specially concurring.
I am in accord with the result reached in the majority opinion but disagree with the pronouncement that the trial court has no authority to make an order for the advance of witness fees and mileage for out-of-state witnesses in a criminal case. The court’s position in this respect is set forth in the following language :
“The Uniform Act contains no provision authorizing the court to make such an order. It is silent as to the source of the money which must be paid or tendered to a witness, and nowhere in the Act is there any language conferring upon the court authority to make an order for the payment of the fees and mileage by the state. We cannot read into the statute such a provision without indulging in judicial legislation.
6 i ■.’? # * # #
“* * * It [the Uniform Act] did not choose to provide that such witnesses, whether for the state or for the defendant, should be compelled to *56come without advancing witness fees and expense of transportation. It did not choose to provide that such advances should be made to witnesses for the defendant, or for the state for that matter, at the expense of the state. The Uniform Act is complete within itself, and by its own terms establishes the policy of the state with respect to its subject matter.”
I am of the opinion that the trial court has implied authority to make such an order, and especially in view of § 13-715, OCLA, which is as follows:
“When jurisdiction is, by the organic law of this state, or by this Code or any other statute, conferred on a court or judicial officer, all the means to carry it into effect are also given; and in the exercise of the jurisdiction, if the course of proceeding be not specifically pointed out by this Code, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.”
The above section was considered in the early case of Aiken v. Aiken, 12 Or 203, 208, 6 P 682, where it is said:
“* * * There need, therefore, be no failure of justice, under the jurisprudence of this state, in consequence of the mode of proceeding pointed out being inadequate to afford a remedy in a particular case, as any remedy in such case may be adopted, subject to the qualification mentioned. It is beyond the scope of legislative wisdom to prescribe a specific remedy for every class of cases that may arise in the complication of human affairs, and it was not attempted; but ample provision was made to prevent a party from being left remediless in case of an infringement upon his legal rights, and the courts must of necessity recognize the provision and carry it out when a proper ease is presented.”
*57This section was again construed in Kelley v. Kelley, 183 Or 169, 180, 191 P2d 656, speaking through Mr. Justice Bossman, as follows:
“When the legislature creates a new right and renders available a remedy for the infraction of the right, or when legislation creates an additional remedy for the transgression of an existing right, § 13-715, just quoted, invests the court to which jurisdiction is given over the subject of the new legislation with all judicial power essential to carry into effect the legislative purpose in adopting the new act. * * *”
This statute, adopted in 1862, is simply a legislative declaration of an ancient elementary rule of law that every grant of express power carries with it the incidental or implied power necessary to make the exercise of the express power effective. It is claimed in the majority opinion that this statute is a part of the Civil Code and has no application in criminal proceedings. In answer to this, we have heretofore expressly applied this statute in a criminal case involving a charge of rape. State v. Chase, 106 Or 263, 269, 211 P 920.
It is true, as stated in the majority opinion, that the above enactment was adopted as a part of the Civil Code. However, it clearly appears on its face that its application was not confined to that code. Prom the language, “WTien jurisdiction is, by the organic law of this state, or by this Code or any other statute, conferred on a court or judicial officer,” it clearly appears that the enactment embraces not only the provisions of the Civil Code but also the organic (constitution) law which no one would argue was part of the Civil Code and “any other statute” which obviously would be exclusive of the Civil Code and would of necessity in-*58elude all criminal statutes. This is manifestly what Justice McBride had in mind when he wrote the opinion in State v. Chase, supra.
The Uniform Act provides, among other things, that when a judge of a court of record in this state certifies that there- is a criminal prosecution pending in his court and that a person, being within another state which has a Uniform Act relating to witnesses, is a material witness in such prosecution and that his presence will be required for a specific number of days, upon presentation of such certificate to a judge of a court of record in the county in which such person is, such judge in the other jurisdiction shall fix a time and place for hearing and shall make an order directing such witness to appear before him. If such outside judge determines that the witness is material and necessary and will not cause him any undue hardship to be compelled to testify in the prosecution, he shall direct the witness to attend and testify in the court where the prosecution is pending. The law further provides:
“If the witness is summoned to attend and testify in this state he shall be tendered the sum of 10 cents a mile for each mile by the ordinary traveled route to and from the court where the prosecution is pending, and five dollars for each day that he is required to travel and attend as a witness. * * *”
And if he fails to so appear he shall be punished for contempt.
It is obvious that if such witness’ expenses be not tendered, the witness is under no obligation to respond, and this applies not only to the state’s witnesses, but to defendant’s as well.
*59There was no need for a Uniform Act to enable the state or the defense to have the benefit of the presence of the willing witness. Such witness conld always, and may yet, receive his expenses and per diem after his attendance at the trial.- § 26-1814, OCLA. It was to the -unwilling witness that the act was directed. If there is no power vested in the court to order the payment of the witnesses’ expenses in advance in order to force the attendance of an unwilling witness — then in the name of reason, what good is the act?
Under § 87-966, OCLA, the county in which the prosecution is had is obligated to pay fees and mileage to the person rendering services as a witness in a criminal action.
It may be seen from the foregoing that not only does the law provide a schedule of tendered fees and expenses for out-of-state witnesses and a fund from which such fees and expenses shall be paid but also it empowers the court to make such an order as is necessary in the exercise of its jurisdiction to carry into effect the legislative purpose.
The majority opinion quotes from the “carefully considered” opinion in State v. Fouquette, 67 Nev 505, 221 P2d 404, being the only case in which the question before us was considered. A careful reading of that opinion discloses that the only question presented was a constitutional one. The court said:
“The ‘Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases,’ * * * is not cited by appellant.” 221 P2d 404, 410.
The court in that case then went on briefly to state that since the Uniform Act did not provide expressly or by implication for the payment by the state of *60out-of-state witness expenses, such authority did not reside in the court. Following that statement, it appears that the trial court did permit the defendant to bring in four witnesses from California at the expense of the county but that it denied defendant’s motion to bring in two additional witnesses at public expense only because the testimony of both, as shown by their affidavits upon which the motion was based, was incoiñpetent and immaterial.
It appears to me that the legislature, in enacting the Uniform Act, clearly intended that the state should advance the out-of-state witness expenses, and, in the absence of any legislation authorizing any particular person to advance such expenses, it was the plain duty of the court to direct such disbursement. If this were not so, an unwilling witness could not be compelled to attend the trial and the law would become meaningless and inoperative. A poor man, who was unable to advance his witnesses’ expenses, might be convicted although innocent, or a guilty man might go free, and the Uniform Act would indeed be emasculated, if not totally destroyed.
TOOZE, J., concurs in this opinion.