
    Hilton CARR and Honorable Paul Baker, Judge, Criminal Court of Record in and for Dade County, Florida, Petitioners, v. DADE COUNTY, a political subdivision of the State of Florida, Respondent.
    No. 39514.
    Supreme Court of Florida.
    July 12, 1971.
    
      Herbert A. Warren, Jr., of Carr & Warren, Miami, for petitioners.
    Thomas C. Britton, County Atty., and Joseph D. Kennedy, Asst. County Atty., for respondent.
   DEKLE, Justice.

This cause comes to us as a question of great public interest duly certified by the Third District Court of Appeal under Fla. Const, art. V, § 4(2) (1968), F.S.A.

A Criminal Court of Record Judge for Dade County awarded a fee to an attorney whom he had appointed to prosecute two cases which the state attorney could not do because of possible prejudice to defendants. There is no challenge to the propriety of the appointment, or to the performance of services rendered by the appointed attorney, who is a petitioner here. The question raised is the authority of the Judge to order Dade County to pay the fee which the court set. The Third District Court of Appeal said in its able opinion that the Judge could not, and we agree. However, a reasonable fee must be paid by the County under Fla.Stat. § 142.09, F.S. A., just as the costs of the prosecutions must be paid by the County, the payment of the latter having been affirmed by the district court. The provision for compensation in Fla.Stat. § 32.17, F.S.A., cited in the DCA opinion does not apply under the different circumstances here.

Section 142.09 is applicable here under its first provision that: “If the defendant is not convicted, * * * the fees of witnesses and officers [and the prosecuting attorney is obviously an officer in the prosecution of the two causes] arising from criminal causes shall be paid by the county in the manner specified in §§ 142.-10-142.12.” (Emphasis supplied) It is the County’s prerogative to determine what a reasonable fee should be, and among its considerations may be the fee recommended by the trial judge as well as all other appropriate factors, including the consideration that “the laborer is worthy of his hire.”

Since §§ 142.10-142.12 have not been invoked in this litigation, the cause is remanded for appropriate proceedings thereunder. Should the County reject any part of the fee submitted by petitioner, then of course the provisions of § 142.13 could be activated by suit against the County.

We accordingly modify the holding and opinion of the District Court of Appeal in the respects herein indicated and otherwise approve, so the writ of certiorari is granted in part and denied in part.

It is so ordered.

ROBERTS, C. J., and ERVIN, ADKINS and BOYD, JJ., concur.

DREW (Retired) J., dissents with opinion.

HODGES, Circuit Judge, dissents with opinion.

DREW, Justice, Retired

(dissenting).

The Legislature, in enacting Section 32.-17 F.S.A., not only vested in the judge the power to appoint an acting prosecutor in certain designated instances but provided the manner in which he was to be compensated. It also made it clear that it was only with the consent of the person designated that such appointment could be made. These conditions were known by Mr. Carr when he accepted this appointment. The method of compensating is a cumbersome one. And, I recognize the fact that the amount that he would be ultimately paid would probably be inconsequential. Attorneys are officers of the courts, however, and since the earliest days have been expected to, and have, rendered many services without any expectation of compensation or for only token compensation. For decades the lawyers of this State represented indigents charged with capital offenses for the statutory fee of $50.00 and so far as my research reveals, the books do not record any instance of a refusal to accept such an appointment. Surely the responsibility of defending one charged with such an offense is as great or greater than the duties and responsibilities of the prosecution. I am in complete accord with the thought that this is an area in which legislation is needed but our duty is to interpret the law as we find it— not to try to remedy what is obviously a cumbersome statute. I am convinced, however, that the Legislature, in enacting a new statute, would prescribe the amount of allowable fees or place definite safeguards in the amount which could be allowed, as they have done for those appointed by the court to defend an indigent in Chapter 70-339, Acts of 1970, supra note 1.

The constitutional power and responsibility of providing compensation for state or county officers — action involving the appropriation of public funds — is one peculiarly and exclusively in the legislative branch of government. When that branch acts, the question of the inherent power of courts to appoint acting prosecuting officers where essential to the proper functioning of the court referred to in passing in Kirk v. Baker, 224 So.2d 311 (Fla.1969) is not in any way involved.

The reliance by the majority on the quoted sections of Chapter 142 F.S.A. is clearly misplaced. These statutes are remnants of statutes enacted in the days when most, if not all, county officers were primarily compensated by fees. For example, Section 5987 R.G.S. 1920, fixed the salary of the county prosecutor at $400 per year “and $5.00 for each conviction.” Sheriffs, circuit clerks, tax assessors and collectors and many other officials were also paid primarily by fees prescribed by law which they retained. When these statutes refer to “fees of officers” they clearly have reference to the fees fixed by law for particular services of such officers as sheriffs, prosecutors, etc. These fees were a matter of simple calculation. They were assessed as were other prescribed costs, and were properly considered as such, and are so treated in the statute. Periodically, in those instances where the fees were to be paid by the county instead of by the defendant, taxpayer or other person receiving the service, the county officer presented a fee bill to the Board of County Commissioners for approval — and that is what these statutes regulate. They are not even remotely germane to the question presented in this case.

This cumbersome law presents no major problem in the administration of justice in this State. It should be rarely necessary to appoint special prosecutors in this era. Our statutes make suitable provision for transferring regularly appointed prosecutors from other areas where the occasion should arise in which the local official is disqualified or unable to act and this should ordinarily be the method used.

For these reasons I respectfully dissent.

HODGES, Circuit Judge

(dissenting).

I must respectfully dissent because the compact majority opinion, I am convinced, sacrifices practicality and desideratum for conciseness and substitutes a doubtful administrative solution for sound judicial pronouncement.

After tersely ruling that the fees of petitioner “shall be paid” by the County Commissioners, as specified in Sections 142.10 and 142.12, F.S.A., the opinion holds that a rejection by the commissioners “of any part of the fee” may activate a suit by the petitioner against the county under Section 142.13, F.S.A. (Italics added)

First of all, no practical or legal fulfillment appears to be accomplished by providing for additional litigation to afford judicial determination by some other courl on the allowance and amount of the petitioner’s fee where the allowance and reasonableness of the fee have already been determined by the court for which the services were performed.

Secondly, it appears to be universally accepted that courts should and do have inherent power to do all things reasonably necessary for the administration of justice within the scope of their jurisdictions to function properly as courts.

The administration of criminal justice could not' proceed effectively absent the power of the court to appoint counsel, and the function of the court, in our advanced times, would be frustrated if the right to provide reasonable compensation for such counsel were subjected to the varying desires of political governing boards, even though all might attempt to scrupulously follow the criteria, including that in Luke 10:07, suggested in the majority opinion.

One cannot overlook the genuine persuasion of the minority holdings of our American courts which postulate reasoning implicit in the effective administration of law by the courts in adopting the theory that where a court has legal authority to appoint counsel to perform services, the existence and exercise of the power of appointment necessarily include a further and inherent and incidental power to allow such counsel reasonable compensation for services rendered under the appointment. To say that a court has power to name and-authorize an attorney to prosecute a criminal case before the court and at the same time destroy or ignore the implied power to order that he be reasonably compensated for his services now seems to be illogical and unsound.

That portion of the thoughtful dissenting opinion in this case which points up the historical fact that the quoted sections of Chapter 142, F.S.A., have no bearing here should not be contradicted. But with full recognition of and deference to the prominence of Mr. Justice Drew’s well deserved judicial status, I believe his conclusion that the fees involved are not allowable in the absence of specific statutory authority is perhaps pinned, by analogy, to the view held by a numerical majority of courts in the nation that attorneys’ fees for indigent defendants are not so allowable. This view is, in the opinion of many authorities, anachronous and should be discarded as an outworn idea belonging to another era. It does not appear to be congenial with our contemporary institutions and conceptions of equality and criminal justice.

Mr. Justice Drew’s observation that this case presents an area in which legislation is badly needed cannot be gainsaid and a more commodious majority opinion could be written, even though some dicta might be required, placing the other branches of government and the legislature on the qui vive for gaps that might be filled by thoughtful legislation in regard to some of the related questions posed in this case. It is presumed that all trial courts would follow the obiter of this court in default of precise constraint.

For instance, the expense of the defense of indigents, which is burgeoning in all directions, is an insistent problem which should be submitted to serious legislative attention. Opportunity should be afforded to determine where the growing burden will fall under existing statutes and those which may come later with the demand for public assistance to defendants in minor offenses, juvenile delinquency and other matters. In the area of post-conviction proceedings alone, under Rule 1.850, Florida Rules of Criminal Procedure, 33 F.S.A., the costs and expenses in our metropolitan counties are approaching large proportions. Presently no specific authority or direction, by statute or rule, exists for the payment of these costs and expenses, including attorneys’ fees, although in some instances public defenders are rendering services for the defendant in such proceedings. In the others, the courts are presently ordering payment under the inherent power theory acknowledged in this dissent.

It appears that there is ample legislative and constitutional authority to support a holding that the fees in this case be paid from the county fine and forfeiture fund.

I would suggest, therefore, that the Criminal Court of Dade County, having the requisite power and authority to appoint an acting state attorney to prosecute cases before it, also had jurisdiction and lawful authority, under the facts of this case and existing general statutory and constitutional provisions to order that the costs of said cases, including prosecuting counsel fees, be paid by Dade County from its fine and forfeiture fund. 
      
      . Kirk v. Baker, 224 So.2d 311 (Fla.1969).
     
      
      . Dade County v. Carr, 231 So.2d 844 (3d DCA Fla.1970).
     
      
      . Fla.Const. art. XVI, § 9, of 1885 (still valid as a “statute” under the “savings clause” of Fla.Const. art. XII, § 10, of 1968) similarly provides that “the legal costs and expenses, including the fees of officers, shall be paid by the counties * * * ” in cases where the defendant “is insolvent or discharged.” Fla.Stat. § 142.09 et seq. is simply appropriate legislation under this provision. Payments are to be paid out of the fine and forfeiture fund which is created for this purpose, as provided in these sections.
     
      
      . If defendants had been convicted, the fee would have been payable by the defendants under § 939.01 or by the County under § 142.09 if defendants were insolvent.
     
      
      . LUKE 10:07 (cited in I Timothy 5:18).
     
      
      . See R.G.S. 1920, See. 6070 — raised to $100 in 1939 and to $750 in 1970 by See. 70, Ch. 70-339, Acts 1970.
     
      
      . The “inherent power” discussion there involved solely the power to appoint — • not provide compensation for- — such an officer.
     