For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Hall, J.
The question involved here is whether an attorney assigned to represent an indigent defendant charged with murder may be allowed compensation for his services when no indictment was returned by the Grand Jury.
The defendant was brought before a municipal court in Essex County on a complaint for murder and bound over to await final determination of the cause. R.R. 8:3-3(c). Thereafter, while confined in the county jail pending action of the Grand Jury, he applied for assignment of counsel and the appellant, Hymen B. Mintz, Esq., was appointed specially by a county court judge to represent him. R.R. 1:12-9.*fn1 About two months later the Grand Jury returned a "no bill" (R.R. 3:3-8(b)) and the defendant went free. In the interim counsel had prosecuted proceedings seeking his client's release on bail and undertaken a factual investigation in preparation for defense should an indictment be found. He was without doubt diligent and conscientious in carrying out his assignment. The County Court denied his application for compensation for these services and he appeals directly to us since the matter arises in a cause involving murder. R.R. 1:2-1(c).
The question presented must be considered with full appreciation that New Jersey has always employed the assigned
counsel system for representation of indigent criminal defendants and that, under our version of that system, members of the bar are called upon to render such service without compensation as part of their professional obligation, except to the limited extent that remuneration is expressly provided for. See the discussion in State v. Horton, 34 N.J. 518 (1961). This State has never provided for compensation except in homicide cases. From the first authorization therefor in 1888 until 1948, the matter was governed entirely by statute. Since the latter date, it has been covered by both rule and legislation. See Horton (34 N.J., at pp. 527-528).
The inquiry here then is not whether this court, under the constitutional rule-making power or its inherent authority, could itself provide for and compel the payment of remuneration in the instant situation or, if so, whether it should, as a matter of policy, but rather whether the pertinent rule and statute do so provide. The problem is analogous to that dealt with in State in re Steenback, 34 N.J. 89, 103-104 (1961), where counsel assigned by the Juvenile and Domestic Relations Court to defend juveniles charged with delinquency, which would have amounted to murder had they been adults, applied for compensation for their services at trial. Looking at the matter from the viewpoint just indicated, we held that the claim had to be rejected since there was no "murder case" within the terms or contemplation of the rule and statute.
Turning to the situation at bar, the applicable rule (R.R. 1:12-9(d) at the time; now R.R. 1:12-9(f)) reads: "In cases of murder, counsel * * * shall be assigned by the court specially and shall be allowed reasonable compensation." The present statute, enacted in the revision of 1952, provides (N.J.S. 2A:163-1):
"Where counsel assigned by the court to represent a defendant in a murder case has been allowed compensation by the court for his services, the sum so fixed shall be paid by the county treasurer of
the county where the indictment was found, upon presentation of a certificate of the judge, fixing and allowing such compensation."
The position of Mr. Mintz is that the terminology, "cases of murder" in the rule and "murder case" in the statute, is broad enough to cover a charge of murder on which the defendant is bound over to await the action of the Grand Jury even though no indictment is subsequently found. He further says that the legislative language referring to "the county where the indictment was found" is merely directory or descriptive of the county which is to pay the allowance rather than constituting the imposition of a condition precedent to the compensability of services.
Commencing in 1888 and down to the 1952 revision of Title 2 of the Revised Statutes of 1937, the pertinent statutory section provided not only the direction to pay attorney allowances from public funds in homicide cases but dealt as well with the right to the assignment of counsel in all criminal causes and the authority of the court to award ...