another witness, who may know nothing about the facts, may yet be required to state the value of the wheat at the time of the contract, or at the time of the delivery; and he may be required to testify from his knowledge of the market prices of wheat, as given in the market quotations. Such a witness, however, as to the value, and as to market prices, is not regarded as an expert witness who is entitled to extra compensation.

volves upon him as a citizen, and in view of allowed extra compensation as an expert witthe protection which he receives from the laws ness, then men pursuing other occupations of the country, in the matter of his personal which require special experience will have liberty, and in the matter of the protection of the same right to demand extra fees. A banker his property, this duty devolves as much upon will claim that he has earned extra coma physician who is required to testify as an pensation, a merchant will make the same expert witness in answer to hypothetical ques- claim, and so with men engaged in other tions as it does upon the ordinary witness tes- branches of business. It will be easy to say tifying to facts within his knowledge. In Vise in such cases that the testimony called for is v. Hamilton County, 19 Ill. 78, we held that an the result of special knowledge and acquired attorney appointed by the court to defend a skill, and therefore should be paid for. Alcriminal could not recover for his services most every lawsuit involves testimony which from the county in which the prosecution is in the nature of opinion, in addition to teswas conducted, and that a court might compel timony which speaks of the mere facts within an attorney, as one of its officers, to defend the knowledge of the witness. For instance, a prisoner, in case of his inability to employ A sells B a certain quantity of wheat, and counsel. It has never been supposed that to delivers the same, and sues for the price of require the performance of such professional the wheat. One witness testifies as to the conservices without compensation was the taking tract, which he heard the parties make. Anof property without just compensation. If other testifies to the delivery of the wheat, the precedent is once established that expert which he saw delivered. These witnesses teswitnesses must be paid a reasonable compen-tify to actual facts heard and seen. But still sation for their testimony, then it will not be long before such testimony will be offered to the highest bidder. The temptation will be to give opinions in favor of that party to the suit who will pay the highest price. The testimony of expert witnesses will thus become partisan and one-sided. The theory upon which such witnesses are required to testify in cases like this is that they are amici curia, and that, testifying under the sanction of an oath, they do so, not with intent to take the part of either contestant in the suit, but with a view to arriving at the truth of the matter, and for the purpose of aiding the court to pronounce a correct judgment. In Redfield on the Law of Wills (marginal page 155, § 15, note 46), it is said: "It being purely a matter of conventional arrangement between professional experts and those who desire to employ them as wit nesses, both in regard to their acting as such, and also their making preparations to enable them to give such testimony, it virtually places a price upon such testimony in the market, and its price is likely to range somewhat according to its ability to aid one or other of the parties litigant. The tendency of this is to render it partisan and one-sided, as a general thing." Moreover, if a physician is to be their collection by methods other than prepayment by the party calling the witness. Under such provisions it is obvious that prepayment could not be demanded as a condition precedent to attendance and service. But the cases decided under such provisions have turned upon other points, and have therefore been omitted.

For an example or illustration of such provisions, see Smith v. Barger, 9 Yerg. 322, and Morris v. Rippy, 4 Jones, L. 533, supra, I.

In the courts of the United States witnesses are obliged to obey a subpœna to attend as a witness if they have the means to travel, and attend whether the fees are advanced or not, and are liable to punishment for contempt for failure to do so. Norris v. Hassler, 23 Fed. Rep. 581; United States v. Durling, 4 Biss. 509.

And if a witness has not such means it is the duty of the proper officer of the government to furnish him with them, and an attachment will issue and the court will punish him where he could pay his expenses and would not come because the money was not tendered. United States v. Durling, 4 Biss. 509.

Counsel for appellant also claim, as a third ground, that the accumulated knowledge and skill of the expert witness may be treated, if not as property, yet as "particular services." This contention is based upon the reasoning of the court in the case of Buchman v. State, 59 Ind. 1, 26 Am. Rep. 75, which is the leading case upon the subject in opposition to the views here expressed. That case proceeds mainly upon the ground that the services called for are included within "particular services." as those words are used in the Constitution of Indiana. Section 21 of the Indiana Bill of Rights provides that "no man's particular services shall be demanded without just compensation." The Indiana court there held that the services of an expert witness were "particular services," and

But a person subpoenaed as a witness in a civil cause pending in a United States court who demands his traveling fee and fee for one day's attendance at the time, which are not paid, is not subject to attachment for contempt for failing to obey the writ where the statute of the state in which the action arose provides that a witness who makes such a demand is not obliged to obey in case of refusal. Re Thomas, 1 Dill. 420.

b. Sufficiency of payment or tender.

An attachment will not issue against a witness for failure to attend court in response to a subpœna where the payment or tender of fees and expenses was insufficient. Horne v. Smith, 6 Taunt. 9: Chapman v. Pointon, 2 Strange, 1150; Brocas v. Lloyd, 23 Beav. 129, 26 L. J. Ch. N. S. 758.

Thus, a witness who is paid his traveling fee for one day's attendance, and attends on that day. must be tendered his fees for each succeeding day if he is wanted for a further day; but it is not necessary that he should be served with a subpœna each time, where the statute makes no express pro

""

that, therefore, under the Constitution, they, question before its tribunals, and is not proshould be paid for. No such provision as the tected from disclosure by some principle of one referred to as being contained in the Constitution of Indiana exists in the Constitution of Illinois. Counsel for appellant say, however, that article 2 of the ordinance of 1787 provided as follows: "No man shall be deprived of his life, liberty, or property but by the judgment of his peers, or the law of the land; and should the public exigencies make it necessary for the common preserva tion, to take any man's property, or to demand his particular services, full compensa tion shall be made for the same. It is to be here noted that by the use of the expression, "to take any man's property, or to demand his particular services," the article seems to draw a distinction between prop erty and particular services. Therefore, if the knowledge of the expert witness is included within the meaning of particular services, it cannot be regarded as property. How ever this may be, the ordinance of 1787 is not in force in the state of Illinois. In the recent case of People, Woodyatt, v. Thompson, 155 Ill. 451, this court held that the ordinance of 1787 was passed by the Congress of the Confederation for the government of the Northwest | Territory, and has no force in Illinois, except so far as its principles are embodied in the state Constitution. In that case the whole subject is elaborately discussed, and many authorities are referred to, sustaining the position there taken. The decision in Buchman v. State, supra, was rendered by a divided court, consisting of five judges. Two of the judges (Chief Justice Biddle and Judge Niblack) dissented from the opinion in that case. The views of the dissenting judges are given in the case of Dills v. State, 59 Ind. 15, and the reasoning there is cogent and convincing; and the opinion adopts the views of the supreme court of Alabama, as announced in the case of Ex parte Dement, 53 Ala. 389, 25 Am. Rep. 611. The latter case is the leading case in this country in favor of the views herein expressed, and its line of reasoning is substantially adopted in what has been here stated. The case holds that the law allows no excuse for withholding evidence which is relevant to the matters in vision for such a case. Mattocks v. Wheaton, 10 Vt., 493.

And a witness subpoenaed and paid for one day's attendance who attends on the day named and then applies to the party subpœnaing him for further payment of fees, which is refused, and he thereupon leaves court, does not incur the statutory penalty for nonattendance. Courtney v. Baker, 3 Denio, 27.

And a capias will not issue where the witness had been in attendance the day before and had been paid his fees for that day, and had not been paid or tendered any fees for further attendance, though he had not asked for them. Atwood v. Scott, 99 Mass. 177, 96 Am. Dec. 728.

So, a witness who is subpoenaed to attend court on Tuesday, and is paid his per diem fees from Wednesday to Saturday inclusive, who returns to his home and is offered 50 cents on Saturday evening as his per diem for the next Monday, which he refuses, and neglects to appear on Monday when the cause is tried, is not subject to the penalty imposed by law for nonattendance, as he is entitled to a tender of his fees for attendance on Sunday as

legal policy; that, the administration of justice being a source of mutual benefit to all the members of the community, each is under the obligation to aid in furthering it, as a matter of public duty, and that "the same principle which justifies the bringing of the mechanic from his workshop, the merchant from his store-houses, the broker from his 'change, or the lawyer from his engagements, to testify in regard to some matter which he has learned in the exercise of his art or profession, authorizes the summoning of a physician, or surgeon, or skilled apothecary, to testify of a like matter, when relevant to a cause pending for determination in a judicial tribunal," and that "a physician, like any other person, may be called to testify as an expert in a judicial investigation, whether it be of a civil or criminal nature, without being paid for his testimony as for a professional opinion, and upon refusal to testify is punishable as for a contempt." This decision of the supreme court of Alabama has been followed and adopted in the following cases: State v. Teipner, 36 Minn. 535; Summers v. State, 5 Tex. App. 365, 32 Am. Rep. 573; Larimer County Comrs. v. Lee, 3 Colo. App. 177; Flinn v. Prairie County, 60 Ark. 204, 27 L. R. A. 669. Upon this subject, Mr. Rogers, in his able and exhaustive work on Expert Testimony (2d ed. p. 424, § 188) says: "There can be no doubt that professional men are not entitled, in this country, to claim any additional compensation when testifying as ordinary witnesses to facts which happened to fall under their observation. But another question arises when they are summoned to testify as to facts of science with which they have become familiar by means of special study and investigation, or to express opinions based upon the skill acquired from such researches, as to conclusions which ought to be drawn from certain given facts. Whether they can be compelled to testify in such cases, when no other compensation has been tendered than the usual fees of witnesses testifying to ordinary facts, is a point upon which the cases are not in harmony. In this country well as other days of the week during the sitting of the court. Muscott v. Runge, 27 How. Pr. 85.

In Holden v. Shove, 1 R. I. 287, however, it was held that a witness upon whom subpoena was served and fees paid him for one day only, who does not attend when the case is reached about a month later, may be attached, as he is bound to attend at the trial unless he has given notice that he will refuse to appear without payment of the fees due to him, but that in case of such notice his fees must be paid up to and including the time when his testimony is required.

In England an attachment will not be granted against a witness for not obeying a subpoena to attend at a trial unless the whole expenses of the journey and of the necessary stay at the place of trial be tendered at the time of serving the subpœna. Fulier v. Prentice, 1 H. Bl. 49; Ashton v. Haigh, 2 Chitty, 201.

And a witness is entitled to her reasonable expenses for traveling in the mode suited to her station of life, and the particular circumstances in which she may then happen to be placed. And where such witness has a sick child which is obliged

in a cause pending before the courts of his country, involving the life or liberty of a fellow being and the rightful administration of the laws of a common country. Dr. Spohn has doubtless been misled, in taking the position he did, by the misconceptions of certain writers on medical jurisprudence."

the cases are nearly balanced, and the ques tion must be regarded as still an open one although the weight of authority rather inclines to the theory that the expert may be required to answer the question without additional compensation." As has already been stated, we prefer to adopt the views announced by the supreme court of Alabama, and in the cases following the Alabama decision. We cannot close this opinion without quoting and indorsing the following views expressed by the Texas court of appeals in Summers v. State, 5 Tex. App. 365, 32 Am. Rep. 573: "It is to be regretted that a member of a profession Boggs, J., having passed upon the case in so distinguished for liberal culture and high the appellate court, took no part in this desense of honor and duty should refuse to testify cision.

For the reasons above stated, we have arrived at the conclusion that the judgments below were correct. Accordingly the judgments of the Appellate Court and of the Circuit Court are affirmed.

TENNESSEE SUPREME COURT.

STATE of Tennessee
v.

John HENLEY et al.

(98 Tenn. 665.)

1. The legislature has unlimited power to act in its own sphere of legislation except so far as restrained by the Constitution of the United States and the Constitution of the state. 2. A statute which does not violate some provision of the Constitution cannot be annulled by the courts whether its provisions are wise or unwise, or whether its operations be hurtful or beneficial.

3. Ordinary services such as may be required of all citizens or officials by general or valid special laws are not particular services within the provision of Const. art. 1, § 21, providing that no man's particular services shall be demanded without the consent of his representatives, or just compensation.

4. The constitutional guaranty of compulsory process to require witnesses to attend court and give evidence does not require the state to provide for the expense of obtaining their attendance.

tions only in certain classes of cases is not partial or class legislation.

6. A statute denying fees and costs or mileage to witnesses who reside within 5 miles of the place at which attendance is required, while allowing them in other cases, is not so unreasonable and capricious a classification of witnesses as to make the statute partial and unconstitutional.

7. The right to a fair trial, involved in the constitutional provision for trial by jury, is not infringed by a statute making the costs and fees payable to officers and witnesses in a criminal case depend on conviction, where this provision does not apply to the jury and applies to a justice of the peace only in cases where his power is merely to bind over the accused for trial in a tribunal in which the justice has no voice.

8. Reference to laws repealed is not
necessary in a statute which repeals them only by
necessary implication.

(Snodgrass, Ch. J., dissents.)
(May 29, 1897.)

APPEAL by the state from a judgment of

5. A statute providing that the state or the Criminal Court for Shelby County taxcounty will pay costs of criminal prosecu-ing costs to the clerk, sheriff, justice of the to travel with her she must be tendered a sufficient | for travel according to the distance, as the witness amount of money to pay for the conveyance of the is not bound to accept such promise. Goodwin v. child in the manner required by its condition, as West, Cro. Car. 540. well as for her own conveyance. Dixon v. Lee, 1 Cromp. M. & R. 645, 5 Tyrw, 180, 3 Dowl. P. C. 259. And a witness who is served with a subpoena, and given conduct money only, no tender of a reasonable amount for her expenses in going back having been made, who goes to the place where the court is sitting without making any further demand, but refuses to proceed to the court-house unless such expenses are paid, is not subject to attachment for disobedience to the subpoena. Newton v. Harland, 1 Scott, N. R. 502, 1 Mann. & G. 958, 9 Dowl. P. C. 16, 1 Wollaston, P. C. 53, 4 Jur. 992.

So, a witness who is paid a shilling upon being summoned as a witness, and receives a promise to pay as much more as would be required when the witnesses came, is not bound to attend, under the English statute providing that the person summoning the witnesses shall pay sufficient charges

And a witness is justified under 5 Eliz. chap. 9, in refusing to give evidence before the examination unless he was first paid for his attendance at the rate of one guinea a day, and an attachment against a witness for not obeying a subpoena will not be granted under that act, unless the whole of the necessary expenses of going to the place of trial and of returning from it, and also during the stay there, has been tendered him together with one guinea a day for expenses of living. Re Working Men's Mut. Soc. L. R. 21 Ch. Div. 831, 51 L. J. Ch. N. S. 850, 30 Week. Rep. 938.

An attachment against a witness for nonattendance pursuant to the command of a subpoena will not be denied, however, on the ground that no conduct money was tendered, where the witness resided at the place where the cause was to be heard. Jacob v. Hungate, 3 Dowl. P. C. 456.

Israel v. State, 8 Ind. 467; Washington v. Nashville, 1 Swan, 177; Rogers, Expert TestiThat construction of constitutions and stat-mony, 2d ed. 425; Bennett v. Kroth, 37 Kan. utes will be favored which will sustain the validity of the latter.

And a witness who receives a shilling upon being And see dictum in Hurd v. Swan, 4 Denio, 75, citsummoned to attend at a place other than his resi-ing Goodwin v. West, Cro. Car. 540, to the same efdence, admitting that he had received a guinea from the opposite party, and that the shilling was a reasonable sum, is bound to attend, and will be held liable in an action for not obeying the subpœna. Betteley v. M'Leod, 3 Bing. N. C. 405.

And it is not necessary to an attachment against a witness for failure to attend court in response to a subpœna that the sum tendered by way of ex-first-class return railway fare from his place of penses was insufficient where the witness made no objection on that ground at the time, but offered to pay his own expenses. Goff v. Mills, 2 Dowl. & L. 23, 18 L. J. Q. B. N. S. 227, 8 Jur. 758.

conclusively, whether a law is good or bad, I but for man. It was not made for the majorand whether it is "contrary to the publicity, but for the minority. good."