Ex parte Gemmill

• Decision Date: 08 December 1911
• Parties: In re Application of EMMETT J. GEMMILL for Writ of Habeas Corpus
• Court: Idaho Supreme Court

119 P. 298

20 Idaho 732

In re Application of EMMETT J. GEMMILL for Writ of Habeas Corpus

Supreme Court of Idaho

December 8, 1911

CONSTITUTIONAL LAW-PUBLIC PRINTING-INTERSTATE COMMERCE-EQUAL PROTECTION OF THE LAW.

(Syllabus by the court.)

1. Sections 1475 and 1476 of the Rev. Codes, which require that state and county printing, binding and stationery work, shall be done within the state and within the county where required for use, is not an interference with or regulation of commerce and is not repugnant to the commerce clause of sec. 8, art. 1, of the federal constitution.

2 Secs. 1475 and 1476, which provide that the printing, binding and stationery work shall be done within the state and the county in which it is to be used, does not interfere with or restrict the right of any person to freely contract, nor does it deny to any person the equal protection of the law and is not repugnant to the provisions of sec. 1 of the fourteenth amendment of the federal constitution.

3 Secs. 1475 and 1476, Rev. Codes, refer only to the work to be done in printing and binding and such work as is necessary to prepare paper, books and stationery for public use in the respective state and county offices, and have no reference to the purchase of the material itself upon which the work is done, and make no attempt to deprive any person of the right to sell to the state or county any material which may be needed for such public use. These sections of the statute, on the contrary, simply prescribe the locality or situs where certain work to be done for the people in their corporate and sovereign capacity shall be performed, and such statute is a constitutional exercise of the power of the legislature to prescribe by law the duties of state and county officers and to command them as to the manner in which they shall exercise certain powers in performing the business and proprietary duties of their respective offices.

4 Secs. 1475 and 1476, Rev. Codes, are not in violation of any public policy of this state, and cannot for that reason be held invalid and void, and with the business and economic wisdom and policy of such statute the courts have nothing to do.

Original application for writ of habeas corpus. Writ issued and return made thereto, and after hearing had thereon writ quashed and petitioner remanded to the custody of the sheriff.

Writ quashed and the petitioner remanded.

George G. Pickett, for Petitioner.

"State discrimination against citizens of other states in respect to commercial transactions violates the right of equal privileges and immunities." (Ward v. Maryland, 79 U.S. (12 Wall.) 163, 20 L.Ed. 260; Welton v. Missouri, 91 U.S. 275, 23 L.Ed. 347; Guy v. Baltimore, 100 U.S. 434, 25 L.Ed. 743.)

The statute is unconstitutional as depriving municipalities and those contracting therewith of the right to freely contract. (Treat v. Coler, 166 N.Y. 144, 59 N.E. 776; People v. Coler, 166 N.Y. 1, 59 N.E. 716; City of Cleveland v. Construction Co., 67 Ohio St. 197, 93 Am. St. 670, 65 N.E. 885, 59 L. R. A. 775; Seattle v. Smyth, 22 Wash. 327, 79 Am. St. 939, 60 P. 1120; Lowe v. Rees Printing Co., 41 Neb. 127, 43 Am. St. 670, 59 N.W. 362, 24 L. R. A. 702; In re Morgan, 26 Colo. 415, 77 Am. St. 269, 58 P. 1071, 47 L. R. A. 52; Ewen v. Thompson-Sterrett Co., 71 Misc. 171, 128 N.Y.S. 595; People v. Hawkins, 157 N.Y. 1, 68 Am. St. 736, 51 N.E. 257, 42 L. R. A. 490, and cases cited.)

The giving to one person or set of persons of a trade rights or privileges which another of the same trade does not get also, is a monopoly, and unconstitutional. (Pirie v. Corporation of Dundas, 29 U. C. Q. B. 407; Slaughter-house Case, 1 Wood, 21 F. Cas. No. 8408; Norwich Gas Light Co. v. Norwich City G. Co., 25 Conn. 19; City of Chicago v. Rumpff, 45 Ill. 90, 92 Am. Dec. 196.)

Geo. W. Suppiger, County Attorney of Latah County, and Morgan & Morgan, for Defendant.

A state has the right in the discharge of its corporate functions to direct its officials and the officials of its subordinate political bodies to purchase supplies from whomsoever the legislature of the state may see fit. (Tribune Printing & Binding Co. v. Barnes, 7 N.D. 591, 75 N.W. 904.)

An examination of sections 1475, 1476 and 1476a, Rev. Codes, will disclose that no discrimination is made in favor of the citizens of Idaho or against the citizens of other states, and that the right to contract freely between the citizens of other states and Idaho is neither prohibited nor interfered with. A county is not a citizen of the state, but is a political subdivision of it.

AILSHIE, J. Stewart, C. J., concurs. SULLIVAN, J., Dissenting.

OPINION

AILSHIE, J.

The petitioner, Emmett J. Gemmill, was on the 26th day of September, 1911, held to answer before the district court on the charge of violating secs. 1475 and 1476 of the Rev. Codes. The charge preferred against the petitioner is that while he was acting as assessor and ex-officio tax collector of Latah county, and as such officer, he "did then and there wilfully and unlawfully obtain and have executed without the geographical boundaries of the said county of Latah, certain county printing, to wit: Tax sale certificates, blanks and duplicates thereof, for the county of Latah for the payment of which said county printing the said county of Latah then and there became responsible, and there being then and there within the said county of Latah practicable facilities for executing said printing." The petitioner applied to this court for a writ of habeas corpus directed to the sheriff of Latah county, and a writ was thereupon issued. Return was made justifying the detention of the petitioner, on the grounds above stated.

Counsel for petitioner insists that the statute under which this prosecution is had is unconstitutional and void, in that it violates the commerce clause of sec. 8 of art. 1 of the federal constitution, which authorizes Congress to regulate commerce between the states, and that it also violates sec. 1 of the fourteenth amendment to the federal constitution in that it denies to certain persons the equal protection of the law. Secs. 1475 and 1476 of the Rev. Codes, the consideration of which is involved in this proceeding, are as follows:

Sec. 1475: "All county printing, binding and stationery work, executed for or on behalf of the several counties throughout the state, for which the said counties contract, or become in any way responsible, shall be executed within the county for which said work is done, when there are practicable facilities within the said county for executing the same, but when it shall become necessary, from want of proper facilities, to execute the work without the said county, then the same shall be executed at some place within the state of Idaho, except as provided in the following section."

Sec. 1476: "Whenever it shall be established that any charge for printing, binding or stationery work is in excess of the charge usually made to private individuals for the same kind and quality of work, then the state or county officer or officers having such work in charge shall have power to have such work done outside of said county or state, but nothing in this chapter shall be construed to oblige any of said officers to accept any unsatisfactory work."

Sec. 1476a provides that any city or county officer, either as an official member of a board or purchasing agent, who violates any of the provisions of secs. 1475 and 1476 shall be guilty of a misdemeanor, etc. This case has been argued principally upon the theory that the statute prohibits the letting of any contract for county printing to a nonresident of the state. This, however, is clearly not the purpose or intent of the statute. The statute has nothing to do with letting contracts to either residents or nonresidents of the state. All the state attempts to do is to require that certain work done for the several counties shall be actually executed within the confines of the county or state, as the case may be, and this is without any reference or regard to the person who may do such work. It will be noticed from a reading and analysis of the statute that it is not directed at the purchase of the material, that is, paper and material, but solely to the manual and mechanical work and labor in printing and binding books, stationery, etc., necessary for the several counties. It makes no difference whether the person who does the work is a resident of this state or has a place of business in this state, but the only test is that he shall have the work done within the county, or if it cannot be done in the county, then in the state if such work can be done within the state. It would be as much a violation of this statute for a citizen of the state, who owns and is operating a printing and job office within this state, to take a contract and have the work done outside the state, as it would be for an outsider to take the contract and have the work done outside the state. It would, on the other hand, be equally as lawful for a nonresident of the state to take such a contract and procure the work to be done within the county and state as if the contract was entered into with a resident who is operating a local office. In this view of the statute, we think there can be no element of interstate commerce entering into such a transaction, and the statute in no way interferes with interstate commerce or interstate transactions and is not repugnant to the commerce clause of the federal constitution.

The next and more serious consideration is: Does the foregoing statute in any way contravene that part of sec. 1 of the fourteenth amendment which ordains that no state shall "deprive any person of life, liberty or property without due process of law, nor deny any...