McDonald v. Board of Supervisors of Milwaukee County

Cole, J. The important question in this case is: Had the sheriff lawful authority to employ counsel in the matter of the habeas corpojhs, and render the county liable for the payment of such counsel fees and expenses ? It appears that the sheriff held in custody the party alleged to be unlawfully restrained, b.y virtue of a criminal warrant issued by the municipal court [645] of Milwaukee county, and tbe expenses were incurred and professional sendees rendered on the hearing of the writ of habeas corpus. It is claimed by the sheriff that the moneys thus expended by him constitute valid charges against the county. The account presented by the sheriff to the county board contains a specific statement of the items of his charge, so that the question involved arises upon the face of the account itself. It seems to us the charges are not lawful charges against the county. We have not been referred to any provision of the statute which authorizes the sheriff to employ counsel at the expense of the county on the hearing of a habeas corpus issued to determine by what right he held a person in custody. But the habeas corpus act requires, where the party is detained on a criminal accusation, that the district attorney of the proper county shall have notice of the hearing on the return of the writ; and it is made the duty of that officer to attend to the matter. Sec. 25, ch. 158, R. S. This is the provision which the legislature has seen fit to make to secure legal services in such a case, and it is exclusive of the right of the sheriff to employ counsel. It was suggested by the counsel that the right of the sheriff to employ counsel in the case was given by sec. 104, ch. 13, R. S.; but we cannot assent to that view. That section makes it the duty of the sheriff to preserve the peace in his county; to suppress affrays, serve all processes, apprehend and secure criminals; and for these purposes to call to his aid the power of the county when deemed necessary. This power of the sheriff to call to his aid the posse comitatus in the discharge of his duties, is quite distinct from the power to employ counsel to resist the discharge on habeas corpus of a person held by him on criminal process. Nor does the fact that the sheriff employed counsel at the request of a committee of the county board, aid his case. In Butler v. The City of Milwaukee, 15 Wis., 493, it was held [646] .that tbe city bad no power to employ counsel to aid in tbe criminal prosecution of persons wbo bad committed crime to its pecuniary injury while acting as officers of tbe city. In Montgomery v. The Board of Supervisors of Jackson County, 22 Wis., 69, it was decided that tbe county board bad no authority to employ at tbe expense of tbe county an attorney to aid tbe district attorney iji a criminal prosecution. It is unnecessary to repeat tbe reasoning of those cases, or restate tbe principle on which they rest. It is sufficient to say that 'these adjudications have a decisive bearing on the question we are considering. And they establish tbe doctrine that the expenses and fees of tbe counsel employed by tbe sheriff in tbe case mentioned are not properly chargeable to the county. Tbe expenses of tbe deputy sheriff in going to Madison with tbe party in custody, tbe hotel bill, railroad fare, etc., must be disallowed under tbe decision in Crocker v. Supervisors of Brown County, 35 Wis., 284. Dixon, C. J., in that case says: “ Officers take their offices cum onere, and services required of them by law for which they are not specifically paid, must be considered compensated by tbe fees allowed for ¡other services.” The other item in the account may be a proper charge under the fee bill. In the absence of testimony explaining it, we must presume the court below was right in allowing it. By the Cottrt. — The judgment of the circuit court is. reversed, and the cause remanded with directions to enter judgment for the last item in the account.