157 P. 1157 | Mont. | 1916
delivered the opinion of the court.
Certiorari. The facts disclosing the ground of the application are these: On January 10 of this year, John Johnson, filed in department 3 of the district court of Silver Bow county an accusation charging M. F. Canning, the county attorney of Silver Bow county, with neglect and failure to perform his duty as such officer in the enforcement of the gaming laws of the state, and demanding that he be removed from office. When in response to a citation Canning appeared and entered his plea of not guilty, Honorable Michael Donlan, the judge presiding, by formal order called upon T. F. Shea, Esq., county attorney of Powell county, to prosecute the accusation. Powell county does not adjoin Silver Bow county. Mr. Shea appeared and assumed charge of the proceedings. The trial was set for February 16. Pending the examination of witnesses for the accuser, Mr. Shea moved for a dismissal of the accusation. The motion was sustained and judgment of acquittal was entered. On March 2 Mr. Shea presented to the county auditor of Silver Bow county, for allowance for his services, a claim for $500. The auditor refused to allow it. On March 6, upon application of Mr. Shea and as a part of the proceedings in the matter of the accusation, the court made an order which, omitting recital of the action taken by the auditor, reads: “It is hereby ordered and this does order, that the board of county commissioners of Silver Bow county and Gus Stromme, Barney McGrade, Otto Simonson, members of said board, and the county clerk and recorder of Silver Bow county, Montana, .and the county treasurer of Silver Bow county, approve said claim; issue a warrant upon the treasury of said county for the payment of said sum from the funds of the county of Silver Bow, and pay said warrant out of the funds of the treasury of Silver Bow county, in its proper course.” On March 10 the officers
The solution of the question presented requires notice of
In appointing Mr. Shea, the court evidently proceeded under
It results from the foregoing considerations that while Mr. Shea was authorized by his appointment to appear and prosecute the accusation, he appeared in his capacity as attorney, and not in his official capacity as county attorney. This brings
It is contended, however, that though the statute does not provide any compensation, still inasmuch as the services were rendered by Mr. Shea, the county is liable as upon an implied contract to pay what they were reasonably worth. This contention is disposed of, we think, by former decisions of this court. In the early case of Johnston v. Lewis and Clark County, 2 Mont. 159, the question presented was whether an attorney appointed to defend an indigent person accused of crime was entitled to compensation for his services. The statute then in force (Crim. Prac. Act, sec. 196; Codified Stats. 1871-72, p. 220), required the court to appoint attorneys in such cases, but made no provision for their compensation. The court held that though attorneys so appointed must perform the duties assigned them, they could not recover compensation from the county: (1) Because there was no provision of law for their compensation; and (2) because it was a part of their general duties to render services in such cases when required to do so. In a concurring opinion, Mr. Chief Justice Wade said: “The statute provides that it shall be the duty of the court to assign counsel to defendants in certain cases, of which this case is one; and the plaintiff rests his case against the county upon the theory that, when the law requires a service to be performed, the presumption necessarily arises that compensation shall be awarded therefor, and that no service can be required unless payment is provided. This would be a forcible proposition to urge before a legislature whose province it is to make laws, but before a court the law must be taken as it is, and not as it ought
In Sears v. Gallatin County, 20 Mont. 462, 40 L. R. A. 405, 52 Pac. 204, a claim had been presented by plaintiff to the board of commissioners of the county for allowance for services as a member of a posse comitatus. This court held that he could not sustain his claim, quoting with approval the following from State v. Baldwin, 14 S. C. 135: “One who renders service to the state, for which there is no compensation provided by statute cannot, as in the case of services rendered to a private person, raise an implied assumpsit against the state, and for such service he has no legal claim, * * * no claim which can be enforced by law.”
Again, in Wade v. Lewis and Clark County, 24 Mont. 335, 61 Pac. 879, the court had before it the question whether under a statute then in force a county surveyor was entitled to mileage for the distance actually traveled in the discharge of his official duties. The statute provided that: “The county surveyor of each county shall receive as full compensation for the performance of his duties as county surveyor, in connection with the roads and otherwise, the sum of five dollars per day.” The conclusion was that this officer was not entitled to such mileage because the statute did not impose upon the county liability for it.
After the decision in Johnston v. Lewis and Clark County, supra, the legislature enacted a provision under which attorneys appointed to defend indigent defendants in criminal cases might claim and receive compensation, from the county in an amount to be fixed by the court as therein prescribed. (Laws 1881, p. 12.) And a like provision is found in section 9189 of the Revised Codes. As we have already said, there is no provision allowing compensation for services performed in pursuance of an appointment under section 9309, supra. Since this is so, the court cannot charge the county with it. As was aptly said by Chief Justice Wade in Johnston v. Lewis and Clark County, supra: “Money can only be drawn from the county treasury
It may be contended that the state cannot lawfully exact services of an attorney in such cases without compensation. This question we are not required to decide. If it cannot, the attorney is not obliged to perform the services. If he does, he acts with full knowledge that the legislature has made no provision for his compensation, and he cannot demand any.
The district court had no authority to make the order. It is therefore annulled.
Order annulled.