25 Mont. 112 | Mont. | 1901
delivered tbe opinion of tbe Court.
Tliis is a proceeding in mandamus instituted by tbe State Savings Bank for tbe purpose of compelling tbe state treasurer to pay certain warrants addressed to bim and drawn on tlie Scbool of Minos Building Fund. An alternative -writ was issued. To the petition tbe treasurer demurs for want of substance.
Eliminating its formal averments and condensing its statements tbe petition exhibits tbe following facts: By Section
On July 28, 1896, the commissioners entered into a contract with Biddle & Boach for the erection and construction at Butte of a building for the State School of Mines. Among other provisions, the contract contained the following: “It is hereby mutually agreed between the parties hereto, that the sum to be paid to the contractors for the said work and material, and for the entire erection and completion of the said building, as above provided, shall be eighty-eight thousand four hundred fifty-six and eighty-five one hundredths ($88,156.85) dollars, subject to additions and deductions on account of alterations, as hereinbefore specified, and that said sum shall be paid in warrants on the State School of Mines Building Fund, which shall be drawn as provided in Section 1601 of the Political Code of Montana, upon certificates of the Board to the State Board of Examiners, and which warrants the contractors agree to accept at par in full payment and satisfaction of this contract.” Pursuant to the contract, and in accordance with its terms, Biddle & Boach completed the building, which was approved and accepted by the commissioners and is now used and occupied by
1. The mere fact that a state officer refuses to perform a ministerial duty specially imposed upon him furnishes no reason why this Court, in the exercise of its original jurisdiction, should grant a writ of mandate. District courts are ordinarily the primary forums, and in them should be commenced special proceedings unless sufficient reasons exist why resort to the Supreme Court is necessary in the first instance. The sole ground upon which the plaintiff has invoked the original jurisdiction of this Court is that the defendant is the state treasurer. The proceeding should have been commenced in the district court. In view, however, of the loose practice which in this respect has occasionally been indulged, we permitted the alternative writ to be issued and shall retain jurisdiction of the case; but in the future applications for writs of mandate must, in the language of Subdivision 2 of Bule II of this Court “set forth * * the reasons which render it necessary that the writ should issue originally from this Court;” and that the duty, the performance of which is sought to be enforced rests upon a state officer, board, or tribunal, will not be deemed a sufficient' reason for invoking the original jurisdiction of the Supreme Court.
2. The first objection urged by the attorney general in behalf of the state treasurer is that “there is no privity of interest existing between the owners of the warrants and the original contract between the state and the contractors, that even though the contractors were entitled to interest, the mere ownership of the warrants by the relator would not. subrogate them to the rights under the contract, but it would put the relator in the position of having purchased these warrants, which are nonnegotiable instruments, and a thing that bears no relation to the contract in any way. It is merely an order upon the state
In answer to this position it is sufficient to say that the plaintiff as assignee of the warrants succeeded to and is clothed with all the rights which Riddle & Roach, the assignors, would possess were they yet the owners. That the warrants lack the quality of negotiability essential to constitute commercial paper neither adds to nor detracts from the rights of the plaintiff. If Riddle & Roach would be entitled to collect interest on the registered warrants, the plaintiff is likewise so entitled.
3. Further-objection to allowance of interest is urged upon the ground that Riddle & Roach agreed to accept the warrants at par and in full payment and satisfaction of the contract. The purpose of thisopart of the contract is obvious and its effect manifest. The warrants were to be accepted at their face values, — neither at a premium nor at a discount. Each warrant at its par value was to be accepted as a payment on the contract price; this was the purpose. The delivery of each warrant operated as payment to an amount equal to its face value and thereby satisfied pro tanto the conditions of the contract; this was the effect. In illustration: A warrant for $1,000, whether actually worth more or less, was, upon delivery to Riddle & Roach, payment of $1,000 of the contract price, and to that extent was in satisfaction of the contract.
4. The final attack upon the petition consists in the suggestion that the payment of interest on the warrants after registration was not within the contemplation of the parties when the contract was made, and that therefore the repeal of Sections 1600 and 1601 of the Act of March 8, 1891, is applicable to warrants thereafter drawn and annuls the provision of Section 1601 which prescribed that warrants should bear interest at the rate of I per cent, per annum from registration until paid. The plaintiff, on the contrary, insists that the repeal of the provision allowing interest on registered warrants can have no effect upon its right to collect interest, for the reason that
That which binds a party to the fulfillment of his agreement is the obligation of a contract. It consists of the duty which the law imposes upon the parties to perform their agreements-(See 15 Am. & Eng. Enc. Law (2d Ed.) 1040, and cases cited.) The duty which the law casts upon a party to comply with the terms of the contract which he has promised to perform, is therefore the obligation of his contract. Impairment of this obligation by state legislation is prohibited. (Section 10, Article I of the Federal Constitution; Section 11 of Article III of the Constitution of Montana.) When a state enters into a contract such as the one it made with Biddle & Boach it is not acting in its governmental or sovereign capacity but comes down to the level of persons; its contract has the same meaning as that of similar contracts between subjects, and therefore the law imposes upon it the obligation to' perform its agreement according to the terms thereof. (Murray v. City of Charleston, 96 U. S. 443, 24 L. Ed. 76Ó.) The legislative assembly can no more impair the obligation of such a contract than it can the obligation of a contract made between individual jiersons. While a change in the form of obtaining redress may be made, provided a substantial remedy1' is given or remains, the obligation of a contract depends nevertheless upon its terms, and the means which the law in existence at the time it was entered into afforded for its enforcement. A statute which changes the terms of an agreement by imposing new conditions, or dispensing with those expressed or implied is a law which impairs the obligation of a contract, for such 'a. law “relieves the parties from the moral obligation of performing the original stipulations of the contract and prevents their legal enforcement.” (Railroad Co. v. Pennsylvania, sub nomine “Case of the State Tax on Foreign-Held Bonds,’ 15 Wall. 300, 21 L. Ed. 119.) The
When the contract was made Section 1601, supra, was in force. This section provided that the warrants should be taken and accepted in full payment of the indebtedness to be incurred for the construction of the building, that no appropriation for the payment of the warrants should ever be made, or payment ever be made by or from any other source than the State School of Hines Building Bund; and, the legislative assembly contemplating that there might not be in the State School of Mines Building Bund sufficient money to meet the warrants drawn from time to time in payment of the contract price, it was further provided that if on the presentation of such warrants to the state treasurer there should not be enough money in the fund to pay them, they would be registered as of the date of presentation and were thenceforth, until paid, to bear interest at the rate of 7 per cent, per annum. It was also contemplated by the parties themselves that payment of the warrants might be delayed or postponed beyond the time when they were presented, and that in such event Biddle & Boach should have the right to cause their registration and be entitled thenceforth to interest as provided in Section 1601. One of the conditions of the contract was that the state 'would pay the face of the warrants upon presentation to the treasurer whenever sufficient money should be in the State School of Mines Building Bund for that purpose, and the state further promised that if at any time there should not be enough money in the fund to pay the
The demurrer is overruled. The defendant declines to plead further; upon the filing of the proper praecipe therefor, judgment will be entered awarding a peremptory writ of mandate as prayed. •
Writ granted.