Harris County v. Stewart

• Decision Date: 25 June 1897
• Parties: HARRIS COUNTY v. STEWART.
• Court: Texas Supreme Court

41 S.W. 650

HARRIS COUNTY v. STEWART.

Supreme Court of Texas.

June 25, 1897.

Certified questions from court of civil appeals, First supreme judicial district.

Certified questions from the court of civil appeals in the action of John S. Stewart against Harris county, in which defendant appealed.

F. L. Schwander and John G. Tod, for appellant. Goldthwaite & Moody and Lock McDaniel, for appellee.

BROWN, J.

The following statement and questions are certified to this court from the court of civil appeals for the First supreme judicial district:

"Appellee is city attorney of the city of Houston, holding his office under the charter of that city, which is a public law of which the courts are required to take judicial notice. From time to time there were instituted prosecutions before the city recorder against persons charged with the commissions of acts which are defined as offenses by the Penal Code of this state, and which were misdemeanors of which a justice of the peace would have jurisdiction. It does not appear that any ordinances of the city had been adopted, making such acts offenses against the city, or imposing any penalty for their commission. The recorder requested appellee to be present, or have a representative present, in all such cases, to represent the state, and appellee, accordingly, sent an attorney, called his deputy, who represented the state in all such cases, with the consent of the recorder, and fines were entered against the persons charged. Affidavits were not made against the persons charged, but the style of the case, the charge, and the plea were entered on the docket. No judgments of conviction were entered except the simple notation of `Guilty,' or `Plead Guilty,' and of the fine assessed and costs taxed. Among the costs were included fees of the city attorney in sums equal to those allowed by the Code of Criminal Procedure for like services when rendered by the district and county attorneys, or attorneys representing the state by appointment, in their absence. Harris county has no county attorney, but has a resident criminal district attorney. Before and at the time these prosecutions were conducted there was a resolution of the city in force fixing compensation of its officers, the part affecting the city attorney being as follows: `The city attorney shall receive an annual salary of $900.00, and the city attorney shall also be allowed a commission of ten per cent. on all sums of money collected by him for the city when said sums of money are collected by reason of the institution of suit in court to enforce the collection; such percentage, however, only to be paid in amounts actually collected, and only as the same are collected. He shall also receive such fees as may be allowed by ordinance.' An ordinance allowed him a fee of one dollar in each case tried before the recorder for violation of city ordinances, to be taxed against defendants, and collected as costs. The parties against whom fines and costs were entered and taxed in the causes above referred to were committed by the recorder to the custody of the county jailer, and were subsequently employed upon the public works of the county in accordance with the state laws regulating such proceedings concerning county convicts, and they worked out the sums so charged against them. This suit is brought by the appellee to recover of the county the amount of fees so taxed in his favor by the recorder, in payment of which the county obtained the services of the persons thus charged.

"First. Having in the manner stated received the services of the persons so convicted of offenses in payment of the fees allowed, is the county responsible for such fees, regardless of the answers which might be given to the succeeding questions? Second. Under the constitution, laws of the state, and the charter of the city, had the recorder jurisdiction to entertain prosecutions for acts which were violations of the Penal Code, of which justices of the peace would also have jurisdiction? Third. Was it the official duty or right of the city attorney of Houston to represent the state in such prosecutions? Fourth. If it was not a right or duty of the city attorney, resulting from his office, to so represent the state, can he recover the fees allowed to prosecuting attorneys, by the Code of Criminal Procedure, for like services, because he was requested by the recorder, generally, to appear in all cases, and prosecute, when this service was actually performed by a person designated by him as assistant or deputy? Fifth. If it was the official duty of the city attorney to represent the state in such prosecutions, is he entitled to compensation, such as is allowed district or county attorneys, or attorneys appointed by justices of the peace in similar cases for like services, or is he restricted to the salary fixed by the ordinance stated? Fifth. Do the facts that no affidavits were made, and no judgments entered against the persons tried for the offenses, affect appellee's right to recover under the facts stated?"

We answer the first question in the negative. Article 3600, Sayles' Civ. St., which was in force when the right claimed herein accrued, provided, in substance, that when a convict who was committed to jail in default of payment of fine and costs has satisfied such fine and costs by labor in the workhouse or upon the public works of the county, the county judge shall issue a warrant upon the county treasurer in favor of each officer to whom costs may be due for the amount of his costs, which shall be paid out of the road fund of the county, or any other fund not otherwise appropriated. The costs that the county are required to pay are such as have been legally adjudged against the convict. If the officer had no right to collect the costs as against the convict, the county would be under no obligation to pay such fees if claimed of it by such officer. The fact that the county may have illegally appropriated the labor of the convict would not give a right against the county to an officer who was claiming fees against such illegally convicted person. The officer had no right, under such circumstances, to the fees, and no right to the labor of the convict. The fact that the convict may have been wronged by causing him to labor upon the public works contrary to law cannot give a right of action in favor of another who had no claim to his labor.

To the third question we answer that it was the duty of the city attorney of Houston to represent the state in such prosecutions. Section 16 of the charter of the city of Houston makes it the duty of the city attorney to represent "the state in person or by deputy in the recorders' court, if necessary, when requested so to do." Sp. Laws, 23d Leg. p. 19, § 16. If the legislature had the power, under the constitution, to confer the authority, the language quoted is sufficient to authorize and require the city attorney of the city to represent the state, under the circumstances named. Having answered that it was the official duty of the city attorney to represent the state, it is unnecessary for us to answer the fourth question.

To the fifth we answer the city attorney would be entitled to the same fees for representing the state in the character of cases named as would be payable to the district or county attorney for like services. The ordinance mentioned only prescribed the compensation of the city attorney for services rendered to the city. The city council had no authority to prescribe fees for the city attorney where he represented the state in criminal cases. Johnson v. Hanscom (Tex. Sup.) 38 S. W. 761.

To the fifth question (2) we answer that the recorder of the city could only acquire jurisdiction over the cases in the manner that a justice of the peace could. By article 936, Code Cr. Proc. 1895, it is prescribed that a justice of the peace may issue a warrant of arrest when the offense is committed in his view. If the offense is not committed in his presence, then the power to issue a warrant of arrest is given in this language, contained in article 937, Id.: "Upon complaint being made before any justice of the peace, or any other officer authorized by law to administer oaths, that an offense has been committed in the county which a justice of the peace has jurisdiction finally to try, the justice or other officer shall reduce the same to writing, and cause the same to be signed and sworn to by the complainant, and it shall be duly attested by such justice or other officer before whom it was made, and when made before a justice of the peace, or when returned to him, made before any other officer, the same shall be filed by him." Article 938 prescribes the requisites of a complaint upon which the magistrate is authorized to issue a warrant. We are of opinion that a complaint in writing charging the parties with an offense against the laws of the state was necessary in each case to give the recorder jurisdiction, unless the case was included in one of the exceptions named in the Code of Criminal Procedure, and that a judgment entered without written complaint having been made, except in the instance stated, would be void, and would not entitle the city attorney to collect from the county the fees claimed in such cases. Wilcox v. Williamson, 61 Miss. 310; Prell v. McDonald, 7 Kan. 426; Flack v. Harrington, 12 Am. Dec. 170. In the case of Wilcox v. Williamson the plaintiff had been tried and convicted before the defendant as a judicial officer without complaint being made, for which plaintiff sued for damages for false imprisonment, and the court held the defendant liable. The court said: "Without complaint, affidavit, or charge of any sort, he caused the plaintiff to be brought before him, and without the preferring of any charge of any kind proceeded or pretended to try, sentence, and imprison him. He was, in so doing, not a judge, but a mere trespasser. To hold such action judicial would be...