Kerr v. Sun Co.

Per Curiam,

The only complaint of the defendant presented by this appeal is, that the court erred in taxing the plaintiff’s cost for serving subpcenas upon his witnesses in accordance with the Act of July 11, 1901, P. L. 663, and in not taxing them in accordance with the Act of April 2, 1868, P. L. 3. Neither of these acts contains any express provision as to the fees for serving subpoenas, either of the common pleas or quarter sessions, except that which fixes the fees of the sheriff. But it was well settled by decisions prior to the act of 1901 that if service of such subpoenas was made by a constable or a private person, the fees therefor were to be taxed in accordance with the sheriff’s fee bill: McCallister v. Armstrong County, 9 Pa. Superior Ct. 423. See also McClain v. Lawrence County, 14 Pa. Superior Ct. 273, and cases cited on page 277. It is to be presumed that this was known to the legislature when they passed the act of 1901, and the fact that they made no change in that law, except as to the amount of the fee, raises a very strong presumption that they did not intend to disturb the settled rule. The contention that the act of 1901 does not apply to a subpoena ad testificandum, and therefore that the act of 1868 controls in that matter, cannot be sustained. The words of the act include such subpoena as plainly as did those of the act of 1868, and the manifest purpose of the legislature was to supersede the latter act as to the subjects embraced in the act of 1901: Lenhart v. Cambria County, 29 Pa. Superior Ct. 350; s. c. 216 Pa. 25. Since the passage of the act of 1901 the question here presented has been considered by us in at least two cases, and the rule as established prior to that act adhered to : O’Leary v. Northumberland County, 24 Pa. Superior Ct. 24; Kottcamp v. York County, 28 Pa. Superior Ct. 96. A reconsideration of the question, with the aid of the able argument of the appellant’s counsel, has not led us to a different conclusion. If the fees fixed by the act of 1901 for this service are too high the remedy is with the legislature.

The order is affirmed.