Carpenter v. State

| Wis. | Jan 15, 1876

JEJyaw, O. J.

Sec. 25, art. IY of the constitution, declares that the legislature shall provide by law that all stationery and printing for the state shall be let by contract to the lowest bidder. And sec. 26 declares that the legislature shall never grant any extra compensation to any public contractor after the contract shall be entered into.

Oh. 114 of 1858 was passed under the former section of the constitution, and provides for letting certain stationery and 'printing by contract to tbe lowest bidder, and for tbe payment of tbe contractor accordingly.

¡Under this statute it appears tbat tbe plaintiff’s assignor was tbe lowest bidder at tbe letting of 1858, and thereupon became contractor for two years for stationery and printing for tbe state at tbe stipulated prices of bis bid, and tbat tbe plaintiff, as bis assignee, performed tbe contract.

It appears tbat difficulties arose between the plaintiff and tbe state officers in relation to tbe plaintiff’s compensation udder tbe contract; tbat in 1860, pending tbe contract, tbe secretary of state, with tbe plaintiff’s assent, caused experts to ascertain and report to bis office rates of compensation for much of tbe wort and material under tbe contract, at their actual value, without .reference to tbe prices of tbe contract; tbat tbe secretary and tbe plaintiff agreed tbat all work and materials under tbe contract should be paid for qua/nMtm val-ebcmt; tbat a settlement was made between them for all tbe plaintiff’s work and materials under the contract, and tbat tbe plaintiff was paid according to tbe settlement; tbat subsequently, upon tbe plaintiff’s application, tbe legislature appropriated (ch. 293 of 1863), and tbe plaintiff accepted, a further sum certain in full for, and thereupon released tbe state from, all claim under tbe contract; but tbat tbe plaintiff, not satisfied with any settlement, applied to tbe legislature, in 1874, for an account of and settlement for all work done and material furnished under tbe contract.

Thereupon tbe legislature’ passed cb. 323 of 1874. Tbis statute recites tbe facts in a preamble, and provides tbat, for tbe purpose of equitably settling tbe plaintiff’s claims, tbe commissioners of printing shall aj>point an expert t.o compute tbe actual amount of work done and material furnished under tbe contract; tbat thereupon tbe commissioners shall compute tbe same at tbe quantv/m wleba/nt rates reported in 1860 to tbe secretary of state, as far as those rates apply, and tbe residue at just and equitable rates to be ascertained by tbe commissioners; deduct all payments made on the contract, and report the balance, if any, due to the plaintiff on such computation, to the next legislature, “ without regard to the terms or rates of bid on which the said contract was awarded; it being’ the intention of this act to ascertain the true and exact amount of labor performed and materials furnished under said contract, and to secure to the assignee of said contract just and equitable rates for each and every item of labor or materials,' according to the regular established usages of the trade, as proposed by the secretary in 1860.” The report of the commissioners is subsequently called an award, both in the statute itself and in the amendment, ch. 269 of 1875.

The commissioners of printing accordingly made the computation, and reported to the legislature of 1875 a large balance due to the plaintiff. The legislature made no provision for its payment. And this action is brought upon the report of the commissioners, as an award.

The plaintiff’s counsel takes the position that the statute of 1874 submits the controversy to arbitration, and makes the report binding as an award upon the state. In our view, it is immaterial whether this is the true construction of the statute, or whether the legislature has power to make such a submission. Doubt of such a power is suggested in State ex rel. Martin v. Secretary of State, 38 Wis., 92" court="Wis." date_filed="1875-08-15" href="https://app.midpage.ai/document/state-ex-rel-martin-v-doyle-6601822?utm_source=webapp" opinion_id="6601822">38 Wis., 92, not there or here necessary to determine.

For, in any construction of the statute before us, it assumes to compensate the plaintiff for all work and material under his contract, not at the prices of the contract itself, but at prices ascertained dehors the contract and by a rule wholly independent of the contract.

Such compensation of a public contractor is prohibited by the constitution. Whether the prices of the contract were high or low, reasonable or unreasonable, the plaintiff has or had a right to recover them against the state; and neither secretary nor legislature could 'abridge that right. But he had and has no right to recover for his work and material at different prices, and neither secretary nor legislature could or ean, by any agreement or legislation, give him such a right. The exact measure of his right is determined absolutely by his contract, under the constitution; and there exists nowhere a discretion to vary it.

It was contended that the phrase, exta, compensation, in the constitution, means additional compensation; that is, compensation added to or greater than that fixed by the contract. And it was urged that we could not hold the compensation of the statute to be within the prohibition, unless it should appear that the qucmtum mermt upon which it proceeds, would come to more in the aggregate than the contract prices. The same might be as well said of any statute releasing any contractor from the prices of his pending contract and substituting a quantum mermt or a gross sum for his entire compensation. Such a construction would go far towards surrendering the substantial prohibition for an uncertain shadow. And it seems to involve an absurdity in making the question of construction wait upon an issue of fact. Even in that crippled sense of the prohibition, it strikes us that perhaps it should affirmatively appear in such a statute that it is not an evasion of the prohibition; the presumption otherwise being against any departure from the contract prices. But we do not perceive how even such a construction would aid a statute applying a qucmtum meruit to a contract which the constitution directs to be made only with the lowest bidder, and providing for payment qucmtum valebant of services which the constitution appears to prohibit from being so paid.

But we hold that the word, extra, as used in the constitution, has a much more comprehensive meaning. It is true that the prohibition is to grant; and the latter word seems to favor the narrower construction. Apparently, the apprehension of additional compensation was a primary motive of the prohibition; but as apparently not the sole motive, or some' sucb word as additional would have been used. Grant, in sucb use, is altogether too loose and comprehensive a word to operate as a limitation of another. The second clause of the section prohibits the increasing or diminishing of the compensation of officers during their terms of office. The policy of the section as to officers and contractors seems to have been the same; to limit both to the very compensation at which they are employed, and to put that compensation beyond legislative interference. Therefore, as it appears to us, was the word, extra, chosen.

The word is Latin, signifying without, or outside of. In its simple form, it has been but lately admitted into English dictionaries; but its compound use is ancient. Extraordinary gives a familiar instance of its use; signifying outside of the ordinary, not greater or less; for a thing maybe extraordinary for greatness, or for littleness, or for neither. So it is of extra compensation, which is also properly a compound phrase. Extra compensation is such, not merely for being greater or less than the contract, 'but properly because it is outside of the contract. A public contractor might doubtless agree to reduce the compensation of his contract; and the legislature could act on such voluntary reduction. But surely a statute, passed in wwitum, expressly lessening the compensation fixed by a public contract, would be as plainly within the section as a statute so passed expressly lessening the compensation of a public officer during his term of office. In this sense, the word of the constitution is of old and familiar use in legal terms: extra judicial, extra territorial, extra parochial, extra dotal, extra feodum, ext/i'a mam, eiotra gruatuor maria. And we believe that this word is used in this sense, in preference to others, in the prohibition, for the very purpose of effectually preventing all legislative tampering with the fixed prices of public contracts.

Legislative history points and sanctions the policy of the constitution. It indicates the purpose of the section to sore tbe legislature from tbe importunity of public contractors and servants, and tbe treasury from tbe discretion of tbe' legislature in their favor; to limit contractors with tbe state, beyond pretense and device, to tbe precise compensation fixed by their contracts. Tinder this salutary restraint, no misfortune or rapacity can ever avail in a court of justice, by any artifice or circuity, to change tbe rule of recovery on a contract with tbe state. "Where there is no fraud or mistake which would authorize a court to avoid or reform any contract, tbe contract itself must govern. If tbe compensation be too high, tbe state must bear tbe loss; if too low, tbe contractor must suffer it. Tbe constitution leaves no room to legislature or court for equitable considerations of qucmtvm meruit. We cannot say that tbe statute before us is not equitable; but we do bold that it is not constitutional.

And tbe award of tbe commissioners, if award it be, founded on qucmtvm memdt, without regard to the terms or rates of bid on which tbe contract was awarded, is absolutely void, and cannot sustain an action.

It was indeed contended by tbe plaintiff’s counsel, that tbe complaint might be taken as proceeding on tbe contract. It does not state tbe coxftract prices, or go at all upon them. It goes expressly for a qucmtvm memdt, under tbe statute. And it is immaterial to our view whether it be on tbe contract or on tbe award.

We cannot properly decide on this demurrer whether tbe plaintiff may not have some good cause of action under tbe last clause of tbe first section of tbe amendment of 1875. We therefore sustain tbe demurrer of tbe attorney general, with leave to tbe plaintiff to amend bis complaint.

By the Court. — So ordered.