Hord v. State
| Decision Date | 10 January 1907 |
| Docket Number | 20,509 |
| Citation | 79 N.E. 916,167 Ind. 622 |
| Parties | Hord v. The State |
| Court | Indiana Supreme Court |
From Superior Court of Marion County (G. T. 65,807); John L McMaster, Vinson Carter and Vincent G. Clifford (Pro tem.) Judges.
Action by William B. Hord against the State of Indiana. From a judgment for defendant, plaintiff appeals.
Affirmed.
Addison C. Harris and Frank C. Cutter, for appellant.
Charles W. Miller, Attorney-General, C. C. Hadley, L. G. Rothschild and W. C. Geake, for appellee.
Jordan J. All concur, except Gillett, J., not voting.
This action was commenced by appellant, William B. Hord, in the Superior Court of Marion County, Indiana, under § 1419 Burns 1901, Acts 1895, p. 231, to recover a money judgment of over $ 80,000 against the State of Indiana, arising, as alleged, out of contract. The complaint consists of two paragraphs. Separate demurrers to each for insufficiency of facts were filed by the State. These demurrers were sustained, and thereupon appellant elected to abide by his complaint, and judgment was rendered that he take nothing and that the State recover costs. From this judgment he has appealed to this court, and by the errors assigned he challenges the ruling of the lower court upon the demurrers in question. It is further assigned and argued by appellant's counsel that the State, in denying him compensation for his services and expenditure of moneys made by him, as alleged in the complaint, impairs the obligation of the contract set out in the complaint, and that this results in denying him the equal protection of the laws, and deprives him of his services and property without due process of law; all in violation of the provisions of the federal Constitution. The first paragraph of the complaint declares upon a written contract alleged to have been entered into by and between appellant and the State of Indiana, through its Attorney-General, on April 3, 1889, whereby appellant was employed to prosecute and collect from the United States for the State of Indiana certain claims known and denominated as "war claims." The second paragraph of the complaint counts upon a quantum meruit, and thereunder appellant seeks to recover against the State for services rendered by him at its request in the prosecution and collection of the aforesaid claims.
As a preliminary, the first paragraph of the complaint discloses the passage in 1861, by the congress of the United States, of certain acts for the purpose of indemnifying the several states of the Union for expenses incurred by each in defending the United States in the Civil War of 1861, etc. It is further shown that the State of Indiana, during the period of said war, expended for and advanced to the United States government large sums of money, amounting in the aggregate to $ 800,000; that after the close of said war the State, from time to time, made unsuccessful efforts to secure from the United States the payment, in whole or in part, of its said claims. It is further alleged that the State, although unsuccessful in the collection of these claims, insisted that large sums of money were due to it from the United States on account of these war claims, and accordingly, on March 5, 1889, the legislature passed a statute pertaining to the office of the Attorney-General and to the collection of the claims in question. It is averred in the pleading that these claims of the State against the United States government were provided for by a proviso, or provision, in section nine of said act (Acts 1889, p. 124, § 7692 Burns 1901) in these words: "Provided, that the Attorney-General or his assistants shall not receive any commission or fees for or on account of the collection from the United States of the money paid by the State of Indiana to the United States as direct tax during the War of the Rebellion; but for the collection of any other moneys due the State of Indiana from the United States he shall be allowed a commission of ten per cent on the amount collected." In the same connection the complaint avers that "it was said sum, among other claims, that by said act of the legislature the Attorney-General was authorized to employ aid and attorneys in the collection thereof, and to pay such aid and attorneys out of the sums so collected a sum not to exceed ten per cent of the amount collected." It further alleged that under the authority of said act of 1889 Louis T. Michener, the Attorney-General of the State, did appoint and employ appellant as attorney for the State of Indiana to collect the money due to it from the United States. This appointment was made by and under a written commission, issued to appellant, in the words and figures as follows:
It is averred that on the same day that appellant was appointed by Attorney-General Michener as aforesaid, the State of Indiana entered into a written contract with him, which contract is set out and made a part of the first paragraph of the complaint and is as follows, to wit:
This contract as shown was made with the full knowledge and consent of the Governor, Auditor and Treasurer of the State of Indiana, and copies thereof were on the day of its execution filed in the office of the Governor and Attorney-General of the State and with the war department and other departments of the United States government. The pleading proceeds to aver that it is the rule of construction It is then alleged that, immediately after the appointment of appellant herein, the latter set about the work of collecting said war claims, and, among other things, he prepared and made for the State an itemized claim against the United States, which in the aggregate amounted to $ 714,476.62; that this claim as made out was examined and approved by Alvin P. Hovey, then Governor of the State of Indiana, and by the Auditor and Treasurer of said State, and appellant, as attorney of the State under his said appointment and employment, filed, with the approval of the aforesaid officers, said claim for and in the name of the State of Indiana in the treasury department of the United States. The various steps taken by appellant and the series of services performed by him in the furtherance of the collection of the claim in question are all fully alleged and shown, until finally the paragraph avers that the United States, in the year 1902, audited, allowed, and paid to the State of Indiana, in satisfaction of said claims, the sum of $ 800,000, and that thereby a commission of ten per cent of said amount so collected by appellant for the State became due and owing to him under his said contract of employment, which amount of commission it is averred is still due and unpaid, and which the State, upon his demand, has wrongfully refused and still refuses to pay to him; that in addition to this amount it is alleged there is due to him the sum of $ 5,000 expended and paid out by him in the prosecution of the aforesaid claims.
The pleading further avers that from time to time during the prosecution of the claim in question appellant kept the Attorney-General and other officers of the State of Indiana advised in regard to his action in the...
To continue reading
Request your trial