Ruckenbrod v. Mullins

• Decision Date: 19 January 1943
• Docket Number: 6498
• Court: Utah Supreme Court
• Parties: RUCKENBROD v. MULLINS et al

133 P.2d 325

102 Utah 548

RUCKENBROD v. MULLINS et al

No. 6498

Supreme Court of Utah

January 19, 1943

Appeal from District Court, Third District, Salt Lake County; A. H Ellett, Judge.

Mandamus by the State of Utah on the relation of Richard Ruckenbrod against J. B. Mullins and others to compel defendants as Commissioners of Salt Lake County, a political subdivision and body politic of the State of Utah, to comply with an order requiring Salt Lake County to pay relator a specified sum for services rendered as attorney for an accused in a criminal prosecution. From an adverse judgment, defendants appeal.

Writ vacated.

Harold E. Wallace, and Ray Van Cott, Jr., both of Salt Lake City for appellants.

F Henri Henriod, of Salt Lake City, for respondent.

WOLFE Chief Justice. LARSON, McDONOUGH, and MOFFAT, JJ., HOYT, District Judge, concur. PRATT, Justice, on leave of absence.

OPINION

WOLFE, Chief Justice.

The respondent, Richard Ruckenbrod, an attorney duly licensed to practice in the State of Utah, was appointed by the City Court of Salt Lake City to defend an indigent defendant, Theodore Pacheco, on a charge of second degree burglary. Ruckenbrod appeared before the City Court at a preliminary hearing, interviewed Pacheco several times, and represented him at the trial in the District Court. At the close of a one day trial, the District Judge ordered Salt Lake County to pay Ruckenbrod $ 75 for services rendered in the defense of Pacheco. When Salt Lake County refused to comply with this order, Ruckenbrod filed a petition for a writ of mandamus to compel compliance therewith. The County interposed a demurrer to the petition for the writ which demurrer was duly overruled. The County elected to stand on the demurrer whereupon judgment was entered and this appeal results.

Both parties to this action have indicated that they would like us to decide whether or not a duly licensed attorney appointed by the court to defend an indigent accused is entitled to payment for his services from the County in which the appointment and the defense were made. Under the view we take of the case, this is the only question which need be decided.

This identical issue was before us in Pardee v. Salt Lake County, 39 Utah 482, 118 P. 122, 36 L.R.A., N.S. 377, Ann. Cas. 1913E, 200. We there held that in absence of express statute to the contrary, an attorney, appointed by the court to defend an indigent defendant, was not entitled to payment for his services from the County. This holding is in accord with the overwhelming weight of authority. See annotation in 130 A. L. R. 1439; 5 Am. Jur. p. 354, Sec. 157, and cases cited and discussed in the Pardee case.

The respondent frankly admits that the Pardee case favors the position of the appellant. However, in view of some recent cases, especially the case of Knox County Council v. State, 217 Ind. 493, 29 N.E.2d 405, 408, 130 A. L. R. 1427, counsel for both sides state candidly that they seek to know whether or not this court still adheres to the rule set down in the Pardee case. We have, therefore, consented to re-examine the basis for that rule.

The Knox County case, supra, following a long line of Indiana cases, many of which are discussed in the Pardee case, held that even in the absence of a specific statute, attorneys appointed to represent indigent defendants in criminal proceedings are entitled to compensation from the public. It is upon the reasoning of these cases that the respondent relies. The reasoning of the Knox County case is summarized by the court as follows:

"* * * from the earliest times, this court has held that to require the services of an attorney to prosecute and defend without fee is in conflict with section 21 of article 1 of the Constitution of Indiana. Blythe v. State, 1853, 4 Ind. 525; Webb, Auditor, etc., v. Baird, 1854, 6 Ind. 13.

* * *

"This court has consistently held that, under the Constitution of Indiana, there can be no valid judgment against a defendant in a criminal case unless he has been offered, and, if so desired, provided with adequate, counsel. * * *

"It seems to be the universal rule that 'A court has the inherent power and authority to incur and order paid all such expenses as are necessary for the holding of court and the administration of its duties.' 14 American Jurisprudence, § 171, p. 371. * * *

"The conclusion seems unavoidable that it is the duty of courts to see that criminal cases are tried; that these cases cannot be legally tried unless the defendant, if he is a pauper, is provided with counsel; that attorneys cannot be compelled to serve without compensation; and therefore that, in order to conduct a legal trial, the court must have power to appoint counsel, and order that such counsel shall be compensated if necessary; and that the right to provide compensation cannot be made to depend upon the will of the Legislature or of the county council."

It is obvious that one of the basic concepts upon which the opinion proceeds is that, because of the Constitution of Indiana, a member of the bar cannot be compelled to render services in defense of a pauper without compensation.

The majority of jurisdictions hold that an attorney is an officer of the court with many rights and privileges, and must accept his office cum onere. One of the burdens incident to the office, recognized by custom of the courts for many years, is the duty of the attorney to render his services gratuitously to indigent defendants at the suggestion of the court. Nabb v. United States, 1 Ct. Cl. 173; Rowe v. Yuba County, 17 Cal. 61; Johnston v. Lewis & Clarke County, 2 Mont. 159; People ex rel. Whedon v. Board of Sup'rs, Washington County, 192 A.D. 705, 183 N.Y.S. 438; People v. Culkin, 248 N.Y. 465, 162 N.E. 487, 60 A. L. R. 851; annotation 130 A. L. R. 1439; 5 Am. Jur. Sec. 157, p. 354; Cooley's Constitutional Limitations, 8 Ed., Vol. 1 p. 700.

Although the holding of the Indiana court, that an attorney cannot be compelled to render his services gratuitously, is based upon a Constitutional provision, the language used in the cases indicates that the court would probably have reached the same conclusion even in the absence of the Constitutional provision. In fact, in discussing the case of Webb v. Baird, supra, in the Pardee case, we concluded that the decision was not based on the Constitutional provision. In the Knox County case the court said:

"The Legislature may in the future require the licensing of restaurant operators and grocers as a sanitary police measure. If a law should be enacted requiring every person licensed by the state to render services, or furnish the materials of their business, to paupers gratuitously, much difficulty would be found in justifying a decision holding the law unconstitutional as depriving the green grocer or the restaurant operator of his goods, or as depriving the physician, or the barber, or the plumber, or the electrician, or the mechanical engineer of his services, without compensation, while adhering to a rule that licensed attorneys' services may be taken without compensation. Although the rule announced is contrary to the weight of authority, we are convinced of its soundness."

No doubt the Knox County case is correct in the observation that doctors, plumbers, barbers, etc., could not be compelled to render gratuitous services to the destitute merely because they were licensed by the state. The power of the state to license does not ordinarily include the power to impose such obligations. By the same token the mere fact, in and of itself, that attorneys are licensed should not be sufficient reason for holding that a court can compel attorneys to render services gratuitously to indigent defendants although some courts (Johnson v. Whiteside County, 110 Ill. 22; Simmons v. State, 12 Mo. 268, 49 Am. Dec. 131) seem to so hold. These cases held that a license to practice law is a mere naked grant of a privilege without consideration, and that the state make revoke it or impose such conditions upon its exercise as are deemed proper or demanded by the public interest. But it is difficult to see why this reasoning would apply to the licensing of an attorney and yet not apply to the licensing of a doctor, plumber, barber, etc. While the right of personal liberty and the right to earn a livelihood in any lawful calling are subject to the licensing power of the state, a state cannot impose restrictions on the acceptance of the license which will deprive the licensee of his constitutional rights. 33 Am. Jur., Sec. 20, p. 341. If states have the power to impose the duty to render gratuitous services on the license of an attorney, that power must be based on more than the mere right of the state to license. Those cases which hold that the duty of gratuitous service is correlative to special rights and privileges which have been conferred upon the attorney seem to proceed on firmer ground. The Indiana court, however, maintains that these so-called privileges are more imaginary than real. In Webb v. Baird, supra, the court stated that attorneys do not have special privileges or rights conferred upon them in Indiana; that there is no reason to place attorneys in a class by themselves so that they alone of all professional men may be required to render services gratuitously to the indigent; and that the supposed rights and privileges are slender in proportion to the reciprocal obligations of the profession to the body politic. The issue is thus well defined.

Historically there can be little doubt that the attorney who represented a client before the courts did enjoy special rights and privileges. The historical growth of the right of an attorney to practice before the common law courts in England is developed by the...