did you call Judge Johnson up and why did you | say that to him over the telephone? A. I don't know. I have no distinct recollection now of why I said it. Q. Isn't it a fact that it was because he was the attorney for Hyde and because he was involved in the bringing of this injunction suit? A. Not at all. Q. You say that had nothing to do with it? A. He was not involved in the bringing of this injunction suit any more than you were."

dollar of costs in this case, if the costs devolve upon you to pay?

"Mr. Whitsett: We object to that. "The Presiding Judge: Överruled. (To which ruling and action of the court the plaintiffs and each of them then and there duly excepted and still except.) A. I am not informed about that. I may.

"Q. Do you expect to be reimbursed in the event you have to pay costs? A. I would hope so; I don't know. I don't know where it would come from."

Further evidence of plaintiff Bowling is to the effect that he is a neighbor and friend of Attorney Hughes, and has employed said Hughes in other litigation.

He

Mr. Hughes, further testifying, stated that he could not recall having transacted any legal business with Mr. Peltzer before bringing this suit; that when Mr. Peltzer called he (Hughes) stated that he would be glad to bring the suit if Peltzer had some reputable taxpayers to join in it; that he had talked Plaintiff Peltzer, called as a witness by with plaintiff Bowling about the suit, and knew Bowling's feelings in the matter; that defendants, stated that, being of the opinion he called Bowling over the phone, and the that the payment of the expenses in the Hyde latter consented to the suit being brought in Case by Jackson county was illegal, he called the name of Peltzer and Bowling, whereupon upon Attorney Cleary, whom he had frequentthe suit was instituted without any under-ly employed, and Cleary stated that he could standing with plaintiffs about paying any at- not bring the suit to enjoin the county court torney's fee; that two days after the suit was because he was Mr. Hyde's attorney. brought plaintiff Peltzer called witness then asked Mr. Cleary about going to Hughes, Hughes to his office, paid him $100, and ask- and Cleary said, “All right." That he then ed him what his fee would be, and witness re- went to Hughes, mainly because the latter plied that he (Peltzer) "could fix that to suit had once been prosecuting attorney of Jackhimself." son county. Plaintiff Peltzer said that two days after this suit was brought he asked Hughes what his fee would be, and the latter said he thought that $250 would be reasonable. Witness thought that amount "would be clear out of the road," but agreed generally to pay a reasonable fee. Plaintiff Peltzer stated that he had no understanding with Mr. Cleary, Johnson & Lucas, or any other attorney for Hyde, about paying the costs of the suit; that he did not expect to get anything out of the case wheth

Mr. Bowling, one of the plaintiffs, testifying in his own behalf, gave evidence regarding the attorney's fee and expenses of this suit as follows:

"Q. When did you first talk with Mr. Peltzer relative to bringing this injunction suit? A. I have not talked with him at all. I haven't talked with him at any time or any place.

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"Q. Who have you talked to about this suit? A. Nobody. Mr. Hughes called me up over the phone to know if I would allow my name to be

used in connection with Mr. Peltzer.

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Witness was asked

er he won it or lost it. * if he knew any reason why Mr. Hughes should call up Judge Johnson of the firm of Johnson & Lucas and ask him in relation to the attorney's fee in this case, and he replied that he did not.

"Q. Are you paying Mr. Hughes his fee for * A. No. sir. this injunction suit? * I know Mr. Johnson, have known him a good many years. I knew his father. He has never discussed this matter with me. I do not know who is paying the expenses, attorney's fees and costs in this proceeding. I don't know a syllable about that in any form or shape. I never heard anything about it at all.

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*

"Q. Haven't you a pretty clear recollection of what he said to you when he called you up and asked for the use of your name in this extraordinary proceeding?

It

Hughes & Whitsett, of Kansas City, for appellants. Floyd E. Jacobs, Pros. Atty., of Kansas City (Rozzelle, Vineyard & Thacher and Jos. S. Brooks, all of Kansas City, of counsel), for respondents.

brought in good faith to prevent an unlawful disbursement of the public funds? Was it instituted or maintained to impede the prosecution of Hyde? If not prosecuted in the name of the real party in interest, or if the party or parties who caused it to be instituted are proceeding from improper motives, then the action of the trial court in dismissing their

"Mr. Hughes: Plaintiffs object on the ground that it is not an extraordinary proceeding. BROWN, J. (after stating the facts as is as common as a suit on a promissory note. above). Does the foregoing constitute sub"The Presiding Judge: The objection will stantial evidence that this suit was not be overruled. (To which ruling and action of the court the plaintiffs and each of them then and there duly excepted and still except.) A. I think I am pretty clear as to what transpired between me and Mr. Hughes at the time he called me up and asked for the use of my name in this proceeding. Q. Well, then, did he say to you that you would not have to pay him an attorney's fee? A. No, sir. Q. Did you ask him if you would have to pay him an attorney's fee? A. No, sir. Q. Did he say anything to you about these costs devolving petition should be affirmed. As nearly all on you? A. I don't remember that he did. Q. the evidence introduced bears upon this point, Will you say that he did not? we have deemed it proper to consider that issue before approaching the more complex and difficult questions arising on the suffi

A. No, sir. I don't believe he did, though. I don't think I am quite clear on that, just what he said, if he said anything. Q. Do you expect to pay a

ciency of the petition to support the relief a better appearance; it being the expressed demanded. If plaintiffs are not the real parties in interest, or if the protection of their interests was not the chief purpose of the suit, then it will be unnecessary to consider the sufficiency of the petition.

[1] The necessity of good faith on the part of plaintiffs in prosecuting an action in chancery is announced by Mr. High in his treatise on the Law of Injunctions (4th Ed.) § 1302, vol. 2, p. 1317, as follows:

"Taxpayer must sue in good faith. The general rule, as stated in the preceding sections, is also to be understood as limited to cases where the action is instituted by the taxpayer in good faith, and for the protection of his own interest. And where a taxpayer seeks to restrain an alleged waste or injury to the property of a city, equity will not extend him relief when it is shown that the action is not brought in good faith for the protection of his own interest, but that he is merely a colorable plaintiff, suing in behalf of other parties in in

terest."

In harmony with the views of Mr. High, it was held by the Supreme Court of New York in the case of Hull v. Ely, 2 Abb. N. C. 440, that a taxpayer could not enjoin the sale of a ferry franchise owned by a city where it was shown that the principal purpose of the suit was to enable other parties, at whose instance the suit was instituted, to enjoy the benefits of the ferry franchise while it remained the property of the city. That action was one at law which authorized injunctive relief to a taxpayer in a suit to stay waste by the city, but the court ruled that plaintiff was not entitled to relief either at law or equity.

The last quoted decision was approved in Kimball v. Hewett, 2 N. Y. Supp. 697, where it was appropriately said by Van Hoesen, J., that:

"In all applications of this character it is the duty of the court to see to it that he who under; takes to champion the public cause is actuated by public motives, and that he is not making use of the power of the court to accomplish some private end."

desire of the latter that several taxpayers should join Peltzer in the action. We think, under the admitted facts, that Mr. Bowling's interest in this suit may safely drop out of view altogether.

Mr. Peltzer, the principal plaintiff, has testified quite positively that he alone is responsible for this action and the attorney's fees for prosecuting same; but, notwithstanding its unequivocal character, his testimony is not convincing.

A taxpayer injured only to the extent of a few dollars or a few cents, and desiring to bring an action of this character, is a man who usually counts the cost of every outlay and expends no more money on anything than is necessary. According to Mr. Peltzer's testimony he was very desirous to know just what Mr. Hughes' fee would be, and, according to the testimony of Mr. Hughes, there were many people who thought this action ought to be brought-hundreds perhaps. Yet Mr. Peltzer does not seem to have invited any one to join him and bear part of the burden of the action. On the contrary, like Don Quixote, he rushed singlehanded to the relief of the supposed victim (in this case the public treasury). This conduct is so out of the ordinary as to cast much discredit on the evidence and motives of Mr. Peltzer. While Attorney Hughes had a perfect right to bring and prosecute the action for Mr. Peltzer, the undenied and unexplained evidence of Mr. Broaddus, who seems to be about the only disinterested witness in the case, points quite strongly to the fact that Mr. Hughes depended upon the firm of Johnson & Lucas (Hyde's attorneys) to pay or look after the payment of his fee. Peltzer testifies that he knows no reason why Hughes should call Johnson & Lucas in regard to his (Hughes') fee in this case. Johnson swears unequivocally that he never at any time talked with Hughes about the attorney's fee in this cause. On the other hand, Hughes admits the con

Broaddus, but, when interrogated about the matter, Mr. Hughes tries to minimize its importance by forgetting what was said. This suit was instituted on January 10, 1914; the conversation which Broaddus heard between Hughes and somebody took place on January 12th, and the cause was tried on January 17, 1914, just seven days after it was filed. It is surprising, indeed, that Mr. Hughes should forget so many things within such a short time.

While approving, in a general way, the doc-versation at the time referred to by Mr. trine of these cases, it is not necessary for us to take the extreme ground which they announce. Those actions were on a right expressly given by a statute, but the suit at bar rests only on equitable principles, and the doctrine that one who demands this extraordinary writ must come with clean hands and proceed from honest motives to protect his own interests applies with special force. Following the rule anounced by High, we hold that, if the chief purpose of this suit was to impede the prosecution of Hyde, the judgment should be affirmed.

Coming back to the facts of this case, it appears that plaintiff Bowling had paid 61 cents into the public treasury of Jackson county, and might be injured a few cents by the alleged misappropriation of part of the public funds. He only became a party plaintiff at the request of Attorney Hughes for the ostensible purpose of giving the cause

Peltzer says that two days after the suit was filed Hughes wanted an attorney's fee of $250, while Hughes states that when asked what his fee would be he told Peltzer to "fix that to suit himself." Mr. Hughes seems to have forgotten most everything which moved him to bring and prosecute this action. Upon the whole case, as charitable a view as we are warranted in taking of his evidence is that some one interested in the de

fense of Hyde instigated or employed him to institute this action, and the fact of such employment has simply fallen out of his memory. At any event, he seems never to have voluntarily asked any one about his fee, except some one in the office of Johnson & Lucas (attorneys for Hyde).

The testimony of Judge Johnson regarding the telephone communication had within the hearing of Broaddus may be correct. Broaddus could not tell with whom the conversation was conducted-he only knows that Hughes called for Judge Johnson of the firm of Johnson & Lucas with the avowed purpose of finding out about his fee in the Peltzer matter. It may be that some other representative of B. Clark Hyde in that office replied, agreeing to pay Mr. Hughes' fee, and that such agreement caused Mr. Hughes to terminate the conversation by the words, "All right." Peltzer says he knows no reason why Hughes should call Johnson & Lucas for information about his fee in this case. The only natural inference is that some one connected with the office of Johnson & Lucas agreed in that conversation to pay Mr. Hughes' fee.

the trial court was right in dismissing the plaintiffs' bill. It also appears that three of that five are of opinion that the evidence in the present record shows such collusive action, while two of such five do not think the facts of the present record show such collusive action. In addition it would appear that two of our number dissent from the general, doctrine hereinabove first stated. In this state of opinion we were unable to reach a judgment, but to the end that a judgment may be reached, those of us who are of the opinion that if the suit was collusively brought the bill should be dismissed agree (without changing our views as to the sufficiency or insufficiency of the evidence in the present record, to show a collusive action in the institution and prosecution of the suit) that the judgment nisi shall be reversed and the cause remanded for a new trial, so that the facts as to the collusive character of the action may be more fully investigated.

Let the judgment nisi be reversed and the cause remanded. All concur, except WOODSON and WALKER, JJ., who dissent.

[2] The writ of injunction is not a writ of right, but a writ of grace and discretion, and should only be issued when the chancellor is convinced that a proper case has been made. Johnson v. Railroad, 227 Mo. 423, loc. cit. 450, 127 S. W. 63. The application for this writ cannot appropriately be compared to a suit upon a promissory note, as appellants' learned attorney seems to think. Not only should every one who applies for this extraordinary writ come into court with clean hands and honest motives, but his motives being a matter peculiarly within his own knowledge, and when, as here, defend-itated method of poisoning. ant's good faith is challenged, he should be able to furnish convincing evidence that the action is not maintained primarily to promote some improper purpose.

GRAVES, J. (concurring). I fully concur with the views of our Brother BROWN in this case. This record cannot be fairly read without reaching the conclusion that the plaintiffs in this suit in equity are but the "stool pigeons" of B. Clarke Hyde, the defendant in the case of the State of Missouri v. B. Clark Hyde. And, further, that the suit was not brought in good faith for the purpose of protecting the public funds of Jackson county, but was covinly brought to prevent the trial of one charged with a most heinous crime, i. e., murder by the cold and premed

A careful and painstaking review of the record convinces us that the trial court possessed very substantial evidence that the bringing of this action was primarily for the purpose of impeding the prosecution of B. Clark Hyde, and that the alleged illegal disbursement of public funds was only an unimportant factor in causing the action to be instituted.

The judgment of the trial court dismissing plaintiffs' bill should be affirmed.

GRAVES and BOND, JJ., concur in the views expressed in this opinion. However, a majority of the court not concurring, the judgment of the circuit court is reversed and the cause remanded by an opinion per curiam.

PER CURIAM. [3] As indicated by the several opinions filed herein, it appears that five of our number are in accord upon the proposition that if the suit was collusively instituted by the plaintiffs in the interest of the defense of Dr. Hyde in the criminal case,

In this case it must not be forgotten that these plaintiffs have appealed to a court of conscience, not a court of law. In such court their own conscience can be "sifted," and if there be "dross" therein, they should be refused that relief which can only come from a court of conscience. They should come, not only with clean hands, as the ancient rule reads, but they must come with an open breast and explain honestly to such court of conscience their appeal to it for relief. They cannot aver one alleged reason (even though it be well founded in law) for asking relief and hide from such court the real moving reason for their suit, and ask the court, which they thus seek to deceive, to give them relief in equity. Grant it that as honest and honorable taxpayers they were seeking to protect a public fund, they should have relief in equity; yet when it is made to appear that such is not the real purpose, but that the real purpose is a venal and corrupt one, a court of equity should wash its hands of such a cause at the first open door. This the chancellor nisi did, and his judgment should be affirmed. If the public treasury is about to be looted, as plaintiffs' counsel insist, there

logical condition is unethical; contra, generally the real justiciable questions are: Is A. wrongfully injured by B.? Are A.'s legal or equitable rights violated by B. in the matters complained of?

are no doubt good citizens enough in the | bringing the suit, is not whether A.'s psychocounty who will look after the county's welfare, with that sole purpose in view, and who will not pay their counsel from the funds of another, which other has more interest in this suit than the plaintiffs herein. This is one of the most typical causes calling for a prompt dismissal of the bill by a court of conscience. Courts of equity should not be trifled with by parties plaintiff having the motives shown in the instant case. The sacred field of equity should not be open to such parties. They should be met at the threshold and have the beauties and grandeur of equitable jurisprudence explained to them, and there reminded that he who would darken the portals of equity must not only enter with clean hands, but must come with an honest heart and an open countenance; that nothing should be hid from the eye or the ear of the chancellor. Equity despises deceit and fraud, and will not countenance it. Hiding the real purpose of a suit is an abomination in the eyes of equity, and deserves to be condemned. The chancellor nisi did so. Let his righteousness and equitable judgment prevail.

BOND, J., concurs in these views.

[4] Now in the case at bar a main question was put to us, to wit: Is there any warrant of law for the appropriation in aid of a criminal prosecution pending of $15,000, by the county court of Jackson county out of public moneys raised in invitum for specified public purposes by means of the sovereign power of taxation? The learned principal opinion has a significant omission, to wit, a decision of the main question. So prominent is this omission that I infer my learned Brother means to say, and by necessary implication does say, that an affirmative answer is out of the question and cannot be given. I read the principal and concurring opinions as a concession that such extraordinary appropriation runs counter to the written law, and to the theory of criminal costs and liability heretofore hitherto entertained by courts of this commonwealth, as well as by the lawmaker and those charged with administrative duties. Therefore a doctrine, that I concede to be the handmaiden of equity, is brought into LAMM, C. J. (dissenting). I do not agree play to break the case, to wit, the doctrine with the principal opinion in so far as it (metaphorically speaking) of “unclean hands." seemingly stresses the fact that plaintiffs If, now, the case is to break on that sole are small taxpayers, and that their appropri- | question, we should be sure of our ground. ate share of the alleged illegal appropriation of the public funds would amount to little in dollars and cents. I take it that the maxim de minimus should have little or no weight in the grave courts of serious-minded people when a taxpayer asks for relief by injunction against a maladministration of public funds. Otherwise it would be only the affluent who could invoke equity in that behalf. As was said by another, the value of this observation lies in the application of it. In these times where there is a studied attempt to draw class distinction and where there is yeasty unrest on that score in the public minds, courts can do no better public service than by showing in their judgments that such pestiferous notions find no lodgment in law or equity. I think equity lends a respectful ear to the protest of one or two small taxpayers who stand sponsor in a given case for the establishment of a clear, equitable principle in the administration of public funds. However, it seems from the record that plaintiffs are substantial taxpayers.

The premises from which that conclusion is to flow should be sound premises. If this case is in deed and truth a covinously contrived case, wherein a prisoner charged under the solemn form and sanction of the law with the commission of crime is the real actor in an attempt through the court of conscience to prevent his own prosecution or escape the penalty that would follow his conviction, then the case stands precisely as if he is the real party in interest and is suing in his own name; for equity looks to substance, not to form.

The discriminating and piercing eye of the chancellor looks inside the shell of the nut of the suit to the kernel itself, and his hand would remain passive. The trouble in the case to my mind is that plaintiffs, unless cast on the doctrine of unclean hands, have a clear right to an injunction. If the county court of Jackson county proposes in the name of all the taxpayers to use a common fund raised by taxation as a reward or, putting it softly, in payment of witnesses to aid in the prosecution, then I have nothing to say about I agree with zest in the general doctrine the wisdom or unwisdom of that course, but announced in the opinion of my Brother I do say this: There should first have been BROWN and in the concurring of my Brother appropriate legislation in the form of a genGRAVES, viz., that before a court of con- eral law that applies to every county in the science acts its own conscience must be mov-state permitting such extraordinary expendied. Hence a litigant who comes with unclean tures-expenditures that are confessedly outhands has no redress in such court. I stand side of all legal warrant. We shall recur to wedded to that doctrine, though it must be the facts presently. accepted as a general precept, that when A. sues B. at law or equity the real justiciable question is not what were A.'s motives in

It was argued with vehement animation at our bar that the "people" demanded the appropriation, that (as we gather it) the peo

The various opinions frankly admit, which is a fact, as is known by all courts and lawyers, that there is no law authorizing the county court of Jackson county to pay this $15,000 in the prosecution of a felony case, but, upon the contrary, the law explicitly and clearly provides all such cost shall be paid by the state. Why, then, did counsel for the state go to the county court of Jackson county instead of to the county court of Buchanan county or Clay county and ask them to make the appropriation. All concede that they or any other county in the state would have just as much legal right to make the ap

ple were watching with eager and suspicious | money and suggest the idea, so prevalent, eyes first to spy out and then mark with con- there is no security to public funds. demnation any effort to thwart their will in that behalf, and so on, and so on. As to that view of it, should not this court be serene, steady, and courageous enough to point with inflexible finger to the law? Peradventure law is the flag we should follow. This court is organized to subserve the wish and will of the people, expressed how? Expressed through the form of the law, not the alleged wish and will of the people or the alleged voice of the people conveyed to us by extraneous means with the heat and blaze of oratory or flights of rhetoric.. Observe, too, that this case does not involve the payment of private funds of individuals to aid a prosecution.propriation as Jackson county has; but by Such payments are not to be interfered with. Contra, this case is leveled at an admittedly (I use the word advisedly as the sum of the matter) illegal use of common funds raised from all the people and reposing in the common money chest, and protected by every safeguard the wit of the lawmaker could devise.

Returning to the question of unclean hands, I think these observations just: Conceding, as I do, that if this case is brought or prosecuted by one charged with a crime either in his own name or by him masquerading under the name of another, an injunction should not issue, we come to the testimony on which the principal opinion rests. I have read it and re-read it, and am unable to concur in the opinion that it satisfactorily establishes collusion between such defendant in a criminal

reading and a careful consideration of the briefs of counsel for the respondents, it will be clearly seen that this legal proposition, which is as plain as the noonday sun, has been brushed aside as so much chaff, and so deeply buried beneath a heap of worthless rubbish regarding the good faith of the relators who brought this suit (although they are bona fide taxpayers of Jackson county, and who unquestionably have the legal right to object to its illegal expenditures, and to be heard in the courts of this state upon the legality thereof) that the real legal proposition involved has been lost sight of and has caused my learned Associates to unwittingly follow the false gods, and to pass by the legal proposition presented unnoticed and undecided.

held that in the absence of the advice of the legal department of the state he could not so do, as he as such officer had no right to involve the county in litigation where he had but that case falls far short of this, where a no other interest in the funds ordered paid; taxpayer, as such, who has an interest in, and the right to see that the revenues of the

I had an occasion to go quite extensively case and the plaintiffs in the injunction case. into this question in the case of State ex rel. That there is some testimony creating a sus- v. Williams, 232 Mo. 56, 133 S. W. 1. There picion of that sort I admit; but, if we are to the question was whether a ministerial ofadhere to the ancient rule that ignoble pur-ficer, as such, could resist the payment of a poses and ignoble things are not to be presum-warrant because issued under a statute he contended was unconstitutional. We there ed or established by suspicion or mere conjecture, but are to rest, if at all, on substantial basis of fact, and if we are to apply the lofty doctrine of the law that where fraud and dole are charged and where two views of testimony to sustain the charge may rest in reason, one ignoble, the other not, the court is bound to take the nobler view, then I see no escape from the conclusion that collusion, fraud, and dole were not made out. The bur-county are not squandered, not under an unden, I think, rested on defendants to show a case of that sort, and this burden they did not well carry. No attempt to impeach the honor or verity of the witnesses was made. Their disavowal of the payment of fees by the defendant in the criminal case should not be lightly disregarded, and I rest my vote on that proposition. Therefore I dissent.

authority whatever. This court has repeatconstitutional statute, but without any legal edly held that while a ministerial officer cannot question the constitutionality of a statute, yet a taxpayer may do so; and our reports are full of such cases. The Supreme Court of the United States has also ruled in many cases, notably in the Kansas tree-planting cases, and taxes levied to support gristmills in remote and sparsely settled districts.

FARIS, J., concurs with me in these views. But in the case at bar there is no statute or

WOODSON, J. (dissenting). With all due deference to my learned Associates, but it is just such opinions as this, delivered by the highest court of the state, which lend countenance to the illegal expenditure of public

other law authorizing this expenditure, and a fortiori should the taxpayers in this case be permitted to maintain this suit, when no law on earth authorizes the expenditure of this $15,000 for the purposes mentioned, and which, if done, would clearly render the