Elam v. Johnson

• Decision Date: 31 January 1873
• Citation: 48 Ga. 349
• Parties: William D. Elam, plaintiff in error. vs. H. J. Johnson, Ordinary, defendant in error.
• Court: Georgia Supreme Court

48 Ga. 349

William D. Elam, plaintiff in error. vs. H. J. Johnson, Ordinary, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1873.)

Attorney at law. Pauper. County funds. Before Judge Harvey. Floyd Superior Court. January Adjourned Term, 1872.

William D. Elam petitioned the Superior Court for a rule nisi requiring H. J. Johnson, as Ordinary of the county of Floyd, to show cause why the writ of mandamus should not *issue directing him to draw his draft on the county treasurer for the sum of $150 00, alleged to be due to relator for professional services rendered to a pauper. The petition made substantially the following case: At the January adjourned term, 1871, of Floyd Superior Court, there came on to be heard the case of The State vs. Reuben Taylor, upon an indictment for simple larceny. Upon the statement of the prisoner that he had no counsel to defend him, was unable to employ one, and desired relator to represent his case, the Court appointed relator to conduct the defense. Relator performed the duties of counsel in said case upon the trial; the defendant being convicted, he moved for a new trial. The motion having been overruled, he made out a bill of exceptions and carried the case by writ of error to the Supreme Court, where the judgment was affirmed. Relator made out his bill against the county of Floydfor said professional services, amounting to $150 00, and presented it to the Ordinary, requesting a draft upon the county treasurer for that sum. The Ordinary rejected the account and refused the draft.

The respondent demurred to the petition. The demurrer was sustained and relator excepted.

W. D. Elam, by Underwood & Rowell, for plaintiff in error.

Alexander & Wright, for defendant.

McCay, Judge.

It is admitted that there is no specific authority granted by law to the Ordinary to pay this demand, that it is nowhere, in terms, made a charge against the county. If it can be paid at all, it is under paragraph 5 of section 547 of the Revised Code, "to pay the expenses of the county for bailiffs at Courts, nonresident witnesses in criminal cases, fuel, servant hire, stationery, and the like." But even, as to these expenses, the Ordinary can only pay such as are a legal charge against the county. Nor is it in the discretion of the Judge of the Superior *Court or the Ordinary to say what is included. This Court held in 24 Georgia, 82, that without a special law giving the authority, the Judge of the Superior Court could not charge the county with the expense of feeding jurymen, even whilst sitting in a case. At last, therefore, the inquiry is, whether in the nature of things, the demand now pressed is a charge on the county. Our constitutional provision, that a prisoner shall have "the privilege and...