122 Ind. 68 | Ind. | 1890
This is an action for the value of appellants’ services as attorneys in and about the prosecution of certain actions on behalf of the State to recover real estate belonging to the State.
The plaintiffs, the appellants, filed their complaint in the Marion Superior Court, in this case. It is alleged in the complaint that the Governor, and other State officers of
Then follows a detailed statement of the services performed in preparing the cases, commencing and prosecuting the cases in the courts, laboring with legislators to permit the passage of a bill to quiet the claimant’s title to the land during several sessions of the Legislature of the State, one case being finally prosecuted to final judgment, and an appeal taken to the Supreme Court of the State, and decision given in the case, which effectually settled the controversy in favor o’f the State and of its ownership in the land.
It is further averred that the defendant, after knowing of such recovery through the plaintiff’s efforts, abandoned through the Legislature as aforesaid all claim to the said lands, and refused to contend for her rights or to pay to the plaintiffs the amount due the plaintiffs, and herein demanded, or any part of it, or the damages resulting to them for the violation of said contract, and that the lands involved in said several suits above mentioned are worth the sum of $120,000, and would have sold at any time within the last ten years for that amount, ten per cent, of which is the limit of said plaintiffs’ demand, which, including the cash expended at divers times, they put at twelve thousand dollars ($12,000), for which sum they demand judgment.
A demurrer was filed to the complaint for cause that the complaint does not state facts sufficient to constitute a cause of action, which demurrer was sustained by the court, and exceptions reserved, and the rulings assigned as error.
An act of the Legislature, approved March 9th, 1889, au
This act authorizes the bringing of this suit as it was brought in the Marion Superior Court. The question presented is as to whether or not the complaint states facts constituting a cause of action in favor of the plaintiffs against the State.
The theory of the complaint is, and the discussion in appellants’ brief is, on the ground that the attorney general of the State had authority by law under the circumstances existing to employ the appellant Jacob B. Julian to perform the services which it is alleged he did afterwards perform, and bind the State to pay for the same, and that the State, having in effect, by an act of the last Legislature, compromised with the claimants, is liable to the appellants for the value of their services, not to exceed ten per cent, of the actual value of the land; that the State could not dispose of the land at a reduced price or for nothing to the detriment of the appellants. It is possibly true if there had a fixed amount accrued to the appellants for services performed by them in the recovery of land owned by the State under a valid contract made by the attorney general, which the attorney general had the right to make, and the State had thereby become indebted to the appellants in a sum certain, for which they had the right to sue the State and recover, the Legislature could not so legislate as to take away the rights of the appellants; but the important question to be determined in this case is, whether or not the appellants have any valid legal or equitable claim against the State.
It is a well-settled doctrine that officers of the State exercise but delegated power, and this is particularly true of the attorney general. His office is created by statute, and he, as
It is also well settled that all who deal with officers exercising statutory powers, and whose authority is limited by statute, are charged with notice of the scope of such officers’ authority. Honey Creek School Tp. v. Barnes, 119 Ind. 213; Pierce v. United States, and Dover, etc., Savings Bank v. United States, 19 U. S. (L. C. P. Co. Ed.), p. 169, at bottom (The Floyd Acceptances, 7 Wall. 166).
It is therefore only necessary to determine whether the attorney general had authority by virtue of the statutes then in force to make the contract for the employment of the appellant Jacob B. Julian, which it is alleged in the complaint that he did make, and this must be determined by the construction to be placed upon a few sections of the statute.
By section 5671, R. S. 1881, it is provided that “ The attorney general shall have such clerks and deputies as the Governor, secretary and auditor of state may deem necessary, provided that not more than two thousand dollars shall be paid out of the treasury, in any one year, for any such purpose — the salary of such clerk or deputy to be paid out of any funds in the treasury not otherwise appropriated, on the certificate of said state officers.”
It is evident that the complaint is not framed upon the theory of recovery for the employment as a deputy under this section, and if it was it would not be sufficient to withstand a demurrer. It is not contended by counsel that such employment and contract was authorized or made in pursuance of this section of the statute, but this section is material to be considered for the reason that it provides for the employment of a deputy attorney general and assistants for the attorney general, to be paid for by the State out of funds in
It is contended by the appellants that sections 5668 and 5670, R. S. 1881, when construed together, authorize such employment by the attorney general. Section 5668 relates wholly to the duties of the attorney general, and the commissions to be received by him for making collections. So much of said section as it is important to consider reads as follows:
“ It shall be the further duty of the attorney general to ascertain, from time to time, the amounts paid to any public officer of the State or any county officer or other person, for unclaimed witness’ fees, court docket-fees, licenses, money unclaimed in estates or guardianships, fines or forfeitures, or moneys that escheat to the State for want of heirs, or from any other source, when the same is, by any law, required to be paid to the State or to any officer in trust for the State; and in all cases where the officer whose duty it shall be to collect the same shall fail, neglect, or refuse, for twelve months after the cause of action in favor of the State shall have accrued, or shall fail, neglect, or refuse to sue for and proceed to recover any property belonging to or which may escheat to the State, the said attorney general shall institute, or cause to be instituted and prosecuted, all necessary proceedings to compel the payment of or recovery of any such property. For all collections made or jtroperty recovered under the provisions of this section, the attorney general shall be allowed a commission of twenty per cent, on the first thousand dollars, ten per cent, on sums not exceeding two thousand dollars, and on all sums exceeding two thousand dollars five per cent.”
It is made his duty by other sections of the statute to collect fines and forfeitures on failure of the prosecuting attorneys to collect. It is likewise made his duty to prosecute and defend all suits that may be instituted by or against the
Section 5670 is as follows : “ The attorney general may employ and have such assistants to aid him in the discharge of the duties imposed upon him by the provisions of this act, and pay to them, out of the sums so collected by such person or persons, a sum not exceeding ten per cent, of the sum or sums so collected.” As we have seen, there are many duties required of the attorney general by the act of which section 5670 is a part, aside from the collections of money due the State and recovering of property of the State, and it is evident that section 5670 could not apply to the discharge' of duties relating to criminal prosecutions or cases in which there could be nothing recovered in favor of the State out of which a commission could be paid, so that the section can not be construed to authorize, or as intended to authorize, the attorney general to employ assistants to aid him in the discharge of all the duties imposed upon him by the provisions of the act. The act imposes upon such officer the duty of collecting various and large sums of money which may be due the State on account of various funds due the State in each county. It imposes upon him the duty of looking after and collecting dooket and license fees and unclaimed moneys due the State in all the counties, and in the discharge of such duties he collects and receives money out of which he can retain his own commission and pay the commission to his deputies and assistants who made the collection, and when the whole act is construed together it is evident that authority is only given to the attorney general to appoint assistants to aid him in the discharge of such duties as are connected with the collection of money due the State, and when so collected by such assistants he is authorized to
Section 5671 provides for the employment of assistants and deputies for the attorney general, to aid him in his general business, and they are to be paid out of the State treasury; and section 5670 authorizes the appointmentof assistants, or deputies, for the collection of funds due the State, and when such funds are collected by such assistants, the fees of such assistants are to be paid out of the money so collected by such assistants.
It was certainly not intended, and the statute can not be construed, to put the State in a position where it could not fix the value at which its lands should be sold ; and if the value fixed at which the land should be sold did not correspond with the views of such attorney, as to its true value, to allow such attorney the privilege of refusing to accept his commission on the basis of the price fixed by the State at which the land should be sold, and sue for his commission, and allege and prove the land of greater value, and recover a commission determinable on the amount he could prove the land to be worth.
Our attention is called to the act passed by the Legislature, and approved March 9, 1889, authorizing the sale of the lands referred to in the complaint, and allowing the appellant, Jacob B. Julian, an amount equal to 12 per cent, on the value of the lands, at the price fixed for the sale of them, for his services. We take judicial knowledge of the passage of such act. It is contended by appellants that the part of
The attorney general had no authority to contract with an attorney, as alleged in the complaint, and of this the attorney was bound to take notice, and there was no liability
The demurrer was properly sustained to the complaint.
Judgment affirmed, with costs.