The Stark County Democrat. [volume] (Canton, Ohio) 1833-1912, 1902-10-31
In Appropriation Cases
Must be Paid From
COUNTY TREASURY
Opinion OF Attorney General
Sheets 20 Rendered. 70
Judge Aunsst Reasons
for His Stand.
(Frcm a STAFF Correspondent,

Columbus, Oct. 2S.--The opinion OF
Attorney General Sheets in which he
holds that the fees Of jurors should be
paid out of the county treasury and
not to taxed against the losing party
in proceedings for the appropriation
OF private property was rendered to
Probate Judge M. Il. Aungst and not
to Prosecutor Day as stated. The full
text of the opinion is follows:
Hon. Morris e. Aungst, Canton. o.
My Dear Sir: am in receipt of your
communication In which you seek an
opinion from this Office as to whether
| the fees of jurors who sit in cases
pending in the probate court for the
appropriation of private property,
should be paid out of the county treas
ury, or be taxed as costs in the case,
to be paid by the losing party While
| this Is a question which does not
come directly within my province to
answer, yet as am somewhat familiar
with the question, will grant you the
courtesy of reply.
Section 6451, r. s.. provides In sub
stance, that jurors, witnesses and shec-
ifs, serving in cases pending in the
probate court for the appropriation OF
private property, shall have the same
fees as are provided by law for like
services in the court of common pleas,
| and that "the whole costs so taxed
shall be adjudged against the corpora
tion."
There Is no express requirement in
this section that the fees of jurors
shall be considered as COSTS" and
taxed as a part of the bill of costs.
II, however, there were In other pro-
visions of statute bearing upon the
subject OF the fees of jurors, it might
be fair to presume that the legisla-
ture intended to cast the burden of the
jurors fees upon the corporation in
stituting the proceedings. There are
however, a number of statutory pro-
visions bearing upon this subject and
as they are in. per materia, they
should be construed together in order
to arrive at the legislative intent.
Section 51S2 Of the code Of civil po-
cedure provides: Each grand and
petit Juror drawn from the jury box
pursuant to law, and each juror select
ed by the court. pursuant to section
5173 Of this chapter. and each talesman
shall be allowed 81 per day for each
day he serves and IL not a talesman.
five cents per mile from his place Of
residence to the county seat, and such
expenses shall be certified by the clerk
of the court and paid by the county
treasurer on the warrant of the coun-
ty auditor.
Section GAIL. R. S. provides that "the
provision plan governing civil pro-
ceedings in the court of common pleas,
shall, SO far as applicable. govern pro-
ceedings in the probate court, when
there Is no provision on the subject in
this title" 1t follows then, that un-
less there is some provision to the
contrary the provisions of section
5182, r. s., apply, and Jurors sitting
In the probate court In cases for the
appropriation Of property, must be
paid out of the county treasury. l
have been unable to find any provi-
sion to the contrary. might end this
provisions of the statute above
of jurors in appropriation cases should
be paid out of the county treasury,
but there arc few suggestions that
might De duueu. IL mas Doen Jne pol
icy Of the law to provide for the pay
ment Of both witnesses and jurors at
the time the services are rendered.
A witness may demand his
fee in civil case, and II not paid
he need not attend. in a criminal case
they are paid out of the county treas
ury. In cases before justice of the
peace the jury must be paid before
the verdict is rendered. And 1t would
hardly seem that the legislature would
make a careful provision for the pro-
lection of jurors in the payment of
their fees In every case except In the
Appropriation of private property and
leave them in that instance to wait for
their fees until the costs shall be paid
by the losing party. Not only that,
but the fees Of jurors have not. gener-
ally been looked upon as costs. to be
taxed In the case any moro than have
the salary of the Judge who sits In the
trial of the case. !, =.
For these additional reasons l am
confirmed In my Views here expressed.
J. M SHEETS.
Aft0ruav Hau