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might, in the opinion of the board, be better qualified than any one else to represent the county's interests therein. He would have onerous duties imposed upon him for which he could re over no compensation, while the same officer of an adjoining county could recover for similar services performed for his county in the same court. The Supreme Court sits only in Shawnee county. The county attorney of that county without direction or employment of the board would be required to attend this court in all cases where the county might be interested, for which he would receive no pay beyond his regular salary, while the county attorney of any other county in the state, whose duties are fixed by the same statute, could recover compensation for similar services in the Supreme Court, if directed or employed by his county. The law prescribing the duties and fixing the compensation of county attorneys was never intended to produce such absurd consequences.

The decisions which settle the liability of a county in cases of this character were not placed solely on the ground that the services performed obliged the attorney to go beyond the county, although in all the cases heretofore decided such was the fact, and it was given most prominence. The reasoning of the cases rests, after all, upon the proposition that the services performed are not within the duties imposed by law upon the county attorney. The county attorney, in theory at least, goes beyond the realm of his official duties when he steps into one of the courts of the United States, although it may be sitting in a building across the street from where his office is located. Nor do we feel disposed in a case of this character to split hairs over the fact that necessarily the county attorney, while preparing the pleadings and fitting himself to represent his client properly, may have performed some of his labors while in the county. He is entitled to recover a reasonable attorney's fee for his services in court, which includes compensation for the labor of preparation, and this without reference to where it is performed. The United States court might appoint a referee to take testimony who would hold the hearing in the office of the county clerk, or, for that matter, in the office of the county attorney, and still we think the county attorney could recover for his services in appearing before the referee. For any advice given to the board of county commissioners in reference to such litigation he cannot recover, for the reason that to give the board advice on all legal matters is one of the duties of his office. Huffman v. County of Greenwood, supra.

We conclude that the demurrer should have been overruled, and the cause will therefore be reversed and remanded for further proceedings. All the Justices concurring.

91 P.-6

(76 Kan. 368)

Ex parte ELLIS. (Supreme Court of Kansas. July 5, 1907.) 1. STATUTES-TITLE OF ACT.

The title to chapter 165, p. 242, Laws 1887, is broad enough to include the provision of section 5 thereof (section 2476, Gen. St. 1901), which authorizes the taxing of attorney's fees as costs in prosecutions brought by the Attorney General or his assistant under the prohibitory liquor law.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, §§ 158--160.]

2. HABEAS CORPUS-GROUNDS OF DISCHARGE. The fact that a county jail is in bad condition and is an unfit place in which to keep prisoners confined will not authorize this court to order a prisoner confined therein released on habeas corpus.

3. SAME-CRUEL OR UNUSUAL PUNISHMENT. The board of county commissioners alone have authority to order the release of a person committed to the county jail for failure to pay a fine and costs. The refusal of the board to discharge a convicted person who has been found to their satisfaction to be unable to pay the fine or costs will not make his imprisonment cruel or unusual punishment, nor furnish ground for his release by habeas corpus.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 3308.] (Syllabus by the Court.)

Application of George Ellis for writ of habeas corpus. Writ denied.

There is an agreed statement of facts, from which it appears that George Ellis, the petitioner, on the 27th day of September, 1905, was convicted in the district court of Wilson county of violating the prohibitory liquor law, upon an information information containing 52 counts, and was sentenced by the court on each count to imprisonment in the county jail of Wilson county for the term of 30 days and to pay a fine of $100, and committed to the county jail until the fine and costs were paid. The term of his imprisonment amounted to 52 months, the fine to $5,200, and there was taxed up as costs in the case the sum of $1,300, being $25 on each count as attorney's fee for E. D. Mikesell, who prosecuted the action as Assistant Attorney General. The petitioner was committed to the jail on the 3d day of October, 1905. His sentence was commuted by Gov. E. W. Hoch to expire on the 20th day of June, 1906, and he has since been confined in the jail because of the nonpayment of the costs. At the next regular meeting of the county commissioners of Wi!son county, following the commutation of his sentence, the petitioner made application to be released for the reason that he was unable to pay the costs. It is a part of the agreed statement of facts that the board of county commissioners were and are satisfied of his inability to pay the costs and only refuse to release him for the reason that Wilson county would become liable to the Assistant Attorney General for the sum of $1,300 fees. The county board had paid the other costs, and declare their purpose to keep the petitioner in the county jail for his natural life

rather than the county should pay this sum to Mr. Mikesell. The petitioner is a poor man, and has no means of paying the costs nor procuring them from others. He is in poor health, and his condition is such that he requires medical attention continuously. In addition to the agreed facts, it appears from the evidence that for the past year the board of county commissioners and Mr. Mikesell have been sparring over an attempt to have these fees reduced; that the board made him an offer of $750 if he would release further claims against the county, which offer he refused. Submitted with the evidence there is a copy of a written report made to the board of county commissioners, dated January 12, 1907, signed by Hon. L. Stilwell, judge of the district court, B. F. Carter, County Attorney, and J. W. Timmons, sheriff, in regard to the condition of the Wilson county jail, from which it appears that the jail is entirely inadequate to accommodate the number of prisoners, that it is poorly ventilated, and there is no space in which the prisoners can take exercise. The final recommendation to the board, signed by these gentlemen, is as follows: "And, that, finally, the jail of Wilson county be made a fit place for human beings, though criminals, to be confined in, instead of a dark, filthy, disease-breeding dungeon for its inmates, and a disgrace upon a prosperous and enlightened community."

Osborn & Osborn, for plaintiff. Frank Woodard, Co. Atty., F. S. Jackson, Atty. Gen., J. S. Dawson, Asst. Atty. Gen., and E. D. Mikesell, for the State.

PORTER, J. (after stating the facts). Briefs have been filed and oral arguments made on behalf of the petitioner, and by the Attorney General and Mr. Mikesell representing the state, and also by the county attorney of Wilson county on behalf of the board of county commissioners. The situation presented is anomalous, for the court has practically been importuned by those representing both sides of the controversy to find some way to order the petitioner's discharge. The board of county commissioners apparently desire to be relieved of the responsibility of the situation, and to obtain a decision which will in some manner have the effect to release the county from liability to Mr. Mikesell.

It is contended by the petitioner that section 2476, Gen. St. 1901, is unconstitutional. This act authorizes the taxing of $25 as attorney's fees for each count upon which a conviction is had in this class of cases, and declares that the county shall be liable therefor to the Attorney General or his assistant where the same is not paid by the convicted person within one month after his release from jail. In this contention he is heartily joined by the attorney for the board of county commissioners. The petitioner is held for the payment of these costs, and manifestly can in this proceeding raise the question of

whether they can be lawfully taxed against him; but whether the county can be compelled to pay them to Mr. Mikesell after the petitioner's release, if he should be released, is not involved here, and is no concern of the petitioner. The board of county commissioners is not a party to this proceeding, nor is Mr. Mikesell.

The objection to the validity of the section is that the title of the act is too narrow to include the taxing of such costs. The sec tion is an amendment to the prohibitory liquor law of 1885, and is section 5, c. 165, p. 242, Laws 1887. The title to this act was assailed upon practically the same grounds in State v. Brooks (Kan.) 85 Pac. 1013, and upheld. In that case it was said: "A provision intended to insure the prosecution of offenses against an act is as plainly adapted to the enforcement of its purpose as is one prescribing a penalty." We must, therefore, hold against the petitioner's claim that these costs are not lawfully taxed against him.

The principal contention of the petitioner is that the refusal of the board to order his release, unless he shall pay the costs, when his inability ever to pay has been established and conceded by the board, is in violation of section 9 of the Bill of Rights of the Constitution, which provides that "excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted." It was decided in Re Boyd, 34 Kan. 570, 9 Pac. 240, that imprisonment for the nonpayment of costs is no part of the punishment, and in the same case it was held that imprisonment under such circumstances is not imprisonment for debt. It is urged that the present case differs from that, because the board has found that the petitioner is unable to pay the costs, and has announced the intention of continuing the refusal to release him, although it will have the effect to keep him confined for the remainder of his life; and the case of Ex parte Tuichner, 69 Iowa, 393, 28 N. W. 655, is relied upon. In that case the Supreme Court of Iowa said: "It is true that the imprisonment is but a mode of enforcing the payment of the fine and costs; but, if the convicted person is unable to pay, then the imprisonment becomes punishment, and possibly within the prohibition of section 17 of article 1 of the Constitution, which provides that cruel and unusual punishment shall not be inflicted."

Reliance is also placed upon some some expressions in the opinion in the case of State v. Looker, 54 Kan. 227, 38 Pac. 288, where the same question was raised in respect, however, of the validity of the judgment and sentence. It was argued that the sentence was indefinite; that, if a person convicted is unable to pay the fine and costs, he might be imprisoned during his natural life, and, if there is no authority for his discharge, there is no limitation of the duration of his imprisonment. It is insisted that if an indefinite sentence may not be imposed, nor

excessive nor unusual punishment inflicted, a law which has the effect to impose such penalty should be held to be void. The court in the opinion declared that chapter 199, p. 293, Laws 1889, was void, because in attempting to amend chapter 117 p. 279, Laws 1871, providing for the discharge of prisoners unable to pay the costs, the Legislature, în the title to the act, provided for amending chapter 147, in place of 117. In the opinion it was said by Justice Johnston: "A plausible argument to sustain this view was made in behalf of the defendant, and there would be great force in his contention if chapter 199, p. 293, Laws 1889, could be treated as a valid law." As the case was decided expressly upon the proposition that the law was void, the expressions which are relied upon are obiter. In State v. White, 44 Kan. 514, 25 Pac. 33, this section of the Bill of Rights was under consideration, and it was said by Justice Valentine that the provision "probably, however, relates to the kind of punishment to be inflicted, and not its duration."

But it is unnecessary to decide whether imprisonment for the nonpayment of costs, where the prisoner is unable to pay them, might not, under some circumstances, amount to cruel and unusual punishment; for, notwithstanding the threats of the board, if threats they can be termed, to keep the petltioner confined for the remainder of his life, we would have no right to assume that the present or some future board will not deal justly in the matter and order him released when satisfied of his inability to pay the costs. Some criticism of the present board has been indulged in by counsel for the state, and the members have been charged with a disregard of the claims of humanity and justice in their persistence in refusing to order the petitioner released. The matter has been before the board a number of times, and numerous and various resolutions have been adopted to bring about an adjustment of the costs, so that the same will not fall upon the county; but the members have placed themselves on record several times as recognizing that Justice and humanity require his release. The difficulty appears to be that the board has never been able to see over and beyond the $1,300. Doubtless they would not hesitate to order the expenditure of as large an amount to build a bridge over a creek and save a few taxpayers some slight inconvenience in travel, but the expenditure of $1,300 of the county's money to uphold and enforce the criminal laws of the county seems to them to be money thrown away. In this era of law enforcement most people would regard the sum as insignificant when added to the taxes of a large and populous county and compared to the advantage which must accrue to the community in vindicating law and order and suppressing lawlessness.

The certificate of the honorable judge who

has so long presided over the district court is a severe condemnation of the jail and its conditions and surroundings. Jails are never desirable places in which to remain; but the dictates of humanity demand that some consideration should be given to the comfort, and especially to the health, of those compelled to occupy them. As communities become more enlightened and properous, the tendency is in favor of bettering the condition of all classes of unfortunate persons who are committed to the care of the public. It must be obvious, however, that we cannot order the petitioner released on account of the condition of the jail. To do so would require us on similar applications to order the release of all prisoners confined there.

The authority of the board to discharge the petitioner is conferred by section 5698. Gen. St. 1901, which reads as follows: "Any person imprisoned for failure to pay any fine or costs may be discharged from 1mprisonment by the board of commissioners of the county where conviction took place, on satisfactory proof to them that said person is unable to pay the same." The act gives the board power in their discretion to discharge him; but it is not mandatory. An action of mandamus would not lie to compel the board to act.

Having decided that the costs taxed against the petitioner are authorized by law, and that under the circumstances it cannot be said that his imprisonment for failure to pay them amounts to a violation of the Bill of Rights, and is not cruel or unusual punishment, and that the condition of the county jail is not ground upon which we may order his release, our responsibility ends. The board of county commissioners alone have authority to discharge the petitioner. The law and their oaths of office impose duties and responsibilities upon them which can neither be avoided at will nor shared with others.

It follows that the writ will be denied. All the Justices concurring.

(76 Kan. 353)

COSTIGAN. STEWART et al. (Supreme Court of Kansas. July 5, 1907.) ATTORNEY AND CLIENT-ATTORNEY'S LIEN.

An attorney, who is employed by the mother of an illegitimate child to assist in the prosecution of bastardy proceedings, under a contract by which he is to be paid an attorney's fee out of the fund recovered, is entitled to lien upon such fund for his fees.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 5, Attorney and Client, §§ 378-383.] (Syllabus by the Court.)

Error from District Court, Franklin County; C. A. Smart, Judge.

Action by W. J. Costigan against Anna B. Stewart and W. B. Kiler. Judgment for defendants, and plaintiff brings error. Reversed and remanded.

Benson & Harris and Ferry & Doran, for plaintiff in error. J. W. Deford, for defendants in error.

PORTER, J. The only question here is whether an attorney, employed by the mother to assist in the prosecution of bastardy proceedings, is entitled to a lien for his fees upon the money judgment recovered in the proceeding against the father. Emmanuel B. Stewart was convicted in the district in the district court of Franklin county of being the father of a bastard child born to Anna B. Stewart. Defendant was required to pay the sum of $1,200 for the support and maintenance of the child. On the order of the court W. B. Kiler was appointed trustee of the fund, which defendant at once paid into court. W. J. Costigan was employed by the prosecuting witness to assist the county attorney in the prosecution, and appeared in the proceedings before the justice and in the district court. She agreed to pay him as an attorney's fee one-third of the amount recovered. It appears that an offer of $500 made by defendant while the case was pending would have been accepted by the prosecuting witness in full settlement of the matter, except for the advice of Mr. Costigan, and there is no question that he performed the services for which he was retained. When the order was made appointing a trustee for the fund, Mr. Costigan informed the court of his contract, and asked to have his fee paid out of the fund. The court stated that the fund was still in the hands of the court, and required Mr. Costigan to make a formal application with proof. This was done, and a hearing was had upon affidavits; the trustee resisting any allowance of fees, while the mother of the child filed her affidavit stating that she had employed Mr. Costigan with the understanding that he was to receive one-third of the amount recovered, and that she desired the fee paid to him. The court refused to make the allowance, and held that the attorney was not entitled to any lien upon the fund for his fees. Mr. Costigan has brought the case to this court on error.

Courts have never doubted their authority to allow nor hesitated to give to an attorney a lien for his fees upon a fund which his labors have created or assisted to bring into existence, unless some considerations of public policy or other special reason stood in the way of such an equitable allowance. There is nothing analogous in the doctrine of the cases which refuse an attorney a lien upon money paid for alimony as as his fees for procuring the allowance. We have no quarrel with the principles announced in the case of Jordon v. Westerman, 62 Mich. 170, 28 N. W. 826, 4 Am. St. Rep. 836, or Lynde v. Lynde, 64 N. J. Eq. 736, 52 Atl. 694, 58 L. R. A. 471, 97 Am. St. Rep. 692, which are cited by defendant in error. There are valid reasons which control cases of that character which have no application to the present case. In

the former case Westerman, the attorney, collected $4,500 alimony, allowed to the wife by the court, and retained one-half. In the Lynde Case the amount was $41,000 and, the attorneys claimed and retained one-half. In each case the court compelled the attorney to relinquish his claim upon the fund and pay the whole sum to his client, because public policy will not uphold a contract which tends towards the separation of husband and wife and which seeks to prevent the adjustment of marital difficulties. Besides, the court always has power to award fees to the attorney for the wife; and, in each of the above cases, it was held that a fraud had been practiced in withholding from the court the object and purpose for which the allowance was to be used.

While the proceedings are carried on in the name of the state, and the statute provides for the arrest and imprisonment under certain circumstances of the person charged with being the father of an illegitimate child, the rules of evidence and the procedure are governed by the law regulating civil actions. The proceeding is therefore more in the nature of a civil action. The right to prosecute has been held optional with the mother. State ex rel. v. Young, 32 Kan. 292, 4 Pac. 309. Not only this, but she controls the prosecution, and may without let or hindrance accept satisfaction and dismiss the proceedings. Moore v. State ex rel., 47 Kan. 772, 28 Pac. 1072, 17 L. R. A. 714; Poole v. French, 71 Kan. 391, 80 Pac. 997. In the opinion in the latter case it is said: "The prosecution is under the direction of the relatrix. She may accept satisfaction and dismiss the action. Gleason, Sheriff, v. Com'rs of McPherson Co., 30 Kan. 492, 2 Pac. 644, 1 Pac. 384; State v. Baker, 65 Kan. 117, 69 Pac. 170. The money judgment is collectible by her, and her only if she be alive. Whether it be called an action or a special proceeding matters little. It is being prosecuted by a party who has a right under the statute so to prosecute against another party, who is called a defendant, for the enforcement of a right given to her by the statute."

Defendant in error also cites the note to the case of Crafts v. Carr, 24 R. I. 397, 53 Atl. 275, 60 L. R. A. 128, 96 Am. St. Rep. 721, 731, as to the liability of an infant for attorney fees as necessaries furnished in actions brought in his behalf. None of the cases in the note are in point, for the reason that the service for which the allowance in this case is asked was not performed for

on behalf of the infant, but on behalf of the mother who entered into the contract of employment. It is beside the whole question to contend that, because the judgment is in theory to be used for the support and maintenance of the child, the mother cannot out of the amount recovered pay to an attorney his fee for prosecuting the action. The statute makes no provision with respect to the manner in which the mother shall

expend the money. When it is paid to her she may, so far as the statute is concerned, use it for any purpose of her own-may buy jewelry with it-notwithstanding the fact that her statutory right to maintain the action is based upon the theory that she is entitled to receive assistance from the father for the support and maintenance of the child. She has the statutory right to prosecute the action and recover, although she may have independent means of her own, or even though the child has already been amply provided for. The fund recovered is hers for any and all purposes, and the child has no legal claim upon it or direct interest in it.

It is argued, however, that the mother has no pecuniary interest in the judgment. and it is said her only interest in the proceeding is to establish the parentage of the child. Such is not the law under our statute as declared by this court. In former numerous decisions the pecuniary interest of the mother in the fund has been recognized. In State ex rel. v. Reed, 46 Kan. 501, the trial court gave an instruction that the mother was a mere witness and in effect not pecuniarily interested. This court said: "This instruction is faulty in several respects. It states that the mother has no pecuniary interest in the support of her child. This statement could only have been made by the trial court upon the assumption that the mother of a bastard child is in no way responsible, under the law, for the support of such child. This is not the law. Under the law, the mother of an illegitimate child is all the while known, and is at all times, at least during its infancy, liable for its support, while the father of such child is unknown until ascertained by judicial proceedings, unless he acknowledge its paternity, and therefore he is liable only when the paternity of the child is acknowledged by him, or it is established by judicial inquiry. And when the paternity of the child is established by the judgment of the court, the law does not relieve the mother from liability for the support of her child, but compels the father, thus ascertained, to contribute his share to the support of such child. The mother must still do her part towards caring for and supporting her child. And again, so far as the judicial inquiry is concerned, the mother, who under the law must alone support her illegitimate child, unless its paternity is ascertained by such inquiry, has an interest in the result of the proceeding to the full extent of the contribution the court requires the accused, if found to be the father of her child, to make towards its support; and that is the measure also of the pecuniary interest the accused has in the inquiry."

In Moore v. State ex rel., supra, it was held that the mother might maintain the action, although she, as well as the child, was a resident of Illinois. In the opinion it

was said: "The enforcement of the statute by the mother both protects the municipality from the burden and makes the putative father contribute material aid to the mother in the maintenance and education of their illicit offspring. Our legislation has partaken very largely of this tendency. It seems that such proceedings can be instituted alone on the complaint of the mother. The money is to be paid to her, unless it appears that she is an improper person. She can at any time dismiss the suit, if she enters of record an admission that provision has been made for the maintenance of the child to her satisfaction. Such an entry is a bar to all other prosecutions for the same cause and purpose. Sections 19 and 21 of the act seem to be conclusive against the view that the sole purpose of the proceeding is to protect the public, for it provides that, in case of the death of the putative father of such child, the right of action shall survive against his personal representatives, and the death of the bastard child shall not the abatement of the proceedings.' If the sole or principal object of the statute is to protect the public from the maintenance of the child, the proceedings would abate with the death, for with the death the necessity for the statute would cease to exist." In Kolbe v. People, 85 Ill. 336, it was held that the mother is chiefly interested. The Illinois statute is substantially the same as ours.

In Minnesota, notwithstanding the mother is not given the sole right to institute the proceedings, hers is recognized as the chief interest and as pecuniary. State v. Zeitler, 35 Minn. 238. 28 N. W. 501. Again, the same court in another case, after referring to the duties and obligations of the mother to rear and maintain the child, and the statutory duty of the putative father to aid her in this respect. said: "Now, with these rights, duties, and obligations pertaining to the mother and father of a bastard child, how can it be reasonably said that the complaining mother has no pecuniary interest in the result of the suit? One of the objects of the statute is to compel him to pay to her such sum of money or other property as she may agree to receive in full satisfaction. Such is the language of the statute." State V. Nestaval, 72 Minn. 415, 75 N. W. 725.

The pecuniary interest of the mother, her right to begin, direct, control, settle, or dismiss the proceedings, are those which no other person shares with her; and it would seem to follow necessarily that she may contract for the employment of an attorney to assist the county attorney in prosecuting the action and provide for his payment out of the fund. No valid reason can, we think, be suggested against her right to do this. It is incidental to the right to institute and control the action.

The argument advanced so strenuously that no person can bind the estate of an

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