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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 reover no compensation, while the same oflicer 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 16), p. 242, Laws 1887, is broad enough to include the provision of sec tion 5 thereof (section 2176, 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 liguor law.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, 88 158-160.] 2. IIABEAS 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 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, 1903. 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 bad paid the other costs, and declare their purpose to keep the petitioner in the county jail for his natural life

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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.

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 section 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 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

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 pre sented 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 de sire to be relieved of the responsibility of the situation, and to obtain a decision wbich 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

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excessive nor unusual punishment inflicted, has so long presided over the district court a law which has the effect to impose such is a severe condemnation of the jail and its penalty should be held to be' void. The court conditions and surroundings. Jails are never in the opinion declared that chapter 199, p. desirable places in which to remain; but 293, Laws 1889, was void, because in at- the dictates of humanity demand that some tempting to amend chapter 117 p. 279, Laws consideration should be given to the com1871, providing for the discharge of prisoners fort, and especially to the health, of those unable to pay the costs, the Legislature, in compelled to occupy them. As communities the title to the act, provided for amending become more enlightened and properous, the chapter 147, in place of 117. In the opinion tendency is in favor of bettering the condiit was said by Justice Johnston: "A plausi- tion of all classes of unfortunate persons ble argument to sustain this view was made who are committed to the care of the public. in behalf of the defendant, and there would It must be obvious, however, that we cannot be great force in his contention if chapter order the petitioner released on account of 199, p. 293, Laws 1889, could be treated as the condition of the jail. To do so would rea valid law.” As the case was decided ex- quire us on similar applications to order the pressly upon the proposition that the law release of all prisoners confined there. was void, the expressions which are relied The authority of the board to discharge upon are obiter. In State v. White, 44 Kan. the petitioner is conferred by section 5698, 514, 25 Pac. 33, this section of the Bill of Gen. St. 1901, which reads as follows: "Any Rights was under consideration, and it was person imprisoned for failure to pay any said by Justice Valentine that the provision fine or costs may be discharged from im"probably, however, relates to the kind of prisonment by the board of commissioners of punishment to be inflicted, and not its dura- the county where conviction took place, on tion."

satisfactory proof to them that said person But it is unnecessary to decide whether is unable to pay the same." The act gives imprisonment for the nonpayment of costs, the board power in their discretion to diswhere the prisoner is unable to pay them, charge him; but it is not mandatory. An acmight not, under some circumstances, amount tion of mandamus would not lie to compel to cruel and unusual punishment; for, not- the board to act. withstanding the threats of the board, if Having decided that the costs taxed against threats they can be termed, to keep the peti- the petitioner are authorized by law, and tioner confined for the remainder of his life,

that under the circumstances it cannot be we would have no right to assume that the

said that his imprisonment for failure to pay present or some future board will not deal them amounts to a violation of the Bill of justly in the matter and order him released

Rights, and is not cruel or unusual punishwhen satisfied of his inability to pay the

ment, and that the condition of the county costs. Some criticism of the present board

jail is not ground upon which we may orhas been indulged in by counsel for the state, der his release, our responsibility ends. The and the members have been charged with a

board of county commissioners alone have disregard of the claims of humanity and jus

authority to discharge the petitioner. The tice in their persistence in refusing to order

law and their oaths of office impose duties the petitioner released. The matter has been

and responsibilities upon them which can before the board a number of times, and nu

neither be avoided at will nor shared with merous and various resolutions have been

others. adopted to bring about an adjustment of the

It follows that the writ will be denied.

All the Justices concurring. 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.

(76 Kan. 353) The difficulty appears to be that the board

COSTIGAN V. STEWART et al. has never been able to see over and beyond

(Supreme Court of Kansas. July 5, 1907.) the $1,300. Doubtless they would not hesitate ATTORNEY AND CLIENT-ATTORNEY'S LIEN.

to order the expenditure of as large an

An attorney, who is employed by the moth

er of an illegitimate child to assist in the proseamount to build a bridge over a creek and cution of bastardy proceedings, under a consave a few taxpayers some slight inconven- tract by which he is to be paid an attorney's ience in travel, but the expenditure of $1,300

fee out of the fund recovered, is entitled to lien

upon such fund for his fees. of the county's money to uphold and enforce

[Ed. Note. For cases in point, see Cent. Dig. the criminal laws of the county seems to

vol. 5, Attorney and Client, 88 378-383.] them to be money thrown away. In this era

(Syllabus by the Court.) of law enforcement most people would regard the sum as insignificant when added Error from District Court, Franklin Counto the taxes of a large and populous county ty; C. A. Smart, Judge. and compared to the advantage which must Action by W. J. Costigan against Anna B. accrue to the community in vindicating law Stewart and W. B. Kiler. Judgment for de and order and suppressing lawlessness.

fendants, and plaintiff brings error. ReThe certificate of the honorable judge who versed aud remanded.

Benson & Harris and Ferry & Doran, for the former case Westerman, the attorney, colplaintiff in error. J. W. Deford, for defend-lected $4,500 alimony, allowed to the wife ants in error.

by the court, and retained one-half. In the

Lynde Case the amount was $41,000 and, PORTER, J. The only question here is the attorneys claimed and retained one-half. whether an attorney, employed by the mother In each case the court compelled the attorney to assist in the prosecution of bastardy pro- to relinquish his claim upon the fund and pay ceedings, is entitled to a lien for his fees the whole sum to his client, because public upon the money judgment recovered in the policy will not uphold a contract which tends proceeding against the father. Emmanuel towards the separation of husband and wife B. Stewart was convicted in the district

in the district and which seeks to prevent the adjustment of court of Franklin county of being the father marital difficulties. Besides,

Besides, the court alof a bastard child born to Anna B. Stewart. ways has power to award fees to the attorDefendant was required to pay the sum of ney for the wife; and, in each of the above $1,200 for the support and maintenance of cases, it was held that a fraud had been the child. On the order of the court W. B. practiced in withholding from the court the Kiler was appointed trustee of the fund, object and purpose for which the allowance which defendant at once paid into court. W. was to be used. J. Costigan was employed by the prosecuting While the proceedings are carried on in the witness to assist the county attorney in the name of the state, and the statute provides prosecution, and appeared in the proceedings for the arrest and imprisonment under cerbefore the justice and in the district court. tain circumstances of the person charged with She agreed to pay him as an attorney's fee being the father of an illegitimate child, the one-third of the amount recovered. It ap


rules of evidence and the procedure are govpears that an offer of $500 made by defend- erned by the law regulating civil actions. ant while the case was pending would have The proceeding is therefore more in the nabeen accepted by the prosecuting witness in ture of a civil action. The right to prosefull settlement of the matter, except for the cute has been held optional with the mother. advice of Mr. Costigan, and there is no ques- State ex rel. v. Young, 32 Kan. 292, 4 Pac. tion that he performed the services for which 309. Not only this, but she controls the prosehe was retained. When the order was made cution, and may without let or hindrance acappointing a trustee for the fund, Mr. Cos- cept satisfaction and disiniss the proceedings. tigan informed the court of his contract, and Moore v. State ex rel., 47 Kan. 772, 28 Pac. asked to have his fee paid out of the fund. 1072, 17 L. R. A. 714; Poole v. French, 71 The court stated that the fund was still in

Kan. 391, 80 Pac. 997. In the opinion in the the hands of the court, and required Mr. latter case it is said: "The prosecution is unCostigan to make a formal application with der the direction of the relatrix. She may proof. This was done, and a hearing was had accept satisfaction and dismiss the action. upon affidavits; the trustee resisting any al- Gleason, Sheriff, v. Com'rg of McPherson lowance of fees, while the mother of the child Co., 30 Kan. 492, 2 Pac. 644, 1 Pac, 384; State filed her affidavit stating that she had em- v. Baker, 65 Kan. 117, 69 Pac. 170. The monployed Mr. Costigan with the understanding

ey judgment is collectible by her, and her that he was to receive one-third of the amount only if she be alive. Whether it be called an recovered, and that she desired the fee paid action or a special proceeding matters little. to him. The court refused to make the allow

It is being prosecuted by a party who has a ance, and held that the attorney was not en- right under the statute so to prosecute against titled to any lien upon the fund for his fees. another party, who is called a defendant, Mr. Costigan has brought the case to this for the enforcement of a right given to her court on error.

by the statute." Courts have never doubted their authority Defendant in error also cites the note to to allow nor hesitated to give to an attorney the case of Crafts v. Carr, 24 R. I. 397, 53 Atl. a lien for his fees upon a fund which his 275, 60 L. R. A, 128, 96 Am. St. Rep. 721, labors have created or assisted to bring into 731, as to the liability of an infant for existence, unless some considerations of pub

attorney fees as necessaries furnished in lic policy or other special reason stood in the

actions brought in his behalf. None of the way of such an equitable allowance. There

cases in the note are in point, for the reais nothing analogous in the doctrine of the son that the service for which the allowance cases which refuse an attorney a lien up- in this case is asked was not performed for on money paid for alimony as his fees or on behalf of the infant, but on behalf for procuring the allowance. We have no of the mother who entered into the contract quarrel with the principles announced in the of employment. It is beside the whole quescase of Jordon v. Westerman, 62 Mich. 170, 28 tion to contend that, because the judgment N. W. 826, 4 Am. St. Rep. 836, or Lynde v. is in theory to be used for the support and Lynde, 64 N. J. Eq. 736, 52 Atl. 694, 58 L. R. maintenance of the child, the mother cannot A. 471, 97 Am. St. Rep. 692, which are cited by out of the amount recovered pay to an atdefendant in error. There are valid reasons torney his fee for prosecuting the action. which control cases of that character which The statute makes no provision with respect have no application to the present case. In to the manner in which the mother shall expend the money. When it is paid to her was said: "The enforcement of the statute she may, so far as the statute is concerned, by the mother both protects the municipaluse it for any purpose of her own-may ity from the burden and makes the putabuy jewelry with it-notwithstanding the tive father contribute material aid to the fact that ber statutory right to maintain mother in the maintenance and education the action is based upon the theory that she of their illicit offspring. Our legislation has is entitled to receive assistance from the partaken very largely of this tendency. It father for the support and maintenance of seems that such proceedings can be instithe child. She has the statutory right to tuted alone on the complaint of the mother. prosecute the action and recover, although The money is to be paid to her, unless it she may have independent means of her appears that she is an improper person. She own, or even though the child has already can at any time dismiss the suit, if she enbeen amply provided for. The fund re- ters of record an admission that provision covered is hers for any and all purposes, has been made for the maintenance of the and the child has no legal claim upon it child to her satisfaction. Such an entry is or direct interest in it.

a bar to all other prosecutions for the same It is argued, however, that the mother cause and purpose. Sections 19 and 21 of has no pecuniary interest in the judgment, the act seem to be conclusive against the and it is said her only interest in the pro- view that the sole purpose of the proceeding ceeding is to establish the parentage of the is to protect the public, for it provides that, child. Such is not the law under our stat- 'in case of the death of the putative father ute as declared by this court. In former of such child, the right of action shall surnumerous decisions the pecuniary interest vive against his personal representatives, of the mother in the fund has been recog- and the death of the bastard child shall not nized. In State ex rel. v. Reed, 46 Kan.


cause the abatement of the proceedings.' 501, the trial court gave an instruction that If the sole or principal object of the statute the mother was a mere witness and in effect is to protect the public from the maintenance not pecuniarily interested. This court said:


of the child, the proceedings would abate *This instruction is faulty in several re- with the death, for with the death the spects. It states that the mother has no necessity for the statute would cease to pecuniary interest in the support of her exist." In Kolbe v. People, 35 Ill. 336, it child. This statement could only have been was held that the mother is chiefly intermade by the trial court upon the assumption ested. The Illinois statute is substantially that the mother of a bastard child is in no the same as ours. way responsible, under the law, for the sup- In Minnesota, notwithstanding the mother port of such child. This is not the law. is not given the sole right to institute the Under the law, the mother of an illegiti- | proceedings, hers is recognized as the chief mate child is all the while known, and is at interest and as pecuniary. State v. Zeitler, all times, at least during its infancy, liable 35 Jinn. 238. 28 X. W. 501. Again, the for its support, while the father of such same court in another case, after referring child is unknown until ascertained by ju- to the duties and obligations of the mother dicial proceedings, unless he acknowledge its to rear and maintain the child, and the paternity, and therefore he is liable only

statutory duty of the putative father to aid when the paternity of the child is acknowl- her in this respect. said: "Now, with these edged by him, or it is established by judi- rights, duties, and obligations pertaining to cial inquiry. And when the paternity of the mother and father of a bastard child, how the child is established by the judgment of can it be reasonably said that the complaining the court, tie law does not relieve the moth- mother has no pecuniary interest in the reer from liability for the support of her child, sult of the suit? One of the objects of but compels the father, thus ascertained, to the statute is to compel him to pay to her contribute his share to the support of such such sum of money or other property as she child. The mother must still do her part may agree to receive in full satisfaction. towards caring for and supporting her child. Such is the language of the statute.” State And again, so far as the judicial inquiry is v. Vestaral, 72 Minn. 415, 75 X. W. 725. concerned, the mother, who under the law The pecuniary interest of the mother, her must alone support her illegitimate child, right to begin, direct, control, settle, or disunless its paternity is ascertained by such miss the proceedings, are those which no inquiry, has an interest in the result of other person shares with her; and it would the proceeding to the full extent of the con- seem to follow necessarily that she may tribution the court requires the accused, if contract for the employment of an attorney found to be the father of her child, to make to assist the county attorney in prosecuting towards its support; and that is the meas- the action and provide for his payment out of ure also of the pecuniary interest the ac- the fund. No valid reason can, we think, cused has in the inquiry."

be suggested against her right to do this. In Moore v. State ex rel., supra, it was It is incidental to the right to institute and held that the mother might maintain the control the action. action, although she, as well as the child, The argument advanced so

so strenuously as a resident of Illinois. In the opinion it that no person can bind the estate of an

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