(218 S. W.) purchase and supply even drinking water for the use of prisoners confined in his jail. We think the true interpretation to be given said statutes is that the jailer shall deliver water to the prisoner for drinking purposes from the spring, well, or other facility located on the jail premises. In other words, it is the duty of the jailer under the statutes to see that the prisoner, while he is incarcerated, is supplied with wholesome drinking water, but this does not mean that the sheriff is required to furnish such water at his own expense. We think the statutes referred to contemplate that such water shall be supplied and delivered on the premises by the county, and the record shows, in the cause under consideration, that this is the interpretation given these statutes by the officials of every other county in the state, and was the construction placed upon said statutes by the officials of Knox county prior to the election and induction into office of the relator. The undisputed evidence shows that Knox county, at a considerable expense, equipped its jail with the necessary facilities for piping and delivering water to it for the use of the prisoners confined therein from the city's water department, and up until the election and induction into office of the relator had always paid for the water used in its jail. There can be no sort of ground for the insistence that the sheriff or jailer is liable for the cost of the water consumed in cleaning the jail, flushing the toilets, and for the bathing of the prisoners. It is true that the statutes provide that the jailer shall keep the jail clean, but this does not imply that he must furnish the water and appliances necessary for cleansing the jail. We think this duty is upon the county, and it is the duty of the sheriff, by the use of the water and other appliances furnished, to keep the jail clean. [3] As to the insistence of the relator that he is entitled to recover of the county for the "bug killer" purchased on his own initiative, we are of the opinion that he is not entitled to recover for this item. The undisputed evidence is that the county maintained a committee known as the "courthouse and jail committee," whose duty it was to purchase all supplies necessary for the courthouse and jail. There is evidence in the record to the effect that the county, at the time this "bug killer" was purchased by relator, had on hand and stored in the basement of the courthouse a large quantity of disinfectant of the same kind and character as the "bug killer" purchased by the relator. This is controverted, however, by the relator. We think the question of whether the county had such disinfectant on hand is immaterial. The relator's action in purchasing the "bug killer" was without authority. The record discloses that the authority to purchase supplies for the courthouse and jail was vested in the "courthouse and jail committee," of which the county judge was a member. It results that the decree of the special chancellor and the Court of Civil Appeals will be modified in the following particulars: The relator will be given a recovery for the item of water rent, amounting to $203.75, with interest from September 1, 1917. He will be denied a recovery for the balance alleged to be due on his jail account for keeping and feeding prisoners, amounting to $249.68. He will also be denied a recovery for the "bug killer" item. The costs accruing in the Court of Civil Appeals and in this court will be taxed onehalf against the defendant, and the remaining half against the relator. The costs of the chancery court will stand as adjudged by the special chancellor. McKEE v. STATE. (Supreme Court of Tennessee. Jan. 24, 1920.) 1. CRIMINAL LAW 322-PRESUMPTION INDULGED THAT WORKHOUSE OFFICIALS WILL NOT REQUIRE DEFENDANT TO WORK OUT IMPROPER ITEMS OF BILLS OF COSTS. In the absence of anything to the contrary, it must be presumed that workhouse officials will not endeavor to force a defendant, sentenced to the workhouse, to work out any items in the bills of costs which the law does not provide shall be worked out. 2. COSTS 314-MOTION TO STRIKE LITIGA TION TAXES FROM BILL OF COSTS PROPERLY OVERRULED. tion taxes to be included in the bill of costs Under Acts 1919, c. 134, requiring litigaand in no case to be remitted, in a misdemeanor case in which defendant cannot be required to work out such taxes, a motion to strike them from the bill of costs was properly overruled, though judgment required that costs be worked out "as required by law"; the remedy being by habeas corpus if any effort to require him to work out such items is made. 3. COSTS 314-ATTORNEY GENERAL'S FEE SHOULD NOT BE STRICKEN FROM BILL OF COSTS. Under Shannon's Code, §§ 6376, 6377, requiring an Attorney General's fee to be taxed motion to strike such fee from the bill of costs in misdemeanor cases successfully prosecuted, a was properly overruled, though judgment required that costs be worked out "as required by law," and such taxes need not be worked out. 4. CONSTITUTIONAL LAW 272-EMINENT 2(1)-STATUTE IMPOSING EX DOMAIN PENSE FEES AS PART OF COSTS ON CONVICTION IS NOT INVALID. Acts 1919, c. 57, providing that every person convicted of a misdemeanor shall be re For other cases see same topic and KEY-NUMBER ir all Key-Numbered Digests and Indexes quired to pay, secure, or work out in addition to other costs, county and state expense fees of $5 each, is not invalid as taking defendant's property without compensation or without due process of law, in violation of Const. art. 1, §§ 8, 21; there being overhead expenses which cannot be accurately prorated, and the prescribed fees being reasonable. Appeal from Criminal Court, Hamilton County; S. D. McReynolds, Judge. Criminal prosecutions by the State against Ed McKee, alias Ebb McKee. From a judgment overruling motions to retax the costs, defendant appeals. Affirmed. W. W. Draper, of Chattanooga, for McKee. Wm. H. Swiggart, Jr., of Union City, Asst. Atty. Gen., for the State. HALL, J. This appeal is prosecuted by the plaintiff in error, Ed McKee, alias Ebb Mc Kee, from the judgment of the criminal court of Hamilton county, rendered at its September term, 1919, overruling a motion of the plaintiff in error to retax the costs in three misdemeanor cases, in which the plaintiff in error had been convicted at a former term of the court, so as to strike from the bill of costs in each case the state and county litigation tax, the Attorney General's fee, and the item of "state and county expense." The ground of the motion was stated to be "on account of the fact that the defendant was sentenced to the workhouse on each of the above charges." In two of the cases the plaintiff in error was charged with a felonious assault, and was convicted of assault and battery, and the motion asked also that the plaintiff in error be relieved of all the costs which had accrued on account of the unsuccessful effort of the state to convict the plaintiff in error of a felony. This much of the motion was sustained by the criminal judge, and is not now involved. The remaining portion of said motion, to wit, the motion to strike from said bill of costs the state and county litigation tax, the Attorney General's fee, and the item of state and county expense in each of the three cases was by the court overruled and disallowed, and it is of this action of the court below that complaint is made by the plaintiff in error. It is first insisted that the court below erred in overruling and disallowing the defendant's motion to strike the item of state and county tax in each case, aggregating the sum of $45, from said bills of costs. It is not stated in the brief of counsel for the plaintiff in error, in express terms, how or wherein the court erred in this action. It may be inferred, however, from the brief of counsel that his contention is that the state and county litigation taxes should be stricken from the bills of costs, because they are not items of costs which the plaintiff in error could be compelled to work out in the county workhouse. In each of the three cases a fine was imposed upon the plaintiff in error, and he was sentenced to confinement for a stated period of time in the county workhouse, as punishment, and the judg ment in each case also directed that the plaintiff in error be further held in confinement until the fine and costs adjudged against him should be paid, secured, or worked out "as prescribed by law." costs were paid or not. Nor does it appear whether the plaintiff in error has served the The record does not show whether the aggregate term of imprisonment in the county workhouse, to which he was sentenced in the three cases, nor is it shown whether he has worked out those items of costs adjudg ed against him which he does not controvert. Nor is there anything in the record to show that any effort has been made to hold the plaintiff in error in confinement on account of any default in the payment of the litigation taxes, or that any effort is being made to compel the plaintiff in error to work out such taxes. [1, 2] The judgments in the three cases directed that the plaintiff in error be required to work out the costs, in default of payment, "as prescribed by law." This is the usual form of the judgment rendered in misdemeanor cases, regardless of whether the costs are paid or worked out. If the costs are paid, the convicted defendant is simply dismissed from custody at the termination of the stated period or term of confinement, to which he was sentenced. In the absence of anything to the contrary, it must be presumed that the workhouse officials will not endeavor to force the plaintiff in error to work out any items in the bills of costs which, the law does not provide shall be worked out. If any such an effort should be made, the remedy of the plaintiff in error would be by a writ of habeas corpus, supported by proof that he has served his terms of imprisonment, and has worked out all the items of costs which he can be lawfully required to work out. He could not be required to work out the state and county litigation taxes. The motion in the present case was simply to strike out the litigation tax from the bills of costs. The trial court was manifestly correct in overruling this motion, since the statute requires that the litigation tax be included in the bill of costs, and in no case shall be remitted. Chapter 134 of the Acts of 1919, p. 468. [3] It is next insisted that the court below erred in overruling and disallowing defendant's motion to strike from the bill of costs in each case the item of Attorney General's fee of $5, aggregating the sum of $15 in the three cases. These items were taxed in accordance with the direction of the statute, and were the (218 S.W.) fees provided for by the statute in misde of the case and collected and paid over as meanor cases which have been successfully other costs. The plaintiff in error contends that the state and county expense fees authorized by the act of 1919 are not costs; that the Legislature was without power to create them, declare, and tax them as costs; and it is in The motion made by the plaintiff in error in the court below was not to restrain any effort on the part of the workhouse officials to require him to work out the Attorneysisted, therefore, that such fees are an arGeneral's fees, but merely attacked the authority of the trial court to tax these fees against him in the bills of costs. The action of the trial court, at which the motion was directed, was such as is expressly required by statute, and the motion to strike was therefore properly overruled. By the third and last assignment of error it is insisted that the trial court erred in overruling and disallowing defendant's motion to strike the items of "state and county expense," aggregating the sum of $30, from said bills of costs. [4] These items were taxed and included in the bill of costs in each of the three cases under the authority of chapter 57 of the Pub- | lic Acts of 1919, the title of which is: "An act to provide that every person indicted or presented in any court of the state for any offense against the criminal laws, except when he is acquitted, shall pay, secure or work out in the workhouse a county expense fee, and a state expense fee, and making provisions for enforcement thereof." The body of the act is as follows: bitrary charge against the plaintiff in error, with no basis in fact, and that to collect them from him would be taking his property without compensation, in violation of section 21, article 1, of the Constitution of the state, and without due process of law, in violation of article 1, section 8, of the same Constitution. In support of this contention plaintiff in error cites the cases of Knox v. State, 9 Baxt. 202, and Strong v. State, 129 Tenn. 472, 166 S. W. 967. We are of the opinion that these cases do not support the contention of plaintiff in error. In Knox v. State, supra, the effort was to enforce a statutory provision that every person confined in a county workhouse for the purpose of working out a fine and costs, or costs only, should also be required to work out, at the rate of 25 cents per day, the costs of all necessary clothing provided for him. Thus the statute recognized a particular and specified item of expense which might accrue after conviction, and after the bill of costs had been made out, which the accused should be required to pay. The court held that the statute was void and unenAs-forceable, because the convicted defendant, against whom such a charge might be assessed by the jailer or superintendent of the workhouse, was given no opportunity to be heard upon the cost of clothing furnished him, or upon other questions which might affect his liability for such a charge. The court held that it would be to deprive the prisoner of his liberty other than by "the judgment of his peers or the law of the land" to permit the keeper of the workhouse to determine the cost of the clothing furnished, and the period of time the prisoner should be held to work out its value. "Section 1. Be it enacted by the General sembly of the state of Tennessee, that every person that is indicted or presented in any court of this state, for any offense against the criminal laws of the state, which is by law made a misdemeanor, except when he is acquitted, before he shall be discharged, shall be required by the judgment of the court making disposition of the case, to pay or secure, or work out in the workhouse, in addition to the other costs of the case, a county expense fee of five ($5.00) dollars, and a state expense fee of five ($5.00) dollars for each defendant said county expense fee and state expense fee are hereby declared to be a part of the expenses of the case not covered by any other fees provided by law, but necessarily accruing therein and the same shall be included and recovered as part of the costs of the case, and collected and paid over as other costs; the county expense fee to be paid to the county, and the state expense fee to be paid to the state. "Sec. 2. Be it further enacted, that all laws and parts of laws in conflict with this act, be and are hereby repealed, and that this act take effect from and after its passage, the public welfare requiring it." It will be observed that the act above quoted expressly declares that the state and county expense fees be a part of the expenses of the case not covered by any other fees provided by law, but necessarily accruing therein, and that the same shall be included and recovered as a part of the costs In State v. Strong, supra, an effort was made to enforce a statute which provided that if any workhouse prisoner should make his escape from the workhouse and should be apprehended, he should be required to work out the expense of his recapture, in addition to the other costs in the case. In passing upon the validity of the statute, this court said that it made no provision for a hearing on behalf of the prisoner, for his representation, by counsel, or for the production of evidence as to the fact or intent of the escape. Nor was the amount to be expended for recapture fixed by the statute, nor was any inquiry provided to demand the reasonableness of the amount actually expended. Because of these omissions in the statute, the court held that to enforce it we see no reason why he may not be required by proper enactment to pay a reasonable fee to reimburse the state and county for the many other items of expense incident to his prosecution and conviction. The salary of the Attorney General is not prorated, but a nominal fee is taxed in each case, graduated would be to inflict punishment on the prison- | the salary of the prosecuting attorney, then er for his escape, which is an offense at common law, without trial and without any procedure satisfying the constitutional provision that no person shall be deprived of his liberty or property without any procedure satisfying the due process of the Constitution. It must be recognized, and cannot be dis-only with reference to whether the case be a puted, that the trial of every misdemeanor felony or misdemeanor. case involves an overhead expense to the state and county which cannot be accurately prorated among all the cases tried. This overhead expense consists of various items, such as the per diem of the grand jurors, the per diem of the sheriff and of the trial jurors, the salary of the judge, and other expenses, all of which must be borne by the state and county, and are incurred because of the commission of crimes and misdemeanors. The cases holding that the state and coun. ty litigation tax is not taxable as a part of the costs, which the convicted defendant can be required to work out, are not applicable to the question under discussion. The tax was originally levied, and has always been levied, as a part of the statute, the purpose of which was expressly declared to be "the raising of revenue." When, subsequently, the Legislature declared that the tax should be considered as a part of the costs of the case, the court held that the character of the charge as a tax was too clearly defined to permit its nature to be changed from a tax to that of costs in fact, so as to justify im We think it is therefore manifestly within the right of the state government, through | its legislative representatives, to require that those who cause this expense should be made to bear it. As above stated, this overhead expense cannot be prorated with mathemati-prisonment for its payment. cal accuracy, the Legislature can only approximate, and it is a reasonable approximation to include the two $5 fees as part of the costs in each successful prosecution for misdemeanor. These sums are nominal, and no one can question their reasonableness. The statute imposing them is similar to that authorizing the taxation of an Attorney General's fee as a part of the costs in each successful prosecution, and we think is constitutional and valid. If the Legislature may require the convicted defendant to pay a fee as a part of the costs of the state, to reimburse the state for The charge imposed by the act of 1919 originated with that act, and was there expressly declared to be “a part of the expenses of the case not covered by any other fees provided by law, but necessarily accruing." The nature and character of the charge are thus fixed, and nowhere else appear. The charge being reasonable as an expense fee, we think it was within the power of the Legislature to make it a part of the costs to be taxed against the convicted defendant. It results that we find no error in the action of the trial court, and its judgment is affirmed, with costs. (218 S. W.) 2. EXECUTORS AND ADMINISTRATORS 89 ADMINISTRATOR LIABLE FOR FAILURE TO RECOVER DIAMOND BROOCH OF DECEDENT. Trust company, administrator of deceased mother, held liable for the value of a diamond brooch claimed by a daughter to have been given her by the mother a number of years before her death, the company not having made due effort to ascertain the facts as to the transfer of the brooch to the daughter, whether it might be recovered, etc., so that it came within the rule of liability for failure to recover assets in case of fraud, bad faith, or gross negligence. Appeal from Circuit Court, Henderson County. her by her mother in 1899, and since that time she had had possession thereof, claimit to the administrator or account for its ing it as her own, and she refused to deliver value; that Mrs. Matthews had always been a nonresident of the state of Kentucky, and the brooch had not been in the jurisdiction of the state of Kentucky since the appointment of the administrator; that it had no way of disproving the claim of Mrs. Matthews that the brooch was hers, and under such circumstances it was not its duty, as administrator, to expend $400 or $500 in an attempt to recover the brooch. To this pleading H. M. Stanley filed a reply, controverting its allegations, and further averring that, in November 1916, he had notified the administrator that Mrs. Matthews had the brooch in her possession, and had requested the administrator to recover the possession of the same, or its value; that the administrator said it knew Mrs. Matthews had the brooch,' and that, when Stanley returned a ring which he had belonging to the estate, the brooch would be forthcoming. It was also averred that the Suit by the Farmers' Bank & Trust Com- brooch was owned by, and in the possession pany against itself as administrator of Mrs. of Mrs. McCallister at the time of her death, Fannie S. McCallister, and H. M. Stanley and and never was in the possession of Mrs. Matothers. From a judgment against the admin-thews except on a few occasions, which facts istrator, it appeals. Affirmed. were well known to the administrator when it qualified; that Mrs. Matthews had an in Worsham & Hunt and Clay & Clay, all of terest in bonds in Henderson county of suffiHenderson, for appellant. Yeaman & Yeaman, F. J. Pentecost, and H. M. Stanley, all of Henderson, for appellees. Icient value to pay the value of the brooch, but that the administrator, although it knew of this fact, refused to take any steps to secure out of these bonds the value of the brooch. appeals. CLAY, C. The Farmers' Bank & Trust After hearing evidence on the question, the Company brought suit against itself, as ad- commissioner reported that the trust comministrator with the will annexed of Mrs. pany was liable for the value of the brooch, McCallister, H. M. Stanley, and others, to re- which he fixed at $4,000. On exceptions, the cover on certain notes alleged to have been court sustained the ruling of the commissionexecuted to it by Mrs. McCallister and Stan-er, and rendered judgment against the adley. Stanley filed an answer, counterclaim, ministrator for $4,000. The administrator and set-off, pleading that he was principal in one of the notes and surety for his mother on [1] The first question presented is wheththe other notes. He further alleged that er the motion to dismiss the appeal should be Mrs. McCallister owned, at the time of her sustained. The judgment was rendered on death, a diamond brooch worth $4,000, and February 23, 1917. On December 23, 1918, a that the administrator was chargeable with copy of the judgment was filed with the this sum because it had negligently failed to clerk of this court, and an appeal granted. reduce the brooch to its possession, or to On March 24, 1919, the transcript was filed recover its value. The trust company filed with the clerk, and the necessary summons a reply, controverting the allegations of the issued. It is claimed that the appeal was answer, counterclaim, and set-off, and plead- not prosecuted in time, because no summons ing, in substance, that, before the death of was sued out within two years, and the Mrs. McCallister, her heirs, H. M. Stanley, transcript was not filed within that time. Mrs. Matthews and McClain Stanley took Neither the suing out of a summons, nor the possession of all her property and divided it filing of a transcript within two years, is a among themselves; that in this division Mrs. prerequisite to the granting of an appeal. Matthew got the diamond brooch and took it Jones v. Finnell, etc., 8 Bush, 25; Rush v. with her to her home in the state of Ohio; | Hanley, 30 Ky. L. R. 170, 97 S. W. 126. Howthat when an effort was made by the adminis-ever, after an appeal has been granted, the trator to get possession of the brooch, Mrs. transcript must be filed in the office of the Matthews claimed that it had been given to clerk at least 20 days before the first day of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |