Wayne County v. Waller , 90 Pa. 99 ( 1879 )

Mr. Justice Sterrett

delivered the opinion of the court,

This contention arises upon the facts submitted to the court below in the nature of a case stated. The plaintiffs below, attorneys at law, were appointed by the Court of Oyer and Terminer to defend a woman who was indicted for murder. On her petition, the court first recommended and subsequently ordered the payment by the county of $150 to enable her to secure the attendance of witnesses and prepare for trial. The commissioners of the county refused to comply with the request or to obey the peremptory order, claiming that the court had no authority to make it, and that if they acquiesced, they would render themselves personally responsible to the county for the amount so paid. The facts, as fully set forth in the case stated, were presented to the court in the following terms, viz.:—

“ If the court shall be of opinion that it was the duty of the county of Wayne, under the direction of the court, to furnish necessary means to enable the counsel assigned by the court to properly investigate the case, and prepare the defence of Mrs. Van Alstine, it is agreed that such necessary expense actually incurred was $150, and the court shall direct judgment in favor of the plaintiffs against the defendant for that sum.”

“ If the court shall be of the opinion that the counsel, undertaking and conducting, under assignment by the court, the defence of Mrs. Van Alstine, indicted for murder by poisoning, are entitled to compensation from the county for services so rendered, they shall receive the sum of $200, and the court shall direct judgment for the plaintiffs against the defendant for that sum, in addition to the sum of $150 for expenses above stated.”

“ If the court shall be of opinion that the county is not liable to pay, either for the expense incurred or services rendered by counsel in the preparation and conduct of the defence of Mrs. Van Alstine, then judgment to be awarded to the defendant. Either party to have the right to sue out a writ of error.”

The learned judge held that the county was liable for both sums, and entered judgment accordingly; and this is assigned for error.

By the common law, no costs are paid out of the public treasury. In the County of Franklin v. Conrad, 12 Casey 317, it is said the recovery and payment of costs, in criminal cases, are so entirely dependent on statutory regulations in Pennsylvania that it is indispensable for every claimant to be able to point to the statute which entitles him to receive what he claims. We are not aware of any law, common or statute, that requires the county to pay a defendant’s costs in a criminal case, or authorizes the court to call upon the county to advance money to be expended by a prisoner or his counsel in subpoenaing witnesses and otherwise preparing for trial. The claim of the plaintiffs below derives no additional strength whatever from the fact that the court first requested and afterwards commanded the commissioners to pay the money. No authority can be found for either a request or peremptory order in such case. If the county commissioners had drawn a warrant for the amount ordered by the court, they would have rendered themselves personally liable for the same, as in the case of The Commissioners v. The County of Lycoming, 10 Wright 496.

The 9th section of the Declaration of Rights gives to the accused, in all criminal prosecutions, the right “ to have compulsory process for obtaining witnesses in his behalf.” The practice which has obtained, and, so far as we know, is recognised in every criminal court, of awarding process and directing the service thereof, at the instance of parties accused of crime, rests upon this sufficient foundation; and no court will turn a deaf ear to the appeal of an impecunious prisoner, who makes timely application for process to bring in his witnesses. It will always be awarded on proper application ; the court will see that it is served, and compel the attendance of witnesses. As to the compensation of the clerk who issues, and the officer who serves, the process, and the witnesses who obey it, that is another matter. They, cannot be paid out of the public treasury, unless statutory warrant can be found for so doing. In many cases this may be a great hardship, but the remedy, if any id needed, rests with the legislature, not in the courts. As to the officers, such service must be regarded as an incident of official position. They take and hold office cum onere. The hardship is greatest on witnesses, especially such as are too poor to pay their expenses while attending court, in obedience to its process, on behalf of an insolvent prisoner. Until otherwise provided for, it must be set to the account of that service which every one at times owes to the government under which he lives and whose protection he enjoys. In Huntingdon County v. The Commonwealth, 22 P. F. Smith 80, Chief Justice Thompson, speaking of the hardship referred to, expresses regret that suitable legislative provision for such cases does not exist.

It is very clear to us that the county was neither bound to furnish money nor reimburse the defendants in error for the amount expended by them in behalf of the prisoner; and we think it is equally manifest that it was under no legal obligation to compensate them for their professional services. They were officers of the court, and, like others, took their offices cum onere. , One of these burthens, which custom has recognised, is the gratuitous service rendered to a poor prisoner, at the suggestion of the court. There are, however, some respectable authorities sustaining, on plausible grounds, the opposite view: Hall v. Washington County, 2 Green 473; County of Dane v. Smith, 13 Wis. 585. In the first of these, it was held, in an opinion delivered by Chief Justice Williams, that inasmuch as the constitution of Iowa guaranteed to the prisoner a speedy trial and “the assistance of counsel for his defence,” and as the court acted in obedience to the express mandate of a statute in assigning counsel, and the latter, as an officer of the court, was bound to serve, an obligation arose to pay a reasonable compensation for the service thus rendered, and consequently the county was liable. In the other case, a somewhat similar view was taken, the court remarking that the liability of the county resulted from the exercise of the power and duty of the court to appoint counsel, not because the court was authorized to contract for the county or its officers. In other states it has been decided differently. In Rowe v. Yuba County, 17 Cal. 61, Chief Justice Field says: “We are clear that the action cannot be main-tamed. The Court of Quarter Sessions is not authorized to create any charge against the county, except in certain special cases of which the employment of counsel for parties under indictment is not one. Besides, it is a part of the general duty of counsel to render their professional services to persons accused of crime, who are destitute of means, upon the appointment of the court, when not inconsistent with their obligations to others, and for compensation they must trust to the future ability of the parties. Counsel are not considered at liberty to reject, under circumstances of this character, the cause of the defenceless, because no provision for their compensation is made by law.” . To the same effect is Vise et al. v. The County of Hamilton, 19 Ill. 78, in which it is said: “The law confers on licensed attorneys rights and privileges, and with them imposes duties and obligations, which must be reciprocally enjoyed and performed. The plaintiffs but performed an official duty for which no compensation is provided.”

While there is some force in the reasoning of the Iowa and Wisconsin courts, we adhere to the opposite view as according better with a practice which has been almost universal and of such long standing as to have acquired the force of law. In this state we have always proceeded on the safe principle of requiring statutory authority, either in express terms or by necessary implication, for all such claims upon the public treasury. To hold that counsel, appointed to defend insolvent prisoners, may demand compensation from the county, would be a departure from a time-honored custom to the contrary, and it is not difficult to foresee the mischief to which it would lead. It is far better to let such cases rest on the foundation which has hitherto sustained them: human sympathy and a just sense of professional obligation. No poverty-stricken prisoner is ever likely to suffer for want of necessary professional or pecuniary aid.

It is but simple justice to the learned gentlemen who defend against this writ, to say, that in their brief, as well as orally, they disclaimed any desire for remuneration beyond an amount sufficient to reimburse them for their actual cash outlay; but we find no warrant for sustaining their claim even to this extent.

The judgment of the Common Pleas is reversed and set aside, and judgment is now entered in favor of the defendant and against the plaintiffs below.