State v. Boeckeler Lumber Co.

• Decision Date: 04 January 1924
• Docket Number: No. 22975.,22975.
• Citation: 257 S.W. 453,302 Mo. 187
• Parties: STATE ex rel. BARRETT, Atty. Gen., v. BOECKELER LUMBER CO. et al.
• Court: Missouri Supreme Court

257 S.W. 453

302 Mo. 187

STATE ex rel. BARRETT, Atty. Gen., v. BOECKELER LUMBER CO. et al.

No. 22975.

Supreme Court of Missouri, in Banc.

January 4, 1924.

given an effect wholly foreign to such purpose, and so sustained as a provision for payment of the fee into the state treasury for the benefit of the public.

On motion of the Attorney General to tax fee. Motion overruled.

See, also, 256 S. W. 175.

Jesse W. Barrett, Atty. Gen., and Henry Davis, Asst. Atty. Gen. (Merrill E. Otis, of St. Joseph, of counsel), for relator.

Richard L. Goode and Carter, Nortoni & Jones, all of St. Louis, for certain respondents.

Wilfiey, Williams, McIntyre, Hensley & Nelson, of St. Louis, for respondents Wiles-Chipman Lumber Co. and another.

Arthur Lashly, of St. Louis, for respondent Holekamp Lumber Co.

Conway Elder, of St. Louis, for respondent Philip Gruner & Bros. Lumber Co.

RAGLAND, J.

Respondents having been found guilty of violating `the statute relating to pools, trusts, conspiracies, discriminations and unlawful combinations in restraint of trade, and having had fines aggregating the sum of $96,000 imposed upon them for such violation, the relator files his motion asking that the Attorney General be allowed a fee equal to one-fourth of the fines so imposed, and that the same be taxed as costs against the respondents, all in accordance with the provisions of section 9675, R. S. 1919. Respondents oppose the motion on the ground that the statute purporting to authorize the allowance of such fee is invalid, because repugnant to section 24 of article 5 of the Constitution. Said section 9675 is as follows:

"It shall be the duty of the Attorney General to enforce the provisions of chapter 88, R. S. Mo. 1919, and amendments thereto, and every other law relating to pools, trusts, conspiracies, discriminations and unlawful combinations in restraint of trade by appropriate actions in courts of competent jurisdiction. In all prosecutions under chapter 88, R. S. Mo. 1919, and amendments thereto, or any other law concerning pools, trusts, conspiracies, discriminations and unlawful combinations, the Attorney General for his services shall, in addition to the salary now allowed by law, be allowed a fee in each case equal in amount to one-fourth of the fine, penalty or forfeiture imposed, to be taxed, collected and paid in the same manner as ordinary court costs are now taxed, collected and disbursed."

The Attorney General's salary is $3,000; it was fixed many years ago. Since that time the duties of the office have increased enormously. At the present time his is the greatest law office in the state. No other equals it in respect to the volume and magnitude of the matters disposed of, and the number and complexity of the legal questions presented for solution. As a remuneration for the services required of the Attorney General the salary is wholly inadequate. This fact is generally conceded. In the enactment of the section just quoted the legislative purpose in plain; it is to increase the compensation of the Attorney General and to stimulate his activity in the enforcement of the anti-trust statute. The direction, that an amount equal to one-fourth of the fine, penalty, or forfeiture imposed upon one adjudged guilty of violating the anti-trust law be allowed the Attorney General as a fee for his services, and shall be taxed, collected, paid, and disbursed as ordinary court costs, is explicit and mandatory, and leaves no room for the exercise of discretion on the part of the court; it must be obeyed, if the enactment embodying it is valid. On the other hand, if the allowance of such a fee is within the prohibition of the constitutional provision referred to, it cannot be allowed, however desirous we might be to give effect to the legislative purpose, or to aid the Attorney General in availing himself of the statutory means provided to give him a compensation which in some measure comports with the value of the services he is rendering the state with conspicuous ability. That the Constitution is binding upon all departments of the state government, the legislative as well as the judicial, is a commonplace; and while it is assumed, as it must be, that the Legislature in the exercise of its own wisdom and patriotism does not in any of its acts purpose to transgress constitutional limitations, yet, under our system of constitutional law and government, the final duty and responsibility of deciding whether a legislative act is in conflict with the paramount law rests with the courts. When the validity of a given act is directly drawn in question in a concrete case, as determinative of the rights of the individual citizen, the court cannot, if it would, evade the duty of passing on its constitutionality. Section 24 of article 5 of the Constitution is as follows:

"The officers named in this article shall receive for their services a salary to be established by law, which shall not be increased or diminished during their official terms; and they shall not, after the expiration of the terms of those in office at the adoption of this Constitution, receive to their own use any fees, costs, perquisites of office, or other compensation. All fees that may hereafter be payable by law for any service performed by any officer provided for in this article shall be paid in advance into the state treasury."

The officers named in article 5 are the executive officers of the state, among whom is the Attorney General. Substituting "Attorney General" for the "officers named," etc., section 24 of the article reads:

"The Attorney General shall receive for his services a salary to be established by law, * * * and he shall not * * * receive to his own use any fees, costs, perquisites of office, or other compensation. * * *" In the face of this positive prohibition the statute provides that:

"The Attorney General for his services (in prosecutions under the anti-trust law) shall, in addition to the salary now allowed by law, be allowed a fee in each case * * * to be taxed, collected and paid in the same manner as ordinary court costs are now taxed, collected and disbursed."

Giving to the language of each its plain and ordinary meaning, the constitutional provision and the statute present irreconcilable conflict.

Relator seems to concede that if the plain language—"the letter"—of the Constitution is to be given effect, then the fee he seeks to have taxed cannot be allowed.. To avoid this seeming impasseé, he invokes a rule of construction which places the main emphasis on the mischiefs to be remedied or guarded against by a constitutional provision, and then restricts the natural and literal significance of its words, so that they operate merely to obviate the evils against which the provision is directed, but do nothing more. With this as his major premise, relator endeavors to show that the fee provided for by said section 9675 is not within the mischief sought to be remedied by the constitutional provision, and consequently not within its prohibition.

At the time of the adoption of the present Constitution the Attorney General was allowed, as now, a salary of $3,000, and in addition thereto certain designated fees for his appearances in criminal cases in this court. These fees were payable out of the state treasury when they were not collectible from the defendant. The secretary of state was also allowed fees, in addition to a salary, for certain services, such as affixing the great seal, making copies of the records of his office, authenticating them, etc. The obtention of these fees,...