Kelley v. Andrew Cnty.

• Decision Date: 28 February 1869
• Citation: 43 Mo. 338
• Parties: HENRY S. KELLEY et al., Plaintiffs in Error, v. ANDREW COUNTY, Defendant in Error.
• Court: Missouri Supreme Court

43 Mo. 338

HENRY S. KELLEY et al., Plaintiffs in Error,

v.ANDREW COUNTY, Defendant in Error.

Supreme Court of Missouri.

February Term, 1869.

Error to Fifth District Court.

The facts sufficiently appear in the opinion of the court.

Rea & Kelley, for plaintiffs in error.

I. The constitution provides that every person charged with crime shall be heard by himself and counsel, etc. (art. I, § 18, Gen. Stat. 1865, p. 23); and the statute provides that “if a defendant, on being arraigned for a felony, shall satisfy the court that he is without, and unable to employ, counsel, the court shall assign him counsel, not exceeding two,” etc. (Gen. Stat. 1865, p. 844, § 4.) The constitution and statute having authorized and required the employment of counsel in such case by the court, the obligation and duty of paying for the services rendered under the employment follows as a necessary consequence. The power and authority to employ, necessarily and by implication, involve the duty of paying at least a reasonable compensation for the services. (34 Mo. 383; 7 Watts, Penn., 290; 3 Penn. St. 462 3 Ind. 497; 6 Ind. 13; 13 Ohio St. 388; 2 Green, Iowa, 473 9 Wis. 274; 13 Wis. 585; 20 Wis. 418.)

II. The treasury of the county which bears the expense of the support, imprisonment, and trial of a prisoner, should also be chargeable with his defense. The Circuit Court is in some sense a county court; i. e., a court of the county. The county must defray its expenses, etc.

III. The judge must be regarded as the agent of the county; and the statute being silent as to the matter of compensation, the county is liable, ex necessitate, upon an implied assumpsit, for the value of the services rendered under such employment. The question raised in this case, although a new one in this State, has been ruled upon in several of our sister States. (Webb v. Baird, 6 Ind. 13; Hall v. Washington County, 2 Green, Iowa, 473.) In these States there was no law authorizing the court to assign counsel, but the courts hold that this power is incident to and inherent in the court, and, in the absence of any law upon the subject, the county is liable, ex necessitate, for a reasonable compensation. (In Indiana, however, neither the State nor the county pays costs in criminal cases in any event.) It has been the practice in Ohio to pay for such services out of the county treasury. (13 Ohio St. 388; 9 Wis. 274; 13 Wis. 585; 20 Wis. 418.) In Wisconsin there is no statute authorizing the assignment or payment of counsel in such a case, yet the court holds the county liable; and, moreover, it not only holds the county liable in the absence of any statute authorizing it, but it declares a statute prohibiting payment by the county unconstitutional. (13 Wis. 585; 7 Watts, 290; 3 Penn. St. 462; 3 Ind. 497; 4 Ind. 525; 5 Ind. 296.)

Miller, Chandler & Kinly, for defendant in error.

I. The right of counsel assigned to defend prisoner to compensation for services rendered in that behalf, having heretofore not been adjudicated by the courts of the State, is submitted in the light of chapter 138, Gen. Stat. 1865, adopting the common law of England as the rule of action and decision in this State. These statutory provisions obviously reflect the intention of the law-makers in fixing a dividing line between State and county liability for costs in criminal prosecution. The cases of County of Dane v. Smith, 13 Wis. 585, Webb v. Baird, 6 Ind. 13, and Hall v. Washington, 2 Green, Iowa, 473, are relied on as pointed authority by plaintiffs. The court decided these cases upon the following grounds: 1. The right of counsel to compensation; 2. On the ground that the county is chargeable with all the costs and expenses growing out of or incident to criminal prosecutions; and, 3. Because of the existence and exercise of a power inherent in the court to order services to be performed in behalf of criminal prosecution, for which, when performed, one so performing was entitled to compensation. Now, if all three propositions concur under our law and our system, then the case, in point of authority, is well recited; but if they do not concur, it is otherwise. First, in our State it is questionable, to say the least of it, whether an attorney performing such services under direction of the court is entitled to compensation; second, the county is not chargeable with all costs and expenses incident to criminal prosecutions. And if either of these propositions does not exist in our State, then no implied assumpsit lies against the county.

II. The statute of Missouri has drawn a nicely-defined distinction and dividing line between State courts and county courts, their powers, jurisdictive functions, and liabilities. And a court of general jurisdiction, of the dignity and powers of a Circuit Court and judge thereof, amenable to State authorities for malfeasance and non-feasance in office, is a State court. The Legislature has in its wisdom provided that the State, and not the county, shall pay costs of criminal prosecutions.

III. But plaintiffs rely upon an implied assumpsit. Upon whom does such implied responsibility rest? Certainly not upon the county, under our system.

CURRIER, Judge, delivered the opinion of the court:

The bill of exceptions shows that on the trial of this cause in the Circuit Court it was “admitted and agreed that John F. Chandler was, at the April term, 1867, of the Andrew County Circuit Court, arraigned on an indictment for murder in the first degree; that he showed to the satisfaction of the court that he had no counsel, and that he was without any means, and wholly unable to employ counsel for his defense; * * that the court thereupon appointed the plaintiffs, who were regular practicing attorneys in said county, to defend said Chandler against said charge of murder, and made an order of record to that effect; that the plaintiffs, pursuant to said order, * * took charge of the defense of said Chandler, and defended him faithfully, diligently, and well, until final judgment.” It was also proved, as the bill of exceptions states, that the services thus rendered were worth three hundred dollars. These are all the material facts appearing in the record, and from them the court is asked to deduce the legal conclusion that the county of Andrew (the defendant) is liable to the plaintiffs for the value of their professional services rendered in the defense of Chandler.

The constitution of the State (art. I, § 18) provides “that in all criminal prosecutions the accused has the right to be heard by himself and his counsel;” and by the statute (Gen. Stat. 1865, ch. 212, § 4) it is enacted that “if any person about to be arraigned upon an indictment for a felony be without counsel to conduct his defense, and 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.” These provisions, no doubt, are quite in accordance with the spirit and principles of our Christian civilization, and deserve to be liberally construed and generously carried into effect, for the amelioration of the condition of the class thereby intended to be benefited. But these reflections do not materially contribute to the solution...