2 Mont. 593 | Mont. | 1877
This is an appeal by the Territorial auditor from the judgment of the court below, granting the application of the respondents for a peremptory writ of mandate, and commanding him to issue a warrant upon the Territorial treasurer for the amount of their account for printing a pamphlet containing a list of brands and marks. The facts stated in the application are not denied in the answer of the appellant. It appears that the general or Territorial recorder of the brands and marks entered into a contract in September, 1875, with the respondents, by which they printed 175 copies of the pamphlet and delivered the same to the proper officer, and that these services were reasonably worth $225. The respondents demanded of the appellant a warrant on the Territorial treasurer for this sum, March 6, 1876, when their claim for these services were delivered to him. The appellant refused to issue any warrant and alleges in his answer the following reasons therefor: That the law does not fix any certain amount for the payment of respondents, and that the Territorial auditor
We must examine tbe following statute: “Tbe general recorder of marks and brands shall once a year bave published a list of all brands, or marks and brands, which bave not been previously published, and cause to be printed, at the public expense, a sufficient number of copies, in pamphlet or other convenient form, to furnish each county ‘clerk in tbe Territory with twenty-five copies thereof, for gratuitous distribution.” Cod. Sts. 564, § 5. Tbe term “ public ” is applied strictly to that which concerns all tbe citizens and'every member of tbe State; 1 G-reenl. Ev., § 128. It refers to “ tbe whole body politic.” 2 Bouv. L. D., tit. “Public.” Tbe intention of tbe legislative assembly respecting certain accounts is declared in plain language. When tbe Territory is not required to pay tbe same, we find in tbe laws tbe following clauses: “ At tbe expense of tbe county.” Cod. Sts. 438, § 27; 501, § 1. “ At (tbe) expense of tbe Federal government.” Cod. Sts. 652. “At bis own expense. Cod. Sts. 553, §8. Tbe clause, “at tbe public expense,” bas tbe same legal effect as tbe words “ at the expense of tbe Territory” in the statute providing that tbe office of tbe Territorial treasurer shall be furnished with certain articles, and that providing that tbe reporter shall print and bind certain reports. Cod. Sts. 384, § 16; 637, § 3. The legislative assembly designates tbe printing required by the Territorial auditor and treasurer for their respective offices, “publicprinting,” and provides for its payment by tbe Territory. Cod. Sts., cb. 51. Tbe word “ Territorial ” is used as a synonym for “ public ” in tbe following section of tbe act concerning “ common schools“ All printing or binding required under this act shall be executed in tbe form and manner and at tbe prices of other Territorial printing, and shall be paid for in like manner, out of tbe general fund of tbe Territory.” Cod. Sts. 634,§ 62. Tbe word “public” bas tbe same meaning as “ Territorial ” in tbe section which authorizes the Territorial auditor to prosecute “delinquent collectors of tbe Territorial revenue” and “persons being in possession of tbe public funds, money or property;” Cod. Sts. 381, § 4; and in that which
The act “ in relation to brands and marks” (Cod. Sts., ch. 64), creates a Territorial office and affects the whole Territory, and the pamphlet referred to has been printed and published for the benefit of the body politic. Therefore, the law provides that what is done for the welfare of all the people shall be paid for by the public or Territorial treasury. The legislative assembly has acted upon a rightful subject of legislation and “expressly” authorized a claim against the Territory. What is the power of the general recorder ? In Randall v. Yuba Co., 14 Cal. 219, the supervisors of the county contracted with one party to print the delinquent tax list, and the tax collector, an officer of the county, contracted with another party to do the same work. The statutes of California required the tax collector to complete and publish this list, and collect in addition to the taxes certain sums which are to be paid to the county, “ for the cost it may incur for printing the list.” The court held that the collector was authorized to make the contract for this printing, and that the county was bound by the reasonable exercise of his agency and must pay the price agreed upon. This case was affirmed in Keller v. Hyde, 20 Cal. 593. The court held that the county treasurer could not pay a warrant which had been allowed by the supervisors on a demand for printing the delinquent tax list, under a contract made by the supervisors. Other authorities support the proposition that an officer, who is empowered to publish this list, can make contracts for the performance of the work with any party and fix the price of the same, which must be paid by the county. Commissioners v. Kierolf, 14 Ind. 284; Beal v. Supervisors, 13 Wis. 500. We are satisfied that the general recorder of marks and brands has been authorized by . the statute, supra, to do any act necessary to secure the printing of said list of brands and marks at the Territorial expense. He can also fix the price thereof, and his action cannot be controlled by the Territorial auditor, or any other officer. There is no controversy relating to the conduct of the general recorder in making the contract with the respondents, and the Territory is bound by the reasonable exercise of his authority therein. The amount claimed by the respondents is not in
What was the remedy of the respondents ? They cannot enforce their claim by an action against the Territory. This doctrine was announced in Langford v. King, 1 Mon. 38, and Mr. Justice KNowles said: “We hold, therefore, that unless permitted by some law of this Territory, or of the general government, no citizen of this Territory can sue it. There is no law of this Territory or act of congress permitting it. There is, then, no legal power to enforce Territorial contracts. In other words, there is no obligation to Territorial contracts. They rest simply upon the good faith of the Territory.” In Board of Liquidation v. McComb, 92 S. C. 541, the court says: “ A State, without its consent, cannot be sued by an individual.”
What was the duty .of the appellant under the facts which have been specified ? The Territorial auditor “shall audit all claims against the treasury,” and make to the legislative assembly “ a full detailed statement of all expenditures, claims and demands by him audited and allowed,” and “ give separately the items and claims of each and all persons in whose favor he has audited any demand, and under what law allowed, and the date of the allowance.” Cod. Sts. 381, § 5; 382, § 8. ITe “ shall issue no warrants drawn upon the Territorial treasurer in favor of any person, without express authority of law.” Cod. Sts. 381, § 1. He shall issue such warrants “ in favor of all persons to whom the legislative assembly of the Territory may direct,” and “ shall be deemed guilty of a misdemeanor,” if he issues a warrant contrary to law. Cod. Sts. 477, § 1; 478, §§ 9,10.
We are called upon to define the duty of the appellant under the statutes and pleadings. The answer alleges that the appellant has no jurisdiction to determine the amount to which the respondents are entitled. In other words, he asserts that he has no discretion to exercise in ascertaining this amount. This position was not controverted in the court below and the parties and court assumed that it was sound. But the appellant’s brief contains authorities which are cited to maintain the proposition that the appellant was empowered to use his discretion in auditing and allowing the claim of the respondents, and that the court could not
Another ground of defense is that the statute does not fix the amount which the respondents should receive for their services. There is no foundation to this suggestion. There is no law of the Territory which restricts the right of the auditor to issue warrants for sums that have been specified in the statutes. We might overrule the objection by saying that the amount of the respondents’ account is not disputed, and hence it is immaterial. We have also seen that the general recorder of marks and brands has been clothed with ample power to determine the compensation for the respondents’ services.
What has been the action of the Territorial auditor in drawing warrants for the payment of claims against the Territory % The practical construction given to an act by the public officers of a State “ is not to be overlooked, and perhaps should be regarded as decisive in a case of doubt or where the error is not plain.” Union I. Co. v. Hoge, 21 How. (U. S.) 66 ; Sedgw. Stat. & Const. Law (2d ed.), 227. The general understanding of a law, and a constant practice under it for a long period by the officers who were authorized to execute it, which have not been questioned by any suit in the courts, ought to be very strong, if not conclusive evidence of its true meaning and application. Scanlan v. Childs, 33 Wis. 663. Where infinite mischief would ensue, if the court, in the construction of a statute, should adopt a different rule from that which has long been established, the construction which would
The appellant contends that he cannot draw a warrant upon the Territorial treasurer unless the law contains the clause, “the auditor is hereby authorized and required to'draw his warrant on the Territorial treasurer in favor of -for-dollars,” or words having the same meaning. This expression does not appear in the statute relating to marks and brands, and it is insisted that the appellant cannot issue a warrant in favor of the respondents, and has no “ express authority of law ” to act in this matter. The practical construction of the statutes by the appellant and his predecessors in office is opposed to this argument, but the appellant has not waived his right to be heard thereon. There is no such clause in the above statutes, which provide for. the supply of certain articles for the offices of the Territorial auditor and treasurer. The authorities which have been referred to are applicable to this proposition of the appellant,' which has never been supported in the courts of this Territory until this action was brought.
The laws which regulate the payment of claims against the Territory are not uniform in their phraseology, but the intention of the legislators is clear and can be executed by the appellant. The section relating to the printing for the superintendent of public instruction, supra, provides that. it shall be paid for, like “ other Territorial printing,” “ out of the general fund of the Territory.” At the time of the passage of this act there were four Territorial officers that required printing to be done for their respective offices, •the auditor, treasurer, recorder of marks and brands, and superintendent of public instruction. We know of no statute which requires any part of this printing to be paid for “out of the general fund of the Territory,” except that which has been mentioned. The contract for the printing, which was authorized by
Certain expenses'of the superintendent of public instruction “ shall be paid out of any fund in the treasury not otherwise ap propriated.” Cod. Sts. 620, § 5 ; Sts. ■ 8th Sess. 117, § 5. The auditor is authorized to issue his warrant for the same. When this section was amended the provision relating to the auditor was omitted. Sts. Ex. Sess. 121, § 5. If we accept the proposition of the appellant these expenses would be a proper charge
How shall we construe these and similar laws ? The legislative assembly has given the rule of interpretation: “All general provisions, terms, phrases, and expressions used in any statute shall be liberally construed in order that the true intent and meaning of the legislative assembly may be fully carried out.” Cod. Sts. 390, § 3. “ The form of the warrants of the auditor drawn on the treasurer for the payment of money shall be * * * out of any money in the treasury not otherwise appropriated.” Cod. Sts.477, §4. What is the “true intent” of the “general provisions ” in the statutes which have been referred to ? The law which prescribes the form of the warrant is directory. Young v. Camden Co., 19 Mo. 309. A warrant for the payment of a certain sum “ out of money in the treasury not otherwise appropriated,” has been held to mean that the payment should be made out of money not appropriated to special purposes. Campbell v. Polk, 3 Iowa, 467. All the warrants, which are drawn by the Territorial auditor, are of this character and must be paid in the order in which they are presented for payment by the Territorial treasurer when there are funds in the treasury for this purpose. Cod. Sts. 383, § 14; 384, § 15. The technical special appropriation of money which has been made by the legislative assembly is that which requires the Territorial treasurer to set aside certain money in the treasury for the payment of interest and as a “ sinking fund.” Cod. Sts. 580, § 11; Sts. 8th Sess. 39, § 1; Sts. 9th Sess. 190, § 7. The remainder of the money in the treasury for Territo rial purposes is generally applicable to the payment of the warrants which have been issued by the auditor. We have observed that the provisions in the acts of the legislative assembly respecting this fund are not uniform, but the intention is clear and the statutes in this respect are directory. The Territorial auditor is the only officer that is authorized to draw a warrant upon the Territorial treasurer in payment of demands against the Territory, and the warrants are payable out of .the same fund. Different words have been used to express only one meaning — the payment by the Territory of claims against it through the proper officers. The general clauses, “ at the expense of the Territory,” “ at the public
The printing in controversy has been executed “ at tbe public expense,” and is a part of tbe “ other Territorial printing, and shall be paid for in like manner, out of tbe general fund of the Territory.” Cod. Sts. 634, § 62. What is tbe “ manner ” of this payment ? “ Tbe Territorial auditor is authorized to draw bis warrant or warrants upon the Territorial treasurer for tbe payment of” tbe chief portion of tbe “other Territorial printing.” Cod. Sts. 537, § 5. Tbe appellant has interpreted similar statutes “ in like manner.” Under what law does tbe appellant draw warrants for bis salary ? “ The Territorial auditor shall receive a salary * * * to be paid in the same manner as tbe treasurer is paid.” Sts. 8th Sess. 80, § 2. Tbe word “ manner ” has tbe same meaning in these statutes. In what “manner” is tbe treasurer paid? “ Tbe Territorial treasurer shall receive a salary * * * which shall be paid quarterly, out of the Territorial treasury, by warrant on the general fund.” Sts. 8th Sess. 79, § 1. Under these provisions, the appellant, without any difficulty, discovers “ express authority of law” for drawing warrants for his salary. We think that the claim of the respondents should be paid in “ the same manner ” as the appellant is paid.
It appears that the account of the respondents has been regularly created by a statute of the Territory; that th'e amount of the same is not disputed; that the appellant has no discretion to exercise in this proceeding; that this account must be paid out of the general fund of the Territory; and that the appellant is the only officer that is authorized to draw a warrant upon this fund. “When a plain official duty, requiring no exercise of discretion, is to be performed, and performance is refused, any person who
Judgment affirmed.
