Adams v. Murphy

• Decision Date: 07 November 1908
• Docket Number: 2,743.
• Citation: 165 F. 304
• Parties: ADAMS et al. v. MURPHY.
• Court: U.S. Court of Appeals — Eighth Circuit

165 F. 304

ADAMS et al. v. MURPHY.

No. 2,743.

United States Court of Appeals, Eighth Circuit.

November 7, 1908

This is a suit in equity brought by A. P. Murphy, appellee here against P. Porter, as principal chief of the Creek Nation and M. L. Mott. Pending the appeal P. Porter died, and the case was revived and continued in the name of John Adams, as administrator of his estate. The bill alleges that on the 10th day of January, 1903, the defendant P. Porter, as principal chief of the Muskogee or Creek Nation, entered into a contract in writing with complainant, employing him as national attorney for the tribe to represent it before the departments in Washington and the Dawes Commission, and in any litigation growing out of such questions as the right to membership in the tribe, and the right to tribal lands. The employment was to continue until the tribal relations of the Muskogee Nation had been dissolved, and until March 1, 1906. The salary was fixed at $5,000 per annum, in addition to expenses, payable quarterly. The complainant also signed the contract on his part and accepted its terms, and agreed to perform the services therein mentioned. The instrument contained a provision that it should be 'subject to cancellation by either party hereto upon thirty days' notice for good cause shown. ' This contract was entered into pursuant to an act duly passed and approved by the National Council of the Muskogee Nation, authorizing their principal chief 'to contract with, retain and employ an attorney at law, or firm of attorneys at law,' and setting forth specifically the duties of the employment, and providing that the contract should be subject to cancellation as above mentioned. The contract was approved by the Secretary of the Interior in accordance with the provision of the statute. Immediately upon the execution of this contract the complainant entered upon the performance of his duties thereunder, and continued to act as national attorney until March 23, 1904.

A short time previous to that date, Charles J. Bonaparte and Clinton R. Woodruff, as special inspectors, had reported to the federal government at Washington that Mr. Murphy had filed charges against a Mr. Douglas, engaged in the Indian service in the Indian Territory, which were either altogether unfounded, or very greatly exaggerated, and in so far as they had a basis of facts arose from friction between Mr. Murphy and Mr. Douglas. This report further stated as follows 'We feel that our duty would not be fully discharged if we did not add to what is said of Mr. Murphy in our original report, that he is, in our judgment, so much influenced in his recollection of events and his opinion of individuals by his very strong sentiments of personal sympathy or antipathy as to render his statements untrustworthy and to impair his usefulness as a public officer. ' This report was brought to the notice of the various departments before whom the complainant was by the terms of his employment to represent the Creek Nation, and the principal chief, acting in good faith, and believing that his usefulness to serve the nation was thereby impaired, if not destroyed, notified complainant in writing, on the 23d day of March, 1904, that his employment was terminated, saving unto him, however, by the notice, the right to his salary for 30 days. In this notice the principal chief assigned as his reason for the termination of the appointment the above-mentioned report. Immediately upon receipt of this notice the complainant served a counter notice denying that there was just cause for his discharge, and denying the authority of the principal chief to terminate the contract. About 30 days later the principal chief, acting on behalf of his nation, entered into a contract with the defendant, M. L. Mott, similar in its provisions to the one which had existed with the complainant. The bill further avers that the action of the principal chief in terminating the contract was unjust, oppressive, and in violation of the trust conferred upon him by the Creek National Council, and that complainant was ready, willing, and able to continue in faithful performance of the contract on his part, and was entitled to the compensation provided therein; that the Creek Nation had in its annual appropriation bill for the current year appropriated the sum of $5,000 for the payment of the salary of national attorney, and that the principal chief intended to pay over this money from time to time to the defendant Mott, in violation of the rights of the complainant. The bill further alleged as the basis for equitable relief: 'That this plaintiff has no remedy at law by which he could sue the Creek Nation and recover from said Creek Nation the amount of unpaid salary due him under and by virtue of the contract of January 10, 1903, or for damages for the breach of said contract, and that if the defendant P. Porter does issue to the said M. L. Mott the warrant or warrants for the salary of Creek national attorney, arising and accruing subsequent to April 1, 1904, and the said M. L. Mott receives the same, this plaintiff will be without any adequate remedy at law to recover the balance of his salary as Creek national attorney for the year 1904, and without any remedy at law whatever to recover the same. ' The bill asks that the defendant Porter be enjoined and restrained from signing or issuing any warrant or warrants upon the general fund of the Creek Nation, payable to Mott, or to any other person except to the plaintiff, for the salary of Creek national attorney, and enjoining and restraining the defendant Porter from paying to the defendant Mott, or any other person than the plaintiff, any portion of the salary of Creek national attorney, and enjoining and restraining the defendant Mott from receiving or attempting to receive, either directly or indirectly, such salary, or any warrant therefor; and as permanent relief, in addition to an injunction in substantially the terms above mentioned, the bill asked that the complainant, A. P. Murphy, be adjudged to be the duly and legally constituted national attorney for the Creek Nation, entitled to perform the duties of such, and to receive the pay for the same. Upon this bill an application was made for a temporary injunction in accordance with the prayer, which was granted.

Thereafter, on application of the complainant, the injunction was so modified as to command the defendant P. Porter to execute and file with the clerk of court warrants upon the general fund of the nation for the salary of national attorney, payable to the order of the complainant, and requiring the complainant to indorse the same, and directing the clerk to collect the proceeds thereof and hold the same in the registry of the court subject to its final decree.

Thereafter, by stipulation of the parties, and manifestly simply for the convenience of getting the fund into the custody of the court without the necessity of the warrants being made payable to the complainant and indorsed by him, the injunction was further modified so as to command the defendant P. Porter to execute the warrants for the salary of national attorney payable to the clerk of court directly, and requiring him to collect the same and hold the proceeds subject to the final decree in the cause.

A demurrer was interposed to the bill on behalf of the defendants, charging (1) that the complaint did not state facts sufficient to constitute a cause of action; (2) that it showed upon its face that the plaintiff had a complete remedy at law; (3) that the facts set forth in the complaint were not sufficient in law to give a court of equity jurisdiction or to warrant the granting of an injunction or restraining order. This demurrer was overruled, and an exception saved. The briefs upon the argument of the demurrer are set forth in the record, and it appears therein that it was contended that the court had no jurisdiction of an action against the Creek Nation or its principal officers, the case of Thebo v Choctaw Tribe of Indians, 66 F. 372, 13 C.C.A. 519, being cited as authority. To the application for modification of the injunction so as to require the defendant P. Porter to execute warrants and file the same with the clerk of court, a further demurrer was interposed, challenging the jurisdiction of the court, and specifying particularly 'that the court has no jurisdiction to order the defendant P. Porter, as principal chief of the Creek Nation, to issue the warrants on the treasury or funds of the Creek Nation, or to order said warrants to be paid'; and further alleging that the suit relates to and involves property of the Creek Nation, and said nation not having been made a party to this suit, as required by law, the court is without jurisdiction to make the order prayed for in the motion. As already stated, this demurrer was also overruled, and complainant's motion was granted. Thereafter an answer was interposed to the bill, admitting many of its provisions, but charging that the complainant had so misconducted himself as to forfeit the confidence of the departments before whom he was to represent the nation, and thus giving to the principal chief just cause for terminating the contract. The cause was referred to a master, who took testimony therein, and reported his findings of fact and conclusions of law. In this report the master found that no good cause existed for the termination of the contract, and that the plaintiff was entitled to his salary down to March 4, 1905, when he became a member of Congress from the Sixteenth district of Missouri, and disabled from performing his duties under the contract. In his conclusions of law the master finds: 'That the employer has a legal right to dismiss or discharge the employe, and that P....