The opinion
DISSENTING OPINION.
WOODSON, J.
— With all due deference to my learned’ associates, it is just such opinions as this, delivered by the highest court of the State, which lend countenance to the illegal expenditure of public money and suggest the idea, so prevalent, that there is no security for public funds.
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 *531 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 appropriation as Jackson county has; but by 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 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.
I had an occasion to go quite extensively into this question in the ease of State ex rel. v. Williams, 232 Mo. 56 . There the question was, whether a ministerial officer, as such, could resist the payment of a warrant because issued under a statute he contended was unconstitutional. We there held that in the absence of the advice of the legal department of the State he could not so do, he as such officer had no right to involve the county in litigation where he had" no other interest in the funds ordered paid; but that ease falls far short of this where a taxpayer, as such, who has an interest in and the right to see that the revenues of the county are not squandered, not under an unconstitutional statute, but without any legal authority whatever. This court has repeatedly 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 so ruled in many cases, notably in the Kansas tree-planting cases, and in cases involving taxes levied *532 to support gristmills in remote and sparsely settled districts. But in the case at bar there is no statute or 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 county treasurer of Jackson county and his bondsmen liable therefor, if not the county court itself, as much so as if he or they should take the money and pay it to assist in the prosecution of some felony in the State of. Kansas.
This' species of litigation, under the circumstances, is the only safeguard against such usurpation of authority, the illegal expenditure of public money on the part of those public agents who are entrusted with the custody and expenditures thereof. Moreover, it is. just such eases as this which encourage peculation and fraud in public office. If this court will tolerate such a bare-fáced illegal expenditure of the public moneys as is here attempted by evading the question, on a question of procedure, then in the name of heaven why should we condemn the poor officers who are ignorant of the law for doing likewise in other cases-?
With far greater plausibility and better taste, at least, the legal department of Jackson county might have mandamused" the State Auditor, and the State .Treasurer, to set aside this $15,000 for the purpose of paying the fees of expert witnesses in that case, for the reason that the State and not the county is primarily, nor secondarily, responsible for any of the legitimate fees taxable in felony cases. But do not understand me by this language to state or indicate that the State, even under any circumstances, would be liable for such expert fees, over and beyond the fees prescribed by statute, for the truth is, as all lawyers and courts know, that there is not a word or line to be found in the common law or the statutes of this State, which *533 in the remotest degree intimates, much less authorizes, either the State or a county to pay expert witnesses fees of any character. The laws recognize no difference in the character of witnesses, in so far as their fees are concerned, and should either the State or county officials undertake to expend or expend public moneys for expert witnesses, beyond the sum fixed by statutes, they would so do right in the teeth of the statutes of this State, and thereby violate the law they are sworn to support. Besides, it is elementary that costs of no kind can be legally taxed in any case, civil or criminal, for or against the State or county or an individual, without the taxing clerk can point his finger directly to the statute which expressly authorizes him to so do.
Will any of my learned associates point his finger to a law or statute that authorizes this $15,000 to be. paid to expert witnesses, either by State- or county, or by the defendant, should he be convicted? And if convicted,' and if this requested appropriation is legal, would it be contended for a moment, under the statutes of this State, that Dr. Hyde would be liable to the State for its repayment, as legitimate fees taxable against Mm? Certainly not. But suppose he should be convicted and this $15,000 should be taxed against Mm, and execution should issue therefor, would this or any other court hesitate a moment in holding that the taxation of that money against him was unlawful, that he was not responsible for the same, and that the execution should be quashed? Certainly not. And no one will contend to the contrary.
There is another phase of this case, which in my opinion is worthy of serious consideration, and that is this: Suppose for the sake of argument, that Dr. Hyde is guilty of all the matters charged against him by indictment, which is nothing more or less (in so far as this case is concerned) than a violation of the laws of the State, and he should be found guilty of the same, *534 yet does his violation of the law of God and man justify or authorize the county court of Jackson county or the treasurer thereof to -also violate the laws of the State in order to assist in the prosecution of a wrongdoer? I think not. The act of the one is just as clearly a breach of the law as the other — differing only in degree — not in principle. This is self-evident, and has become a truism expressed in the words “two wrongs can never make a rig*ht. ’ ’
Moreover, what great Herculean Master is the man Hyde, any way, that the great State of Missouri, with her millions of patriotic sons and dutiful daughters and her billions of treasure, cannot grapple with him and bring him to justice without resorting to illegal means to accomplish that purpose? The mere asking the question answers it — there is no substance in the proposition.
Besides that, I have no patience with those persons (who I am glad to say are few, and who are growing fewer every year) who believe that the doctors, surgeons, chemists and lawyers of Kansas City and the State of Missouri have not the same intelligence, learning and professional ability and skill as those of other States.
I have always been impressed with the idea, that if this great Commonwealth is capable of self-government, then it surely has the ability to administer its criminal and civil laws without calling upon outsiders for assistance, and that if that is not true, then I suggest that it is about time to adopt some other form of government. I am firmly of the opinion, as previously indicated, that the citizens of this State have the intellectuality, ability and experience to govern, and control, each and every department of this State without calling for outside assistance.
My observation and experience have been, especially regarding the legal profession, and in no small degree that of the medical, that a comparison of the *535 members of those professions with those of other States, and of the United States, would not bring a single blush of shame to any intelligent man or woman in this State. These general observations are so thoroughly true and in harmony with the general knowledge of men and measures, it seems to me that it is a grave reflection upon the good people of Kansas City and the State of Missouri, with all of her institutions of learning, intelligence, culture and wealth, to even suggest that there is not sufficient scientific knowledge and experience in this State to determine whether or not a certain person died of natural causes or from poison, or through other unnatural means.
This idea that the man over the hill has a farm better than any on this side, and that the lawyers and doctors in other States are more intellectual and learned than those of this State, has erroneously led many to believe that their next door neighbors are ignoramuses, if not wild and uncivilized Commanches, not worthy of consultation or respect. If counsel for the State will disabuse his mind of this fallacy, and proceed to try Dr. Hyde under the laws of this State and with the assistance of such witnesses as the law authorizes him to procure, he will find that his duty has been fully discharged, and that justice has been duly administered according to law and that the good people of Kansas City will be fully satisfied with the result — whatever that may be, even though the courts of the country will not permit him to resort to illegal means to procure outside assistance.
I do not know, nor do I care, what the financial condition of Dr. Hyde is, so far as this case is concerned, yet, I am impressed with the idea that this great State should be satisfied with a prosecution of him, according to the laws thereof, without resorting to illegal means; and moreover, the presumption is, that the State is as able financially to try this case without outside assistance, as Dr. Hyde is to defend *536 himself of the charges lodged against him.. To me this request for $15,000 to be used in the prosecution of the defendant smacks of persecution instead of prosecution, and by this language I mean no reflection whatever upon our able and efficient prosecutor, because I believe he, as I have frequently done, has let his zeal! in what he believes to be a righteous cause, run away with his better judgment, but that is no legal reason why he or I should be sustained in doing those things which are not authorized by the law.
Regarding Dr. Hyde’s guilt or innocence, I have no opinion, nor am I acquainted with him, yet the Constitution of this State guarantees unto him a fair and impartial trial, according to the laws of the State; and I take the law to mean, that he shall have a fair and impartial trial according to the laws of the State, and be prosecuted in the manner, and by the means prescribed by the Code of Criminal Procedure, and not by means furnished by other public bodies-. Literally speaking this language might prohibit the employment of counsel to assist in the prosecution of a felony case, which I believe would be wise, but I do not believe the Legislature so designed, yet .I am firmly of the opinion that the Legislature never contemplated or intended that the county court of any county of this State should illegally or otherwise appropriate funds to prosecute Dr. Hyde or any other person charged with, a felony.
Who is going to audit the account upon which this money is to be paid out? Not the State Auditor, who has the exclusive authority under the laws to so do in all such cases, subject of course to the review of tho courts. But this illegal expenditure of public money can never come before the courts of this State without the treasurer of Jackson county should refuse to pay the same, which if done, would of course be at his risk, and in such case I apprehend the question of his misappropriation of that money will in some form reach this court for adjudication.'
*537 Under the conceded law, this expenditure of this $15,000 would be illegal; and I believe it would be wise to so state in this case and thereby avoid all further litigation regarding the mattery and obviate the risk of some innocent person having the burden to bear in the near future.
I,-therefore, dissent from the entire expressions of the court and the.various judges thereof, except I believe the judgment should be reversed.