Wemme v. First Church of Christ, Scientist, of Portland

• Decision Date: 26 February 1924
• Citation: 223 P. 250,110 Or. 179
• Parties: WEMME ET AL. v. FIRST CHURCH OF CHRIST, SCIENTIST, OF PORTLAND ET AL.
• Court: Oregon Supreme Court

223 P. 250

110 Or. 179

WEMME ET AL. v. FIRST CHURCH OF CHRIST, SCIENTIST, OF PORTLAND ET AL.

Supreme Court of Oregon

February 26, 1924

In Banc.

Appeal from Circuit Court, Multnomah County; Harry H. Belt, Judge.

On motion to recall mandate. Motion denied.

For former opinion, see 219 P. 618.

Harrison Allen, A. C. Spencer, and Isham N. Smith all of Portland, for the motion.

McCOURT J.

Claiming to be entitled to attorney's fees out of the trust fund which is the subject of this litigation, W. P. La Roche, an attorney of this court, has applied for an order directing that the mandate heretofore issued herein be recalled and amended or modified so as to authorize the allowance of such attorney's fees.

After this suit was commenced, it came to the attention of the Attorney General that the funds and property involved in the litigation belonged to a public charity. Thereupon the Attorney General determined to intervene in the suit for the purpose of defeating the private rights asserted therein and in order to protect and preserve the charity in the interest of the public. The Attorney General authorized Mr. La Roche the claimant herein, to make such intervention in behalf of the Attorney General and the state of Oregon and to prosecute and conduct the litigation in the name of the Attorney General.

Pursuant to the authority mentioned, Mr. La Roche, as special attorney for the state of Oregon and for and in the name of the Attorney General, filed an answer of intervention in the suit, and in the subsequent proceedings herein acted in behalf of the Attorney General until a final decree was entered in this court. Wemme et al. v. First Church of Christ, Scientist, 219 P. 618.

After the decision herein, but before the mandate sought to be recalled and modified was issued, the Attorney General, by written disclaimer, filed in this court, expressly renounced all claim and right to attorney's fees in the cause or in the further proceedings to be had in connection therewith and specially waived and disclaimed the allowance of such fees to him.

The decree and mandate of this court contains the following provision:

"* * * No compensation as attorney's fees shall be allowed, either directly or indirectly, for services performed by the Attorney General or his assistants in this cause."

In an affidavit accompanying his motion to recall and modify the mandate, Mr. La Roche states that he was duly employed and authorized by the Attorney General to represent the public interests as his attorney in said cause, with the understanding that affiant should look to the trust fund for his compensation for legal services, in the event that the contentions of the Attorney General were sustained by this court. The affidavit further states that all the legal work done and performed in behalf of the Attorney General was done by affiant, without aid or assistance from the Attorney General or any of his deputies or assistants.

The intervention of the Attorney General in the suit resulted in the enforcement of the public charity involved therein. That intervention was made and carried to a successful conclusion by Mr. La Roche; the services performed by him were valuable to the charity, and the funds belonging thereto, and they were rendered pursuant to such authority from the Attorney General as in the circumstances that officer was empowered to confer upon Mr. La Roche.

The statutes clearly prohibit compensation to the Attorney General out of the fund, and no authority is found in the rules of equity practice which warrants such an allowance to the Attorney General. While allowances for attorneys' fees out of the fund in the control of a court of equity are sometimes made directly to the attorneys themselves, the right of such attorneys thereto in every such case is dependent upon the right of their client to such fees. Schmidt v. Or. Mining Co., 28 Or. 9, 30, 40 P. 406, 1014, 52 Am. St. Rep. 759. If the client is not entitled to costs, including attorney's fees, out of the fund, no allowance can be made directly to the attorney.

The foregoing considerations led to the decree herein, denying attorney's fees to Mr. La Roche.

In view of the earnest insistence of Mr. La Roche, and counsel representing him upon his motion, we have again examined the statutes and decisions bearing upon the question.

The office of Attorney General in this state is created by statute, and the powers and authority of the incumbent of that office are those conferred upon him by the statute, and no others. Hord v. State, 167 Ind. 622, 79 N.E. 916; Julian v. State, 122 Ind. 68, 23 N.E. 690. No specific provision of the statutes grants authority to the Attorney General, or makes it his duty to appear and represent the state in suits or proceedings relating to a public charity. Sections 2769-2779, Or. L.; Laws 1921, p. 477.

However, the statute does provide that--

"He shall be the law officer of the state, and shall have all of the power and authority usually appertaining to such office." Section 2773, Or. L.

The above provision imposes upon the Attorney General the powers and authority incident to that office at common law. Among the duties of the Attorney General at common law was that of enforcing a public charity. State ex rel. v. Lord, 28 Or. 498, 527, 43 P. 471, 31 L. R. A. 473; Parker v. May, 5 Cush. (Mass.) 336; People v. Miner, 2 Lans. (N. Y.) 397; 6 C.J. 814.

The compensation of the Attorney General is fixed by the statute. The express authority granted the Attorney General to appoint or employ attorneys to assist him in the performance of his duties is confined to the appointment of a first assistant and such other assistants as he shall deem necessary to transact the business of the office, at annual salaries to be fixed in each instance by the Attorney General at the time of making the appointment. The salaries of the Attorney General and the assistants appointed by him are required to be paid out of the state treasury as other state salaries are paid. Chapter 251, Laws 1921.

Another section of the statute declares in effect that the salaries mentioned shall be in lieu of all other salaries, fees, commissions, and emoluments now received or enjoyed by the Attorney General or any of his assistants, and directs that moneys collected by any such officer, or by virtue of his office, shall be paid into the state treasury. Section 2978, Or. L. Manifestly, those statutes prohibit an allowance of attorney's fees out of the trust fund in question to the Attorney General or any of his assistants appointed pursuant to the statute.

Numerous cases hold that at common law the Attorney General had power to give jurisdiction to the courts and to bind himself as a party representing the public in the ordinary way through an unofficial attorney at law, authorized to represent him (6 C.J. 806; 2 R. C. L. 916; Parker v. May, 5 Cush, [Mass.] 336, 338; In re Creighton, 91 Neb. 654, 136 N.W. 1001, Ann. Cas. 1913D, 128), and it is also held that such power is not limited by statutes giving the Attorney General authority to appoint such assistants as the duties of the office may require, whose salaries shall be paid out of the state treasury ( Commonwealth v. Boston, etc., R. Co., 3 Cush. [ Mass.] 25, 48; Commonwealth v. Knapp, 10 Pick. [ Mass.] 477, 20 Am. Dec. 534; McQuesten v. Attorney General, 187 Mass. 185, 186, 72 N.E. 965; Attorney General v. N. American L. Ins. Co., 91 N.Y. 57, 66, 43 Am. Rep. 648).

None of the cases above cited, except the last, discuss the question of compensation to special counsel designated by the Attorney General to represent him, payable out of a fund in litigation. In the New York case, the right of special counsel to an allowance of attorney's fees out of the fund was denied.

"Unless authorized by statute, an Attorney General has no authority to appoint special counsel to act generally for him in actions or proceedings in which the state is interested, so as to charge the state with the value of their services." 6 C.J. 806, and cases cited in note 21.

No authority can be found in the decisions of the courts or in any statute, which authorizes the Attorney General to employ special counsel and charge a fund in litigation with payment of their services.

"In the absence of specific authority such funds cannot be ordered by the court to be paid for any purpose, except by express authority of the Legislature." People v. Woodbury, 213 N.Y. 51, 59, 106 N.E. 932, 935.

Counsel for Mr. La Roche, in their brief in support of his claim to compensation out of the fund in suit, cite Currie v. Pye, 17 Ves. 462; Attorney General v. Wallace's Devisees, 7 B. Mon. (Ky.) 611; Attorney General v. Old South Society, 13 Allen (95 Mass.) 474.

In each of those cases, except Currie v. Pye, a private individual having a special interest in preserving a public charity appeared as relator, employed private counsel, and carried on the litigation.

Currie v. Pye was a suit commenced by trustees against the heir, for the construction of a will creating a charity. Costs were allowed the heir as between attorney and client. The Lord Chancellor observed "that it was frequently done in a charity cause; the heir not having made an improper point."

Attorney General v. Wallace's Devisees was a suit instituted in the name of the Attorney General by W. H. Cord, as relator, praying to have enforced and executed a charitable devise in the will. On the question of costs, the court said:

"The court should provide for the payment of all costs necessarily incurred by the relator in this proceeding, and also a reasonable compensation for his services, to be paid by the trustees out of the trust fund."

Attorney General v. Old South Society was a suit...