On Motion for Rehearing.
It is insisted in the motion that certain assignments of error were not ruled on in our opinion, and the criticism is well founded.
[16,17] The propositions under the fifteenth and seventeenth assignments are that a voter, whose right to vote in an election is at issue in a contested election suit, has such an interest in the suit that he is not entitled to witness fees for his attendance upon court; and that a person who is alleged and proved to be an illegal voter is not entitled to witness fees for attending the trial of such contested election suit.
It is the established rule in Texas that parties to an action, or those vitally interested in the decision of a case, shall not be permitted to charge for their attendance upon the trial, and in New York and Wisconsin it has been held that persons whose right to vote has been attacked in a contested election ease are to such an extent parties to the suit that evidence of their declarations made on election day or thereafter as to how they voted are, as is the rule in England, admissible in evidence. People v. Pease, 27 N. Y. 45, 84 Am. Dec. 242; State v. Olin, 23 Wis. 319. In Illinois the English rule has been modified by a decision that the voter may be considered a party as against the contestant, and that his declarations as to his want of qualification to vote may be shown after proving by other testimony that he voted adversely to the contestant. Beardstown v. Virginia, 81 Ill. 541. In Kansas and Colorado the declarations are rejected and the English rule repudiated. Gilleland v. Schuyler, 9 Kan. 569; People v. Commissioners, 7 Colo. 190, 2 Pac. 912. In the contested case of Cessra v. Meyers, in the Forty-Second Congress, the report of the committee in no uncertain terms condemned the English rule, as applied to American elections, but in the contested case of Bell v. Snyder it was held by the House of Representatives of the Forty-Third Congress that the declaration of a voter as to how he voted or intended to vote is competent testimony on that point. McCrary on Elections, §§ 450-452. While these authorities are cited to show that the weight of authority upholds the English rule, which ascribes to an attacked voter the disabilities of a party to the suit, it is unnecessary to express an opinion as to whether the English rule in its full force should be adopted or the modified doctrine as propounded by the Illinois court, for the effect of both rulings is to place the person, whose vote is being contested, in the attitude of a party to the suit, and being a party he would be interested in the result at least so far as his own vote is concerned and should not be permitted to collect fees for attending the trial. The judgment would directly affect him either in sustaining or setting aside his vote, the right of suffrage being considered one of the most' sacred rights held and enjoyed by freemen, and worth immeasurably more than dollars and cents.
Every voter, either for pure and patriotic motives, or for base and corrupt designs, is interested in sustaining his vote whenever it is attacked, and to that extent he is an interested party, and should not be allowed to profit by his attendance on court in order to testify and sustain his vote. This should be the rule in every contested election case where the contestants have absolutely no pecuniary interest in the case, and are acting as the representatives of a large body of the voters of a community, and who have assumed pecuniary obligations in connection with the case in other respects, which the statutes compel them to pay.
Having failed to successfully prosecute their suit, we are of the opinion that, by the terms of the statutes and the provisions of their cost bond, appellants are liable for all legal costs incurred by officers in performing duties enjoined upon them by statute. They cannot be held responsible for any acts of fraud or oppression on the part of the contestee, unless it should appear *1174that they had joined in the fraud, and they should be paid for such labor by the unsuccessful party. We include in the services mentioned, not only those of the sheriff and clerk, but also the legitimate, statutory costs of notaries public, or other officers who may have taken depositions of witnesses in obedience to the demands of either party. We say this to correct the impression, which may have arisen from our former opinion, as to the depositions of the witnesses.
[18] The law gives the district clerk 25 cents for each subpoena issued, and 15 cents for “each additional name inserted in subpoena.” No one but the district clerk or his deputy has the authority to issue a subpoena from the district court, and no one but the clerk or his deputy would have the authority to insert additional names, or to add to, or take away from, such subpoena, and if additional names were inserted in the subpoenas by any one except the clerk, or his deputy, they were illegally inserted, and, not being his' act, he would have no authority to charge for such names so inserted. We mean by the insertion of a name the writing of the same in a subpoena after it has been signed and verified by the clerk. That act would not be the act of the clerk, unless such insertion was made by the clerk or his deputy, or perhaps by some one in his immediate presence and at his instance and request. Although the subpoenas may have been prepared and the names inserted therein, by some one other than the clerk, still, if he afterwards signed and sealed the subpoenas, they became his act, and he would be entitled to recover the legal fees. In other respects than considering the assignments of error as requested, the motion for rehearing is overruled.