State ex rel. Cain v. Mitchell, 59532

• Decision Date: 13 December 1976
• Docket Number: No. 59532,59532
• Citation: 543 S.W.2d 785
• Parties: STATE of Missouri ex rel. Donald L. CAIN et al., Relators, v. James MITCHELL et al., Respondents.
• Court: Missouri Supreme Court

Page 785

543 S.W.2d 785

STATE of Missouri ex rel. Donald L. CAIN et al., Relators, v. James MITCHELL et al., Respondents.

No. 59532.

Supreme Court of Missouri, En Banc.

Dec. 13, 1976.

Donald L. Cain, Kierst, Cain & Gordon, Kansas City, for relators.

Willard B. Bunch, John E. Cash, Kansas City, for respondents.

SEILER, Chief Justice.

Relators are attorneys licensed to practice in Missouri who have been appointed at various times by the judges and commissioners of the 16th Judicial Circuit to represent indigent juveniles in the Jackson County Juvenile Court. Contrary to the orders of these judges and commissioners, the respondent county director of revenue has refused to disburse funds to relators for their services and expenses in the representation of indigent juveniles. Relators petitioned the Court of Appeals, Kansas City district, to issue a writ of mandamus to compel the director of revenue to pay relators. On the recommendation of the Kansas City district, we ordered the application for this writ transferred here. Rule 83.06.

Relators contend that the term 'costs' as used in § 211.281, RSMo 1969, which governs the taxing of costs in the juvenile courts, includes attorneys' fees. Therefore, they maintain the orders to the director of revenue were simply exercises of the courts' inherent power through this statute to tax costs. Consequently, relators argue that the writ of mandamus should issue to compel the director of revenue's compliance with lawful orders of the circuit judges and commissioners. We disagree.

The premise that 'costs' include attorneys' fees is crucial to relators' position because they rely upon the express provisions of § 211.281 as the source of the court's inherent power. Section 211.281 provides: 'The costs of the proceedings in any case in the juvenile court may, in the discretion of the court be adjudged against the parents of the child involved or the informing witness . . .. All costs not so collected shall be paid by the county.' It is apparent from the language of this section that the court has the power to determine who will pay costs. Relators argue further, however, that the court has the inherent power through this statute to denominate any or all expenses surrounding litigation as costs.

At the outset, it must be noted that relators' use of the term 'inherent power' does not comport with its accepted meaning. Inherent powers do not depend upon statutory authorization as their source. Inherent power is defined as 'an authority possessed without its being derived from another.' Black's Law Dictionary (4th ed. 1968). See State ex rel. Weinstein v. St. Louis County, 421 S.W.2d 249, 255 (Mo.banc 1967); State ex rel. Gentry v. Becker, 351 Mo. 769, 174 S.W.2d 181, 183 (1943). Rather, by relying on § 211.281 relators are in truth arguing that the court has the implied (not inherent) power to tax attorneys' fees as costs, because their position is that such power is deduced from the language of the statute and is '. . . necessary to carry into effect those powers which wre expressly granted . . ..' Black's Law Dictionary, supra. This conclusion is unwarranted and we have expressly held to the contrary.

Historically, '(t)he right to recover attorneys' fees from one's opponent in litigation as a part of the costs thereof . . . (did) not exist at common law.' Prudential Ins. Co. v. Goldsmith, 239 Mo.App. 188, 192 S.W.2d 1, 4 (1945). Likewise, it has been held that whether attorneys' fees are recoverable depends upon either express statutory authority or agreement of the parties. City of Kansas City v. Kindle, 446 S.W.2d 807, 818 (Mo.1969); Munday v. Thielecke, 290 S.W.2d 88, 93 (Mo.1956); City of St. Louis v. Meintz, 107 Mo. 611, 18 S.W. 30, 31 (1891); Rook v. John F. Oliver Trucking Co., 505 S.W.2d 157, 161 (Mo.App.1973); Herhalser v. Herhalser, 401 S.W.2d 187, 194 (Mo.App.1966); Willis v. American Nat. Life Ins. Co., 287 S.W.2d 98, 107 (Mo.App.1956). In the case before us there is no express statutory authorization for an attorney's fee, as there is found, for example, in § 202.807, RSMo Supp.1975, which relates to the judicial procedure for hospitalizing the mentally ill on court order. Even more compelling are holdings in this state that the term 'costs' as used in a statute does not include attorneys' fees, with certain exceptions. Leslie v. Carter, 268 Mo. 420, 187 S.W. 1196, 1197 (1916); Burns v. Ames Realty Co., 31 S.W.2d 274, 275 (Mo.App.1930). For a list of the exceptions to this rule see Johnson v. United Rys. Co., 247 Mo. 326, 152 S.W. 362, 366 (banc 1972). None apply here.

Relators then continue their argument by analogizing between the circumstance before us and the appointment of guardians ad litem. They contend that since guardians ad litem represent interests similar to counsel appointed to defend juveniles and receive compensation through costs when no statute expressly authorizes such payment, ...