Ellis v. State
| Decision Date | 26 November 1852 |
| Citation | 4 Ind. 1 |
| Parties | Ellis and Another v. The State and Another |
| Court | Indiana Supreme Court |
APPEAL from the Marion Circuit Court.
The decree is affirmed with costs.
J Morrison, S. Major, and J. A. Liston, for the appellants.
D Wallace, L. Barbour, and A. G. Porter, for the state.
Bill in chancery in the Marion Circuit Court, by Ellis and Spann, assignees of Jacob P. Chapman, state printer, to recover damages which, as such assignees, they alleged they had sustained by reason of the printing of the late constitutional convention having been withheld from them.
The bill charged that on the 3d day of January, 1850, Jacob P. Chapman was elected state printer, to serve for three years next after the first day of August, 1850; that he gave bond on the 5th day of January, 1850, as required by law; that on the 3d day of May, 1850, Ellis and Spann purchased from Chapman the right to do the public printing and receive the pay therefor, for which they paid him a considerable sum of money; that on the 16th day of May, 1850, Chapman made to them a power of attorney to receive the pay for said printing, and received from them a bond conditioned for its faithful execution; that the convention to amend the constitution of the state assembled at Indianapolis on the 7th day of October, 1850, and adjourned finally on the 13th day of February, 1851, and, during its session, ordered and procured Austin H. Brown to execute printing, consisting of the journal and debates of said convention, and other matters, costing in all, at legal prices, the sum of 6,110 dollars and 89 cents, and the net profit on which amounted to 2,976 dollars and 67 cents, being the sum claimed in this suit by Ellis and Spann as their measure of damages. The bill further alleged the readiness of Chapman and of Ellis and Spann to do said printing, and notice to the convention of the fact. The bill set forth the act of the legislature of the 8th of February, 1851, authorizing the treasurer of state to pay Brown for said printing out of the state treasury, &c., but providing that said payment should not "operate against the claim of Jacob P. Chapman, the state printer, or his assignee or assignees, if any he or they have, against the state." The second section of said act enacts, "That Erastus W. H. Ellis and John S. Spann, the assignees of Jacob P. Chapman, the state printer of the State of Indiana, be and they are hereby authorized to bring suit against the State of Indiana, in the Marion Circuit Court, in accordance with the provisions of chapter 45 of the general laws of 1850, page 66, for such damages, if any, as they may have sustained in consequence of the printing of the constitutional convention being withheld from them."
Chapman was made a defendant and answered, confessing the bill.
The state answered, mainly confessing the facts of the bill, but denying the right of the plaintiffs to damages upon the facts.
The Court below decreed against the plaintiffs.
The counsel for the plaintiffs contend that this decree should be reversed and this suit sustained:
1st. Because the state printer is not an officer, and the business or function of the state printer is not an office, but rather an engagement with the state for the performance of service, which engagement is legally assignable. Or,
2d. If the state printer be an officer, and his duties be not generally assignable, still the state has recognized and sanctioned the assignment, in the present case, by the act authorizing this suit.
3d. That the printing done by Brown for the constitutional convention was embraced in the contract between the state printer and the legislature that elected him.
It was competent for the legislature to make the state printer an officer, and we think they have done so in this state. Art. 5, of chap. 4, of the R. S. 1843, p. 100, treats "of the officers elected by the general assembly, and the tenure of their offices." It specifies:
Section 34 enacts that "the state printer shall hold his office for the term of three years, and until his successor is chosen and qualified;" and section 77, of the same chapter, provides that "every person chosen or appointed to any office of trust or profit under the authority of this state, is required, before entering on the duties of said office, to take an oath," &c. The state printer is also required to give bond for the faithful performance of his duties. The law, then, has made the right to do the state printing and take the compensation therefor, an office, and it is one of profit and trust. That it is one of profit, the institution of this suit sufficiently evidences. It is also one of trust. The printing for the term for which the state printer is elected amounts to a large sum of money, and creates the necessity for a large amount of materials. The state wants, therefore, honesty and judgment in the man intrusted with it; and she wants promptness, accuracy, and neatness, in the execution of the work. And it is with an eye to these things that the officer is chosen, and his personal superintendence is expected to be given to secure them. We may mention that in all the contracts in this state letting portions of the public works to the several contractors, a provision prohibiting the sub-letting at will of the contract was inserted; and also one making the failure of the contractor to give his personal superintendence to the work a ground of forfeiture of the contract. The statutes of 5 and 6 Edw. 6 of England, against buying and selling offices, would prohibit the sale of that of state printer, and principles of public policy prohibit it here.
Nor do we thin...
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