White v. Polk County

Dillon, J.,

dissenting on one point. — I regret that my views of the law do not enable me to concur in the foregoing opinion, so far as it holds the county liable to the plaintiff. His only authority was the following order of the District Court: “August 19th, 1861. And now, on this day, the court appoints S. Y. White, Esq., prosecuting attorney for this term of court, the district attorney, P. Gad Bryan, being absent.” As appears by the account annexed to the plaintiff’s petition, he seeks to recover fees or compensation for various services, such as drawing petitions in scire facias on bonds taken in criminal cases; bringing suit on such bonds; arguing demurrers and motions in criminal cases; taking recognizances and subpoenaing witnesses; trial fees in cases where defendants were convicted; where they pleaded guilty, and where they were acquitted; drawing indictments, &c. In sundry cases where convictions were had, the plaintiff collected the statutory fee allowed to the district attorney, leaving a balance, according to plaintiff’s account, of $262.00. He recovered judgment for $110.00.

4 district attorney. My first proposition is, that the district attorney is, by our constitution and laws, a State and not a county officer. -^-e ^ elected, not by the people of any one county, but by the electors of each judicial dis*419trict. Const., Art. 5, § 3. He receives $800.00 per year for his services, from the State treasury, “ to be audited and paid as the salaries of other State officers ” (Rev., § 380); and also fees for every conviction to be allowed and paid by the county, which shall be taxed to the defendant, collected by the clerk and paid into the county treasury. Rev., §§ 381, 382. Ho provision is made for any other compensation.

Before the new constitution, each county elected its prosecuting attorney, but such is no longer the case. However, it may have been prior to the present constitution, there is no longer any ground to consider the district attorney a county officer.

2. - COmpensation. My deduction from the proposition, that the district attorney is a State and not a county officer, is, that the latter is not liable for his services, except so far as it js ma¿[e so by statute; and the county is made liable only for specified fees on convictions ; not for any other services.

6. — Special prosecutor. The plaintiff was appointed district attorney pro tem and, if he accepted the appointment, he would not be entitled to recover from the county, at the furthest, any other or greater sum than the district attorney could have recovered for the same servicea This amount he received before suit brought; and his verdict as rendered, is for services which, had they been performed by the district attorney (for whom, and in whose place the plaintiff acted), the county would have been under no obligation to pay for. How, or on what principle can the county be under any other or greater obligation to the plaintiff?

The next argument which I urge against the liability of the county, may be briefly stated thus: Counties are public corporations for civil and political purposes. They are-endowed with specified and limited powers. Like other *420'quasi corporations, they can be made liable only for the objects and in the manner provided by statute. There is no safety in any other rule. It is dangerous to allow this salutary principle to be relaxed. Grimes are offenses against the people of the State, not against those of the countysimply. The State furnishes the means and appliances to punish criminals. It provides and pays the judges. It divides with the county a defined portion of the expense; that is, the State pays the district attorney a salary, but the county is required to pay the jurors, and a specified portion of the compensation of the district-attorney, viz.: five dollars for each conviction for a misdemeanor, and ten dollars for each conviction for a felony; and further than this, it is not liable to the district attorney, or to one acting for him and performing his duties under an appointment from the court. Nourse v. Commissioners, 17 Ind., 355.

But it is asked, where is the plaintiff to obtain compensation for his services, if not from the defendant. The State, it is said, and said truly, cannot be sued. It is a sufficient answer to this question, that the law has «oí made the county liable, and therefore the liability does not exist.

I admit that the plaintiff should be compensate?!^ and the failure of the legislature to render either the State or county liable, may be a casus omissus which ought to be remedied; but the remedy must come from the law-making power and not the courts. But why has the plaintiff not a remedy against the district attorney, whose duties he performed. The order of the court appointing the plaintiff, Btates that the district attorney was absent. If absent, this gives the court power to appoint a person to perform his duties pro tempore. The absence creating the necessity for such an appointment, may, in my opinion, well be deemed and treated as an implied request to the court to appoint a suitable person to discharge, for the time being, his duties, and as an implied promise to compensate the person thus *421appointed. “ A previous request may often be inferred, even contrary to the fact, on the ground of legal obligation alone." And certainly, unless detained by sickness, he is under an indisputable legal obligation to be in attendance upon the court. 2 Green!. Ev., § 108. The district attorney, who receives pay from the State for the duties which, owing to his failure or neglect, have to be discharged by the appointee of the court, rather than the county should, in reason and justice, be holden liable. And the adoption or recognition of the rule establishing his personal responsibility in such cases, would stimulate and quicken the indifference which the opposite rule has a tendency to encourage into a more lively regard and solicitous concern for the faithful and conscientious discharge of public and official duties.

But, whether the district attorney would be thus liable or not, it is clear to my mind that the county is not liable; and because the District Court held the contrary, the judgment ought, in my opinion, to be reversed.

LovVjj, J., concurred in the foregoing opinion of Dilloit, J., holding the county not liable to the plaintiff.