Lawrence Lewis.

American and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] online

. (page 30 of 73)
Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 30 of 73)
Font size
QR-code for this ebook

of New York have power to fix or increase the salary of the clerk of a
police court ; more especially if such increase is made in pursuance of an

Digitized by



act of the l^islature, or is subsequently ratified by them. Devoy v.
Mayor, etc., of New York, 39 Barb. (N. Y.) 169.
See Canniff v. The Mayor, etc., of New York, 4 E. D. Smith (N. Y.),


The provision of the constitution of Michigan (Art. 10, Sec 10), that
"the board of supervisors, or, in the county of Wayne, the board of
county auditors, shall have the exclusive power to prescribe and fix the
compensation for all services rendered for and to adjust all claims against
their respective counties, and the sum so fixed or defined shall be subject
to no appeal," does not embrace those cases where charges have been laid
on counties simply as a fair way of apportioning the public debt, and where
no benefit accrues to them in their corporate capacity. Where the law
has, in such cases, pointed out any other mode of adjustment or r^;ulation
of salaries or compensation than that by the county boards, the latter
have no right to review, but must allow and pay them as thus adjusted.
People V, Auditor of Wayne Co. 13 Mich. 233.

The legislative powers of council under, as in fixing the compensation
of city ofl&cers, must be exercised by ordinance, when such fixing is in-
tended to be permanent. Compensation of a city officer, fixed only by
such a resolution of the council a year previous to the appointment of the
officer, was not paid. He brought suit therefor, and it was held that the
officer could not recover. City of Central v. Sears, 2 Colo. 588.

A salary of an office which is fixed at a monthly rate becomes due and
payable monthly. Carroll v. Siebenthaler, 37 Cal. 193.

And any peculiar method provided for compensating employee controls.
Baker v, Utica, 19 N. Y. 326; Cumming v. Mayor, 11 Paige Ch. (N. Y.)

Forfeiture of Salary. An officer may forfeit his salary, as by being^
removed or suspended from office for misconduct. Steubenville v. Culp,
38 Ohio St. 18. See Mayor v, Fahm, 60 Ga. 109; and Reilly t'. Mayor,
48 N. Y. Superior Ct. 274. But the acceptance by an officer of less fees
than he was entitled to, does not waive or forfeit his right to the balance.
People V, Auditors, 41 Mich. 4.

A board of commissioners, however, cannot punish a subordinate by
withholding a month's pay from him, although they had power to make
regulations for his conduct and annex $50 penalty for their breach.
Tyng V, Boston, 133 Mass. 372. See also Murphy z/. Webster, 131 Mass.

The discharge of a policeman for seduction forfeits his salary for the
balance of his term. Queen v, Atlanta, 59 Ga. 319. But the compulsory
suspension of an officer by hil superior, without cause and without his
consent, is no defence to an action by him for his salary during the sus-
pension. Alker v. New York, 27 Hun. (N. Y.) 413.

Action for Compensation. — An ordinary action at law lies to re-
cover payment of compensation earned by municipal officer, although
mandamus is also a proper remedy to compel payment thereof. Page *'•
Harden, 8 B. Mon. (Ky.)65o; Mc Bride v. Grand Rapids, 47 Mich. 236.

Digitized by


JOHNSON et al. V. whiteside county. 281

Suit for fees wrongfully obtained lies even after the expiration of the term.
Hunter v. Chandler, 45 Mo. 452.

Equity will also restrain the payment of an officer's salary pending a
contest for the office. Col ton v. Price, 50 Ala. 425. The officer is of
course a necessary party to such a suit. Butchef v, Camden, 29 N. J. Eq.
478. But see People v. Smyth, 28 Cal. 21.

Johnson et al.


Whiteside County.

(no Illinois, 221.)

An attorney at law appointed by the court to defend one on a trial of an
indictment, who does defend, is not entitled to recover of the county in
which the trial was had any compensation for his services. An attorney
takes his license with its burdens, among which is, to defend persons
charged with crime when required by the court.

Section 422 of the Criminal Code, making it the duty of the court to
assign counsel to a person charged with crime when he is unable to em-
ploy one, conferred no new power, nor did it impose any additional duty.
It but formulated the common law already in force.

Writ of Error to the Appellate Court for the Second
District ; — heard in that court on writ of error to the Circuit
Court of Whiteside county; — the Hon. John V, Eustace,
Judge, presiding.

C. C. Johnson for the plaintiffs in error.

Walter Stager for the defendant in error.

Walker, J. — At the August term, 1882, of the Whiteside
circuit court, seven indictments were returned against four
persons for forgery. The accused were unable to facts.

employ counsel, and plaintiffs in error were, without their
consent, appointed by the court to make their defence. The
case against two of the accused was tried, plaintiffs in error
appearing for them, and they were convicted, and the others
pleaded guilty, and all were sentenced to the penitentiary.
The judge who appointed plaintiffs in error to defend, gave
them a writing requesting the board of supervisors to allow
and pay them $100, as compensation for such service. The

Digitized by




board refused to make the allowance, and plaintiffs sued the
county. On the trial of the case in the circuit court, judg-
ment was rendered in favor of the tounty. The case was re-
moved to the Appelate Court for the Second District. The
judgment of the circuit court was affirmed, and the case is
brought to this court, and a reversal is urged.

The only question presented by this record is, whether the
Jjj»^^ {» county is liable for compensation to attorneys ap-
pointed by the court to defend persons indicted for
crime, and who are unable to employ counsel for
their defence. Under the ancient common law, persons ac-
cused of treason or felony were not permitted to defend,
under the plea of not guilty, by counsel. The practice was,
not to permit counsel to be heard on questions of fact, but the
court would assign counsel to discuss questions of law arising
on or after the trial. In such cases the prisoner proposed the
point, and if the court supposed it would bear discussion, it
assigned him counsel to argue it. (2 Hawkins' Pleas of the
Crown, chap. 39, sec. 4, p. 555 ; i Chitty on Crim. Law, 407.)
Thus it appears that at the common law the court exercised
the power of assigning counsel to argue legal questions, and
it seems counsel could only appear for that purpose after
being assigned by the court The Bill of Rights (or article
8, section 9,) of the constitution of 181 8, provided, " that in all
criminal prosecutions the accused hath a right to be heard by
himself and counsel," and the constitution of the United States
contains a similar provision regulating the practice in the
Federal courts. This constitutional provision is retained in
the present organic law, and modified the rigor of the com-
mon law by extending the privilege of the accused to be
heard by counsel on both the facts and the law ; but it still
left the common law in force as to the power of the court to
assign counsel, and is the present chapter 28 of the Revised
Statutes of 1874, which has been in force since September 17,
1807. This State was then a part of Indiana Territory, the
legislature of which adopted the provisions of chapter 28,
adopting the common law in substantially the same language
of the present law. In 1809 ^^ Governor and judges of the
Illinois Territory adopted the laws of Indiana, so far as thej
were not local to that territory. That law appears in Pope's

Digitized by




JOHNSON et aL v. Whiteside county. 283

Revision of 181 5. The State legislature, in 18 19, re-enacted
the law as it now stands, and it has so remained ever since.

Thus it is seen, under the common law, and the 9th section
of article 8 cf the constitution of 18 18, the courts ^^^^^^^^^


had the power, and it was their duty, to assign
counsel to defend persons charged with crime who
were unable to employ counsel, and such has ever been the
practice in this State. Nor has the power ever been ques-
tioned. Our criminal codes, from the earliest period of legis-
lative history, have provided that trials for criminal offences
shall be according to the course of the common law, except
as otherwise provided. It then follows, that it was by ex-
press enactment that the common law should be in force as to
this power, and was as binding as is the 422d section of the
act of 1874, Rev. Stat page 410. That section conferred no
new power, nor did it impose any additional duty. It but
formulated the common law then in force. It left the law in
all respects as it was previously under the common law.

Under the common law, this court, in the case of Vise v.
Hamilton County, 19 111. 78, held that when an attorney was
thus assigned to defend a pauper prisoner, there was no law
which rendered the county liable to compensate the attorney
for his services. It was there said the county was not a party
to the prosecution, and had no power to control the matter,
nor did the county employ the attorney to perform the ser-
vices ; that the prosecution was carried on " in the name and
by the authority of the People of the State of Illinois," and
with it the county had no concern or power of interference,
and was under no obligation to furnish counsel for the ac-
cused. It was further said: "The law confers on licensed
attorneys rights and privileges, and with them imposes duties
and obligations which must be reciprocally enjoyed and per-
formed. The plaintiffs but performed an official duty, for
which no compensation is provided. Edgar County v. Mayo,
3 Gilm. 82." That case is conclusive of this.

It, however, seems to be supposed that because the legisla-
ture has declared, in terms, the duty previously comrrr hot u-
imposed by the common law, there is a change of Ittowobtb.*^^
legislative intention, and that we must infer it was intended
to render the county liable. We are wholly unable to see
such a purpose. Substantially there was no change in the

Digitized by


284 JOHNSON et aL v, Whiteside county.

law. Counties are only liable for the expense of apprehend-
ing, keeping and prosecuting persons accused of crime, by
force of statute, or the common law as adopted by the
statute. There is no statute or rule of the common law that
imposes the duty of paying attorney's fees for defending
paupers from criminal accusations, and the courts have no
power to enact laws authorizing counties to levy taxes for
such purposes. The taxing power is a legislative, and not a
judicial, function, and it would be a palpable violation of the
constitution for the courts to usurp the power. The courts,
no doubt, have the power, in proper cases, to compel counties
to exercise the taxing power, where it has been conferred on
them by the legislature ; but they are destitute of power to
compel them to levy and collect a tax not authorized by the
statute. PlaintiflFs in error are presumed to have known,
when they applied for a license, that the oflSce was burthened
with this duty, and they must be held to have accepted the
place subject to the burthen. The legislature had the power,
in conferring such privileges, to impose duties and obliga-
tions such as it might choose. Plaintiffs in error voluntarily
accepted the privileges with this obligation, and they must be
held to its performance. This being so, there is no pretense
that the law deprives them of their property or labor with-
out compensation. They received a compensation in the
privileges conferred by their licenses.

This doctrine is announced in the cases of Wayne County
V, Waller, 90 Pa. St. 99, and Rowe v. Yuba County, 17 Cal.
61. We are aware that in Iowa, Indiana, and Wisconsin the
courts have reached a different conclusion ; but we are not
disposed to overrule our former decision. To do so would
not produce harmony in the decisions. Moreover, we are
satisfied that we have announced the true rule in Vise v,
Hamilton County, supra. If a correction is required it is at
the hands of the legislature, and when that body sees proper
it will afford the remedy.

Perceiving no error in the record, the judgment of the Ap-
pellate Court is aflSrmed,

Judgment affirmed.

Compensation of Counsel Assigned to the Defence of Paij-
PERS Charged with Crime.— There is a conflict of authority as to the

Digitized by


JOHNSON et al. V. whiteside county. 285

right of counsel appohited by the court to defend paupers charged with
crime, to recover compensation for their services from the county. It was
held in Vise v. County of Hamilton, 19 111. 78 ; Wayne County ^r. Waller.
90 Pa. St. 99 ; and Rowe v, Yuba County, 17 Cal. 61, that they could not.
In Carpenter v. County of Dane, 9 Wis. 274 ; Webb v. Baird, 6 Ind. 13 ;
Hall V. Washington, 2 Greene (Iowa), 473, it was held that they could.

That the court has the right to compel counsel to appear in defence
of persons charged with crime who are unable to retain counsel on their
own behalf, seems to be generally conceded. Carpenter v. Dane County, 9
Wis. 274; County of Dane v. Smith, 13 Wis. 585; Wayne County v.
Waller, 90 Pa. St. 99 ; White v. Polk County. 17 Iowa, 413 ; Hall v, Wash-
ington, 2 Greene (Iowa), 473 ; Rowe v. Yuba County, 17 Cal. 61 ; Vise v.
(^unty of Hamilton. 19 111. 78 ; Regina v. Fogarty, 5 Cox Cr. Cas. 161.
Indeed, this right would seem to be a natural consequence of the position
of counsel as officers of the court ; Bacon Abr. " Attorney," prefatory re-
marks ; 3 Blk. Comm. 26 ; and Vise v, Hamilton County ; Wayne County v.
Waller ; Rowe v. Yuber County, all supra. It has even been intimated
that a constitutional provision, that the accused shall have the right to be
heard by counsel, imposes upon the court the duty of appointing counsel
where the accused is too poor to employ them. Carpenter v. Dane
County. 9 Wis. 274; Wayne (^unty v. Waller, 90 Pa. St. 99*

The court of Indiana appear to deny the right of the court to compel
counsel to defend. They say that the State statutes have rendered coun-
sel no longer officers of. or part of, the court. They hold, however, that
the court has authority to employ counsel to defend pauper criminals, act-
ing in so doing as agents of the county. Webb v, Baird, supra.

Admitting the right of the court to compel counsel to appear in defence
of persons charged with crime, it is difficult to see how any liability on
the part of the county to pay for the services of counsel so defending in
obedience to the order of the court, can arise. It may be urged that, al-
though the court has this right, it can only exercise it on reasonable pro-
vision for compensation of counsel thus appointed being made. Con-
ceding this to be true where the accused has the means for making
such provision, it is obvious that where he has not, the court cannot it-
self make it. The court has no funds with which to pay lawyers ; the only
way it can provide for their being paid, is by contract binding on the
county. In the absence of special statutory authority, it cannot bind the
county by contract. Wayne County v. Waller, 90 Pa. St. 99 ; Dane v.
Smith, 13 Wis. 585 ; see also principal case.

To maintain, then, that the court has in no case authority to compel
counsel to defend unless a reasonable compensation for their services is^
provided for, is to deny that the court has authority to compel them to
defend paupers charged with crime — practically the only case where the
right to compel counsel to defend is ever exercised.

Admitting that the court has the right to compel counsel to appear in
defence of paupers charged with crime, and that the court has no author-
ity to bind the county by contract, it seems illogical to hold that the per-
formance of services in defending the accused in obedience to the order

Digitized by


286 JOHNSON et al. v. whiteside couNty.

of the court can give rise to any implied obligation on Ae part of the
county. Yet this fallacy appears to have been fallen into by the Wiscon-
sin court in the case of Dane v. Smith, 13 Wis. 585. At p. 587 the court
' say : " Having established that the courts had the power to make the ap-
pointment and order the services, it follows as a necessary l^;al conse-
quence that the person appointed and who rendered them was entitled to
a just compensation. This was of course to come from the county, that
being the municipality to which, under our system, all such expenses are
chargeable. The liability of the county, therefore, results from the exist-
ence and exercise of the power : not perhaps because the court is author-
ized to contract for the county or its officers ; for, strictly speaking, it has
no such power ; but because the law, which gave the power to order, im-
plied the promise to pay. This is agreeable to the general doctrine that
whoever knowingly receives or assents to the services of another, which
are of value and contribute to his benefit, impliedly undertake to pay such
sum as the services are reasonably worth."

The Indiana court deny the right of the court to compel counsel to ap-
pear in defence of paupers ; they base their decision in part on a clause in
the State constitution providing " that no man's particular services shall
be demanded without just compensation." Webb v. Baird. 6 Ind. 13.

In conflict with the views expressed in the above note, is the following
opinion of an eminent American text-writer : " Can counsel thus assigned
sustain an action against the county for their fees ? The first impression
is in the n^^tive. Counsel are officers of the court, and are obliged as
such to render to the court any services that may be necessary to the
maintenance of public justice. Counsel, with the emoluments must take
the burdens of their profession. Among the burdens is the gratuitous
defence of the poor; and the remuneration for this, in those cases in
which no remuneration can be had from the State, must be found, it
is urged, in the general income of a profession of which such service
is one of the incidents, as well as in the consciousness of duty per-
formed. For these and other reasons, it has been held that counsel
cannot recover from the county commissioners compensation for such
services. Yet a more careful examination teaches us that this view
is not consistent either with English precedent or sound public pol-
icy. Counsel for the defence are as essential to the due examina-
tion of the case as are counsel for the prosecution ; and to have the
services of the one unremunerated is as impolitic as it would be to
have the services of the other unremunerated. If the State pays to
convict its guilty subjects, it should pay also to acquit such as are
innocent." 3 Wharton Crim. Law (7th ed., 1874), § 3006.

Digitized by






[Advance Case, Calif omia, August 18, 1885.)

The statute requiring that the board of supervisors shall audit claims
against the county and order them paid before a valid warrant can issue,
Aeld, in a petition for a writ of mandamus, that an averment that the
board of supervisors audited and allowed said claim of plaintiff* and or-
dered the auditor of said county to draw a warrant on defendant, as coun-
ty treasurer, for the same, was sufficient without an express averment that
said claim was ordered paid by said board of supervisors.

The official position of a district attorney of a county would render any
contract made between him and the county supervisors providing for
compensation for work falling within the scope of his official duties, in
addition to his regular salary, absolutely void. But a contract on the part
of the county to retain a district attorney to attend to county litigation in
another county, after his term of office has expired, is valid and binding on
the county where such contract was entered into in good faith on both

Commissioners' decision.

Department i. Appeal from superior court, county of
John H. Gray for appellant.
T. B. Reardon & Son for respondent.

Foote, C. — The plaintiff brought a petition for a writ of
mandate in the superior court of Butte county, facts.

against the defendant, as treasurer of that county, the object
being to compel the treasurer to pay a warrant issued to the
plaintiff previously by the auditor of the said county. In
referring to the action of the board of supervisors of said
county, in his petition the plaintiff, among other things, avers :

" That at the said December session of said board of super-
visors the said board audited and allowed said claim of plain-
tiff in the sum of $500, and ordered the auditor of Butte
county to draw a warrant in favor of plaintiff on the defend-
ant, as treasurer of said county, for said sum of $500.*'

This petition was demurred to and answered at the same
time. The grounds of demurrer were " that the petition did

Digitized by



not State facts sufficient to authorize the court to grant the
writ of mandate, or to give any relief." The demurrer was
overruled. A trial on the merits was then had of the case bj
the court, a jury being waived. The judgment of the court
was to order a peremptory writ of mandate as prayed for,
and for costs against the defendant. A new trial was moved
for and denied. On this motion a statement was agreed upon
in open court, and by a stipulation it was afterwards agreed
that it should be the statement upon appeal. From the
judgment of the court, and its order denying the motion for
a new trial, an appeal was taken.

The only ground relied on in argument by the appellant
to reverse the court below in its ruling on the demurrer is
that the complaint did not set out, in reference to the claim
of plaintiff, " it was ordered paid," in the very language of
the statute. The complaint recited that the board of super-
visors of Butte county " audited and allowed said claim of
plaintifi in the sum of $500, and ordered the auditor of Butte
county to draw a warrant in favor of plaintiflf on the defend-
ant, as treasurer of said county, for said sum of $500."

It further alleged " that on the twelfth day of December,
1884, the auditor of said county of Butte, in pursuance to
said order of the said board of supervisors of said county,
issued, drew, and delivered to plaintiflf a warrant for said sum
of $500."

The allegations in the complaint thus demurred to were,
we think, entirely full and sufficient A similar complaint to
the one under discussion was held to be good by this court
in the case of Connor v. Morris, 23 Cal. 451.

Upon the trial of the case at bar it was stipulated by coun-
sel in open court that the only questions and issues to be sub-
mitted to the court were: (i) Is the petitioner the party
beneficially interested, and owner of the warrant set forth in
the petition ? (2) Has the warrant set forth in the petition
been duly presented to the defendant for payment, and pay-
ment demanded thereof, and payment refused? (3) Has
plamtiff (petitioner) suffered any damage by reason of the
refusal of defendant to pay the warrant set out in the petition?
(4) Is the warrant set forth in the petition founded on a legal
claim against the county of Butte ?

The court found that the warrant was the property of the

Digitized by



petitioner; that it was duly presented to and refused pay-
ment by the defendant ; and, by reason of such refusal to pay
it, no damage had resulted to the plaintiff.

Upon the first three propositions there can be no doubt of

the correctness of the findings, and this is so plain

that discussion of them is needless. It is strenu- wiS"*o55)^lS
ously argued by the appellant that the board of **^'^'**^^
supervisors of Butte county never ordered the claim of the
petitioner to be paid ; but in his answer to the petition he
did not deny the allegations of the complaint upon that, point ;
hence those allegations are, by the pleadings, admitted to be
true. It being thus virtually admitted by the pleadings that
the question raised by the appellant, above alluded to, is with,
out the issues to be tried, and that, too, by the act of the de-
fendant, he cannot be heard to complain here. The appel-

Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 30 of 73)