This appeal results from the decision of this court in State ex rel. Ebke v. Board of Educational Lands & Funds,
When the trial court entered judgment on the mandate in the Ebke case, leave was- granted the relator and his attorney to file an application for expenses and attorney’s fee which were necessitated by the Ebke litigation against the respondents constituting the Board of Educational Lands and Funds of the State of Nebraska; the State Treasurer, although a member of the Board, separately as being intrusted with the ministerial duty of keeping an accurate and correct account of the receipts, disbursements, and balances on hand in the perpetual school trust fund; and the Attorney General, also a member of the Board, separately as the legal ad *81 viser of the respondents. Notice was given the Attorney General as provided by statute. The relator, Fred Ebke, and his attorney, Paul W. White, filed an application in the district court for allowance and recovery of expenses and attorney’s fee. This application set forth the following: That in the second amended petition for
declaratory judgment filed in the above-entitled case the relator alleged that relator was a citizen, a resident, and a taxpayer of School District No. 20 of Deuel County, Nebraska; that he was married and had been a resident of the State of Nebraska for over 30 years; that he was a taxpayer of the State of Nebraska, and a taxpayer of School District No. 20 of Deuel County, Nebraska; and that he was prosecuting the action as an individual, a taxpayer, a citizen, and on behalf of all other citizens, residents, taxpayers, and parents having children attending public schools, “and also for and on behalf of each and every public school district which is or may become a beneficiary of the perpetual school fund of the State of Nebraska.” The application set forth the purpose of the litigation, the proceedings had therein, and the result obtained, asserting that an increase in the Nebraska school lands trust fund in excess of four million dollars resulted from the Ebke litigation; that further increases will occur in the future; and that during the course of this successful litigation Paul W. White acted as attorney for the relator Ebke and had received no remuneration for his services.
The respondents filed objections to the above application. The same, insofar as necessary to consider in this appeal, are as follows: The benefits which have accrued to the Nebraska school lands trust fund through the sale of leases at public auction were not the direct result of the litigation herein conducted by the relator and his attorney; and the litigation herein was conducted for the personal benefit of the relator and not for the benefit of the trust. Upon hearing held on the application and the objections thereto, the district court *82 entered a decree allowing the applicants’ expenses in the amount of $625, and attorney’s fee in the amount of $60,000 to be taxed as costs in this action, and decreeing that the custodian of the Nebraska temporary school lands fund, the defendant Treasurer of the State of Nebraska, be directed and ordered to pay said amount, together with all costs of this present action, out of the Nebraska temporary school lands fund, said amount being a legitimate and just charge against said fund.
The respondents filed a motion for new trial and an amended motion for new trial which were overruled. Prom the order overruling the motions for new trial, the respondents appeal.
Hereafter respondents will be referred to as appellants; the Board of Educational Lands and Funds of the State of Nebraska as the Board; the relator Ebke as appellee Ebke, or Ebke; and attorney Paul W. White as appellee White, attorney White, or Ebke’s attorney, or when both appellees Ebke and White are used together, as appellees.
At the regular session of the Legislature in 1947, legislative bill No. 33 was enacted, being Laws 1947, chapter 235, page 743, relating to the leasing of public school lands of the state. Section 7 of the act, later designated as sections 72-240 and 72-240.01, R. R. S. 1943, purported to grant to existing leaseholders an absolute right to renewal of their leases provided the existing leaseholders conformed to certain standards as set forth in the act.
The record in the Ebke case shows that on December 31, 1924, the Commissioner of Public Lands and Buildings leased Section 36, Township 13, Range 44, Deuel County, Nebraska, to one W. E. Scott for a term of 25 years. On July 2, 1947, shortly after the effective date of legislative bill No. 33, Ramey C. Whitney procured an assignment of this lease for a consideration of $10,000. On July 12, 1949, approximately 6 months prior to the expiration of this lease by its terms, Fred Ebke filed an *83 application for a lease on this property, setting forth therein an offer to pay a bonus of $2,500 in addition to the annual rent to procure the lease, and in addition, set forth objections to the application of Whitney for a renewal of - the lease. The Board overruled the objections to Whitney’s application, denied Ebke’s application, and granted Whitney’s application for a renewal of the lease. Ebke then filed his petition in the district court for Lancaster County for a declaratory judgment, the purpose of the action being to obtain an interpretation and construction, and to test the validity of chapter 235, Laws 1947, and chapter 212, Laws 1949, enacted by the Legislature, designated as sections 72-240 and 72-240.01, R. R. S. 1943. The trial court found against Ebke and declared sections 72-240 and 72-240.01, R. R. S. 1943, to be valid and legal statutes fully in keeping and accord with the provisions of the Constitution of Nebraska, and enforceable according to their terms. Ebke then appéaled to this court. This court reversed the decision of the trial court, holding that the provisions of sections 72-240 and 72-240.01, R. R. S. 1943, were violative of Article VII, section 9, of the Constitution of Nebraska which provides: “All funds belonging to the state for educational purposes, the interest and income whereof only are to be used, shall be deemed trust funds held by the state, and the state shall supply all losses thereof, that may in any manner accrue, so that the same shall remain forever inviolate and undiminished; and shall not be invested or loaned * * This court also held that the lease involved in the Ebke case was issued without authority of law. This holding required that the lease be sold at public auction.
Pursuant to the judgment rendered in the Ebke case, the lease as described therein was offered at public auction and a 12-year lease on the premises was sold to Whitney who paid a bonus of $10,200 for the lease. . Whitney intervened in the Ebke "case.
We deem it advisable at this point to relate a brief *84 history of the manner in which the trust fund with reference to the common schools of this state came into existence.
Nebraska came into the Union as a state by virtue of an Enabling Act of Congress approved April 19, 1864 (13 U. S. St. at Large, § 7, p. 49), which provided: “And be it further enacted, That sections numbered sixteen and thirty-six in every township, and when such sections have been sold or otherwise disposed of by any act of congress, other lands equivalent thereto, in legal subdivisions of not less than one quarter-section, and'as contiguous as may be, shall be, and are hereby, granted to said state for the support of common schools.”
A Constitution having been regularly approved within the territory in 1866, Nebraska was admitted into the Union on March 1, 1867. By its admission it assumed the privileges and duties of statehood, including those imposed by the congressional Enabling Act which included the acceptance of the lands and funds for the common schools of the state.
Article VII, section 1, of the Constitution of 1866 provided: “The principal of all funds arising from the sale, or other disposition of lands or other property, granted or intrusted to this state for educational and religious purposes, shall forever be preserved inviolate and undiminished; and the income arising therefrom shall be faithfully applied to the specific objects of the original grants or appropriations. The legislature shall make such provisions by taxation or otherwise, as, with the income arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the, state; but no religious sect or sects shall ever have any exclusive right to, or control of, any part of the school funds of this state.”
The 1866 Constitution was replaced by what is commonly referred to as fhe 1875 Constitution. There was no substantial change made in the 1875 Constitution *85 affecting Article VII, section 1, of the Constitution of 1866.
In 1920, this state adopted amendments to its Constitution, commonly referred to as the Constitution of 1920. No change was made in this Constitution with reference to the school land trust fund as the same appears in the Constitution of 1866 and the Constitution of 1875. The composition of the board of commissioners has been changed, but not the function of the Board as fixed in the Constitution of 1875.
The provision of the Enabling Act making the grant, and of the Constitution of 1866 setting apart and pledging the principal and income from such grant, and the subsequent act admitting the state into the Union under such Constitution constituted a contract between the state and the national government relating to such grants. See State ex rel. Johnson v. Central Nebraska Public Power & Irr. Dist.,
In Propst v. Board of Educational Lands & Funds,
was vested in the state upon an express trust for the support of common schools without right or power of the state to use, dispose of, or alienate the lands or any part thereof except as allowed by the Enabling Act and the Constitution.”
Anyone dealing with the school lands must do so with the knowledge of and subject to the trust obligation of the state. Enabling Act of Congress, Vol. 2, p. 5, R. R. S. 1943; Art. VII, § 9, Constitution of Nebraska; State ex rel. Ebke v. Board of Educational Lands & Funds,
supra;
State v. Platte Valley Public Power & Irr. Dist.,
The foregoing clearly indicates the manner in which the school lands trust fund was created, how it should be supervised and managed, and the purpose for which it may be used.
The temporary school fund is the fund from which the. appellees contend the attorney’s fee and expenses of the Ebke case are payable. This is a fund which is paid out to the various counties pursuant to statutory formula for support of the common schools. The statute provides the method of apportionment and the manner in which the apportionment is made for the benefit of the common schools. It is unnecessary to set this section of the statute out in detail. See § 79-1302, R. R. S. 1943.
The appellants contend that the income which has accrued to the Nebraska school lands trust fund through the sale of leases at public auction was not the direct result of the litigation conducted by Ebke and his attorney and that in such a situation an attorney’s fee as contended for by the appellees cannot be allowed from the school lands trust fund. The appellees contend that the effect of the decision in the Ebke case was to bring into the Nebraska school lands trust fund an amount in excess of four million dollars as bonuses due to the sale of leases at public auction held after the decision in the Ebke case, consequently, the fund was created and resulted from the Ebke litigation.
Evidence was adduced by the appellees detailing attorney White’s experience as a practicing attorney and the extensive preparation and time consumed in bringing the Ebke litigation to a successful conclusion. The appellants do not question that Ebke’s attorney acted in the litigation and during the course of it, ably and efficiently conducted the same for his client, and obtained *87 a favorable result. There is also evidence of competent attorneys who testified in behalf of the appellees to the value of the services rendered by appellee White, taking into account the necessary elements to be considered in this type of litigation.
We have heretofore given a summary of the Ebke litigation and what this court determined by its decision. It is true that the decision in the Ebke case established that sections 72-240 and 72-240.01, R. R. S. 1943, were unconstitutional, but the actual, specific result of that case established that the lease which Ebke sought to obtain could not be held valid and enforceable under the law, but that the lease must be offered at public auction where Ebke would have the opportunity to bid in competition with other prospective bidders who might desire to acquire this lease. The decision in the Ebke case did not order or direct the Board of Educational Lands and Funds to sell at public auction all of the leases which expired and would ordinarily be renewed under the law existing prior to the decision in the Ebke case. Subsequent to the decision in the Ebke case there remained many administrative acts to be performed by the Board of Educational Lands and Funds in order to build the additions to the school lands trust fund and the temporary school fund.
In this connection, it appears that prior to the decision in the Ebke case 2,313 leases had been issued under the 1947 act. On August 13, 1951, the Board requested an opinion from the Attorney General as to the status of these leases. In this opinion the Attorney General informed the Board that all leases issued pursuant to sections 72-240 and 72-240.01, R. R. S. 1943, were void; that the lessees had acquired no rights by virtue of the issuance of the same; and that the Board should take action declaring all such leases void. The lands involved should then be offered for lease at public auctions and notices of sale given by publication for 3 weeks in a legal newspaper published or of general circulation in the counties *88 in which such lands were located. On the same day the opinion was issued by the Attorney General, the Board adopted a motion in conformity with the opinion, 'vacated the proceedings under which the leases were made, and notified each leaseholder by letter that the land would be offered for lease at public auctions. The Board commenced the sale of these leases in the fore part of September 1951, and completed the sales in November 1952, with the exception of some that were involved in litigation.
The land appraiser for the Board was placed in charge of the sales of these leases. For the first 3 months it required the services of five men in addition to the appraiser to conduct the sales, then two of the men quit and three continued to work until April 1952, when another one left. The land appraiser and the other party then had charge of the sales.
It was not possible for the Board to hold an auction, as provided by law, to sell all the leases at once. The Board, by necessity, was required to classify the land and the geographical locations, and direct sales to be held of that number of leases which the representative of the Board could conveniently handle. In nearly every case many bids were made and raised. The high bid was reported to the Board for confirmation, but in many cases the Board, for various reasons, refused to confirm the sales and ordered new sales to be held. It is apparent that the Board directly controlled when or if money should come into the fund. No sale was complete until the Board, acting in a quasi-judicial capacity, confirmed the sale. It was the action of the Board which created the fund and, in so doing, the Board, in directing the sale of these leases as above set out, was not following a court order or obeying the mandate of a court. It was the independent action of the Board in what it considered to be its duty under the law.
It was stipulated that numerous actions were brought against the Board during the progress of the selling of
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these leases to prevent the sales. Among the cases cited appearing in the stipulation is Propst v. Board of Educational Lands & Funds,
It was further stipulated that in order to obtain possession of certain of these school lands on which the void leases had been issued it was necessary to institute seven forcible detainer actions which included the case of State v. Cooley,
The foregoing is in general the litigation before this court involving the Board. From the foregoing it is obvious that a considerable amount of litigation affecting the Board’s action in selling the leases at public auction has been had. We can arrive at no other conclusion, from what has been previously stated, but that the fund was created by the administrative action of the Board subsequent to the Ebke decision.
The appellees contend that when a litigant at his own expense has maintained a successful suit for the preservation, protection, or increase of a common fund, or has created at his own expense a fund in which others may share, he is entitled to an allowance for an attorney’s fee and reimbursement for expenses incurred in the litigation; and that the payment of an attorney’s fee and expenses in a taxpayer’s action is based on the general rule that such payments may be made in actions involving trust funds. The appellees cite several cases where the above rules were applied.. We believe there is a clear *91 distinction between the cases cited by the appellees and the case at bar.
The appellees cite Allen v. City of Omaha,
The appellees rely upon the case of Pensioners Protective Assn. v. Davis,
The appellees concede that the petitioners involved in the above-cited cases were direct beneficiaries of the trust fund. Appellees assert that in the Ebke case the common school districts of Nebraska are the direct beneficiaries of the fund and Ebke is a beneficiary only by virtue of being a taxpayer generally and a school district taxpayer in particular.
The appellees cite Fox v. Lantrip,
In the case of Village of Bedford v. State ex rel. Thompson, Hine & Flory,
It is apparent that Fox v. Lantrip, supra, and Village of Bedford v. State ex rel. Thompson, Hiñe & Flory, supra, are not cases in any respect similar to the case at bar.
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The appellees cite Regan v. Babcock,
The appellees cite State ex rel. Yontz v. West,
Other cases cited by the appellees have been examined, particularly Harbage v. Tracy,
We are not in accord with the. appellees’ contention that an attorney’s fee and expenses of litigation in the Ebke case may be paid out of the public school lands trust fund. The mere fact that the appellee Ebke prosecuted his action as an individual, a taxpayer, a citizen, and on behalf of all other citizens, residents, taxpayers, and parents having children attending public schools, and also for and on behalf of each and every public school district which is or may become a beneficiary of the perpetual school lands trust fund of the state, is not sufficient in and of itself to warrant an allowance of an attorney’s fee to be paid out of the school lands trust fund. We find nothing in the record in the Ebke case to show that Ebke was authorized to represent any of the common school districts of this state who were the direct beneficiaries of the fund, and certainly Ebke was not a direct beneficiary of the fund. Ebke, by this litigation, did not augment the fund. What was accomplished by this litigation was purely incidental to the fund in question. The actual situation is that Ebke prevailed as an individual with respect to one specific lease which was involved in the litigation brought by him and which lease he had an opportunity to acquire at public auction as a bidder in competition with other bidders by virtue of being successful in having declared, under a declaratory judgment action, sections 72-240 and 72-240.01, R. R. S. 1943, to be unconstitutional. The additions to the temporary school fund result from the administrative and independent action of the Board of Educational Lands and Funds. The litigation herein was conducted for the personal benefit of the appellee Ebke, and not for the benefit of the school lands trust fund.
It is the practice in this state to allow the recovery of attorney’s fees and expenses only in such cases as are provided for by statute, or where the uniform course
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of procedure has been to allow such recovery: See, Blacker v. Kitchen Bros. Hotel Co.,
We find no statute in this state that will allow or permit the recovery of attorney’s fees and expenses in a case such as the Ebke case.
For the reasons given herein, the judgment of the trial court is reversed and the cause is remanded to the district court to enter judgment in conformity with this opinion disallowing the attorney’s fee and expenses allowed by the district court, appellees to pay all costs.
Reversed and remanded with directions.