The question as to whether an expert witness is entitled to special compensation in addition to the ordinary witness fee provided by statute, and whether he can be compelled to testify in regard to matters calling for a strictly professional opinion, without special compensation therefor being paid or secured to him, is one that has occupied the attention of courts.

At common law no witness fees were paid. Costs are a creature of statute, and, in the absence of a statute authorizing it, no fees can be taxed as costs.9

In England, by statute,10 a witness must "have tendered to him according to his countenance or calling his reasonable charges."

By statute in some states, experts are allowed special compensation, to be taxed as costs.

In Wright vs. People, 112 111., 540, Dr. Wright, a witness, called to testify on behalf of the plaintiff, and, having voluntarily stated his profession as that of physician and surgeon, and having testified as to the conditions he found on the plaintiff, John Finneran, was asked this question: "If one person should strike another a heavy blow on the head, at or near the temple, with that 'billy,' would it, or would it not, be likely to produce upon the person receiving such blow, a condition alike or similar to that in which you found John Finneran?" Witness: "I regard that as calling for a professional opinion, and if so, I claim that I am privileged from answering the question until my fee of ten dollars is paid or secured to me; and I would ask the court if that question does not call solely for a professional opinion."

9 3 Blackstone's Com., 869; Constat vs. Matteson, 22 I11., 546; Eimer vs. Eimer, 47 I11., 373; Smith vs. McLaughlin, 77 I11., 596; County Commissioners vs. Lee, 3 Col. Ct. App., 177. 10 5 Eliz., c. 9.

The court: "It does."

The witness: "Then I refuse to answer it, except upon the conditions I have stated."

The court then asked plaintiff if he was willing to pay or secure said fee of ten dollars, to which the plaintiff replied that he was not, although admitting the fee to be a reasonable charge for such opinion, but insisting that the witness was not entitled to charge any fee other than the statutory witness fee, and that he was compellable to answer the question.

The court to witness: "The court holds that you cannot legally claim such fee, and refuse to answer because the same is not paid or secured to you; and the court orders and directs you to answer, to the best of your ability."

Witness: "Believing the court has no right to direct or order me to answer the question without my fee being paid or secured, I still refuse to answer."

Thereupon the court informed the witness that his refusal to answer was a contempt of court, and that he stood arraigned before said court to answer for such contempt; and again being asked by the court to answer the question, and the witness still refusing, the court adjudged him guilty of a contempt of court for such refusal to answer, and sentenced him to pay a fine of five dollars and costs of the proceeding for contempt, to which defendant excepted.

The Supreme Court, in passing on the question, say: "Having without objection stated the condition of the patient he had visited professionally, the witness could not, under any rule of law, refuse to state what would cause the symptoms he discovered to exist."

In Ex parte Dement, 53 Ala., 389, a well-considered case, the court held that a physician, like any other person, may be called to testify as an expert in a judicial investigation, civil or criminal, without being paid for his testimony as for a professional opinion.

To the same effect is the Supreme Court of Minnesota's decision in the State vs. Teipner, 36 Minn., 535, 32 N. W., Rep., 678; in which the principle announced in Ex parte Dement was approved and followed.

It has, however, been held that, while a physician cannot be compelled to make a post-mortem examination of a deceased person, yet, having made it, he may be compelled to testify as to the results thereof." 11

In Buchman vs. State, 59 Ind., 1; the court held that a physician could not be compelled to answer a question calling for a strictly professional opinion without being specially compensated. The decision is based upon Section 21 of the Indiana Bill of Rights, which provides that "No man's particular services shall be demanded without compensation." To overcome the effect of that decision, a statute has been passed in Indiana, making it compulsory for an expert to testify without first being paid a special fee therefor.12

In Dixon vs. People, 168 111., 179, it was expressly held that a physician, who had been subpoenaed as an expert witness only, could be compelled to give expert testimony in answer to a hypothetical question calling for his opinion, and that he cannot refuse to answer upon the ground that no compensation greater than that allowed to ordinary witnesses has been paid to him, and that this was true in both civil and criminal cases. The court in this able and well-considered case, say: "The court could not fix a compensation to be paid to appellant, nor order his fee of $10.00 to be taxed as costs, nor order the party calling the witness to pay or secure to him compensation. It is claimed, however, that, in a civil suit, a witness, who is called to testify as an expert only, should not be punished for contempt in refusing to testify because no compensation is provided for his professional opinion other than ordinary witness fees. The power to compel the production of testimony necessary to the decision of issues involved in pending law suits, is one of the rights and powers which is inherent in the very organization of courts of justice. Contempt of court is a disobedience to the rules or orders of the court, which interferes with the due administration of the law.13 The refusal of a witness to answer any question, which he may lawfully be required to answer, is a contempt of court, and, if he persists in his refusal, he may be punished accordingly. The grounds upon which the right to such extra compensation have been sustained, 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 a court, to give his testimony, such a witness meets with a loss of time. The better and more recent authorities, both in England and in this country, now unite in the view, that the right to such extra compensation cannot properly rest upon loss of time as a basis. There is no reason for assuming that the time of medical men and attorneys is more valuable than that of others, whose livelihood depends upon their exertions. A party cannot maintain an action for compensation for loss of time in attending a trial as a witness. Loss of time, as a ground for claiming extra compensation for services as a witness, applies as well to all ordinary witnesses as to expert witnesses. It is conceded, that, when any witness, whether he be an expert witness or not, is acquainted with any facts which bear upon the matter in controversy in a litigation, he is obliged to testify; and a distinction is drawn between the testimony of an expert witness, who is acquainted with the facts about which he testifies, and an expert witness, who is called upon to give his opinion, in reply to a hypothetical question, without any knowledge of facts. Manifestly the witness, who goes to court and testifies as to the facts of which he knows, is subjected to a loss of his time, as much as a witness, who goes there to testify as an expert upon a mere matter of opinion. 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.' Blackstone says: 'Property consists in the free use, enjoyment and disposal of one's acquisitions without any control or diminution, save only by the laws of the land.' * * * It is not exactly accurate to say, that the mere abstract knowledge, acquired in the study of a special employment, is of itself property. It is the right to apply that knowledge to the accomplishment of a particular result, which constitutes property. * * * But where a physician is asked a hypothetical question, and is called upon to give his opinion upon facts stated in the hypothetical question, while he is testifying as a witness in court, he is not thereby required to practice his healing art. He is merely making a statement, not for the purpose of effecting a cure, or relieving a patient, but for the purpose of enabling the court and the jury to understand correctly a case which is before the court. There is no infringement here of a property right. It may be conceded, that, in a certain sense, the knowledge of the physician, acquired by special study, is property, but the question here is, not so much whether certain knowledge is property, as whether the requirement that he shall answer a hypothetical question, is a taking of his property. Where he is required to make an application of his knowledge to a particular case, so as to secure a particular result, such as, for instance, the curing of a disease, or the healing of a wound, then he would undoubtedly be entitled to compensation. A physician cannot be punished for a contempt of court for refusing to make a post mortem examination, unless paid therefor, nor can he be required to prepare himself in advance for testifying in court by making an examination, or performing an operation, or resorting to a certain amount of study, without being paid therefor. But when he is required to answer a hypothetical question, which involves a special knowledge peculiar to his calling, he is merely required to do what every good citizen is required to do in behalf of public peace and public order and in promotion of the public good. Counsel for appellant state, that many of the cases which have held that witnesses can be required to testify without being paid, are criminal cases, where the interest of the State and the interest of the public demand of the physician, that he should yield up something of his knowledge for the benefit of society at large. That position, however, is inconsistent with the contention that, when an expert witness is required to testify without compensation, his property right is interfered with. A man's property cannot be taken from him by the State without compensation. It makes no difference whether it is to be taken for the good of the public, or for the benefit of a private individual, so far as the right to compensation is concerned. It is true that private property cannot be condemned by the State for a private purpose. Private property can only be taken for a public purpose. But, in either case, it must be paid for. To concede, therefore, that in a criminal prosecution conducted by the State, a physician may be required to testify without compensation because it is for the public good, is to concede, that his knowledge may be made use of by a court of justice without his being paid therefor. We conceive, however, that it can make no difference whether the suit in which the witness is called upon to testify is a suit between private parties, or is a suit between the State and an alleged criminal. In either case, the object is to promote public justice, and to aid in the due administration thereof. It is just as important to the peace and good order of society, that private controversies should be settled upon correct proofs and in accordance with truthful testimony, as that criminals, who violate the laws of the State, should be punished. It is the duty of the ordinary witness, and of the expert witness, to testify as to facts within their knowledge, which bear upon the decision of controversies in the courts. Such duty devolves upon each as a citizen, in view of the protection which he receives from the laws of the country in the matter of his personal liberty, and in the matter of the protection of his property. The duty devolves as much upon a physician who is required to testify as an expert witness in answer to hypothetical questions, as it does upon the ordinary witness, testifying to facts within his knowledge. * * * If the precedent is once established, that expert witnesses must be paid reasonable compensation 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 an expert witness 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 curioe; 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 of arriving at the truth of the matter, and for the purpose of aiding the court to pronounce a correct judgment. * * * Moreover, if a physician is to be allowed extra compensation as an expert witness, then men pursuing other occupations which require special experience will have the same right to demand extra fees. A banker will claim that he has earned extra compensation; a merchant will make the same claim; and so with men engaged in every other branch of business. It will be easy to say, in such cases, that the testimony called for is the result of special knowledge and acquired skill, and, therefore, should be paid for. Almost every lawsuit involves testimony, which is in the nature of opinion, in addition to testimony which speaks of the mere facts within the knowledge of the witness. * * * The decision in Buchman vs. 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 vs. 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. 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. That case holds, that the law allows no excuse for withholding evidence, which is relevant to the matters in question before its tribunals, and is not protected from disclosure by some principle of legal policy; that the administration of justice, being a source of mutual benefit to all 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, and the broker from his exchange, 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 to 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 that, upon refusal to testify, he is punishable as for a contempt.' "