County Com'rs of Worcester County v. Melvin

• Decision Date: 14 March 1899
• Parties: COUNTY COM'RS OF WORCESTER COUNTY v. MELVIN.
• Court: Maryland Court of Appeals

42 A. 910

89 Md. 37

COUNTY COM'RS OF WORCESTER COUNTY v. MELVIN.

Court of Appeals of Maryland

March 14, 1899

Appeal from circuit court, Worcester county; Henry Page, Henry Lloyd, and Charles F. Holland, Judges.

Petition by Charles O. Melvin for mandamus to the county commissioners of Worcester county. There was an order awarding relator a peremptory writ, and respondent appeals. Affirmed.

Argued before MCSHERRY, C.J., and BRISCOE, SCHMUCKER, PEARCE, and ROBERTS, JJ.

Clayton J. Purnell and William F. Johnson, for appellant. Charles O Melvin, pro se.

McSHERRY C.J.

This case is entirely free from difficulty. While the pleadings are very informal and inartificial, the question intended to be raised by them is sufficiently disclosed to enable us to consider and to dispose of it. The facts are these: The appellee was appointed by the circuit court for Worcester county to defend a prisoner who had been indicted by the grand jury of that county for the crime of murder. The service was rendered by the appellee, and he charged the county the sum of $50 therefor. His account against the county for this sum was certified to, and approved by, one of the judges of the circuit court, and was then filed with the county commissioners, to be included by them in the annual levy. Prior to the time when this account was presented, the appellee had claimed from the county commissioners, and had been allowed by them, a fee of $10 in the same case. This fee of $10 had not been certified to, or approved by, any of the judges of the court. The county commissioners refused to pay the account for $50, and the appellee thereupon filed a petition praying that a writ of mandamus might be issued requiring them to make a levy therefor. This petition was answered. In the answer the facts alleged in the petition were not only not denied, but were admitted, and the sole defense set up and relied on was "that the allowance or nonallowance" of the claim "was a matter discretionary with" the county commissioners. As a reason for the exercise of this asserted discretion adversely to the appellee, they alleged that they "felt justified in refusing to levy said sum, having previously levied the sum of ten dollars, *** the original charge of this complainant, and as provided in the Code of Public General Laws."

If the claim for $50 was a claim "on or against the county," and was "expressly or impliedly authorized by law," it was obviously, under section 7, art. 25, of the Code of Public General Laws, the duty of the county commissioners to make provision, by a levy, for its payment. And if the duty to make the levy was incumbent on them, and they refused to perform that duty, then, undoubtedly, a writ of mandamus was the appropriate process to enforce the discharge of that duty. O'Brian v Commissioners, 51 Md. 15; Commissioners of Talbot Co. v. Commissioners of Queen Anne Co., 50 Md. 245. It comes, then, to the inquiry whether the claim was a fixed ascertained debt due by the county, or merely one which the county commissioners had a discretion to allow, or not, as they themselves saw proper. It is conceded that the appellee was duly appointed by the circuit court to defend a prisoner charged with murder. Being an officer of the court, the appellee was, in the absence of a reasonable excuse, bound to perform the duty assigned him. But, while the court possessed the power and authority to require his services, it would not have been justified in exacting them without making some provision for reasonable compensation. Both the Public General and the Public Local Codes contain enactments on this subject. By section 7, art. 26, of the former, it is prescribed: "And the said courts may likewise appoint counsel to defend any person in the trial of any criminal case in said courts, whenever, in the judgment of the court in which any such case is pending, a just regard for the rights of the accused require it." And section 8 declares: "The county commissioners of the several counties and the mayor and city council of Baltimore, shall levy and pay for the services rendered by any person appointed by the court to assist in the prosecution or defense of any case; provided the amount paid for such services in any one case shall not exceed one hundred dollars," etc. Section 266, art. 24, of the Code of Public Local Laws, is in these words: "No compensation for defending any party in any criminal case shall be allowed to any attorney by the county commissioners except on presentation of an order in writing, signed by a judge of the circuit court for said county, certifying in what case services had been rendered, and the amount to be paid for such services." This legislation gives to the court ample authority, not only to assign counsel to defend an accused, but to fix and define, not exceeding a designated maximum sum, the amount of compensation to be paid by the county commissioners for such services. The general assembly has seen fit to repose in the courts this authority. It is an authority immediately connected with the administration of justice, and could not well be lodged anywhere else without seriously interfering with the very object the legislation was designed to accomplish. If to the county commissioners were committed the power to determine the amount of compensation to be paid in such cases, or if, as...