Follmer v. State, No. 16,931.

• Court: Supreme Court of Nebraska
• Writing for the Court: SEDGWICK
• Citation: 94 Neb. 217,142 N.W. 908
• Parties: FOLLMER v. STATE.
• Decision Date: 26 June 1913
• Docket Number: No. 16,931.

94 Neb. 217
142 N.W. 908

FOLLMER
v.
STATE.

No. 16,931.

Supreme Court of Nebraska.

June 26, 1913.

[142 N.W. 908]

Syllabus by the Court.

The ruling of one judge of the district court upon a general demurrer to the petition is not conclusive upon another judge of the same court who afterwards tried the case. If the demurrer is erroneously sustained, the error may be corrected at a subsequent term if the case has not been finally disposed of at the prior term.

That part of section 4778, Cobbey's Ann. St. 1911, which authorizes the chief officer of a department or institution to retain and employ a competent attorney in cases of importance or difficulty does not conflict with section 1, art. 2, of the Constitution, and requires such officer to use a reasonable discretion in determining the necessity of such employment.

The singular number often includes the plural in the construction of statutes, and generally when the manifest intention of the Legislature requires it. “Chief officer,” as used in

[142 N.W. 909]

section 4778, Cobbey's Ann. St. 1911, is so construed.

The Attorney General is the attorney for the state, and the officers who by the Constitution and laws are given charge of the affairs of the state may call upon him for advice upon questions of law which arise in the discharge of their duties.

There is no chief officer of the board of educational lands and funds within the meaning of section 4778, Cobbey's Ann. St. 1911. The board acts by a majority of its members. The commissioner of public lands and buildings is by the Constitution made a member of the board, but the Legislature is given power to prescribe by statute the manner of the general management of the business of the board. Many special duties are by statute devolved upon the commissioner of public lands and buildings, but the employment of a competent attorney in special cases relating to the duties of the board is lodged with the board itself.

If the commissioner of public lands and buildings, as a member of the board of educational lands and funds, employs a competent attorney in a case of importance and difficulty relating to the department of educational lands and funds, and such attorney, with the knowledge and acquiescence of a majority of the board, renders valuable services which are received and acted upon by the board without objection to the employment of such attorney, and the Legislature, after being informed as to the transaction, authorizes suit to be instituted against the state upon a claim for the value of such services, in such suit the fact that the attorney was not formally employed by the board is immaterial.

The Legislature, with full knowledge of the circumstances, by joint resolution authorized the plaintiff to prosecute this action against the state to recover the value of legal services rendered by a competent attorney at law who had been employed by the plaintiff while commissioner of public lands and buildings in cases of importance and difficulty relating to the department of the board of educational lands and funds. Thereupon the attorney assigned his claim for such services to plaintiff. Held, that plaintiff's action should not be dismissed on the ground that he is not the real party in interest, and the admission of the attorney that he did not intend to enforce his claim against the plaintiff unless plaintiff was remunerated by the state will not defeat this action.

Additional Syllabus by Editorial Staff.

A bare authorization by the Legislature for the maintenance of an action against the state on a pre-existing claim does not authorize a judgment for interest on the claim prior to the date of the authorization.

Appeal from District Court, Lancaster County; Cornish, Judge.

Action by George D. Follmer against the State of Nebraska. From a judgment for plaintiff, defendant appeals. Affirmed on condition.

Grant G. Martin, of Lincoln, for appellant.

T. J. Doyle and G. L. De Lacy, both of Lincoln, for appellee.

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] 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] 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. 2, 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 persons, being one of these departments, shall

[142 N.W. 910]

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...