Knox County Council v. State ex rel. McCormick

• Decision Date: 21 October 1940
• Docket Number: 27430,27431.
• Parties: KNOX COUNTY COUNCIL v. STATE ex rel. McCORMICK. SAME v. STATE ex rel. KIRK.
• Court: Indiana Supreme Court

29 N.E.2d 405

217 Ind. 493

KNOX COUNTY COUNCIL v. STATE ex rel. McCORMICK.

SAME v. STATE ex rel. KIRK.

Nos. 27430, 27431.

Supreme Court of Indiana

October 21, 1940

Appeals from Knox Circuit Court; W. H. Hill, Special Judge.

Philip Zoercher, of Indianapolis, and T. Ralph Alsop, of Vincennes for appellant.

Shuler McCormick, of Vincennes, and Hovey C. Kirk, of Princeton, for appellees.

FANSLER Judge.

These actions were instituted by the appellees seeking a mandate against the Knox County Council requiring it to make an appropriation sufficient to pay certain warrants which had been issued by the auditor pursuant to judgments of the Knox Circuit Court. There were judgments for the appellees.

The controversy arises out of allowances to the relators for services as attorneys in defending a pauper who was charged with murder, they having been appointed to defend by the court in which the criminal charge was pending for trial. The indictment in the criminal case was returned in Pike County and the cause went to Knox County on change of venue. The Knox Circuit Court made the allowances to the relators for their services in representing the defendant. Thereafter actions were brought in the Knox Circuit Court to mandate the Auditor of Knox County to issue warrants. There were answers in general denial and judgments mandating the issuing of the warrants. They were issued and countersigned by the treasurer, but payment was refused for want of funds. The current actions were then begun to mandate the county council to appropriate sufficient funds to pay the warrants. Whether there were funds appropriated by the county council at the time the allowances were made, which were afterwards diverted to other purposes, does not appear. The appellant contends that, if the relators were entitled to compensation for their services, jurisdiction to make the allowances was in the judge of the court from which the change of venue was first granted, under section 9-1314, Burns' Ind.St.1933 section 2235, Baldwin's Ind.St.1934, and that, under the County Reform Act, section 26-527, Burns' Ind.St.1933, section 5391, Baldwin's Ind.St.1934, there can be no allowance or recovery against the county unless there is an existing appropriation by the county council at the time, and that there is no showing here that there was such an appropriation.

The appellees contend that the judgments mandating the Auditor of Knox County to issue the warrants are final and conclusive of all questions of legality of the allowances.

The appellant asserts that the county council was not a party to the previous judgment, and that it is not bound by anything that was adjudicated therein.

The appellees contend that the statute providing that the compensation for services shall be settled and allowed by the judge of the court from which the change was first granted is unconstitutional, and that it has been repealed, and that the Knox Circuit Court had inherent power on change of venue from another county to assume full jurisdiction, and to appoint counsel for the pauper defendant, and to audit and allow claims for the services of such counsel and order them paid by the county in which the case was tried as part of the costs of the change of venue.

These questions require an investigation of our decisions involving the power of the courts to appoint counsel to defend poor persons who are charged with crime, and the right of counsel so appointed to receive compensation from the county for their services.

Recently the Supreme Court of the United States reaffirmed its conclusion that the Federal Constitution requires that, where a defendant in a criminal case desires counsel, and counsel is not provided, the trial court has no jurisdiction to proceed with the prosecution. Const.Amend. 6. See Johnson v. Zerbst, Warden, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, and Powell et al. v. State, 1932, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527. The Constitution of Indiana art. 1, § 13, requires that a defendant in a criminal case shall be provided with counsel, and failure of the courts to provide competent counsel will prevent a valid conviction. See Haden v. Dowd, Warden, 1939, 216 Ind. 281, 23 N.E.2d 676, and cases cited. It follows therefore that where one who is without means is charged with crime, the question of whether he shall have counsel appointed for him has not been left to the discretion of the court or the Legislature. It has been determined by the people in their Constitutions, national and state, that he shall have counsel, and that there can be no legal prosecution of the charge against him unless and until counsel is provided for him. The Constitution of this state vests the judicial power in the courts. The judiciary is an independent and equal coordinate branch of the government. Courts were established for the purpose of administering justice judicially, and it has been said that their powers are coequal with their duties. In other words, they have inherent power to do everything that is necessary to carry out the purpose of their creation. The Constitution contemplates indictment and trial in the courts for crime. It is the duty of the court to see that justice is administered speedily, without delay, and legally, and in conformity to the constitutional mandates. One of these constitutional mandates is that a defendant in a criminal case shall have counsel to represent him. It is the duty of the courts therefore to see to it that he shall have counsel. In many, if not most, jurisdictions it is regarded a part of the general duty of members of the bar to act as counsel for destitute persons charged with crime, and it is perhaps the majority rule that, when appointed by the court, attorneys must look alone to the possible future ability of the accused to pay their compensation when no provision therefor is made by statute. 7 Corpus Juris Secundum, Attorney and Client, § 172, p. 1033; 5 American Jurisprudence, § 157, p. 354. But, from the earliest times, this court has held that to require the services of an attorney to prosecute and defend without fee is in conflict with section 21 of article 1 of the Constitution of Indiana. Blythe v. State, 1853, 4 Ind. 525; Webb, Auditor, etc. v. Baird, 1854, 6 Ind. 13. In the latter case it was said that it will not be contended that the court had a right to demand the attorney's services in defending without reward, and that, if the statute is looked upon as authority for the appointment of counsel to defend poor persons without reward, the statute is in conflict with the superior constitutional provision. The opinion then proceeds (6 Ind. at pages 16, 17, 18, 19):

'The gratuitous defence of a pauper is placed upon two grounds, viz., as an honorary duty, even as far back as the civil law; and as a statutory requirement. Honorary duties are hardly susceptible of enforcement in a Court of law. Besides, in this state, the profession of the law was never much favored by special pecuniary emoluments, save, some years ago, in the case of docket-fees in certain contingencies. The reciprocal obligations of the profession to the body politic, are slender in proportion. Under our present constitution, it is reduced to where it always should have been, a common level with all other professions and pursuits. Its practitioners have no specific fees taxed by law--no special privileges or odious discriminations in their favor. Every voter who can find business, may practice on such terms as he contracts for. The practitioner, therefore, owes no honorary services to any other citizen, or to the public. The constitution and laws of the state go upon the just presumption that the public are discriminating enough in regard to qualifications. Every man having business in Court, is presumed to be as competent to select his legal adviser as he is to select his watchmaker or carpenter. The idea of one calling enjoying peculiar privileges, and therefore being more honorable than any other, is not congenial to our institutions. And that any class should be paid for their particular services in empty honors, is an obsolete idea, belonging to another age and to a state of society hostile to liberty and equal rights.

'The legal profession having been thus properly stripped of all its odious distinctions and peculiar emoluments, the public can no longer justly demand of that class of citizens any gratuitous services which would not be demandable of every other class. To the attorney, his profession is his means of livelihood. His legal knowledge is his capital stock. His professional services are no more at the mercy of the public, as to remuneration, than are the goods of the merchant, or the crops of the farmer, or the wares of the mechanic. The law which requires gratuitous services from a particular class, in effect imposes a tax to that extent upon such class--clearly in violation of the fundamental law, which provides for a uniform and equal rate of assessment and taxation upon all the citizens.

'It must be matter of congratulation to the profession that they are thus relieved from the burden of gratuitous services and useless honors; and remitted to the more substantial rewards of other citizens.

'In the present case, there is no controversy about the services having been rende d, or their value. The only question is, had the Circuit Court power to order them to be paid by the county of Tippecanoe? * * *

'But that the services rendered by Baird were necessary to be rendered by some attorney, will scarcely admit of argument. It is not to be thought of, in a civilized community, for a moment, that any citizen put in jeopardy of life or liberty should be debarred of counsel because he was too poor to...