Leader v. Cameron

• Decision Date: 07 September 1895
• Citation: 3 Okla. 677,41 P. 635,1895 OK 71
• Parties: THE GUTHRIE DAILY LEADER v. E. D. CAMERON, Territorial Auditor.
• Court: Oklahoma Supreme Court

1895 OK 71

41 P. 635

3 Okla. 677

THE GUTHRIE DAILY LEADER v. E. D. CAMERON, Territorial Auditor.

Supreme Court of Oklahoma

Decided: September 7, 1895

Original Proceeding in Mandamus.

Syllabus

¶0 1. PUBLIC OFFICE--What Constitutes--Not Public Officer, When. A public office is the right, authority and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, either executive, legislative or judicial, to be exercised for the benefit of the public, and unless the powers conferred are of this nature, the individual is not a public officer.

2. PUBLIC PRINTER--Office Not Created by Legislature. Section 25 of the Appropriation Act of 1895, p. 47, Session Laws, does not create the office of public printer and does not delegate any of the sovereign functions of the Territory to the State Capital Printing company.

3. SPECIAL LEGISLATION--Prohibited by Act of Congress. The act of congress approved July 30, 1886, 24 Statutes at Large, P. 170, prohibits the territorial legislature from passing any special law, granting to any corporation, or individual, or association any special or exclusive privilege, immunity or franchise whatever.

4. PRIVILEGE. A privilege is a particular and peculiar benefit or advantage enjoyed by a person, company or class, beyond the common advantage to other citizens.

5. STATUTE--Must Operate Equally Upon All. A statute relating to persons or things as a class is a general law. One relating to particular persons or things of a class is special. The number of persons upon whom the law shall have any direct effect may be very few by reason of the subject to which it relates, but it must operate equally and uniformly upon all brought within the relations and circumstances for which it provides.

6. SAME--Void If Not General in Its Application. A Statute, in order to avoid a conflict with the prohibition against special legislation must be general in its application to a class, and all of the class within like circumstances must come within its operations. If it is limited in its application to one person or thing and is enacted for one purpose and for one person, it then becomes special in its subject matter and operation and is void.

7. SAME--Special Act Conferring Special Privilege Void. Section 25 of the Appropriation Act of 1895 is a special act conferring a special privilege upon the State Capital Printing company and is void for conflict with the congressional inhibition. The act imposes a duty upon the officers of the territory, and imposes no duty or obligation upon the State Capital Printing company, but confers a privilege which the company may accept or reject at its option without incurring any liability for a refusal to perform any work required by the act.

8. MANDAMUS--Return Insufficient--Peremptory Writ Should Issue. The return of the auditor fails to show any valid reason for a failure to audit the accounts of the petitioners and the peremptory writ should issue.

John F. Stone, for petitioner.

C. A. Galbraith, Attorney General, Asp, Shartel & Cottingham, contra.

BURFORD, J.:

¶1 This is an original application for writ of mandamus. The Guthrie Daily Leader, a co-partnership, filed their petition with the chief justice, in which they allege that on May 14, 1895, the clerk of the supreme court ordered, for the use of said court, two hundred bar dockets, which they printed, bound, published and delivered, and which was of the value of seventy-eight dollars; that on the 14th day of March, 1895, the secretary of the territory ordered from them one six-quire insurance record, which they manufactured and delivered to said secretary, and which was of the value of sixteen dollars.

¶2 That statements of the amounts due upon said contracts for said materials furnished and printing and binding so done, duly approved by the clerk and secretary respectively, and duly certified, were filed with E. D. Cameron, territorial auditor, and said auditor was requested to audit and allow said accounts and draw his warrants on the territorial treasurer for said amounts, which said auditor refused to do. An alternative writ was allowed by the chief justice, returnable before the supreme court. The auditor made his return, in which he shows that by the provisions of § 25, ch. 4, Session Laws of 1895, all printing and binding done and stationery required, shall be done and furnished by the State Capital Printing company, and that said clerk and secretary had no authority to contract with the Daily Leader for said work, and that he had no authority to draw a warrant for such supplies in favor of any other person than the State Capital Printing company.

¶3 To this return the petitioners demurred on the ground that said return does not state facts sufficient to constitute an answer to the alternative writ.

¶4 This presents the question of the validity of the section of the Appropriation Act referred to by the return. Section 25 of the act making appropriations for current expenses for the Territory of Oklahoma for the year 1895, p. 47, reads as follows:

"SEC. 25. All printing, binding, stereotyping and stationery of whatever character, which is paid for out of the territorial treasury, the treasurer of the board of regents of any territorial institution or from the territorial school land fund, shall be done and furnished by the State Capital Printing company of Guthrie, Oklahoma, and every territorial officer having work of this nature to be done, or stationery to purchase, shall furnish the copy to and have the same done and furnished by the State Capital Printing company, and such printing shall be paid for at the price established by the government of the United States through the printed instructions of the secretary of the interior to the secretary of the territory for territorial printing, unless the price is otherwise established by the Territorial Statutes.

"All proclamations and notices issued by the governor and other territorial officers to be paid for out of the territorial treasury, the treasury of the board of regents of any territorial institution, or the territorial school land fund, shall be published in the Daily and Weekly Oklahoma State Capital, of Guthrie, Oklahoma, and paid for as provided by the Statutes of Oklahoma for legal publications, said publications to be made in both daily and weekly editions of said paper at the same price as though published in the daily edition only. All acts and parts of acts in conflict with this section of this act are hereby repealed."

¶5 If this act is valid the return is sufficient; if it is invalid, then the peremptory writ should issue.

¶6 The petitioners contend that the act either creates the office of public printer, and takes from the executive the right to fill the office by appointment, or, that it grants a special privilege, and is void for conflict with the act of congress limiting the powers of territorial legislatures.

¶7 We will consider these questions in the order they are presented in the briefs, and first, does § 25 create an office? The position of public printer may or may not be an office; the name does not necessarily imply an office, and if it is such, it is clearly a creation of statute. In some of the states such position is denominated an office and its incumbent an officer, while in others, it is an employment, or the public printing and furnishing of stationery is supplied under contract, and there is no general rule on the subject. Each particular case must be determined by the law governing it. Ordinarily such agencies are not classed as offices, unless so declared by the legislature, yet it is true, that if such a position embraces all the elements of a public office, the person filling the same will be treated as a public officer whether the legislature calls him an officer or not.

¶8 Mechem in his valuable work on public officers, § 1, defines a public office as follows:

"A public office is the right, authority and duty created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised for the benefit of the public. The individual so invested is a public officer."

¶9 And this definition is supported by an abundant weight of authority.

¶10 The same author, in § 4, in stating the difference between an office and an employment, says:

"The most important characteristic which distinguishes an office from an employment or contract is, that the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public; that same portion of the sovereignty of the country, either legislative, executive or judicial, attaches for the time being, to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer."

¶11 In United States v. Hartwell, 73 U.S. 385, 6 Wall. 385, 18 L. Ed. 830, Mr. Justice Swayne said:

"An office is a public station or employment conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument and duties."

¶12 Mr. Justice Grier, in Sheboygan County v. Parker, 70 U.S. 93, 3 Wall. 93, 18 L. Ed. 33, said:

"An officer of the county is one by whom the county performs its political functions, its functions of government."

¶13 That profound jurist and eminent author, Judge Cooley, in the case of Throop v. Langdon, 40 Mich. 673, defines an office thus:

"An office is a special trust or charge created by competent authority. If not merely honorary, certain duties will be connected with it, the performance of which will be the consideration for its being conferred upon a particular

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