The Topeka state journal., 1900-01-06
Witnesses Are Entitled to Pay
In Police Court.
Appellate Judges Say City Can
Not Escape.
MEANS MUCH TO CITY.
Hereafter Costs Will Be Added
In Prosecutions.
Important Decision Handed
Down Today.

According to a decision rendered by
the court of appeals today the city of
Topeka and all other cities of the first
class will hereafter have to pay the
fees OF witnesses whom it subpoenaeS
in the police court, and in the district
court in appealed cases. And if wit
nesses who have testified for the city
during the past three years can prove
their claims to fees, those also will
have to be paid.
The decision was rendered in the case
of E. B. Good against the city of To-
peka, which was appealed by the city
from the district court. 1t is one of
the most important decisions ever made
by the appellate court. Judge Mahan
wrote the opinion which was concurred
in by Judge McElroy, Judge Wells dis
senting.
E. B. Good, the fee buyer, purchased
the fees of a large number of wit
nesses who We're subpoenaed by the city
in liquor cases which were appealed
from the police court to the district
court The city then refused to pay
the fees, and Mr. Good brought suit
against the city to collect them. Judge
HaZen decided that if any person rem
dered a service to the city. the city is
bound to pay a reasonable sum for that
service, IneI6Dy S1NluS d ESTQlCl III
favor of Mr.. Good. The city appealed
the case and now the court of appeals
takes the same view of the case, as did
Judge Hazen.
The opinion in the case is written by
Judge Mahan. After reviewing the diff
ferent sections of the statutes which
bear upon the payment of costs, he calls
attention to the fact that cities of the
first class are nowhere exempted from
their provisions, and then continues:
Counsel for the plaintiff in error in
| his brief and in his argument assumed
that it was a. question of taxation of
costs inter parties and cited numerous
| authorities to sustain his contentious
| that costs, as such, were unknown to
| the common law and were only taxed
| in causes by virtue of statutory provi-
| sion. All this is true, and yet it has
| no application to this case At COM
mon law parties were liable for expenses
| they incurred in the course of litigation,
| and the presumption was that they had
paid these expenses as the litigation
progressed; and when they were al
| lowed to be taxed as costs it was upon
| the theory that they had been paid.
| Parties were liable and are liable for
| services performed in their behalf by
witnesses attending court for a reason
able compensation without statutory
| provision therefor. Our statute fixes
| the amounts of such compensation, and
| provides when it may be demanded.
| Proceeding upon the same theory cOun-
| sci argued that statutes allowing costs
are to be strictly construed. This ap-
| plies to tayable costs between the par
| ties to the litigation.
1T is contended again that these
| claims set out in the petition are costs.
| These witnesses were not parties to
| the causes wherein they attended at
| the request of the city, and costs relate
| to the parties and are taxed for and
| against parties not strangers.
1T is again contended that inasmuch
| as the city was the successful party and
| because the defendants in the cases
wherein these witnesses attended pro-
cured no judgment against the city.
! therefor, the city was not liable to its
| witnesses. It is immaterial to the wit
| nesses whether the city recovered a
| Judgment or not, or who recovered the
| judgment, the city or defendants. When
| they performed the services they were
| entitled to compensation from the party
| for whom they rendered the service, un-
less for some public reason such party
| was exempted therefrom.
/ again, it is contended by the city
| that the legislature has the power to
| require the attendance of witnesses
| without any provision for their witness
| fees. It is unnecessary to determine
| this question, as the state has not auth
| orized a city to require such attendance
| without payment, and has not exempt
| ed a city therefrom.
"It is again contended in the sixth
| place that the district court sit as
| the pO1CS JuQS0- 1t Is dISuSQ lEOIf2
| this that because there is no provision
| in the act Incorporating cities of the
| first class for the taxation of costs in
| the police court and no provision for
rendering judgment against the city
| therefor in cases wherein the city is de-
| feated, that the city was not liable to
| the witnesses themselves for attend
ance in the district court. We are un-
| able to comprehend the application of
this contention to the question involv-
| ed The city is not such a part of the
| state government as to entitle it to the
| immunities of the state itself, in mat
ters pertaining to its local affairs.
1.-The judgment of the district court
| is affirmed"
Judge Wells dissented from the opin-
| ion.
The decision is important because it
| means a difference of thousands OF dol
| lars to all cities of the first class in the
| state. In many police court cases the
| city has to subpoena several witnesses.
| Heretofore the witnesses have never re-
| ceived a cent for testifying, so that it
| made no difference to the city how
| many witnesses were subpoenaed. Here
| after, however, the fees will have to be
| paid. The city is also liable for all
| claims for fees during the past three
| years, which have not become outlaw
| ed, but it will be difficult for the wit
| nesses to prove their claims, as there
is no record kept of witnesses in police
court
This is the fifth decision of Judge Ha-
zen that has been affirmed by the court
| of appeals this week.