Opinion
No. 39012
Decided April 7, 1965
Criminal procedure — Assigning counsel to defend indigent — Payment for services — Fees fixed by statute — Section 2941.51, Revised Code, construed — Mandamus.
APPEAL from the Court of Appeals for Miami County.
The appellants, Thornburgh and Swinehart, practicing attorneys, were assigned by the Common Pleas Court to defend an indigent charged with armed robbery. Upon the completion of their duties, the Common Pleas Court issued to each of them a certificate for the payment of expenses in the sum of $25 and fees in the sum of $300. The appellee, auditor, honored the certificates in the amount of the expenses and only $150 each for fees.
Appellants brought the instant action in the Court of Appeals, seeking a writ of mandamus to require the auditor to draw an order on the county treasurer for the payment of $150 to each of the appellants.
A demurrer was filed to the petition on the ground that it does not state a cause of action.
The Court of Appeals sustained the demurrer and, the appellants not desiring to plead further, dismissed the petition.
An appeal as of right brings the cause to this court for review.
Mr. William H. Thornburgh and Mr. Howard E. Swinehart, in propria personae. Mr. James H. DeWeese, prosecuting attorney, for appellee.
Appellants contend that under Section 2941.51, Revised Code, each appellant is entitled to a fee of $300. Appellee contends that under the statute appellants are entitled to only a total fee of $300.
That section provides that "counsel * * * shall be paid for their services by the county, and shall receive therefor:
"(A) In a case of murder * * * such compensation and expenses as the trial court may approve.
"(B) In other cases of felony, such compensation as the trial court may approve, not exceeding three hundred dollars and expenses as the trial court may approve.
"* * *
"The county auditor shall draw his order on the county treasurer for the payment of such counsel in the amount fixed by the court, plus expenses as the court may fix, and certified by the court to the auditor."
The word, "counsel," in the above-quoted section is used in the plural as well as in the singular, as is evidenced by the words, "counsel * * * shall be paid for their services." The section limits to $300 the amount the court may allow counsel for the services they have rendered.
Upon the facts alleged in the petition, appellants have not shown a clear legal duty on the part of the appellee to draw an order on the county treasurer for the additional payment of $150 to each appellant.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.