166 N.E. 779 | Ind. Ct. App. | 1929
One Arthur Smith was indicted in Vigo County on the charge of murder. A change of venue was taken from Vigo County, and the case was sent to Clay County, where it was tried. The judge of the Clay Circuit Court appointed appellee herein as attorney to defend said Arthur Smith, as a poor person.
Appellee herein accepted said appointment and successfully defended the said Arthur Smith and afterward filed a complaint in the Vigo Circuit Court, wherein the members of the board of commissioners of Vigo County were made party defendants to answer as to the county's interests therein and wherein the appellee prayed for an order fixing the value of said services, and judgment against Vigo County for the sum so found and fixed.
Demurrer for want of facts was filed to this complaint on the grounds thereof as set forth in memorandum, said demurrer being as follows, to wit:
"The complaint does not allege that there was an appropriation by the county council existing at the time of such alleged employment by the plaintiff.
"The complaint does not state that there is now an existing appropriation of the county council for the payment of the amount claimed for this purpose.
"The complaint discloses that the services for which claim is made were voluntary services rendered."
On March 8, 1926, the demurrer to the complaint was overruled, to which ruling of the court, the appellant at the time excepted, and it then filed an answer in seven paragraphs.
A trial was had and judgment rendered in favor of appellee in the sum of $5,000.
Appellant filed a motion for a new trial, which motion was overruled by the court. *184
An appeal to this court assigns as error the overruling of appellant's demurrer to the complaint and the overruling of appellant's motion for a new trial. The grounds upon which the motion for a new trial are based which this court will consider are that the finding of the court is contrary to law and is not sustained by sufficient evidence.
Section 5888 Burns 1926, Acts 1899 p. 343, provides: "No court, or division thereof, of any county, shall have power to bind such county by any contract, agreement, or in any other way, except by judgment rendered in a cause where such court has jurisdiction of the parties and subject matter of the action, to any extent beyond the amount of money at the time already appropriated by ordinance for the purpose of such court, and for the purpose for which such obligation is attempted to be incurred, and all contracts and agreements, express or implied, and all obligations of any and every sort attempted beyond such existing appropriations shall be absolutely void." Section 2248 Burns 1926, Acts 1905 p. 584, § 216, provides: "Whenever, in any criminal prosecution, a change of venue shall have been taken from the county in which such prosecution originated, the trial court shall have the authority to appoint counsel on behalf of such original county to prosecute such action or to defend any poor person defendant therein. Counsel so appointed shall be entitled to reasonable compensation for services in such cause, but the amount thereof shall be settled and allowed by the judge of the court from which the change of venue was first granted."
It is not alleged in appellee's complaint that any appropriation by the county council, with which to employ counsel to assist in the prosecution of criminal causes, had been made and remained unexpended. It has been expressly held that such an allegation is necessary in a *185
complaint similar to appellee's. In the case of Turner v.Board, etc. (1902),
Appellee concedes that if the case of Turner v. Board, etc.,supra, is adhered to, this appeal must be decided adversely to him, but he insists that the decision in that case was not well considered, and, in effect, authorizes the Legislature to deprive the courts of vital inherent powers, and requires the taking of the professional services of attorneys without just compensation in violation of Art. 1, § 21, of the state Constitution (§ 73 Burns 1926).
In the case of Tull, Treas., v. State, ex rel. (1884),
Appellee insists that his services as an attorney cannot be required without just compensation, under Art. 1, paragraph 21 of the Constitution of Indiana. In many jurisdictions, it is regarded as a part of the general duties of members of the bar to act as counsel for persons accused of crime and destitute of means, upon appointment by the court, and in such cases, such attorneys must look alone to the possible future ability of the accused to pay their compensation when no provision therefor is made by statute. 3 Am. and Eng. Ency. Law (2d ed.) 417 and cases cited. In states where this rule obtains, an attorney is regarded as truly an officer of the court, and, for a refusal to accept an assignment to defend a poor person, may be disbarred or punished as for contempt. In this state, the professional services of an attorney cannot be demanded without just compensation, and consequently he cannot be compelled, under penalty of disbarment or of being in contempt, to render gratuitous services for a pauper defendant in a criminal cause. Blythe v. State (1853),
The State is abundantly able to compensate all its servants and should make provision for such services as may be deemed necessary in the interest of the public peace and welfare. 3. An attorney may, at his pleasure, accept or decline a proffered appointment to assist the prosecuting attorney in a criminal cause, but, if he accepts, he is bound to know the limitations on the power of the court to make such appointments and to allow compensation for his employment. It follows that appellee's acceptance of employment upon the order of the circuit court was voluntary and not enforced, and that his professional services have not been required without compensation in violation of the constitutional provision cited.
The decision in the case of Turner v. Board, etc., supra, is reaffirmed, with the additional holding that the statute in question upon the facts of this case, does not unlawfully 4. deprive the courts of any inherent powers or compel the rendition of legal services without just compensation.
Appellee's complaint should show an unexpended appropriation for the purpose of employing counsel in such cases, at the time of his appointment, to create a valid obligation against 5. the county, and his recovery cannot exceed the amount then on hand. Turner v. Board, supra; Board, etc., v.Mowbray (1903),
It is contended that judgments may be rendered against a county on valid claims in advance of any appropriation made for the payment of such claims. That is true, but the cause of action must not be founded *188 upon any contract or order of court made since the taking effect of the "County Reform Law." Board, etc., v. McGregor, supra;Knight v. Board, etc., supra.
The appellee admits that if the case had been tried originally in Vigo County, the rule of law as above announced would maintain, but that, in a case wherein there has been a 6. change of venue to another county, § 2248 Burns 1926 repeals § 27 of the "County Reform Act" (§ 5888 Burns 1926,supra), for the act of 1905 p. 584, § 216, supra, provides that counsel so appointed shall be entitled to reasonable compensation for services in such cases. This court is of the opinion that the two acts should be construed and read together, and that the act of 1905 p. 584, § 216, supra, when read in connection with § 5888 Burns 1926, supra, can only mean that the counsel so appointed shall be entitled to a reasonable compensation for his services provided that an appropriation has been made for his services before he enters upon the employment, for the 1905 act provides the amount thereof shall be settled and allowed by the judge of the court from which the change of venue was first granted. To give any other construction to this statute would mean a nullification of the "County Reform Act."
What is known as the "County Reform Act" was passed for the purpose of keeping the expenditures of a county within the amount of taxes collected each year. The county council acts in 7, 8. the nature of a budget committee, as a wholesome check upon all the branches of the government, and the courts are subject to a reasonable regulation as much as are other branches of the government. Where an emergency arises, and no appropriation has been made for the defense of a poor person, a county council can be called together for the purpose of making an appropriation before an attorney enters upon his employment, and if *189 the appropriation is not made, he is not obliged to continue with his work. The decision of the Supreme Court above referred to was known to the appellee in this case when he was appointed to defend the man Smith, and appellee could have refused to undertake the employment without being subject to criticism from the court trying the case.
In considering the sufficiency of a complaint, this court is not limited to the reasons mentioned in the memorandum to the demurrer filed, but, if the complaint is essentially 9, 10. bad for any reason, it is our duty to so declare. Poer, Trustee, v. State, ex rel. (1918),
The judgment should be reversed, with instructions to sustain the demurrer and to dismiss the cause. *190