Thatcher v. City of St. Louis

• Citation: 122 S.W.2d 915,343 Mo. 597
• Decision Date: 20 December 1938
• Docket Number: 34941,34942
• Parties: T. H. Thatcher et al., Plaintiffs, Richmond C. Coburn, Respondent, v. City of St. Louis, Trustee Under the Will of Bryan Mullanphy, Appellant. T. H. Thatcher et al., Plaintiffs, James H. Higgs, Administrator of the Estate of Vance J. Higgs, and Robert J. Keefe, Respondents, v. City of St. Louis, Trustee Under the Will of Bryan Mullanphy, Appellant
• Court: United States State Supreme Court of Missouri

122 S.W.2d 915

343 Mo. 597

T. H. Thatcher et al., Plaintiffs, Richmond C. Coburn, Respondent, v. City of St. Louis, Trustee Under the Will of Bryan Mullanphy, Appellant.

T. H. Thatcher et al., Plaintiffs, James H. Higgs, Administrator of the Estate of Vance J. Higgs, and Robert J. Keefe, Respondents, v. City of St. Louis, Trustee Under the Will of Bryan Mullanphy, Appellant

Nos. 34941, 34942

Supreme Court of Missouri

December 20, 1938

Appeal from Circuit Court of City of St. Louis; Hon. M. G Baron, Judge.

Reversed.

E H. Wayman and Oliver Senti for appellant.

(1) The Attorney General was a necessary party to the suit out of which this proceeding arose. Cummings v. Dent, 189 S.W. 1161; Lackland v. Walker, 151 Mo. 242. (a) The duties of the Attorney General in respect to public charities are imposed upon him by law. State ex rel. Barrett Attorney General, v. Boeckeler Lbr. Co., 302 Mo. 187, 257 S.W. 453. (b) The Attorney General cannot lawfully receive compensation for the performance of his duties other than his salary as fixed by law. Mo. Const., Secs. 1, 24, Art. V; State ex rel. Barrett, Attorney General, v. Boeckeler Lbr. Co., 302 Mo. 187, 257 S.W. 453. (c) Persons employed by the Attorney General to perform his duties have no better claim to compensation for such services than the Attorney General would have. (2) If the suit filed by the plaintiffs in this case was a proceeding in which the Attorney General was required to appear or participate, it was the duty of the Assistant Attorney General to represent him therein. Sec. 11277, R. S. 1929, Amended Laws 1933, p. 137.

Thompson, Mitchell, Thompson & Young and Richmond C. Coburn for respondent Coburn.

Igoe, Carroll, Keefe & McAfee and J. W. McAfee for respondent Higgs.

(1) In a case involving the validity of the administration of a trust, all necessary parties to the proceeding are entitled to their costs, both as between party and party and attorney and client. St. Louis, Trustee, v. McAllister, 302 Mo. 152, 257 S.W. 425. (2) There is no constitutional or statutory prohibition in this State against the employment by the Attorney General, as a party litigant herein, of counsel or against allowance of compensation for counsel employed by him. (a) No allowance has been made to the Attorney General on account of any services performed by him, and the constitutional provisions covering his office are not applicable. Art. V, Secs. 1, 24, Mo. Const.; State ex rel. v. Frohmiller, 52 P.2d 483, 53 P.2d 854. (b) The Attorney General is ex officio a necessary party herein, but his appearance as such is not a part of his regular duties as Attorney General and is not covered by statutory or constitutional provisions applicable to that office. Lackland v. Walker, 151 Mo. 210, 52 S.W. 414; State ex rel. McGrath v. Walker, 97 Mo. 162, 10 S.W. 473; Little River Drain. Dist. v. Lassater, 29 S.W.2d 716; Tayloe v. Davis, 102 So. 433, 212 Ala. 282, 40 A. L. R. 1052. (c) Services of respondents as counsel for the Attorney General in this case were not within the "official duty" of his office and, consequently, were not such as necessarily should have been performed by his assistants. Sec. 11277, R. S. 1929, amended Laws 1933, p. 177; Laws 1929, p. 48; Hines v. Knox, 108 So. 907. (3) The Attorney General, as a party litigant herein, has all the rights and duties attending that status, including the same right to employ attorneys and to have their fees taxed as costs, as has any other party. Hines v. Knox, 108 So. 907; In re Creighton's Estate, 136 N.W. 1001; Moggridge v. Thackwell, 7 Ves. 36; Tudor on Charities, (5 Ed.); 6 C. J., secs. 6, 806. (4) Final judgment in this case is the one rendered in conformity with the mandate of this court, and the circuit court has the power to ascertain, allow and have taxed as costs fees for services rendered by attorneys at any time before the expiration of the term at which such final judgment is entered. Padgett v. Smith, 207 Mo. 235, 105 S.W. 742; Duval v. Duval, 291 S.W. 488; Powell v. Bowen, 240 S.W. 1088. (5) The circuit court, by its decree, has retained jurisdiction of this case, and its power to control the final judgment, if any, survives beyond the term of such judgment. Aetna Life Ins. Co. v. Hyde, 34 S.W.2d 85. (6) These respondents were employed after appeal and appeared solely in this court. Costs incurred in this court may be taxed by the circuit court at any time before the expiration of term of this court at which the mandate is sent down. Padgett v. Smith, 207 Mo. 235, 105 S.W. 742; State ex rel. v. Globe Indemnity Co., 334 Mo. 461, 62 S.W.2d 1065; Bronson v. Schulton, 104 U.S. 410, 26 L.Ed. 797, 14 Otto, 410.

OPINION

PER CURIAM

The City of St. Louis, as trustee of the Bryan Mullanphy trust, appeals from an order and judgment allowing attorneys' fees, to be paid out of the trust fund, to respondents as attorneys for the Attorney General of Missouri. Appellant's contention is that such allowances are in violation of Sections 1 and 24 of Article V of the Constitution of Missouri.

The allowances were made in the case of Thatcher v. Lewis, 335 Mo. 1130, 76 S.W.2d 677. The case was in equity, by descendants of sisters of Bryan Mullanphy, to terminate the trust created by his will on the ground that "the purpose of said trust has long since wholly failed." Appellant filed a plea in abatement on the ground that the Attorney General was a necessary party. This was sustained, and the Attorney General was brought into the case. Thereafter, "by answer and cross bill, the City of St. Louis and the Attorney General of Missouri asked for an interpretation of the will and for instructions to the trustee." The court's decree found that the Mullanphy heirs "had no right, title, or interest in the trust fund, and dismissed their bill;" and also "stated its findings and directions" for the future use of the trust funds. Except as to one paragraph, immaterial here, this decree was affirmed.

Respondents correctly state that the Attorney General was a necessary party. [Lackland v. Walker, 151 Mo. 210, 52 S.W. 414; Dickey v. Volker, 321 Mo. 235, 11 S.W.2d 278, 62 A. L. R. 858.] But respondents state that the Attorney General "appearing as a party litigant in such a case as this is not in anywise connected with his usual duties and that although it is necessary that he appear because he holds the office, his activities as such are in nowise connected with his work as lawyer for the State;" and that "the duty of the Attorney General in connection with this case is not as a lawyer but is specifically that of a contending party." In the Dickey case, en banc, we said: "In England charitable trusts came to be favored. . . . (Quoting from the Lackland case, "the public is the beneficiary of the trust, and the Attorney General, as its representative, was the only real party in interest.") The King was the guardian of such trusts, and enforced them by his Attorney General with the aid of the chancellor. In this country the people as guardian enforce them in the equity courts by their Attorney General." [See also 5 Am. Jur. 246, sec. 17; 10 Am. Jur. 668, sec. 1155; 7 C. J. S. 1222, sec. 5; 11 C. J. 368, sec. 90; 62 A. L. R. 882, note; Chambers v. St. Louis, 29 Mo. 543 (the first Mullanphy trust case); American Law Institute Restatement of Trusts, sec. 381; 2 Perry on Trusts, 1252, secs. 732 and 732a.] Thus it appears that, while the Attorney General may be "a party litigant" as representative of the public (obviously too numerous to be sued) which is the real beneficiary, it is nevertheless his duty to be "the lawyer" for the beneficiary; and that such duty was well established under the Common Law.

Section 24 of Article V of the Constitution, which applies to the Attorney General and other elective executive officers, 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."

We considered this section, and also Section 1, en banc, in State ex rel. Barrett v. Boeckeler Lumber Co., 302 Mo. 187, 257 S.W. 453, and there held unconstitutional a statute, which authorized the allowance of a fee to the Attorney General, for his services in anti-trust suits, "in addition to the salary now allowed by law." It was contended there, as respondents here argue, that Section 24 does "not apply to duties performed by a public officer which are not incident to his office" and that the services herein performed "were not within the official duty of his office." We ruled against the application of this contention to the facts in the Boeckeler case, saying:

"Relator describes the duties imposed on the Attorney General by the statute, in relation to the prosecution of trusts and combines in restraint of trade, as 'unusual and extraordinary.' If by that he means that the duty is not incident to the office of Attorney General, and such is the fact, his second position is well grounded; for, while the Constitution says that he shall receive a salary for his services, and that he shall perform such services 'as may be prescribed by law' (Sec. 1, Art. 5), yet it could not have been intended that duties should be imposed upon him which in no way pertain to the office of the Attorney General. It is for the performance of those duties, and those only, that the salary is given him....