Board of Commissioners of County of Clay v. McGregor

• Decision Date: 29 January 1909
• Docket Number: 21,351
• Parties: Board of Commissioners of the County of Clay v. McGregor
• Court: Indiana Supreme Court

87 N.E. 1

171 Ind. 634

Board of Commissioners of the County of Clay v. McGregor

No. 21,351

Supreme Court of Indiana

January 29, 1909

From Clay Circuit Court; Lewis F. Tilley, Special Judge.

Action by Samuel M. McGregor against the Board of Commissioners of the County of Clay. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court (see 42 Ind.App 688), under § 1392 Burns 1908, cl. 1, Acts 1907, p. 237 § 1.

Reversed.

G. S Payne and McNutt & Shattuck, for appellant.

S. M. McGregor, pro se.

OPINION

Montgomery, J.

Appellee recovered a judgment against appellant for services rendered as an attorney in the prosecution of a criminal case in pursuance of an order of the Clay Circuit Court.

The errors assigned are (1) in overruling appellant's demurrer to the amended complaint, and (2) in sustaining appellee's demurrer to the second paragraph of answer.

The complaint alleges that on January --, 1906, the judge of the Clay Circuit Court appointed appellee to assist in the prosecution of the case of the State v. Jesse Sluder, on a charge of murder, then pending in said court; that an emergency existed for the appointment of an attorney to assist in said prosecution; that said cause was ready for trial, the defendant had counsel appointed to defend, and it became necessary to see that the rights of the State were fully protected, and that the cause be prosecuted without delay and without incurring the expense of a continuance, and in order to give the defendant a speedy trial and without delay; that appellee accepted said appointment, and rendered legal services thereunder in the prosecution of said cause at the January and March terms, 1906, of said court, which services were of the reasonable value of $ 500; that appellee has received thereon $ 75, and the balance--$ 425--is due and remains unpaid.

Section twenty-seven of the county reform law (Acts 1899, p. 343, § 5944 Burns 1908), reads as follows: "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 support 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 attempted beyond such existing appropriations shall be absolutely void."

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. This court has expressly held such an allegation necessary in a complaint similar to appellee's. In the case of Turner v. Board, etc. (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.

The indictment in the case of Dukes v. State (1858), 11 Ind. 557, 71 Am. Dec. 370, was signed by an attorney appointed to prosecute that particular case, for the reason that the regular prosecuting attorney was absent, and the attorney appointed by the court to serve for the term, in pursuance of the statute, had been retained by the accused and was disqualified from prosecuting that cause. Appellant questioned the legality of the indictment because it was not signed by the regular prosecuting attorney, and, in disposing of such objection, the court, among other things, said: "We think the court possesses an inherent power to appoint one of the attorneys of the court, when necessary to prevent a failure of justice, to conduct the prosecution of a criminal."

It was provided by statute, at the time of the proceedings reviewed by that decision, that, if the prosecuting attorney failed to attend any court of his circuit, the judge of such circuit should appoint some person to prosecute for the term. 2 R. S. 1852, p. 386, § 5. The act of the judge in appointing another, pro tem., to fill the vacancy caused by the disqualification of the prosecutor in that particular case was not the exercise of an inherent power of the court, but rather the exercise of a power implied from the statutory authority to fill the temporary vacancy caused by the absence of the regular prosecuting attorney. The expression "inherent power," made with respect to an act of the court done ex necessitate in a matter where the authority could be reasonably implied from that expressly given, has suggested in later days grave constitutional questions. An examination of the authorities will show that the appointment by courts of attorneys to defend indigent persons accused of crime, who are without counsel and without the means of employing legal assistance, is not, properly speaking, the exercise of a fundamental right or power inherent in the court, but such authority is implied from the jurisdiction and powers expressly conferred, and functions and duties imposed, and the general statutes and policy of the State providing for the necessities of the poor, which reasonably include a fair opportunity to protect their rights as litigants in courts of justice. Webb v. Baird (1854), 6 Ind. 13; Dukes v. State, supra; Board, etc., v. Wood (1871), 35 Ind. 70; Gordon v. Board, etc. (1876), 52 Ind. 322; Mitchell v. State (1857), 22 Ga. 211, 68 Am. Dec. 493; State v. Smith (1902), 107 La. 129, 31 So. 693; Keithler v. State (1848), 10 Sm. & M. (Miss.) 192; Douglass v. State (1834), 6 Yerg. (Tenn.) 524; Gandy v. State (1889), 27 Neb. 707, 43 N.W. 747, 44 N.W. 108; Roberts v. People (1888), 11 Colo. 213, 17 P. 637; Taylor v. State (1905), 49 Fla. 69, 107, 38 So. 380. The power to make such appointment emanating directly or indirectly from the legislature, it follows that its exercise is subject to the regulation and control of that department.

The only express statutory authority for the appointment of attorneys to defend and to assist the prosecutor in criminal cases in this State is found in § 2087 Burns 1908, Acts 1905, p. 584, § 216, which applies to cases taken on change of venue from the county in which the prosecution originated. In such cases a probable lack of acquaintance with the local environment on the part of the original counsel, and the desirability of having attorneys always within call of the trial court, make the propriety and expediency of this provision at once apparent.

In this State provision is made for the election of prosecuting attorneys, who are authorized to appoint deputies to assist in the discharge of their official duties. § 9158 Burns 1908, § 5568 R. S. 1881. And in case of the absence of the prosecuting attorney the court is required to appoint some person to prosecute for the term. § 9407 Burns 1908, § 5865 R. S. 1881. It can scarcely be said therefore, that an actual necessity will ever exist for the appointment of an attorney to assist the official prosecutor. It may be, and frequently is, expedient and desirable that the State should have the assistance of other counsel in the conduct of important and difficult criminal causes which are ably resisted, but the duty...