Posey & Tompkins v. Mobile County , 50 Ala. 6 ( 1873 )

PETERS, C. J.

The county is a corporation created by law, and the duties imposed upon it are such as the law expressly requires it to perform, or such as are incidental to its very existence. Covington County v. Kinney, 45 Ala. 176, 182; Rev. Code, § 897. Then, it may be asked, in view of the question suggested in this suit, is there any express statute, making it the duty of a county, in which a criminal prosecution is instituted or conducted, against parties charged with public offences, to furnish the parties so charged with counsel to defend them on the trial of such charges, when the accused may be unable to employ counsel ? This is not pretended; because such a statute is nowhere to be found, at least as applicable to the county of Mobile, since the repeal of the act entitled “ An act to appoint counsel in certain cases,” approved December 30, 1868. Pamph. Acts 1868, p. 490, Act No. 144; Pamph. Acts 1870, 1871, p. 44, Act No. 47. No such act has been brought to the notice of the court by the learned counsel for the appellants. Then, it may be presumed that no such special statute exists. Quod non apparet, non est. Then, we inquire, in the second place, is it a duty necessary for the existence of the county as a corporation ? Most certainly not. But it is contended by the appellants, that the accused, in all criminal prosecutions, is clothed by the fundamental law with “ a right to be heard by himself or counsel, or either.” Const. Ala. 1868, Art. 1, § 8. This is very true; but the State does not, by tbis right, undertake to furnish counsel for the accused. It has never-been so construed; otherwise the general assembly would have enacted a proper statute to carry this right into effect. No such enactment has been passed, as a general law ; and when tried in special cases, it has been soon abandoned as impolitic. The statute which directs that, if the accused “ is unable to employ counsel, the court must appoint counsel for him, not exceeding two, who must be allowed access to him at all reasonable hours,” makes no provision for the payment of counsel fees. And upon the principle, that whatever is omitted in a law, is not intended, I feel bound to come to the conclusion, that the State does not in any way assume a liability to pay fees for such services. JSxpressmi faeit, cessare tacitwm. Rev. Code, § 4171. Their defence is a duty imposed by law upon attorneys licensed to practise in the courts of the State as such; and .it is the duty of the courts to enforce it. If counsel wilfully refuse to discharge this duty, on a proper order of the court, they should be removed or suspended. Rev. Code, §§ 4171, 882, cl. 2, 872, cl. 7. Beyond this, the general assembly has not deemed it wise to proceed. This is, also, the boundary of the powers of the courts. I, therefore, feel impelled to declare, that the county of Mobile is not liable to pay for services performed by counsel appointed by the court to defend parties accused of offences in certain cases, when the accused is unable to employ counsel. Rev. Code, § 4171. In this view of the law, the court was correct in the judgment below.

The judgment of the court below is, therefore, affirmed.