
    SUPREME COURT.
    The People ex rel. Oscar J. Brown agt. The Board of Supervisors of the County of Onondaga.
    
      •Oriminal Practice — Code of Griminal Procedure, section 308 — 2 here is no provision for pay of assigned counsel by the public — Such services not a county charge.
    
    'Where the court assigns counsel to defend a prisoner, the counsel’s claim for his services is not a legal charge against the county.
    The defense of poor prisoners, upon assignment by the court, is one of the duties contemplated by the lawyer’s oath of office, which he impliedly assumes in accepting the privilege of practicing iaw.
    .A claim for services rendered by an assigned counsel, is not a charge against the county, because there is no statute directing or authorizing the court to assign counsel to defend prisoners, or providing any compensation or prescribing any mode of payment for such service.
    :Seetion 308 of the Code of Criminal Procedure, has not changed the law in this respect.
    
      Onondaga Special Term,
    
    
      December, 1885.
    On the 8d of February, 1885, Oscar J. Brown, the relator, an -attorney and counsellor-at-law, was assigned by the court of •oyer and terminer, then sitting in Onondaga county, to defend one Antonio Rego, who had been indicted at the same term for the crime of murder in the first degree. The relator began at •once to prepare the case for trial, and devoted, substantially, twenty days to that work. Peculiar difficulties attended such preparation, as neither the defendant nor many of the witnesses were able to speak or understand tbe English language. The-trial began on the 23d of February, and terminated five days later, in a verdict of murder in the first degree. A motion for a new trial, made before the oyer and terminer February 28th was denied, and the defendant was sentenced to be hanged on the 10th of April. On the 14th of March, an appeal was taken to the general term, and the relator spent from thirty to fifty days in preparing the case and exceptions and his brief for the-, argument of the appeal. He was compelled to make several journeys from Syracuse, where he resided, to Utica, where the general term was in session, in order to argue said appeal. The appellate court reversed the judgment of conviction, and ordered a new triaL Twenty-two days were employed by the relator in preparing for the second trial, which lasted eleven days, and resulted on the 25th of June, 1885, in a verdict of murder in the-second degree.
    Subsequently the relator presented to the board of supervisors a claim amounting to $1,000 for his services, in defending said Antonio Eego upon said indictment The board refused to audit or allow any part of such claim, upon the ground that it had no authority so to do, and thereupon the relator, upon proof of the foregoing facts, procured an alternative mandamus, requiring the supervisors to audit his bill, or show cause to the contraiy before this special term.
    To such writ the defendants demur, upon the ground that, facts sufficient to constitute a cause of action are not stated* either in the writ or in the affidavit, upon which it was granted.
    
      Oscar J. Brown, relator, in person.
    
      Mine & Stephens and Louis Marshall, for defendants.
   Vann, J.

The services rendered by the relator were of much value, not only to the prisoner in whose behalf they were performed, but also to the public generally, who have the same interest in the acquittal of the innocent as in the conviction of the guilty. Services of the same character, however, have been-rendered to the' poor and unfortunate by nearly eveiy lawyer of experience, as ably and conscientiously, without hope of pecuniary reward, as though upon the most liberal retainer. The defense of poor prisoners, upon assignment by the court, is one of the duties contemplated by the lawyer’s oath of office, which he impliedly assumes in accepting the privilege of practicing law (1 R. S. 367-8 [7th ed.]). Although at an early day in England the right of defending by counsel was denied even to a person on trial for the most serious crime, that harsh rule was gradually relaxed until the prisoner became entitled to counsel, not only when he was able to employ one, but even when he was not While the territory now embraced by the state of New York was a colony of Great Britain it was a part of the common law that counsel should be assigned by the court for the defense of poor persons charged with crime (4 Black. Com., 355; 1 Chitty Cr. Law, 407, 413). Upon the organization of our State, the common law, with certain exceptions not material to be now considered, was, by the constitution then adopted, made a part of the law of the land (Cons. State of N. Y., art. 1, sec. 17). Daring our entire history, both as a colony and as a State, it has been the duty of an attorney assigned to defend a poor prisoner to obey the order of the’ court (The People re Saunders agt. Supervisors of Erie County, 1 Sheldon, 517). He is an officer, not of the state or county, but of the court, subject to its direction and discipline, and bound by his oath to obey its orders. He derives his authority to practice from the courts, and is subject in many ways to their summary jurisdiction, including the right of assignment upon criminal trials, and under certain circumstances even in civil1 cases also. As early as 1494 a statute was passed by the English parliament “ in behalf of the poor persons of this land not able to sue for their remedy after the course of the common law,” and providing “ that such poor persons shall have writs, &e., &c., therefor paying nothing,” and that “the justices shall assign to the same poor person counsel learned, by their discretions, which shall give their counsel, nothing taking for the same” (2 Hen. vii., chap. 12). Even this early statute only confirmed the common law (Brunt agt. Wardle, 3 Mann. & Granger, 534). Similar provisions exist in our statutes which enable a person who has a cause of action against another, but is not worth one hundred dollars, besides the wearing apparel and furniture necessaiy for himself and family and the subject of the action, to prosecute as a poor person, and to have an attorney and counsel assigned to conduct his suit, “ who must act therein without compensation” (Code Civ. Pro., secs. 458 to 462; 2 R. S. 444).

A defendant in an action involving his right to real or personal property may, under like circumstances, have the -same, privilege (Code Civ. Pro., sec. 463 to 467). A person so situated may prosecute or defend without paying fees to any officer (Id., sec. 461).

Although for time out of mind it has been the right and duty of courts to assign counsel for the defense of destitute persons under indictment, and likewise the duty of counsel to obey the order of the court, there are but few reported cases upon the subject of enforcing payment from the public for services rendered under such circumstances, and no case in this state where the attempt to compel payment was successful The earliest effort in that direction that appears in our reports was the case of The People ex rel. Hadley agt. The Supervisors of Albany County (28 How., 22), decided in 1864. The relator in that case was assigned to defend a woman indicted for murder. He asked to be excused, but the court declined to release him. He thereupon engaged in the defense of the accused person, and conducted it through different courts for three years until she was finally acquitted. The supervisors having rejected his claim for compensation, he applied for a mandamus to compel them to audit it It was held that the claim was not chargeablé against the county, because there was no statute directing or authorizing the court to assign counsel to defend prisoners, or providing any compensation or prescribing any mode of payment for such service. This case was expressly approved by the court of appeals in The People ex rel. Ransom agt. The Supervisors of Niagara County (78 N. Y. 622), where the relator, who had been assigned to defend a prisoner indicted for murder, sought to compel payment of his claim for services and disbursements, after the oyer and terminer had ordered that his compensation should be a charge against the county. The court, all of the judges concurring, adopted the opinion in the Hadley case, saying that it “ contains a sound exposition of the law upon the subject”

The only other case cited from our own reports was The People ex rel. Saunders agt. The Supervisors of Erie Co. (1 Seld., 517), where it was held that such claims for compensation could not be enforced in the absence of express authority from the legislatura

The rule in other states is not uniform. The following cases hold that attorneys appointed by the court, pursuant to the command of a statute to defend persons charged with crime, and unable to employ counsel, are not entitled to compensation (Arkansas Co. agt. Freeman, 31 Ark., 266; Nobb agt. The United States, 1 Ct. of Claims, 173; Case agt. Commissioners of Shawnee Co., 4 Kan., 511; Johnson agt. Lewis and Clarke Co., 2 Montana, 150; Kelly agt. Andrew Co., 43 Mo., 338).

The following cases hold the same, the assignment being so far as appears in the absence of statutory authority (Rowe agt. Yuba Co., 17 Cal. 61; La Mont agt. Solano Co., 49 id., 158; Elam agt. Johnson, 48 Geo., 348; Vise agt. County of Hamilton, 19 Ill., 78; Wright agt. The State, 3 Heisk. [Tenn.], 256; Bacon agt. County of Wayne, 1 Mich., 441).

The contrary rale is held in the following cases (Blythe agt. The State, 4 Ind., 525; Webb agt. Baird, 6 id., 13; Hall agt. Washington Co., 2 Iowa, 473; Carpenter agt. County of Dane, 9 Wis., 274; County of Dane agt. Smith, 13 id., 585).

No case bearing upon the question has been cited that arose in this state, except the three above mentioned.

It is evident, therefore, that the relator cannot succeed on this demurrer, unless, since these cases were decided, the legislature has, by some statute, made claims of the kind under consideration chargeable against the county. He insists that section 308 of the Code of Criminal Procedure, which took effect on the 1st day of September, 1881, has this effect That section provides, that 11 if the defendant appear for arraignment without counsel, he must be asked if he desire the aid of counsel, and, if he does, the court must assign counsel.” The object of the Code of Criminal Procedure was not to change but to codify the practice already existing. Prior to its passage the most of its provisions were already a part of the written or unwritten law of the state, but were widely scattered in different statutes and decisions of the courts. The legislature, in enacting this Code, did little more than reduce to a compact, convenient and definite form, the criminal practice actually existing at the time. In a few instances the practice was simplified, and some doubtful questions were settled; but the main result, intended and effected, was simply the codification of the law governing criminal procedure. The second section quoted does -no more than declare the unwritten law in force when the Code was adopted, inherited with the great body of the common law, and confirmed by the uniform practice of all our criminal courts of record,' both colonial and state. The duty of the court to assign counsel and of counsel to act upon the assignment, was not more binding after the legislative énactment than it was before. The common law upon the subject was simply written out and enacted in a statute, at least in part, for the section in question only provides for the assignment of counsel if the defendant appear for arraignment without counsel, but is silent as to the duty of the court if he appear for trial without counsel.

If the legislature had intended that assigned counsel should be paid for their services by the public, it is to be presumed that they would have so provided in definite and certain language. They knew that the highest court had decided that such services were not a county charge, and if they designed to change the law in that respect, would they-not have said something upon the subject? would they have left it wholly to argiiment or inference ? can it fairly be held tbat when they were passing an act merely declaratory of tbe common law relating to criminal practice, they intended to make sncb a change, in the absence of an express provision to that effect? especially •can it be so held when no new duty was imposed upon either •court or counsel?

The learned relator insists that, as no one should be compelled to render gratuitous service to the public, necessarily the legislature intended that he and those similarly situated should be paid. But the argument ex necessitate is not wholly on one side.

The increase of expenses, the lengthening of trials and the ■danger of abuses of various kinds that will occur to every thoughtful lawyer, are subjects worthy of consideration. The valuable privilege that every attorney enjoys of exemption from jury duty, is worth more to the legal profession in time and money than liberal compensation for the defense of poor pris-oners. The readiness of attorneys to assume the burden of aiding the destitute and friendless, the reluctance of courts to insist that counsel should act when it would be a hardship, the .smoothness with which the practice has worked for generations, the absence of any strong or general pressure from the profession for compensation, and the virtual assent of the ablest and noblest men of the bar for so many years to the existing state •of affairs, are facts within the knowledge of, and doubtless considered by, the legislature, and, in the light of which the section in question may be construed (Sedgwick on Stat. & Con. Law, 190, 231), “ the reason of the law, the motive which led to the making of it, and the object in contemplation at the time, is the most certain clue to lead us to the discovery of its true meaning” (Vattel's Rules of Interpretation, Liv. 2, sec. 270).

My conclusion is, that the claim of the relator is not chargeable against the county, and that the supervisors have no power to order it paid. He discharged his duty faithfully, and, in so •doing, served both the prisoner and the public. He is entitled to the thanks of the court and the community, but his claim for compensation, however equitable, cannot, in my judgment, be-paid until further action is taken by the legislatura

The demurrer is sustained.

Noth. — Attention is called to foot-note of reporter on page 22 of Howard’s Practice Reports, volume 28, as being an appropriate reminder to the legislature of the propriety and justice of passing a law to compensate-counsel for such services. — [Ed.  