13 Ohio St. 388 | Ohio | 1862
The question upon the motion to dismiss the appeal, depends upon the consideration, whether the appellants rendered their services under a contract between them and the county, which gave a right to such compensation as judicial tribunals, created by law for its ascertainment, might determine, or rendered their services as attorneys under the order of the court of common pleas, in the expectation of a fee, the amount of which was ascertainable only in the discretion of a specified authority. In the former view, the board of county commissioners was the tribunal, in the first instance, to act upon the justice and amount of the claim, and an appeal to the court of common pleas might be properly taken. In the other view, it can not be properly claimed, that from the exercise of a mere discretionary power, vested in the board of county commissioners, an appeal might be taken to the court of common pleas, under the general language of the law allowing and regulating such appeals. We do not understand the counsel for the defendants in error to claim, that, in this view, their appeal could be sustained, and their argument to show their right to appeal, proceeds on the assumption that they had established the former view to be the correct one.
To show that it is correct — that a right exists to charge upon a county such a claim as that stated in the petition on the appeal, requires a reference to some statutes of the state. We are accordingly referred to the 14th section of the act “ directing the mode of trial in criminal cases ” (2 S. & C. St. 1182), which provides that, “ The court before whom any person shall be indicted, is hereby authorized and required to as
Nor do we think the other statute on the subject was intended to sanction any such practice, or to erect the board of county commissioners into a judicial tribunal to hear and decide such a claim against their county. That statute is as follows : “ That it shall not be lawful for the county auditor of any county in this state, to audit or allow any account, bill or claim hereafter presented by any attorney or counselor at law, for services performed under the provisions of the fourteenth section of the act entitled 1 An act directing the mode of proceeding in criminal cases,’ until said account, bill or claim shall have been examined and allowed by the county commissioners of the proper county, and the amount so allowed for such services certified by said county commissioners.” 1 S. & 0. St. 94.
It will be observed that the terms of this statute are negative — applicable to an existing state of things — most proba-. bly in the view of the legislature, an abuse, which it was proper to correct. Now, we think, we have a right to take notice of this existing state of things, of that whioh the legislature may have regarded as an abuse. There had a practice prevailed for courts to allow and certify, and county auditors to pay, as a part of the ordinary expenses attending the administration of justice, fees to the attorneys assigned to indigent prisoners. This practice explains the title of the
After this legislation, when the fee to counsel assigned by the court to defend a prisoner, was allowed, and the amount fixed by the county commissioners, a legal demand against the county for its payment was created. But it was the intention to place the county commissioners in the position before assumed by the courts, of allowing such a fee as might be deemed proper. The legal demand was for the fee and for nothing more.
The case of Cooper v. Armstrong, 19 Ohio Rep. 116, ca.n be sustained only, on the same principle. The claim in that case was for expenses in reference to a jury, incurred by the sheriff, under the-order of a court trying a person under indictment for a capital crime. The auditing and allowing the claim w,as held to be incident to the authority of the court in the administration of the criminal laws of the state. It was held to be a just demand against the county because it had been “ audited and allowed by a tribunal authorized by law to do so.” But it would be difficult to maintain that the sheriff, without such allowance, could have maintained an action against the county, or, if not satisfied with the amount allowed by the court, could, in any form or mode, have had its action on the subject, reviewed or corrected in a higher tribunal .
The conclusion which must follow the views we have expressed is, that the appeal from the board of county commissioners .to the court of common pleas ought to have been dismissed for want of jurisdiction. The judgment of the district court and of the court of common pleas will, therefore, be reversed, with costs; and this court, rendering such judgment
• Judgment reversed.
