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Bob Ferguson

AGO 1956 No. 260 - May 3 1956
Attorney General Don Eastvold


 Nonresident witnesses called to appear and testify at criminal trials under chapter 10.55 RCW receive 10 a mile to and from court, and $5.00 a day, paid from current superior court fund.  RCW 2.40.010 governs voluntary attendance.

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                                                                    May 3, 1956

Honorable Don J. Clark
Prosecuting Attorney of Yakima County
102 County Court House
Yakima, Washington                                                                                                              Cite as:  AGO 55-57 No. 260

 Dear Sir:

            Your letter of April 2, 1956, previously acknowledged, requested our opinion on the payment of per diem and mileage to nonresidents who are compelled to come into this state to testify at a criminal trial.  Your questions are as follows:

             1. What amounts, if any, are payable out of the superior court budget for obtaining witnesses from outside the state under the provisions of RCW chapter 10.55?

             2. Is there any authority for the payment of witness fees in accordance with chapter 10.55 RCW if the nonresident witness voluntarily attends the trial?

             The answer to the first question is found in the following analysis; the second question is answered in the negative.

              [[Orig. Op. Page 2]]                        ANALYSIS

             RCW 10.55.060 provides as follows:

             "If any person in any state which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions, or grand jury investigation commenced or about to commence, in this state, is a material witness either for the prosecution or for the defense, in a criminal action pending in a court of record in this state, or in a grand jury investigation which has commenced or is about to commence, a judge of such court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required.  Said certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this state to assure his attendance in this state.  This certificate shall be presented to a judge of a court of record in the county in which the witness is found."

             RCW 10.55.070 provides as follows:

             "If the witness is summoned to attend and testify in this state he shall be tendered the sum of ten 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."

             1. A witness called to testify under the provisions of chapter 10.55 RCW is entitled to precisely the witness fee and mileage set forth in RCW 10.55.070.  One cannot read into the statute that which is not there.  No power of discretion was given the clerk of the court; the statute is an absolute mandate, and the language is clear and unambiguous.  The witness so called is entitled to ten cents a mile for each mile by the ordinary traveled route from the spot from which he is called to the court where the prosecution is pending.

              [[Orig. Op. Page 3]]

            He is, further, entitled to ten cents a mile for each mile on his return trip from the court along the same route.  The mileage provision clearly extends to that portion of the route outside the state boundaries.  To determine otherwise would disturb the uniform purpose of the statute.

             There can be no question as to witness fees.  The statute flatly states that the witness shall receive five dollars for each day he is required to travel and be in attendance as a witness.  We are of the opinion that both mileage and witness fees are to be paid out of the current superior court fund.

            2. A witness coming voluntarily from without the state to testify is entitled to neither mileage nor a witness fee under chapter 10.55 RCW.  State v. Brown, 35 Wn. (2d) 379, states that in order that a witness be entitled to immunity from arrest and service there must be strict compliance with RCW 10.55.060.  We are of the opinion that for one to qualify for mileage and witness fees under this act, the witness must be summoned; otherwise, the provisions of RCW 2.40.010 apply.  This opinion is further strengthened by the beginning words of RCW 10.55.070 where we find "if the witness is summoned to attend and testify."  This would appear to preclude payment under this chapter where the witness is not summoned.

             We hope this opinion will be of assistance to you.

 Very truly yours,
Attorney General 

Assistant Attorney General