Johnston v. Lewis & Clarke Cnty.

• Decision Date: 31 August 1874
• Citation: 2 Mont. 159
• Parties: JOHNSTON, appellant, v. LEWIS AND CLARKE COUNTY, respondent.
• Court: Montana Supreme Court

2 Mont. 159

JOHNSTON, appellant,

v.LEWIS AND CLARKE COUNTY, respondent.

Supreme Court of the Territory of Montana.

August Term, 1874.

Appeal from Third District, Lewis and Clarke County.

THE judgment was rendered by WADE, J., upon an agreed statement of facts.

E. W. TOOLE and CHUMASERO & CHADWICK, for appellant.

There is only one question in this case--the liability of respondent to pay an attorney for services in defending a prisoner by order of the court. The law makes it the duty of the court to assign a prisoner counsel when he is unable to employ an attorney. Cod. Sts. 220, § 196; 6th Amend. U. S. Const.

An attorney must perform this duty. If he refuses, the court can punish him for contempt by fine or imprisonment. Hall v. Washington County, 2 Iowa, 473.

A special tax is imposed upon appellant if he is not entitled to compensation. With equal justice others should be compelled to furnish the necessaries of life to paupers gratuitously.

Respondent should pay for appellant's services. Webb v. Baird, 6 Ind. 13;Dane v. Smith, 13 Wis. 585. These cases are directly in point.

Respondent relies on Rowe v. Yuba Co., 17 Cal. 61. The statute of California is different from that of Montana. No authority is referred to in the opinion, and the reasons which are stated are unsound. If it is regarded applicable to this appeal, it is not a safe precedent.

Is it right to make an attorney work for nothing? Does he pay a license for this privilege?

J. K. TOOLE, District Attorney, Third District, and SHOBER & LOWRY, for respondent.

It is the duty of the court to assign counsel for certain prisoners, but it is not authorized to employ attorneys. Cod. Sts. 220, § 196.

No provision has been made for the payment of appellant's services, and the county cannot pay for them. Cod. Sts. 435, § 14. There is no contract between appellant and respondent, and there is no obligation to pay by respondent. Case v. Shawnee Co., 4 Kan. 511;Rowe v. Yuba Co., 17 Cal. 62.

The cases cited from Indiana and Wisconsin by appellant are inapplicable. These decisions are based upon a provision of the constitutions of these States. In Indiana the constitution provides “that no man's particular services shall be demanded without just compensation.” Art. 1, § 21. The statute requiring an attorney to perform gratuitous services is in conflict with this section.

SERVIS, J.

The agreed statement of facts in this case presents only one question for our determination, namely, the liability of a county to pay the reasonable fee of an attorney at law assigned by the court to defend an indigent prisoner charged with a felony.

It is conceded that the only statute upon this subject in this Territory is that of section 196 of the Criminal Practice Act (Cod. Sts. 220), which provides: “If any person about to be arraigned upon an indictment for felony be without counsel to conduct his defense, and he be unable to employ any, it shall be the duty of the court to assign him counsel, at his request, not exceeding two, who shall have free access to the prisoner at all reasonable hours.”

The claim of the plaintiff is, that by virtue of the provision of this law, coupled with that provision contained in the sixth article of the amendment to the constitution, which provides, that such accused person shall “have the assistance of counsel for his defense;” and that by virtue of his being an attorney at law, and thereby an officer of the court, and his compulsory obligation to defend a prisoner when assigned by the court, he is entitled from the county to a reasonable moneyed compensation therefor.

With respect to the duties of attorneys and solicitors in courts of justice, they are, and always have been, for many purposes, deemed officers of the courts in which they are permitted to practice; and although their duties and liabilities are necessarily subject to local laws and rules of particular places and particular courts, yet the bar of the United States, generally, is subject to the same principles and doctrines of common law applicable to their brethren in England; and in England an attorney, though an officer of the court, could not generally be compelled to appear or act for any one, unless he had voluntarily undertaken so to do, or accepted a retainer. But in some cases the courts there have had and exercised the power to assign an attorney for indigent persons in civil suits, and a case is recorded of the court of queen's bench having assigned to a suitor in indigent circumstances an attorney who had previously refused to act for him. Treverman v. Anon., 12 Mod. 583. But not so in criminal cases, for at common law a prisoner was not entitled to appear by counsel at all; and the provision in our constitution, which gave him permission to be assisted by counsel in his defense, was only intended to abrogate that established doctrine of the common law, or, at farthest, to no more than lay a predicate for rightful legislation as to compensation in such cases, and indeed, in some States, the legislature has not only made it the duty of the court to assign counsel for indigent prisoners, but have fixed either the mode or amount of compensation for their services; and in the State of California, the legislature has only provided, that the court shall advise such prisoner that the common law is not in force in this respect, but that it is his right to be assisted by counsel in his defense, if he shall so desire.

We have been unable to examine many of the authorities cited by counsel for appellant, for the reason (as is too often the case) that they were either not within their command, or removed to their offices or elsewhere after being cited. The only authority cited by plaintiff, which we have had an opportunity to examine, and which, upon argument, seemed to be the most favorable to the plaintiff, is the case of Hall v. Washington Co., 2 Iowa (Green), 473, which is somewhat elaborate, and by no means void of legal acumen; and the learned judge in that case concedes (as it must be in this) that the statute being silent as to the compensation, the question thereof must be disposed of upon the principles of the practice of the common law; but he fails to cite any authorities at common law in support of the proposition of the right of the court or of the county commissioners to create any liability against a county. His reasoning is, that when a duty is enjoined by statute, the means for enforcing it are necessarily implied. This is too broad a construction to be given to a statute borrowed, as...