Colvig v. County of Klamath

Thayer, J. This appeal is from an allowance for fees made by the Circuit Court for the county of Klamath, in favor of the respondent, for services as district attorney of the First Judicial District of the State, performed at the June term, 1887, of said court-. It appears that the respondent, as such district attorney, attended said term of court, and at which an indictment was found by the grand jury of said county against one F. Muny, for the crime of murder in the first degree. Muny had pre [245] viously been held to answer for said crime, and had given bail for his appearance at said term of court in the sum of six thousand dollars. That his arraignment was set for the fifteenth day of June, 1887, and upon his failure to appear in accordance therewith, his bail was declared forfeited to the State of Oregon, and the court adjudged that the State of Oregon have and recover of and from such sureties the said sum of six thousand dollars, and that the same be collected as by law in such case made and provided. That respondent subsequently collected from such sureties said sum of six thousand dollars, which he paid over to the county treasurer of the county of Klamath, took said treasurer’s receipt therefor, and filed it with the county clerk of said county, whereupon the sureties were released from said bond, and the same was entered of record. That thereafter, and on the .seventeenth day of June, 1887, the said Circuit Court, after ascertaining the amount of fees which it deemed the respondent entitled to for his services as district attorney earned at said term, allowed him, among other items, a fee of ten per cent on the said six thousand dollars so collected and paid over to said treasurer, amounting to six hundred dollars, and directed and caused an order to be entered upon the journal of the said court that the same be paid to him, which is the order appealed from herein. The statute provides that at each term of the court it shall ascertain the fees to which the district attorney is entitled for the term, and direct an order to be entered upon the journal that the same be paid, and that upon presentation of a certified copy of such order to the proper officer of the State or county, it shall be his duty to draw his warrant upon the treasurer of the State or county for the amount, etc. (Code of 1887, § 1074.) The county of Klamath, being affected by the order of allowance made by the Circuit Court, its counsel claims the right to appeal therefrom to this court, and insists that it is only in civil actions for the recovery of fines, penalties, and forfeitures, that such allowances can be made to the district attorney, and cites subdivision 4 of section 1073 of the Code of 1887, as proof of his proposition. The respondent’s counsel contends that an [246] appeal to this court will not lie in such a case; that the Circuit Court had jurisdiction of the matter, and that it will be presumed that the evidence before it justified the allowance made. The power of the Circuit Court in that particular is derived wholly from statute. It is a similar power to that exercised by an auditing board. The legislature could doubtless have given this court jurisdiction to review decisions of the Circuit Court made in such eases; but in the absence of any provision to that effect, it certainly would have no such authority any more than we would have authority to review the action of any other auditing officer by appeal. A writ of review, as it is termed under the Code, may be resorted to in certain cases where an appeal will not lie; but it was certainly not intended that such a writ should issue out of the Circuit Court to review its own decisions, though such a practice has been followed under similar circumstances, and maintained by able jurists. Judge Bronson always insisted that conferring a mere statutory power upon a court had the effect to render it, pro hao vice, a subordinate tribunal of special and limited jurisdiction; that it did not exercise the power as a court, and that a practice of allowing a certiorari, as a court, to remove their own proceedings as commissioners, was regular and appropriate, and showed in his dissenting opinion in Striker v. Kelly, 7 Hill, 9, that such practice had long prevailed; but the majority of the court in that case maintained the contrary view. The Code of this State provides for an appeal to this court, from an order affecting a substantial right, and which in effect determines the action or suit so as to prevent a judgment or decree therein, or a final order affecting a substantial right, and made in a proceeding after judgment or decree. (Code of 1887, § 535.) This is the only provision of the statute which has any bearing upon the question, and the right to appeal in this case depends upon the construction to be given it. The order attempted to be appealed from is not an order which in effect determines any action or suit, so as to prevent a judgment or decree therein. It must, therefore, in order to be appealable, come under the head of “a final order affecting a substantial [247] right, and made in a proceeding after judgment or decree.” But such kind of order evidently must be one made in a proceeding in which a judgment or decree has been rendered, and affect the substantial rights of a party thereto. I do not see how any other construction of the latter clause of the provision referred to can be given. It can hardly be claimed that the decision of a matter which relates to the administrative department of the government should be regarded as such an order. It is the practice of many of the Circuit Courts of the State to allow a counsel, appointed to defend persons charged with crime, a fee, which is chargeable to the county in which the trial is had; and if an appeal lies in this case, I do not see why it would not lie from such an allowance. The order making the allowance is in a proceeding, it is true, but it is not in a proceeding in which a judgment or decree has been rendered. "Wo have considered the merits of the question involved in the appeal, and have concluded that the allowance of the ten per centum upon the amount of money collected by the respondent and paid over to the treasurer, under the circumstances of the case, was just and proper. Tho recovery of the money was not by means of a civil action, it is true, but was as effectually accomplished through tho mode pursued by the respoiidont. The judgment entered against the sureties upon the forfeiture of their undertaking was doubtless consented to upon their part; it could not otherwise have been properly so obtained, and it is to be presumed that the respondent induced the sureties to adopt that course, through which he achieved as complete success and as beneficial a result as could have been secured by means of a civil action. It would bo very inequitable, indeed, for the county, after having received tbe money through tbe agency and management of tbe respondent, to avoid the payment of the per centum by means of a slight technicality. The county realized tbe benefit of tbe forfeiture iu full; every dollar went immediately into its treasury, and because it was secured so promptly and apparently with so little effort on the part of the respondent, it does not follow that he is any the less entitled to his per centum than he would be if the countyt had been deprived of its use until the [248] end of an expensive and protracted litigation. The county had no way of collecting the money except through the respondent. He was authorized, and it was his duty as district attorney to proceed by action against the bail upon their undertaking. (Code of 1887, § 1493.) That is the only way since the adoption of the Code in which they could be proceeded against. The remedy by sdre fados has been superseded; but their liability was effectually established when the forfeiture was declared, and they had the right to waive the privilege of being sued in an action at law, and to confess judgment; and when they chose to adopt that course and to pay the amount of their liability, the county, which is not required to pay anything except a percentage on what it actually receives, should not, because of the strict letter of the statute, be allowed to object to the respondent’s receiving his fees. Such a construction of the law would operate unjustly. This view of the merits of the case renders it unnecessary to determine the question as to the rights to the appeal. The decision of the Circuit Court will be affirmed.