous account. Is i
as follows. note here under entry Del
tober 4:
To fling order for Judge removing
Hedge TO Kay county. 10 cents; TO enter /
Ing the same on journal. 5 folios. * cents:
70 issuing commitment for Kay county. 81.
70 making copy for jailor. s. cents; GER
unoate ard seal. 5 cents.
October TO fling above writ. 10
cents TO entering return. Is cents
These items are disallowed. for the rea-
son the same items appear IN voucher No.
: The amount Claimed in voucher No.
Is S@'6s4 and the amount allowed Is
$3.50
Voucher No. (. amount claimed nv the
clerk Is l'-Sa; amount allowed is $50
Voucher No :. amount claimed bv the
clerk Is 1855: amount allowed Is SAFE
Voucher No amount GAINED bv the
court Is Se.55; amount allowed * Ss
Voucher Ne. 81. amount claimed By the
Clerk is *l2.S5. amount allowed Is s5a