The Board of Commissioners of Montgomery County v. Courtney
| Decision Date | 12 February 1886 |
| Docket Number | 12,878 |
| Citation | 4 N.E. 896,105 Ind. 311 |
| Parties | The Board of Commissioners of Montgomery County v. Courtney |
| Court | Indiana Supreme Court |
From the Parke Circuit Court.
The judgment is affirmed, with costs.
J. H Burford, for appellant.
J. R Courtney, for appellee.
On the 8th day of December, 1882, the grand jury of Montgomery county returned an indictment against Joseph Stout, for murder in the first degree.
The venue of the cause was changed from Montgomery to Parke county, where a trial was had, the Hon. James E. Heller presiding as judge pro tempore. The prisoner applied for admission to defend in forma pauperis, and being so admitted, upon request, John R. Courtney, Esq., was assigned by the presiding judge as his attorney and counsellor. The trial resulted in a conviction, and an appeal was prosecuted to this court, the attorney appointed rendering the services necessary in prosecuting the appeal.
On the 23d day of November, 1883, Mr. Courtney filed a claim before the board of commissioners of Montgomery county for his services in preparing the case for appeal, briefing and orally arguing the same in this court, and for expenses while engaged in the service of the prisoner in matters pertaining to the appeal.
The claim recited the appointment, and exhibited a certified copy of the application to the court for such appointment, and the order of the court appointing and assigning the claimant as attorney and counsellor for the accused, together with a bill of particulars of the services and charges.
Upon consideration the board of commissioners refused to allow any part of the claim. The claimant appealed to the Montgomery Circuit Court. The venue of the cause was subsequently changed, and the cause tried by a jury, the Hon Ared F. White, sitting as special judge, in Parke county. The trial resulted in a verdict and judgment in favor of the claimant for $ 550. From this judgment the board of commissioners appealed. Two questions are presented by the argument for consideration here.
It is insisted that the court erred in overruling a demurrer filed in the circuit court to the complaint:
1. Because the court had no jurisdiction of the subject-matter of the action.
2. Because the complaint did not state facts sufficient to constitute a cause of action against the county.
The argument of appellant is predicated on the proposition that the board of commissioners is a court of limited statutory power, and that it has no jurisdiction to make an allowance in respect to any matter for which, within its authority, it could have made no contract. Miller v. Embree, 88 Ind. 133, Moon v. Board, etc., 97 Ind. 176, and other cases holding the rule substantially as above stated, are referred to and relied on. Because, therefore, within the ruling in Hight v. Board, etc., 68 Ind. 575, and Board, etc., v. Ward, 69 Ind. 441, a board of commissioners has no power to contract with an attorney to prosecute or defend criminals, it is contended the conclusion follows that the board possessed no power or jurisdiction to allow the claimant who was appointed by the court for such service.
Claims against a county arise either out of contract, or from some duty or obligation which the law imposes. Whoever asserts and undertakes to enforce a claim against a county, which pertains to its business, and which must necessarily arise out of contract, must, within the rulings referred to, show a contract made with the board, or some duly authorized agent, and the contract must appear to have been one which it was within the authority of the board to make. Waymire v. Powell, post, p. 328. There are, however, many claims of which the board of commissioners are required to take cognizance, which grow out of a duty imposed by law, or from the act of some officer who is authorized by law to create an obligation against the county. Township trustees as such, and as overseers of the poor, may, under certain circumstances, bind the county in reference to matters concerning which the county commissioners are not authorized to contract. Accordingly it has been held that a township trustee may bind the county for services rendered in the way of temporary relief to a person in distress, who is without friends and money, as in the case of The Board, etc., v. Jennings, 104 Ind. 108, 3 N.E. 619. Other illustrations and cases might be cited, but this is sufficient to show the distinction between the cases relied on by counsel and that under consideration.
The question here is, was it within the power of the circuit judge to bind the county to pay for the appellee's services by appointing him to defend a prisoner who was found to be entitled to defend as a poor person, notwithstanding the county commissioners were without power to contract for such services? That it was, we think, can not be doubted. Upon the same principle that the law has committed to the overseers of the poor the duty of determining who shall receive temporary relief when in distress, and to bind the county to persons who care for such persons; so it has committed to the courts the duty of deciding who shall be entitled to defend as poor persons, and to bind the county for services rendered by an attorney in behalf of such persons, in pursuance of an appointment duly made.
Section 260, R. S. 1881, expressly authorizes the court, upon being satisfied that a person has not sufficient means to prosecute or defend an action, to assign him an attorney, and it was held in Webb v. Baird, 6 Ind. 13, that the circuit court, even without a statute, had the power, ex necessitate, to appoint an attorney to defend a poor person. It was there held, upon the authority of Gaston v. Board, etc., 3 Ind. 497, and Allegheny County v. Watt, 3 Pa. 462, that the judge who appoints counsel for a poor person was to that extent the agent of the county. The case cited was followed and approved in the following cases: Board, etc., v. Wood, 35 Ind. 70; Gordon v. Board, etc., 52 Ind. 322; Tull v. State, ex rel., 99 Ind. 238.
Whether section 260 is applicable to criminal procedure need not be determined. Whether applicable or not, it is nevertheless beyond question that without it the inherent power of the court was ample to justify the appointment.
There could be no propriety or fitness in authorizing or permitting the board of commissioners, an inferior tribunal, to employ counsel either to defend or prosecute actions in the circuit court or other courts of superior jurisdiction, and, therefore, the Legislature has wisely withheld that power from county boards, and committed it in express terms to the courts. It must be supposed that the court in which an action is pending is better able to judge of the necessity for assigning counsel to prosecute or defend than any other tribunal, and that the orderly course of justice would not be obstructed by permitting a trial to proceed without the...
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Bd. of Com'rs of Montgomery Co. v. Courtney
... ... , for appellee.MITCHELL, J.On the eighth day of December, 1882, the grand jury of Montgomery county returned an indictment against Joseph Stout for murder in the first degree. The venue of the cause ... On the twenty-third day of November, 1883, Mr. Courtney filed a claim before the board of commissioners of Montgomery county for his services in preparing the case for appeal, briefing, ... ...