Miller v. State Bd. Of Agriculture

• Decision Date: 01 April 1899
• Court: West Virginia Supreme Court
• Parties: MILLER. v. STATE BOARD OF AGRICULTURE.

32 S.E. 1007

(46 W.Va. 192)

MILLER.

v.STATE BOARD OF AGRICULTURE.

Supreme Court of Appeals of West Virginia.

April 1, 1899.

Mandamus—Enforcement of Contract—Action

against State.

1. A mere private contract will not be enforced by mandamus.

2. As the state cannot be sued, mandamus or other judicial process will not lie against state officers or boards to compel them to execute an executory contract between an individual and the state. Though the state is not in name a party, such suit is against it, within the meaning of the provision of the constitution prohibiting suit against the state.

(Syllabus by the Court.)

Application by A. G. Miller for writ of

mandamus against the state board of agriculture. Refused.

Flournoy, Price & Smith, for petitioner.

Watts & Ashby, for respondent.

BRANNON, J. Albert Gallatin Miller entered into a contract, January 2, 1899, with the state, through the commissioners of public printing, to do all the printing for the state for two years, under chapter 16, Code 1891. The state board of agriculture, claiming that the printing required in the exercise of its public functions does not fall under that contract, refused to allow Miller to do its printing, and employed the Donnelly Publishing Company to do it. Miller therefore asks this court to award him a peremptory mandamus to compel said board of agriculture to have him do its printing. The board moves to quash the mandamus nisi, which motion raises the questions of law on which the case turns. At once we meet the question whether we can compel the board to do what is asked of it. Miller's right grows only out of his contract. Mandamus does not lie to enforce contract rights of a private and personal nature. High, Extr. Rem. § 25. But, as courts do by mandamus compel public officers to perform acts purely ministerial, I suppose, where no other principle prevents, that, if a person has a right to have an officer perform such act for his benefit under the law, the fact that it grows out of contract would make no difference. It is claimed that when this contract is once made it is the duty of the departments of government to which it applies simply to execute it, and they have no discretion in the matter, and the duty is simply a ministerial one, commanded by the statute. I shall not enter that wide field of intricate law as to how far the courts can control the administration and functions of the executive department; but, treating the action which we are asked to compel the board to do as purely ministerial, and not discretionary with it, I shall inquire whether this court can compel that action by mandamus. In Railway Co. v. Miller, 19 W. Va. 408, it is held that, although the state cannot be sued, yet an injunction will lie against the auditor to restrain him from the performance of a mere ministerial duty, and the opinion states that the right to sue a state officer, when the state cannot be sued, either to require or inhibit the performance of a mere ministerial duty, has been repeatedly held. That case was to enjoin the auditor from taxing a railroad company in disregard of an exemption claimed by it. It can afford no precedent for this case. This case is the enforcement of a contract against the state. The general law is that a state cannot be sued without its consent. Const, art. 6, § 35, provides that "the state of West Virginia shall never be made a defendant in any court of law or equity." The question then arises, is this a suit against the state? It is not, in name, a party, and Chief Justice Marshall once laid down that, in order to say that a suit is against a state, it must be a party to the record in name Osborn v. Bank, 9 Wheat. 738, 857. But the supreme court has, as I think properly, overruled that position. The state acts only by officers, and where the action against them is based on no personal interest, but only because officers, and the liability falls, not on mem, but the state, the state is the real party. The federal constitution prohibits a suit in a federal court against a state by a citizen of another state or country, and thus the question has arisen in the supreme court as to when a suit is against a state, and it has been held that whether a state is the actual party defendant in a suit within the meaning of the eleventh amendment is to be determined by a consideration of the nature of the case as presented by the whole record, and not in every Case by reference to the nominal parties to the record. In order to secure the manifest purpose of the constitutional exemption guarantied by the eleventh amendment, it should be interpreted, not...