State ex Rel. Gentry v. Becker

Full title: STATE OF MISSOURI at the Relation and to the Use of WILLIAM R. GENTRY and…

Court: Supreme Court of Missouri, Division Two

Date published: Oct 4, 1943

351 Mo. 769 (Mo. 1943)

174 S.W.2d 181

Opinion

No. 38447.

July 6, 1943. Rehearing Denied, September 7, 1943. Motion to Transfer to Banc Overruled, October 4, 1943.

1. MANDAMUS: Contempt: Courts: Attorney and Client: Basis of Relators' Claim. The basis of the relators' claim for a writ of mandamus to compel the payment of a fee allowed by the circuit court is that the court had inherent power to punish for contempt, and to appoint counsel and allow fees as an incident thereto, and that the fee allowed by the court is payable out of the city treasury without further proceedings.

2. ATTORNEY AND CLIENT: Contempt: Courts: Other Fee Allowances Compared. Other instances where attorneys' fees may be allowed either in contempt proceedings or in other situations are compared, but furnish no analogy.

3. COURTS: Inherent Power To Incur Expenses. There are instances in which the court may have inherent power to incur expenses not specifically authorized, when necessary to enable the court to properly function as a court.

4. COURTS: Contempt: Inherent Power of Court. A court has inherent power to protect itself by punishing for contempt.

5. COURTS: Contempt: Attorney and Client: No Inherent Power To Allow Attorneys' Fees For Prosecution of Contempt Proceedings. Assuming that the circuit court had inherent power to appoint attorneys, as officers of the court, to represent it in the prosecution of contempt proceedings, such attorneys have the duty of defending the court without pay, as in the case of appointment of counsel for an indigent defendant, and the court needs no further power for its own protection and for the due administration of justice, and so had no inherent power to allow the fee.

Appeal from Circuit Court of the City of St. Louis. — Hon. Edward M. Ruddy, Judge.

REVERSED.

Joseph F. Holland, City Counselor, H.A. Hamilton and Albert Miller for appellants.

(1) Relators' claim is not a valid obligation of the City of St. Louis. Our laws make it the duty of the Circuit Attorney to represent the State in a criminal contempt proceeding and in habeas corpus proceedings attacking the judgment of commitment entered therein. A valid obligation is a sine quo non of a petition to enforce a claim by mandamus. Secs. 12942, 12945, 12898, R.S. 1939; 13 C.J., pp. 57, 58, 60, secs. 81, 82; Thatcher v. St. Louis, 343 Mo. 597. (2) Mandamus will not lie to compel the Board of Estimate and Apportionment to submit and recommend, and the Board of Aldermen to enact, an ordinance appropriating money to pay the asserted claim of respondents for services rendered, where said claim had not been reduced to a judgment, and payment of said claim was not authorized, either by statute, or by appropriation, as relators had an adequate and specific remedy by an action at law. Section 48, Art. IV, Const. of Missouri; Perkins v. Burks, 78 S.W.2d 845, 336 Mo. 248; State ex rel. v. Rose, 281 S.W. 396, 313 Mo. 369; Mansfield v. Fuller, 50 Mo. 338; State v. Clay County, 46 Mo. 231; State ex rel. v. Wehmeyer, 113 S.W.2d 1031; State ex rel. v. Cornish, 24 S.W.2d 667, 223 Mo. App. 978. (3) Mandamus is not a proper remedy to compel the payment of an account, or a claim, where material fact questions determinable in an action at law may arise. It does not lie to establish, but only to enforce a claim. Mansfield v. Fuller, supra; Ward v. Cole County Court, 50 Mo. 401; State ex rel. v. Marshall, 82 Mo. 484; State ex rel. v. County Court of Cape Girardeau County, 109 Mo. 248; State ex rel. v. Houston, 41 S.W.2d 194; State ex rel. v. Linville, 8 S.W.2d 623; State ex rel. v. Becker, 9 S.W.2d 153; State ex rel. v. Neaf, 130 S.W.2d 509, 344 Mo. 905, (where it is said: "The office of mandamus is to execute not to adjudicate"). State ex rel. v. Bank, 163 S.W. 945, 174 Mo. App. 589; State ex rel. v. Cook, 201 S.W.2d 361. (4) Courts will not undertake to enforce, by mandamus, simple common-law rights between individuals, as to compel the payment of money; nor where there is another specific legal remedy. State ex rel. v. Howard County Court, 39 Mo. 375; Mansfield v. Fuller, 50 Mo. 338, l.c. 339 (where it is said: "It is never resorted to to enforce the payment of a debt when it can be collected by suit, unless the tribunal having jurisdiction refuses to act, in which case the order will be not to render a specific judgment, but to proceed with the case"). State ex rel. v. Engelman, 86 Mo. 551; American Fire Alarm Co. v. Board of Police Comrs., 285 Mo. 581; State ex rel. v. Rose, 281 S.W. 396, 313 Mo. 369; State ex rel. v. Cornish, 24 S.W.2d 667, 223 Mo. App. 978; State ex rel. v. Bourke, 129 S.W.2d 866, 344 Mo. 826; State ex rel. v. Supreme Temple Pythian Sisters, 54 S.W.2d 468, 227 Mo. App. 557; United States ex rel. v. Norfolk Western Ry. Co., 138 F. 849. (5) The claim must be reduced to judgment and in the absence of such judgment mandamus does not lie to compel payment of such claim. State ex rel. v. Jackson County Court, 17 S.W.2d 572; State ex rel. v. Cornish, 223 Mo. App. l.c. 981; United States v. Helvering, 301 U.S. 540, 57 S.Ct. 855. (6) In mandamus, as in other cases, a demurrer confesses the facts which are well pleaded in the pleading against which it is directed, but it does not confess conclusions of law drawn from those facts. State ex rel. v. Hackman, 204 S.W. 513, 275 Mo. 47; State ex rel. v. Thatcher, 92 S.W.2d 640, 338 Mo. 622; State ex rel. v. Smith, 120 S.W.2d 184. (7) On the contrary, a demurrer denies the legal proposition involved in a pleading. Bliss on Code Pleading, secs. 136-137; Blaine v. Knapp Co., 140 Mo. 251; Curry v. Lackey, 35 Mo. 389; Baker v. Berry, 37 Mo. 306; Meek v. Hurst, 223 Mo. 668. (8) A public law cannot be thus confessed away (or be made to apply). State ex rel. v. Aloe, 152 Mo. 466. (9) Neither is an averment of a matter of law admitted by the demurrer. Bradley v. Franklin Co., 65 Mo. 638; Donovan v. Boeck, 217 Mo. 70; Ruggles v. International Assn., 52 S.W.2d 860, 331 Mo. 20. (10) In determining the legal effect of a demurrer, the court will look to the whole petition, and a demurrer does not admit as a fact that which the pleading contradicts; and a statement made as conclusive, or general, cannot be held to be unaffected by specific statements of particulars which necessarily enter into and qualify, or limit, the general statement, and the specific allegations respecting the same matter control general allegations. Searcy v. Clay County, 176 Mo. 493; Farm Home Savings Loan Assn. v. Armstrong, 85 S.W.2d 461, 337 Mo. 349; Anderson v. Inter-river Drain. Levee Dist., 274 S.W. 448, 309 Mo. 189. (11) Mandamus will not lie against an officer of a legislative body, as such officer is acting in his legislative capacity and performing his legislative function and duty. It would be a usurpation of power for the court to assume functions of government which belong exclusively to the law-making body. The recommendation, submission, and enactment of any ordinance appropriating the $12,000 with which to pay respondents' claim required the exercise of judgment and discretion, with which the court could not interfere. State ex rel. v. Bolte, 151 Mo. 362; Albright v. Fisher, 164 Mo. 56; State ex inf. v. Shepherd, 177 Mo. 208; State ex rel. v. Woodbury, 10 S.W.2d 524, 321 Mo. 275; State ex rel. v. Hitchcock, 241 Mo. 433; State ex rel. v. Roach, 230 Mo. 408; Bankers' Life Co. v. Chorn, 186 S.W. 681; Fergus v. Marks, 321 Ill. 510, 46 A.L.R. 960. (12) An officer clothed with discretion as to the manner in which he will perform his duty cannot be required to perform it in a particular manner. 18 R.C.L., p. 186; State ex rel. v. Neville, 57 S.W. 1012, 157 Mo. 386; State ex rel. v. Wilson, 49 Mo. 146; State ex rel. v. Homer, 155 S.W. 405, 249 Mo. 58. (13) Mandamus is not a proper remedy to enforce respondents' claim. Respondents' amended petition, on its face, shows that they have a specific and adequate remedy at law; hence, mandamus will not lie. To entitle respondents to the extraordinary writ of mandamus, their right thereto must be clear, unequivocal, specific and positive; not doubtful. Perkins v. Burks, 78 S.W.2d 845, 336 Mo. 248; State ex rel. v. Ross, 245 Mo. 36, 49 S.W. 451; State ex rel. v. Wenom, 32 S.W.2d 59, 326 Mo. 352; State ex rel. v. Kelly, 142 S.W.2d 1091; State ex rel. v. Thompson, 293 S.W.2d 391, 316 Mo. 1169; State ex rel. v. Linville, 8 S.W.2d 623. (14) A petition for a writ of mandamus must state specifically all the facts which give the party the right to maintain an action or to demand the relief he seeks, and must also show that he has no other specific remedy. State ex rel. v. Governor, 39 Mo. 388; State ex inf. v. Kansas City Gas Co., 254 Mo. 515, 163 S.W. 854; Hambelton v. Town of Dexter, 89 Mo. 188; State ex rel. v. Ross, supra; State ex rel. v. Bourke, 129 S.W.2d 866, 344 Mo. 826; Perkins v. Burks, 78 S.W.2d 845, 336 Mo. 248; State ex rel. v. County Court, 109 Mo. 248. (15) The circuit court, in general term, had not acquired jurisdiction over respondents' claim or over the appellants or the City of St. Louis and did not have jurisdiction to make said allowance of $12,000 in favor of respondents as no suit was filed, or had ever been filed, on respondents' said claim. Jurisdiction of a suit to recover said claim is conferred by the constitution and statutes only; and, the right of trial by jury shall remain inviolate. No power exists in any person, or tribunal, to divest a person of his property without due process of law. Secs. 28, 30, Art. II, Const. of Missouri; Arts. V, XIV, Amendments, Const. of United States; Sec. 1099, R.S. 1939; Kansas City v. Smith, 141 S.W.2d 1103, 238 Mo. 323; King v. Mann, 286 S.W. 100, 315 Mo. 318; Kansas City, etc., Ry. Co. v. Latham, 182 S.W. 717. (16) There is no such thing as inherent power of court, if, by that, is meant a power which a court may exercise without a law authorizing it. Messner v. Giddings, 65 Tex. 300. (17) Allowances against a city, or municipality, for attorney fees, in a contempt proceeding, which were not authorized either by statute or by appropriation, contravenes the constitution of the State of Missouri. Sec. 48, Art. IV, Const. of Missouri; State ex rel. v. Hackmann, 208 S.W. 445, 276 Mo. 600; Carter-Water Corp. v. Buchanan County, 129 S.W.2d 914; Scott v. County of St. Louis, 111 S.W.2d 186, 341 Mo. 1084; Hillside Securities Co. v. Minter, 254 S.W. 188, 300 Mo. 380. (18) No contract in writing was ever had between respondents and the City of St. Louis for the services rendered, or to be rendered, as required by the Constitution and Laws of Missouri and the Charter of the City of St. Louis. Sec. 48, Art. IV, Const. of Missouri; Secs. 3349, 3350, R.S. 1939; Sec. 9, Art. XXV, Charter, City of St. Louis. (19) The City of St. Louis cannot be made liable upon an implied contract. Woolfolk v. Randolph County, 83 Mo. 501; Anderson v. Ripley County, 80 S.W. 263, 181 Mo. 46; Phillips v. Butler County, 86 S.W. 231, 187 Mo. 698; Morrow v. Pike County, 88 S.W. 99, 189 Mo. 610; Miller v. Douglas County, 102 S.W. 996, 204 Mo. 194; State ex rel. v. Dierkes, 113 S.W. 1077, 214 Mo. 578; City Water Co. v. City of Chillicothe, 207 F. 503; Eureka Fire Hose Mfg. Co. v. City of Portageville, 106 S.W.2d 513; West Virginia Coal Co. v. St. Louis, 25 S.W.2d 466, 324 Mo. 968; Mullins v. Kansas City, 188 S.W. 193, 268 Mo. 444; County of Cole v. Central Missouri Trust Co., 257 S.W. 774, 302 Mo. 222. (20) And a city of 100,000 inhabitants, or more, is not, by reason of the fact that it has framed and adopted a charter of its own, as did the City of St. Louis, freed from the operation of Sec. 3349, R.S. 1939, requiring contracts of cities to be in writing. Mullins v. Kansas City, supra. (21) Attorneys' fees are not allowable in the absence of statute or some rule of law. Leslie v. Carter, 187 S.W. 1196, 268 Mo. 420; Pickel v. Pickel, 147 Mo. 1059, 243 Mo. 641; Berry v. Rood, 108 S.W. 22, 209 Mo. 662; Albers v. St. Louis Merchants Exchg., 138 Mo. 140; St. Louis v. Meintz, 107 Mo. 611. (22) In fact, the rule is, that in general, costs in a contempt proceeding cannot be taxed against the county, or city, in the absence of statutory authority. 17 C.J.S., p. 174, sec. 127; State v. Hubble, 128 Or. 667; Pelletier v. Glacier County, 82 P.2d 595. (23) While courts may have implied and resulted powers from a general grant of jurisdiction, they have no powers which are inherent in the sense of appertaining to them without any express or implied grant. Kansas City, etc., Ry. Co. v. Latham, 182 S.W. 717; Messner v. Giddings, 65 Tex. 301.

Fordyce, White, Mayne, Williams Hartman, Walter R. Mayne and G. Carroll Stribling for respondents William R. Gentry and John L. Gilmore.

(1) The statutory powers and authority of the Circuit Attorney of St. Louis did not preclude the circuit court from appointing relators, Gentry and Gilmore, and allowing compensation for their services in the proceeding. The circuit attorney, in his official capacity was not authorized to prosecute either the contempt proceeding or the certiorari and habeas corpus proceedings in this court. Secs. 2231, 4864, 12942, 12945, R.S. 1939; R.S. 1939, secs. 2238-2308, constituting Art. 5 of Chap. 10, R.S. 1929. (2) Proceedings for punishment of criminal contempts are neither civil nor criminal, but sui generis. 17 C.J., sec. 62, p. 77; 13 C.J., p. 58, note 90; State v. Howell, 69 A. 1057, 80 Conn. 668, 125 Am. St. Rep. 141; People v. Jelonsky, 166 N.E. 108, 334 Ill. 536; Dale v. State, 150 N.E. 781, 198 Ind. 110, 49 A.L.R. 647; Van Dyke v. Superior Ct. Gila County, 211 P. 576, 24 Ariz. 508; State v. Shumaker, 164 N.E. 408, 200 Ind. 716, 63 A.L.R. 218; State ex rel. Wright v. Barlow, 271 N.W. 282, 132 Neb. 166; Douglas v. Adel, 269 N.Y. 144, 199 N.E. 35; Bassette v. W.B. Conkey Co., 194 U.S. 326, 48 L.Ed. 997; In re Sparrow, 96 S.W.2d 401, 338 Mo. 203. (3) Even had the circuit attorney been authorized to act in each of the proceedings, such authority would not have been exclusive so as to have deprived the circuit court of its inherent authority to appoint special counsel to represent its interest in the proceedings. State ex rel. Walker v. Mullins, 129 Mo. 271; In re Conrad, 105 S.W.2d 1, 340 Mo. 582; In re Richards, 63 S.W.2d 672, 333 Mo. 907. (4) The Circuit Court of the City of St. Louis as a constitutional court had the inherent power to punish for contempt. Hernreich v. Quinn, 168 S.W.2d 1055; Thompson v. Farmers Exchange Natl. Bank, 333 Mo. 437, 62 S.W.2d 803; State ex rel. Thompson v. Rutledge, 332 Mo. 603, 59 S.W.2d 641; C.B. Q. v. Gildersleeve, 219 Mo. 170. (5) As a constitutional court the circuit court had inherent power to appoint counsel in order to protect its judicial functions. In re Richards, 333 Mo. 907, 63 S.W.2d 672; Clark v. Austin, 101 S.W.2d 977, 340 Mo. 467; In the matter of Walter Peterson, 64 L.Ed. 919, 253 U.S. 300; In re St. Louis Institute of Christian Science, 27 Mo. App. 633; Jones v. Yore, 142 Mo. 38. (6) The power to appoint counsel to represent the court in the contempt proceedings necessarily included the power to allow reasonable compensation for their services. Jones v. Yore, 142 Mo. 38; In re St. Louis Institute of Christian Science, supra; Paxson v. McDonald, 97 Mo. App. 165; Watkins v. McDonald, 70 Mo. App. 357; State ex rel. Hensick v. Smith, 5 Mo. App. 427; In re Surcharge of County Commissioners, 12 Pa. (D.C.), 471; Schmelzel v. Board of Commissioners, 100 P. 107. (7) Section 2102, R.S. 1939, is applicable to the City of St. Louis, and requires the City to make payment of expenditures accruing in the Circuit Court of St. Louis. Secs. 655, 2102, 15744, R.S. 1939; State ex rel. McNeil v. County Court, 42 Mo. 496; State ex rel. Hensick v. Smith, 5 Mo. App. 427. (8) The city's statutory obligation to make payment of relator's allowance is enforceable by mandamus. Where the state has by statute imposed an obligation upon a municipality, the action of its Board of Aldermen in appropriating funds to meet the obligation is not legislative but ministerial, and may be compelled by mandamus. State ex rel. Hawes v. Mason, 153 Mo. 23; State ex rel. Reynolds v. Jost, 265 Mo. 51; State ex rel. Board of Police Commissioners v. Beach, 325 Mo. 175, 28 S.W.2d 105. (9) The circuit court was authorized to fix the amount of relators' allowance. After it had done so, there were no disputed issues of fact remaining to be considered. State ex rel. Hawes v. Mason, supra; State ex rel. Hensick v. Smith, supra; State ex rel. McNeil v. County Court, supra. (10) No question of reducing relators' claim to judgment by a prior action is involved because relators are not seeking to enforce any direct contract of employment with the city itself. (11) Relators' application for allowance of compensation was not an adversary proceeding to which the city was a necessary party, and there was no occasion for a jury trial. Renshaw v. Reynold, 317 Mo. 484, 297 S.W. 374; Hickox v. McKinley, 311 Mo. 234, 278 S.W. 671; Bates v. Comstock Realty Co., 306 Mo. 312, 267 S.W. 641; State ex inf. Major v. Arkansas Lbr. Co., 260 Mo. 212; State ex inf. Pulitzer Pub. Co. v. Coleman, supra. (12) Article IV, Section 48, of the Missouri Constitution did not abrogate the common-law doctrine of incidental and inherent powers so as to take away the inherent authority of the circuit court to make an allowance to relators. State ex rel. Kelly v. Hackmann, 275 Mo. 636. (13) The statutory and charter provisions requiring contracts with a municipality to be in writing are inapplicable to the allowance of relators' fees by the circuit court. Buchanan v. Ralls County, 222 S.W. 1002, 283 Mo. 110.

[182] BARRETT, C.

This proceeding in mandamus presents the question of whether a circuit court, having appointed counsel to represent it in a contempt proceeding, possesses also the inherent power to allow such attorneys a fee for their services and order the fee paid by a county — in this instance the City of St. Louis.

On March 9, 1940 the Circuit Court of the City of St. Louis issued an information and citation in contempt in the name of the State at the relation of the Circuit Attorney against the Pulitzer Publishing Company, Ben H. Reese, Ralph Coghlan and Daniel R. Fitzpatrick, based upon the printing and publishing of certain editorials and cartoons in the "St. Louis Post-Dispatch." It was charged that the publications tended to interfere with the due administration of justice in the case of State of Missouri v. John P. Nick and Clyde A. Weston, then pending before the court, and, furthermore, that the articles and cartoons scandalized and degraded the court. (All the cases were consolidated and finally disposed of in State ex rel. Pulitzer Pub. Co. v. Coleman, 347 Mo. 1238, 152 S.W.2d 640, where the facts upon which the contempt proceedings were based are fully set forth.) On March 13, 1940, the court appointed the relators, Messrs. William R. Gentry and John L. Gilmore, members of the Missouri bar, practicing in St. Louis, "as special counsel for the State of Missouri, to present to the Court said information and citation and to represent the State of Missouri in said matter." From that date until the final disposition of the cases in this court Mr. Gentry and Mr. Gilmore did so serve.

After the termination of the contempt proceedings the attorneys filed a petition in the Circuit Court asking that they be allowed attorneys' fees for their services. The "Circuit Court, sitting in general term, duly considered said petition and . . . the report of the committee theretofore appointed by the judges . . . and thereupon it was ordered by the said judges sitting in general term . . . that said William R. Gentry and John L. Gilmore be allowed a joint sum of $12,000.00 . . . said sum to be paid out of the treasury of the City of St. Louis."

The attorneys presented a certified copy of the court's order and demanded that the appropriate officials of St. Louis pay the fee, but they refused and this proceeding followed. The Circuit Court issued a peremptory writ of mandamus and the city appeals.

The relators do not rely upon a contract, either express or implied, with the city, the state or the court to sustain the allowance of the fee. Neither do they claim that there is a statute expressly or impliedly authorizing the court to make the allowance either as costs, penalty or compensation. Our interpretation of their position is that the court had the inherent power to punish for contempt and as a corollary, in the protection of its functions as a court, it also had the inherent power to appoint counsel and the existence and exercise of that power necessarily included the further inherent and incidental power to allow such counsel a reasonable fee for their services. They say that since the fee was allowable by the circuit court it is payable out of the city or county treasury without other or further proceedings and that, therefore, mandamus will lie to compel its payment. Mo. R.S.A., Sec. 2102; Perkins v. Burks, 336 Mo. 248, 78 S.W.2d 845. Compare State ex rel. v. Wehmeyer (Mo. App.), 113 S.W.2d 1031.

There is no analogy of principle, either for or against the allowance, in the instances of counsel fees being assessed as costs or an expense chargeable to one of the parties in a civil contempt or in the instances of fines which include a fee as a part of the punishment in a criminal contempt. In those cases the fee is assessed against one of the parties either as punishment or an expense and costs incurred and accruing at the instigation of one of the parties. Annotation Ann. Cas. 1913B, p. 565; 17 C.J.S., Sec. 96, p. 138; 12 Am. Jur., Secs. 77, 79, pp. 443, 445. Neither is there an applicable analogy in the attempts to assess the costs of a contempt proceeding prosecuted at the relation of a private party against the state or county under a criminal cost statute. Rapalje, [183] Contempt, Sec. 132; Pelletier v. Glacier County, 107 Mont. 221, 82 P.2d 595; State ex rel. Hubble v. Hubble, 128 Or. 667, 275 P. 679, 17 C.J.S., Sec. 127, pp. 173-174. As we have said, there is no statute authorizing either the employment of counsel or the allowance of the fees and hence the question of whether the charge is within or without the provisions of a statute is not involved. Thatcher v. St. Louis, 343 Mo. 597, 122 S.W.2d 915; State v. Weatherby, 344 Mo. 848, 129 S.W.2d 887. Nor do we think the instances of allowances to amicus curiae (In re St. Louis Institute of Christian Science, 27 Mo. App. 633), to guardians ad litem for minors (Jones v. Yore, 142 Mo. 38, 43 S.W. 384) or to special commissioners to take depositions (Watkins v. McDonald, 70 Mo. App. 357; Paxson v. MacDonald, 97 Mo. App. 165, 70 S.W. 1101) in point as the allowances in all those cases are from funds then under the court's control and in cases between private parties then before the court and all such charges are assessed as costs. Compare these allowances to instances in which it was attempted to charge counsel fees as statutory costs or damages and it was held that there was no authorization for the allowances. Leslie v. Carter, 268 Mo. 420, 187 S.W. 1196; Pickel v. Pickel, 243 Mo. 641, 147 S.W. 1059; Albers v. The Merchants' Exchange of St. Louis, 138 Mo. 140, 39 S.W. 473; The City of St. Louis v. Meintz, 107 Mo. 611, 18 S.W. 30.

The question presented by this case is novel as to both fact and principle. As a determinative analogy the relators rely upon those instances in which the "inherent powers" of courts have been recognized and enforced — that is, those powers necessarily inherent in the court "to do all things that are reasonably necessary for the administration of justice" and in order that it may preserve its existence and function as a court and which powers exist and inhere merely because it is a court and irrespective of legislative or constitutional grant. 14 Am. Jur., Sec. 171, pp. 370-372; annotation Ann. Cas. 1914A, p. 100. For example, no place or facilities for holding court being provided, the court has the inherent power to provide the necessary place and equipment in order that the court may transact its business. Annotation 22 L.R.A. 398. A court cannot properly function without certain attaches and attendants, such as clerks, bailiffs, reporters and janitors and none or insufficient one's being furnished the court may, as long as the necessity exists, appoint such attaches and attendants as are necessary to enable the court to properly function as a court. 14 Am. Jur., Sec. 22, pp. 261-262. See also the list and examples of courts exercising their inherent powers cited in In re Surcharge of County Commissioners, 12 Pa. Dist. Co. Rpts. 471.

In State ex rel. Hensick v. Smith, 5 Mo. App. 427, the circuit court, sitting in a criminal case which required that the jurors be kept together during the progress of the trial, directed the marshal of the court to receive bids for furnishing meals to the jurors. Bids were received and the court ordered the marshal to contract with one of the bidders and to present the bills to the court for examination and allowance. The court said, l.c. 429: "The feeding of the jurors is, therefore, a necessary expense, without incurring which the business of the court could not be carried on, and the administration of criminal justice must come to an end." Since the feeding of the jurors and its consequent expense was necessary for the court to carry on its business the court had the power to incur the expense and having done so and having determined the reasonableness of the charge mandamus would issue to compel its payment. State ex rel. McNeil v. St. Louis County Court, 42 Mo. 496. In this regard the rule may be generalized as follows: "The courts have the inherent power and authority to incur and order paid all such expenses as are (reasonably) necessary for the holding of court and the administration of the duties of courts of justice." Schmelzel v. Board of County Commrs., 16 Idaho, 32, 35, 100 P. 106, 107. The limitation on the courts' inherent power is that the expense incurred or the thing done must be reasonably necessary to preserve the courts' existence and protect it in the orderly administration of its business. Annotation 1914A, p. 100. In the Schmelzel case barbers were provided for the jurors who sat in the famous Haywood and Pettibone cases and the bill for shaving the jurors and cutting their hair was held not to be "a necessary expense in order to administer justice in the court in which it was incurred."

The most important and essential of the inherent powers of a court is the authority to protect itself against those who [184] disregard its dignity and authority or disobey its orders by punishing for contempt. 14 Am. Jur., Sec. 171, pp. 370, 372; 17 C.J.S., Sec. 2, pp. 4-5. That power is not only inherent in our courts of general jurisdiction but it is also expressly conferred by statute. Mo. R.S.A., Secs. 2028-2033; Hernreich v. Quinn, 350 Mo. 770, 168 S.W.2d 1054; State ex rel. Pulitzer Pub. Co. v. Coleman, supra; annotations 8 A.L.R. 1543; 54 A.L.R. 318 and 121 A.L.R. 215.

Assuming, for the sake of this case, that the court had as an incident to its inherent power to punish for contempt the further power to appoint the relators as counsel to represent it or the state (but see Durant v Supervisors of Washington County, Woolworth, p. 377, Fed. Cas. No. 4, 191 as to the duty of the state's or government's counsel in such proceedings), it does not necessarily follow that the relators would be entitled to a fee for their excellent and valuable services. If it were not for one further circumstance the relators' analogy of the court's inherent power might be determinative of this case. That circumstance is that the relators are attorneys, members of the bar of this state, and officers of the court appointing them. 5 Am. Jur., Sec. 6, pp. 264-265; 1 Thornton, Attorneys at Law, Sec. 13, pp. 14-16.

Another inherent power possessed by courts is that of providing counsel for the indigent. Knox County Council v. State, 217 Ind. 493, 29 N.E.2d 405, 130 A.L.R. 1427. And when the court assigns or requests counsel to represent an indigent, at least one charged with a crime, it is not only the duty of the attorney to accept the assignment and act but he is also not at liberty to decline the appointment except under certain circumstances. 7 C.J.S., Sec. 54, p. 837; 2 Cooley, Constitutional Limitations, p. 700. It is the general rule and the better reasoned view that "in the absence of statute providing therefor, an attorney who has been assigned by the court to defend an indigent accused cannot recover compensation therefor from the public," (Annotations 130 A.L.R. 1439, 1440; 36 L.R.A. (N.S.) 377-383) either for trying the case or for appealing it. Annotation 100 A.L.R. 321, 331.

In Kelley et al. v. Andrew County, 43 Mo. 338, a lawyer assigned to represent an indigent accused claimed a fee from the county for his services — basing his right on an implied contract. The court held that he was not entitled to compensation for his services and based its opinion on the ground that the state and not the county was prosecuting, defending or supporting the prisoner and the county, therefore, was under no legal obligation to the prisoner or the lawyer. A better reason for not allowing counsel compensation in such cases is that "when a lawyer takes his license he takes it burdened with certain honorary obligations. He is a sworn minister of justice, and when commanded by the court he cannot withhold his services in cases prosecuted in forma pauperis." 1 Thornton, Attorneys at Law, Sec. 86, pp. 143-144. Or, as the matter was put in Arkansas County v. Freeman Johnson, 31 Ark. 266, 267, "Attorneys are a privileged class; they only are permitted to practice in the courts; and they are officers of the court. The law confers on them rights and privileges, and with them imposes duties and obligations to be reciprocally enjoyed and performed. . . . The appellees but performed a duty, which their relation to the court and the public required of them." Or as it was stated by the Court of Claims in Nabb v. U.S., 1 Ct. Cl. 173, 174: "The petitioners were, as they state, attorneys of the circuit court, and, as such, subject to its jurisdiction in all its official action; and the inference from that relation and the general practice is that they were, as such attorneys, appointed by the court to perform a duty pertaining to them as such officers, and that their action was official . . ."

It is our opinion that the same reasoning should apply to this case. There may be no question but that the relators justly deserve to be compensated for their valuable services but they are officers of the court appointing them and if the court's dignity and authority has been assaulted they were bound to accept the appointment, the honor and the challenge of defending the court and that without pay, especially so if there are no state officials charged with the duty or willing to undertake it. The court has the inherent power to punish for contempt and if it has also the inherent power to appoint or request a lawyer, as an officer of the court, to represent it or the state in the prosecution of the contempt proceeding that is all the power the court reasonably needs for its own protection and for the due administration of justice. The court could and did adequately [185] protect itself by exercising its inherent power of punishing for contempt and appointing counsel and it was not necessary for the court to further exercise its inherent powers by allowing the fee in question.

The judgment of the trial court issuing the peremptory writ of mandamus, therefore, is reversed. Westhues, C., concurs; Bohling, C., concurs in result.

PER CURIAM:

The foregoing opinion by BARRETT, C., is adopted as the opinion of the court. All the judges concur.