Plaintiff alleges that in July, 1932, he was employed by oral contract at $250 a month to render services to the defendant as an employee of the department of trade and commerce (later department of insurance) in connection with the affairs of thе Lincoln Hail Insurance Company then in the hands of the department; that the statutes authorized the department to give its employees such powers and duties as it considered proper; and that the defendant agreed to hold harmless any person so engаged from liability for acts done pursuant to such orders and in reliance upon said orders and in the belief that such orders were authorized and lawful; that prior to July, 1934, the defendant incurred obligations of $20,543.61 in the administration of the trust and placed funds of said trust in the hands of plaintiff аnd one F. A. Wood and directed that they be disbursed in the payment of said obligations; that plaintiff and Wood were informed that said funds could be so used lawfully and that the court had so- authorized their use; that plaintiff and Wood so disbursed the funds, exercising no discretion in so doing, under ordеrs of the defendant, believing that their acts were authorized and legal and relying on the agreement
For a second cause of action plaintiff alleges that he was. paid his salary to December 31, 1933; that it was agreed that his salary subsequent thereto should bе paid when the remaining assets of the trust were liquidated; that plaintiff continued said employment until January 28, 1935; that his. unpaid salary amounts to $3,233.33; and that defendant, disposed of the assets of the trust and did not pay him.
Plaintiff further alleged, as to both causes of action, that he prеsented a claim for the amounts due him to the department for approval, but that that department failed to approve the same; that he then presented the claim to the auditor of public accounts, who informed plaintiff that there were no funds appropriated or available for its payment and re
Plaintiff prayed judgment for the sum of $15,145.72 on his first cause of action and the sum of $3,233.33 on his second cause of action.
To the petition the dеfendant demurred generally for the reason that the facts stated in the petition “are insufficient to constitute a cause of action against this defendant.”
The trial court sustained the demurrer, holding the petition deficient in the following particulars:
(1) The defendant was without power or authority, express or implied, to enter into the contract alleged; (2) the liability, if any, on the part of the state for alleged services or expenses rendered in the liquidation of the insurance company is a charge against the assets of the company and not of the state; (3) the action of the district court to which plaintiff refers in his petition was appealed to the supreme court of Nebraska and a decision rendered therein which is res adjudicaba of any alleged cause of plaintiff.
Plaintiff elected to stand on his petition; his case was dismissed and he appeals.
A detailed summary of the facts surrounding this transaction may be found in State v. Lincoln Hail Ins. Co.,
The plaintiff in this action seeks to require the defendant (state) to reimburse him for the money which he alleges he paid in satisfaction of that judgment and to require thé defendant to pay him the salary which he was deniеd in that action.
The theory is that the acts done by the plaintiff which
As to the claim for compensation for services, the contention is that the defendant undertook the operation of the business of the insurance company, employed the plaintiff, used his services, and agreed to pay plaintiff for the services so rendered.
To support his cоntention that he has a right to maintain this action and that he has alleged causes of action' against the defendant, the plaintiff cites section 27-324,, Comp. St. 1929, providing that “The state may be'sued * * * in any matter founded upon or growing out of a contract,, expressed or implied, originally authorized or subsequently ratified by the legislature, or founded upon any law of the; state;” and upon the holding in Peterson v. State,
The question here is not whether the state may bе sued upon its contract, but whether the contract alleged is one:
Plaintiff alleges that he was a special employee of the defendant in the handling of the affairs of thе insurance company, which had been placed in the hands of the department in proceedings brought under section 44-204, Comp. St. 1929. That act, in paragraph 4, not only provides that the department shall have power to- appoint special emplоyees and to give them “such powers * * * as the department * * * may consider proper,” but also that “The compensation of such assistants, counsel and clerks, and all expenses of taking possession of and conducting the business-of liquidating any such company, shall be fixed by the department of trade and commerce, subject to the approval of the court, and shall on the certificate of the department of trade and commerce, be paid out of the funds or assets of such company.” Here, then, is а legislative direction as to the source of the funds to be used in the payment of compensation for services and expenses. It is a part of the same paragraph defining the powers of the department upon which plaintiff bases his claim and clearly imposes a legislative restriction as to the funds which may be used in the administration of the affairs of insurance companies under the act. By this- provision the state does not underwrite those items of compensation and expenses, but specifically defines the source from which payment must_ come. The plaintiff, obviously, in relying upon-the statute for the authority of his employment, likewise must accept that employment subject to the limitations imposed by the- act. Plaintiff cites Moore v. Garneau, supra, as authority for the defendant to make the- сontract to save him harmless and to pay his compensation. The case is not in point. In that case the authority of the state to contract and its liability were not questioned. It was there contended that the contract price for certain goods рurchased for the state was excessive. This court there discussed the evidence and held that the state was bound, the agent of the state having acted within the scope of his authority in making the contract.
“It is a well-established principle that, if a public officer in performing his ministerial duties acts beyond the express authorization of the law, his acts will be held to be void.” The rule is that, where an officer exceeds his powers in the performance of his ministerial duties, “the body for which he acts, whether it is the state, a municipal сorporation, or other public organization, is not bound by his acts; and every person dealing with an officer must, at his peril, ascertain the extent of his powers.” -Throop, Public Officers, sec. 551. In Mechem, Public Officers, sec. 829, it is said: “Every person, therefore, who seеks to obtain, through the dealings with the officer, the obligation of the public, must, at his peril, ascertain that the proposed act is within the scope of the authority which the law has conferred upon the officer.” In section 830 of the same work it is further said: “The authority оf the officer being a matter of public record or of public law of which every person interested is bound to take notice, there is no hardship in confining the scope of the officer’s authority within the limits of the express grant and necessary implications, аnd such is the well-established rule.”
Plaintiff further founds his second cause of action upon the theory that he was an employee of the defendant and that the defendant received the benefit of his service.
These arguments all go contrary to the record of the case of State v. Lincoln Hail Ins. Co., supra, upon which judgment plaintiff of necessity bases his causes of action. He refers to it in his petition; he was a party to that litigation; that litigation, as the decision of this court shows, established that the receiver of the insurance company for that сompany was the beneficiary of the judgment, and that the claim for salary was presented in that case as a-claim for services rendered the insurance company. Plaintiff cannot now argue contrary to that record, which he helped to make, and upon which he now relies. The plaintiff not only calls
The trial court took, and this court may properly take judicial nоtice of that record. The general rule is that, while a court will take judicial notice of its own records, it will not in one case take judicial notice of the record in another case. Fassler v. Streit,
Plaintiff, however, contends that his right to' recover under the alleged contract with the defendant did not arise until the termination of the prior litigation, and that that matter of necessity could not have been adjudicated in the former action. As to that it is patent that the defendant was without power or authority to enter into the contract alleged.
The judgment of the district court is
Affirmed.