Brown v. Josiahturner

• Citation: 70 N.C. 93
• Court: United States State Supreme Court of North Carolina
• Decision Date: 31 January 1874
• Parties: WM. M. BROWN v. JOSIAHTURNER, JR., and W. H. HOWERTON, Secretary of State.

70 N.C. 93

WM. M. BROWN

v.JOSIAHTURNER, JR., and W. H. HOWERTON, Secretary of State.

Supreme Court of North Carolina.

January Term, 1874.

The Act of 1869-'70, chap. 43, repeals the Act establishing the office of Public Printer; and the Public Printer as now provided for, is not an officer within the meaning of the Constitution.

When the question of the right, or title to an office is put in issue, mandamus is not the form of action, the appropriate remedy being an action in the nature of a quo warranto; nor will mandamus lie, when two persons claim the same duty adversely to each other, against a third party.

Any person having a right to an office, can in his own name, bring an action for the purpose of testing his right as against one claiming adversely.

( Hoke v. Henderson, 4 Dev. 1; Howerton v. Tate, 68 N. C. Rep. 551; Hill v. Bonner, et al. Busb. 257; Cotton v. Ellis, 7 Jones, 545, cited and approved.)

APPLICATION for a mandamus, heard before Watts, J., at Chambers in the city of Raleigh, on the 20th day of January, 1874.

In his complaint, the plaintiff alleges that he has been duly appointed Public Printer by his Excellency, the Governor, and asks for a mandamus directed to the defendant, Howerton, the Secretary of State, commanding him to deliver the public laws, &c., to the plaintiff, and also praying that he be restrained from delivering the same to the defendant, Turner. Howerton answers the complaint, raising no question of fact or law. Turner demurs to the complaint:

1st. Because of a defect of parties plaintiff, for that the Attorney General, in the name of the people of the State, should have brought the action.

2d. Because the complaint does not state facts sufficient to constitute a cause of action, in this, that the Governor of the State has no right to appoint a Public Printer, and that the plaintiff has never been duly appointed Public Printer or contractor.

3d. That mandamus is not the proper remedy for the case made by the complaint.

His Honor at the hearing overruled the demurrer and gave judgment for the plaintiff; from which judgment, defendants appealed.

Merrimon, Fuller & Ashe, and Attorney General Hargrove, for appellants .

The case made by the complaint is “to try the title to an office,” and mandamus does not lie. Tate v. Howerton, and Mott v. Tate, 66 N. C. Rep. p. 231; C. C., sections 366, et seq.

If it be said that the place sought is not an office, and the Governor had a right to make a contract with plaintiff and did so contract, then mandamus does not lie. Tappan on Mandamus, p. 78; 4 A. & E., p. 949; Ex parte Pering.

The plaintiff must show a clear legal title. Tappan on Mandamus, p. 28.

His right is defective, as he was appointed by the Governor pending the session of the Senate without their concurrence. Art. 2, sec. --, Constitution; The people v. Forquer, Breeze (Ill. Reports) p. 72.

The case of Howerton v. Tate, 68 N. C. Rep. p. 551, has no application, as the existing Senate did not pass the act originally, nor has it confirmed the selection of the present contractor.

The defendant Turner is a proper party. C. C. P., secs. 55 and 61--and the Court must pass on his rights.

The defendant Howerton has a discretion. People v. Forquer, above; Tappan on Mandamns, p. 13.

The employment of printing the public laws and documents does not constitute an office. An office is an agency for the State. Clark v. Stanly, 66 N. C. Rep. &c., 63; U. S. v. Maurice, Brock. C. C. 103, 113 and 114.

An employment by the State not connected with government, and not requiring any action as agent for the State, is not an office. Nichols v. McKee, 68 N. C. Rep. 429; Welker v. Bledsoe, 68 N. C. Rep. 457.

There is nothing in the undertaking of the Public Printer connected with government or requiring the performance of any act as agent of the State. Battle's Revisal, ch. 97. See analogous cases: Solomons v. Graham, 15 Wall. 206; Commonwealth v. Birnes, 17 S. & R. 220: A printer of the laws of Congress is not an officer. Ibid pp. 237 and 238: If a printer is employed for any but mechanical purposes, his duties are official; but if a certificate of the accuracy of the publication be required, his duties are mechanical and not official--a mere contract.

The authenticity of the publication of North Carolina Statutes must be certified by the Secretary of State. See Battle's Revisal, ch. 78, sec. 15, p. 644.

If the Public Printer were an agent to do the State printing, the State would be liable for the obligations contracted in the performance of the work. Cook v. Irwine, 5 S. & R. 497.

U. S. laws, 2 Brightly Digest tit. “Printing,” sec. 6, ch. 1, p. 796: A firm, it seems, may be Public Printer of Congress; perhaps a corporation.

Sections 16 and 17: Public printing of Congress and Executive Department seems to have been done by contract.

A firm or a corporation may well perform all the duties and undertakings of the Public Printer under this act.

The office of State Printer was abolished, ch. 43, Acts of 1869-'70; the duties have since been performed, ch. 3, Acts of 1870-'71, under contract. Between the dates of December, 1870, and February, 1872, there were no duties prescribed by law for the Public Printer.

The Legislature may contract in behalf of the State. Constitution, art. 5; 11 Ir. 501, Mills v. Williams; 5 Peters.

The members of the printing committee are officers, under Clark v. Stanley?? They may, it seems, contract when so authorized. P. 799, sec. 21, ch. 3, tit. Printing, 2 Brightly Digest U. S. laws. They are particularly authorized to contract by the Acts of 1871-'72, ch. 180.

The plaintiff has not been properly appointed; the vacancy is an original one, and there has been no confirmation by the Senate. People v. Forquer, above; Nichols v. McKee, 68 N. C. Rep. 429.

Smith & Strong, and Argo and Batchelor, Edwards & Batchelor, for the plaintiff .

Upon the complaint and demurrer arises three questions:

I. Is the position of Public Printer a public officer?

1. An officer is any one who has a duty concerning the public; the extent of his authority is not material, as it is the nature of the duty that makes him a public officer. Bac. Ab. Tit. Off. Sec. A. Clark v. Stanly, 66 N. C., 69. People v. Bledsoe, et al., 68 N. C., 459. People v. McKee, Ibid 429.

( a.) The duty must concern the public. Ibid.

( b.) If prescribed by governmental authority, as by an act of the Legislature, it constitutes the position to which the duty is incident, an office. United States v. Maurice, et al., 2nd Brockenbrough, 96, 103.

The duties of the Public Printer are prescribed by an act. Bat. Rev. ch. 97.

( c.) A bond is another incident of an office. U. S. v. Maurice, 2nd Brock. 96.

( d.) Likewise continuance. Ibid.

( e.) The importance of the position, and of the duties incident thereto, to a complete and just administration of government, and to the public weal, the degree of necessity to the public, gives character to it in proportion as it is less or greater. The material interests of the public would not suffer, if the grass in the Capitol Square were not mowed or the shrubbery not trimmed, no fundamental principle of organized society would be violated, and none of the general purposes of goveanment thwarted.

The law of the land would be violated if the laws were not in due time published. Dec. Rights, sec's 17 and 32. Hoke v. Henderson, 4 Devereux 1.

It is also made incumbent on the Legislature to publish the journal of its proceedings. Art. 11, sec. 18.

2. The striking out of the act the words “ office of Public Printer,” and leaving merely “Public Printer,” does not a??ffect the character of the position so long as the duties remain the same. People v. McKee, et al., 68 N. C. 429.

3. The Public Printer is invested by the act with the discretion and power of an agent; he may do the printing or cause it to be done, and he shall “cause” the binding to be done. Bat. Rev. ch. 97, sec's 5, 12, 19 and 20. This constitutes him an officer. People v. Bledsoe, 68, N. C. 459.

II. If an officer, was plaintiffs appointment legally made?

(1.) The previous action of the Legislature obviated the necessity of nominating to the Senate. Howerton v. Tate, 66 N. C. 231.

(2.) There was a vacancy. Turner appointed 18th December, should have been appointed 2nd day after meeting Legislature. Rev. Code, chap. 93, sec. 1. Printer has been for 3 years chosen by Legislature, and therefore there had been no Printer.

(3.) There was vacancy: the constitutional provision, as interpreted by the Supreme Court, includes original vacancies. People v. McKee, 68 N. C. 493.

III. Will mandamus lie in this case?

1. The party to whom the mandamus must issue, if issued at all, according to the prayer in the complaint, is the Secretary of State. It would be self-contradictory for the plaintiff to ask that the defendant Turner be commanded to perform an official act, and at the same time allege that he himself is the incumbent of the position to which the required act is incident. There is no controversy between the plaintiff and the defendant, as regards the title to the office of Public Printer; the title comes only incidentally in question, as it does in every case where a mandamus is prayed; for before the writ can issue the prosecutor or applicant, now the plaintiff, must show a legal right to demand the performance of the act from the party against whom the writ is prayed. Tappan on Mandamus 10-12; State v. Jones, 1 fred. 129; State v. Justices of Moore, 2 Ired. 430.

The defendant Turner is made party for the purposes of injunction only; and though the effect of a mandamus to the Secretary of State would be indirectly to pass upon the defendant Turner's right to the office, it does not invalidate the proceeding. Tap. Man., 19; Richards v. Dyke, 3. A. and D. Q. B. N. S. 267. per. Patterson, J. We want “books and papers only,” People v. Dikeman 7 How. N. Y. P. R. 124, (128.)

It is competent for a mandamus to issue to an...