Democrat Printing & Lithographing Co. v. Parker

• Decision Date: 13 July 1936
• Docket Number: No. 4-4383.,4-4383.
• Citation: 96 S.W.2d 16
• Parties: DEMOCRAT PRINTING & LITHOGRAPHING CO. v. PARKER, State Auditor.
• Court: Arkansas Supreme Court

96 S.W.2d 16

DEMOCRAT PRINTING & LITHOGRAPHING CO. v. PARKER, State Auditor.

No. 4-4383.

Supreme Court of Arkansas.

July 13, 1936.

Appeal from Circuit Court, Pulaski County, Third Division; J. S. Utley, Judge.

Mandamus proceeding by the Democrat Printing & Lithographing Company against Charley Parker, State Auditor. Judgment for defendant, and plaintiff appeals.

Affirmed.

Cockrill, Armistead & Rector, of Little Rock, for appellant.

Carl E. Bailey, Atty Gen., J. Hugh Wharton, Asst. Atty. Gen., and Pat Mehaffy, of Little Rock, for appellee.

JOHNSON, Chief Justice.

This mandamus action was instituted by appellant, Democrat Printing & Lithographing Company, against Charley Parker, state auditor, in the Pulaski circuit court to compel the delivery of a certain warrant or voucher to it. The complaint in effect alleged that on December 31, 1935, the duly constituted state agency accepted the proposal and offer of the Parkin Printing & Stationery Company to furnish the various departments of the state necessary articles of stationery and office supplies as listed in the "St. Louis Price List," a trade publication of general circulation and at prices therein designated less a discount of 27 per cent. That said proposal was to cover the biennium beginning January 1, 1936. That on the same date said state agency accepted the proposal and offer of appellant to furnish the several state departments during said biennium all necessary stationery and office supplies not covered by other contracts, at a price of 3 per cent. discount from its current wholesale price list. That in performance of and in conformity to the last-mentioned contract, on February 25, 1935, the Governor's office made proper requisition upon the state printing clerk for certain stationery not covered by other contracts, and that subsequently said requisition was duly approved by the state comptroller's department and the state printing clerk; that said requisition and order were thereupon accepted by appellant, and the merchandise therein ordered was duly delivered as directed. That on February 26, 1936, the Governor's office issued a voucher in appellant's favor in the sum of $28.15, the purchase price of the stationery theretofore ordered; that this voucher was duly approved for payment by the state comptroller's department as required by the preaudit act of 1933 and was thereupon delivered to appellee, state auditor, who immediately approved said voucher and caused state warrant No. 94573 to be issued in appellant's favor, but that appellee refused to deliver said state warrant to appellant and assigned as reason therefor that the Attorney General's office had advised that said warrant, requisition, and voucher were invalid. The prayer was that peremptory mandamus issue compelling the delivery of said warrant by appellee to appellant.

Appellee demurred to the complaint thus filed, and as ground therefor alleged that appellant's suit was one against the state and as such could not be maintained; secondly, that said complaint did not allege sufficient facts to constitute a cause of action. The trial court sustained appellee's demurrer and dismissed appellant's complaint from which this appeal comes.

The legal sufficiency of the complaint is the controlling question in the case, and we shall confine ourselves to an examination of this issue. The law is well settled here as well as elsewhere that the discretion or discretionary powers of an executive officer of the state will not be controlled by mandamus. Street Imp. Dist. No. 74 v. Refunding Board of Arkansas (Ark.) 95 S.W.(2d) 639, June 22, 1936; Refunding Board of Arkansas v. National Refining Co., 191 Ark. 1080, 89 S.W.(2d) 917. But the rule is equally as well settled and we have always so held that mandamus is the appropriate remedy to compel an executive state official to perform a ministerial act. Moore, Auditor, v. Alexander, 85 Ark. 171, 107 S.W. 395; Jobe, Auditor, v. Caldwell, 93 Ark. 503, 125 S.W. 423; Jobe, Auditor, v. Caldwell, 99 Ark. 20, 136 S.W. 966; Jobe, Auditor, v. Urquhart, 102 Ark. 470, 143 S.W. 121, Ann.Cas.1914A, 351; Cotham v. Coffman, Auditor, 111 Ark. 108, 163 S.W. 1183; Hodges, Secretary of State v. Lawyers Co-Operative Pub. Co., 111 Ark. 571, 164 S.W. 294; Ellison v. Oliver, Auditor, 147 Ark. 252, 227 S.W. 586; Hopper, Secretary of State v. Fagan, 151 Ark. 428, 236 S.W. 820.

Under the allegations of appellant's complaint, which for the purposes of the demurrer must be conceded to be true, to the effect that the state auditor "caused a warrant to be drawn on an unexpended appropriation payable to this plaintiff in the sum of $28.15, being warrant No. 94,573, etc.," but had arbitrarily refused to deliver same to appellant, it is contended that any discretion abiding in the state auditor under Act No. 63 of 1933 (page 180) was exercised when said voucher was presented to him for warrant and said warrant was issued, and that thereafter the delivery of said warrant to appellant, after approval and issuance as approved, was merely a ministerial act which may be compelled by mandamus. This contention is fundamentally unsound. There is a concord of opinion...