People ex rel. Gere v. Weston

| Neb. | Jan 15, 1874

Gantt, J.

The relators, in substance, say that in December, 1872, they entered into a contract with the proper officers of the state to do the state printing; that a part of the work was the printing of five thousand volumes of the General Statutes, and that by an act approved February 27, 1873, as this work progressed, the secretary of state certified to tbe auditor of state an estimate of the value of the work accomplished) and the latter issued warrants to them for seventy-five per cent, of the value thereof; but that on the twenty-second day of September, 1873, the secretary made an estimate of work finished up to that time, in addition to all previous estimates and certified the same to the auditor, and that they demanded the issuance of a warrant for seventy-five per cent, of the amount thereof, but that the auditor refused to issue such warrant, on the ground that in his opinion such estimate, added to those already made for which warrants had been issued, exceeded the amount of the contract price for publishing such General Statutes; and they prayed that a mandamus issue against the auditor, etc. An alternative mandamus was allowed.

The answer of the defendant is very long, and among other allegations, he avers that the auditing and settlement of the accounts for the publication of the General Statutes, was to be made by a board consisting of the state treasurer, the secretary of state, and state auditor; that the secretary of state pursued a mode of computation utterly at variance with the correct and just mode of computation, and the mode adopted by the board, and that the effect of his mode of computation was to double the quantity of paper, making each ream of paper, weighing sixty pounds, to consist of forty quires of one and one-half pounds per quire, and that by such estimates he certified to the auditor the work done on the publication of the General Statutes. And again, that the estimates made by the secretary were greatly in excess of the full contract price of the printing of the General Statutes, and that the secretary of state, and the relators, well knew that the amount already certified was the full contract price of said work and more. And again, that the certificate of work done by the relators, was made by the secretary of the state through sheer indifference and reckless disrega/t'd of the ptobUc interests, or utter imbecility of judgment or was by him made fraudulently and corruptly colluding and conniving with the relators, with a view to, a/nd for the collusi/oe, corrupt, a/nd fraudulent purpose of obtaining warrants i/n excess of the amount to which the sold relators would be fully entitled for the publication of said General Statutes. And again, that the estimates of the value of work, certified by the secretary, were manifestly erroneous and exaggerated estimates of work accomplished on the publication of the Statutes.

To this answer the plaintiffs interposed a general demurrer; and upon a hearing thereof, before Mr. Chief Justice Lake sitting in the district court for Lancaster county, the demurrer was overruled, and plaintiffs standing on their demurrer the cause was dismissed at their costs.

The plaintiffs now complain that the district court erred:

1. In overruling the demurrer to defendants answer. 2. In ruling that the facts set up in said answer and return constitute a defense to the writ of relators. 3. In giving judgment for the defendant and not for the plaintiffs.

The demurrer admits the truth of all facts alleged in the answer, which are material to the case. The demurrer, therefore, admits as facts, that the estimates made by John J. Gosper, Secretary of State, of the value of the work as it progressed, was manifestly erroneous, exaggerated, and greatly in excess of the full contract price of the entire work to be performed, and the secretary of state and relators well knew this fact; that the certificate was made by the secretary through a reckless disregard for the public interests, or utter imbecility of judgment, or fraudulently and corruptly by collusion with the relators with a view to obtain warrants in excess of the amount to which the relators were entitled, for the publication of the Statutes.

These allegations, as well as many others set forth in the answer, are material to the case, and if they are true they show a gross violation of duty on the part of the certifying officer. And again, if these facts be true, and under the pleadings they must be taken as true by the court, they constitute a full and complete defense to the writ, and application of the relators, for besides the allegations of fraud and collusion, they show clearly that not only estimates in excess of seventy-five per cent, of the whole contract price, has already been certified to the auditor, but that the estimates already made exceed the full contract price of the work performed.

To draw warrants for an amount exceeding seventy-five per cent, of the work accomplished, is a direct violation of the law, and a fraud upon the state; and surely, it will not be seriously contended that the court, by its process, shall be made the instrument of consummating such a fraud upon the paying party. It must be underr stood that a party who stands upon his general demurrer to a pleading, thereby admitting the material facts to which he demurs, must take all the consequences which necessarily result from his admissions. This is a principle of law in respect to pleading which is too long, and well settled, to require authority in support of it.

But it is contended on the part of the relators, that by section three of the act of February 27, 1873, entitled “ an act making appropriations for the current expenses of the years 1873 and 1874,” all prior acts relating to filing, auditing, and payment of accounts for public printing, were repealed by implication, in respect to the printing and payment of the General Statutes; and as a construction of this section was earnestly pressed upon the court, I will now examine the question.

This section appropriates a sum sufficient to defray the expense of printing and binding tbe General Statutes “in accordance with tbe terms and provisions of an act55 providing for tbe 'publication of tbe General Statutes, approved February 18, 1873. Tbis language seems not only to indicate clearly tbe intent of tbe legislature, but expressly declares that tbe expenses must be paid “in aeeordcmee with the terms and provisions ” of tbe former act.

Tbe act of February 18, 1873, to wbicb reference is made in tbe act under consideration, provides that tbe contractors for public printing shall print and deliver to tbe secretary of state five thousand volumes of said General Statutes, “ and tbe accounts therefor shall he audited and paid as provided by law for the payment of state printing? General Statutes, 1084, Sec. 6.

Now tbe law here referred to, providing for state printing, is tbe act of June 18, 1867. General Statutes, 515. Section eighteen of that act provides tbe time when, and tbe manner in wbicb tbe state printer shall file bis accounts; and section twenty declares that tbe secretary of state, auditor and treasurer, shall audit and examine such accounts, and provides specially bow such examination of accounts shall be made. Tbis is tbe only act in force, wbicb confers all tbe necessary powers and defines tbe duties of an auditing board of tbe accounts for state printing.

These several acts must be taken as statutes in pam, materia, and construed together as one law. Tbis is a well settled rule of law in respect to statutes relating to tbe same subject matter.

It is, however, contended that tbe latter clause of tbe act of February 27, by implication repeals that of February 18, 1873, and all of tbe act of June 18, 1867, so far as they relate to the auditing and payment of tbe accounts for printing tbe General Statutes.

Tbis clause provides that as tbe work progresses, upon. the application of the contractors, the secretary of state shall certify to the auditor the value of the work accomplished at the time, and that upon such certified estimates the auditor shall issue to the contractor his warrant on the treasurer, “not exceeding seventy-five per cent, of the work so certified, the balance to be paid upon completion of the work.” This clause must be construed in connection with the immediately preceding one, which declares that these expenses must be paid in accordance with “ the terms and provisions ” of the act of February, 1873, and hence, the “ accounts shall be audited and paid as provided by law for the payment of state printing.”

In this view of the section, it is, I think, plainly discovered that it was the intention of the legislature to simply allow the contractors partial payments as the work progressed, and that upon the certified estimates of this work by the secretary of state, the auditor should not draw his warrant on the treasurer to exceed seventy-five per cent, of the amount of such estimates.

In the case of the Town of Ottawa v. La Salle, 12 Ill., 341, it is said that “it is a maxim in the construction of statutes that the law does not favor a repeal by implication. The earliest statute continues in force unless the two are clearly inconsistent with, and repugnant to each other, or unless in the latest statute some express notice is taken of the former, plainly indicating an intention to repeal it. And when two acts are simply repugnant, they should, if possible, be so construed, that the latter may not operate as a repeal of the former by implication.” Dwarris on Statutes, 674. Bac. Abr. Tit. Stat. D. Bowen v. Lease, 5 Hill, 221. Planters' Bank v. The State of Mississippi, 6 Smed & M., 628. Hirn v. The State of Ohio, 1 Ohio State, 21.

And again it is a rule of interpretation of statutes, that the law is the best expositor of itself, that every part of it is to be taken into view for the purpose of discovering the mind of the law giver, that the details of one part may contain regulations and subject matter, restricting the intent of general expressions or words in another part of the same law, and hence, that every part of the law is to be considered, and the legislative intent is to be extracted from the whole of it.

Now in construing these several acts together as statutes in pari materia, by the test of these rules of interpretation, we think they may stand together as one complete, harmonious system — one consistent law, and this construction certainly gives effect to the manifest intention of the legislature. The act of February 27, allows partial payments to the contractor as the work progresses, but provides that the expense of printing and binding shall be defrayed “ in accordance with the terms and provisions ” of the act of February 18, 1873, which provides that the accounts for printing and binding shall be audited and paid, as provided by law for the payment of state printing, and the act of June 18, 1867, is,the only general law providing for such payment.

"We are of the opinion that the demurrer was properly overruled, and that in the finding and judgment of the district court, in favor of the defendant, there is no error, and its judgment must be affirmed.

Judgment aeeiemed.

Mr. Justice Maxwell concurs.