Follmer v. State

Decision Date26 June 1913
Docket Number16,931
Citation142 N.W. 908,94 Neb. 217
PartiesGEORGE D. FOLLMER, APPELLEE, v. STATE OF NEBRASKA, APPELLANT
CourtNebraska Supreme Court

APPEAL from the district court for Lancaster county: ALBERT J CORNISH, JUDGE. Affirmed on condition.

AFFIRMED ON CONDITION.

Grant G. Martin, Attorney General, for appellant.

T. J Doyle and G. L. De Lacy, contra.

SEDGWICK J. REESE, C. J., and ROSE, J., not sitting.

OPINION

SEDGWICK, J.

The plaintiff was commissioner of public lands and buildings during the years 1901 to 1904, inclusive. He alleges that during that time as commissioner he employed one Edwin J. Murfin, a practicing attorney at law in the state of Nebraska, to represent the interests of the state and the board of educational lands and funds in matters pertaining to the public school lands of the state, and that the legislature of the state duly authorized the plaintiff to prosecute this action against the state. The trial in the district court for Lancaster county resulted in a judgment in favor of the plaintiff, and the defendant has appealed.

1. It appears that the defendant filed a general demurrer to the petition, which was sustained by the district court. Afterwards the plaintiff filed a motion to set aside the ruling upon the demurrer, and also filed an amended petition. The motion was sustained and the amended petition held sufficient. The defendant now contends that the first ruling upon the demurrer became the law of the case, and that it was error to set the same aside and admit evidence under the amended petition. It seems to be conceded that the district court has control of its own judgments and orders during the term of the court at which they were made, but the contention is that after the term of court at which the order is made it becomes final. Marvin v. Weider, 31 Neb. 774, 48 N.W. 825, is cited as authority for this position, and perhaps some of the language there used might suggest such a conclusion, but that case has been twice overruled by this court, in Perry v. Baker, 61 Neb. 841, 86 N.W. 692, and in Tiernan v. Miller & Leith, 69 Neb. 764, 96 N.W. 661.

2. The next contention is that section 4778, Ann. St. 1911, is unconstitutional and void so far as it authorizes the governor or chief officer of a department or institution to employ an attorney to appear on behalf of the state. Section 1, art. II of the constitution, provides: "The powers of the government of this state are divided into three distinct departments, the legislative, executive, and judicial, and no person, or collection of person, being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted." It is said that under this provision of the constitution the attorney general is the "head or chief officer of the law department. * * * He is the law officer of the state, whose action cannot be controlled by the state board," and that the said section 4778 is a direct violation of that constitutional provision, "in that it attempts to authorize a person belonging to one department to exercise the power properly belonging to one of the other departments." A casual reading of the section quoted will show that it cannot be so applied. It divides the powers of the government into three departments, the legislative, executive and judicial, and provides that the officers of one of these departments shall not perform the duties of the other departments, but, of course, has no application to a distribution of duties among different officers of the executive or administrative department of the state government.

It is further contended that the attorney general has entire control of the litigation in which the state is interested by virtue of the provision contained in the first part of the said section 4778. The attorney general is, generally speaking, the attorney for the state. It is his duty to devote his time and energies to that employment, as it is the duty of attorneys generally to appear and defend the rights of their clients in the litigation in which they are employed. He is given executive powers in regard to various matters committed to his care. The officers who by the constitution and laws are given charge of the affairs of the state will continue generally to control them, although there may be litigation in regard to them. Those officers are authorized by this section of the statute to employ "a competent attorney" in cases of importance or difficulty, not necessarily as assistants of the attorney general, but an attorney with the general powers of attorneys at law for the matters in which they are employed. It is, of course, for these officers of the different departments and institutions to determine within their discretion whether the case is of importance or difficulty so as to justify the employment of counsel. They are entitled to the opinion and advice of the attorney general upon questions of law relating to their several departments, but they are not necessarily controlled by that advice in matters especially committed to their care. If the law were otherwise, any executive office of the state could be controlled by the opinion of the attorney general specifying what the law requires to be done in that office.

3. It is next contended that the commissioner of public lands and buildings is not the "chief officer of the department or institution to which" this litigation related, and so was not authorized to employ an attorney. The commissioner of public lands and buildings is a constitutional officer. His duties, however, are not specifically defined in the constitution; and the constitution also establishes a separate board for the sale, leasing and general management of all lands and funds set apart for educational purposes, "in such manner as may be prescribed by law." Const., art. VIII, sec. 1. The legislature, as it is authorized by this section to do, has provided for the organization of the board. Ann. St. 1909, sec. 10357. By this statute the governor is made chairman, and the commissioner of public lands and buildings secretary of the board, but it appears that each member of the board, which consists of the governor, secretary of state, treasurer, attorney general, and commissioner of public lands and buildings, has equal authority in the management of the school lands and funds. It seems to follow that there is no "chief officer" of this board within the meaning of the statute. In the construction of the criminal code "the singular number includes the plural" (section 246), and also in the revenue law (Ann. St. 1911, sec. 10910). The wording of section 4778 suggests that construction here. Undoubtedly the section should be construed as though it read, "the governor or chief officer or officers of the de-department or institution," so that where there is a board established by law, and no one with greater power in the performance of the work of the board than another has, it should require a majority of the board to act in the employment of an attorney, as in other matters.

4. While the plaintiff held the office of commissioner of public lands and buildings, a controversy arose in regard to several thousand acres of land in Boyd county. These lands had been selected as a part of the school lands of the state, but settlers were occupying them and claiming them. We do not consider it necessary to state in detail the conditions that caused this controversy. It is sufficient, for the purpose of indicating the questions of law that we think are involved, to say that the lands were valuable, and that the questions involved were complicated and difficult, and were affected by rulings of the land department of the government, and the matter was in litigation in the district court for Boyd county; it was transferred to the federal court of this district, and afterwards remanded, and was twice before this court.

This plaintiff and the then attorney general were both by virtue of their respective offices members of the board of educational lands and funds. They disagreed seriously as to the rights of the state in the matters involved and as to the proper course to be pursued to protect those rights. The attorney general at first advised that the lands in question be relinquished by the state to the general government in favor of the settlers, pursuant to an act of the legislature so providing. The plaintiff insisted that the act of the...

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    ... ... O'Malley (Substituted for Joseph B. Thompson, who was in turn substituted for Ben C. Hyde), Superintendent of the Insurance Department of the State, Appellant. John T. Barker and Floyd E. Jacobs, Aetna Insurance Company, a Corporation, et al., v. R. E. O'Malley (Substituted for Joseph B ... 210; People v. Marquette Natl. Life Ins. Co., 351 ... Ill. 516, 184 N.E. 800; State ex rel. Barrett v. Lumber ... Co., 302 Mo. 187; Follmer v. State, 142 N.W ... 908; State v. Amerland & Hagan, 175 N.W. 372; ... Board of Public Utility Commrs. of New Jersey v. Lehigh ... Valley ... ...
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  • Brief of Dr. Carhart et al. in Stenberg v. Carhart(*).
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    • Issues in Law & Medicine Vol. 16 No. 1, June 2000
    • 22 Junio 2000
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