State ex rel. Brown v. Poplarville Sawmill Co.

• Decision Date: 17 March 1919
• Docket Number: 20673
• Citation: 81 So. 124,119 Miss. 432
• Court: Mississippi Supreme Court
• Parties: STATE EX REL. BROWN, LAND COMMISSIONER, v. POPLARVILLE SAWMILL CO. ET AL

81 So. 124

119 Miss. 432

STATE EX REL. BROWN, LAND COMMISSIONER, v. POPLARVILLE SAWMILL CO. ET AL

No. 20673

Supreme Court of Mississippi

March 17, 1919

[81 So 124, Division B.]

1 STATE. Employment of attorney. Compensation.

Neither the land commissioner nor the Governor has been given power by statute to allow any attorney any per centum of the state's property or recoveries on sale thereof a fee in bringing suit.

2 STATE. Contracts. Employment of attorneys. Compensation.

The statute, Code of 1906, section 2903, giving the land commissioner power to employ counsel with the consent of the Governor, does not carry with it the right to fix his compensation, This statute is to be construed in connection with the policy of the state in giving the Governor power to employ assistant attorneys, subject to the action of the legislature to allow compensation as in the judgment of the legislature may be fair and just.

3 STATE. Contracts. Land commissioner. Employment of attorney.

When the land commissioner employed attorneys under Code 1906 section 2903, (Hemingway's Code, section 5238), under a contract providing that such attorneys should receive twenty-five per centum of the recovery, such a provision was unlawful and unauthorized and being a vital part of the contract, rendered the whole contract void.

4. STATE. Employment of attorney.

The land commissioner must retain control over his litigation, and his right to control it cannot be contracted away.

5. OFFICERS. Discretion. Delegation of discretion.

Whatever may be the rule governing the relation between the attorney and client, when the parties are acting in their personal capacity, it is clear that officers must be controlled by the law in making their contracts, and that officers cannot delegate their discretion unless expressly authorized to do so by statute.

6. LAND COMMISSIONER. Contracts with attorneys.

The land commissioner cannot be bound by a blanket contract with an attorney, the facts and particulars constituting the cause of action should be brought to his attention before the suit is instituted.

7. APPEAL AND ERROR. Orders appealable. Final judgment.

A nonsuit without prejudice is not a final judgment from which an appeal will lie to the supreme court.

8. SAME.

Appeals are regulated by statute and only lie in cases provided by statute.

Division B

APPEAL from the chancery court of Pearl River county, HON. D. M. Russell, Chancellor.

On motion to re-instate appeal. For former opinion see 80 So. 647.

The appeal in this case was dismissed on a former day of this court, and motion is now made to reinstate, and it is insisted that the attorney instituting the suit had the right to appeal regardless of the direction of the land commissioner to have the cause nonsuited, from which judgment of nonsuit the appeal is attempted to be prosecuted. It appears from the record that on the 11th day of January, 1918, an instrument of writing was signed by M. A. Brown, land commissioner, and approved by the Governor, attempting to employ one W. A. Shipman, an attorney at law, to institute suits for the land commissioner for a compensation of twenty-five per cent. of the moneys recovered and of sale of land recovered under such suits. The writing referred to reads as follows:

"Contract with W. A. Shipman.

"Whereas, information has come to the knowledge of the undersigned land commissioner of the state of Mississippi, that large tracts of land lying and being situated in the counties of Marion, Lamar, Pearl River, Hancock, Lawrence and Simpson were illegally sought to be conveyed by patents to sundry individuals by the former officials of the state aforesaid, and which said patents purport to be under and by authority of the Acts of the legislature of said state, of March 12, 1852, and February, 1877, but that it now appears said patents do not conform to the requirements of said statutes in many material and substantial particulars, wherefore, it further appears that the title of the state of Mississippi in and to said lands has never been divested: Now, therefore, by virtue of the authority vested in me by section 2903 of the Code of Mississippi of 1906, and the statutes relating thereto, by and with the consent of the Governor of said state of Mississippi, I, the undersigned land commissioner of said state, do hereby contract with and appoint W. A. Shipman, an attorney at law, to prosecute suits in the name of the state, for the recovery of any and all such lands as he may find in the said counties, or any of them, in the situation hereinabove mentioned, and out of such recovery or recoveries it is understood and agreed that the said W. A. Shipman, attorney at law, shall receive for his compensation twenty-five per cent. (25%) of the selling price by the state of all of said lands recovered, said amount to be paid upon sale of lands by the state, or funds recovered as damages or in settlement of said claims of the state to said lands. It is understood and agreed that no compromise affecting said lands shall be made without the consent and approval of the land commissioner and Governor.

"Witness my hand this the 11th day of January, 1918, and my official seal hereto affixed.

"[Signed]

M. A. Brown, Land Commissioner.

"The above contract examined and approved by the Governor, this the 11th day of January, 1918.

"[Signed]

THEO. G. BILBO, Governor.

"Attest:

"Jos. W. Power, Secretary of State."

(Seal affixed.)

"I hereby accept the above employment and agree to give my time and attention to the carrying out of the purposes set out therein.

"Witness my signature, this the 17th day of January, 1918.

"[Signed]

W. A. Shipman."

After this agreement was signed, and on the next day thereafter, M. A. Brown, land commissioner, addressed the following letter to Mr. W. A. Shipman:

"Mississippi Land Office.

"M. A. Brown, Commissioner.

"Thos. J. Brown, Deputy Commissioner.

"Jackson, Miss., Jan. 12, 1918.

"Mr. W. A. Shipman, Poplarville, Mississippi --Dear Sir: I note in the contract signed by you and myself with Mr. W. A. Shipman, relative to certain suits to be brought for the recovery of some state lands, that it is stated that, 'The said W. A. Shipman, attorney, as aforesaid, shall receive for his compensation twenty-five per cent. of the selling price by the state of all of said lands recovered, said amount to be paid upon sale of said lands by the state, or funds recovered as damages, or in settlement of said claims of the state to said lands.'

"This clause escaped my attention at the time the contract was submitted to me, but upon seeing it in reading the contract over and recalling an opinion from the Honorable Frank Johnston, then assistant attorney-general, I am of the opinion that neither the land commissioner nor Governor can make such a contract providing for the payment of attorney's fees from the sale of the lands recovered, or from the funds of such sales. I think that the only way which a contract can be validly made is to specify a compensation subject to legislative approval and appropriation.

"I am sending Mr. Shipman a copy of this letter that no misunderstanding may arise and that he may be advised of his rights under the contract before he enters into the service.

"Mr. Shipman is therefore requested to return the contract for revision in accordance with law, or otherwise the contract will be considered null and void.

"Very truly yours,

"[Signed]

M. A. Brown."

Thereafter this suit was filed in the name of the state of Mississippi, on the relation of the land commissioner, against various defendants, and involving a claim to a large body of land situated in Pearl River county, Miss., and an injunction was issued to restrain the turpentining of the timber and the sale and removal of timber during the pendency of this suit. The bill was answered, and in the progress of preparing for the suit, securing evidence, etc., one of the attorneys for the defendants came to Jackson to secure certain certificates from the land office for use in said suits, and was there informed by the land commissioner that he had no knowledge of any such suits pending, and that he had not authorized the bringing of the suits against these defendants and for the lands embraced in these suits. Thereupon the defendants filed a motion to dismiss the suits, stating that, since their answer had been filed and a motion made to dissolve the injunction the defendants had discovered that this suit was not instituted by the land commissioner as represented in the bill, and was not instituted by the land commissioner, the attorney-general, or district attorney, nor any attorney authorized to bring said suit. The land commissioner gave to the defendants two letters addressed "To Whom It may Concern," one dated July 31, 1918, reading as follows:

"Mississippi Land Office.

"M. A. Brown, Commissioner.

"Thos. J. Brown, Deputy Commissioner.

"Jackson, Miss., July 31, 1918.

"To Whom It may Concern:

"This is to certify that the communication by me addressed as above and dated July 30, 1918, with reference to a suit filed in my name, as land commissioner, against Vizard et al. applies likewise to any and all other suits brought by Mr. W. A. Shipman or in which he appears as counsel in the alleged behalf of the state of Mississippi and any and all such suits are unauthorized by me, and the court is requested to enter nonsuit in all such cases.

"Very truly,

"[Seal]

[Signed]

M. A. Brown,

"Land Commissioner."

And one dated July 30th, reading as follows:

"July 30, 1918.

"To Whom It may Concern:

"Upon request for a statement from me as land commissioner of the State of Mississippi, as to the authority of ...