3 Colo. App. 177 | Colo. Ct. App. | 1893
delivered the opinion of the court.
This case is the outgrowth of that cause celebre known as the Millington case. The Millingtons were indicted for the murder of one Avery by the administration of poison. To determine the effects of certain poisons, the symptoms by. which they were manifested, and their resultant operations
The question presented is one of first impression in this state. The subject has received judicial consideration in other tribunals, and the authorities are not uniform on the subject. Wherever the matter has been presented, it has come up under circumstances which show that the witness when subpoenaed refused to testify until his expert fees had been paid. The courts have then considered the question in the light of the right of a witness to refuse to express his professional opinions before he is paid an additional and greater compensation than that fixed by the statute as the pay of the ordinary witness, who testifies as to facts. This circumstance may possibly make no difference in the application of the rule, which will be announced; but it presents undoubtedly a very palpable distinction between those cases and the one at bar. The authorities which adjudge additional compensation to be the right of the expert, and which assert his privilege to refuse to testify until paid, are not in harmony as to the basis on which their conclusions are rested. Some declare that he is entitled to the extra pay because his professional opinions are his own property, which cannot be extracted from him except for an honorarium,' which shall be satisfactory to the witness; and others, on the ground that the time of a professional witness called as such has a value beyond that of a witness who is called to testify to a fact regardless of his business or his status.
The line of authorities adjudging the contrary are on reason and principle much more satisfactory, and would undoubtedly be followed by this court were the question presented under the identical aspect exhibited in those decisions. They hold that when a professional witness attends in obedience to an ordinary subpoena, he may be compelled to express his opinions on hypothetical questions, or on general medical and toxicological subjects, as an ordinary witness is compelled to testify on questions of fact within his knowledge and for the same statutoiy fees. The authorities un
These conclusions do not entirely dispose of the present controversy. It still remains to be decided whether the court making the order, under the circumstances indicated, possessed the power to bind the county of Larimer to the payment of the fees expressed in the mandate.
It is a matter of common learning that costs are a creature of statute. In ancient times, neither in civil nor in criminal cases, did the plaintiff or the state have judgment for anything in the nature of costs. As Sir Edward Coke says in 2 Inst. 288, speaking of the statute of Glocester, 6 Edw. 1: —“Before this statute, at the common law, no man recovered costs of sute, either in plea real, personall, or mixt; by this it may be collected that justice was good cheap of auncient times, for in King Alfred’s time there were no writs of grace, but all writs remedialls were graunted freel)’'.” County of Franklin v. Conrad, 36 Pa. State, 317; Haynes v. Mosher, 15 Howard Pr. 216: Faulkner v. Handy, 79 Cal. 265; Mark et
The recovery cannot be supported by express legislative enactment, for none has ever been incorporated into the law of the state. In some states, notably Indiana and Iowa, where a similar controversy had arisen, the legislature remedied the difficulty and enacted a statute, granting to the judge who might preside at the trial power to allow to expert witnesses such additional compensation as, in his judgment, might seem reasonable. We gather from this fact, as well as from the character of the reasoning of the courts holding the other doctrine, that it was never a question entirely free from obscurity. It therefore follows that unless the court possessed the inherent power to enter an order of this description, it was without jurisdiction for the purpose, and the entry could give to the appellee, Lee, no right of action against the county. Nothing but an evident and an unavoidable necessity should lead to the conclusion that any such power is vested in the court. It is wholly unessential to the safe or successful administration of justice. Power to enforce the attendance of witnesses, and authority to compel them to testify to whatever they may know will, in the light of judicial experience, always suffice to conserve the purposes of justice. Wherever extraordinary expenditures seem prudent, necessary or indispensable, the legislature has clothed another and independent body with broad and ample authority to do whatever ought to be done. Under the statutory plan which divides the state into counties, and regulates the government of those territorial subdivisions, all power to fix, control, determine or in any manner dispose of the funds of a county is devolved on the board of county commissioners. They alone have the right to disburse the public moneys, and to decide in what cases, and under what circumstances, such funds shall be paid out, unless it be in those cases where fixed rights are conferred by statute. In and of itself, this fact should be decisive of the present in
■ The judgment which the court entered in favor of the. appellee, Lee, for twenty-five ($25.00) dollars per day and twenty cents for mileage is erroneous and must be reversed.
Reversed.