Rock v. Ekern
156 N.W. 197
Wis.
1916
Check Treatment
Siebeckee, J.

The plaintiff sues upon the express con-, tract he made with the defendant, which appears in the foregoing statеment. It was agreed that the plaintiff was “to assist the district attorney of Douglas county, Wis., in the prosecution of Homer T. Fоwler so long as L. P. fflcern, the complaining witness, desires the services . . .” The evidence shows that the plaintiff rendered servicеs under the contract by assisting the district attorney in conducting the preliminary examination in the municipal court of Douglas county. He claims there was due for nine days’ services in attending court on such examination the sum of $225. The jury found $212.50 due him for such services ‍​‌‌‌​​‌‌​‌​‌‌​‌‌‌‌​‌‌​‌​‌​‌​​​‌​‌‌‌​‌‌​​​​​​‌​‌​‍and included nothing for other services. The defendant challenges the right of plaintiff to recover under thе contract upon the ground that the contract is against the policy of the law and the statutes of this state and vоid, and that no recovery thereon will be permitted. The question of the policy of the state, regarding such contracts as this, was examined by this court in the case of Biemel v. State, 71 Wis. 444, 37 N. W. 244. In that case an attorney who had been employed and pаid for his services by a private party was permitted by the court to assist the district attorney in the prosecution of the case. This court there held that the statutes of the state pro*294viding for the election of a district attorney to аct as the public prosecutor and prohibiting him from receiving “any fee or reward from or on behalf of any prоsecutor or other individual, for services in any prosecution or business to which it shall be his official duty to attend; nor be concerned as attorney or counsel for either party, other than for -the state or county, in any civil actiоn depending upon the samé state of facts upon which any criminal prosecution commenced but undetermined shаll depend,” together with the statute vesting in the judges of the courts the power ‍​‌‌‌​​‌‌​‌​‌‌​‌‌‌‌​‌‌​‌​‌​‌​​​‌​‌‌‌​‌‌​​​​​​‌​‌​‍to appoint attorneys to assist the distriсt attorney whenever the court finds it necessary and proper in prosecuting felonies and prosecutions ' bеfore grand juries, declare a policy of the state which regulates and limits the appointment of such counsel to assist in such prosecutions to attorneys who are not employed and paid by private parties, and that suсh counsel must be appointed by the court and paid from the public fund and thus place such assisting attorney in the samе position of impartiality as the district attorney elected by the people. The court declared :

“We think it is quite clear from the reading of our statutes on the subject, as well as upon public policy, that an attorney emрloyed and paid by private parties should not be permitted either by the courts or by the prosecuting attorney to assist in the trial of such criminal cases.”

It is emphasized in the opinion that prosecutors in criminal cases should ‍​‌‌‌​​‌‌​‌​‌‌​‌‌‌‌​‌‌​‌​‌​‌​​​‌​‌‌‌​‌‌​​​​​​‌​‌​‍be frеe from prejudice and have no private interest in prosecutions. In Wight v. Rindskopf, 43 Wis. 344, in speaking of the duties and functions of prosecuting officers, the court states that he “is a quasi-judicial officer, retained by the public for the prosecutiоn of persons accused of crime, in the exercise of a sound discretion to distinguish between the guilty and the innocent. . . . He is trusted with broad official discretion, generally subject, however, to judicial control.” These views are supported in the case of State *295v. Russell, 83 Wis. 330, 53 N. W. 441. These adjudications clearly establish that employment and .payment of private counsel to assist the district attorney in the prosecution of persons for crime by private parties is against the publiс policy of this state. We aré of the opinion that this policy has not been ‍​‌‌‌​​‌‌​‌​‌‌​‌‌‌‌​‌‌​‌​‌​‌​​​‌​‌‌‌​‌‌​​​​​​‌​‌​‍changed by subsequent legislation and must be adhered to. Erom the facts and circumstances shown in this case it appears that plaintiff contracted with the dеfendant “to assist the district attorney of Douglas county, Wis., in the prosecution of Homer T. Eowler so long as L. P. Ekern [defendant], thе complaining witness, desires the services of said Rock [plaintiff] therein. . . .” It is without dispute that the amount of the recovery agаinst defendant was for services plaintiff rendered under this contract in the preliminary examination' of Fowler upon defendant’s complaints. The contract as proved is against the public policy of this state and the trial court еrred in ‍​‌‌‌​​‌‌​‌​‌‌​‌‌‌‌​‌‌​‌​‌​‌​​​‌​‌‌‌​‌‌​​​​​​‌​‌​‍permitting the plaintiff to recover thereon. The acquiescence of the accused, the court, аnd the district attorney to allow plaintiff to assist in the prosecution of Eowler under his private employment by defendant does not purge the contract of employment of its illegal character and affords no excuse to enforce it. Wight v. Rindskopf, supra. In Melchoir v. McCarty, 31 Wis. 252, it was held: “The general rule of law is, that all contracts which are repugnant to justice, or founded upon an immoral consideration, or which are against the general policy of the common law, or contrary to the provisions of any statute, are void;” even where such statute does not expressly declare them void.

It is argued that the plaintiff rendered the services here involved upon the preliminary examination and hence they are not of the class of services which are prohibited to be performed by counsel employed by private рarties under this public policy. We cannot, accede to this claim. A preliminary examination of a person accused of crime is one step in *296the prosecution for the crime charged. It is so regarded and treatеd in the common law and the statutes. The court committed error in permitting the plaintiff to recover on the contract in this case.

By the Court. — The judgment appealed from is reversed, and the cause remanded to the superior court of Douglas county with direction to enter judgment dismissing plaintiff’s complaint.