
    County of Douglas et al. v. Frank E. Moores et al.
    Filed November 6, 1902.
    No. 11,389.
    Commissioner’s opinion,
    Department No. 3.
    Costs: -Witness Fees: Statute: Payment Into Treasury. No costs of any kind can be taxed in a case,- unless the statute makes provision therefor, and the legislature may, in providing- for the taxation of witness fees and other costs, make a condition that such fees and costs shall be called for within a certain specified time, in default of which they shall be paid into the county treasury for the benefit of the school fund.
    Error from tbe district court for Douglas county. Action on tbe official bond of the ex-clerk of tbe district court to recover unclaimed witness fees. Tried below before Baxter, J. Judgment of non-suit below.
    
      Reversed.
    
    
      George W. Shields, for plaintiffs in error.
    
      James H. Adams (Asel Steere, Jr., on motion for rehearing), contra.
    
   Duffie, O.

This is an action on tbe official bond of Frank E. Moores, as clerk of tbe district court for Douglas county, to recover certain unclaimed witness fees and costs paid to him as clerk of tbe district court. Tbe defendants interposed a general demurrer to tbe petition, which was sustained, and the plaintiffs electing to stand on the petition, judgment Avas given for the defendants. The plaintiffs bring the case here on error.

Since 1869 section 26, chapter 80, Compiled Statutes of 1901, has been in force. It is as follows: “All unclaimed fees and costs which have been paid and not demanded for two years shall be paid in by the justice or clerk of any court under whose control such unclaimed fees and costs may be, to the school fund of the respective counties where such moneys belong.” In 1877 further legislation was had relating to unclaimed witness fees. The act provides that in all cases where witness fees shall be paid to the clerk of the district court, county judge or justice of the peace, and sli all remain in their hands uncalled for for the period of six months, a report of the same under oath shall be made to the county commissioners of the county. The commissioners, within twenty days after the filing of the report, are to publish a notice in some paper of general circulation, for two weeks, that the fees, if not called for in six months, will be paid into the common-school fund of the county. It is made the duty of the county commissioners to commence suit against any officer and his bondsmen who fails to pay over to the county treasurer the witness fees reported by him, and not called for .by the party entitled thereto within six months after the same are reported to the county commissioners as above provided. The petition alleges that the witness fees involved in this action were reported by Moores as unclaimed;- that the county commissioners had published notice as required by the statute, and that Moores had failed to pay the same into the county treasury, though unclaimed for more than six months from and after the date of reporting them to the county commissioners. It is insisted by the defendants in error that these statutes are unconstitutional in that they seek to divest the parties to whom these witness fees belong, of tlieir money without due process of law. It is further claimed that the question has been determined by this court adversely to the plaintiff in error in State v. Moores, 52 Nebr., 770. If it be conceded that the exact question was involved in State v. Moores, still we are of the opinion that the rule there announced should not be adhered to. The opinion in that case and the argument of the defendants in error in the case at bar, overlook anti entirely ignore what, to our minds, is the controlling principle in this case. The witness fees allowed by statute are a part of the costs in a case. At common law no costs were taxed or allowed. It is only because of the statute allowing it to be done that witness fees are taxed in any case tried in our courts. The legislature has a right to require that any citizen or resident of the state shall attend the courts of the state as a witness or juror without compensation or fee of any kind. This is a right belonging to the state in its capacity of sovereign. Without it it would not be able to administer justice among its citizens. The granting of pay to witnesses is a privilege extended, not a right which can be demanded. If the witness or juror was entitled to pay as a matter of right, he would have the same right to demand that his pay should be graduated according to the value of his time, and while one witness or juror could demand a dollar a day for his attendance on the court, another whose time was more valuable could demand ten or twenty or fifty dollars per day, as the case might be. But it is useless to spend time in giving reasons for the rule or urging arguments in its favor, as it is settled beyond controversy or dispute that, in the absence of a statute, witness fees or other costs can not be allowed. Dow v. Updike, 11 Nebr., 95; 5 Ency. Pl. & Pr., p. 110, and cases cited. This being so, and the right inhering in the legislature to award fees to witnesses or not, as it sees fit, it is not a question open for argument that if fees are allowed, it may be on any condition which the legislature sees fit to impose. Had the legislature seen fit, in passing the original statute allowing witness fees to be taxed, to say that they should be paid into the treasury for the benefit of tbe school fund unless the witnesses or the parties claiming the fees should demand them within six months, or any other specified time, no one would question the validity of such a law, or contend that the legislature, in granting the privilege to a.witness to claim fees for his attendance, could not extend it on any legal condition which it saw fit to impose. Having the right to do this originally, it has the same right to incorporate the condition into the statute by way of amendment or subsequent legislation. That is all that has been done in the present case. The fees involved were all paid in under the statute as it now exists, and the witnesses or other parties who might have claimed the fees if demanded within the time required by statute have lost their right to them by their laches. They have not performed the condition which entitles them to claim these fees.

We recommend that the judgment of the district court be reversed.

Ames and Albert, 00., concur.

By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is

Reversed. 
      
       Cobbey, Annotated Statutes, sec. 9885.
     
      
       Compiled Statutes, cb. 28, secs. 39-41, Cobbey, Annotated Statutes, sees. 108S2-10884.
     