156 Iowa 20 | Iowa | 1912
Lead Opinion
It is made to appear from the petition that in September, 1903, disbarment proceedings were instituted against one Mosher upon order of the district
In Hyatt v. Hamilton County, 121 Iowa, 292, it was held that the county was liable to the attorney for the value of services rendered in such a case. This holding’ was based in part upon the fact that the statute then in force required the services, and was silent upon the subject of compensation. The liability of the county was therefore found as matter implied from the statute. Similar reasoning was adopted in the case of Hall v. Washington County, 2 G. Greene, 473. The services involved in
The services for which the plaintiff claims his- compensation were rendered under the call of this statute. This is a call for services to be rendered without compensation from the public treasury. If the Legislature had no constitutional power to call for such services without compensation, as therein provided, then clearly the plaintiff was not bound to perform such services. If the plaintiff had declined the appointment of the court on this ground, the court could have accepted the declination, and could have looked for a more willing appointee. If the court had refused to accept the declination, the plaintiff, appellee herein, could then have put the constitutionality of the staute to the test. Lie did not do so. He accepted the appointment without protest, and he must be held to have done so under the terms of the statute. It will not do to say that only the last clause of the statute is unconstitutional. The question involved at this point is the liability
Some analogy to this case may be found in the case of Samuels v. Dubuque County, 13 Iowa, 536. That was a case against the county for attorney’s fees for services rendered to pauper defendants in criminal cases. The statute under which the appointment was made provided for fees in specific amounts. The statutory fees for the services rendered by the plaintiff in that ease amounted to $25, but the plaintiff’s services were worth $110. Hetherefore sued for the value of his services. The holding of this court was adverse to him. In the opinion in that case is was said: “The ineonclusiveaess -of this reasoning is too manifest to require a formal notice. It overlooks the fact that compensation in cases of this kind must be paid from the county revenue, the collection and disbursement of which are under the general control of the Legislature. It also overlooks the still more important fact that attorneys are officers of the law, whose fees, duties, and responsibilities may legitimately be the subject of Legislative regulation, like other officers, and, inasmuch as a class they enjoy certain special privileges' under the law, something, is justly expected from the esprit de corps of the profession in affectuating the policy of the government in giving to every pauper offender arraingnment for trial the assistance of learned counsel.” A similar question was involved in Board of Supervisors v. Pollard, 153 Ind. 371 (55 N. E. 87). This was an action for attorney’s fees for services rendered under appointment in an action in behalf of a poor person in pursuance of a statute. We quote as fol.lows from the opinion in that case: “The evident answer to this objection is that the attorney can not be compelled to perform the services, for the reason, at least, that the
Bor that reason the order must be, and it is, Reversed.
Concurrence Opinion
especially concurring. I prefer to place my concurrence wholly upon the ground that the statute is a perfectly valid exercise of legislative power. The attorney, having been directed by the court to perform the service, was in duty bound as an officer of court to do so, and I do not think he waived anything by obeying the order of court.
SUPPLEMENTAL OPINION.
A reversing opinion was filed on the original submission. It was there held that the plea of unconstitutionality of the statute under consideration was not available to appellee, but this holding was not concurred i,n by all members of the court.
We are united in the view that the statute in question does not contravene any provisions of the Constitution, and that the case must in any event be reversed, under the express terms of the statute as amended. Code Supp. section 325. In view of our unanimity on this question, and our difference of opinion on the ground of reversal stated in the original opinion, wo prefer to put the reversal upon the ground herein stated, and the former opinion is accordingly modified.
With this modification, the petition for rehearing is overruled.