Porter v. State

73 Neb. 792 | Neb. | 1905

Per Curiam.

The questions herein presented for determination are essentially the same of those considered and determined in this case on a former appeal. State v. Porter, 69 Neb. 203. As the case was first presented, the questions considered arose on a demurrer to the petition. Upon the cause being remanded, an answer was filed, and the state moved for judgment on the pleadings. This motion was sustained. The answer, as wé construe the pleadings, presents no tion not passed upon in the consideration of the ruling on the demurrer. It is alleged in the answer that the defendant as a member of the state brand and mark committee was, under the provisions of the law, entitled to 20 per cent, of all the fees paid in for the recording of brands and marks, and that as a member of said committee he lawfully received, and for his use and benefit, 20 per cent, of all the brand and mark fees paid to said committee for the recording of brands and marks. This is the money in controversy and to recover which the action is prosecuted. It was decided on the former appeal that in receiving this money the defendant assumed to act in an official capacity as secretary of state, and to exercise a power derived from the state which he cannot now be heard to repudiate, and that he cannot now consistently with good faith deny that he so acted; that, having received the fees in controversy which he retained for services rendered by him as secretary of state and in his official capacity, the conclusion that he must account for them to the state inevitably follows. We find in the pleadings no question of estoppel not considered and passed upon on the former hearing. While it is alleged that because of the enactment of the law the state is estopped to claim these fees, this fact received attention and was included in the discussion of the validity of the law and its effect on the legal rights of the parties, and was resolved against the contention of counsel for the defendant. Whether the law be considered as valid or invalid, it is not believed that it can have the effect of q-nmilling a provision of the fundamental law fixing the salaries of state officers. It is the settled doctrine in this jurisdiction that a legal principle involved in the trial of a' case, when once determined, becomes thereafter the law of the case, binding not only upon the trial court, but this court as well, and will not ordinarily be reexamined in a subsequent review of the proceedings of an inferior court had in the further trial of the action. Applying this rule to the questions presented by the record, and it follows that the judgment rendered below should be affirmed, and it is so ordered.

Affirmed.