1 Car. & K. 23; Betts v. Clifford, 1858, Warwick Lent Assizes; Parkinson v. Atkinson, 31 L. J. C. P. N. S. 199; Turner v. Turner, 5 Jur. N. S. 839.

To compel a person to attend, merely because he is accomplished in a particular science, art, or profession would subject the same individual to be called upon in every case in which any question in his department of knowledge is to be solved. Thus the most eminent physician might be compelled, merely for the ordinary witness fees, to attend from the remotest part of the district, and give his opinion in every trial in which a medical question should arise.

Re Roelker, 1 Sprague, 276; Atty. Gen., Pe. titioner, 104 Mass. 537; 12 Cent. L. J. p. 194 (1881) Current Topics; Buchman v. State, 59 Ind. 1, 26 Am. Rep. 75.

Mr. James M. Graham, for the People: Contempt of court is a disobedience to the rules or orders of the court which interferes with the due administration of the law.

3 Am. & Eng. Enc. Law, p. 777.

A court of record has power to punish, for contempt, a witness who refuses to answer a question determined by the court to be proper. Whart. Crim. Ev. § 450; Bishop, Statutory Crimes, 2d ed. 137.

Until the matter is settled by statute the practice which has hitherto prevailed in Illinois must continue, as no principle is better established than that all merely private interests are subordinate to the public welfare. Metropolitan City R. Co. v. Chicago West Div. R. Co. 87 Ill. 318.

It is of vital interest that the tribunals which pronounce judgments shall have power to coerce the production of any relevant evidence existing within the sphere of their jurisdiction requisite to prevent them from falling into error.

Ex parte Dement, 53 Ala. 389, 25 Am. Rep. 611; Summers v. State, 5 Tex. App. 377, 32 Am. Rep. 573; Dills v. State, 59 Ind. 15.

The ordinance of 1787 was superseded by the adoption of the Constitution.

3 Ame & Eng. Enc. Law, p. 677, note 4; Strader v. Graham, 51 U. S. 10 How. 94, 13 L. ed. 342; Permoli v. Municipality No. 1, 44 U. S. 3 How. 610, 11 L. ed. 748; Willamette Iron Bridge Co. v. Hatch, 125 U. S. 9, 31 L. ed. 632; 3 Am. & Eng. Enc. Law, 671, note 4; Sands v. Manistee River Improv. Co. 123 U. S. 288, 31 L. ed. 149.

The power to suppress a contempt by an immediate offender results from the first principles of judicial establishments, and must be an inseparable attendant on every superior

And the exercise of this power is entirely in the discretion of the court, and will not be re-tribunal. examined, except when the proceedings are so grossly defective as to be void.

3 Am. & Eng. Enc. Law, p. 800.

If an expert claims that he is exempt from the general rule concerning witnesses, the burden is on him to establish the exception.

Rogers, Expert Testimony, 2d ed. 427. At common law no witness fees were paid, and in the absence of a statute authorizing it, no fees can now be taxed as costs, or recovered.

Fish v. Farwell, 33 Ill. App. 244; Constant v. Matteson, 22 Ill. 560; Eimer v. Eimer, 47 Ill. 375; Smith v. McLaughlin, 77 Ill. 597; Atty. Gen., Petitioner, 104 Mass. 542; Larimer County Comrs. v. Lee, 3 Colo. App. 177.

Statutes allowing costs, being in derogation of the common law, must be strictly construed.

23 Am. & Eng. Enc. Law, p. 387; Cadwallader v. Harris, 76 Ill. 370.

the state guarantees to him the use of all its power in bringing them into court, but goes no further. Bennett v. Kroth, 37 Kan. 235; State v. Waters, 39 Me. 54; Avery v. State, 7 Baxt. 331. And see principal case of STATE V. HENLEY.

And a statute thereunder providing that the state or county shall pay the proper costs accrued in behalf of the state applies to costs of the state only, and not to the cost of subpoena for the defendant's witnesses, which are defendant's costs. Avery v. State, Baxt. 331.

The constitutional provision that the accused -shall have the right of having compulsory process for obtaining witnesses in his favor simply means that he shall not be debarred the right of issuing subpoenas for his witnesses as in civil cases.

The rule has been laid down, however, that a fair construction of a constitutional provision that the accused in a criminal prosecution shall have a compulsory process for obtaining witnesses in his favor would be that he has not only the right to process to compel the attendance of all classes of

Anderson, Law Dict.; 3 Am. & Eng. Enc. Law, p. 790, note 2; Stuart v. People, 4 Ill. 395; People v. Wilson, 64 Ill. 197, 16 Am. Rep. 528; 2 Bishop, Crim. L. 8th ed. 243.

Summary punishment for contempt is not an infringement of the constitutional right of trial by jury.

3 Am. & Eng. Enc. Law, p. 791, note 2, also p. 795; 6 Am. & Eng. Enc. Law, p. 49 (1), p. 50, note 1.

Property in its legal sense is not the thing itself, but certain rights in and over the thing, these rights being: (1) user; (2) expulsion; (3) disposition.

Lewis, Em. Dom. § 54; Chicago & W. I. R. Co. v. Englewood Connecting R. Co. 115 Ill. 375, 56 Am. Rep. 173; East St. Louis v. O'Flynn, 19 Ill. App. 64; Rigney v. Chicago, 102 Ill. 68; Munn v. People, 69 Ill. 89.

Appellant's skill and knowledge do not fit these conditions. He could not devest himself | witnesses on his behalf, but also the right that they shall be compelled to testify. Dills v. State, 59 Ind. 15, dissenting opinion; State v. Hornsby, 8 Rob. (La.) 554, 41 Am. Dec. 305; State v. Waters, 39 Me. 54.

And that a constitutional guaranty that an accused person shall have the right to compulsory process to compel the attendance of witnesses in his own behalf without the advancement of money or fees can only be satisfied by the production of the witnesses in court without the payment of fees or mileage in advance. State, Thurston County, v. Grimes, 7 Wash. 445.

In Kansas, pursuant to the constitutional provision guaranteeing compulsory process to everyone charged with crime, it is provided by statute that inability of the defendant to pay his witness fees in advance shall not impair his means of defense. Bennett v. Kroth, 37 Kan. 235.

And in Wisconsin the defendant in a criminal prosecution is entitled to compulsory process to compel the attendance of witnesses in his behalf

of his skill and knowledge. He could not dis- | miscarriage ten years ago, never pregnant since, pose of them in the sense here intended. He living with her husband all the time, doing her could not give a purchaser either title or pos-own work as a housewife, enjoying perfect session. He could not possibly dispose of his skill and knowledge so that he would not still have them.

A professional witness in the discharge of his duty as a good citizen is, like any other person, whether he be laborer, merchant, broker, manufacturer, or banker, compellable to attend in obedience to process, and to testifying: "On the ground that an expert witness is as to what he may know whether it be observed facts or accumulated knowledge acquired by study and experience.

against the witness for contempt, and the court | stated to the witness that it was the order of the court he should answer the question, and he still declined to do so. Thereupon the court found him guilty of contempt, and for such contempt fined him in the sum of $25. This order fining the witness was excepted to, and his counsel made a motion for remission of the fine, which motion was overruled by the court. To the order overruling the motion, exception was taken, and an appeal was brought to the appellate court. The appellate court has affirmed the judgment of the circuit court, and given a certificate of importance. The present appeal is prosecuted from such judgment of affirmance so entered by the appelate court.

cery suits, and that the discretion of the chancery courts in awarding costs in such cases is confined to statutory allowances."

The ruling in the Hutchinson Case, however, is not decisive of the question which is presented in the case at bar. At common law no witness fees were paid. Costs are a creature of the statute, and, in the absence of a statute authorizing it, no fees can now be taxed as costs, or recovered. 3 Bl. Com. 369; Constant v. Matteson, 22 Ill. 560; Eimer v. Eimer, 47 Ill. 373; Smith v. McLaughlin, 77 Ill. 596; Larimer County Comrs. v. Lee, 3 Colo. App. 177.

Section 47 of chapter 53 of the Revised Statutes of this state provides that “every witness attending in his own county upon trials in the court of record, shall be entitled to receive the sum of $1 for each day's attendance, and 5 cents per mile each way for necessary travel." There is also a provision for paying witnesses from a foreign county in criminal cases. As, therefore, such fees only can be taxed as costs as are provided for in the statute, and as only such witness fees as are speciute, it is manifest that no extra compensation for the services of an expert witness, testifying to a matter of opinion, can be taxed as costs against the defeated party. Many of the cases in England which are referred to as sustaining the doctrine that such expert witness may be allowed an extra fee for his services are based upon the statute of 5 Eliz. chap. 9, which enacted that the witness must "have tendered to him, according to his countenance or calling, his reasonable charges.' Mr. Greenleaf, in his work on Evidence (15th ed. § 310), says that "in this country these reasonable expenses are settled by statutes, at a fixed sum for each day's actual attendance, and for each mile's travel, from the residence of the witness to the place of trial and back, without regard to the employment of the witness, or his rank in life." Our statutes treat all witnesses alike, regardless of their "countenance or calling," whether they be physicians or lawyers or ordinary citizens, so far as the question of the taxation of their fees as costs is concerned. Witnesses are not entitled to special privileges on account of their rank or employment. Mr. Best, in his work on Evidence (8th ed. p. 112 testimony the course of justice must be stopped, one who is called in an action to depose to a matter of opinion depending upon his skill in a particular

The question in this case is whether a physician, who has been supœnaed and is interrogated as an expert witness only, can be pun ished as for a contempt for refusing to testify, when no compensation greater than that allowed to an ordinary witness has been paid to him, or promised to him. The question here involved has never been directly decided by this court. In Wright v. People, 112 Ill. 540, a phy-fied in said § 47 are provided for in the statsician, before appearing as a witness, had vis ited a patient professionally, and had stated while testifying as a witness, without any objection on his part, the condition of the patient whom he had thus visited. He was then asked his opinion as to the cause of the symptoms he had thus dicovered to exist, but refused to answer without a profesional fee being paid or secured to him therefor. In that case it was held that the witness could not refuse to state the cause of the symptoms he had discovered to exist, upon the ground that such statement was pertinent to the subject about which he had already testified voluntarily. But no opinion was there expressed concerning the precise question here involved. In Hutchinson v. Hut chinson, 152 Ill. 347, the question arose whether a court of equity had a right to compel payment for the services of the solicitor of a guardian ad litem of an infant defendant, and for the time and services of two physicians who were expert witnesses for said guardian ad litem. In that case we said (p. 354): "The general rule that prevails in this state is that solicitors' fees and experts' fees cannot be taxed as costs against unsuccessful litigants in chander, upon the ground that his knowledge was obtained by professional skill and from the deductions of experience which were his own property, and for which the county refused to pay. Sum-trade is under no such obligation, and has a right mers v. State, 5 Tex. App. 365, 32 Am. Rep. 573.

And the right to compel an expert witness to testify as such, and to give his professional opinion without compensation other than the ordinary witness fee, is not affected by the fact that he is called upon in a civil action. DIXON V. PEOPLE.

The rule has been laid down, however, that the skill and professional experience of a man are so far his individual capital and property that he cannot be compelled to confer them gratuitously upon anyone, and that neither the public nor any private person has a right to extort services from him in the line of his profession without adequate compensation, Buchman v. State, 59 Ind. 1, 26 Am. Rep. 75, 25 Am. Rep. 619, note, quoting Ordronaux, Medical Jurisprudence, §8 114, 115.

And that while a witness called upon to depose to facts which he saw is bound as a matter of public duty to speak to such facts, as without such

|

before being examined to demand from the party calling him a compensation for his loss of time. Webb v. Page, 1 Car. & K. 23.

As to right to compel experts to testify without compensation other than that allowed to witnesses în general, see also Flinn v. Prairie County (Ark.) 27 L. R. A. 669, and note.

IV. General rules with relation to civil cases.

a. Necessity of payment or tender. While the rules laid down in the preceding subdivisions are applicable alike to civil and criminal proceedings, it is to be observed from an examinaation of the cases that they have been adopted and acted upon almost exclusively with relation to criminal matters. With reference to civil cases and proceedings the general and common-law rule which in a number of instances has been adopted

note 8), refers to a passage in the work of | men and attorneys is more valuable than that Jeremiah Bentham, and puts the following of others whose livelihood depends on their illustration: "Were the Prince of Wales, the own exertions." In Collins v. Godefroy, 1 Barn. Archbishop of Canterbury, and the lord high & Ad. 950, Lord Tenterden, Ch. J., said that “a chancellor to be passing in the same coach party cannot maintain an action for compensawhile a chimney sweeper and a barrow tion for loss of time in attending a trial as a witwoman were in a dispute about a half-ness." Moor v. Adam, 5 Maule & S. 156; Laripenny worth of apples, and the chimney mer County Comrs. v. Lee, 3 Colo. App. 177; sweeper and the barrow woman were to see Ex parte Dement, 53 Ala. 389, 25 Am. Rep. 611. proper to call upon them for their evidence, Loss of time, as a ground for claiming extra could they refuse it? No! most certainly not!" compensation for services as a witness, applies Ex parte Dement, 53 Ala. 390, 25 Am. Rep. as well to all ordinary witnesses as to expert 611. It follows that in this case the court could witnesses. It is conceded that when any witnot fix a compensation to be paid to appellant, ness, whether he is an expert witness or not, is nor order his fee of $10 to be taxed as costs, acquainted with any facts which bear upon nor order the party calling the witness to pay the matter in controversy in a litigation, he is or secure to him compensation. It is claimed, obliged to testify; and a distinction is drawn however, that in a civil suit a witness, who is between the testimony of an expert witness called to testify as an expert only, should not who is acquainted with the facts about which be punished for contempt in refusing to tes- he testifies, and an expert witness who is called tify because no compensation is provided for upon to give his opinion, in reply to a hypohis professional opinion, other than ordinary thetical question, without any knowledge of witness fees. The power to compel the produc facts. Manifestly the witness who goes to court tion of testimony necessary to the decision of and testifies as to the facts of which he knows issues involved in pending lawsuits is one of the is subjected to a loss of his time as much as a rights and powers which is inherent in the very witness who goes there to testify as an expert organization of courts of justice. Contempt upon a mere matter of opinion. of court is a disobedience to the rules or orders of the court, which interferes with the due administration of the law. 3 Am. & Eng. Enc. Law, p. 777. The refusal of a witness to answer any question which he may be lawfully required to answer is a contempt of court, and, if he persists in his refusal, he may be punished accordingly. Samuel v. People, 164 Ill. 385.

The grounds upon which the right to such extra compensation on the part of expert witnesses has been susained have generally been

three in number:

The first ground is that the time of the expert witness is more valuable than the time of ordinary men, and that, by attendance at court to give his testimony, such a witness meets with a loss of time. The better and more recent authorities, however, both in England and this country, now unite in the view that the right to such extra compensation cannot be properly rested upon loss of time, as a basis. In Lonergan v. Royal Exchange Assurance Co. 7 Bing. 729, Chief Justice Tindal said: "There is no reason for assuming that the time of medical and confirmed by statutory enactment is that a witness is entitled to demand his fees and mileage before he obeys a subpœna. Young v. Merchants' Ins. Co. 29 Fed. Rep. 273. And see cases cited be. low.

And that a witness is not bound to attend court or remain in attendance unless his fees and expenses have been paid or tendered. Atwood v. Scott, 99 Mass. 177, 96 Am. Dec. 728; Brocas v. Lloyd, 23 Beav. 129, 26 L. J. Ch. N. S. 758.

And that a witness will not be punished for contempt for failure to attend as a witness in a civil case unless his fees have been paid or tendered. Bonner v. People, 40 Ill. App. 628; Bliss v. Brainard, 42 N. H. 255.

Within this rule a witness cannot be deemed to have been lawfully subpoenaed for the purpose of punishment for nonattendance unless the fee be paid or tendered, where the statute expressly requires that the fee shall be paid, fixing the amount. Ogden v. Gibbons, 5 N. J. L. 518.

The second ground upon which the claim for such extra compensation is based is that the skill and accumulated knowledge of the expert are his property, and that a man's property should not be taken without just compensation. Various definitions have been given of property. Webster defines property to be "the exclusive right of possessing, enjoying, and disposing of a thing. This court has adopted this definition in Chicago & W. I. R. Co. v. Englewood Connecting R. Co. 115 Ill. 375, 56 Am. Rep. 173. Blackstone says, "Property consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land." 1 Bl. Com. 138. It has also been said that property, in its legal sense, is not the thing itself, but certain rights in and over the thing, those rights being: (1) user; (2) exclusion; (3) disposition. Lewis, Em. Dom. § 54. This court has also said, in discussing the right to make and enforce contracts as being included in the right to acquire property, that labor is property, and that the laborer has the same parted, cannot be attached by the opposite party as an absent witness where he had not subpoenaed him or paid or tendered him fees as required by statute; the witness should have been duly subpœnaed by him if he wished to avail himself of his testimony. Beaulieu v. Parsons, 2 Minn. 26.

And the party on whose behalf a witness gives evidence, if required by the other side to produce him for cross-examination, is bound in the first instance to pay him his reasonable expenses though he may be out of the jurisdiction. Richards v. Goddard, L. R. 17 Eq. 238, 43 L. J. Ch. N. S. 144, 22 Week. Rep. 204, 29 L. T. N. S. 884.

So, a party made a witness by his adversary is as much entitled to fees as a condition precedent to create a duty to attend as a third person. Bonner v. People, 40 Ill. App. 628; Anderson v. Johnson, 1 Sandf. 713; Hewlett v. Brown, 1 Bosw. 655.

And when such fees are not paid he could not be punished for a contempt for not attending unless first brought up on attachment or served with an Hewlett v. Brown, 1 Bosw.

And a witness who was called by one party to an order to show cause. .action and testified on his behalf, and then de- | 655.

owner.

It is

right to sell his labor, and to contract with ref-|tain amount of study, without being paid erence thereto, as has any other property therefor. But when he is required to answer Ritchie v. People, 155 Ill. 98, 29 L. R. a hypothetical question, which involves a speA. 79. Labor is defined by Webster to be cial knowledge peculiar to his calling, he "physical toil or bodily exertion," and also to is merely required to do what every good citibe "hard muscular effort directed to some use- zen is required to do in behalf of public peace ful end, as agriculture, manufactures, and the and public order, and in promotion of public like." He also defines labor to be "intellectual good. Counsel for appellant states that many exertion; mental effort, as the labor of com- of the cases which have held that expert piling a history." It is not exactly accurate witnesses can be required to testify without to say that the mere abstract knowledge ac- being paid are criminal cases, where the inquired in the study of a special employment is terest of the state and the interest of the pubof itself property. It is the right to apply that lic demand of the physician that he should knowledge to the accomplishment of a particu- yield up something of his knowledge for the lar result which constitutes property. For in- benefit of society at large. This position, howstance, if the appellant had been required to ever, is inconsistent with the contention that answer a question put to him with a view of when an expert witness is required to testify prescribing a remedy for the relief of Mrs. without compensation his property right is inPurdy, the plaintiff in the suit in which he was terfered with. A man's property cannot be called to testify as a witness, then it might be taken from him by the state without compensaid if he was not offered any compensation, sation. It makes no difference whether it is that he was deprived of a property right. But to be taken for the good of the public or for where a physician is asked a hypothetical ques- the benefit of a private individual, so far as tion and is called upon to give his opinion upon the right to compensation is concerned. the facts stated in the hypothetical question true that private property cannot be conwhile he is testifying as a witness in court, he is demned by the state for a private purpose. not thereby required to practise his healing art. Private property can only be taken for a pubHe is merely making a statement, not for the lic purpose. But in either case it must be purpose of effecting a cure, or relieving a pa- paid for. To concede, therefore, that in a tient, but for the purpose of enabling the court criminal prosecution conducted by the state and the jury to understand correctly a case a physician may be required to testify withwhich is before the court. There is no infringe- out compensation, because it is for the public ment here of a property right. It may be con- good, is to concede that his knowledge may be ceded that in a certain sense the knowledge of made use of by a court of justice without his the physician, acquired by special study, is being paid therefor. We conceive, however, property; but the question here is, not, so much that it can make no difference whether the whether certain knowledge is property, as suit in which the witness is called upon to whether the requirement that he shall answer a testify is a suit between private parties, or is hypothetical question is a taking of his prop- a suit between the state and an alleged crim. erty. Where he is required to make an applica- inal. In either case the object is to promote tion of his knowledge to a particular case, so as public justice, and to aid the due administrato secure a particular result,-such as, for in- tion of justice. It is just as important to the stance, the curing of a disease or the healing of peace and good order of society that private a wound, then he would undoubtedly be en- controversies should be settled upon correct titled to compensation. A physician or sur- proofs, and in accordance with truthful tesgeon cannot be punished for a contempt for re timony, as that criminals who violate the laws fusing to make a post-mortem examination of the state should be punished. It is the unless paid therefor; nor can he be required duty of the ordinary witness and of the exto prepare himself in advance for testifying pert witness to testify as to facts within his in court, by making an examination, or per- knowledge which bear upon the decision of forming an operation, or resorting to a cer- controversies in the courts. Such duty deshall be subject to attend as a witness unless his fees are paid or tendered him. Rozek v. Redzinski, 87 Wis. 525.

And when a party is compelled to attend court and be examined in behalf of a coplaintiff or a codefendant as to any matter in which he is not jointly interested or liable, he is entitled to pay as a witness. Penny v. Brink, 75 N. C. 68.

The rule that a witness may refuse to be sworn unless the expenses of his attending the assize, as well as his traveling expenses, were paid him when he was summoned, however, does not apply where the witness was a party to the action, who was present necessarily for the purpose of his defense, and not merely under the subpoena of the other party. Reed v. Fairless, 3 Fost. & F. 958, 8 L. T. N. S. 853.

And a party testifying before an auditor is not entitled to fees as a witness in New Hampshire, whether testifying in his own favor or for his adversary, and he cannot refuse to testify because such fees have not been paid. Whitney v. Pierce, 40 N. H. 114.

So, one who is present in court may be compelled to testify without the payment of his fees, under Wis. Rev. Stat. § 4057, providing that no person

And it has been held generally that if a witness be in court, having come there on other business, he cannot refuse to be sworn, though his expenses were not tendered. Blackburn v. Hargreave, 2 Lewin, C. C. 259; Rex v. Sadler, 4 Car. & P. 218. But the contrary was held in Hurd v. Swan, 4 Denio, 75.

And in Bowles v. Johnson, 1 W. Bl. 36, it was held that the service of a subpoena without the tender of expenses is not sufficient to bring a witness into contempt though he comes to court and refuses to be sworn.

So, an action for a penalty may be maintained against a witness for nonattendance though his fees had not been paid, where he had expressly waived such payment. Hurd v. Swan, 4 Denio, 75. It is to be observed, however, that some of the states have made provision in specified cases for the payment of fees and expenses of witnesses by the county on proof of service as a witness, or for