81 So. 124 | Miss. | 1919
delivered the opinion of the court.
(After stating the facts as above). It is the contention of the attorneys who signed the petition for appeal with their own names that they had authority to bring the suit and to control the litigation, and that the chancellor erred in non-suiting the state at the request of the land commissioner. They also insist that they have a right to prosecute the appeal and have the judgment of nonsuit reviewed by this court. Section 2903, Code of 1906 (section 5238, Hemingway’s Code), reads as follows:
“The land commissioner may prosecute suits, in the name of the state, concerning the public lands, through the attorney-general, a district attorney, or some attorney at law employed by him for that purpose, with the consent of the Governor.”
“The Governor may engage counsel to assist the attorney-general in cases to which the state is a party when, in his opinion, the interest of the state requires it, subject to the action of the legislature in providing compensation for such services.”
It will be observed from the reading of these sections that neither the land commissioner nor the Governor has been given power by statute to allow any attorney' any per centum of the state’s property or the recoveries therefrom as fee in bringing a suit. It is urged here that the statute giving the land commissioner power to employ counsel with the consent of the Governor carries with it the right to fix his compensation, and that the contract involved is a valid exercise of the power under this statute. We do not think the statute warrants us in accepting this interpretation. It is to be construed in connection with the policy of the state in giving the Governor power to employ assistant attorneys subject to the action of the legislature to allow compensation as in the judgment .of the legislature may be fair and just. The stipulation for the twenty-five per centum of the recovery is a vital part of the contract or agreement signed by the land commissioner and the Governor, and we are not authorized to strike this provision from the contract or agreement made; and, as this -provision is unauthorized and unlawful, it renders the entire contract void. It certainly would be insufficient to furnish the attorney for the complainant with an interest in the subject-matter of the litigation so as to continue the litigation regardless of the wishes of his client. We think the land commissioner must retain control over his lifig*ation, and that his right to control it cannot be contracted away. This case is governed on this point by the case of Lamar County v. Tally & Mayson, 116 Miss. 588, 77 So. 299, decided by the court in banc, and
“The board of supervisors had the right to control the litigation and dismiss the appeal, and it was its duty to do so, if it was convinced such appeal would result adversely to the county. The hoard, being trustees of the public, cannot divest itself of this power and duty by contract.”
The land commissioner is a trustee of the public, and cannot surrender his official control, or cannot contract away his right to control the litigation which the statute authorizes him to institute. In the contract or agreement set out in the statement of facts no particular lands are mentioned, and no particular defendants are named We think in cases of this kind that the facts and particulars constituting the cause of action should be brought to the attention of the' land commissioner before a suit is instituted, so that he may bring to bear upon the question any particular facts his official discretion as to whether such particular suit shall be brought. He is certainly not bound by a blanket contract, under which any citizen of the state might be compelled to run the gauntlet of litigation with the state without having the officer designated by law to pass upon the particular case as to whether a suit should be brought or not. Whatever may be the rule governing the relation between the attorney and client when the parties are acting in their personal capacity, it is clear that officers must be controlled by the law in making their contracts, and that officers cannot delegate their discretion unless expressly authorized to do so by statute.
The judgment entered in this cause was a nonsuit without prejudice, and it is not a final judgment from which an appeal is allowed to this court. Appeals are regulated by statute, and only lie in cases provided by statute. As said by the Supreme Court in G. & S. I. R. R. Co. v. Williams, 109 Miss. 549, 68 So. 776:
*442 “In the case of Doudell v. Shoo, 159 Cal. 448, 114 Pac. 579, it is said by the court that: ‘A judgment is final “when it terminates the litigation between the parties on the merits of the case, and leaves nothing to be done but to enforce, by execution, what has been determined.” ’ . . .
“In the present case there is nothing to execute upon affirmance, and nothing that could be done by the court below to be superseded by appeal. In the absence of a statute granting the right of appeal in a case of this kind, we are compelled to hold that this court has no jurisdiction of the case.”
It follows that the dismissal of the appeal was proper, and the motion to reinstate is overruled..
Overruled.
