Bd. of Com'rs of Vigo Cnty. v. Moore
| Decision Date | 18 June 1929 |
| Docket Number | No. 13435.,13435. |
| Citation | 166 N.E. 779,93 Ind.App. 180 |
| Court | Indiana Appellate Court |
| Parties | BOARD OF COM'RS OF VIGO COUNTY v. MOORE. |
OPINION TEXT STARTS HERE
Appeal from Vigo Circuit Court; Wm. C. Wait, Special Judge.
Action by Henry W. Moore against the Board of Commissioners of Vigo County. Judgment for plaintiff, and defendant appeals. Reversed, with instructions.Robert H. Catlin, of Terre Haute, for appellant.
Adamson & Gallagher, Wm. T. Douthitt, and Henry W. Moore, all of Terre Haute, for appellee.
One Arthur Smith was indicted in Vigo county, on the charge of murder. A change of venue was taken from Vigo county, and the case was sent to Clay county, where he was tried. The judge of the Clay circuit court appointed the appellee herein as attorney to defend said Arthur Smith, as a poor person.
The appellee herein accepted said appointment and successfully defended the said Arthur Smith and afterward filed a complaint in the Vigo circuit court, wherein the board of commissioners of Vigo county were made party defendants to answer as to the county's interests therein and wherein the appellee prayed for an order fixing the value of said services, and judgment against Vigo county for the sum so found and fixed.
Demurrer for want of facts was filed to this complaint on the grounds thereof as set forth in memorandum, said demurrer being as follows, to wit:
“The complaint does not allege that there was an appropriation by the county council at the time of such alleged employment by the plaintiff.
“The complaint does not state that there is now an existing appropriation of the county council for the payment of the amount claimed for this purpose.
“The complaint discloses that the services for which claim is made were voluntary services rendered.”
On March 8, 1926, the demurrer to the complaint was overruled, to which ruling of the court the appellant at the time excepted, and it then filed an answer in seven paragraphs.
A trial was had and judgment rendered in favor of the appellee in the sum of $5,000.
The appellant filed a motion for a new trial, which was overruled by the court.
An appeal to this court assigns as error the overruling of the appellant's demurrer to the complaint and the overruling of appellant's motion for a new trial. The grounds upon which the motion for a new trial are based, which this court will consider, are that the finding and the decision of the court is contrary to law and is not sustained by sufficient evidence.
Burns' 1926, § 5888; Acts 1899, pp. 343, 352, c. 154, § 27, provides: “No court, or division thereof, of any county, shall have power to bind such county by any contract, 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 at the time already appropriated by ordinance for the purpose of such court, and for the purpose for which such obligation is attempted to be incurred, and all contracts and agreements, express or implied, and all obligations of any and every sort atttempted, beyond such existing appropriation shall be absolutely void.” Burns' 1926, § 2248; Acts 1905, p. 631, c. 169, § 216, provides whenever, in any criminal prosecution, a change of venue shall have been taken from the county in which such prosecution originated, the trial court shall have the authority to appoint counsel on behalf of such original county, to prosecute such action, or to defend any poor person defendant therein. Counsel so appointed shall be entitled to reasonable compensation for services in such case, but the amount thereof shall be settled and allowed by the judge of the court from which the change of venue was first granted.
It is not alleged in appellee's complaint that any appropriation by the county council, with which to employ counsel to assist in the prosecution of criminal causes, had been made and remained unexpended. It has been expressly held such an allegation necessary in a complaint similar to appellee's. In the case of Turner v. Board of Com'rs of Elkhart County (1902) 158 Ind. 166, 63 N. E. 210, the court declared that the power of a court to bind a county or create a liability against it for the services of an attorney in assisting the prosecuting attorney in the prosecution of criminal cases is within the control of the Legislature, and attorneys are bound to take notice of laws enacted on that subject; that unless there is an existing appropriation made by the county council, for the purpose of paying for such services, when an attorney is appointed to assist a prosecuting attorney, such appointment and the rendition of services thereunder will create no liability against the county.
Appellee concedes that the case of Turner v. Board, etc., supra, if adhered to is decisive of this appeal adversely to him, but he insists that the decision in that case was not well considered, and in effect authorizes the Legislature to deprive the courts of vital inherent powers, and requires the taking of the professional services of attorneys without just compensation in violation of article 1, § 21, of the state Constitution.
In the case of Tull v. State ex rel. Glessner (1884) 99 Ind. 238, this court assumed the right to appoint assistants in the prosecution of criminal cases to be settled and upon the authority of cases in which the question had been raised only by defendants placed such appointments upon the same basis as those made for the defense of the poor, and held for the first time that the county was bound for the payment of a reasonable fee of attorneys assisting the state. This doctrine led to abuse which section 27 of the County Reform Law (Burns' Ann. St. 1926, § 5888; Acts 1899, p. 352, c. 154, § 27) was designed to avoid. This statute, in so far as it affects this controversy, does not invade the inherent powers of courts, but provides reasonable limitations upon the exercise of an implied discretionary authority by submitting to a representative body of voters and taxpayers the question of determining to what extent, if any, the state shall be aided in prosecuting criminal offenses occurring within their county. The right of the Legislature to impose restrictions upon the amount of money which may be expended for the employment of counsel, not only in aiding the prosecuting attorneys, but also in defending criminal paupers, has been exercised without question in a number of states. Commissioners Court, etc., v. Turner (1871) 45 Ala. 199;Edmonds v. State (1895) 43 Neb. 742, 62 N. W. 199;State v. Wentler, (1890) 76 Wis. 89, 44 N. W. 841, 45 N. W. 816;Commissioners v. Ranney (1862) 13 Ohio St. 388;Anonymous (1884) 76 Me. 207;Washoe County v. Humboldt County (1879) 14 Nev. 123;People v. Hanifan (1894) 99 Mich. 516, 59 N. W. 611.
[1] Appellee insists that his services as an attorney cannot be required without just compensation, under article 1, § 21, of the Constitution of Indiana. In many jurisdictions it is regarded as a part of the general duties of members of the bar to act as counsel for persons accused of crime and destitute of means, upon appointment by the court, and in such cases they must look alone to the possible future ability of the accused to pay their compensation when no provision therefor is made by statute. 3 Am. and Eng. Ency. Law (2d Ed.) 417, and cases cited. In states where this rule obtains, an attorney is regarded as truly an officer of the court and for a refusal to accept an assignment to defend a poor person may be disbarred or punished as for...
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