Henley v. State

98 Tenn. 665

• Court: Tennessee Supreme Court
• Decided: May 29, 1897
• Status: Published

Opinions

Wilkes, J.

The question involved in this case is the validity and constitutionality of the Act of the General Assembly of Tennessee passed February 3, 1897, commonly known as the Jarvis law.

The contest arises upon motions made in the Criminal Court of Shelby County to tax against the State certain costs, which motions were allowed, and the costs taxed upon the ground that the Act referred to is unconstitutional and void. The State has appealed. The Act in question is in the words and figures following :

“AN ACT to regulate and restrict the payment of costs axjd fees in criminal prosecutions.

“Section 1. Be it enacted, hy the General As-semhly of the State of Tennessee, That neither the State of Tennessee, nor any county thereof, shall pay or be liable in any criminal prosecution for any costs or fees hereafter accruing, except in the following classes of cases :

‘ ‘ (1) Cases of homicide, rape, ■ robbery, burglary, arson, embezzlement, incest or bigamy, when the prosecution has proceeded to a verdict in the Circuit or Criminal Court;

‘ ‘ (2) Cases under the small offense law, where the defendant has submitted before a Justice of the Peace and been sent to the workhouse; and,

“(3) All cases where the defendant has been convicted in a court of record and the execution issued upon the judgment against the defendant has been returned nulla hona;

“Provided, That neither the State of Tennessee, nor any county thereof, shall be liable for, or pay any costs in any criminal case where security has been accepted by the officer taking the security, and an execution afterward returned nulla hona as to the defendant and his securities ;

“Provided, That the compensation for boarding prisoners, expenses of keeping and boarding juries, compensation of jurors, costs of transcripts in cases taken to the Supreme Court by appeal or writ of error, mileage and legal fees for receiving or conveying criminals and prisoners from one county to another, or from one jail to another,'and compensation and mileage of witnesses for the State duly subpoenaed, and required to attend before any Court, grand jury, or Magistrate -in a'county other than that of their residences, and more than five miles from such residence, and where any witness for the State shall be confined in jail to await the trial in which he is to testify, shall be paid in all cases as heretofore.

“Sec. 2. Be it further enacted, That neither the State of Tennessee nor any county thereof shall pay or be liable in any criminal case or prosecution for the fees, costs, or mileage which may hereafter accrue in favor of any witness who shall, at the time of his attendance as such witness before any Court, grand jury, or Magistrate, reside within five miles of the place where he attends as such witness.

“Sec. 3. Be it further enacted, That this Act take effect from and after its passage, the public welfare requiring it.

“Passed February 2, 1897.”

After the passage of this Act, and while it was in force, on the seventeenth’ of March, 1897, John Henley and others were indicted in the Criminal Court of Shelby County for grand larceny, and were tried and acquitted. If the defendants had been .convicted, officers and witnesses who rendered services in the case, but received no compensation under the Act, would have been entitled to fees or compensation as follows:

Hunter, the Clerk of the Court_$4 30

Carnes, the Sheriff of the county__5 00

Taylor, a Justice of the Peace, who bound, the defendants over for trial....3 63

Witnesses for the State:

Marlet, fees and mileag-e_$6 00

Wilkens, fees and mileage_ 6 00

Shore, fees and mileag-e_ 6 80

Hall, fees and mileage___ 6 80

Kelley, fees and mileage_ 6 96

Battle, fees and mileage_ 6 80

It is said the .Act in question is unconstitutional and invalid because it demands the particular services of individual citizens as officers and witnesses, and takes their property for public use without compensation; that the law is partial in its application, and not a general law of the land; that it deprives persons accused of a fair and impartial trial; and that it amends or repeals quite a number of former Acts, but does not, in its body or caption, recite or refer to such Acts.

To be more explicit as to the grounds of objection, it is said that witnesses and officers are required to give their time and services, and to pay their own expenses, upon the trial of certain cases, and are refused- any fees therefor. It is insisted that time and labor and money expended by witnesses while at trial, or en route, represent just so much property which is thus taken without compensation, and the officers and witnesses are in this way required to give to the State, without pay, that which is valuable to themselves and necessary to their families, while other citizens of the State in such cases are required to contribute nothing.

It is urged, with much earnestness and force, that the .services and property of the citizen are protected by the same section of the bill of rights, and that under it his time and services can no more be taken without compensation than can his farm or his flocks, and it is tersely said that the State has no more right to require an individual’s time and services to make a convict, without compensation, than it has to take the same individual’s corn or wheat, without pay, to feed the convict after he is made, and that such requirement violates the rights of the individual, even though it may be a benefit to the public.

It is further insisted that when the bill of rights was declared in 1796, the common law in America was that witnesses for the State should be paid for their services, and the Constitution provides that the laws then in force should be preserved and remain in existence as though the Constitution had not been framed.

It is conceded that there is a sovereign power superior to the Constitution and not limited by it, and that it is the prerogative as well as the duty of this sovereign power to preserve the State in great emergencies, and, if necessary, to take the property, time, and services of individuals for this purpose, and, if need be, without compensation.

To illustrate: A man’s property, time, and services, it is said, may be required without pay in case of war or invasion, or an individual may be placed in quarantine, and temporarily' deprived of his liberty, if the public safety demand; but these, it is argued, are emergencies, and not matters arising in the ordinary administration of the government. In the ordinary conduct and operation of the government no such emergencies can arise, and in the usual course of administering the affairs of the State no such demands can be made of the citizen.

It is insisted that if a Justice of the Peace or Sheriff, Clerk or witness, is required to render service for the State without compensation, it is to that extent taxing his property and labor, and requiring him thus to bear an unequal part of the burden of the public expense, and that .inequality in burdens, whether in the shape of taxes imposed, services required, or •property taken, is contrary to the letter and spirit of the Constitution, and to the genius of our government.

Again, attention is called to the fact that it is claimed by the State that it is the object and purpose of the law to relieve the State from the immense burden of criminal costs, and it is said that while this is a laudable purpose, and may result in the relief of the State to the extent of many hundreds of thousands of dollars now annually paid out for the prosecution of criminals, still the Act is so framed as to operate unjustly, inasmuch as it does not prevent or extinguish these costs, but simply shifts the burden of bearing them from the body of taxpayers on to the shoulders of the few who, from locality, situation, or other circumstances and conditions, are required to bear them. In other words, the argument is that costs remain the same as heretofore, but they are ' required to be borne by the few whose time and services are taken without pay, while the many who contribute neither time nor service can give the proceeds of their labor to their own advancement and the benefit of their estates and families, relieved of all burdens.

* Again, it is insisted that the law is partial in its application and operation, and not the law of the land, which affects all individuals alike.

It is said there is a discrimination made between witnesses and officers that is arbitrary, and based upon no legal or reasonable ground. To illustrate: In eight named felonies witnesses are' paid whenever trial is had, no matter what the result may be, but unless a verdict is reached, there is no compensation. Attention is called to the fact that a prosecution for one of these offenses may be pending for a time, and costs may accrue. It may then be terminated by death or by the State refusing to further prosecute. In these contingencies, witnesses receive no pay, while, if the case had proceeded to verdict, they would be paid. At the same time they have no voice in saying whether the case shall proceed or not, but in each case they are compelled to give the same time and service, and incur the same expense during the trial or trials.

Again, in other cases witnesses are paid only in the event the accused is convicted. To illustrate: When trials are had but no convictions result, if the crime is rape, the witness is paid; if it is attempt to rape, he is not paid. In bigamy he is paid; in attempt to poison, he is not paid. In embezzlement, he receives pay; in fraudulent breach of trust, he does . not. As a summary, it is stated that, in homicide, rape, robbery, burglary, arson, embezzlement, incest, bigamy,- witnesses and officers are paid if a verdict is reached, no matter wliat that verdict may be; but, in horse stealing, masked marauding, corrupting jurors, suborning witnesses, bribe taking, railroad wrecking, and a large number of other felonies, embracing the great body of criminal offenses, costs are not paid by the State unless the defendant is convicted and the costs cannot be made out of him.

Again, it is said a witness who attends Court from another county than that in which the prosecution is had receives his per diem, but if from the same county, he receives nothing. It is insisted that the discrimination between witnesses is thus made to turn upon the result of the trial or' the local situation of the witness, whether in or out of the county, and not upon the legal nature of the offense, nor in every case upon the magnitude of the crime; and the argument is that the inevitable tendency is to prejudice the accused in his trial, and lead to his conviction.

So, also, as to the fees of Justices of the Peace, the contention is that they are dependent upon the final conviction of the accused. But conviction cannot result unless the accused is bound over for trial upon the merits, and hence the Justice is interested to the extent of his fees in binding the accused over to trial and securing his conviction. ' And the same rule applies to Sheriffs and Clerks, inasmuch as their compensation depends upon conviction. It is, therefore, argued that the Justice’s Court cannot be an impartial tribunal, since his own interest always weighs in the balance in favor of the guilt of the accused. So, also, with Clerks and Sheriffs, to the extent of their influence and opportunity they will be tempted to use them to secure the conviction of the defendant, inasmuch as their compensation depends upon it.

Again, it is said the Act inevitably operates to prevent a fair and impartial trial of the accused. The argument is that, under its provisions, officers and witnesses are, to the extent of their compensation, interested in ■ the conviction of the accused 1n a large number of cases, since it is only in the event of conviction they can obtain any compensation. It is argued that . not only is this true, but, as to witnesses especially, they are compelled to bear their personal expenses while attending Court, and can only look for reimbursement of actual outlays if the accused is convicted, and thus their money is required without any compensation or reimbursement. It is urged with great earnestness that -the result is to make officers and witnesses alert to secure convictions, and thus to prejudice the accused upon his trial.

Finally, it is said also that the Act is in conflict with many other laws standing upon the statute books, and yet these conflicting laws are not repealed, modified, or even referred to in the Act, and it is insisted that, for this reason, the Act is inoperative, unconstitutional, and void under Art. II., Sec. 17, of the Constitution, which provides that all Acts which repeal, revive, or amend former laws shall recite in their caption, or otherwise, the letter or substance of the law repealed, revived, or amended.

We have thus briefly gone over the several objections which have been urged to the constitutionality and validity of this Act, but we have not dwelt upon the details, nor referred to the many able arguments and reasons which have been urged in support of the views advanced. Some of them will be referred to in the further discussion of the matters involved, but all of them cannot be presented in any reasonable space or time.

We are admonished by the subject-matter of the Act, of its extreme importance. We are cognizant, also, of the intense public interest which hangs upon the decision of the case. .We approach its consideration with a due sense of the responsibility which rests upon us. With the wisdom, propriety, desirability, and policy of the Act, this Court can have nothing to do! These are matters which appeal to the intelligence, patriotism, and discretion of the General Assembly, and upon that department of the government rests the responsibility for the wisdom and sound public policy of the law. That body is composed of representatives fresh from the people, and charged by the people with the duty of providing such legislation as will correct the abuses of the body politic and at the same time provide wise measures for the benefit of the State. These representatives are, or should be, in touch with the people; should know their wishes, their burdens, their plans for relief, and "this Court, in passing upon an Act designed to affect the whole people and to correct what is said to be a great public evil, can question the Act only so far as it touches the fundamental law, and measure it by the provisions of that law, and determine whether it has in any particular passed the limits placed upon the power and discretion of the Legislature by the Constitution.

Mr. Cooley, in his work on constitutional limitations, says: “ Except when the Constitution has imposed limits on the legislative power, it must be considered as practically absolute, whether it act according to natural justice or not in any particular case. The Courts are not the guardians of the rights of the peopLe of the State except as those rights are secured by some constitutional provision which comes within the judicial cognizance. The protection against unwise or oppressive legislation within constitutional bounds is -by an appeal to the justice and patriotism of the representatives of the people. If this fail, the people in their sovereign capacity can correct the evil, but Courts cannot assume these rights. The judiciary can only arrest the execution of a statute when it conflicts with the Constitution. It cannot run a race of opinions upon points of right, reason, and expediency Avith the lawmaking power. Any legislative Act which does not encroach upon the powers apportioned to the other departments of the government, being prima facie valid, must be enforced unless restrictions upon the legislative authority can be pointed out in the Constitution, and the case shown to come within them. The moment a Court ventures to substitute its own judgment for that of the Legislature, in any case where the Constitution has vested the Legislature with power over the subject, that moment it enters upon a field where it is iinpossible to set limits to its authority, and where its discretion alone will measure the extent of its interference.” Cooley Con. Lim. (6th Ed.), 200, 201. Our own decisions are thoroughly in accord with this view. McGinnis v. State, 9 Hum., 47; Washington v. Mayor, 1 Swan, 180; Davis v. State, 3 Lea, 378; Ballentine v. Pulaski, 15 Lea, 634; Lynn v. Polk, 8 Lea, 229; Peck v. State, 2 Pick., 262; Williams v. Nashville, 5 Pick., 488; Cole Mfg. Co. v. Falls, 6 Pick., 481; Sutton v. State, 12 Pick., 698.

It is the settled rule in Tennessee, and in the United States generally, that the Legislature has unlimited power to act in its awn sphere of legislation, except so far as restrained by the Constitution of the United States and the Constitution of the State. Bell v. Bank, Peck., 269; Hope v. Deaderick, 8 Hum., 8; Davis v. State, 3 Lea, 377; Stratton v. Morris, 5 Pick., 497; 3 Am. & Eng. Enc. L., 689.

If the Act, therefore, does not violate some provision of the Constitution, this Court has no' jurisdiction or power to lay hands upon it and arrest its execution, whether its provisions are wise or unwise, whether its operation be hurtful or beneficial. If, in the opinion of this Court, however, it does in any material respect violate the fundamental law of the land, it is the duty of this Court to so declare and prevent its enforcement.

This Court does not exercise arbitrary powers in construing either statutes or constitutions. Ordinarily, it will indulge every reasonable intendment favorable to the constitutionality of a statute passed with the required formalities, and a law upon trial for its constitutionality is entitled to the benefit of every reasonable doubt. Morrell v. Fickle, 3 Lea, 81; Garvin v. State, 13 Lea, 162; State v. Yardley, 11 Pick., 550; Cole Mfg. Co. v. Falls, 6 Pick., 466; Ellis v. State, 8 Pick., 93; Cooley Con. Lim. (6th Ed.), 218; 3 Am. & Eng. Enc. L., 673, 674; Sutherland on Statutory Cons., Sec. 332.

Not only is this so, but that construction will be favored which will sustain the law, if it admits of question and doubt. Home v. Railroad, 1 Cold., 74; Railroad v. Crider, 7 Pickle, 506; Ellis v. The State, 8 Pickle, 93; Cole Mfg. Co. v. Falls, 6 Pickle, 466; The State v. Yardley, 11 Pickle, 546-554.

Hence, it is the settled rule of this Court that he who insists upon the unconstitutionality of an Act must point out the specific provision of the Constitution which it expressly or by unavoidable implication violates. It cannot be annulled upon supposed natural equity, the inherent rights of freemen, or upon any general or vague interpretation of a provision of the Constitution beyond its plain and obvious import. Davis v. The State, 3 Lea, 377; Stratton v. Morris, 5 Pickle, 497.

Mr. Cooley tersely says: “Nor are the Courts at liberty to declare an Act void because, in their opinion, it is opposed to a spirit supposed to pervade the Constitution, but not expressed in words.” Cooley on Const. Lim., 6th Ed., p. 204.

And whether a statute is contrary to the genius of a free people is a question for the Legislature, and not the Courts. As bearing upon this question, we cite Bell v. The Bank, Peck, 269; Hope v. Deaderick, 8 Hum., 8; Demoville v. Davidson Co., 3 Pickle, 220; Stratton v. Morris, 5 Pickle, 511; Redfoot Lake v. Dawson, 13 Pickle, 159; Davison v. The State, 3 Lea, 377; Luehrmann v. Taxing Dist., 2 Lea, 438.

It is insisted that the Act violates Sec. 21, Art. I., of the Constitution, which is in these words: “That no man’s particular services shall be demanded or property taken or applied to public use, without the consent of his representatives, or without just compensation being made therefor.”

Is is evident that the term ‘‘particular services ’ ’ used in this section must be given some significance and meaning. It will be noted, also, that a distinction is made between “particular services” and “property,” or both would not have been mentioned in the same connection.

This provision has been debated before us, in the main, as though it read that particular services should not be demanded without both the consent of the representative and just compensation, and we will so treat it in the disposition of the case.

It will be noted, however, that the disjunctive conjunction “or” is used, and a plausible if not the natural construction would be that either the consent of the representative or just compensation would warrant the taking of such services. It is not, however, desired to place the determination of the case upon such construction. We have not had the opportunity to trace the history of this phrase “particular services” in order to ascertain its origin -or its primary application. It is found in identically the same language in the Constitution of 1796, 1834, and 1870. It comes first into our judicial history with the ordinance of the Continental Congress, passed in 1787, for the government of the territory northwest of the Ohio River, and in 1790 was extended to the territory southwest of that river. It was not carried' into the Federal Constitution, and has been inserted, so far as our investigation has gone, into the Constitutions of only three States — Tennessee, Indiana, and Oregon.

Particular services must mean peculiar services; limited services; not ordinary or general, services of an individual. It is not an easy matter to draw the distinction between particular and ordinary services in every instance, still some general rules may be given to mark the line. It seems clear that ordinary services, such as may be required of all citizens, or officials, by general or valid special laws, are not particular services. A single illustration may suffice: A physician cannot be required to give his time and services and skill and scientific knowledge in making an examination to qualify him to speak as an expert witness. If, however, the same physician may have already made an examination and come into the possession of facts material to be disclosed to attain justice and administer the law, he may be required to testify to them as any other witness may.

In Indiana the constitutional provision is, “No man’s particular services shall be demanded without just compensation.” Constitution of Indiana, Art. 1, Sec. 21. In Israel v. State, 8 Indiana (James), 467, it was held that the services of witnesses in criminal suits were not ‘‘ particular services ’ ’ within the meaning of the provision, but were general services, such as every individual was bound to render when called upon for the public welfare as well as his own individual good.

In Oregon the constitutional provision is: ‘ ‘ Nor [shall] the particular services of any man [be] demanded without just compensation.” Art. 1, Sec. 19, Oregon Bill of Rights. In the case of Daley v. Multnomah Co., 14 Oregon, 20, this provision was construed. An Act was passed to prescribe the fees of witnesses in Multnomah County, and it provided that in all criminal proceedings and actions, witnesses residing within two miles of the place of trial or where they were required to appear and testify, should not have either fees or mileage.” Session Laws, Oregon, 1885, p. 10.

It was contended this was contrary to the provision of the Constitution.

The Court held, in the language of the Indiana case above cited, that “it is as much the duty and interest of every citizen to aid in prosecuting a crime as it is to aid in subduing any foreign or domestic enemy, and it is. equally the interest and duty of every citizen to aid in furnishing to all, high and low, rich and poor, every facility for a fair and impartial trial when accused, for no one is exempt from liability to accusation and trial. These are matters of general interest and public concern — are vital, indeed, to the very existence of free government — and render the services of witnesses on such occasions matters of general public interest, and not ‘ particular ’ in the sense of the Constitution. ’ ’

This construction is approved, also, in the cases of Buchanan v. State, 59 Ind., 12, and Dills v. State, 59 Ind., 18.

In our own. State we have the case of Washington v. Mayor of Nashville, 1 Swan, 180. In it the laying of a sidewalk in front of his own property was refused by Washington, upon the ground that it was the ‘ ‘ taking of his particular services ’ ’ without compensation.

The Court held the contention not maintainable, and said: “The principle upon which this power of legislation is exercised is that plain and universal one, indispensable to the administration of government, that the public has a right to the contribution of the money and personal services of all its citizens whenever the public interests and exigencies demand it, in consideration of the protection it affords to life, liberty, reputation, and property.”

In Wright v. State, 3 Heis., 256, it was held that the services of an attorney might be required to defend a prisoner, and without compensation, and this was reaffirmed in House v. White, 5 Baxter, 692, where the Court says: “The principle of the organic law which forbids the demand of anyone’s particular service has no application. to such a case. When a lawyer receives a license, he takes it burdened with these honorary obligations. ’ ’

But it is said that attorneys are officers- of the Court, and for this reason their services can be required. So also are Sheriffs and Clerks officers of the Court, and, upon principle and analogy, service may be required of them also. The lawyer takes his license burdened with the obligation to defend pauper prisoners, so the Sheriff and Clerk must take their offices burdened with similar conditions and requirements.

In Neely v. The State, 4 Bax., 174, it was held that service upon the jury was not a particular service for which compensation might be demanded or the service refused. The Court in that case said: “It is one of the implied and necessary conditions upon which men form governments that sacrifices must be made by individuals for the common good, for which no compensation can be claimed. Such sacrifices of time or personal service, or of property, are compensated for in the protection which the government furnishes for their rights of person and of property. Hence, whenever, in the .judgment of the Legislature, it becomes necessary to require the service of jurors in carrying on the Courts, their services may be demanded, and, if need be, without compensation, but they must be required in pursuance of laws enacted for that purpose by the Legislature. ’ ’

Citizens may be required to work on the public roads, were required to serve in the militia, to serve as officers at elections; witnesses may be compelled to appear and testify for insolvent suitors; Clerks may be compelled to issue process in such cases; a Sheriff may be compelled to execute such process; jurors may be compelled to serve for a day. In all such cases the only compensation received is that benefit which results to the community at large. There are numerous other cases in which officers and witnesses are denied compensation out of the public treasury for their services.

A witness who is a prosecutor in a misdemeanor case is allowed no compensation. Code (Shan.), §7600. Witnesses are allowed for only one day before the grand jury, and for only a prescribed number of days and cases at the same term. District attorneys are allowed only half fees when paid out of the county treasury, upon conviction and return of nulla Iona. Code (Shan.), § 6379.

They get no fees upon a nolle prosequi of a misdemeanor, or when the indictment is ignored, or the prosecution fails by their fault. Code (Shan.), §§ 7590, 6380, 6383. Only half fees are allowed on acquittals. Shan., § 6376, and numerous similar instances may be cited.

But there is another view of this matter of costs against States and counties that must be considered. The right to costs is not a common law right, but depends wholly upon statute. The rule was that the king should neither pay nor receive costs. The former was his prerogative and the latter was beneath his dignity. The same rule is applied in the United States in suits, either civil or criminal, in which the Federal or «- State governments, including county and municipal corporations, when acting as an arm or agency of the State, are parties, and they are accordingly only liable for costs when the lawmaking-power by statute has made them so. 5 Am. & Eng. Enc. Plead. & Prac., 151. Hence, a Court cannot, ere officio, give costs for or against anyone. Mooneys v. State, 2 Yer., 578; Morgan v. Pickard, 2 Pick., 208.

And, in all cases, the strictest rule prevails in construing the liability of the State therefor. State v. Odom, 9 Pick., 446.

And the same rule applies in regard to counties. State v. Blackburn, 33 S. W. Rep., 530.

So, a statute making the Sta 1;n,ble for all costs of criminal cases is construed , mean only State costs, and not costs of defendant State v. Barton, 3 Hum., 13; Prince v. State, 7 Hum., 137; Tucker v. State, 2 Head, 556.

And a statute giving costs in general terms, though unqualified, will not make the State liable therefor. 3 Bl. Com., 399; 3 Am. & Eng. Enc. Plead. & Prac., 151, 152; 4 Am. & Eng. Enc. L., 314, 316, 323; Endlich on Inter, of Statutes, Sec. 161.

The Courts and Legislatures have always treated the granting of costs against the State and county as a matter of purely legislative discretion and policy, and not a matter to be left to the Courts, except as to their apportionment between the parties in equity cases.

As to what costs shall be allowed against the State and county is a matter which addresses itself solely to the wisdom and discretion of the General Assembly. It is true, costs have been allowed by statute from time to time, until it is asserted a vast system has grown up and settled down upon the public treasury, and, in the opinion of the Legislature, the payment has become burdensome, and 'a menace to the interests of the public. It was this condition of affairs which prompted the passage of the Act in question, by which the Legislature, in effect, refuses to pay costs or allow judgments or appropriate money for such purposes out of the public treasury in certain cases. The Constitution, Art. XL, Sec. 24, provides that no money shall be drawn from the State treasury but in consequence of appropriations made' by law; and it is further provided that the State shall be liable to suit only in such manner and in such Courts as the Legislature may direct. Constitution, Art. L, Sec. 17.

Cnder this provision of the Constitution, it. is held that, even if the State consent to suit, she may withdraw that consent, while the litigation is pending. Watson v. Bank, 3 Bax., 395; State v. Sneed, 9 Bax., 479.

The State has accordingly refused to allow herself to be sued, even upon her solemn bonds, impressed with her great seal, and containing upon their face a pledge of the faith and credit of the State, and this Court has upheld the law. Lynn v. Polk, 8 Lea, 121.

It may result in an apparent or real hardship to officers and witnesses to be denied fees, still it is not a question of constitutional authority, but of legislative policy and wisdom.

In Avery v. State, Judge McFarland said:

‘‘ There is an apparent hardship in requiring the Clerk to perform services for which he may, in the event the defendant is insolvent, and in other events, receive no compensation, as there is in requiring a defendant who is found not guilty to defend himself at his own expense; but so the law is Avritten, and there are perhaps other equally hard cases for which the law makes no provision.”

The Legislature has from time to time attempted to check the evil of excessive costs. By the Code of 1858 officers are forbidden, under severe penalties, to demand fees when not authorized by law. Sec. 4517. In no case are they entitled to payment from the State or county unless expressly allowed. Code, £ 5561.

One article of the Code of 1858 Avas entitled: * ‘ Provisions to prevent the accumulation of costs ’ ’ in criminal cases. It required the Court to designate a day for the call of the State docket, and to adopt rules that would ‘£ tend to diminish the costs of such cases.” The Attorney-general is required to have indictments ready, and “to so manage the State’s business as to detain witnesses only one day to go before the grand jury.” The Clerk is forbidden to issue subpoenas for State witnesses, except upon the written order of the Attorney-general. Witnesses are .allowed only one day’s attendance before grand jury, 1(4 unless longer retained by order of the Court.” The Judge and Attorney-general are required to examine and certify all bills of costs, and the Comptroller and Chairman of the County Court are forbidden to pay except upon such certificates, and are also required to examine the bills. These provisions, and others of a like character, indicate that even prior to 1858 there was some appreciation of the difficulties of, keeping this matter of criminal costs within due bounds. Code, §§ 5594, 5604 (1858).

But the provisions of the Code of 1858, stringent as they were, proved ineffectual to protect the public treasury against the payment of unjust, excessive, and fraudulent bills of cost. To remedy or mitigate this evil, several statutes have been enacted since 1858. Only the more important of these will be noticed. .

Acts 1879, Chap. 210, undertook to discourage the accumulation of costs by making it a misdemeanor to speculate in witness or officers’ fees, except “ witness fees traded for merchandise or hotel bill.” The constitutional^ of this Act was promptly and vigorously assailed. This Court, at its December term, 1879, sustained the Act, saying that the argument impeaching it was 11 made to turn on general principles rather than on any specific provision of the Constitution.” ‘ Of the objects of the Act the Court says: “The Legislature intended to break up a particular kind of speculation in these fees which it thought detrimental to the public interests, etc. Of the wisdom of the Act the Legislature, the lawmaking power, is the exclusive judge.” Davis v. State, 3 Lea, 376.

While this Act continued in force, the occupation of the speculator in fees was gone. Professional witnesses, unable to get ready cash for their fees, were greatly discouraged. This Act was, however, repealed by the Acts 1881, Chap, fil, having been in operation about two years.

Acts 1889, Chap. 139, was afterwards enacted, authorizing and requiring the Judges and Attorneys-general, whose duty it is to certify Justices’ bills of cost for payment, to go behind the Justices’ certificate as to their correctness, and to examine and inquire into such bills fully, and to' disallow them if it should appear that the prosecution “is frivolous, malicious, or commenced to procure fees.”

This statute, it is alleged, was brought about by the acts of Justices and Constables and witnesses, who, in many instances, it is charged, had conspired together to defraud the State and oppress the people for tho selfish, mercenary purpose of gain. This Act met with vigorous opposition. It was not strictly enforced. Finally, however, it came before the Supreme Court, at Knoxville, and this Court approved and sustained tho Act. Upon authority of this opinion many thousands of dollars of costs was stricken out in Knox County alone. By Acts of 1891, Ch. 22 (Ex. Ses.), another advance step was taken in this matter by the Legislature. This statute changed, from the State to the county, the costs of the prosecution of felonies, when the cases were disposed of before trial.

The striking reform features of the Act, however, were that it authorized and required the Judges and Attorneys-general to examine all bills of cost in criminal cases, and to disallow any that might be ‘ ‘ illegally or wiongfully taxed against the State or county,” and authorized and required the Comptroller and Judge or Chairman of the County Court, to examine into all certified bills of costs, and to disallow any that had been “illegally or wrongfully taxed against the State or county,” and provided, finally, that “the State Comptroller and Judge or Chairman of the County Court, may disallow any and all cost taxed against the State or county on account of malicious, frivolous, or unnecessary prosecution, in the event the Judge or Attorney-general, by mistake or otherwise, approved any of such bills.” This Act has been before this Court more than once for construction, and its validity has never been seriously questioned. Stout v. State, 7 Pickle, 405.

The next in order of time is the Act of 1895, defining larceny and making the counties liable for costs of prosecution for that offense. Acts 1895, Oh. 205. This Act was declared unconstitutional on account of a defective caption. Shelton v. State, 12 Pickle, 521. This was the last effort of legislation to suppress the growing evil of criminal costs before the passage of the present Act. -

Every Act passed by the General Assembly to prevent the accumulation of unnecessary and improper costs has been upheld by this Court, if the Act was passed with the formalities required by the Constitution, and without any question as to its wisdom. The necessity of some further legislation appears from the fact that all former efforts, seemingly well directed, to remedy the evil and diminish criminal costs had failed, in a large measure, of the desired results.

In the arguments we are furnished the following table, prepared by the State Comptroller, which indicates the extent of the State’s liability for costs of criminal prosecution:

Table op Amounts Paid fob Ceiminal Pbosecution fhom 1876 to 1894, Inclusive.

Deo. 20, 1876, to Dee. 19, 1878 _$393,406 71

Dec. 20, 1878, to Dee. 19, 1880_ 399,443 20

Dee. 20, 1880, to Dee. 19, 1882 _ 357,895 15

Dec. 20, 1882, to Dee. 19, 1884 .. 378,255 39

Dee. 20, 1884, to Dec. 19, 1886 _ 385,112 69

Deo. 20, 1886, to Deo. 19, 1888 _ $378,131 11

Dec. 20, 1888. to Dec. 19, 1890 _ 398,708 82

Dec. 20, 1890, to Dec. 19, 1892 _ 415,214 11

Dec. 20, 1892, to Dec. 19, 1894 .. 490,680 40

Dee. 20, 1894, to Dec. 19, 1896 _417,615 34

The above does not embrace salaries of Judges or prison expenses. The cost paid by the counties is a little more than double the amount paid by the State.

In a recent case of Leahy v. State, at Knoxville, this Court disallowed fifty-eight out of sixty-eight bills of cost sent up by a Justice of the Peace from Knox County to the County Judge of that county. The cases were declared frivolous, and the entire bills of cost, amounting to thousands of dollars, including fees of witnesses, were disallowed. The protection of the public from improper costs was a paramount consideration, and this was done by this Court in pursuance of statutes enacted by the Legislature. The constitutional guarantee of compulsory process to require witnesses to attend Court and give evidence does not require the State to provide for the expenses of obtaining their attendance. Avery v. State, 7 Bax., 331. And witnesses may be compelled by the State to attend and give evidence without compensation. Burnett v. Kroth, 1 Am. St. Rep., 248.

If it be conceded that there is an absolute obligation to give compensation, it is equally imperative that such compensation be just, and yet it is well known that the services of one witness may be worth many times that oí another. The service of an expert in one department is much more costly than that of another in a different department. -

It is said the Act is a revenue measure. This is not correct. It is not a mode of taxation. It is a measure not to collect money but to protect that which has already been collected from the taxpayers. There is also a marked difference .between taking the services of an individual and taking his property under the law of eminent domain. Taylor v. Chandler, 9 Heis., 360.

It is proper to remark, also, that there is nothing in the Act in question that requires any service of any officer or witness. The Act nowhere provides that witnesses shall attend or that officers shall do service of any kind. These matters are all provided by other Acts, which are not brought in question in this suit, but none of them are required by the terms of this Act. No officer or witness has declined to render service, and the question is not presented whether such witness or officer can be required to render service where he will not receive compensation. When some officer or witness does refuse such service, the question may arise whether they can be required, in view of the fact that they will not or may not receive compensation. Here the service has been rendered without protest or objection, and the only question is, whether the State shall be required to pay for such service contrary to the provisions of this Act.

But it is said the Act is not general, and thus made the ‘ ‘ law of the land, ’ ’ but is partial in its operation, and limited to classes, and these classes are not marked by natural and reasonable lines, but by tests which are arbitrary and capricious. “The law of the land ’ ’ is defined to be a law which embraces all persons who are already or who may thereafter come into similar situations, conditions,- and circumstances. Mayor v. Dearman, 2 Sneed, 204; State v. Rancher, 1 Lea, 97; Davis v. State, 8 Lea, 397; Maney v. State, 6 Lea, 221; Hatcher v. State, 12 Lea, 371; Woodard v. Brien, 14 Lea, 623; Stratton v. Morris, 5 Pick., 499.

It is also held that if a law is intended to affect particular classes only, it must, in order to be valid, not only apply to all persons who are or may be in like circumstances, situations, or conditions, but the classification must be natural and reasonable, not arbitrary and capricious, and must rest upon some sound and legal ground. Bank v. Cooper, 2 Yer., 600; State v. Staten, 6 Cold., 233, 245; Knox v. State, 9 Bax., 202, 207; Stratton v. Morris, 5 Pickle, 542; Dugger v. Insurance Co., 11 Pickle, 245, 258; Sutton v. State, 12 Pickle, 696, 710; Anderson’s Cons. Law, 37; Cooley’s Cons. Limitations, 390; Ex parte Jentzech, 32 L. R. A., 664, 666; 3 Am. & Eng. Enc. L., 697. These cases lay down the general rules of law relating to the matter of classification. It is difficult to see how these cases or the matter of classification can apply in this case.

We have already held that neither the State nor county is liable for any costs unless the Legislature has so provided. It is therefore simply a question whether the State and county will pay costs for certain services, and is not a matter of partial or class legislation. But if it were, from the very nature of the case, the General Assembly must, to a very large degree, be the judges as to whether the classification adopted is reasonable or capricious. That body, more than others, is acquainted with the evils and abuses which it is desired to correct and with the ways and means at their command to remedy such abuses and evils.

Its members come from every section of the State, and can take a wider view of the entire situation than can be taken by the Courts. So it may, in its .wisdom, deny costs altogether or allow in such cases and to such extent as it may deem best in the exercise of a sound public policy. While, therefore, it is not incumbent on this Court to critically question the classification adopted, and it would be improper to do so, still it is easy to see the general idea and system which has been adopted, and the reasons for the discriminations made.

It is the evident general purpose to insure the vigorous prosecution of the eight principal felonies named because they are the most heinous crimes, and, at the same time, cases in which frivolous and unfounded prosecutions are most rarely met with. In regard to the smaller felonies and misdemeanors, the evident purpose is to discourage and prevent the large number of frivolous and groundless prosecutions which have caused such a burden of expense on the State and county. This evil of frivolous prosecutions for misdemeanors and the smaller felonies, it is claimed, has gone to an enormous extent, and it is stated that they are not, in a majority of cases, prompted by any other motive than a desire to tax up fees and costs, and to certify them for payment to the Treasurer of the State and counties, and, while it is conceded that abuses may result from the operation of the Act in question, it is maintained that they cannot reach such proportions as now obtain in the unfounded prosecutions set on foot and pressed, not for the public good but to create fees for officers and witnesses.

The classifications of the law in regard to the compensation of witnesses, are likewise based upon what is called the attendance and service of professional witnesses. It is alleged that there is a class who make a business of giving testimony, especially in minor criminal offenses. These are found residing around the courthouses and places of trial, and hence the law provides no fees or mileage for a witness who resides within five miles of the place where he attends as a witness.' In case of such witnesses, when worthy of any' fees, attendance is not such a burden as it is when he lives more re'mote or beyond the limits of the county. Whether the classifications as to witnesses and as to crimes may prove the best that can be made may admit of question. At any rate they are not without grounds and reasons which the Legislature deemed sufficient.

We come now to inquire whether the law deprives a man of a “ fair and impartial trial. ’ ’ It seems to have been assumed in many quarters, but not in argument, that the Constitution provides that every accused person shall have a fair and impartial trial. The Constitution does not contain such provision. Its provisions are that the accused shall have the right to trial by a jury, and that right shall remain inviolate. In what does the right consist, and what is its extent so far as the Constitution goes? It is that the trial shall be speedy and public; that the jury shall be impartial; that the accused shall have the right to compulsory process for his witnesses, to have them present in person at the trial, to meet them face to face; that he shall have the right to be heard by himself and counsel; and that he shall not be compelled to testify against himself; and that he shall have a copy of the accusation against him.

There is no provision for impartial Sheriffs or impartial Clerks or impartial witnesses. Indeed, such a requirement would go beyond the power of the "Legislature. It is true that our cases speak of “fair and impartial trial.” But these are, at best, but comparative terms. It is beyond the reach of the Legislature to secure a trial absolutely fair and impartial, and, when the term is used, it means a trial under the Constitution and according to law. Clap v. State, 10 Pickle, 186.

Let us look for one moment at this matter of an impartial trial as it affects the witnesses in a case. It is a matter of common observation that witnesses are partisan, prejudiced, and often directly interested either in conviction or acquittal of the accused. To such an extent is this true that the principal office of counsel is to point out the untrue, biased, and prejudiced statements of witnesses, and one of the chief difficulties in reaching justice is in penetrating their evasions, deceptions, and prevarica-' tions. Every charge to the jury warns them to beware of this interest and bias of witnesses.

No constitutional convention or General Assembly ever supposed for a moment that witnesses could, by any legislative means, be rendered impartial. On the contrary, under the law, defendants are allowed to testify in their own cases, when it is evident that their evidence cannot be impartial. So, also, the prosecutor is allowed to testify when, in a large number of cases he cannot, while smarting under the wrong inflicted on him and his desire to bring tlie accused to punishment, be impartial.

It is said, however, that a moneyed inducement is offered to officers and witnesses to convict the defendant. Tn other words, it is only in cases of conviction that fees and compensation can be secured. If we grant this to be true, still it is a matter which addresses itself to the wisdom and discretion of the General Assembly. Grundy & Co. v. Tenn. Coal Co., 10 Pickle, 295.

It cannot be denied that designing men can prostitute almost any proceeding to selfish, improper, and corrupt purposes. The State is as much interested, even more concerned, in preventing the annoyance and vexation of the citizen by unfounded and frivolous prosecutions than she is in bringing real offenders to trial and punishment. If the new law says, in effect: “Convict, and you shall be paid,” the old law says, ‘‘ Prosecute, and you .shall be paid whether you convict or not.” If the new law offers an inducement to convict, the old law offers a still more potent and ready inducement to prosecute, whether there is or is not ground for it. It is placing a low estimate upon the integrity of the citizen to assume that for a paltry sum he will be willing to perjure himself and do injustice to his fellows, and the General Assembly may hav'e acted upon this view and been content to trust the honor and integrity of the people, a's it must do in every law and under every emergency.

It is claimed that under the existing system abuses of gigantic magnitude have sprung up, and have grown and flourished and fattened upon the public treasury. We are told that this has gone to such an extent that speculation in prosecutions has. become a business in the cities and towns. Whether it is a greater evil to incur the remote probability that some innocent man may be convicted from mercenary motives, or to encourage the present wholesale bringing of trivial and baseless charges and prosecutions in order to obtain fees, can hardly admit of question. It will be noted that the Act guards the jury from any supposed improper influence, by providing for its payment in any event, as heretofore. Also, as to Justices of the Peace, it is evident that the influence supposed to operate upon them is quite remote and indefinite. In the event of submission, which is the only case in which the Justice disposes of the matter, final provision is made for his fees. In all other cases he has power only to bind over the accused to be tried in another tribunal, and in that tribunal the Justice has no voice.

It is evident that undor this Act the Court and jury are left impartial, as before — nothing that affects them is left to depend upon the result of the trial. The fees of the Sheriff or other officers for summoning and attending upon the jury are still paid out of the treasury, and not taxed as costs in the cases tried. Shan., § 6402, Sub-secs. 10, 11, 25; §6410, Sub-sec. 8. The Clerk is but an amanuensis of the Court to enter its orders. If any officer is disqualified because of interest, his place may be supplied, as was indicated in the Clapp case. It will thus be seen that the Act jealously guards the prisoner’s right to a fair and impartial jury.

The voice of this Act is not, Ave think, one of temptation to bribery, but one of caution ami warning. To officers and witnesses it utters salutary words. In effect, it says: “Beware that you do not set on foot frivolous, vexatious, or malicious prosecutions, . that burden the public with costs and oppress and annoy the citizen. The name and funds of the State must not be used for this end. Bring only just and substantial and well-founded charges into Courts — such as will not only secure a favorable judgment before the committing Magistrate, but before the grand jury and before the trial jury. If you oppress and annoy1 the citizen with charges that are dismissed by -the committing Magistrate, or ignored by the grand jury, or dismissed without trial, or cannot be sustained on a trial, then you lose your time and labor. The State and county will refuse to pay you for the fruitless and oppressive business. An exception will be made, however, as to acquittals of the eight principal felonies, as it is of great public concern that they should be prosecuted, and as they are seldom the subject of frivolous prosecutions, and from their character ' cannot be. ’ ’

Justly construed in the light of the true situation, this is the meaning of the Act in question.

It is true, as stated by counsel, that when the Constitution of 1796 went into effect, officers and witnesses were entitled, under the law theretofore existing, to receive pay for their services, and it is also true that that instrument provided that all laws in force when it was adopted should remain in force, and rights then existing should continue as though no Constitution had been made, but it is also true that the same section provides that all such laws might be altered, amended, or repealed by subsequent legislation. Constitution of 1796, Art. 10, Sec. 2; Schedule, Sec. 1.

When, by Sec. 6 of Art. I., it was declared that the right of trial by jury should remain inviolate, it did not mean that no law should in the future be passed to regulate such trials and prescribe the practice in such cases, but that the right should not be denied to the citizen, with its material and substantial benefits. Eason v. State, 6 Bax., 475; McGinnis v. State, 9 Hum., 47; Trigally v. Memphis, 6 Cold., 382; Hogan v. Chattanooga, 2 Leg. Rep., 12.

Accordingly, it has been held that statutes which, by direct enactment, make reasonable regulations as to evidence do not violate the right of trial by jury. Yardley case, 11 Pickle, 563; Railroads v. Crider, 7 Pickle, 489. New classes of witnesses — for example, parties in civil suits and defendants in criminal cases — are admitted, and this does not violate the Constitution in letter or spirit. The witness, at best, has but a scintilla of interest, and this goes to his credibility. The right of trial by jury was not violated by the Act prescribing that parties must demand it in order to obtain it. No one questions but that the accused is entitled to a fair and impartial trial, but it equally means a trial under the Constitution and law.

It is also true that the entire body of the common law, as it existed when the Constitution went into effect, was made the law of the land by that instrument. McGinnis v. State, 9 Hum., 43; Trigally v. Memphis, 6 Cold., 382; Neely v. State, 4 Bax., 180.

But it was never for a moment supposed that these laws could not be altered, amended, repealed, or added to by subsequent Legislatures, as they, in their wisdom, might deem best, the only restrictions being those thrown around such legislation by the Constitution.

Again, it is said that the Act is unconstitutional because it is amendatory of the general law on the subject of fees and costs, and yet does not refer to the laws thus amended.

This is not an amendatory Act. It is a new and original law. If it can be held to be a repealing law or an amending law, it is so only by necessary implication, and in such cases the Acts repealed or amended need not be referred to in the caption or certificate of the new law. Home Ins. Co. v. Taxing List., 4 Lea, 650; Maney v. State, 6 Lea, 218; Railroads v. Crider, 7 Pickle, 506; Knoxville v. Lewis, 12 Lea, 181; State v. Yardley, 11 Pickle, 546, 559;. Ballentine v. Pulaski, 15 Lea, 633; Poe v. State, 1 Pickle, 495; Hunter v. Memphis, 9 Pickle, 571.

We are of opinion, therefore, that the Act in question is free from constitutional objection, and this Court has no power to refuse its enforcement, whether it is wise or unwise, whether hurtful or beneficial in its tendencies and operation.

The judgment of the Court below is, therefore, reversed, and the costs allowed are stricken out as unwarranted against the State and county, and the parties interested therein will pay the costs of this proceeding in this Court and in the Court below.

Judges Caldwell, McAlister, and Beard concur in this opinion, Chief Justice Snodgrass does not concur, and states the grounds of his dissent.