State Ex Rel. Barrett v. Boeckler Lumber Co. , 302 Mo. 187 ( 1924 )

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, Revised Statutes 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 V 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. 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. 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 is 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 V 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 the 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 V 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 seemingimpasse 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 $3000, 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, according to relator, engendered certain evils which the framers of the Constitution sought to obviate. He says:

"The history of the legislation providing for these fees shows that most of them were added after salaries were fixed by law.

"With this situation thus laid out before us its evils are apparent. They were:

"(1) The fees allowed were for the ordinary and usual services of the office, for which, presumably, the salary was paid, hence, by a subterfuge, double compensation was obtained.

"(2) The fees allowed were either paid from the public treasury or were of such a nature that they could be paid in advance of the service rendered into the public treasury. It followed that to allow such fees to a public officer, for his own use, was either directly or indirectly to deplete the treasury.

"(3) To be allowed a fee in addition to salary for an ordinary and usual duty was one of the methods by which incumbents could secure increases in compensation during their terms of office."

He next argues that the allowance of such fee as he seeks to have taxed in this proceeding does not fall within the scope of these evils for two reasons: (1) The fee does not come out of the public treasury, either directly or indirectly; (2) the duty for the performance of which the fee is given is "an unusual and extraordinary" one.

If relator's first contention is sound, that the Constitution strikes only at fees the allowance of which would tend to deplete the State Treasury, then its language "and they shall not . . . receive to their own use any fees, costs, perquisites of office, or other compensation," must be construed as though it read, "and they shall not receive out of the State Treasury, directly or indirectly on their own use, any fees, costs, etc." But even if this latter reading be accepted as the proper construction of the provision, it is by no means clear that the allowance of the fees provided for in said Section 9675 would not still be within its condemnation. Where a corporation is convicted of violating the anti-trust laws, the court is authorized to assess a fine against it in lieu of the forfeiture of its franchise and property. When that method of punishment is determined upon in a given case, the adequacy of the punishment depends upon, among other things, the amount of the penalty to be exacted. If an arbitrary sum is to be assessed for the use of the Attorney-General, that fact will naturally be taken into consideration in determining the amount of the fine. A part of the penalty which would be deemed an adequate punishment of defendant would be assessed as a fee for the Attorney-General, and the remainder as a fine to be paid into the State Treasury. Such course would be inevitably followed in the practical administration of the law. Aside from this, however, relator's construction is entirely too narrow. The depletion of the public treasury is not the only evil of the fee system. That it gives rise to many other abuses is well known. There is no reason, therefore, for not giving effect to the board and all inclusive language of the Constitution which provided that the officers named shall receive salaries, "and they shall not receive to their own use any fees, costs, perquisites of office, or othercompensation." It is obvious from this language that it was intended to entirely wipe out the fee system as to the officers named and to put their compensation on a strict salary basis.

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. V), yet it could not have been intended that duties should be imposed upon him which in noway 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. It would no doubt not be competent for the Legislature, for example, to require the Attorney-General asattorney-general to perform the duties of warden of the penitentiary, or superintendent of one of the hospitals for the insane. But if it should designate him as the person to fill either of these offices, and he accepted, a provision for compensating him for the services to be performed in connection therewith would not be obnoxious to the Constitution. Such is the substantial basis of decision in State v. Walker, 97 Mo. 162.

Can there be any question, however, but that the duty of prosecuting trusts and combines under the statute is incident to the office of Attorney-General? Relator argues that the statute imposes upon the Attorney-General a duty entirely different in kind and nature from any that had ever been required of that officer in this State prior to its enactment; that until that time the Attorney-General was only required to represent the State in criminal cases on appeal, while under the statute he is required to initiate and prosecute to a finality a proceeding which is in its essence a criminal prosecution. The question, however, is not whether the Attorney-General had ever been required to perform services similar in character to those imposed by the statute, prior to its passage, but whether the duties enjoined by the statute are incident to his office. [Groesbeck v. Fuller, 216 Mich. 243, 21 A.L.R. 249 and cases cited in note.] It is generally held in this country that the office of Attorney-General is clothed, in addition to the duties expressly defined by statute, with all the powers pertaining thereto under the common law. "A grant by statute of the same or other powers does not operate to deprive him of these belonging to the office under the common law, unless the statute, either expressly or by reasonable intendment, forbids the exercise of powers not thus expressly conferred." [6 C.J. 810.] This view has been tacitly accepted, and acted upon, in this State for many years. [St. Louis v. McAllister, 281 Mo. 26; State v. Saline County Court, 51 Mo. 350; State v. Hays,23 Mo. 287; State ex rel. v. Vandalia, 119 Mo. App. 506.] The Attorney-General of this State is therefore invested with all the powers and duties pertaining to his office at common law, except such of them as have been expressly conferred upon the circuit and prosecuting attorneys; the latter offices have, so to speak, been carved out of that of Attorney-General. [State v. Ehrlick,65 W. Va. 700.] The duties of the Attorney-General at common law were so varied and numerous that they have perhaps never been specifically enumerated. There can be no question, however, but that the Attorney-General had the power, and it was his duty: (1) By information to bring certain classes of persons accused of crimes and misdemeanors to trial; and (2) by writ of quowarranto to vacate the charter or annul the existence of a corporation for violation of its charter. [People v. Miner, 2 Lans. (N.Y.) 396.] If the power and duty which the Anti-Trust Statute purports to confer on the Attorney-General are not identical with powers and duties which he already possesses at common law, they are at least of the same general character, and therefore fall within the scope of the services which "may be prescribed by law," and for the performance of which the Attorney-General shall be allowed a salary and no other compensation of any kind or character.

In suggestions filed by relator with his motion, and in support thereof, he suggests that even if the Attorney-General be denied the right to receive the fee to his own use, still the respondents would not be relieved from its payment, implying that it should be turned into the State Treasury when paid. In his subsequent briefs and argument this phase of the matter is not touched upon. But whether the contention has been abandoned or not the view implied therein is untenable. As already suggested, the sole object of the statute was to give the fee to the Attorney-General as additional compensation. This cannot be done. Neither can a court by construction give a statute an effect which is wholly foreign to the purpose for which it was enacted. [State v. Railroad,253 Mo. 642.]

According to the views herein expressed the motion should be overruled. It is so ordered. All concur.

Headnotes 1 and 5: Constitutional Law, 12 C.J. secs. 205, 230; Headnotes 2, 3 and 4, Attorney-General, 6 C.J. secs. 9, 808 (1926 Anno).