Sholes v. State

2 Chand. 182 | Wis. | 1850

Larrabee, J.

This is the first suit brought under the statute, passed in obedience to the mandate of the constitution, authorizing actions at law against the state.

The petition states that the plaintiff was appointed and employed by the commissioners to publish, in a volume, the revised statutes of the state; and that, in pursuance of the law, Rev. Stat. 740, he delivered to the governor, under his contract, four thousand copies, worth |2.28 per volume, amounting in the whole to the sum of $9,120; that the legislature subsequently appropriated to him the sum of $6,120, and refused to allow Mm the balance of his claim, amounting to $8,000, and for which balance this suit is brought.

A stipulation between the attorney for the plaintiff and the attorney-general on behalf of the state has been filed, by wMch it is agreed that the governor subscribed, in the executive records of his office, for four thousand volumes, at the price of $1.53 per volume; that this sum per volume, amounting in the whole to $6,120, was appropriated by the legislature in payment, as the state claims, and in part payment, as the plaintiff claims, for the books, and wMch sum the plaintiff received from the state treasurer; that the volumes were delivered according to the contract and placed in the state library, and a portion of them subsequently distributed throughout the state; that it is not known to the state or any of its officers whether the plaintiff knew of the fact of the governor’s subscription, nor is it known under what motives the plaintiff did the particular acts set forth in the petition; that the books were reasonably worth the sum of $2.28 per volume.

This is the case, and simple as it seems to be, it has given rise on the' argument, to the gravest constitutional and legal questions. On the part of the plaintiff, it is claimed that the admission by the attorney-general, that the books were worth more than was paid for them, is conclusive upon the state, and that the provision of the constitution that private property shall not be taken for public purposes without just compensation, entitles Mm to demand at our hands a judgment for the full value of his books. On the .other hand, it is insisted by the attorney-general, that the law authorizing the employment or appointment of the plaintiff to do this work, is in direct violation of the constitutional provision reqmring all printing authorized or required by the legislature for its own use or for the use of the state, to be let by contract to the lowest bidder, and that, therefore, the law was absolutely void, and that the plaintiff did not and could not acquire any legal rights whatever under it. It is further contended by the attorney-general, that the price, not exceeding a specified maximum, was left entirely to the judgment of the governor, and he having once fixed it by his subscription, and the books having been delivered under that subscription, the executive action is conclusive, both upon this court and the legislature. That though the copies furnished the state were each actually worth more than the price fixed by the governor, and allowed by the legislature, yet the plaintiff was fully indemnified by the monopoly which he enjoyed from the publication, and the profits which he made on his general sale; and that whether this be so or not, the plaintiff, having elected to accept the legislative appropriation which was in its terms in full of Iris demand, Session Laws 1850, p. 112, he is estop-ped from now setting up a claim for what really might be an equitable compensation.

I shall consider these arguments in the order in which they have been stated.

The plaintiff claims that he is entitled to maintain this action because his books were worth more than he has received for them, and that private property cannot be thus taken for public use without just compensation. A very reasonable proposition, and one, which standing by itself, and unaccompanied with the facts in this case, would probably not be disputed by the attorney-general, nor indeed, by any one. But what are the facts ? The plaintiff agrees by his delivery of the books under the subscription of the governor, to furnish them at a certain price, and which price he has already been paid. Now, can it be said that this is a taking of private property for public use, which entitles the owner to a quantum valebat ? Does the state, in purchasing property of one of its citizens, or accepting his services under a contract, though it should turn out that that property or those services were worth more than the stipulated price, become liable for all time thereafter to an action to recover whatever that property or those services may be proved to be worth ? Such a doctrine cannot be .entertained for a moment. The idea is certainly an oiiginal one, and could not have occurred either to the barons at Runymede, or the framers of our constitution. A contract is a contract, whether made between individuals or between states, or between a state and an individual, and all parties competent to contract are bound by it. The provision in regard to talcing private property for public purposes, was intended to indemnify the individual against the acts of the state in its sovereign political capacity, and had no reference to mere ordinary contracts between the state and one of its citizens.

This is the argument offered to sustain the claim of the plaintiff. It was, however, further contended, that the law itself fixed the price at which the state was to receive these books. But it is impossible to give it this construction, unless we reject entirely that part of the law authorizing the governor to subscribe at a price not exceeding a certain amount. The law certainly implies a discretion, or it is utterly without meaning. The governor was made the agent of both parties, to subscribe for at a price not exceeding a specified maximum, and accept the books when completed according to the conditions of the contract, and it cannot now be urged that the plaintiff was ignorant of the price fixed by that subscription, for it was his right to have ascertained it, and the duly of no one to have informed him of it. He entered into the contract with his eyes open, and knew, or ought to have known that this discretion was placed iu the hands of the governor. If he feared an illiberal or unjust decision, he should not have entered into the contract.

This, I believe, disposes of the whole of the argument of the plaintiff’s counsel, and presents a case, which had it arisen between individuals, would never have reached the dignity of contested argument, but would have been decided as soon as stated.

In the view already taken of the case, it is not necessary to examine the grounds of defense urged by the attorney-general, but as the matter was elaborately argued, and involves a constitutional question, it may as well be disposed of now.

It is said that the law under which these books were published, is in violation of section 25, article 4 of the constitution. This provision, considered alone, includes all mere mechanical printing required for the use of the state in all its departments. It is intended, in this regard, to remove from the officers of government the opportunity or incentive to traffic in official power, and to confine their action within the simple sphere of legitimate official duty. It, perhaps, would have been well if the revised statutes could have been published under the advantages of the competition provided by the constitution for the ordinary printing of the state, for political morals would not have received the shock, nor the state have suffered the reproach which has been more than probably, unjustly, the result of the law under which they were published. The charge of fraudulent legislation in the inception of the law, which has been assigned by the attorney-general as a reason for the executive action, can have no weight as an argument with this court. It might, if substantiated, have been a legitimate consideration for the executive or the legislative branch of the government, in the exercise of the discretion given by the contract itself to the former, and in the measure of compensation accorded by the latter; but here it is entirely out of place.

Section 21, article 7 of the constitution, directs that the legislature shall provide for the speedy publication of all statute laws, and of such judicial decisions as may be deemed expedient.

This provision we do not regard as dependent upon or necessarily connected with the provision in relation to printing. While it is true that the employment of the art' of printing is the best means of publication, still publication cannot be confined to the limited signification of mere printing, but comprehends the exercise of additional labor and skill. This provision implies a discretion to be exercised in the method of publication ; for instance, — that the general laws which cannot be in force until published, shall be published in the public journals, that being the most speedy method ; or in pamphlet form, that being more convenient for many purposes; or even by proclamation at the door of the court house in each county, and that the whole body of the laws and the decisions of the supreme 00111!; shall be published in the more permanent form of a bound book. All these would be different forms of publication, and all would answer the constitutional requirement; and it is obvious enough that in many instances the object could not be accomplished under a contract for mere mechanical printing.

But it is said, that the legislature having made an appropriation which in its terms was to be in full for these books, and the plaintiff having accepted and drawn from the state treasury the amount of that appropriation, he is estopped, as it were, from setting up this claim.

To this argument of the attorney-general, I have heard no answer ; nor is it perceived how any can be given. As between man and man, it admits of no question ; and I cannot conceive that the circumstance of one of the parties being a state, can affect the matter in the slightest degree. An individual contracts with his state, not as his sovereign, but as he would with any other municipal power, or with an individual; and having, with a full knowledge of the facts, received compensation in full, it is impossible that such a case constitutes an exception to the general rule, by which a party is concluded by his acceptance in full, where there is no pretense of fraud or mistake. Such were the terms upon which the appropriation was made, and such the terms upon which the money was drawn from the treasury. There could be no mental or other reservation, on the part of the plaintiff, which could in any way bind the state.

We are, therefore, all of opinion, upon the whole-case, that the plaintiff' has failed to substantiate his claim against the state, and judgment must be rendered accordingly.

Judgment against the plaintiff for costs.