Porter v. Murphy

104 S.W. 658, 7 Indian Terr. 395, 1907 Indian Terr. LEXIS 44

• Court: Court Of Appeals Of Indian Territory
• Decided: September 26, 1907
• Status: Published

Opinion

Gill, C. J.

While appellants assign 17 errors in their brief, in reality appellants group these-into 4, and, accepting this grouping, we will proceed to a discussion of the case under these four heads, reducible in fact to one, the first-, viz.: (1) Because this is an action to try title to an office. (2) Because plaintiff had a complete and adequate remedy at law. (3) Because the action is one to control the acts of an executive office of the Creek Nation and of the United States. (4) Because the court did not make the Creek Nation a party to the suit.

Counsel for appellants contend that this was an action to try title to an office; that to be under contract to perform the duties of national attorney for the Creek Nation created an office. The' act concerning the employment of a national attorney is as follows:

“An Act Providing for the Employment of a National Attorney and for Other Purposes.

“Be it enacted by the National Council of the Muskogee Nation:

“That the Principal Chief be, and he is hereby, authorized to contract with, retain, and emplo}'- an attorne3r at law, or firm of attorneys at law, whose emp^'ment shall continue until the tribal relations of the Muskogee Nation shall be dissolved, and until March 1, 1906J and whose duty it shall be to advise the Principal Chief upon all legal questions arising touching the affairs of the Muskogee Nation, and to represent said Nation before all Courts, and before all committees of Congress, when requested to so appear by the Principal Chief, or by the Honorable Secretary of the Interior, and to advise with aity and all Commissions or Committees appointed on behalf of the Muskogee Nation to treat with the Commission to the Five Civilized Tribes.

“And it .shall be further the duty of the said attorney at law, or firm of attorneys at law, to represent the Muskogee Nation in all matters affecting citizenship in said Muskogee Nation, now pending before the Dawes Commission, or which may at any time be, upon appeal, pending before the Honorable Secretary of the Interior; and under the direction of the Principal Chief, to appear on behalf of all individual citizens of the Muskogee Nation, in any Court, or before the Dawes Commission, or the United States Indian Inspector for the Indian Territory, to protect the rights of such individual citizens, in accordance with, and under the terms of the Act of Congress entitled ‘An Act to Ratify and Confirm an Agreement with the Muskogee or Creek Tribe of Indians, and for other purposes/ approved by the President March 1, 1901, and perform the same duties under any subsequent agreement or Act of Congress.

“It shall further be the duty of said attorney at law, or firm of attorneys at law, to draw all contracts relating to the leasing of lands, and to render services to any individual citizen of the Nation in respect thereto, without additional compensation.

“Said attorney, or firm of attorneys, shall report to the National Council, annually, a statement of necessary expenses, incurred by said attorney, or firm of attorneys.

“Be it further enacted, that the compensation of said attorney at law, or firm of attorneys at law, shall be five thousand dollars ($5,000.00) per annum, to be paid quarterly from the general funds of the Muskogee Nation, and said attorneys at law, or firm of attorneys at law, shall be paid all necessary expenses when absent from the Muskogee Nation, under and in accordance with the terms of the contract with the Principal Chief, said expense accounts to be itemized and duly verified, and rendered quarterly, and shall be approved by the Principal Chief before same shall be paid from the general funds of the Muskogee Nation; provided, that said contract shall be approved by the Honorable Secretary of the Interior and shall be subject to cancellation by either party thereto upon thirty days notice for good cause shown.

“Adopted December 6, 1901.”

While this act contemplates a position, it certainly does not create an office; for whether the position is ever filed depends upon the will and pleasure and contract of the Principal Chief, and this contract of employment is authorized to be with a single attorney or with a firm of attorneys. In the same way that the attorney for a railroad or banking corporation, while holding a most responsible position which is provided for under its bylaws, is not an officer of such railroad or bank, so the attorney provided for in the act of the Creeks is not an officer of the Creek Nation. He is simply a servant under contract to perform certain duties for a certain salaiy. The case of Hall vs State of Wisconsin, to be found in 103 U. S. 5, 26 L. Ed. 302, is directly in point with the case at bar.., This is a case where the .Governor ivas-empowered and required to make a written contract with commissioners for certain surveys of the state, providing for the compensation and removal. The court very properly held that the commissioners were not officers, and defined the difference between an officer and a contract, sustaining its decision in the case of U. S. vs Hartwell, 6 Wall. (U. S.) 385, 18 L. Ed. 830, as follows: “An office is a public station or employment conferred by the appointment of government. The term embraces the idea of tenure, duration; emolument, and duties. A government office is different from a government contract. The latter is necessarily limited in its duration and specific in its objects. The terms agreed upon define the rights and obligations of both parties, and neither may depart from them without the assent of the other.” And in this same case the court sustained its decision in the case of U. S. vs Maurice, 2 Brock (U. S.) 96, Fed. Cas. No. 15,747, as follows: “Although an office is an employment, it does not follow that every employment is an office. A man may certainly be employed under a contract, express or implied, to perform a sendee, without becoming an officer.” This is the same rule as laid down in Mechem on Public Officers, § 2. Davis vs Gray, 16 Wall. (U. S.) 203, 21 L. Ed. 447. An examination of the complaint to test whether it is vulnerable to the demurrer shows itjwasfnot (1) an action to try the title to an office. In effect, the complaint says that appellee and appellant Porter, as Chief£of thefCreek Nation, entered into a contract of employment of the former asj|an attorney to do certain things, for a certain salary payable, in a certain way, that the money to pajr this salary had been provided appellant Porter, as Chief of the Creek Nation, by the Creek Nation for the purpose of paying |such salary. (2) That, in violation of its terms, appellantJPorter sought to terminate the contract and to discharge appellee without cause, and while he was performing his duties under the contract and ready and willing to continue to do so, and that appellant, after notice to appellee-had employed another attorney, the co-appellant Mott, to> perform the duties imposed by his contract upon appellee,, and, in violation of the rights of appellee, was threatening to and about to pay the funds in his hands which rightfully should be paid to appellee, under his said contract, unto said appellant Mott. (3) That appellee was without adequate remedy to prevent this wrongful diversion of the funds in appellant Porter's control, save by the intervention of the equitable relief by way of injunction preventing appellant Porter from diverting said fund from its use under his contract with appellee to another use under his contract with his co-appellant Mott. In view of the court, the allegations of complaint are sufficient if true to entitle appellee to equitable relief.

The complaint does not seek to determine opposition rights of Murphy or Mott to an office, nor does it seek to determine whether Murphy or Mott should hold an office. It alleges (1) that appellee, under a certain contract, has certain rights to a certain fund in appellant Porter's hands and under his control by the performance of certain acts which it alleges appellee's ability and willingness to,do; and’ (2) that, without fault on the part of appellee, appellant Porter refused to permit appellee to perform his duties under his contract, and was-threatening to take such fund and divert same to the payment of Mott, appellant; and (3) that, if appellants were permitted to so act with each other in reference to said fund, appellee would be without redress, and prays an injunction to restrain such diversion, and f-or a mandatory injunction commanding appellant Porter to issue to plaintiff, appellee, a warrant for all his salary subsequent to April 1, 1904, and up to date of ■decree herein and for other relief.

Practically in settling the question of demurrer and holding that the complaint states a cause of action the case is .settled, for the court below has determined the facts in favor of appellee. The question of fact whether or not appellant Porter was justified in discharging appellee is worthy our careful review. The contract in question provided that it should be subject to cancellation by either party upon 30 days’ notice for good cause shown. The causes for the attempted cancellation of this contract on the part of Porter, appellant, are as follows: “Jpr reasons for this notice of cancellation of the •contract of employment are that you have made statements representing the Creek Nation and with reference to the Creek 'business with the government of the United States which through investigation made by one Bonaparte and Woodruff were found to be without foundation in fact and a part of which report of investigation is as follows: We find with respect to these charges that Mr. Murphy had no special authority from the Creek Nation to file them on its behalf, and that they were filed without the knowledge or consent of the Principal Chief, Pleasant Porter, and, so far as we are informed, without previous consultation with any of the constituted .authorities of the Creek Nation. We find further that these written charges were either altogether unfounded or very ■greatly exaggerated, and, in so far as they had a basis of fact, .arose from some friction between Mr. Murphy and Mr. Douglas, for which we cannot undertake to fix the responsibility, etc. 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 individuality 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.” Now, from this quotation, it seems that appellee had 'filed certain charges without any authority from the Creek Nation and without the knowledge or consent of the Principal Chief, Porter, and thereupon appellant Porter felt authorized to declare the contract of employment of appellee at an end, not with reference to his failure to carry out his-contract of employment or his inability to do so, but because-certain individuals found that he (appellee) had preferred, charges against certain officials. The Creek Nation was not involved in these charges. What the charges were is unknown, and it cannot be said that because Government Inspectors Bonaparte and Woodruff made certain findings in reference to charges preferred by appellee in his individual capacity, and drew certain conclusions as to the effect of appellee’s conduct, that the appellant Porter was justified, in any sense, in notifying the United States government officials and the citizens of the-Creek Nation and appellee that his contract as Creek national attorney was at an end.

In this connection, the evidence of apjmllant Porter-shows that he went to the Secretary of the Interior about this discharge, after he had read Bonaparte’s report, and that the secretary told him that it was a matter of his business and for him to do whatever he thought right, and he says in this connection as follows: “Q. There is a provision in the contract as follows: ‘This contract shall be approved by the Honorable Secretary of the Interior and shall be subject to cancellation by either party upon thirty days’ notice for good cause shown.’ 1 will get you to state whether or not you canceled the contract?’ A. I did. Q. Will you give the facts and circumstances in your own way. Just go on and tell us how you came to-cancel the contract, and for what reasons? A. I think I set forth in the letter' my reasons for it. I set forth in my letter ■of notification to Mr. Murphy of his discharge the reason why 1 did so. Q. Was that all? A. It was all that I canceled it for then. There may have been preceding things that might have had some influence. I canceled it because, after an examination made by the government as to Mr. Murphy’s conduct of matters relating to the government and the Creek Nation and myself, that he was thought by this commission to be untrustworthy and unreliable, and I employed him for that very business. Q. What very business? A. To help me conduct the affairs of the Nation, between us and the United States, and to maintain an understanding between» each other in this transition period, allotmeht of land and certain questions which grew out of that, and I wanted a man that was trustworthy and that was honest, and that report seemed conclusive to me that he would not be useful to me any longer. That report was proof to me that he would not serve the purpose for which he was employed and for which the law designed the emplojunent. * * * Q. From your acquaintance with Mr. Murphy, your experience with him while he was employed as Creek national attorney, from his actions and his conduct, can you tell whether or not the conclusions reached by Mr. Bonaparte were true? A. I took it to be true, and acted on the conclusion that he reached in regard to Mr. Murphy. Q. Was that opinion o'f yours based upon the report or upon the report and your knowledge of the man and his methods — I mean Mr. Murphy? A. It was principally upon the report, but partly upon my own judgment about Mr. Murphy. * * * Q. State whether or not, independent of the Bonaparte report, Mr. Murphy’s work as Creek Nation attorney was satisfactory to you as Principal Chief or to the Nation? A. Not entirely satisfactory, but I would not have dismissed him. We would have got along. That,report was what I did it on. Q. What did you consider the effect of that report to b'e — what would it result in? A. It would make everybody think that I was very deficient in judgment, and that he was unbelievable and unreliable as to statement. It went to commend his zeal and to excuse it on that ground but had the effect to discredit him with the people,' discredit him with the public. I wanted a man that could be credited and could be relied on. * * * Q. Did the plaintiff in this case comply with those terms (meaning the terms of the contract)? A. Not entirely. Q. State which one of those he did not comply with. A. I don’t know as l could go into particulars right here. I would have to look up those things. You complied with them as far as I asked you, and sometimes went beyond my requesting you. * * Q. And the reasons for the dismissal of the plaintiff, are those as contained in these notices? A. Those contained in that letter. Q. The two are just alike? A. Yes, sir. Q. That is the reason for the dismissal? A. Yes, sir; there may have been other things, these little disagreements, that may have influenced me. That-would make me feel inclined to do it, but that was the thing upon which I based my act 1 suppose.” From this evidence and the effect of other evidence on the part of appellant Porter, in the records, the discharge of appellee from his employment under the contract was not on account of failure on the part of appellee to comply with his contract, but because of a report of agents of the government expressing the opinion that the usefulness of appellee as a public officer was impaired. We do not think a report of this kind is a sufficient legal cause for cancellation of a contract of employment. The cause for such cancellation should be for some act of the party himself, either in derogation of his duties under the contract, or because of something outside of the contract but by himself, either in violation of its terms or which in some way affects his performance of the conditions of the contract. To hold that good cause, because persons not connected with the contract and not responsible under it in any way should express an adverse opinion upon the character of one of the contracting parties is sufficient ground for cancellation of the contract, is in.effect to say that it is useless to make a contract, because any one on the outside could just as well express an ’adverse opinion against one of the contracting parties as a government official.

Again, this attempted cancellation of this contract was the act of appellant Porter, and without any opportunity of hearing given to the appellee, and if we were, in this case, to-consider the appellants’ contention truq — that the appointment of appellee as attorney for the nation was in the nature of an office — although afterwards the cancellation of this contract was approved by the honorable Secretary of the Interior, it was not clone upon his request after any hearing, nor was it done on the request of the people of the Creek Nation or its representatives after any hearing, but was the voluntary act of appellant Porter as Chief of ¿the Creek Nation It is held, “where the appointment or election is made for a definite term or during good behavior and the removal is to be for cause it is now clearly established by the great weight of authority that the power of removal cannot, except by clear statutory authority, be exercised without notice for hearing, but that the existence of the cause for which the power is to be exercised must first be determined after notice has been given to the officer of the charges made against him, and he has been given an opportunity to be heard in his defense.” Mechem, Public Offices & Officers, § 454, and cases cited; 23 Am. & Eng. Enc. of Law (2d Ed.) 438, and cases cited. State ex rel. vs Brown, 57 Mo. App. 199; State vs St. Louis, 90 Mo. 19, 1 S. W. 757; Lynch vs Chase, 55 Kan. 367, 40 Pac. 666; Lease vs Freeborn, 52 Kan. 750, 35 Pac. 817; Jacques vs Litle, 51 Kan. 300, 33 Pac. 106, 20 L. R. A. 304; Carter vs Durango, 16 Colo. 534, 27 Pac. 1057, 25 Am. St. Rep. 294; Gillett vs People, 13 Colo. App. 553, 59 Pac. 72; State vs Walbridge, 119 Mo. 383, 24 S. , 41 Am. St. Rep. 663; 3 Clark & Marshall, Private Corporations, § 666 and citations. All of these cases apply to a public officer in -which nearly all, if not all, the public has an interest, but not dealing with an employe such as is an attorney under contract. The only cause for removal would be a violation of the contract of employment or incompetency, neither of which causes appear to have caused the order of removal in this case. We do not think that there is sufficient legal cause shown for the cancellation of this contract on the part of appellant Porter. So far as we can see, the Nation was not a necessary party to the termination of this suit, nor was appellant Mott a necessary party to this suit further than preventing his receiving that which had been set aside for the purpose of the payment of the appellee u der his contract.

The court below had the right, and it was its duty, to make the injunction order and its various modifications, and, under the stipulation filed by the parties, it had the right to make and enter its judgment concerning the disposition of the funds involved in the controversy, and this court, finding no error in the record, affirms the decision of the court below.

Clayton and Townsend, JJ., concur.