Wayne County v. Waller

• Decision Date: 05 May 1879
• Citation: 90 Pa. 99
• Parties: Wayne County <I>versus</I> Waller et al.
• Court: Pennsylvania Supreme Court

Page 99

90 Pa. 99

Wayne County versus Waller et al.

Supreme Court of Pennsylvania.

March 31, 1879.

May 5, 1879.

March 31st 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, WOODWARD, TRUNKEY and STERRETT, JJ.

Error to the Court of Common Pleas of Wayne county: Of January Term 1879, No. 247.

COPYRIGHT MATERIAL OMITTED

George S. Purdy, for plaintiff in error.—By the common law, the public pays no costs. As the liability is created by statute, it cannot be extended beyond the limits assigned to it by the legislature. Neither the court, nor the county commissioners, nor any other functionary can bind the county for costs in any way not prescribed by statute: Berks Co. v. Pile, 6 Harris 493; Commonwealth v. Horner, 10 Casey 440.

The sixty-fourth section of the Criminal Procedure Act of 1860 (Purd. Dig. 391), provides that "the costs of prosecution accruing on bills of indictment charging a party with felony, shall, if such party be acquitted by the petit jury on the traverse of the same, be paid by the county." Under this statute the plaintiffs below must claim the $150, if at all. The costs and expenses of a defendant in resisting an indictment are no part of the costs of prosecution, and do not accrue upon the bill of indictment: County of Franklin v. Conrad, 12 Casey 317; Huntingdon County v. Commonwealth, 22 P. F. Smith 80. Since the Act of 1860, the costs of a defendant in a case of felony are as at common law, and the county is not liable: Huntingdon County v. Commonwealth, supra.

The order, if obeyed by the commissioners, would not discharge them from personal liability to the county for the money so misappropriated, and it would be the duty of the county auditors, upon settlement of the commissioners' accounts, to charge the same back to them: Commissioners of Lycoming v. The County of Lycoming, 10 Wright 496. It has been decided in other states that counsel assigned by the court are not entitled to compensation for their services: Vise v. Hamilton, 19 Ill. 78; Rowe v. Yuba, 17 Cal. 61.

George G. Waller and H. M. Seely, for defendants in error.— The court was required by law to assign counsel for the prisoner: Act May 31st 1718, sect. 4, Purd. Dig. 1098, pl. 2. The court under the requirements of the act imposed upon two of its officers a specific duty, considered essential to the proper administration of justice in a case then pending before them, involving the life of a citizen of the Commonwealth. Shall it be said the court is absolutely helpless in such a case? That in a case where such an issue is presented justice must go unadministered and the life and character of an innocent citizen must be sacrificed because the court have no power to require the county to provide the means necessary for the reasonable protection of a defendant, without an Act of Assembly expressly conferring it? Has a court of general criminal jurisdiction no implied powers by which it can, in an extraordinary emergency, secure the end for which it was created — the administration of justice? It may impose upon a county the expense of boarding and lodging a jury kept together in a capital case: Commissioners v. Hall, 7 Watts 290. The coroner may direct a post mortem examination, and the county must pay the physician as an expert: Allegheny v. Watt, 3 Barr 462. The county in which this court sits is liable for the incidental expenses of the court: McCalmont v. County of Allegheny, 5 Casey 417. The county is liable for expense of fuel to keep prisoners comfortable in jail: Richardson v. Clarion Co., 2 Harris 200. It is not necessary to multiply authorities. In none of these cases did any statute exist charging the county with any portion of the expenses.

Dr. Wharton, in his work on Criminal Law, vol. 3, sect. 3006, gives it as his view that counsel assigned for defence of poor defendants in criminal courts, have a right of action against the county for their fees, citing: Regina v. Fogarty, 5 Cox C. C. 161; Blythe v. State, 4 Ind. 525; Dane v. Smith, 13 Wis. 585; Hull v. Washington, 2 Green 473; Davis v. Linn, 24 Iowa 508. We based our claim upon the two grounds: 1. That when the court of general criminal jurisdiction has determined that the payment of certain expenses by the county is necessary to enable the court to perform its legitimate functions of administering justice, and has ordered the county to pay such expenses, a legal obligation is imposed upon the county which will sustain an action. 2. That when the law requires the court to assign counsel to perform certain duties, there is an implied obligation to remunerate them.

We lay our claim upon both grounds, believing them both to be sound, but hoping to recover our expenses, legitimately as such, and if this cannot be, then to recover them under the form of fees.

Mr. Justice STERRETT delivered the opinion of the court, May 5th 1879.

This contention arises upon the facts submitted to the court below in the nature of a case stated. The plaintiffs below, attorneys at law, were appointed by the Court of Oyer and Terminer to defend a woman who was indicted for murder. On her petition, the court first recommended and subsequently ordered the payment by the county of $150 to enable her to secure the attendance of witnesses and prepare for trial. The commissioners of the county refused to comply with the request or to obey the peremptory order, claiming that the court had no authority to make it, and that if they acquiesced, they would render themselves personally responsible to the county for the amount so paid. The facts, as fully set forth in the case stated, were presented to the court in the following terms, viz.: —

"If the court shall be of opinion that it was the duty of the county of Wayne, under the direction of the court, to furnish necessary means to enable the counsel assigned by the court to properly investigate the case, and prepare the defence of Mrs. Van Alstine, it is agreed that such necessary expense actually incurred was $150, and the court shall direct judgment in favor of the plaintiffs against the defendant for that sum."

"If the court shall be of the opinion that the counsel, undertaking and conducting, under assignment by the court, the defence of Mrs. Van Alstine, indicted for murder by poisoning, are entitled to compensation from the county for services so rendered, they shall receive the sum of $200, and the court shall direct judgment for the plaintiffs against the defendant for that sum, in addition to the sum of $150 for expenses above stated."

"If the court shall be of opinion that the county is not liable to pay, either for the expense incurred or services rendered by counsel in the preparation and conduct of the defence of Mrs. Van Alstine, then judgment to be awarded to the defendant. Either party to have the right to sue out a writ of error."

The learned judge held that the county was liable for both sums, and entered judgment accordingly; and this is assigned for error.

By the common law, no costs are paid out of the public treasury. In the County of Franklin v. Conrad, 12 Casey 317, it is said the recovery and payment of costs, in...