the presence or absence of certain elements. The physician, after exhaustive inspection and tests, is still often left in doubt, and does not venture an opinion to his patient until after long study. Such study, reflection, etc., is not the function of the ordinary witness. It is not within the command of the subpoena, and there is no reason to think that the statutes were intended to require it of any witness merely as such. If a party desires that any witness, expert or otherwise, equip himself with knowledge by research or inspection, it may employ him to do so, but such employment will be controlled by the ordinary rules of contract, express or implied.

In some of the earlier text-books and decisions it was asserted that courts could not, or would not, compel certain 216 professional men to attend and testify on professional subjects for the mere ordinary witness fee, more especially on the ground that the time of such witnesses was so valuable that they ought not to be thus coerced: In re Roelker, 1 Sprague, 276, Fed. Cas. No. 11,955; Ordronaux on Medical Jurisprudence, ed. 1869, 138; 1 Greenleaf on Evidence, 13th ed., sec. 310; 1 Taylor on Medical Jurisprudence, 19; People v. Montgomery, 13 Abb. Pr., N. S., 207; Buchman v. State, 59 Ind. 1, 26 Am. Rep. 75. Most of these seem to result from a custom amongst the English courts to treat physicians and lawyers as exempt from coerced attendance on the same terms as other witnesses, a custom often criticised, but which had some justification in an early statute (5 Elizabeth, c. 9), which provided for the tender to a witness "according to countenance or calling his reasonable charges": Webb v. Page, 1 Car. & K. 23; Lonergan v. Royal Exch. Assur. Co., 7 Bing. 725; Collins v. Godefroy, 1 Barn. & Adol. 950; Parkinson v. Atkinson, 31 L. J. C. P., N. S., 199. The fallacy of the reason on which these earlier customs were supported has, however, been recognized and their authority repudiated in a great multitude of more recent decisions: Ex parte Dement, 53 Ala. 389, 25 Am. Rep. 611; Summers v. State, 5 Tex. App. 365, 32 Am. Rep. 573; State v. Teipner, 36 Minn. 535, 32 N. W. 678; Larimer Co. v. Lee, 3 Colo. App. 177, 32 Pac. 841; Flinn v. Prairie Co., 60 Ark. 204, 46 Am. St. Rep. 168, 29 S. W. 459, 27 L. R. A. 669; Dixon v. People, 168 Ill. 179, 48 N. E. 108, 39 L. R. A. 116; Burnett v. Freeman, 125 Mo. App. 683, 103 S. W. 121; State v. Bell, 212 Mo. 111, 111 S. W. 24; Main v. Sherman Co., 74 Neb. 155, 103 N. W. 1038; Barrus v. Phaneuf, 166 Mass. 123, 44 N. E. 141, 32

L. R. A. 619; 3 Wigmore on Evidence, 2203. The result of these cases is that the expert, be he mechanic, physician, engineer, or chemist, must obey the subpoena of the court, and must testify to such facts as are within his knowledge, whether these facts may have required professional learning, study, or skill to ascertain them or not. If, when placed on the witness-stand, he has such knowledge, he must testify to it. They substantially all recognize, however 217 that the subpoena under statutes like ours does not compel the expert nor other witness to equip himself by labor with ability to testify either to an opinion or to any other fact which might be ascertained by special services, and hence that from the mere subpoena and compulsion to testify as a witness results. no implied contract upon anyone to pay the expert anything in excess of the statutory fees, recognizing, however, that if he does perform work in preparation and qualification to enable him to testify at the request of any person, implied contract for reasonable compensation may arise, or an express contract will be valid: Barrus v. Phaneuf, 166 Mass. 123, 44 N. E. 141, 32 L. R. A. 619; Tiffany v. Kellogg Iron Works, 59 Misc. Rep. 113, 109 N. Y. Supp. 754; Anderson v. Minneapolis etc. R. Co. 103 Minn. 184, 114 N. W. 744, 14 L. R. A., N. S., 886; Schofield v. Little, 2 Ga. App. 286, 58 S. E. 666.

Applying these principles to the present case, it is very obvious that no statute has authorized anyone to make any contract for such services at the expense of the county. The allegation of the complaint is that all services of that character were performed at the request of the attorneys for the accused, albeit with their assurance that the country would be liable therefor. Liability cannot be imposed upon counties or other governmental subdivisions of the state except in accordance with statute law, and no statute is referred to conferring any such authority upon counsel for one accused of crime. We are therefore unable to discover any basis upon which the county of Waukesha can be held liable for any compensation to this witness other than the statutory fees, if indeed it can be made liable for those.

A

2. We are in much doubt whether the complaint attempts to state any claim for statutory witness fees, or indeed whether they may not have been paid in this case in the. manner customary in criminal cases and especially homicide cases. very liberal construction of the complaint might disclose facts stated or reasonably implied to indicate the 218 earning of such fees, in that plaintiff under subpoena attended court five

days and gave testimony for the defendant. The right to fees from the public must be found in the statute. The only provisions in statute law bearing upon this subject are the constitution (article 1, section 7), that the accused shall "have compulsory process to compel the attendance of witnesses in his behalf," and section 4641, Statutes (1898), which provides that in cases of higher homicide accused shall "have process to summon such witnesses as are necessary to his defense at the expense of the state," and section 4062, Statutes (1898), that upon satisfactory proof of a defendant's inability to procure the attendance of witnesses for his defense, the court may direct necessary witnesses to be summoned, and that witnesses so ordered shall be paid their fees out of the county treasury. All witnesses in a criminal case, whether for prosecution or defense, must attend without payment of their fees in advance: Stats. (1898), sec. 4058. Whether the constitutional provision or section 4641 can be construed to guarantee anything more than the mere process sufficient to compel the attendance of the witnesses for defendant, namely, to impliedly provide that they shall be paid their fees at public expense, is a question upon which this court has not spoken. Similar words have received the more limited construction in State v. Hornsby, 8 Rob. (La.) 554, 41 Am. Dec. 305. If the more liberal construction be accorded these provisions, or either of them, it carries with it by necessary implication the necessity of supervision of that right to prevent its abuse. Section 4641 only entitles a defendant to process to summon "such witnesses as are necessary," and the uniform practice in the circuit courts has, we think, been confirmatory of the implication that, before process can issue for any witness, the court or judge must be satisfied, presumably by affidavit, that he is necessary and shall order process to compel his attendance. Nowhere in the statute is there any provision for the payment 219 of a defendant's witnesses, except in section 4062, Statutes (1898), which permits witnesses "ordered" for the defendant by the court or judge to be paid their fees out of the county treasury in the same manner that witnesses for the state therein are paid; that is, only upon a certificate of the clerk of court (section 4060) after a prior order by court or judge. This is a necessary prerequisite to the existence of any liability of the county therefor: Oneida Co. v. Tibbits, 125 Wis. 9, 102 N. W. 897. The complaint fails to allege either any order of court or judge for the appearance and attendance of plaintiff, and the form of procedure, in presenting his claim to the county

board, at least impliedly negatives the issue of any certificate by the clerk of court. Without such prerequisites no cause of action, even for the amount of the statutory fee, can be stated. We therefore conclude that the complaint fails to state any cause of action against the county.

By the COURT. Order appealed from is affirmed.

A Professional or Expert Witness may be compelled to attend court and to testify on a criminal trial respecting any fact within his knowledge, though it is one acquired by study and experience, and he cannot recover any fees in excess of those recoverable by other witnesses: Flinn v. Prairie County, 60 Ark. 204, 46 Am. St. Rep. 168. Thus a physician, subpoenaed as an expert witness only, cannot refuse to testify upon the ground that no compensation greater than that allowed to ordinary witnesses has been paid or promised to him: North Chicago St. R. R. Co. v. Zeiger, 182 Ill. 9, 74 Am. St. Rep. 157. But a professional or expert witness cannot be compelled to make any examination or preliminary preparation, nor to attend the trial for the purpose of listening to testimony, that he may be better enabled to give his opinion as an expert. For services of this character he may demand extra compensation: Flinn v. Prairie County, 60 Ark. 204, 46 Am. St. Rep. 168. See, also, Bathgate v. Irvine, 126 Cal. 135, 77 Am. St. Rep. 158.

C. BECK COMPANY v. CITY OF MILWAUKEE.

[139 Wis. 340, 120 N. W. 293.]

MUNICIPAL ORDINANCE-Protection of Shore or Harbor.A municipal ordinance is valid which forbids, under penalty recoverable in a civil action, the removal of stone or earth "from the beach or from the water within three hundred feet of high-water mark along or near the shore of Lake Michigan" within the city limits. The beach, as designated in the ordinance, is synonymous with shore, and means that portion of the shore between ordinary high and low water mark; the ordinance does not assume to prohibit interference with the soil above high-water mark; and it must be given a reasonable interpretation so as not to forbid the taking of a mere handful of sand or stone from the beach. (pp. 1064, 1066.)

NAVIGABLE WATERS.-The Title to the Bed of Lake Michigan below ordinary high-water mark is in the state. (p. 1066.)

Kronshage, McGovern, Goff, Fritz & Hannan and Walter D. Corrigan, for the appellant.

John T. Kelly, city attorney, and Walter H. Bender, assistant city attorney, for the respondent.

341 KERWIN, J. This is an appeal from an order dissolving a temporary 342 injunction. The action was brought

to restrain the defendant city of Milawukee from enforcing an ordinance which prohibits under penalty the removal of "stone, sand, or earth from the beach or from the water within three hundred feet of high-water mark, along or near the shore of Lake Michigan between the extreme northern limit and extreme southern limit of the city." The complaint charges that the ordinance is void, and that the defendant city threatens to enforce it to the injury of plaintiff; that plaintiff is the owner of certain lots and in possession of other land which abuts on Lake Michigan; and that the beach of said lake is a portion of said lots, and that there accumulates on said lots above high-water mark sand, stone, and gravel which is valuable. The complaint also alleges that the defendant threatens to prosecute plaintiff for taking materials from the beach on the lots in question above high-water mark. The prayer is to the effect that the ordinance be declared void, and that the defendant city be enjoined from enforcing or attempting to enforce it, and from making any complaint thereunder, and from prosecuting any proceedings against this plaintiff or its agents, servants, or employés by reason of any alleged act in contravention of said ordinance; that pending this action, and until the further order of the court, the said defendant, its agents, servants, attorneys, and employés may be temporarily enjoined and restrained from enforcing said ordinance or from commencing or prosecuting any complaint or proceedings against the plaintiff, or its agents, servants, or employés for any alleged act in contravention of said ordinance, and that this plaintiff may have its costs and disbursements and such other further judgment, order, or relief in the premises as may be just and equitable.

Upon this complaint an order was made enjoining and prohibiting the city of Milwaukee, its agents, servants, attorneys, and employés from enforcing the ordinance referred to, and from commencing or prosecuting any complaint or proceeding 343 against the plaintiff, its agents, servants, or employés for any alleged act in contravention of said ordinance. Defendant answered, denying that plaintiff will be in any way injured by the enforcement of the ordinance, and setting up, in effect, that the acts of the defendant threatened are necessary for the protection of the shore line and uplands and the streets of the city from encroachment by the waters of the lake and preservation of the streets and private property from destruction, and specifically denied that the plaintiff had been confining its operations to the land above high-water mark,