174 S.W.2d 181 | Mo. | 1943
Lead Opinion
This proceeding in mandamus presents the question of whether a circuit court, having appointed counsel to represent it in a contempt proceeding, possesses also the inherent power to allow such attorneys a fee for their services and order the fee paid by a county — in this instance the City of St. Louis.
On March 9, 1940 the Circuit Court of the City of St. Louis issued an information and citation in contempt in the name of the State at the relation of the Circuit Attorney against the Pulitzer Publishing Company, Ben H. Reese, Ralph Coghlan and Daniel R. Fitzpatrick, based upon the printing and publishing of certain editorials and cartoons in the "St. Louis Post-Dispatch." It was charged that the publications tended to interfere with the due administration of justice in the case of State of Missouri v. John P. Nick and Clyde A. Weston, then pending before the court, and, furthermore, that the articles and cartoons scandalized and degraded the court. (All the cases were consolidated and finally disposed of in State ex rel. Pulitzer Pub. Co. v. Coleman,
After the termination of the contempt proceedings the attorneys filed a petition in the Circuit Court asking that they be allowed attorneys' fees for their services. The "Circuit Court, sitting in general term, duly considered said petition and . . . the report of the committee theretofore appointed by the judges . . . and thereupon it was ordered by the said judges sitting in general term . . . that said William R. Gentry and John L. Gilmore be allowed a joint sum of $12,000.00 . . . said sum to be paid out of the treasury of the City of St. Louis."
[1] The attorneys presented a certified copy of the court's order and demanded that the appropriate officials of St. Louis pay the fee, but they refused and this proceeding followed. The Circuit Court issued a peremptory writ of mandamus and the city appeals.
The relators do not rely upon a contract, either express or implied, with the city, the state or the court to sustain the allowance of the fee. Neither do they claim that there is a statute expressly or impliedly authorizing the court to make the allowance either as costs, penalty or compensation. Our interpretation of their position is that the court had the inherent power to punish for contempt and as a corollary, in the protection of its functions as a court, it also had the inherent power to appoint counsel and the existence and exercise of that power necessarily included the further inherent and incidental power to allow such counsel a reasonable fee for their services. They say that since the fee was allowable by the circuit court it is payable out of the city or county treasury without other or further proceedings and that, therefore, mandamus will lie to compel its payment. Mo. R.S.A., Sec. 2102; Perkins v. Burks,
[2] There is no analogy of principle, either for or against the allowance, in the instances of counsel fees being assessed as costs or an expense chargeable to one of the parties in a civil contempt or in the instances of fines which include a fee as a part of the punishment in a criminal contempt. In those cases the fee is assessed against one of the parties either as punishment or an expense and costs incurred and accruing at the instigation of one of the parties. Annotation Ann. Cas. 1913B, p. 565; 17 C.J.S., Sec. 96, p. 138; 12 Am. Jur., Secs. 77, 79, pp. 443, 445. Neither is there an applicable analogy in the attempts to assess the costs of a contempt proceeding prosecuted at the relation of a private party against the state or county under a criminal cost statute. Rapalje, [183] Contempt, Sec. 132; Pelletier v. Glacier County,
[3] The question presented by this case is novel as to both fact and principle. As a determinative analogy the relators rely upon those instances in which the "inherent powers" of courts have been recognized and enforced — that is, those powers necessarily inherent in the court "to do all things that are reasonably necessary for the administration of justice" and in order that it may preserve its existence and function as a court and which powers exist and inhere merely because it is a court and irrespective of legislative or constitutional grant. 14 Am. Jur., Sec. 171, pp. 370-372; annotation Ann. Cas. 1914A, p. 100. For example, no place or facilities for holding court being provided, the court has the inherent power to provide the necessary place and equipment in order that the court may transact its business. Annotation 22 L.R.A. 398. A court cannot properly function without certain attaches and attendants, such as clerks, bailiffs, reporters and janitors and none or insufficient one's being furnished the court may, as long as the necessity exists, appoint such attaches and attendants as are necessary to enable the court to properly function as a court. 14 Am. Jur., Sec. 22, pp. 261-262. See also the list and examples of courts exercising their inherent powers cited in In re Surcharge of County Commissioners, 12 Pa. Dist. Co. Rpts. 471.
In State ex rel. Hensick v. Smith,
[4] The most important and essential of the inherent powers of a court is the authority to protect itself against those who[184] disregard its dignity and authority or disobey its orders by punishing for contempt. 14 Am. Jur., Sec. 171, pp. 370, 372; 17 C.J.S., Sec. 2, pp. 4-5. That power is not only inherent in our courts of general jurisdiction but it is also expressly conferred by statute. Mo. R.S.A., Secs. 2028-2033; Hernreich v. Quinn,
[5] Assuming, for the sake of this case, that the court had as an incident to its inherent power to punish for contempt the further power to appoint the relators as counsel to represent it or the state (but see Durant v Supervisors of Washington County, Woolworth, p. 377, Fed. Cas. No. 4, 191 as to the duty of the state's or government's counsel in such proceedings), it does not necessarily follow that the relators would be entitled to a fee for their excellent and valuable services. If it were not for one further circumstance the relators' analogy of the court's inherent power might be determinative of this case. That circumstance is that the relators are attorneys, members of the bar of this state, and officers of the court appointing them. 5 Am. Jur., Sec. 6, pp. 264-265; 1 Thornton, Attorneys at Law, Sec. 13, pp. 14-16.
Another inherent power possessed by courts is that of providing counsel for the indigent. Knox County Council v. State,
In Kelley et al. v. Andrew County,
It is our opinion that the same reasoning should apply to this case. There may be no question but that the relators justly deserve to be compensated for their valuable services but they are officers of the court appointing them and if the court's dignity and authority has been assaulted they were bound to accept the appointment, the honor and the challenge of defending the court and that without pay, especially so if there are no state officials charged with the duty or willing to undertake it. The court has the inherent power to punish for contempt and if it has also the inherent power to appoint or request a lawyer, as an officer of the court, to represent it or the state in the prosecution of the contempt proceeding that is all the power *780 the court reasonably needs for its own protection and for the due administration of justice. The court could and did adequately[185] protect itself by exercising its inherent power of punishing for contempt and appointing counsel and it was not necessary for the court to further exercise its inherent powers by allowing the fee in question.
The judgment of the trial court issuing the peremptory writ of mandamus, therefore, is reversed. Westhues, C., concurs;Bohling, C., concurs in result.
Addendum
The foregoing opinion by BARRETT, C., is adopted as the opinion of the court. All the judges concur.