Bd. of Com'rs of Miami Cnty. v. Mowbray

• Decision Date: 28 January 1903
• Citation: 66 N.E. 46,160 Ind. 10
• Parties: BOARD OF COM'RS OF MIAMI COUNTY et al. v. MOWBRAY.
• Court: Indiana Supreme Court

160 Ind. 10

66 N.E. 46

BOARD OF COM'RS OF MIAMI COUNTY et al.

v.MOWBRAY.

Supreme Court of Indiana.

Jan. 28, 1903.

Appeal from circuit court, Miami county; J. T. Cox, Judge.

Mandamus by William E. Mowbray against the board of commissioners of Miami county and others. Judgment for plaintiff, and defendants appeal. Transferred from the appellate court under section 1337u, 1 Burns' Rev. St. 1901 (Acts 1901, p. 590). Reversed.

John Mitchell and Loveland & Loveland, for appellants. W. E. Mowbray, pro se.

MONKS, J.

Appellee brought this action against appellants, the board of county commissioners of Miami county, Clarkson Macy, the auditor of said county, and the county council, to recover a judgment against said county for services rendered by appellee as an attorney in defense of a person charged with the crime of rape, in the circuit court of said county, under an appointment by said court, and to compel said county council, by writ of mandate, to make an appropriation to pay the same, and to compel the said auditor to issue a warrant therefor on the county treasurer. A trial of said cause resulted in a judgment against appellants as prayed for in the complaint. It was alleged in the complaint “that appellee was appointed by the Miami circuit court, at its April term, 1900, to render services as an attorney in the defense of Frank L. Rennols, charged in said court with the crime of rape; that he accepted said appointment, and rendered services as attorney in said cause of the value of $250, a bill of particulars of which is filed herewith, and marked ‘Exhibit A’; that on the 2d day of July, 1900, said court made an allowance of $250 for said services; that on July 2, 1900, appellee presented a certified copy of said allowance to the auditor of said county, who issued a warrant for forty-five dollars, which sum was paid to appellee; that appellee demanded of said auditor a warrant on the treasurer of said county for the residue of the amount of said allowance remaining unpaid, but said auditor refused, and still refuses, to issue a warrant therefor, for the reason that there is no money in the treasury of the county appropriated by the county council to pay the same; that in making estimates of court expenses for the year ending December 31, 1900, the clerk of the Miami circuit court estimated an amount necessary to pay attorney's fees in criminal and civil cases at $1,000, but the appropriation therefor by the county council of said county was only $500; that at the meeting of said county council in August, 1900, the attention of said council was called to said matter, and they were asked by said appellee to make an appropriation of $205 for the payment of said deficiency, but said council neglected and refused, and still refuses, to make an appropriation therefor; that afterwards, on September 7, 1900, appellee caused said claim, duly verified by his affidavit, to be filed by the auditor of said county in the office of said auditor for allowance by said board of commissioners, but said board failed, neglected, and refused to allow said claim, or any part thereof, and still fails, neglects, and refuses to make any order for the payment of the same, for the reason that no appropriation therefor has been made by said county council; that said sum of $205 is now due and unpaid, together with interest.”

A county is a subdivision of the state, created by the sovereign power for governmental purposes. Such subdivisions are instrumentalities of government, and exercise the powers delegated by the state. 7 Am. & Eng. Enc. Law (2d Ed.) 900 et seq.; White v. Board, 129 Ind. 396, 28 N. E. 846;Board v. Dailey, 132 Ind. 73, 31 N. E. 531;Board v. Rickel, 106 Ind. 501, 503, 7 N. E. 220; 1 Dill. Mun. Corp. §§ 23, 53; 1 Beach, Pub. Corp. § 8. If such powers are delegated by the legislature, and not by the constitution, the legislature may enlarge, diminish, or withdraw the same entirely, in the absence of a constitutional restriction. The act approved March 3, 1899 (Acts 1899, pp. 343-365, being sections 5594g-5594e2, Burns' Rev. St. 1901), commonly known as the “County Reform Law,” made many radical changes in the manner of doing county business, and as to the powers of boards of commissioners, officers, and courts to create a liability against the county. It is provided by section 27 of said act that “no court or division thereof, of any county, shall have power to bind such county by any contract or agreement, or in any other way, except by judgment rendered in a cause where such court has jurisdiction of the parties and subject-matter of the action, to any extent beyond the amount of money already appropriated by ordinance for the purpose for which said obligation is attempted to be incurred, and all contracts and agreements, express or implied, and all obligations of any and every sort attempted beyond such existing appropriations shall be absolutely void.” Before the enactment of said county reform law, it was held that the circuit court had authority to assign counsel to defend poor and destitute persons charged with crime in such court, and bind the county therefor. The allowance by such court for such services, however, was not conclusive against said county, but only prima facie evidence that the services were so rendered. Board v. Pollard, 153 Ind. 371-373, 55 N. E. 87, and cases cited. It was held, however, in said case, that such court had no power to make an allowance to an attorney appointed by the court as counsel for a poor person in a civil action, for the reason that the legislature had not left the protection of the rights of the poor suitor in a civil action to the exercise of the inherent powers of the court, as in criminal causes, but had by section 261, Burns' Rev. St. 1901 (section 260, Rev. St. 1881, and section 260, Horner's Rev. St. 1901), expressly regulated the procedure in such cases. By said section 27, supra (being section 5594g1, Burns' Rev. St. 1901), the legislature has limited the power of courts, so that in criminal cases they have no power to bind the county for attorney's fees for services rendered in criminal cases, beyond the amount of the existing appropriation for that purpose. Turner v. Board (Ind. Sup.) 63 N. E. 210. It appears from the complaint that all of the amount appropriated by the county council for the purpose of paying for services of attorneys in defending poor persons charged with crime had been expended, except $45, at the time appellee rendered the services mentioned. Appellee was bound to take notice of the law on this subject,-that the court had...