
    Case 48 — MOTION
    June 16.
    Green v. Commonwealth.
    APPEAL FROM BATH CIRCUIT COURT.
    Costs. — The defendant in a criminal prosecution must pay his own costs, although he may have been acquitted or may have succeeded upon appeal.
    STONE & SUDDUTH for motion.
    Brief not in record.
   CHIEF JUSTICE HOLT

delivered the opinion of the court.

George E. Green was convicted of a felony in the lower court. Upon appeal to this court the judgment was reversed, and he claims that he is not liable for his own costs in this court. In other words, although its clerk rendered him service at his request, he now says he is not liable to pay him for it because he succeeded upon the appeal. The State can not he made to pay it. No judgment can go against it in the appellant’s favor for his costs. Section 6 of chapter 26 of the General Statutes says:

“If the Commonwealth shall be unsuccessful in any case prosecuted in her own right, no judgment for costs shall be rendered against her.” If, therefore, the appellant, owing to his success, is not hound to pay his own costs, the clerk must lose it.

Let us see if this apparent injustice exists under the law.

If a defendant in a prosecution, whether for a felony or a misdemeanor, be defeated upon an appeal, a judgment for costs may he rendered against him under chapter 26, section 11 of the General Statutes, and section 361 of the Criminal Code. The latter was held in Peoples v. Commonwealth, 88 Ky., 174, to embrace a case of felony.

It is said, however, that this is so because where the defendant is unsuccessful he is of course in fault, and his own conduct causes the cost. In such a case, however, he is by a judgment made to pay the costs of the other side, while the question now presented is whether he shall, where he is successful, merely pay his own costs. It is urged that to compel him to do so would be unjust, and. that it is against public policy to permit the State to prosecute one of its citizens and then to compel him to pay even his own costs when he is not in fault and there is a failure to convict. The services are, however, rendered at his instance. He gets the benefit of them. The officers of the court have no interest in the matter, and as between him and them he should certainly be the loser. If it involves a hardship to him, it is one that is incident to his citizenship. If he accept the benefits accruing to him from government, he must bear the necessary burdens; and the right to examine and investigate the conduct of its citizens is vital to proper government.

If, however, the law does not authorize the collection from a defendant in a criminal case of his own costs where he succeeds, then of course this motion to quash the clerk’s fee bill must prevail.

Section 1, article 1, chapter 41 of the General Statutes says: “ Hereafter the clerks of the Court of Appeals, circuit courts, equity courts and county courts (so far as the same will apply) shall receive the following fees for the services performed by them.” The fees for the different kinds of service are then enumerated at length, and the fees now in question are among them. This provision applies to both civil and criminal cases. The officer rendering the services must, of course, look directly to the party for whom they are rendered, and as the State for the most part pays no costs, unless it be collected from the defendant, the officer is compelled as to the State to render much ex offiicio service for which he receives no pay. When it requires service in its behalf of its officers and no remuneration is by law provided, it is ex officio, and no charge can be made. (Wortham v. Grayson Co. Court, 13 Bush, 53.)

The chapter above cited provides: “ Similar fees for similar services shall be allowed in all cases in the name of the Commonwealth when a fine is assessed and collected.”

An act amendatory of it, and which is copied into the General Statutes, page 625, also provides that the circuit court clerks shall receive as their compensation in Commonwealth cases ten per cent, of all fines and forfeitures collected from the judgment defendants, not exceeding however seven hundred and fifty dollars per annum.

Section 1, article 18 of the same chapter says: “ No fee-bill shall be made out, or compensation allowed hereafter for any ex officio services rendered or to be rendered by any officer;” and section 7, article 20: “No officer shall be entitled to any fee in a proceeding for a misdemeanor unless the same is recovered and collected from the defendant, in which cases the fees allowed and to be taxed shall be the same as for similar services in civil cases.”

It is urged that these provisions show that a defendant in a prosecution is not liable to the officers for his own costs if he defeats it; but manifestly they relate only to the payment of the costs upon the part of the State, and for which the accused is, of course, not liable unless he is convicted.

Although a defendant may succeed upon an appeal or be acquitted, it is not only equitable but in conformity tostábate that he should pay his. own costs incurred for services rendered by the officers of the court at his request.

The motion to quash the fee-bill in this case is overruled.  