12 Wis. 509 | Wis. | 1860
By the Court,
This is an action to recover the value of certain legal services alleged to have been performed by the plaintiffs for and on behalf of the state. They state, in substance, in the complaint, that they were employed in the year 1857, by the then school land commissioners, to defend certain suits therein mentioned, commenced and prosecuted against such commissioners in their official character. The attorney general has demurred to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action. And we have, therefore, to determine whether the school land commissioners had any authority to employ counsel to defend suits commenced against them, and render the state liable for such services. We have been referred to no provision of law giving them that authority, and we know of none. And the doctrine is well settled that public agents can bind the government only when acting within the scope of their authority. But it was insisted upon the argument, by the counsel for the complainants, that as the school land commissioners were the agents of the state, to sell and dispose of the school and university lands, and to manage the school funds generally, as incident to their general powers and duties over these matters, it was absolutely essential that they should have, and that as a matter of law they did have, the power to retain counsel to defend suits commenced against them, and bind the state for such services; and that unless this power were conceded to them, they would either become personally liable for the employment of counsel, or would neglect to make any defense whatever, to the great prejudice of the interests of the state, and of the school funds. We do not think that any of these consequences are likely to follow from our denying the commissioners the power to employ
Furthermore, the legislature have also provided that the governor, whenever .he shall receive notice of the commencement of any suit or proceeding between other parties, by which the rights, interests or property of the state shall be liable to be injuriously affected, shall inform the attorney general thereof, and require him to make every legal and equitable defense against such suit or proceeding; and in any such case, or in any suit prosecuted or defended in behalf of the State, if the public interests require, the governor is authorized and required to employ such counsel as he may deem proper, to assist the attorney general, or in case of the sickness or absence of the attorney general, or when he may
The demurrer to the complaint must be sustained.