Fisk v. Cuthbert

• Decision Date: 31 January 1877
• Citation: 2 Mont. 593
• Parties: FISK, respondent, v. CUTHBERT, appellant.
• Court: Montana Supreme Court

2 Mont. 593

FISK, respondent,

v.CUTHBERT, appellant.

Supreme Court of the Territory of Montana.

January Term, 1877.

Appeal from Third District, Lewis and Clarke County.

THE writ of mandamus was issued by WADE, J.

J. K. TOOLE, District Attorney, Third District, for appellant.

The complaint is fatally defective. It does not allege that appellant refused to audit the account of respondents, or that any demand was made that he should do so.

The auditor is not the auditor of his own account. He cannot issue a warrant unless he is expressly authorized by law. Cod. Sts. 381, §§ 1, 5; 478, §§ 9, 10. Appellant had no power to audit or issue the warrant. Respondents' account was a contingent charge, and appellant could issue no warrant until some proper officer or tribunal allowed it. No specific sum is allowed for respondents' services.

Appellant can only be asked to exercise his discretion, if he is required to audit respondents' account. No other officer nor tribunal has any discretion in acting on the account in the first instance.

Appellant has no interest in the amount to be allowed respondents other than that in common with other citizens. Why is he made a party to the suit? It is not the duty of the auditor to issue a warrant after a claim against the Territory has been adjudicated and allowed in the courts. After such a claim has been audited and allowed by some proper tribunal, appellant is expressly prohibited from issuing his warrant. Cod. Sts. 141, § 518; 381, § 1; 478, §§ 9, 10.

Respondents' claim against the Territory has been lawfully incurred, but appellant, without further legislation, cannot issue his warrant for it. The claim should be reported to the legislature, and paid by an appropriation. Cod. Sts. 564, § 5. The words, “specially” and “expressly,” used in the statutes, refer to each particular claim for which a warrant is to issue. The words, “at public expense,” do not mean out of the Territorial treasury.

Respondents demanded of appellant a warrant for the amount of their claim, but this is not a demand to audit and settle it.

CHUMASERO & CHADWICK, for respondents.

The demand to audit respondents' account is included in the demand for a warrant. Appellant refused to do any thing. It is the duty of the Territorial auditor to issue his warrant for the amount due when the law recognizes the claim. The amount of respondents' claim has never been disputed. The general recorder of marks and brands was required to have the pamphlets printed. Cod. Sts., ch. 64. This statute expressly authorizes the recorder to make the contract for the printing and establish the price.

It was not necessary to define the duty of the appellant in this law, which says that certain work shall be done and must be paid for from the public treasury. Any other construction would render the act nugatory. The words “at public expense” are synonymous with “out of the Territorial treasury.”

BLAKE, J.

This is an appeal by the Territorial auditor from the judgment of the court below, granting the application of the respondents for a peremptory writ of mandate, and commanding him to issue a warrant upon the Territorial treasurer for the amount of their account for printing a pamphlet containing a list of brands and marks. The facts stated in the application are not denied in the answer of the appellant. It appears that the general or Territorial recorder of the brands and marks entered into a contract in September, 1875, with the respondents, by which they printed 175 copies of the pamphlet and delivered the same to the proper officer, and that these services were reasonably worth $225. The respondents demanded of the appellant a warrant on the Territorial treasurer for this sum, March 6, 1876, when their claim for these services were delivered to him. The appellant refused to issue any warrant and alleges in his answer the following reasons therefor: That the law does not fix any certain amount for the payment of respondents, and that the Territorial auditor has no jurisdiction to determine the value of said services. The appellant admits in his argument that the respondents' claim has been lawfully incurred.

We must examine the following statute: “The general recorder of marks and brands shall once a year have published a list of all brands, or marks and brands, which have not been previously published, and cause to be printed, at the public expense, a sufficient number of copies, in pamphlet or other convenient form, to furnish each county clerk in the Territory with twenty-five copies thereof, for gratuitous distribution.” Cod. Sts. 564, § 5. The term ““public” is applied strictly to that which concerns all the citizens and every member of the State. 1 Greenl. Ev., § 128. It refers to “the whole body politic.” 2 Bouv. L. D., tit. “Public.” The intention of the legislative assembly respecting certain accounts is declared in plain language. When the Territory is not required to pay the same, we find in the laws the following clauses: “At the expense of the county.” Cod. Sts. 438, § 27; 501, § 1. “At (the) expense of the Federal government.” Cod. Sts. 652. “At his own expense. Cod. Sts. 553, § 8. The clause, “at the public expense,” has the same legal effect as the words “at the expense of the Territory” in the statute providing that the office of the Territorial treasurer shall be furnished with certain articles, and that providing that the reporter shall print and bind certain reports. Cod. Sts. 384, § 16; 637, § 3. The legislative assembly designates the printing required by the Territorial auditor and treasurer for their respective offices, “public printing,” and provides for its payment by the Territory. Cod. Sts., ch. 51. The word “Territorial” is used as a synonym for “public” in the following section of the act concerning “common schools:” “All printing or binding required under this act shall be executed in the form and manner and at the prices of other Territorial printing, and shall be paid for in like manner, out of the general fund of the Territory.” Cod. Sts. 634, § 62. The word “““““public” has the same meaning as “Territorial” in the section which authorizes the Territorial auditor to prosecute “delinquent collectors of the Territorial revenue” and “persons being in possession of the public funds, money or property;” Cod. Sts. 381, § 4; and in that which authorizes this officer to make report “of the public revenue and expenditures of the Territory.” Cod. Sts. 382, § 8.

The act “in relation to brands and marks” (Cod. Sts., ch. 64), creates a Territorial office and affects the whole Territory, and the pamphlet referred to has been printed and published for the bene fit of the body politic. Therefore, the law provides that what is done for the welfare of all the people shall be paid for by the public or Territorial treasury. The legislative assembly has acted upon a rightful subject of legislation and “expressly” authorized a claim against the Territory. What is the power of the general recorder? In Randall v. Yuba Co., 14 Cal. 219, the supervisors of the county contracted with one party to print the delinquent tax list, and the tax collector, an officer of the county, contracted with another party to do the same work. The statutes of California required the tax collector to complete and publish this list, and collect in addition to the taxes certain sums which are to be paid to the county, “for the cost it may incur for printing the list.” The court held that the collector was authorized to make the contract for this printing, and that the county was bound by the reasonable exercise of his agency and must pay the price agreed upon. This case was affirmed in Keller v. Hyde, 20 Cal. 593. The court held that the county treasurer could not pay a warrant which had been allowed by the supervisors on a demand for printing the delinquent tax list, under a contract made by the supervisors. Other authorities support the proposition that an officer, who is empowered to publish this list, can make contracts for the performance of the work with any party and fix the price of the same, which must be paid by the county. Commissioners v. Kierolf, 14 Ind. 284;Beal v. Supervisors, 13 Wis. 500. We are satisfied that the general recorder of marks and brands has been authorized by the statute, supra, to do any act necessary to secure the printing of said list of brands and marks at the Territorial expense. He can also fix the price thereof, and his action cannot be controlled by the Territorial auditor, or any other officer. There is no controversy relating to the conduct of the general recorder in making the contract with the respondents, and the Territory is bound by the reasonable exercise of his authority therein. The amount claimed by the respondents is not in dispute, and it is evident that the Territory owed the same when this proceeding was commenced.

What was the remedy of the respondents? They cannot enforce their claim by an action against the Territory. This doctrine was announced in Langford v. King, 1 Mon. 38, and Mr. Justice KNOWLES said: “We hold, therefore, that unless permitted by some law of this Territory, or of the general government, no citizen of this Territory can sue it. There is no law of this Territory or act of congress permitting it. There is, then, no legal power to enforce Territorial contracts. In other words, there is no obligation to Territorial contracts. They rest simply upon the good faith of the Territory.” In Board of Liquidation v. McComb, 92 S. C. 541, the court says: “A State, without its consent, cannot be sued by an individual.”

What was the duty of the appellant under the facts which have been specified? The Territorial auditor “shall audit all claims against the treasury,” and make to the legislative assembly “a full detailed statement of all expenditures, claims and demands by him audited and allowed,” and “give separately the items and claims of each and all persons...