Martin v. State

• Citation: 51 Wis. 407,8 N.W. 248
• Parties: MARTIN v. STATE OF WISCONSIN.
• Decision Date: 02 March 1881
• Court: United States State Supreme Court of Wisconsin

51 Wis. 407

8 N.W. 248

MARTIN

v.STATE OF WISCONSIN.

Supreme Court of Wisconsin.

Filed March 2, 1881.

This is an action brought in this court to recover an unpaid balance of an award in favor of the plaintiff, made pursuant to chapter 243, Laws 1873, as amended by chapter 152, Laws 1874.

The complaint is as follows: “The complaint of the above-named plaintiff respectfully shows that heretofore, to-wit, on the fourteenth day of May, A. D. 1851, the plaintiff entered into a contract in writing with the defendant for the improvement of the Fox river in said state; that by reason of the failure of the defendant to perform said contract on its part to be performed, the plaintiff was put to and sustained great damage; that the plaintiff, after repeated efforts to settle with the defendant for his said damage without avail, offered to submit the matter to a commission of arbitration for adjustment, whereupon the legislature of said defendant state enacted a law authorizing and requiring the governor to appoint three disinterested persons, residents of the state, to hear, try, and determine the claim of the plaintiff; that said commissioners, or a majority of them, were by said acts of the legislature duly authorized and empowered to make such award as they deemed just and equitable, (see chapter 243, Gen. Laws 1873, and chapter 152, Gen. Laws 1874;) that under and pursuant to said acts three commissioners were duly appointed, and, after duly qualifying, proceeded to hear, try, and determine said claim; that on or about the twenty-sixth day of June, A. D. 1874, said commissioners, or a majority of them, as authorized by said acts, made and certified their findings and reported to the secretary of state, and duly filed the same in his office, on the twenty-seventh day of June, A. D. 1874. by which findings and report the said commissioners awarded to the plaintiff the sum of $24,678.56, in full satisfaction of his said claim, (a copy of which findings and report is hereto annexed, made a part hereof, and marked Exhibit A;) that upon the making and filing of said report by said commission the plaintiff duly demanded the payment thereof, which was refused, and no part thereof has been paid except the sum of $10,975.16, which was paid by the defendant to the plaintiff on or about the first day of July, A. D. 1874, leaving a balance still due and unpaid, of $13,704.40; that the plaintiff has repeatedly applied to the legislature for the allowance and payment of the balance of his said claim so found due and awarded to him, which said applications have been refused. Wherefore the plaintiff demands judgment against the defendant for the sum of $13,704.40, the balance of said award as aforesaid, with interest thereon from the twenty-sixth day of June, 1874, at the rate of 7 per cent. per annum, together with costs.” A sufficient statement of the contents of the commissioners' report will be found in State ex rel. Martin v. Doyle, 38 Wis. 92. To this complaint the attorney general has interposed a general demurrer.L. S. Dixon and L. J. Billings, for plaintiff.

Alex. Wilson, Att'y Gen., for defendant.

LYON, J.

We do not find it necessary to determine here the question suggested in State ex rel. Martin v. Doyle, 38 Wis. 92, and again in Carpenter v. The State, 39 Wis. 271, whether the legislature has the constitutional power to make an appropriation of public money dependent in amount upon the determination of persons not constitutional officers, or whether it can bind the state by such a determination absolutely and beyond the control of a future legislature. It is assumed for the purposes of this case (as it was in those cases) that the legislature has such power, and that chapter 243 of 1873, as amended by chapter 152 of 1874, is a valid one. On that hypothesis the question is whether the award of the commissioners appointed pursuant to that act is conclusive against the state without an approval thereof by the secretary of state. The answer to this question depends upon the effect to be given to that provision of the act of 1873, which contemplates such approval. The language of the act is upon a report made and certified by a majority of such commissioners to the secretary of state awarding any sum of money in satisfaction of said claim, and on his approval thereof he shall draw his warrant on the state treasurer for the amount so awarded. Section 2.

In State ex rel. Martin v. Doyle, supra, it was held that mandamus would not lie to compel the secretary to draw his warrant on the treasurer for that portion of the award not approved by him. This court there considered and construed the words of the act above quoted. In the opinion of the court, written by the late chief justice, it is said: “There appears to us to be no reasonable doubt that the true construction of section 2 of the act of 1873 makes the report of the...