Bicknell v. Amador County

By the Court, Sawyer, J.: This is an action by the County Clerk of Amador County against the county for fees, claimed to be due for services rendered as Clerk of the District, County and Probate- Courts. Whenever any entry or minute of any kind has been made by the direction of the Judge during the term, and not at the instance of any party, and consequently not chargeable against a party to some proceeding, such entry or minute seems to have been christened a motion and order, and charged to the county. For instance, there are in the bill of items fourteen hundred and sixty “ motions and orders opening and adjourning Court,” for services in entering which, an aggregate sum of over one thousand dollars is charged to the county. There are, also, “ motions and orders,” “ approving minutes,” “ correcting and approving minutes,” “motions and orders,” “ making rule of Court,” “ changing rule,” “ abolishing rules of Court,” “ excusing jurors,” “ discharging jurors,” “ fining jurors” and “remitting the fine,” “fining Milligan” and “remitting the same,” “appointing committee to examine attorney,” “admitting Brown, att’y,” “placing name [of attorney] on roll,” etc., etc. The question is, whether these various services constitute a legal charge against the county. Clearly not, unless made so by some express statutory provision. In the case of Rawley v. Board of Commissioners of Vego County, 2 Blackf. 355, the plaintiff, a constable, claimed to hold the county liable for services rendered in sundry criminal cases decided against the People. The Court say: “ We have no doubt in this case. Neither the State nor a county is bound by. law to pay the fees and charges of the officers in cases of prosecutions on behalf of the State, in which the [239]prosecution fails. There have been frequent cases of the kind in this Court, and we have uniformly refused to give costs against the State. It is settled in the Supreme Court of the United States that the United States never pay costs in any suit. (United States v. Barker, 2 Wheat. 395.) In the present case the county cannot be liable for the fees and charges stated without an express statute on the subject.”

In Kitchell v. Madison County, 4 Scam. 163, compensation was claimed against the county for similar services in a criminal case by the Clerk, Sheriff and Attorney-General, and it was held, that “ in the absence of all legislative enactment requiring such fees to be audited and paid as a part of the contingent expenses of the county, the claim was properly rejected by the County Commissioners.” Referring to the cases in 2 Wend. 523, and 18 Johns. 243—the only cases tending to support the liability called to our attention, and in those cases the services were rendered for the benefit of the county—the Court say: “ When compensation has been allowed to such officers without any provision by law for that purpose, it was where the services were specially rendered for the benefit of the county, and for which no other provision had been made, as in the cases cited in 2 Wend. 533, and 18 Johns. 243. But no case has been referred to where such compensation has been allowed for services rendered by such officers in the course of judicial proceedings in criminal cases.” The only statutory provisions brought to our notice from which it can be inferred that the Legislature designed to make the county liable for services of the kind specified in the complaint, are, sections one and two of the “Act to regulate fees of certain offices in Amador County,” approved April 6, 1859. (Laws 1859, p. 159.) Section one provides, that “ such fees are allowed to the officers herein named, for their services rendered in discharging the dutes imposed on them by law, as herein provided, and such officers may lawfully charge, demand and receive the same.” And section two : “ The fees of the Clerk of the District Court shall be as follows: For entering each suit on the register of actions, and making the necessary entries