Parmenter v. State

• Decision Date: 04 October 1892
• Citation: 31 N.E. 1035,135 N.Y. 154
• Parties: PARMENTER v. STATE.
• Court: New York Court of Appeals Court of Appeals

135 N.Y. 154

31 N.E. 1035

PARMENTER

v.STATE.

Court of Appeals of New York.

Oct. 4, 1892.

Appeal from board of claims.

Jerome B. Parmenter, under authority expressly conferred on him by Laws 1888, c. 541, filed with the board of claims a claim against the state arising out of a contract which he had entered into for the legislative printing for a period of two years from February 8, 1876. From the award of the board of claims the state appeals. Affirmed.

Chas. F. Tabor, for the State.

R. A. Parmenter, Frank J. Parmenter, and Albert Hessberg, for respondent.

PECKHAM, J.

The respondent entered into a contract with the secretary of state and comptroller to do certain printing of a public nature for the sum of $47,500 for each of two legislative sessions. During the first session he did certain printing which he claimed did not come within the description of that for which he was to receive an annual compensation in gross, but that it was provided to be paid for at special rates by another provision of the contract. The claim he made for payment upon such a basis was disputed by the officers of the state. For the purpose of compelling payment of his claim, the respondent commenced proceedings by mandamus against the late comptroller, Oclott, and the result thereof was the procurement and entry of a judgment against the comptroller, directing him to draw his warrant for the payment of the work as claimed by the respondent. The judgment was subsequently paid, and satisfied of record. The work for which the respondent claims compensation herein is of the same nature as that for which he was awarded the mandamus, and was performed subsequent to the time when the proceeding to procure the writ was inaugurated. It was necessary in the mandamus proceeding, before the writ could be awarded, to give such a construction to the contract in question as would exclude the claim of the respondent from that class of work which he was bound to perform for the gross sum mentioned. That construction was given the contract in the mandamus proceeding, and a judgment in favor of the respondent followed thereon. He now claims that this judgment is res adjudicata, and estops the state from contending for any other construction of the contract than the one already given in the mandamus proceeding. The comptroller was proceeded against in that matter as an officer who was neglecting to perform an official duty, and, if it were true that he was guilty of that neglect, he was not in any sense representing the state therein. The proceeding was in the name of the people upon the relation of the respondent against a public officer, while this proceeding is permitted by legislative authority, and is one by the respondent as an individual, and against the state in its corporate capacity. To hold the state estopped by the conclusive character of a judgment against one of its officers in a case like this would be to create an estoppel against the state by a suit or proceeding to which it was not a party, and where it had not granted leave to any one to sue or implead it, except by a procedure not taken in the mandamus matter. We are not impressed with the validity of the claim of the respondent upon this question, but in the view we take of the contract that question becomes unimportant, and we do not therefore decide it.

We are of the opinion that the contract has been properly construed by the board of claims in this proceeding. It may be that the language used in the first part of the contract is of such wide scope as to include all kinds of printing for which the state has ever been in the habit of paying. This language is capable of such a construction as to place it in the power of the legislature to bankrupt the person who had made the contract, if all the printing which might be called for under it were to be included in the sum mentioned. After the agreement to do the printing of each legislative session for a sum in gross, and after the details regarding it were provided for generally in the contract, this further proviso was added: ‘It is further understood and agreed that, in the event of an extra session of the legislature, the said work shall be done and materials furnished for the prices stated in detail in the alternative bid annexed; and the same prices shall also be paid for any work and materials ordered, not for the use of the legislature.’ It is claimed on the part of the respondent that the words above italicized apply, as is plainly stated, to ‘any work and materials ordered, not for the use of the legislature,’ while the counsel for the state contends that those words are to be limited as applying to work and materials ordered at the extra session, and not for the use of the legislature. Extra sessions of the legislature are comparatively of rare occurrence. Still, when they are convened, it is of course necessary that printing should be done for them. The parties evidently did not contemplate that the printing at an extra session should be included in the gross sum of $47,500, and hence it was provided that such printing should be done for the prices stated in detail in the alternative bid annexed to the contract. Then follows the provision by which any work and materials ordered, not for the use of the legislature, are to be paid for at the prices stated in the alternative bid. The words actually used are broad enough to cover printing ordered, not for the use of the legislature, at a regular as well as at an extra session. It seems to us that the broader construction is not only called for by the language actually employed, but that the circumstances themselves point to such construction as the natural and proper one. By the use of this language some limitation is put upon the power of the legislature to order printing under the contract, and to be paid for by payment of the gross sum mentioned. To restrict the language to printing at an extra session is to do away with almost all its usefulness, because, as has been stated, and as is well known to all, extra sessions are of quite rare occurrence, and the power to order printing not for the use of the legislature could be exercised at each regular session to the possible financial destruction of the public printer, unless there were some such safeguard interposed as is to be found in this limitation if it apply to regular as well as extra sessions. It is said that in the original contract there is a comma, instead of a semicolon, after the word ‘annexed,’ in the above quotation from the contract relating to the extra session and the prices to be paid for printing, so that the language and punctuation would be that the ‘work shall be done and materials furnished for the prices stated in detail in the alternative bid annexed, and the same prices shall also be paid for any work and materials ordered, not for the use of the legislature.’ We think the presence or absence of the semicolon or the comma is not of the slightest consequence upon this question of construction. The language used, and the surrounding circumstances, both, as we have said, concur in making it entirely plain that the gross sum applies to printing for the use of the legislature, and that prices mentioned in the alternative bid apply to all work ordered at regular or extra sessions which was not for the use of the legislature. It is true that under the terms of the contract as it stands the contractor would be bound to do ‘extra printing,’ which might be ordered for the use of the legislature by an act, joint rule, or concurrent resolution, which extra printing would be included in the gross sum provided to be paid the contractor. This power might be so used as to perhaps financially ruin the contractor. The fact that such power existed in regard to one class of printing, where it was difficult to limit the amount, might, and naturally would, induce caution in placing still more power in the hands of a reckless or thoughtless majority. What was generally required for the use of the legislature in the way of printing was also well known, and the contractor might reasonably rely on the honor and the sense of fairness of the legislature not to order extra printing to a greater amount than customary or usual. But for printing not for the use of the legislature there naturally might not be such a regular and well-established custom, because the things to be printed might vary so in each year that no past year could furnish any reliable guide to the requirements of any future year. Hence the importance of providing for a separate compensation, and upon a different plan for printing not for the use of the legislature from that which was provided for under the gross sum. These considerations strengthen the view we take as to the construction of the contract under discussion.

It is, however, urged upon the part of the state that if the construction of the contract as contended for by the respondent be correct, yet the claim, if between citizens, would be barred by the statute of limitations, and hence the board of claims had no legal power to make the award it did. In 1874 an amendment to the seventh article of the constitution was adopted by the people. It is section 14 of that article. The material portion of the amendment reads as follows: ‘Neither the legislature, canal board, canal appraisers, nor any person or persons acting in behalf of the state, shall audit, allow, or pay any claim which, as between citizens of the state, would be barred by lapse of time.’ It is not entirely clear what is the meaning of this phrase, ‘which, as between citizens of the state, would be barred by lapse of time.’ As was said by RUGER, C. J., in O'Hara v. State, 112 N. Y. 146, 19 N. E. Rep. 659, there is little analogy between the position of citizens with regard to the enforcement of their legal rights among themselves, and the position of a citizen with regard to the enforcement of his claim against the...