Stevenson v. Milwaukee County

Kerwin, J.

On tbe 30th day of March, 1907, and two-days before tbe commencement of tbe April term of - tbe circuit court for Milwaukee county, L. W. Halsey, circuit judge, made tbe following order:

“By virtue of tbe authority vested in me by sec. 2431 of the Revised Statutes of Wisconsin,' as judge of the circuit court of Milwaukee county, branch No. 1, I hereby constitute and appoint William Stevenson as bailiff and attendant upon branch No. 1 of tbe circuit court of Milwaukee county for- and during tbe April term thereof.

“LawebNCe W. Halsey, Circuit Judge.”

*17 Similar orders of appointment for subsequent terms were made, and, as will be seen from tbe statement of facts, the court below allowed the plaintiff compensation at the rate of $1,000 per year for services as court attendant under the appointment. Authority to make the appointment is questioned by the appellant, Milwaukee county, and mainly upon the ground that the judge did not find or determine that a necessity existed for such appointment. It is claimed that, because the sheriff of the county appointed two deputies to attend on thé court presided over by Judge Halsey, no other attendant was necessary, and therefore the judge had no power to make the appointment.

We shall not enter into any extended discussion of the power of circuit judges to appoint attendants, because it seems to be well settled that the power exists in proper cases. Under the constitution of this state the judicial powers of the state in matters of law and equity are vested in a supreme court, circuit courts, and other courts provided for in that instrument. The circuit courts of this state, therefore, are created by the constitution and do not depend solely upon statute for their powers. Independent of statute such constitutional courts have inherent power to make such rules and orders as may be necessary to properly perform their functions.

“They shall also have the power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and all other writs necessary to carry into effect their orders, judgments and decrees, and give them a general control over inferior courts and jurisdictions.” Sec. 8, art. VII, Const.

The power to appoint necessary attendants upon the court is inherent in the court in order to enable it to properly perform the duties delegated to it by the constitution. This power has been recognized by the legislature in sec. 2431, Stats. (1898), as amended by ch. 224, Laws of 1903, which reads as follows:

*18 “The judges of the circuit court may prescribe all such rules of practice and rules to regulate their proceedings and facilitate the administration of justice as they may deem necessary, not inconsistent with law or the rules of practice prescribed by the justices of the supreme court. Any officer of the court ór court attendant who may he appointed by the judge of any circuit court, shall have the same powers and authority in court, during each session thereof, as the sheriff of the county.”

This section by necessary inference recognizes power in the circuit courts to appoint attendants, and the members of this court so held at an early day. Speaking through Chief Justice DixoN the members of this court said:

“It is a power inherent in every court of record, and especially courts of last resort, to appoint such assistants, and the court itself is to judge of the necessity. This principle is well settled and familiar, and the power so essential to the expedition and proper conducting of judicial business that it may be looked upon as very doubtful whether the court can be deprived of it. As a power judicial and not executive or legislative in its nature, and one lodged in a co-ordinate branch of the government separated and independent in its sphere of action from the other branches, it seems to be under the protection of the constitution, and therefore a power which cannot be taken from the court, and given to either the executive or legislative departments, or to any officer of either of those departments.” In re Janitor of Supreme Court, 35 Wis. 410; Crawford Co. v. Le Clerc, 3 Pin. 325; State ex rel. Gubbins v. Anson, 132 Wis. 461, 112 N. W. 415.

Other courts have announced the same doctrine. State ex rel. Hovey v. Noble, 118 Ind. 350, 21 N. W. 244, 4 L. R. A. 101; State ex rel. Douglas v. Westfall, 85 Minn. 431, 89 N. W. 175; In re Court Officers, 3 Pa. Dist. Rep. 196; Board of Comm’rs v. Stout, 136 Ind. 53, 35 N. E. 683, 22 L. R. A. 398; Ex parte Kellogg, 6 Vt. 509.

As we understand the appellant’s contention, the power to appoint necessary court attendants is not seriously denied, but *19 It is insisted tbat tbe necessity did not arise in tbis case. Tbe power to determine tbe necessity must rest somewhere, and no place, wre tbinlc, more appropriately tban witb tbe judge making tbe appointment, for it is for bim to determine when a necessity exists in tbe administration of tbe business ■of bis court; and it necessarily follows from tbe nature of tbe ■case tbat a broad and liberal discretion is vested in tbe judge respecting tbis power. Whether tbe power of tbe judge in determining tbe necessity is subject to review in any case, and,'if so, in what manner and under what circumstances, we need not and do not decide, because in tbe case before us tbe record shows no abuse ’of power by tbe judge in making tbe appointment.

Some contention is made tbat tbe prerogative of tbe sheriff was infringed by tbe judge in appointing an attendant vested witb tbe power of a deputy sheriff, but tbis by no means follows from the record. On tbe contrary, it appears tbat the presence of tbe sheriff in court and participation within tbe scope of bis right to act, either by himself or bis deputy, was not interfered witb. We think it clear tbat where it seems to tbe judge necessary tbat an attendant upon tbe court, in -addition to tbe sheriff and bis deputies, should be appointed, it is bis right to make tbe appointment for such time as tbe necessity exists.

Our attention is called to sec. 725, Stats. (1898), which makes it tbe duty of tbe sheriff to attend upon tbe circuit court during its session and file a list of bis deputies, not exceeding three; but tbis provision does not deprive tbe judge, in case a necessity exists, of the power of appointing an attendant upon tbe court. When tbat necessity exists must be determined by tbe judge of tbe court in which tbe appointment is made. Subd. 8, sec. 725, Stats. (1898), provides that the sheriff shall attend upon tbe circuit court during its sessions and file a list of bis deputies, who are' to receive a per diem for attendance on court, and further tbat tbe court *20 may by special order authorize a greater number of deputies to attend when the court shall be engaged in the trial of any person charged with crime; and sec. 2431, Stats. (1898), as amended by ch. 224, Laws of 1903, provides that the person appointed by-the judge shall have the same powers and authority in court during its session as the sheriff of the county. If'the court or judge had attempted to interfere with the constitutional or statutory powers of the sheriff, a different question would be presented. .

The court below allowed a recovery by the plaintiff on the basis of $1,000 per year upon the ground that this amount was reasonable pay for the plaintiff’s services. Of course the general rule is well understood that where fees of an officer are fixed by statute no other compensation can be recovered. Crawford Co. v. Iowa Co. 2 Pin. 368; Portage Co. v. Waupaca Co. 15 Wis. 362; St. Croix Co. v. Webster, 111 Wis. 270, 87 N. W. 302; Douglas Co. v. Sommer, 120 Wis. 424, 98 N. W. 249. Sec. 733, Stats. (1898), provides specifically how fees for attendance required by law on any court shall be paid out of the treasury of the county “in the same manner as the fees of jurors attending such courts are to be paid.” Subd. 22, sec. 731, provides that the necessary deputies shall receive for attendance on the circuit court $2 a day, to be paid out of the county treasury. It follows that the fees of necessary attendants appointed to attend upon court shall be the per diem allowed deputy sheriffs for the time expended during the sessions of the court. This compensation can be recovered only in the manner provided by the statutes, namely, by certification in the same manner as fees of jurors are paid. This seems to follow from the statutes and decisions of this court. Secs. 733, 2560, Stats. (1898); Northern T. Co. v. Snyder, 113 Wis. 516, 89 N. W. 460; Oneida Co. v. Tidbits, 125 Wis. 9, 102 N. W. 897; Philler v. Waukesha Co. 139 Wis. 211, 120 N. W. 829.

It does not appear from the record just what the certifica *21 tion was, since the certificates do not appear; but the statement in the bill of exceptions must be regarded as a verity, and from this it does not appear that there was certification for all the time claimed. It appears from the record that the plaintiff was paid for all services up to July 31, 1901, and that in this action the certification only shows attendance from July 1,1901, to January 28, 1908. Besides, the services were allowed at the rate of $1,000 per year. It may be that upon another trial the plaintiff may be able to show that his claim was properly verified for the time allowed as required by sec. 2560, Stats. (1898), and, if so, he will be entitled to recover the per diem allowed by statute to deputy sheriffs for attendance upon the sessions of the circuit court for such time as he attended. It follows that there must be a new trial.

By the Court. — The judgment of the circuit court is reversed and the cause remanded for a new trial.