Hyatt v. Hamilton County

• Decision Date: 15 October 1903
• Citation: 96 N.W. 855,121 Iowa 292
• Parties: MRS. EMMA N. HYATT, Executrix, v. HAMILTON COUNTY, Appellant
• Court: Iowa Supreme Court

96 N.W. 855

121 Iowa 292

MRS. EMMA N. HYATT, Executrix, v. HAMILTON COUNTY, Appellant

Supreme Court of Iowa, Des Moines

October 15, 1903

Appeal from Hamilton District Court.--HON. S. M. WEAVER, Judge.

ACTION by plaintiff, as executrix of the estate of her husband, M B. Hyatt, deceased, to recover compensation for services rendered by deceased, on the appointment of the district judge, in proceedings to disbar certain attorneys. Defendant demurred to plaintiff's petition, and, when overruled defendant stood upon his demurrer, and judgment was entered for the plaintiff, from which judgment defendant appeals.

Affirmed.

J. M Blake, County Attorney, and A. N. Boeye for appellant.

D. C. Chase for appellee.

MCCLAIN J. WEAVER, J., taking no part.

OPINION

MCCLAIN, J.

The simple question involved in this appeal is whether the lower court erred in holding that, notwithstanding there is no statutory provision for compensation to an attorney appointed by the court to prosecute disbarment proceedings under the provisions of Code, section 325, such attorney is entitled to compensation. The theory of the appellant seems to be that the attorney thus appointed is an officer of the court, and like other public officers, is entitled only to such compensation as is provided for by statute, and that the county cannot be rendered liable for any expenses in conducting the cause, unless such liability is expressly declared by statute. But with these contentions we cannot agree. It is true that the attorney is in some sense an officer of the court. But he is certainly not a public officer. As incident to the privilege of practicing in the courts, he may be required to discharge certain duties imposed upon him by statute. Thus he may be required to defend a criminal. But we know of no obligation imposed upon him by statute to give his services to the public without compensation. It was held by this court, before there was any statutory compensation to counsel appointed to defend one accused of crime who was without means to employ counsel, that, while the person appointed by the court for the purpose was under obligation to render his services, there was a corresponding obligation on the part of the county to pay him a reasonable compensation therefor. Hall v. Washington County, 2 Greene 473. That case overruled Whicher v. Cedar County, 1 Greene 217, in which the court had held that compensation was discretionary in such cases with the county. Likewise, in White v. Polk County, 17 Iowa 413, it was held by the two judges who favored affirmance that one appointed by the court to act as special prosecutor in criminal cases in the absence of the district attorney was entitled to reasonable compensation from the county for his services, although no compensation in such cases was provided for by law. The difference of opinion among the judges of the court in that case was not on the general proposition of implied liability, but on the question whether the prosecuting attorney was to be considered a state or a county officer, it being contended by the two judges who favored reversal that as the prosecuting attorney, under the law as it then existed, was not selected as a county officer, but was elected for a district composed in most cases of several counties, and was paid out of the state treasury, like district judges, he could not be considered in any sense as the representative of the county. The right of an attorney who is required to perform a service for the public to have compensation therefor has been sustained in other states. See Carpenter v. Dane County, 9 Wis. 274; Dane County v. Smith, 13 Wis. 585 (80 Am. Dec. 754); Webb v. Baird, 6 Ind. 13. The contrary conclusion was reached in Wayne County v. Waller, 90 Pa. 99 (35 Am. Rep. 636); Rowe v. Yuba County, 17 Cal. 61; Vise v. Hamilton County, 19 Ill. 78. The cases of Morton v. Watson, 60 Neb. 672 (84 N.W. 91), and In re Eaton, 7 N.D. 269 (74 N.W. 870), relate to taxation of costs in disbarment proceedings, and, we think, have no direct bearing on the question now before us. The argument by analogy from cases in which this court has held that an officer required by law to perform duties for which no special compensation is provided is not entitled to recover under an implied contract has, as it seems to us, no bearing whatever on the question. In Foster v. Clinton County, 51 Iowa 541, 2 N.W. 207, it was held that an attorney appointed by a peace officer to prosecute an action for violation of the prohibitory liquor law was not entitled to recover compensation from the county for his services, for the reason that no authority for such appointment was found in the statute. In Turner v. Woodbury County, 57 Iowa 440, 10 N.W. 827, it was held that township trustees, having authority to designate the place where an election should be held, could not render the county liable to make compensation to a private owner for the use of a place thus designated, the reason of the holding being that there was no duty on the part of the county to pay expenses for the purposes of an election otherwise than as provided by law. In Howland v. Wright county, 82 Iowa 164, it was held that the mayor of a town, rendering services as a magistrate, was not, in the absence of any provision therefor, entitled to recover from the county for the value of his services, the reason given being...