The opinion
DISSENTING- OPINION.
LAMM, C. J.
— I do not agree with the principal opinion in so far as it seemingly stresses the fact that plaintiffs are small taxpayers, and that their proportionate share of the alleged illegal appropriation of the public funds would amount to little in dollars and *527 cents. I take it that the maxim- de minimis 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 mind, courts can do no better public service than by showing in their judgment 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.
I agree with zest in the general doctrine announced in the opinion of my brother Brown and in the concurring of my brother Graves, viz: that before a court of conscience acts its own conscience must be moved. Hence a litigant who comes with unclean hands has no redress in such court. I stand wedded to that doctrine, though it must be 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 bringing the suit, is not whether A’s psychological 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? 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 money raised in invitum for specified public purposes by means of the sovereign power of taxation? The learned principal opinion has a sig *528 nificant 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 therefor 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 play to break the case, to-wit, the doctrine (metaphorically speaking) of “unclean hands.” If, now, the case is to break on that sole question we should be sure of our ground. 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 a 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 the wisdom or unwisdom of that course, but I do say this: There should first have been approprihte legisMtion in *529 the form of a general law that applies to every county in the State permitting such extraordinary expenditures — expenditures that are confessedly outside of all legal warrant. We shall recur to the facts presently.
It was argued with vehement animation at our bar that the “people” demanded the appropriation— •that (as we gather it) the people were watching with eager and suspicious eyes first to spy out and then mark with condemnation 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. Such payments are not to be interfered with. Contra, this case is levelled 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.
Eeturning 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 reread it and am unable to concur in the opinion that it satisfactorily establishes collusion between such defendant in a criminal case and the plaintiffs in the injunction case. That *530 there is some testimony creating a suspicion of that sort, I admit; but if we are to adhere to the ancient rule that ignoble purposes and ignoble things are not to be presumed 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 burden, 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.
Faris, Jconcurs with me in these views.