Webb v. Baird
| Decision Date | 13 December 1854 |
| Court | Indiana Supreme Court |
| Parties | Webb, Auditor, &c., v. Baird |
From the Tippecanoe Court of Common Pleas.
The judgment is reversed with costs. Cause remanded.
H. W Chase and J. A. Wilstach, for appellant.
W. F Lane, for appellee.
Petition for a mandamus against Webb as auditor of Tippecanoe county.
It appears that in April, 1853, Baird filed in the Common Pleas his petition, verified, &c., setting forth that at the February term, 1853, of the Tippecanoe Circuit Court, under the order and by the direction of the said Court, he defended one Thomas Wickens, then indicted for burglary, Wickens being then in custody and destitute of means to employ counsel in his defense; for which service the Court, at the same time, entered of record an allowance of 25 dollars, which was ordered to be certified, &c.; that a demand had been made, &c.
On this petition the Common Pleas awarded the mandamus.
Webb, by way of return or answer to the mandate, admits that Baird is a practicing attorney, and also all the several matters alleged; but shows for cause why he refused to draw the warrant on the treasurer in Baird's favor for the 25 dollars, that the Circuit Court had no authority, under the laws of the state, to order the relator, as an attorney at law, to defend Wickens at the expense of Tippecanoe county, and to order the relator to be paid out of the treasury thereof, &c.
To this return Baird demurred; the Court sustained the demurrer; and ordered the rule for issuing the warrant to be made absolute. Webb appeals.
Something is stated in the proceedings in relation to the laws of 1852 being in force and governing the case. But this is a mistake. The service was rendered and the order made in February, 1853. The revised statutes did not take effect till the May following [1]. But the new constitution was in force and the R. S. 1843.
It will not be contended that the Court had the right to demand Baird's services as an attorney in defending Wickens as a pauper, without any reward. The 21st section, art. 1, of the constitution, provides, "that no man's particular services shall be demanded without just compensation." If sections 66, 67, 68, of chapter 40, R. S. 1843, authorizing the proper Court, in case of poor persons, to assign counsel who should defend without taking any fee or reward therefor, should be thought to conflict with this provision of the constitution, the inferior law must yield to the superior. But it is not necessary, in this part of the case, to notice such conflict, if any exists, beyond this guarded allusion. For Article 3, chapter 40, supra, relates solely to civil suits. We are not aware of any such provision in the statutes of 1843, in relation to criminal cases. And as a statute requiring the services of the citizen gratuitously, is against common right, Courts would feel called upon to give it a strict construction. Consequently, a statute requiring gratuitous services in civil cases, would not be extended to criminal cases. We would, on this ground, seem relieved from the pressure of the act authorizing poor persons to prosecute or defend in forma pauperis, without fees to the attorneys or costs to the officers of Court.
It is contended in argument that section 25, R. S. 1838, p. 435, was continued in force by section 14, and the fourth clause of section 16, R. S. 1843, chapter 59. But such construction is unwarranted. The 14th section continues in force all acts regulating the fees and salaries of officers. But when the legislature has taken away the fees and salaries of officers, there is nothing to be regulated, and this continuing clause can not apply. There is also an express independent provision on the same subject in the statute of 1843, and no words of continuance in relation to the provisions of the code of 1838. The latter enactment is, in its main features, wholly different from the former, and therefore repeals it.
The fourth clause of the 16th section continues all acts granting any rights to individuals, corporations, &c., meaning the individuals and corporations therein specially named. It has no reference to any abstract general law, or to persons or corporations generally.
It is not readily perceived why the argument drawn from such a source should have been pressed by the plaintiff in error.
The gratuitous defense of a pauper is placed upon two grounds, viz., as an honorary duty, even as far back as the civil law; and as a statutory requirement. Honorary duties are hardly susceptible of enforcement in a Court of law. Besides, in this state, the profession of the law was never much favored by special pecuniary emoluments, save, some years ago, in the case of docket-fees in certain contingencies. The reciprocal obligations of the profession to the body politic, are slender in proportion. Under our present constitution, it is reduced to where it always should have been, a common level with all other professions and pursuits. Its practitioners have no specific fees taxed by law--no special privileges or odious discriminations in their favor. Every voter who can find business, may practice on such terms as he contracts for. The practitioner, therefore, owes no honorary services to any other citizen, or to the public. The constitution and laws of the state go upon the just presumption that the public are discriminating enough in regard to qualifications. Every man having business in Court, is presumed to be as competent to select his legal adviser as he is to select his watchmaker or carpenter. The idea of one calling enjoying peculiar privileges, and therefore being more honorable than any other, is not congenial to our institutions. And that any class should be paid for their particular services in empty honors, is an obsolete idea, belonging to another age and to a state of society hostile to liberty and equal rights.
The legal profession having been thus properly stripped of all its odious distinctions and peculiar emoluments, the public can no longer justly demand of that class of citizens any gratuitous services which would not be demandable of every other class. To the attorney, his profession is his means of livelihood. His legal knowledge is his capital stock. His professional services are no more at the mercy of the public, as to remuneration, than are the goods of the merchant, or the crops of the farmer, or the wares of the mechanic. The law which requires gratuitous services from a particular class, in effect imposes a tax to that extent upon such class--clearly in violation of the fundamental law, which provides for a uniform and equal rate of assessment and taxation upon all the citizens.
It must be matter of congratulation to the profession that they are thus relieved from the burden of gratuitous services and useless honors; and remitted to the more substantial rewards of other citizens.
In the present case, there is no controversy about the services having been rendered, or their value. The only question is, had the Circuit Court power to order them to be paid by the county of Tippecanoe?
The statutory provision relied upon to sustain...
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