The Birmingham age-herald., 1914-05-20
S40,OOO PAID OUT BYSTATE ILLEGALLY
 FOR COUNSEL FEES
Supreme Court Renders De- cisi0n In Case of Troy Against State Au-
 ditOr Smith

1 Montgomery. May 9.-(Special )-Ap-
 proximately s40.000 has been paid out illegally by the state in special counsel
 fees during the past three years. &C.,
 cording to a decision of the supreme
 court today in the case of the state
 ex rel. Daniel w. Troy against C. B.
 smith, appeal from the city court of
 Montgomery.
 | The litigation in the case grew out
 of the refusal of Auditor Brooks Smith in October, last, to draw his warrant on the state treasurer for SIPS in favor
 of Special Counsel Troy. who had been | employed by the governor to collect penalties from foreign corporations which were not complying with the state laws. Auditor Smith, upon the 1 advice of Attorney General Robert c. Briclxell, refused to draw the warrant, Ialthough the voucher had been approved by the governor. on the ground that
 the act under which MT. Troy was en-
 ployed was violative of the constitu- tion..
 The section in question was an amend :
 ment to section 561 of the code. ap- proved by the legislature of 1911. which gave the governor the authority to em- ploy whenever in his judgment it is expedient or necessary an attorney or
 attorneys to aid him in his official ca pac1ty However, the caption or title to the bill does not set out the sub stance of the amended section, and for this reason the court held that it was violative of section 45 of the consti- tuition.
 Following Auditor Smiths refusal to draw his warrant for the special at torney's fee in question, MT. Troy i'm mediately applied to Judge Gaston Gunter of the city court of Montgom- cry for a writ of mandamus to require the state auditor to issue the warrant The court held for the state, thereby denying the mandamus.
 The case was then taken to the su- preme court, and that tribunal today sustained the lower court, holding that the act under which the special counsel had been employed was violative of the constitution in not setting out in it's title the substance of the bill. The opinion In the case was written by As sociate Justice Lucien D. Gardner
 The effect of the courts decision will oe d lar IedcHlHg one, 1naSmuch IS practically every special counsel em- ployed by the governor prior to the bringing of the litigation in this par ticular case was paid under that sec ton which the court today held to be invalid. During his employment Mir Troy had received about $20,0OO in fees. and had turned into the treasury in penalties collected from foreign cor porations about $60,000. He was en- gagged to act as special counsel for the state December 27, 1911, and his em- ployment under the section now held to been valid was upon the recommen- dation of the attorney general His
 fee was set at 25 per cent of the money collected. In addition to the fees paid Mir Troy. something like s20,000 has been paid out in fees to other special counsel em- ployed by the governor.
 Whether or not the state will bring suit against Mir. Troy and other special counsel for the recovery of the money paid to them could not be ascertained. but it is regarded as doubtful. It is be asked to further amend the section so as to make it comply with consti- tutional requirements.
 The state owes MT. Troy about s20OO for services performed since the liti- gation began. and it Is regarded as likely that the legisla ture will reim- purse him when 1t meets, as we'll as other special counsel whose fees have been held up pending the decision of the case.