Motion to recall mandate denied February 26, 1924.
On Motion to Recall Mandate.
(223 Pac. 250.)
McCOURT, J.Claiming to be entitled to attorney’s fees out of the trust fund which is the subject of this litigation, W. P. La Roche, an attorney of this court, has applied for an order directing that the mandate heretofore issued herein be recalled and amended or modified so as to authorize the allowance of such attorney’s fees.
After this suit was commenced, it came to the attention of the Attorney General that the funds and property involved in the litigation belonged to a public charity. Thereupon the Attorney General determined to intervene in the suit for the purpose of defeating the private rights asserted therein and in order to protect and preserve the charity in the interest of the public. The Attorney General authorized Mr. La Roche, the claimant herein, to make such *215intervention in behalf of the Attorney General and the State of Oregon, and to prosecute and conduct the litigation in the name of the Attorney General.
Pursuant to the authority mentioned, Mr. La Roche, as special attorney for the State of Oregon and for and in the name of the Attorney General, filed an answer of intervention in the suit, and in the subsequent proceedings herein, acted in behalf of the Attorney General until a final decree was entered in this court: Wemme et al. v. First Church of Christ, Scientist, ante, p. 179, 219 Pac. 618.
After the decision herein, but before the mandate sought to be recalled and modified was issued, the Attorney General, by written disclaimer, filed in this court, expressly renounced all claim and right to attorney’s fees in the cause or in the further proceedings to be had in connection therewith, and specially waived and disclaimed the allowance of such fees to him.
The decree and mandate of this court contains the following provision:
“ * * no compensation as attorney’s fees shall be allowed, either directly or indirectly, for services performed by the Attorney General or his assistants in this cause.”
In an affidavit accompanying his motion to recall and modify the mandate, Mr. La Roche states that he was duly employed and authorized by the Attorney General to represent the public interests as his attorney in said cause, with the understanding that affiant should look to the trust fund for his compensation for legal services, in the event that the contentions of the Attorney General were sustained by this court. The affidavit further states that all the legal work done and performed in behalf of the Attorney *216General was done by affiant, without aid or assistance from the Attorney General or any of his deputies or assistants.
The intervention of the Attorney General in the suit resulted in the enforcement of the public charity involved therein. That intervention was made and carried to a successful conclusion by Mr. La Boche; the services performed by him were valuable to the charity, and the funds belonging thereto, and they were rendered pursuant to such authority from the Attorney General as in the circumstances that officer was empowered to confer upon Mr. La Boche.
The statutes clearly prohibit compensation to the Attorney General out of the fund, and no authority is found in the rules of equity practice which warrants such an allowance to the Attorney General. While allowances for attorneys’ fees out of the fund in the control of a court of equity are sometimes made directly to the attorneys themselves, the right of such attorneys thereto in every such case is dependent upon the right of their client to such fees: Schmidt v. Oregon Min. Co., 28 Or. 9, 30 (40 Pac. 406, 1014, 52 Am. St. Rep. 759). If the client is not entitled to costs, including attorney’s fees, out of the fund, no allowance can be made directly to the attorney.
The foregoing considerations led to the decree herein, denying attorney’s fees to Mr. La Boche.
In view of the earnest insistence of Mr. La Boche, and counsel representing him upon his motion, we have again examined the statutes and decisions bearing upon the question.
The office of Attorney General in this state is created by statute, and the powers and authority of the incumbent of that office are those conferred upon *217him by tbe statute, and no others: Hord v. State, 167 ind. 622 (79 N. E. 916); Julian v. State, 122 Ind. 68 (23 N. E. 690). No specific provision of the statutes grants authority to the Attorney General, or makes it his duty to appear and represent the state in suits or proceedings relating to a public charity: Sections 2769-2779, Or. L.; Laws 1921, p. 477.
However, the statute does provide that —
“He shall be the law officer of the state, and shall have all the power and authority usually appertaining to such office.” Section 2773, Or. L.
The above provision imposes upon the Attorney General the powers and authority incident to that office at common law. Among the duties of the Attorney General at common law was that of enforcing a public charity: State ex rel v. Lord, 28 Or. 498, 527 (43 Pac. 471, 31 L. R. A. 473); Parker v. May, 5 Cush. (Mass.) 336; People v. Miner, 2 Lans. (N. Y.) 397; 6 C. J. 814.
The compensation of the Attorney General is fixed by the statute. The express authority granted the Attorney General to appoint or employ attorneys to assist him in the performance of his duties is confined to the appointment of a first assistant and such other assistants as he shall deem necessary to transact the business of the office, at annual salaries to be fixed in each instance by the Attorney General at the time of making the appointment. The salaries of the Attorney General and the assistants appointed by him are required to be paid out of the state treasury as other state salaries are paid: Chap. 251, Laws 1921.
Another section of the statute declares in effect that the salaries mentioned shall be in lieu of all other salaries, fees, commissions and emoluments now *218received or enjoyed by the Attorney General or any of Ms assistants, and directs that moneys collected by any such officer, or by virtue of his office, shall be paid into the state treasury: Section 2978, Or. L. Manifestly, those statutes prohibit an allowance of attorney’s fees out of the trust .fund in question to the Attorney General or any of his assistants appointed pursuant to the statute.
Numerous cases hold that at common law, the Attorney General had power to give jurisdiction to the courts and to bind himself as a party representing the public in the ordinary way through an unofficial attorney at law, authorized to represent him: 6 C. J. 806; 2 R. C. L. 916; Parker v. May, 5 Cush. (Mass.) 336, 338; In re Creighton, 91 Neb. 654 (136 N. W. 1001, Ann. Cas. 19131), 128); and it is also held that such power is not limited by statutes giving the Attorney General authority to appoint such assistants as the duties of the office may require, whose salaries shall be paid out of the state treasury: Commonwealth v. Boston etc. R. Co., 3 Cush. (Mass.) 25, 48; Commonwealth v. Knapp, 10 Pick. (Mass.) 477 (20 Am. Dec. 534); McQuesten v. Attorney General, 187 Mass. 185, 186 (72 N. E. 962); Attorney General v. North American L. Ins. Co., 91 N. Y. 57, 66 (43 Am. Rep. 648).
None of the cases above cited, except the last, discuss the question of compensation to special counsel designated by the Attorney General to represent him, payable out of a fund in litigation. In the New York case, the right of special counsel to an allowance of attorney’s fees out of the fund was denied.
“Unless authorized by statute, an attorney-general has no authority to appoint special counsel to act generally for him in actions or proceedings in wMch *219the state is interested, so as to charge the state with the value of their services.” 6 C. J. 806 and cases cited in note 21.
No authority can be found in the decisions of the courts or in any statute which authorizes the Attorney General to employ special counsel and charge a fund in litigation with payment of their services.
“In the absence of specific authority such funds cannot be ordered by the court to be paid for any purpose, except by express authority of the legislature.” People v. Woodbury, 213 N. Y. 51, 59 (106 N. E. 932).
Counsel for Mr. La Boche, in their brief in support of his claim to compensation out of the fund in suit, cite: Currie v. Pye, 17 Ves. 462; Attorney General v. Wallace’s Devisees, 7 B. Mon (Ky.) 611; Attorney General v. Old South Society, 95 Mass. 474.
In each of those cases, except Currie v. Pye, a private individual having a special interest in preserving a public charity, appeared as relator, employed private counsel and carried on the litigation.
Currie v. Pye was a suit commenced by trustees against the heir, for the construction of a will creating a charity. Costs were allowed the heir as between attorney and client. The Lord Chancellor observed, “that it was frequently done in a charity cause: the heir not having made an improper point.”
Attorney General v. Wallace’s Devisees was a suit instituted in the name of the Attorney General by W. H. Cord, as relator, praying to have enforced and executed a charitable devise in the will. On the question of costs, the court said:
“The court should provide for the payment of all costs necessarily incurred by the relator in this proceeding, and also a reasonable compensation for his *220services, to be paid by tbe trustees out of tbe trust fund.”
Attorney General v. Old South Society was a suit commenced by an information filed by the Attorney General upon the relation of Joseph Ballard, charging that certain funds belonging to a charitable trust were being wholly misapplied and perverted, and praying for relief in equity. In awarding costs, the court said:
“As the intermingling by the defendants of the fund of the charity with other funds has afforded ground for this information, and the information is sustained in part, the costs incurred in support of it, taxed as between counsel and client, are to be paid out of the charity fund.”
In the case of Trustees v. Greenough, 105 U. S. 527 (26 L. Ed. 1157) (Attorney General not party thereto), the court, explaining the phrase, “costs as between solicitor and client,” which has the same meaning as “costs -as between attorney and client” and “costs as between counsel and client,” said:
“Of course, it is well understood that costs as between solicitor and client include all reasonable expenses and counsel fees, and are not like costs as between party and party, confined to the taxed costs allowed by the fee-bill. This difference is pointed out in the case of In re Paschal, 10 Wall. 483, 493 (19 L. Ed. 992).”
In allowing costs, including attorney’s fees, to the-relator, payable out of the fund, the courts in each of the foregoing- cases, followed the leading case of Attorney General v. Kerr, 4 Bev. 297, where the practice in the Court of Chancery of England in such cases was reviewed. In that case, objection was made to the claim of the relator for costs, including solicitor’s fees, out of the funds of the charity. In *221passing upon the objection, the Master of the Bolls said:
“We are all aware of the great abuse which has been practiced in these charity informations for many years past. In some cases, no doubt, they have been productive of considerable good; but in many, they have ended in the entire ruin of the charities they professed to protect. * *
“It appears to me, that the practice of making any such allowance is of very recent origin, and that it is not a matter of course to make it. # *
“Sir John Leach* indeed, seems to have thought, that a relator was to be considered in some sense in the situation of a trustee; and there are several cases in which he allowed the relator his costs as between solicitor and client, and these cases are of themselves sufficient to show that there was no general rule to allow costs, charges, and expenses. # *
“On considering the cases which have occurred, it appears that the relator in a charity information, where there is nothing to impeach the propriety of the suit, and no special circumstances to justify a special order, is, upon obtaining a decree for the charity, entitled to his costs as between solicitor and client # * out of the charity estate.”
The practice of the Court of Chancery in England in granting costs was ably reviewed by the Court of Appeals of New York in the cases of Rose v. Rose Assn., 28 N. Y. 184, and Downing v. Marshall, 37 N. Y. 380. The practice of awarding costs, including solicitor’s fees to the relator out of the fund in cases relating to charitable trusts, probably originated in the notion alluded to in Attorney General v. Kerr, “that a relator was to be considered in some sense in the situation of a trustee,” for at one time it was the rule in such cases that only trustees were entitled to such reasonable counsel fees payable from the fund *222as they had incurred in defending or enforcing the charity: Rose v. Rose Assn., supra.
The right of the Attorney General to costs, as between party and party, out of a charity fund, is supported by authority (Attorney General v. Ashburnham, 1 Sim. & St. Rep. 394), but diligent search has failed to reveal any adjudicated case, either in England or the United States, holding the Attorney General, or special counsel authorized to appear for him, entitled to attorney’s or solicitor’s fees out of funds belonging to a public charity which was the subject of the litigation.
It is incorrectly stated in Beames on Costs, page 15, that Moggridge v. Thackwell, 7 Ves. 36, is a case concerning a charitable trust, in which costs as between solicitor and client were allowed out of the fund to all the parties, including the Attorney General.
The case, as reported in 7 Ves. 36, came before Lord Chancellor Eldon on rehearing, and he adhered to the decision and decree, including the order for costs, given by Lord Chancellor Thurlaw, his predecessor: 1 Ves. 464.
The reports of the case show that it was a suit commenced by the executors against the legatees in the will, to obtain, a decree construing a provision of the will, whereby the testator had attempted to found a charity. The Attorney General was not a party to the record, and no reference is made to him in the order for costs, which was in these words: “Let all parties have costs out of the estate, and as between attorney and client, since it is a cause between relations.” 1 Ves. 464, 475. *
In view of the large number of cases that have arisen concerning funds belonging to public charities, *223the absence of an allowance in any of them of counsel fees out of the fund, to the Attorney General or his representatives, is a strong argument against the power or authority of a court of equity to impose a charge of that character upon such a fund.
The principles governing the decision of the question under consideration were clearly stated by the New York Court of Appeals in Attorney General v. Continental Life Ins. Co., 88 N. Y. 571. A statute of that state, adopted in 1880, made it the duty of the Attorney General, in the case of the insolvency of a life insurance corporation, to obtain the appointment of a receiver and to supervise the liquidation and distribution of the assets in the interest of policyholders and creditors. The Attorney General designated special counsel to act for him, who claimed the right to attorney’s fees out of the fund. Mr. Chief Justice Andrews, speaking for the court, said:
“It is inconsistent with the duty imposed by the act of 1880, that the attorney-general should be placed in the attitude of applying to the court for allowances to Ms own assistants. The State intervenes, as parens patriae, for the protection of the fund, and those beneficially interested, and it is not consistent with its dignity, nor was it, we think, contemplated, that the value of the services of its agents in the execution of this voluntary trust, should be a charge upon the assets of the insolvent corporation. We are not insensible to the consideration that the act of 1880, imposes onerous duties upon the attorney-general, and that adequate assistance may not have been provided to enable him to perform this additional labor. It would be greatly to be regretted if this decision should hamper the action of the attorney-general under this salutary statute. The legislature, however, can afford such relief as may be necessary. But to permit the State to participate in the division of the assets of insolvent corporations in the hands *224of a receiver, under a claim for discretionary allowances, or to charge the fund for services of special counsel of the State, is, we think, contrary to principle and to the policy of our legislation.”
From the foregoing review of the authorities, it is seen that the right to an allowance such as that asserted upon the motion under consideration has not been recognized in any jurisdiction; and the great array of decisions, in none of which such an allowance was made, though frequent occasion must have arisen for doing so, argues strongly against the policy and propriety of awarding counsel fees out of a fund in court to the Attorney General or his representative in any case. To allow the motion would arbitrarily extend the scope of firmly established rules of equity practice, the utmost limitations of which were long since fixed by authoritative adjudications. We are not inclined to do this, and accordingly the motion is denied. Motion Denied.
Burnett and Coshow, JJ., took no part in this decision.