Schmelzel v. Board of County Commissioners , 16 Idaho 32 ( 1909 )

AILSHIE, J.

This is an appeal from a judgment of the district court reversing an order of the board of county commissioners of Ada county. The respondents, a firm of barbers, doing business in Boise City, presented to the board of commissioners of Ada county a bill for the sum of $81.65, charged by them for services in shaving jurors and cutting their hair while serving as jurors in the cases of State v. Haywood and State v. Pettibone, theretofore tried in the district court in and for Ada county. The board of commissioners rejected the bill and refused to allow the same on the ground that the charge is not authorized by law. The claimants appealed to the district court and the order of the board of commissioners was reversed and they were directed to audit and allow the bill. The board of commissioners have appealed from the judgment.

The only provisions to be found in the statutes of this state relative to compensation of jurors and their care are to be found in the following sections: Sections 6136 and 6137 of the Revised Codes provide for per diem compensation of jurors and the mileage to be paid them. Sections 7900 and 7901, Revised Codes, are as follows:.

“See. 7900. A room must be provided by the commissioners of each county for the use of the jury upon their retirement for deliberation, with suitable furniture, fuel, lights and stationery. If the commissioners neglect, the court may order -the sheriff to do so, and the expenses incurred by him in carrying the order into effect, when certified by the court, are a county charge.”

“Sec. 7901. "While the jury are kept together, either during the progress of the trial or after their retirement for deliberation, they must be provided by the sheriff, at the expense of the county, with suitable and sufficient food and lodging.”

It will be seen at once that none of the provisions of the foregoing sections apply to the particular charge involved in this action. It must also be conceded that the allowance of costs is a matter dependent wholly upon the statute, and where there is no statute authorizing it, no costs can be allowed. (11 Cye. 24, 493, and eases cited.) It seems to be admitted by respondents in this ease that the bill ordered paid cannot be sustained or justified as items of coste, but that if sustained it will, at most, rest upon the “inherent power of the court to authorize the performance of the services which were performed by respondents,” so as to thereby become a legal charge against the county. It is contended that under the provisions of section 13, article 5 of the constitution, providing that ‘ ‘ The legislature shall have no power to deprive the judicial department of any power or jurisdiction which rightly pertains to it as a co-ordinate department of the government,” etc., it would be an interference with thé inherent power of the courts, as the constituted tribunals for the administration of justice, if the legislature could, by a failure to enact a statute, cut off the necessary and incidental expenses that must inevitably attend the administration of the judicial functions of the court. We think, upon the outset, that, without discussion or controversy, it must be admitted that the courts have the inherent power and authority to incur and order paid all such expenses as are necessary for the holding of court and the administration of the duties of courts of justice. (State v. Davis, 26 Nev. 373, 68 Pac. 689; Board of Commrs. v. Stout, 136 Ind. 53, 36 N. E. 237, 22 L. R. A. 398; In re Janitor of Supreme Court, 35 Wis. 410; Stowell v. Jackson Co. Supervisors, 57 Mich. 31, 23 N. W. 557; Bates v. Independence Co., 23 Ark. 722; Fernekes v. Milivaukee Co. Supervisors, 43 Wis. 303; State v. Armstrong, 19 Ohio, 116; White v. Polk Co., 17 Iowa, 413.)

We conclude, without further discussion or citation of authorities, that if the expense incurred for which this claim was presented was a necessary incident in the administration of justice, then it should have been allowed and the judgment of the trial court is correct. But if, on the other hand, it was not a necessary expense in order to administer justice in the court in which it was incurred, then it is unauthorized, and cannot be recovered against the county. It is claimed that this was an extraordinary case, and that in one of the state cases in which the jurors were shaved by respondents, the jurors were kept together continuously for about two months, and in the other case they were kept together continuously for about' one month. It is insisted by respondents that it was necessary from a sanitary point of view, as well as for the comfort of the jurors, that they should be shaved and have their hair cut. It is also argued that they could not go to the barber-shop themselves and secure this service, for the reason that they were kept together and under the guard of court bailiffs, and that it was therefore necessary to have the barbers go to the jury-room and there perform this service. Conceding these things as true, the barber could have as easily gone to the jury-room and shaved the jurors and cut their hair at the expense of the individual jurors as he could at the expense of the county. The dangers of their being tampered with or subjected to undue influence by the process would have been no greater if the individual jurors were paying the bill than if the county were becoming liable for it. The necessity for this was not entailed or brought about by reason of the men serving on the jury. Their whiskers and hair would grow just the same at home or at their offices or places of business as they would while serving on the jury. There is nothing peculiar or special about jury service that will cause whiskers and hair to grow. If the jurors had been at home or elsewhere about their business in their usual avocations, it would have been just as necessary for them to have shaved themselves or have gone to a barber for this service as it was for them to have the-service while serving on these juries. The demands and necessities for this service would be no greater than the necessity might be under some circumstances for having a juryman’s laundering done by the county while he is serving on the jury. We apprehend that no one would seriously contend that the county can be held liable for clothing and laundering for jurors while kept together, and still the same reasons may be urged with equal force in support of such a charge as for the charge claimed in this _case. Sanitary and humanitarian considerations, as well as the comfort and convenience of jurors, might as urgently demand these comforts as they would demand a hair-cut and a shave. The answer is that such requirements are not the result of jury service and are not' covered or contemplated by statute. The statute directs that jurors shall be paid certain per diem compensation and mileage, and that in addition thereto, when kept together, either during the progress of the trial or after their retirement for deliberation, the county shall furnish them with suitable room, furniture, fuel, lights and stationery, and. sufficient food and lodging. These things are furnished the jurors in addition to their mileage and per diem compensation. If the legislature had intended that t'he county should furnish anything else, .they would have included it in the statute. The legislature has a right to fix the compensation, and they could have added a charge of the character involved in this action if they had seen fit to do so. Until it is so provided by statute it is clearly unauthorized. If the courts go beyond the statute for one thing that is not inherently necessary for the administration of justice, they may do so for another item, and there will be no limit to such expenses. There is no merit in the argument' that the jurors deserved to have this paid by the county. Everyone may admit that. The compensation they receive for such services is very meager, and but few would be willing to discharge the duties' in consideration alone of the compensation allowed. It is, however, the fluty of every good citizen to serve his state as a juror when called upon. That is a part of his duties as a citizen, and in the absence of a statute authorizing compensation, he would be obliged to do so without compensation. It has been so held in many states. (Justices v. State, 24 Ga. 82; White v. Panola Co., 12 Tex. 173; Person v. Ozark Co., 82 Mo. 491; Bright v. Pike Co., 69 Mo. 519; Van Epps v. Mobile Commrs. Court, 25 Ala. 460.) In the absence of a statute authorizing the county to pay the bill, it has been held that the juror would have to pay for his food, as such an item is not required and made necessary simply by reason of his service on the jury. (See cases above cited.)

We conclude that the order of the board of commissioners in disallowing this claim was correct, and that the district court erred in reversing that order and directing the payment of the same. The judgment is reversed and the cause is remanded, with directions to take such further action as may be necessary in harmony with the views herein expressed. Costs awarded in favor of appellant.

Sullivan, C. J., concurs.