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did you call Judge Johnson up and why did you | dollar of costs in this case, if the costs devolve say that to him over the telephone? A. I don't upon you to pay? know. I have no distinct recollection now of "Mr. Whitsett: We object to that. why I said it. Q. Isn't it a fact that it was “The Presiding Judge: Overruled. (To which because he was the attorney for Hyde and be- ruling and action of the court the plaintiffs and cause he was involved in the bringing of this in each of them then and there duly excepted and junction suit? A. Not at all. Q. You say that still except.) A. I am not informed about that. had nothing to do with it? A. He was not in- I may. volved in the bringing of this injunction suit * any more than you were.

"Q. Do you expect to be reimbursed in the Mr. Hughes, further testifying, stated that event you have to pay costs? A. I would hope he could not recall having transacted any come from."

so; I don't know. I don't know where it would legal business with Mr. Peltzer before bringing this suit; that when Mr. Peltzer called

Further evidence of plaintiff Bowling is he (Hughes) stated that he would be glad to to the effect that he is a neighbor and friend bring the suit if Peltzer had some reputable of Attorney Hughes, and has employed said taxpayers to join in it; that he had talked Hughes in other litigation. with plaintiff Bowling about the suit, and

Plaintiff Peltzer, called as a witness by 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 plaintitfs 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. He brought plaintiff Peltzer called witness then asked Mr. Cleary about going to Hughes, liughes 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 Mr. Bowling, one of the plaintiffs, testify- days after this suit was brought he asked ing in his own behalf, gave evidence regard Hughes what his fee would be, and the ing the attorney's fee and expenses of this latter said he thought that $250 would be suit as follows:

reasonable. Witness thought that amount “Q: When did you first talk with Mr. Peltzer "would be clear out of the road," but agreed relative to bringing this injunction suit? A. generally to pay a reasonable fee. Plaintiff I have not talked with him at all. I haven't Peltzer stated that he had no understand. talked with him at any time or any place.

ing with Mr. Cleary, Johnson & Lucas, or “Q: Who have you talked to about this suit? any other attorney for Hyde, about paying A. Nobody. Mr. Hughes called me up over the the costs of the suit; that he did not exphone to know if I would allow my name to be pect to get anything out of the case whethused in connection with Mr. Peltzer.

er he won it or lost it. Witness was asked "Q. Are you paying Mr. Hughes his fee for if he knew any reason why Mr. Hughes this injunction suit? A. No. sir.

* I should call up Judge Johnson of the firm know Mr. Johnson, have known him a good of Johnson & Lucas and ask him in relation many years. I knew his father. He has never discussed this matter with me. I do not know to the attorney's fee in this case, and he re who is paying the expenses, attorney's fees and plied that he did not. costs in this proceeding. I don't know a syllable about that in any form or shape. I never Hughes & Whitsett, of Kansas City, for heard anything about it at all.

appellants. Floyd E. Jacobs, Pros. Atty., of "Q. Haven't you a pretty clear recollection

Kansas City (Rozzelle, Vineyard & Thacher of what he said to you when he called you and Jos. S. Brooks, all of Kansas City, of up and asked for the use of your name in this counsel), for respondents. extraordinary proceeding?

"Mr. Hughes: Plaintiffs object on the ground that it is not an extraordinary proceeding. It

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 brought in good faith to prevent an unlawful and there duly excepted and still except.) A. disbursement of the public funds? Was it inI think I am pretty clear as to what trans- stituted or maintained to impede the prospired between me and Mr. Hughes at the time ecution of Hyde? If not prosecuted in the he called me up and asked for the use of my name in this proceeding. Q. Well, then, did name of the real party in interest, or if the he say to you that you would not have to pay party or parties who caused it to be instituted him an attorney's fee? A. No, sir. Q. Did you ask him if you would have to pay him an the action of the trial court in dismissing their

are proceeding from improper motives, then attoraey'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? A. No, sir. I don't believe he did, though. I don't think I we have deemed it proper to consider that am quite clear on that, just what he said, if issue before approaching the more complex he said anything. Q. Do you expect to pay a and difficult questions arising on the suffi.

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ciency of the petition to support the relief, a better appearance; it being the expressed demanded. If plaintiffs are not the real desire of the latter that several taxpayers parties in interest, or is the protection of should join Peltzer in the action. We think, their interests was not the chief purpose of under the admitted facts, that Mr. Bowling's the suit, then it will be unnecessary to con- interest in this suit may safely drop out of sider the sufficiency of the petition.

view altogether. (1) The necessity of good faith on the part Mr. Peltzer, the principai plaintiff, has of plaintiffs in prosecuting an action in chan- testified quite positively that he alone is recery is announced by Mr. High in his treatise sponsible for this action and the attorney's on the Law of Injunctions (4th Ed.) $ 1302, fees for prosecuting same; but, notwithvol. 2, p. 1317, as follows:

standing its unequivocal character, his testi"Taxpayer must sue in good faith. The gen- mony is not convincing. eral rule, as stated in the preceding sections, A taxpayer injured only to the extent of is also to be understood as limited to cases a few dollars or a few cents, and desiring where the action is instituted by the taxpayer in good faith, and for the protection of his to bring an action of this character, is a man own interest. And where a taxpayer seeks to who usually counts the cost of every outlay restrain an alleged waste or injury to the prop- and expends no more money on anything than erty of a city, equity will not extend him re- is necessary. According to Mr. Peltzer's teslief when it is shown that the action is not brought in good faith for the protection of his timony he was very desirous to know just own interest, but that he is merely a colorable what Mr. Hughes' fee would be, and, accordplaintiff, suing in behalf of other parties in in- ing to the testimony of Mr. Hughes, there terest."

were many people who thought this action In harmony with the views of Mr. High, ought to be brought-hundreds perhaps. Yet it was held by the Supreme Court of New Mr. Peltzer does not seem to have invited any York in the case of Hull v. Ely, 2 Abb. N. one to join him and bear part of the burden C. 440, that a taxpayer could not enjoin the of the action. On the contrary, like Don sale of a ferry franchise owned by a city Quixote, he rushed singlehanded to the rewhere it was shown that the principal pur- lief of the supposed victim (in this case the pose of the suit was to enable other parties, public treasury). This conduct is so out of at whose instance the suit was instituted, to the ordinary as to cast much discredit on the enjoy the benefits of the ferry franchise evidence and motives of Mr. Peltzer. While while it remained the property of the city. Attorney Hughes had a perfect right to bring That action was one at law which authorized and prosecute the action for Mr. Peltzer, the injunctive relief to a taxpayer in a suit to undenied and unexplained evidence of Mr. stay waste by the city, but the court ruled Broaddus, who seems to be about the only that plaintiff was not entitled to relief either disinterested witness in the case, points quite at law or equity.

strongly to the fact that Mr. Hughes dependThe last quoted decision was approved ined upon the firm of Johnson & Lucas Kimball v. Hewett, 2 N. Y. Supp. 697, where (Hyde's attorneys) to pay or look after the it was appropriately said by Van Hoesen, J., payment of his fee. Peltzer testifies that he that:

knows no reason why Hughes should call “In all applications of this character it is the Johnson & Lucas in regard to his (Hughes') duty of the court to see to it that he who under; fee in this case. Johnson swears unequivocaltakes to champion the public cause is actuated by public motives, and that he is not making ly that he never at any time talked with use of the power of the court to accomplish some Hughes about the attorney's fee in this cause. private end."

On the other hand, Hughes admits the conWhile 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 Broaddus, but, when interrogated about the to take the extreme ground which they an- matter, Mr. Hughes tries to minimize its

Those actions were on a right ex. importance by forgetting what was said. pressly given by a statute, but the suit at bar This suit was instituted on January 10, 1914; rests only on equitable principles, and the the conversation which Broaddus heard bedoctrine that one who demands this extraor-tween Hughes and somebody took place on dinary writ must come with clean hands January 12th, and the cause was tried on and proceed from bonest motives to protect January 17, 1914, just seven days after it his own interests applies with special force. was filed. It is surprising, indeed, that Mr. Following the rule anounced by High, we hold Hughes should forget so many things within that, if the chief purpose of this suit was to such a short time. impede the prosecution of Hyde, the judg- Peltzer says that two days after the suit ment should be affirmed.

was filed Hughes wanted an attorney's fee Coming back to the facts of this case, it of $250, while Hughes states that when askappears that plaintiff Bowling had paid 61 ed what his fee would be he told Peltzer to cents into the public treasury of Jackson "fix that to suit himself.” Mr. Hughes seems county, and might be injured a few cents to have forgotten most everything which by the alleged misappropriation of part of moved him to bring and prosecute this action. the public funds. He only became a party Upon the whole case, as charitable a view plaintiff at the request of Attorney Hughes as we are warranted in taking of his evifor the ostensible purpose of giving the cause dence is that some one interested in the de


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fense of Hyde instigated or employed him to the trial court was right in dismissing the institute this action, and the fact of such plaintiffs' bill. It also appears that three of employment has simply fallen out of his mem- that five are of opinion that the evidence in ory. At any event, he seems never to have the present record shows such collusive acvoluntarily asked any one about his fee, ex- tion, while two of such five do not think the cept some one in the office of Johnson & facts of the present record show such colLucas (attorneys for Hyde).

lusive action. In addition it would appear The testimony of Judge Johnson regarding that two of our number dissent from the the telephone communication had within the general , doctrine hereinabove first stated. hearing of Broaddus may be correct. Broad. In this state of opinion we were unable to dus could not tell with whom the conversa- reach a judgment, but to the end that a tion was conducted-he only knows that judgment may be reached, those of us who Hughes called for Judge Johnson of the firm are of the opinion that if the suit was col. of Johnson & Lucas with the avowed pur- lusively brought the bill should be dismissed pose of finding out about his fee in the Peltzer agree (without changing our views as to the matter. It may be that some other represen- sufficiency or insufficiency of the evidence tative of B. Clark Hyde in that office replied, in the present record, to show a collusive acagreeing to pay Mr. Hughes' fee, and that tion in the institution and prosecution of the such agreement caused Mr. Hughes to termi- suit) that the 'judgment nisi shall be renate the conversation by the words, "All versed and the cause remanded for a new right.” Peltzer says he knows no reason trial, so that the facts as to the collusive why Hughes should call Jolinson & Lucas character of the action may be more fully for information about his fee in this case. investigated. The only natural inference is that some one Let the judgment nisi be reversed and the connected with the office of Johnson & Lucas cause remanded. All concur, except WOOD. agreed in that conversation to pay Mr. SON and WALKER, JJ., who dissent. Hughes' fee.

[2] The writ of injunction is not a writ GRAVES, J. (concurring). I fully concur of right, but a writ of grace and discretion, with the views of our Brother BROWN in and should only be issued when the chancel. this case. This record cannot be fairly read lor is convinced that a proper case has been without reaching the conclusion that the made. Johnson v. Railroad, 227 Mo. 423, loc. plaintiffs in this suit in equity are but the cit. 450, 127 S. W. 63. The application for “stool pigeons" of B. Clarke Hyde, the dethis writ cannot appropriately be compared fendant in the case of the State of Missouri to a suit upon a promissory note, as appel- v. B. Clark Hyde. And, further, that the suit lants' learned attorney seems to think. Not was not brought in good faith for the purpose only should every one who applies for this of protecting the public funds of Jackson extraordinary writ come into court with county, but was covinly brought to prevent clean hands and honest motives, but his mo- the trial of one charged with a most heinous tives being a matter peculiarly within his crime, i. e., murder by the cold and premedown knowledge, and when, as here, defend- itated method of poisoning. ant's good faith is challenged, he should be In this case it must not be forgotten that able to furnish convincing evidence that the these plaintiffs have appealed to a court of action is not maintained primarily to pro- conscience, not a court of law. In such court mote some improper purpose.

their own conscience can be "sifted," and if A careful and painstaking review of the there be "dross" therein, they should be rerecord convinces us that the trial court pos- fused that relief which can only come from a sessed very substantial evidence that the court of conscience. They should come, not bringing of this action was primarily for the only with clean hands, as the ancient rule purpose of impeding the prosecution of B. reads, but they must come with an open Clark Hyde, and that the alleged illegal dis-breast and explain honestly to such court of bursement of public funds was only an unconscience their appeal to it for relief. They important factor in causing the action to be cannot aver one alleged reason (even though instituted.

it be well founded in law) for asking relief The judgment of the trial court dismissing and hide from such court the real moving plaintiffs' bill should be affirmed.

reason for their suit, and ask the court, GRAVES and BOND, JJ., concur in the which they thus seek to deceive, to give them views expressed in this opinion. However, a relief in equity. Grant it that as honest and majority of the court not concurring, the honorable taxpayers they were seeking to judgment of the circuit court is reversed and protect a public fund, they should have rethe cause remanded by an opinion per curiam. lief in equity; yet when it is made to appear

that such is not the real purpose, but that PER CURIAM. [3] As indicated by the the real purpose is a venal and corrupt one, several opinions filed herein, it appears that a court of equity should wash its hands of five of our number are in accord upon the such a cause at the first open door. This the proposition that if the suit was collusively chancellor nisi did, and his judgment should instituted by the plaintiffs in the interest of be affirmed. If the public treasury is about the defense of Dr. Hyde in the criminal case, to be looted, as plaintiffs' counsel insist, there


are no doubt good citizens enough in the bringing the suit, is not whether A.'s psychocounty who will look after the county's wel- | logical condition is unethical; contra, generfare, with that sole purpose in view, and who ally the real justiciable questions are: Is will not pay their counsel from the funds of A. wrongfully injured by B.? Are A.'s legal another, which other has more interest in or equitable rights violated by B. in the matthis suit than the plaintiffs herein. This is ters complained of? one of the most typical causes calling for [4] Now in the case at bar a main question a prompt dismissal of the bill by a court of was put to us, to wit: Is there any warrant conscience. Courts of equity should not be of law for the appropriation in aid of a crimitrifled with by parties plaintiff having the nal prosecution pending of $15,000, by the motives shown in the instant case. The county court of Jackson county out of public sacred field of equity should not be open to moneys raised in invitum for specified pubsuch parties. They should be met at the lic purposes by means of the sovereign power threshold and have the beauties and grandeur of taxation? The learned principal opinion of equitable jurisprudence explained to them, has a significant omission, to wit, a decision and there reminded that he who would dark- of the main question. So prominent is this en the portals of equity must not only enter omission that I infer my learned Brother with clean hands, but must come with an means to say, and by necessary implication honest heart and an open countenance; that does say, that an affirmative answer is out of nothing should be hid from the eye or the ear the question and cannot be given. I read the of the chancellor. Equity despises deceit and principal and concurring opinions as a confraud, and will not countenance it. Hiding cession that such extraordinary appropriation the real purpose of a suit is an abomination runs counter to the written law, and to the in the eyes of equity, and deserves to be con theory of criminal costs and liability heretodemned. The chancellor nisi did so. Let his fore hitherto entertained by courts of this righteousness and equitable judgment prevail. commonwealth, as well as by the lawmaker

and those charged with administrative duBOND, J., concurs in these views.

ties. 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 The premises from which that conclusion is of the public funds would amount to little in to flow should be sound premises. If this dollars and cents. I take it that the maxim case is in deed and truth a covinously conde minimus should have little or no weight in trived case, wherein a prisoner charged under the grave courts of serious-minded people the solemn form and sanction of the law with when a taxpayer asks for relief by injunc- the commission of crime is the real actor in tion against a maladministration of public an attempt through the court of conscience funds. Otherwise it would be only the afflu- to prevent his own prosecution or escape the ent who could invoke equity in that behalf. penalty that would follow his conviction, then As was said by another, the value of this the case stands precisely as if he is the real observation lies in the application of it. In party in interest and is suing in his own these times where there is a studied attempt name; for equity looks to substance, not to to draw class distinction and where there is form. The discriminating and piercing eye yeasty unrest on that score in the public of the chancellor looks inside the shell of the minds, courts can do no better public service nut of the suit to the kernel itself, and his than by showing in their judgments that such hand would remain passive. The trouble in pestiferous notions find no lodgment in law the case to my mind is that plaintiffs, unless or equity. I think equity lends a respectful cast on the doctrine of unclean hands, have a ear to the protest of one or two small tax- clear right to an injunction. If the county payers who stand sponsor in a given case for court of Jackson county proposes in the name the establishment of a clear, equitable prin- of all the taxpayers to use a common fund ciple in the administration of public funds. raised by taxation as a reward or, putting it However, it seems from the record that plain- softly, in payment of witnesses to aid in the tiffs are substantial taxpayers.

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. It was argued with vehement animation sues B. at law or equity the real justiciable at our bar that the "people" demanded the question is not what were A.'s motives in appropriation, that (as we gather it) the peo

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 The various opinions frankly admit, which that behalf, and so on, and so on. As to that is a fact, as is known by all courts and lawview of it, should not this court be serene, yers, that there is no law authorizing the steady, and courageous enough to point with county court of Jackson county to pay this inflexible finger to the law? Peradventure $15,000 in the prosecution of a felony case, law is the flag we should follow. This court but, upon the contrary, the law explicitly and is organized to subserve the wish and will clearly provides all such cost shall be paid of the people, expressed how? Expressed by the state. Why, then, did counsel for the through the form of the law, not the alleged state go to the county court of Jackson coun. wish and will of the people or the alleged | ty instead of to the county court of Bu. voice of the people conveyed to us by extrane-chanan county or Clay county and ask them ous means with the heat and blaze of oratory to make the appropriation. All concede that or flights of rhetoric.. Observe, too, that this they or any other county in the state would case does not involve the payment of private have just as much legal right to make the ap. funds of individuals to aid a prosecution. propriation as Jackson county has; but by Such payments are not to be interfered with. reading and a careful consideration of the Contra, this case is leveled at an admittedly briefs of counsel for the respondents, it will (I use the word advisedly as the sum of the be clearly seen that this legal proposition, matter) illegal use of common funds raised which is as plain as the noonday sun, has from all the people and reposing in the com- been brushed aside as so much chaff, and so mon money chest, and protected by every deeply buried beneath a heap of worthless sa feguard the wit of the lawmaker could de- rubbish regarding the good faith of the revise.

lators who brought this suit (although they Returning to the question of unclean hands, are bona fide taxpayers of Jackson county, I think these observations just: Conceding, and who unquestionably have the legal right as I do, that if this case is brought or prose-to object to its illegal expenditures, and to cuted by one charged with a crime either in be heard in the courts of this state upon the his own name or by him masquerading under legality thereof) that the real legal proposi. the name of another, an injunction should tion involved has been lost sight of and has not issue, we come to the testimony on which caused my learned Associates to unwittingly the principal opinion rests. I have read it follow the false gods, and to pass by the and re-read it, and am unable to concur in the legal proposition presented unnoticed and opinion that it satisfactorily establishes col- undecided. lusion between such defendant in a criminal

I had an occasion to go quite extensively case and the plaintiff's 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 of. adhere 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 ed or established by suspicion or mere con

contended was unconstitutional. We there jecture, but are to rest, if at all, on substan- held that in the absence of the advice of the tial basis of fact, and if we are to apply the legal department of the state he could not so lofty doctrine of the law that where fraud do, as he as such officer had no right to in. and dole are charged and where two views of volve the county in litigation where he had testimony to sustain the charge may rest in but that case falls far short of this, where a

no other interest in the funds ordered paid; reason, one ignoble, the other not, the court taxpayer, as such, who has an interest in, is bound to take the nobler view, then I see and the right to see that the revenues of the no escape from the conclusion that collusion, county are not squandered, not under an unfraud, and dole were not made out. The burden, I think, rested on defendants to show a authority whatever. This court has repeat

constitutional statute, but without any legal case of that sort, and this burden they did edly held that while a ministerial officer can. not well carry. No attempt to impeach the not question the constitutionality of a stathonor or verity of the witnesses was made. ute, yet a taxpayer may do so; and our reTheir disavowal of the payment of fees by the ports are full of such cases. The Supreme defendant in the criminal case should not be Court of the United States has also ruled in lightly disregarded, and I rest my vote on

many cases, notably in the Kansas tree-plantthat proposition. Therefore I dissent.

ing cases, and taxes levied to support grist

mills 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

other law authorizing this expenditure, and WOODSON, J. (dissenting). With all due a fortiori should the taxpayers in this case deference to my learned Associates, but it is be permitted to maintain this suit, when no just such opinions as this, delivered by the law on earth authorizes the expenditure of highest court of the state, which lend coun- this $15,000 for the purposes mentioned, and tenance to the illegal expenditure of public which, if done, would clearly render the

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