90 Minn. 348 | Minn. | 1903
Order overruling demurrer to a complaint upon the ground that it does not state facts sufficient to constitute a cause of action. Defendant appeals.
It appears from the challenged pleading that a charge was made against one Warren in Lincoln county, for the crime of murder. At the October term, 1899, of the district court, it was formally represented to the presiding judge that the regular county attorney was disqualified to participate in the prosecution of the accused. The court, having found this to be the fact, appointed plaintiff, an attorney of the court, to assume the management of the 'criminal proceedings against
It was disallowed, whereupon he appealed to the district court, and according to statutory requirements filed the complaint before us for review.
The right of plaintiff to recover is denied upon the ground that • the law fails to provide compensation for the services thus rendered, 'it being insisted that, where it is not proper for the regular county attorney to engage in the trial of a criminal cause, and the court appoints another attorney to meet the emergency, there is no statutory authority for imposing a liability upon the county to pay the special counsel therefor. That there is power to appoint special counsel to take the place of the regular county attorney under such circumstances is in- ' dispensable to the investigation of crime. Such an exigency has been provided for by G. S. 1894, § 813, in these terms:
“The several judges of the district courts in this state may, by order to be duly entered on the minutes, at any term of the court, appoint any attorney of the court to act as or in place of, or to assist the county attorney in any business or proceeding before the grand jury, or in court, whether there be a county attorney present at such term or not; and the person so appointed shall take the usual oath of office and shall thereupon be fully authorized to be present before the grand jury at any time when the county attorney might by law be present before that body: provided that no compensation shall be paid by the county to such person so appointed by the court to assist the county attorney, when that officer is present at the term when such appointment is made, except the same be paid with the consent of the county attorney and be deducted from the regular salary of that officer.”
Under our state policy for the enforcement of the criminal statutes the counties of this state must assume the obligation to provide pecuniary recompense to secure efficient results. An official elected to the office of county attorney receives a salary to be fixed by the county board to be paid from the county treasury. G. S. 1894, § 532. Where this official is disqualified, the special attorney, as we'have seen, may be appointed by the district judge, and such substitute must, to properly perform his duties, secure by legal process the attendance of witnesses to give evidence against the accused at the trial. These are to be paid by the county. Section 5593. There is obviously as much reason, though not expressed, that the lawyer under whose summons they come, and without whose assistance their testimony could not be utilized, should be paid in the same way. It is also provided that when any prosecution in the' name of the state fails, the witness fees for the state shall be paid from the county treasury, unl.ess otherwise provided by the court. Section 5594. The exception last noted without doubt refers to those cases where, under other statutory provisions, the costs and disbursements are adjudged against convicted persons and paid into the county treasury. Section 5514. ,
Again, the law is so solicitous to insure an accused person the manifest benefits of legal counsel at the trial that it provides compensation therefor when appointed by the court to defend an indigent defendant
The legal enactments to which we have referred 'have been in force many years, and are sufficient to show that under our state policy the expenses of criminal trials are treated as county burdens, and the benefits from fines and costs inure to that corporate entity to minimize such expenses as far as may be; and it is very clear that the legislature has always acted upon the general view that any pecuniary charge of this character is exclusively of county cognizance. It has been held, upon a careful consideration, by high authority, that where no provision had been made for the compensation of counsel for indigent persons prosecuted for crime, the reasonable obligations to secure such benefits must be discharged by the county where the cause arose. Carpenter v. County, 9 Wis. *274. In a later case the same court, in construing a statute which authorized the appointment of counsel for a poor defendant where such person was accused of a criminal offense, conditioned that the county in which the same arose should not be held liable to pay therefor, it was held that an obligation to pay for services notwithstanding this restriction in favor of the county must be assumed by it not because the court who appointed the counsel was authorized to contract for the county or its officers, but upon the general doctrine that whoever knowingly receives or assents to the services of another, which are of value, whereby he contributes a benefit, thereby presumably creates an undertaking to pay what the services are reasonably worth. County v. Smith, 13 Wis. *585.
We have therefore reached the conclusion that the authority which is vested in the court to employ and require the services of counsel in a matter which involves the administration of justice is not, and was not intended to be, an enforced gratuity, but a county liability, to be discharged by the only municipal entity that is given plenary cognizance over the subject of compensation in cases of that character.
Order appealed from is affirmed.