COMMONWEALTH of Kentucky, DEPARTMENT OF CORRECTIONS, Appellant, v. Francis D. BURKE, Attorney for Walter Hammershoy, Appellee.
Court of Appeals of Kentucky.
March 29, 1968.
426 S.W.2d 449
Witnesses for the Department expressed opinions of before value ranging from $19,000 to $20,000 and after value from $12,300 to $12,840, with resulting differences of $6,700 and $7,160. Three appraisal witnesses for appellees gave opinions of before value ranging from $38,000 to $40,000 with after value ranging from $12,000 to $14,000. Two of these witnesses expressed opinions that the difference in before and after value was $26,000, and one estimated $28,000 as the difference.
Since the jury found the after value as $14,000, it is apparent that the only point of departure in the appraisements made by the various witnesses is in their before values.
The Department relies heavily upon testimony concerning sales of nearby farms, with particular emphasis being placed on two sales of portions of the Albert Davis estate, adjoining the subject property. One of the Davis tracts which contained 17 1/2 acres sold for $190 per acre; another, containing 132 acres, brought about $170 per acre. Both of these tracts were sold within a month of the date of taking in the present case. It is to be observed that the jury‘s verdict ascribed before value to the Searcy farm of $300 per acre. The Department strongly urges that the sales of land adjoining the Searcy tract for substantially less per acre conclusively demonstrate the palpable excessiveness of the jury‘s verdict.
The appellees counter this argument by pointing to evidence presented in their behalf tending to reflect a substantially higher value of the Searcy land over the Davis land. The witnesses for the appellees acknowledged the verity of the Davis sales, but insisted that by reason of topography, character of maintenance, and situation of drainage and water supply, the Searcy land was substantially more valuable than the Davis land. The witnesses for appellees evinced qualifications by reason of experience and observation enabling them to testify competently about the values at issue. Their explanations of the distinctions between the values of other lands and the Searcy land were reasonable and sufficient in probative value to support the jury‘s verdict. In this state of case, we will not disturb the verdict even though it appears to be liberal. Com., Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472.
The judgment is affirmed.
WILLIAMS, C. J., and EDWARD P. HILL, MILLIKEN, OSBORNE, PALMORE and STEINFELD, JJ., concur.
Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., Frankfort, for appellant.
Francis D. Burke, Joseph W. Justice, Burke & Justice, Pikeville, for appellee.
This is an appeal from a judgment allowing an attorney‘s fee of $1500 to appellee for representing an indigent criminal defendant, to be paid by the Commissioner of Corrections out of an appropriation made by the 1966 General Assembly. The Department of Corrections acknowledges the reasonableness of the allowance and recognizes the fairness of an attorney‘s claim for such representation. However, appellant contends there is no statutory or other authority for the allowance of attorneys’ fees in such cases.
We are cognizant of the increasing demand made upon the members of the legal profession to furnish constitutionally guaranteed counsel services to indigent persons charged with crimes. It is contended by appellee that since society is required to furnish these services, society should assume the responsibility of paying adequate compensation for them. We cannot refute this proposition. It is only fair and just. The difficulty is that there exists at the present time no authorized procedure for paying such claims nor a fund out of which they may be paid.
In 1966 the legislature in its budget appropriated $100,000 for “Public Defenders“. This appropriation appears as follows in H.B. 1:
“C. Public Defenders
1966-1967 $50,000
1967-1968 $50,000”
This bare appropriation obviously does not create a fund from which compensation properly could be paid to appointed lawyers representing indigent defendants. While such lawyers may in a realistic sense be “Public Defenders“, the term is generally understood to mean persons holding a governmental office with specified legal duties to perform. In any event, the purpose of this appropriation and the contemplated utilization of the fund cannot be known. It may be that the legislature intended this money be used to set up some sort of “public defender” system or to further research in connection therewith. But in the absence of some law so directing, there is simply nothing to guide us with respect to the manner in which this appropriation could be properly expended. Certainly the legislature has not authorized its disbursement for the purpose herein sought.
Appellee insists this vital matter of compensation involves the “administration of justice” and urges us to devise some system for the allowance of reasonable attorneys’ fees as necessary costs of administering the criminal laws of this Commonwealth. A present insurmountable obstacle is that no system we could devise would be workable since the judiciary has
This very serious problem has been before us recently in Warner v. Commonwealth, Ky., 400 S.W.2d 209, and Jones v. Commonwealth, Ky., 411 S.W.2d 37. In both cases we expressed our intention to defer to legislative action. It is almost a matter of necessity that we do so.
We recognize the merit in appellee‘s position and that of many other attorneys who are performing an absolutely essential and valuable public service. They are being compelled to perform work for the government without compensation. We cannot refrain from expressing the wish that other departments of government recognize this grave problem and take appropriate steps, as has been done in other states, to rectify the situation.
We acknowledge the laudable motives which impelled the circuit court to make this allowance to appellee, but such court lacked authority to require its payment by the Commissioner of Corrections from the appropriation above discussed.
The judgment is reversed.
WILLIAMS, C. J., and HILL, MILLIKEN, OSBORNE and PALMORE, JJ., concur.
SEPARATE OPINION OF THE COURT
STEINFELD, Judge.
I concur in so much of the opinion of the court which holds that the judgment against the Commonwealth of Kentucky, Department of Corrections should be reversed. See discussion this subject 7 Am. Jur.2d 167, Attorneys at Law, § 207. However, I respectfully disagree with that part of the opinion which holds that fixing the amount of compensation for the attorney was improper.
In Jefferson County ex rel. Grauman v. Jefferson County Fiscal Court, 301 Ky. 405, 192 S.W.2d 185 (1946) is found the following statement:
“As said in 14 Am.Jur., Courts, § 22:
‘The power to appoint necessary attendants upon the court is inherent in the court in order to enable it to perform properly the duties delegated to it by the Constitution, and it cannot be doubted that judicial power includes the authority to select persons whose services may be required in judicial proceedings or who may be required to act as the assistants of the judges in the performance of their judicial functions, whether they are referees, receivers, attorneys, masters, commissioners, or judges and clerks of elections.‘”
The law is now clear that all accused of crime are entitled to effective representation by counsel at all critical stages of the litigation. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R. 2d 733 (1963); Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966); Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3rd 974 (1966) and Smith v. Commonwealth, Ky., 412 S.W.2d 256 (1967).
I deem it proper for the trial court in cases such as the one we have before us to determine the amount which that court considers reasonable compensation. “The trial court, where the services were performed in that court, has a large measure of discretion in fixing the reasonable value of legal services.” 7 Am.Jur.2d 183, Attorneys at Law, § 235. Roederer v. Schmitt, 258 Ky. 398, 80 S.W.2d 35 (1935); Dorman v. Baumlisberger, 271 Ky. 806, 113 S.W.2d 432 (1938). The judgment should not be reversed insofar as it fixes the
MONTGOMERY, J., concurs in this opinion.