State ex rel. Carpenter v. Hastings

10 Wis. 518 | Wis. | 1860

By the Court,

Paine, J.

This was an application for a mandamus to compel the treasurer to pay an account for printing which had been audited and allowed by the Secretary of State. The Attorney General, on behalf of the Treasurer, filed a motion to quash the alternative writ, upon the ground that it appears from the relation that the account was not a legal claim against the state.

The facts set forth are that the Bank Comptroller ordered the printing of twenty-five quires of the statement of the condition of the banks for the use of that department; that they were printed accordingly, and the account for them, which is the one in question, was properly audited and presented for payment, and payment refused.

The whole matter turns upon the question whether the Bank Comptroller had lawful authority to order this printing done. In section 12, chap. 6, revised statutes of 1858,95, it is provided that " the printing of the several departments shall he subject to the order of the respective officers thereof/’ and further, “ no order shall be given for any work not absolutely required for the use and convenience of such office, and in quantities within the actual requirements of the department making use of the same.”

It was contended by the counsel for the relator, that the law vests in the officers of the several departments, a discretion to decide what printing shall be ordered for their departments respectively, and that it was an unwarrantable interference with that discretion, for this court to inquire into the propriety of its exercise, or to attempt in any manner to control it. The argument may be good when applied to the action of those officers within the limits of the authority confided to them by law, and certainly it is not necessary for us to disclaim any desire or intention to interfere with their action within those limits. Where the law clothes them with a discretionary power, they must exercise it upon their own responsibility 5 but it will not be denied, that upon this court, and not upon any other officer or department of the state, is devolved the duty of interpreting its constitution and laws. And we have no doubt, that whenever the question is properly brought before us in a judicial proceeding, and it is made to appear that any officer has acted without authority, it is our duty to declare such action illegal. And in determining it, we are not bound by the interpretation which such officer, or any other officer, may have put on the law declaring his powers. If we were, then he would constitute the highest judicial tribunal with respect to such laws, and this court would be divested of that character.

If the Secretary of State audits and allows a claim which in law may be a proper claim against the state, then, whether he allows too much or too little, his action cannot he reviewed here; but if he allows a claim which is against law, although he may have held it to be legal, we do not think his decision as its legality is final; for, although he must decide it in the first instance for himself, yet he is not vested with the power to decide authoritatively upon questions of law; but that power, however imperfectly it may be exercised, is devolved upon the judicial department. Commonwealth vs. Fowler, 10 Mass., 305. There can be no doubt, that under the provisions before referred to, the Bank Comptroller had authority to order whatever printing was necessary or convenient for the use of that department. But it must be necessary or convenient in the discharge of some duty required by law. The law has prescribed definitely what his duties are, and whatever printing may be necessary or convenient in performing them, he is authorized to order. But he is not clothed with any power of legislation with respect to the interests of that department. He cannot assume any new duties not authorized, and thereby vest himself with the power to order whatever printing might be convenient or necessary in their discharge.

The question in this case, therefore, is, whether the statements of the condition of the banks, which were ordered printed, were necessary or proper in the discharge of any duty required by law of the Comptroller. We have had some difficulty in determining whether this is a question of law, or of fact, or of both. What the duties of the department are, is matter of law. Those duties being ascertained, whether certain printing was necessary or convenient in their discharge, might involve an inquiry into facts. Though it is somewhat difficult to see how it could be presented as an issue of fact to a jury, without involving a decision by them as so what the duties of the department were, which is matter of law.

In Barker vs. Mechanics’ Ins. Co., 3 Wend., 94, the action was on a note given by an insurance company, and it was objected on demurrer, that the company had no authority to give notes. But the court said it might give notes for office rents, payment of officers, agents, &c., and therefore they could not on demurrer, hold it void. .They seemed to consider it necessary to be able to point out some purpose for which the company might lawfully give a note, in order to answer the demurrer. And we have had considerable doubt whether, in accordance with the same principle, we should not be able, in answer to this motion, to say, as a matter of law, that there is some duty required of the Bank Comptroller, in discharging which these statements might be used. If it were to be so considered and held entirely a question of law, we should be unable to point out any such duty. For, after carefully examining the several statutes having reference to the subject we can find no law requiring or authorizing the Comptroller to make any use of such statements, or imposing upon him any duty in the performance of which they might be used. And none such was suggested upon the argument.

Without, however determining the precise character of the question, we think the motion to quash must be sustained upon the ground that it devolves upon the relator to show a clear right to the writ before it is awarded. And having set forth the character of the work ordered, even though we might not be able to say that it could not be used in performing any duty of that department, yet we are certainly unable to see, or say that it could be so used. And if it could not, then it was ordered without authority, and there is no law appropriating money for its payment.

The relator has therefore at least left his right in doubt, and the motion must be sustained, with leave to amend if it is desired.