Pinal County v. Nicholas

BAKER, J. (After Stating the Pacts as Above). — The sole question for determination in this suit is this: Is a county liable for the services of an expert witness employed by the county attorney in a criminal ease? The parties to the action divide only upon this one point. It must be conceded that, unless the county attorney was authorized by some express law to engage the services of Carlson in his expert capacity and thereby make his compensation a county charge, the contention of the defendant must prevail. 7 R. C. L., § 26; 15 C. J. 562. ‘ ‘ One who demands the payment of a claim against a county must show some statute authorizing it, . . . express or implied, from which it arises, which itself finds authority of law.” Santa Cruz County v. Barnes, 9 Ariz. 42, 76 Pac. 621. It must also be conceded that the county attorney is the public prosecutor, and it is his duty, among others, to attend all superior and other courts in the county, and conduct on behalf of the state, all prosecutions for public offenses. Rev. Stats. Ariz. 1913 (Civ. Code), par. 2528, subd. 1. It may therefore be assumed that it was the official duty of the county attorney to prosecute Conmy. The statute of this state defining “county charges” (Rev. Stats. Ariz. 1913 [Civ. Code] par. 2391, subd. 2), so far as the same is material to this controversy, provides as follows : “The following are county charges: ... (2) The compensation of the county attorney, his deputy, and stenographer, and all expenses' necessarily incurred by him in criminal cases arising within the county. ...” The obvious purpose of the legislature in adopting this provision was to invest the county attorneys in the several counties of the state with certain discretionary powers, by the reasonable and proper exercise of which -they might obtain the necessary evidence with which to secure the arrest and conviction of parties charged with a violation of the law. We think this is plain from the most casual reading of the statute; and that such a proviso is both wise and just will be, [246] as we think, conceded by anyone at all conversant with the difficulties which surround the administration of criminal justice. Exigencies frequently arise when the county attorney is called upon to act promptly and decisively, and to take such steps as require the expenditure of money in order to successfully conduct the prosecution of the criminal, and it is reasonable to conclude that the statute does not contemplate that he shall wait until the board of supervisors can be convened and provide the necessary funds, or express their approval of the expenditure. Such a requirement would result in great delays and inconveniences, and would often defeat the ends of justice. Evidently the statute contemplates that the county attorney may, in the first instance, exercise his own judgment about incurring expenses, upon the assumption that whatever expenses he does incur will be both necessary and reasonable. Other courts have put the- same construction upon similar statutes. The Utah statute (G. L. 1907, § 538) defining “county charges” reads as follows: “The following are county charges: ... (2) The necessary expenses of the county attorney, incurred in criminal eases arising in the county, and all other expenses necessarily incurred by him in the prosecution pf criminal eases. ...” In a certain criminal case the prosecuting officer procured the services of an expert on handwriting and called him as a witness. The county commissioners refused to allow the claim of the expert, and he brought an action against the county to recover. The court, in upholding the claim, said: “We think the Legislature intended that all necessary expenses incurred by the public prosecutor, whether.he be county attorney or district attorney, in the prosecution of criminal cases arising in the county, should be charges against the county. ... We are of the opinion that the district attorney was himself authorized to incur necessary expenses in the prosecution of criminal cases in the district court and to make them county charges.” Kytka v. Weber County, 48 Utah, 421, 160 Pac. 111. In the case of Thiel Detective Co. v. Tuolumne County (Cal. App.), 173 Pac. 1120, the district court of appeal said: “There is no question of the authority of the district attorney to incur an expense of this character. Subdivision 2 [247] of section 4307 of the Political Code provides that ‘the traveling and personal expenses of the district attorney, incurred in criminal eases arising in the county . . . and all other expenses necessarily incurred hy him in the detection of crime and prosecution of criminal cases’ are county charges. That this includes the services of detectives in proper eases is not disputed. He may employ them at the expense of the county, when necessary for the detection of persons guilty of crimes, or to obtain evidence of their guilt” — citing Rocca v. Boyle, 166 Cal. 94, Ann. Cas. 1915B, 857, 135 Pac. 34. To the same effect are the cases: Victors v. Kelsey, 31 Cal. App. 796, 161 Pac. 1006; Langdon v. Koster, 157 Cal. 40, 106 Pac. 209, and Humiston v. Shaffer, 145 Cal. 197, 78 Pac. 651. We can conceive of no valid reason why the employment of an expert on handwriting should be distinguished from the employment of a detective. Among certain items which are defined by the statute of New York to be a “county charge” are “all expenses necessarily incurred by the district attorney in criminal actions or proceedings arising in the county.” Laws 1892, e. 686, § 230, subd. 2. Judge BRADLEY, in speaking of the powers of the district attorney under this provision, said: “The power is well recognized, of district attorneys, to incur the expense of special compensation necessary to employ the service of experts to prepare themselves by investigation, in cases requiring it, to testify as witnesses upon the trials of persons charged with crime.” People ex rel. Gardenier v. Board of Supervisors of Columbia County, 134 N. Y. 8, 31 N. E. 322, 325. It was held in People v. Board of Supervisors of Cortland County (Sup.), 15 N. Y. Supp. 748, that the district attorney has power to hire a physician to attend the trial as consulting expert and as a witness, and where a board of supervisors refuses to audit such claims, they may be compelled by mandamus to do so. In People v. Haws, 12 Abb. Pr. (N. Y.) 199, the court said: “The district attorney is a county officer, and in the performance of his general duties acts as a county officer, and . . . the Revised Statutes . . . provide that the moneys necessarily expended by any county officer, in executing the duties of his office, and the contingent expenses necessarily [248] incurred for the benefit of a county shall be deemed county charges. ’ ’ Other New York eases to the same effect are People ex rel. Tripp v. Supervisors of Cayuga County, 22 Misc. Rep. 616, 50 N. Y. Supp. 16, People ex rel. Hamilton v. Supervisors of Jefferson County, 54 N. Y. Supp. 782, 35 App. Div. 239, and People v. Montgomery, 13 Abb. Pr. (N. S.) 207. Whilst, as we have already said, the county attorney is vested by the statute with the power to obligate the county to pay for the services of an expert witness, when he deems it necessary to employ one in a criminal case, yet he may not bind or charge the county beyond what is reasonably necessary, and certainly he may not bind the county for expert services beyond the reasonable value thereof. In the exercise of the power he may not act arbitrarily and capriciously. The claim of the expert, like other county charges, must be presented to the board of supervisors, whose duty it is “to examine, settle and allow all accounts legally chargeable against the county,” etc. Subdivision 12, par. 2418, Rev. Stats. Ariz. 1913 (Civ. Code). This body may review the action of the county attorney to the 'extent of determining whether the expenses were necessary or not, and whether the charge for the services is exorbitant or unreasonable. In Yolo County v. Joyce et al., 156 Cal. 429, 105 Pac. 125, 126, the court said: “The district attorney is an executive officer charged'with the detection of crime and the prosecution of criminal cases. In furtherance of the proper discharge of his duties, the Legislature has, under the section of the county government act, enlarged his power so as to permit him to incur expense necessary to enforce the criminal law. His authority to do so for that purpose is not made subject to the control or supervision of any court or judicial officer, but is a matter for the consideration of the board of supervisors alone to the extent of determining whether the expense was necessarily incurred so as to constitute a county charge. Of course, thé right of a district attorney to incur expense is not an arbitrary one. All that the section of the county government act permits is to give to the district attorney in the first instance, the discretion to determine whether it is necessary in the detection of crime, or the prosecution of a criminal case, to incur an expense chargeable against the county. Any such claim, however, must [249] he presented to the board of supervisors for allowance, and that body reviews the action of the district attorney to determine whether the expense was a necessary one and acts accordingly.” Much has been said in argument to the effect that “to permit the county attorney to make contracts of this kind would open the way for inroads upon the county treasuries which could not prove otherwise than wasteful and vicious.” But it is not to be assumed that the county attorney will incur any unnecessary expense, or that he will act recklessly or with indifference to the financial interests of the county. It is to be presumed that he, like all other public officers, will properly and conscientiously discharge his official duties, and, as the board of supervisors is charged with the duty of supervising all expenditures incurred by him, and rejecting payment of those which are illegal or unwarranted, it seems that there is but little danger that the county treasuries will be raided or looted. Counsel for the defendant relies upon the case of Yavapai County v. O’Neill, 3 Ariz. 364, 29 Pac. 433; but we do not think the case is authority as applied to the facts of the present case. The court was not considering the statute under discussion here, and the facts are wholly dissimilar. The defendant makes no claim that the services of the expert were not rendered, or that such services were not necessary; nor is it claimed that the price charged is exorbitant or unreasonable. The only claim made is that the county attorney possessed no authority to employ the expert and bind the county to pay for the services rendered. We must overrule this contention. It follows from what we have said that the judgment must be affirmed, and it is so ordered. CUNNINGHAM, C. J., and BOSS, J., concur.