260 Mo. 500 | Mo. | 1914
Lead Opinion
— Action to restrain defendants‘from auditing and causing to be paid out of the county treasury certain expenses in a criminal case.
The plaintiffs bring this action in equity as taxpayers of Jackson county, to enjoin the defendants as judges of the county court of that county from auditing, allowing and causing to be paid out of the public funds of said county the sum of $15,000, which defendants are threatening to expend in defraying the cost
Plaintiffs do not charge that defendants have acted fraudulently or corruptly in causing the public funds of said county to be paid out in defraying the expenses of the trial of said case of State v. Hyde; nor in the threatened expenditure of other moneys in that behalf, but the gist of their complaint is that there is no law empowering defendants as such judges to audit and cause such expenses to be paid; and that while defendants would be personally liable for causing such an unlawful disbursement of public funds, the right to sue for such misappropriated funds “resides with the county” and plaintiffs will possess no individual right to maintain an action or actions at law to recover such funds for the county after they have been unlawfully audited and disbursed.
The particular order entered by defendants regarding future disbursements of which petitioners complain is predicated upon a letter written by the prosecuting attorney of Jackson county, which letter and the order made pursuant thereto are as follows:
December 18, 1913.
To the Honorable County Court of Jackson County, Mo., Kansas City, Missouri.
Gentlemen:
I am submitting this letter to you in pursuance to our conversation of yesterday relative to the financing of the coming trial of the State of Missouri versus Hyde.
*509 Of course it is impossible for me to definitely state how 'much money will be required to try this case, since that is altogether regulated by the length of time which the nurses and experts and other witnesses from outside the State remain in Kansas City. During the last trial one expert in particular, Dr. Wesner, was in Kansas City for several weeks, and I am hoping that no such condition will arise this time. This would materially cut the expenses in this case. However, for expert testimony and the bringing of a large number of witnesses from all parts of the United States I estimate that $15,000 will cover the expenses of this trial.
Of course I am not asking for any money to be placed in my hands — only the right to get these people to come here and to have them paid by the court. I want no funds of any character or description to be placed in my hands. I will say this to the court — that I shall be as economical as possible in the trial of this case, and it will please me probably more than any one else if the expenses of this trial can be greatly reduced.
Trusting this letter meets your requirements and you can each of you vote to allow the funds to try this very important murder case, I beg to remain,
Respectfully yours,
Floyd E'. Jacobs.
ORDER.
This cause now coming on for hearing the court orders, by unanimous vote, that in compliance with the above communication from the county prosecuting attorney dated December 18, 1913, requesting this court to pay out of the general funds of Jackson county, Missouri, the expenses [estimated by said prosecuting attorney at not to exceed fifteen thousand dollars! for the payment of expert witnesses and the expenses of bringing a large number of witnesses to Kansas City, Missouri, from different locations in the United States for the trial of the case of State of Missouri v. B. Clark Hyde, that said expenses be paid out of the general funds of the said county upon the presentation to the court of said bills approved by the prosecuting attorney.
The defendants by answer assert that the money which they intend to disburse 'out of the public funds of Jackson county is a necessary expenditure to procure the attendance of witnésses residing outside the State of Missouri. That said witnesses have made a chemical analysis of the stomach and other vital organs
We will now review the evidence which tends to prove the motives of the plaintiffs and their attorneys in prosecuting this suit:
In the trial of this cause it was shown that plaintiff Peltzer paid to Jackson county, through its collector, taxes aggregating $16.25 for and during the year 1912, and that plaintiff Bowling paid to said county sixty-one cents for the same year. Roland Hughes is the principal attorney for plaintiffs in the prosecution of this action. The firm of Johnson & Lucas and one Cleary were some of the attorneys employed by B. Clark Hyde to defend him against the before-mentioned charge of murder.
To prove that this suit was brought and maintained at the suggestion and expense of the attorneys ' of B. Clark Plyde, or for the benefit of said Hyde, the defendant introduced one James W. Broaddus, who-testified as follows:
“My name is James W. Broaddus. I am an attorney, have been since last June. My office is with my grandfather,- E. J. Broaddus, formerly judge of the Court of Appeals in-this district, at 1305 Commerce building. I know where Plughes & Whitsett’s office is on the same floor with ours. Mr. 'Plughes uses our Bell phone once in awhile.
“Q. I will ask you whether or not Mr. Plughes came in there a few days ago and had a conversation in which he called up Johnson & Lucas.’s office? A. Monday afternoon, the 12th of this month.
“Q. What was said, if anything? What was said in that conversation, the first thing that was said?
“Mr. Hughes: We object to that conversation as-immaterial and irrelevant.
‘ ‘ The Presiding Judge: The objection will be sustained.
*512 “ (Here followed an argument between counsel and court as to the admissibility of this evidence.)
“Whereupon the presiding judge said: This testimony will be admitted in view of the fact that testimony along the same line was let in without objection on your part at all, and it might be deemed in the way of impeachment of former testimony.
“To which ruling and action of the court the plaintiff and each of them then and there duly excepted and still except.
“ Q. What was the first thing done by Mr. Hughes when he came into your office? A. This kind of embarrasses me. I didn’t intend for this to happen. This is all I know about it. He came in there Monday and took the telephone and called up and said, ‘Is this Johnson & Lucas’s office?’ He said, ‘I would like to speak to Judge Johnson.’
“Q. Who said that? A. Mr. Hughes. He said, ' ‘ This is Roland Hughes, Roland Hughes talking. ’ Then he said, ‘Peltzer informs me that there has been no arrangement made in regard to my fee in this matter, ’ and he said, ‘I would like to know about it.’ Of course, ordinarily, I don’t pay any attention to those things, but there had been so much of this in the newspapers that it just attracted my attention to that. Mr. Hughes listened and pretty soon said, ‘All right,’ and that is all I know about it. I told Mr. Hughes this morning that I had been subpoenaed. I wanted him to know about it. I told him what I would testify to. He said he had some recollection about saying something. He did not say he said it, he said he had no recollection of saying it, he admitted he came in there, and asked me what I remembered and I told him just what I have told here.
“ Cross-examination by Mr. Hughes.
“Q. What did I tell-you about it after you told me? A. You said you had no recollection about that.
*513 “Q. No, what did I say about testifying to the conversation? A. You said, Go ahead; you. said you didn’t care. You said, ‘All right.’ I wanted you to know it before I got on the stand. I told Mr. Jacobs last night I wanted to see you first.”
After witness Broaddus had testified, W. T. Johnson .was called by plaintiff and testified as follows:
“My name is W. T. Johnson, I am an attorney, for B. Clark Hyde, charged with murder, and have been since the beginning of the suit.
“ Q. I will ask you whether or not Roland Hugfies called you up on the 12th day of this month, last Monday, at your office in this city, and talked to you about his fee from Mr. Peltzer in this injunction suit? A. He did'not.
“Q. He never said a word to you? A. No, sir.,
“Q. Neither one way or the other? A. No, sir.
“Q. I will ask you if he didn’t call you up and ask you about why he was to get his money from Peltzer? A. He never did.
“Q. Never at any time or on any occasion? A, No, sir.
“Q. Never said a single word to you? A. No, sir.
“Q. Did you ever discuss the fee with him at all? A. No, sir.
“Q. Did you ever have an automobile ride with-him in which you discussed the fee with him? A. I did not.” . .
Roland Hughes, attorney for plaintiff, did not testify after Broaddus gave the evidence hereinbefore quoted. However, Mr. Hughes was called by the plaintiff before Mr. Broaddus was sworn,- and, when interrogated regarding any conversation. he had had with-W. T. Johnson (attorney for Hyde) about this suit, testified as follows-:
*514 “Q. Have you ever talked with Judge Johnson about this matter, J. M. Johnson? A. I don’t think I ever did.
“Q. I mean W. T. Johnson? A. Yes, sir.
"Q. When did you talk to Mr. Johnson about the matter? A. Oh, I don’t know. T expect it was last summer sometime.
"Q. When did you talk to him last? A. I don’t know whether it was yesterday or the day before.
"Q. You know he is attorney for Dr. Hyde? A. I know he is so reported in the newspapers. . . . I think I was in the court room one day when that trial was going' on. I do not think I have discussed with him the fact he was attorney or in any way connected with that matter.
"Q. Would you say you have not in any phase? A. You mean in connection with this suit?
"Q. Yes, sir. A. No, I don’t think so. ... .
"Q. Did you talk to him about Mr. Peltzer? A. No, sir.
"Q. Have you ever had any conversation with him about Mr. Peltzer? A. Well, I don’t know, I think I have since this suit was brought.
"Q. When? A. I don’t know. Since this suit was brought.
"Q. Where? A. Let me see if I can recall that. I don’t know whether I met him on the sidewalk or called him up over the telephone. I called him up probably by telephone once.
"Q. Where were you? A. Probably in Judge Broaddus’s office, because I have no telephone that connects with his office. He uses the Bell ’phone.'
"Q. You haven’t the Bell ’phone? ' A. No, sir. Judge Broaddus’s office is probably 150 to 200 feet from my office on the same floor.
"Q. Do you use that Bell ’phone frequently? A. Not frequently, but occasionally.
*515 ‘ ‘ Q. Have you any distinct recollection of calling up Judge Johnson relative to this matter over the Bell ’phone in Judge Broaddus’s office? A. It is not very distinct. I think I did, though.
“Q. Have you any recollection whatever of talking to him about Mr.-Peltzer? A. I think so.
“Q. When was that? A. Well, that was probably- — this is Friday, isn’t it?
“Q. Yes. A. I wouldn’t be positive about the day, but it was probably Monday or Tuesday evening after this suit was brought. I rode home with him in an automobile.
“Q. Have you a recollection now of that? A. Yes, sir.
“Q. And you have a recollection of a conversation relative to Mr. Peltzer? A. I think so.
“Q. Well, have you or not? A. What I mean is that while we rode home something was said about Mr. Peltzer.
“Q. What was that? A. I couldn’t tell you now what was said.
“Q. Don’t you know? A. No, I don’t think I do.
“Q. I will ask you if you discussed with him at-that time the question of your fee from Mr.«Peltzer? A. No, sir.
“Q. Are you positive of that? A. I think I am positive that we did not discuss any question as to Mr. Peltzer.
“Q. I didn’t ask you that; I asked you if you discussed the question of a fee from Mr. Peltzer with Judge Johnson in his automobile? A. That is what I understood the question to be. Judge Johnson, as I started home, came from his office, and his automobile was standing at the curb, and he invited me to ride home with him, and I did, and we talked about this case, and I don’t know, it may have been in that conversation, I wouldn’t be positive about it, that some*516 thing was said about the fee, and I said to Mr. Johnson that whatever compensation came to me it would have to come from my clients. . . .
“Q. How did you come to be discussing this matter of your fee in this case with Judge Johnson? A. Oh, I don’t know, just like lawyers riding along and talking about everything.
“Q. How did you come to talk to him about such a matter? A. I don’t know. I couldn’t tell you that. That is a psychological question. I can’t answer that question. I am not an expert. . . .
“Q. Did the fact that Judge Johnson was an attorney for Hyde have anything to do with your discussion of that fee? A. I think not.
“Q. Will you say it did not? A. No, sir.
“Q. What would you say about it? A. I don’t know what prompted the conversation in his mind. I couldn’t say.
“Q. I am talking about your mind. You are the man that told him about the fee. A. About how that conversation came up?
“Q. Did he suggest the question of the fee, or did you? A. I don’t know. ...
“Q. I want to. call your attention to a certain conversation and ask you if it transpired a few days ago, where you went in the office of Judge Broaddus, formerly judge of the Court of. Appeals in this district, and took their Bell ’phone and called up the. office of Johnson & Lucas? A. I think I told you I did that.
“Q. I will ask you whether or not when you got that number you asked for Judge Johnson to come to the phone? A. I don’t know.
“Q. Will you say whether you did or did not? A. No, I won’t.
“ Q. You won’t say you did and you won’t say you didn’t? A. I won’t say that I didn’t, and I don’t have any recollection now of asking that question.
*517 “Q. I will ask you if you finally di,d get Judge Johnson on the phone? A. I told you-1 thought I talked with him over that phone.
“Q. I will ask you if you made a statement of this character to him: That you were getting skittish about your fee from Peltzer? A. No, sir. I never used any such word as that to Judge Johnson or anybody else.
“Q. I will ask you if you said anything over that telephone to him relative to your fee from Peltzer? A. I don’t know. If I did, it was something like this, that no arrangement had been made with Mr. Peltzer about my fee.
“Q. . Why did you call Judge Johnson up and why did you say that to him over the telephone? A. I don’t know. I have no distinct recollection now of why I said it.
“Q. Isn’t it a fact that it was because he was the attorney for Hyde and because -he was involved in the bringing of this injunction suit? A. Not at all.
“Q. • You say that had nothing to do with it? A. He was not involved in the bringing of this injunction suit any more than you were.”
Mr. Hughes further testifying stated that he could not recall having transacted any legal business with Mr. Peltzer before bringing this suit; that when Mr. Peltzer called he (Hughes) stated that, he would be glad to bring the suit if Peltzer had some reputable 'taxpayers to join in it. That he had talked with plaintiff Bowling about the suit and knew Bowling’s feelings in the matter. That he called Bowling over the phone and the latter consented to the suit being brought in the name of Peltzer and Bowling, whereupon the suit was instituted without any. understanding with plaintiffs about paying any attorney’s fee. That two days after the suit was brought plaintiff Peltzer called witness Hughes to his office, paid him $100 and asked
Mr. Bowling, one of the plaintiffs, testifying in his own behalf, gave evidence regarding the attorney’s fee and expenses of this suit as follows:
“Q. When did you first talk with Mr. Peltzer relative to bringing this injunction suit? A. I have not talked with him at all. I haven’t talked with him at any time or any place. . . .
“Q. Who have you talked to about this suit? A. Nobody. Mr. Hughes called me up over' the phone to know if I would allow my name to be used in connection with Mr. Peltzer. . . .
“Q. Are you paying Mr. PIugh.es his fee for this injunction suit? A. No, sir. . . . I know Mr. Johnson, have known him a good many years. I knew his father. He has never discussed this matter with me. I do not know who is paying the expenses, attorneys’ fees and costs in this proceeding. I don’t know a syllable about that in any form or shape. I never heard anything about it at all. . . .
“Q. Haven’t you a pretty clear recollection of what he said to you when he called you up and asked for the use of your name in this extraordinary proceeding ?
“Mr. Hug’hes: Plaintiffs object on the ground that it is not an extraordinary proceeding. It is as common as a suit on a promissory note.
“The Presiding Judge: The objection will be. overruled.
“To which ruling and action of the court the plaintiffs and each of them then and there duly excepted and still except.
“A. I think I am pretty clear as to what transpired between me and Mr. Plughes at the time he called me up and asked for the use of my name in this proceeding.
*519 “Q. Well, then, did he say to you that you would not have to pay him an attorney’s fee? A. No, sir.
“Q. Did yon ask him if you would have to pay him an attorney’s fee? A. No, sir.
“Q. Did he say anything to you about these costs devolving on you? A. I don’t remember that he did.
“Q. Will you say that he did not? A. No, sir; I don’t believe he did, though. I don’t think I am quite clear on that, just what he said, if he said anything.
“Q. Do you expect to pay a dollar of costs in this case, if the costs'devolve upon you to pay?
“Mr. Whitsett: We object to that.
“The Presiding Judge: Overruled.
‘ ‘ To which ruling and action of the court the plaintiffs and each of them then and there duly excepted and still except.
“A. I am not informed about that. I may . . .
“Q. Do you expect to be reimbursed in the event, you have to pay costs? A. I would hope so; I don’t know. I don’.t know where it would come from.”
Further evidence of plaintiff Bowling is to the effect that he is a neighbor and friend of attorney Hughes, and has employed said Hughes in other litigation.
Plaintiff Peltzer, called as a witness by defendants, stated that, being of the opinion that the payment of the expenses in the Hyde case by Jackson county was illegal, he called upon attorney Cleary, whom he had frequently employed, and Cleary stated that he could not bring the suit to enjoin the county court because he was Mr. Hyde’s attorney. He then asked Mr. Cleary about going tó Hughes,, and Cleary said “all right;” that he then went to Hughes, mainly because the latter had once been prosecuting attorney of Jackson bounty. Plaintiff Peltzer said that two days after this suit was brought he asked Hughes what his fee would be, and the latter said he thought that
Plaintiff Peltzer stated that he had no understanding with Mr. Oleary, Johnson & Lucas, or any other attorney for Hyde, about paying the costs of the suit; that he did not expect to get anything out of the case whether he won it or lost it. Witness was asked if he knew any reason why Mr. Hughes should call up Judge Johnson of the firm of Johnson & Lucas and ask him in relation to the attorney’s fee in this case, and he replied that he did not. •' .
OPINION.
The necessity of good faith on the part of plaintiffs in prosecuting an action in chancery is announced by Mr. High in his treatise on the law of Injunction (4 Ed.), vol. 2, sec. 1302, p. 1317, as follows:
*521 “Taxpayer must sue in good faith. The general rule, as stated in the preceding sections, is also to be understood as limited to cases where the action is instituted by the taxpayer in good faith, and for the protection of his own interest. And where a taxpayer seeks to restrain an alleged waste or injury to the property of a city, equity will not extend him relief when it is shown that the action is not brought in good faith for the protection of his own interest, but that he is merely a colorable plaintiff, suing in behalf of other parties in interest.”
In harmony with the views of Mr. High, it was held by the Supreme Court of New York in the case of Hull v. Ely, 2 Abb. New Cas. 440, that a taxpayer could'not-enjoin the sale of a ferry franchise owned by a city where it was shown that the principal purpose of the suit was to enable other parties, at whose instance the suit was instituted, to enjoy the benefits of the ferry franchise while it remained the property of the city. . That action was one at law which authorized injunctive relief to a taxpayer in a suit to stay waste by the city, but the court ruled that plaintiff was not entitled to relief either at law or equity.
The last-quoted decision was approved in Kimball v. Hewitt, 17 N. Y. St. Rep. 743, l. c. 745, where it was appropriately said by Van Hoesen, J., that “in all applications of this character it is the 'duty of the court to see to it that he who undertakes to champion the public cause is actuated by public motives, and that he is not making use of the power of the court to accomplish some private end.”
While approving, in a general way, the doctrine of these cases, it is not necessary for us to take the extreme ground which they announce. Those actions were on a right expressly given by a statute, but the suit at bar rests only on equitable principles, and the doctrine that one who demands this extraordinary writ must come with clean hands and proceed from honest
Coming back to the facts of this case, it appears that plaintiff Bowling had paid sixty-one cents into the public treasury of Jackson county, and might be injured a few cents by the alleged misappropriation of part of the public funds. Pie only became a party plaintiff at the request of attorney Hughes for the ostensible purpose of giving the cause a better appearance; it being the expressed desire of the latter that several taxpayers should join Peltzer in the action. We think, under the admitted facts, that Mr. Bowling’s interest in this suit may safely drop out of view altogether.
Mr. Peltzer, the principal plaintiff, has testified quite positively that he alone is responsible for this action and the attorney’s fees for prosecuting same; but notwithstanding its unequivocal character his testimony is not convincing.
A taxpayer injured only to the extent of a few dollars or a few cents, and desiring to bring an action of this character, is a man who usually counts the cost of every outlay and expends no more money on anything than is necessary. According to Mr. Peltzer’s testimony he was very desirous to know just what Mr. Hughes’s fee would be, and according to the testimony of Mr. Hughes there were many people who thought this action ought to be brought — hundreds perhaps. Tet Mr. Peltzer does not seem to have invited anyone to join him and bear part of the burden of the action. On the contrary, like Don Quixote, he rushed single-handed to the relief of the supposed victim (in this case the public treasury). This conduct is so out of the ordinary as to cast much discredit on the evidence and motives of Mr. Peltzer.
This suit was instituted on January 10, 1914; the conversation which Broaddus heard between Hughes and somebody took place on January 12th,- and the cause was tried on January 17, 1914, just seven days after it was filed. It is surprising, indeed, that Mr. Hughes should forget so many things within such a short time.
Peltzer says that two days after the suit was filed Hughes wanted an attorney’s fee of $250, while Hughes states that when asked what his fee would be he told Peltzer to “fix that to' suit himself.” Mr. Hughes seems to have forgotten most everything which moved him to bring and prosecute this action. Upon the whole case, as charitable a view as we are warranted in taking of his evidence is that some one interested in the defense of Hyde instigated or employed him to institute this action, and the fact of such employment has simply fallen out of his memory. At any event, he seems never to have voluntarily asked any one about his fee, except someone in the office of Johnson & Lucas (attorneys for Hyde).
The writ of injunction is not a writ of right, but a writ of grace and discretion, and should only be issued when the chancellor is convinced that a proper case has been made. [Johnson v. Railroad, 227 Mo. 423, l. c. 450.] The application for this writ cannot appropriately be compared to a suit upon a promissory note, as appellants’ learned attorney seems to think. Not only should everyone who applies for this extraordinary writ come into court with clean hands and honest motives, but his motives being a matter peculiarly within his own knowledge, and, when, as here, defendant’s good faith is challenged, he should be able to furnish convincing evidence that the action is not maintained primarily to promote some improper purpose.
A careful and painstaking review of the record convinces us that the trial court possessed very substantial evidence that the bringing of this action was primarily for the purpose of impeding the prosecution of B. Clark Hyde, and that the alleged illegal dis
The' judgment of the trial court dismissing plaintiffs’ bill should be affirmed.
Graves and Bond, JJ., concur in the views expressed in this opinion. However, a majority of the court not concurring the judgment of the circuit court is reversed and the cause remanded by an opinion per curiam.
Concurrence Opinion
CONCURRING OPINION.
— I fully concur with the views of our brother Brown in this case.' This record cannot be fairly read without reaching the conclusion that the plaintiffs in this suit in equity are but the “stool pigeons” of B. Clark Hyde, the défendant in the case of the State of Missouri v. B. Clark Hyde. And further that the suit was not brought in good faith for the purpose of protecting the public funds of Jackson county, but was covinously brought to prevent the trial of one charged with a most heinous crime, i. e., murder by the cold and premeditated method of poisoning.
In this case it must not be forgotten that these plaintiffs have appealed to a court of conscience, not a court of law. In such court their own conscience can be “sifted” and if there be “dross” therein, they should be refused that relief which can only come from a court of conscience. They should come not only with clean hands, as the ancient rule reads, but they must come with an open breast and explain honestly to such court of conscience their appeal to it for relief. They cannot aver one alleged reason (even though it be well' founded in law) for asking relief and hide from such court the real moving reason for their suit, and ask the court, which they thus seek to deceive, to give them relief in equity. Grant it that if as honest and honorable taxpayers they were seeking to protect
Dissenting Opinion
DISSENTING- OPINION.
— I do not agree with the principal opinion in so far as it seemingly stresses the fact that plaintiffs are small taxpayers, and that their proportionate share of the alleged illegal appropriation of the public funds would amount to little in dollars and
I agree with zest in the general doctrine announced in the opinion of my brother Brown and in the concurring of my brother Graves, viz: that before a court of conscience acts its own conscience must be moved. Hence a litigant who comes with unclean hands has no redress in such court. I stand wedded to that doctrine, though it must be accepted as a general precept that when A sues B at law or equity the real justiciable question is not what were A’s motives in bringing the suit, is not whether A’s psychological condition is unethical. Contra, generally the real justiciable questions are, is A wrongfully injured by B, are A’s legal or equitable rights violated by B in the matters complained of? Now in the case at bar a main question was put to us, to-wit:- Is there any warrant of law for the appropriation in aid of a criminal prosecution pending of $15,000, by the county court of Jackson county, out of public money raised in invitum for specified public purposes by means of the sovereign power of taxation? The learned principal opinion has a sig
It was argued with vehement animation at our bar that the “people” demanded the appropriation— •that (as we gather it) the people were watching with eager and suspicious eyes first to spy out and then mark with condemnation any effort to thwart their will in that behalf and so on and so on. As to that view of it, should not this court be serene, steady and courageous enough to point with inflexible finger to the law? Peradventure law is the flag we should follow. This court is organized to subserve the wish and will of the people expressed how? Expressed through the form of the law, not the alleged wish and will of the people or the alleged voice of the people conveyed to us by extraneous means with the heat and blaze of oratory or flights of rhetoric. Observe, too, that this case does not involve the payment of private funds of individuals to aid a prosecution. Such payments are not to be interfered with. Contra, this case is levelled at an admittedly (I use the word advisedly as the sum of the matter) illegal use of common funds raised from all the people and reposing in the common money chest and protected by every safeguard the wit of the lawmaker could devise.
Eeturning to the question of unclean hands, I think these observations just: Conceding, as I do, that if 'this case is brought or prosecuted by one charged with a crime either in his own name or by him masquerading under the name of another, an injunction should not issue, we come to the testimony on which the principal opinion rests. I have read it and reread it and am unable to concur in the opinion that it satisfactorily establishes collusion between such defendant in a criminal case and the plaintiffs in the injunction case. That
Dissenting Opinion
DISSENTING OPINION.
— With all due deference to my learned’ associates, it is just such opinions as this, delivered by the highest court of the State, which lend countenance to the illegal expenditure of public money and suggest the idea, so prevalent, that there is no security for public funds.
The various opinions frankly admit, which is a fact, as is known by all courts and lawyers, that there is no law authorizing the county court of Jackson county to pay this $15,000, in the prosecution of a felony case, but upon the contrary, the law explicitly and clearly provides all such cost shall be paid by the State. Why then, did counsel for the State go to the county court of Jackson county, instead of to the county court of Buchanan county or Clay county, and
I had an occasion to go quite extensively into this question in the ease of State ex rel. v. Williams, 232 Mo. 56. There the question was, whether a ministerial officer, as such, could resist the payment of a warrant because issued under a statute he contended was unconstitutional. We there held that in the absence of the advice of the legal department of the State he could not so do, he as such officer had no right to involve the county in litigation where he had" no other interest in the funds ordered paid; but that ease falls far short of this where a taxpayer, as such, who has an interest in and the right to see that the revenues of the county are not squandered, not under an unconstitutional statute, but without any legal authority whatever. This court has repeatedly held that while a ministerial officer cannot question the constitutionality of a statute, yet a taxpayer may do so; and our reports are full of such cases. The Supreme Court of the United States has also so ruled in many cases, notably in the Kansas tree-planting cases, and in cases involving taxes levied
This' species of litigation, under the circumstances, is the only safeguard against such usurpation of authority, the illegal expenditure of public money on the part of those public agents who are entrusted with the custody and expenditures thereof. Moreover, it is. just such eases as this which encourage peculation and fraud in public office. If this court will tolerate such a bare-fáced illegal expenditure of the public moneys as is here attempted by evading the question, on a question of procedure, then in the name of heaven why should we condemn the poor officers who are ignorant of the law for doing likewise in other cases-?
With far greater plausibility and better taste, at least, the legal department of Jackson county might have mandamused" the State Auditor, and the State .Treasurer, to set aside this $15,000 for the purpose of paying the fees of expert witnesses in that case, for the reason that the State and not the county is primarily, nor secondarily, responsible for any of the legitimate fees taxable in felony cases. But do not understand me by this language to state or indicate that the State, even under any circumstances, would be liable for such expert fees, over and beyond the fees prescribed by statute, for the truth is, as all lawyers and courts know, that there is not a word or line to be found in the common law or the statutes of this State, which
Will any of my learned associates point his finger to a law or statute that authorizes this $15,000 to be. paid to expert witnesses, either by State- or county, or by the defendant, should he be convicted? And if convicted,' and if this requested appropriation is legal, would it be contended for a moment, under the statutes of this State, that Dr. Hyde would be liable to the State for its repayment, as legitimate fees taxable against Mm? Certainly not. But suppose he should be convicted and this $15,000 should be taxed against Mm, and execution should issue therefor, would this or any other court hesitate a moment in holding that the taxation of that money against him was unlawful, that he was not responsible for the same, and that the execution should be quashed? Certainly not. And no one will contend to the contrary.
There is another phase of this case, which in my opinion is worthy of serious consideration, and that is this: Suppose for the sake of argument, that Dr. Hyde is guilty of all the matters charged against him by indictment, which is nothing more or less (in so far as this case is concerned) than a violation of the laws of the State, and he should be found guilty of the same,
Moreover, what great Herculean Master is the man Hyde, any way, that the great State of Missouri, with her millions of patriotic sons and dutiful daughters and her billions of treasure, cannot grapple with him and bring him to justice without resorting to illegal means to accomplish that purpose? The mere asking the question answers it — there is no substance in the proposition.
Besides that, I have no patience with those persons (who I am glad to say are few, and who are growing fewer every year) who believe that the doctors, surgeons, chemists and lawyers of Kansas City and the State of Missouri have not the same intelligence, learning and professional ability and skill as those of other States.
I have always been impressed with the idea, that if this great Commonwealth is capable of self-government, then it surely has the ability to administer its criminal and civil laws without calling upon outsiders for assistance, and that if that is not true, then I suggest that it is about time to adopt some other form of government. I am firmly of the opinion, as previously indicated, that the citizens of this State have the intellectuality, ability and experience to govern, and control, each and every department of this State without calling for outside assistance.
My observation and experience have been, especially regarding the legal profession, and in no small degree that of the medical, that a comparison of the
This idea that the man over the hill has a farm better than any on this side, and that the lawyers and doctors in other States are more intellectual and learned than those of this State, has erroneously led many to believe that their next door neighbors are ignoramuses, if not wild and uncivilized Commanches, not worthy of consultation or respect. If counsel for the State will disabuse his mind of this fallacy, and proceed to try Dr. Hyde under the laws of this State and with the assistance of such witnesses as the law authorizes him to procure, he will find that his duty has been fully discharged, and that justice has been duly administered according to law and that the good people of Kansas City will be fully satisfied with the result — whatever that may be, even though the courts of the country will not permit him to resort to illegal means to procure outside assistance.
I do not know, nor do I care, what the financial condition of Dr. Hyde is, so far as this case is concerned, yet, I am impressed with the idea that this great State should be satisfied with a prosecution of him, according to the laws thereof, without resorting to illegal means; and moreover, the presumption is, that the State is as able financially to try this case without outside assistance, as Dr. Hyde is to defend
Regarding Dr. Hyde’s guilt or innocence, I have no opinion, nor am I acquainted with him, yet the Constitution of this State guarantees unto him a fair and impartial trial, according to the laws of the State; and I take the law to mean, that he shall have a fair and impartial trial according to the laws of the State, and be prosecuted in the manner, and by the means prescribed by the Code of Criminal Procedure, and not by means furnished by other public bodies-. Literally speaking this language might prohibit the employment of counsel to assist in the prosecution of a felony case, which I believe would be wise, but I do not believe the Legislature so designed, yet .I am firmly of the opinion that the Legislature never contemplated or intended that the county court of any county of this State should illegally or otherwise appropriate funds to prosecute Dr. Hyde or any other person charged with, a felony.
Who is going to audit the account upon which this money is to be paid out? Not the State Auditor, who has the exclusive authority under the laws to so do in all such cases, subject of course to the review of tho courts. But this illegal expenditure of public money can never come before the courts of this State without the treasurer of Jackson county should refuse to pay the same, which if done, would of course be at his risk, and in such case I apprehend the question of his misappropriation of that money will in some form reach this court for adjudication.'
I,-therefore, dissent from the entire expressions of the court and the.various judges thereof, except I believe the judgment should be reversed.
Dissenting Opinion
DISSENTING OPINION.
— Upon a careful examination of the question here involved I find that I cannot , concur in the conclusion reached in the majority opinion, which, ■in not expressly determining the question submitted, gives tacit approval to the appropriation and apportionment of $15,000 of the funds of Jackson county by its county court for the proposed purpose of defraying the estimated expenses of conducting- a criminal trial therein.
The powers of a county as a subdivision of the State are clearly defined and limited by law, and- its administrative agents, the members of the county court, have no authority except that clearly conferred by law.
The proposed appropriation being foreign to the purposes for which counties are created and beyond the powers of the county court, upon the matter being brought' to our attention it becomes our duty to determine beyond a peradventure whether the appropriation is authorized.
Certain citizens of Jackson county, represented by an attorney who is an officer of this court, submit this question for our determination, and while circumstances may appear which give credence to the conclusion that counsel for the defendant in the case in which this appropriation is proposed to be made, seem to have had a shadowy connection with the matter,
It is almost too elementary to justify reference thereto that a criminal prosecution is one in which the State is primarily interested, and with which a county, unless expressly empowered, has nothing to do; not only the Constitution, but the entire Code of Criminal Procedure, proves the correctness of this conclusion, and the supplemental or adjective law in relation thereto defining the manner in which criminal costs must be determined and paid, is additional proof that it is the State, and not its subdivisions, which is charged with criminal prosecutions, and the expenses incident to same; but I “harp upon a mouldered string” as this truth is too well established to need elaboration.
As to whether the case in which this appropriation is proposed to be made is one in which more than ordinary expenses should be incurred, is a matter which should not concern us in passing upon the question as to the power of the county court in the premises. If by our inaction this question having been submitted to us, we tacitly sanction this appropriation when the same is not authorized by law, we open the way by judicial legislation for inroads upon county treasuries which cannot prove otherwise than wasteful and vicious.
I am, therefore, unqualifiedly of the opinion that the writ of injunction herein should be granted, that in so doing the court may place the seal of its disapproval upon this attempted misuse of county funds.
— As indicated by the several opinions filed herein, it appears that five of our number are in accord with the proposition that if the suit was collusively instituted by the plaintiffs in the interest of the defense of Dr. Hyde in the criminal case, 'the
Let the judgment nisi be reversed and the cause remanded.