State v. Hackmann

• Decision Date: 15 March 1926
• Docket Number: No. 26062.,26062.
• Citation: 282 S.W. 1007
• Parties: STATE ex rel. McKINLEY PUB. CO. v. HACKMANN, State Auditor.
• Court: Missouri Supreme Court

282 S.W. 1007

STATE ex rel. McKINLEY PUB. CO. v. HACKMANN, State Auditor.

No. 26062.

Supreme Court of Missouri, in Banc.

March 15, 1926.

Rehearing Denied April 9, 1926.

Original proceeding in mandamus by the State, on the relation of the McKinley Publishing Company, against George E. Hackmann, State Auditor. Respondent filed a return to the alternative writ, and relator moves for judgment on the pleadings. Peremptory writ denied.

L. N. Wylder, of Kansas City, Lue C. Lozier, of Jefferson City, and John T. Barker of Kansas City, for relator.

Robert W. Otto, Atty. Gen. (Wilfley, Williams, McIntyre & Nelson, of St. Louis, of counsel), for respondent.

WALKER, J.

This is an original proceeding in mandamus to compel the respondent, the state auditor, to issue a warrant upon the state treasury to pay for certain printing and stationery alleged by the relator to have been furnished to the state highway commission.

Respondent filed a return to the alternative writ, and the relator moved for a judgment on the pleadings. This motion admitted directly or impliedly all of the well-pleaded facts in the return, and left for consideration only issues of law.

In 1870 (Laws 1870, p. 79), the office of public printer was abolished and three state officers, to wit, the secretary of state, state auditor, and register of lands were declared to be ex officio commissioners of public printing, and their duties were prescribed and their powers defined. Except in the charges allowed for composition (Laws 1873, p. 57), and the classification of the matter to be printed (Laws 1883, p. 126), and designating the place where the printing was to be done (Laws 1885, p. 219), the body of the law remained the same as originally enacted, and was so incorporated in the revision of 1889 (chapter 130 R. S. 1889). In 1891 (Laws 1891, p. 189) section 7367, R. S. 1889, was repealed, and a new section enacted, in which the duty of the secretary of state was more fully and definitely defined in regard to the custody and furnishing of stationery required to be used by the contractor in the printing required to be done by him for the executive departments of the state.

In 1893 (Laws 1893, p. 215) the office of the register of lands having been abolished, the state treasurer was made a member of the board of printing commissioners.

At the revising session in 1899, sections 7359 and 7360, R. S. 1889, were amended in regard to the duties of the secretary of state and the contractor concerning the printing required to be done for the General Assembly. These amendments are not material to this issue. In other respects the revised bill on public printing, as it appears in the statutes of 1899 (chapter 145), is the same as former statutes on this subject. The statute as thus enacted was carried forward without revision into the statutes of 1909 (chapter 99, R. S, 1909). In 1919 (Laws 1919, p. 617) section 10356 (chapter 99, R. S. 1909), now section 9714, was repealed and a new section enacted, which more clearly defines what is meant in this statute by the "executive departments of the state."

Aside from this amendment and one enacted in 1921 (Laws 1921, p. 568), concerning the terms of letting the contract for public printing, the statute of 1919 is the same as that of the preceding revision.

In addition to the foregoing epitome of the legislation on this subject, a resume of the relevant portions of the statute as it now exists is not inappropriate, not only as an aid in its interpretation, but as more clearly defining the reasons for the same. This statute, designated as "Public Printing," is embodied in sections 9697-9721, chapter 89, of the present revision.

Section 9697 designates the state officers who shall ex officio, during their respective terms, constitute the commissioners of public printing.

Section 9698 divides the state printing into three classes, and provides that all of the printing for the executive departments (except pamphlets) shall constitute the third class.

Section 9699, as amended (Laws 1921, p. 568), provides that the commissioners of public printing shall at stated intervals enter in" to two-year contracts with responsible persons for supplying the state printing; that the contracts for different classes of printing shall be made separately, and may be entered into with different persons for different classes of printing; and that the successful bidders shall execute bonds to the state for the faithful performance of said contracts. Section 9714 provides that—

"Commissioners of printing shall examine the Proof sheets of all work executed under the provisions of this chapter, and see that they are correctly printed, and that all such work is executed in a suitable manner and in accordance with the requirements of this chapter. Said commissioners shall keep an accurate account of all paper delivered to the public printer or printers, and see that it is used properly and without unnecessary waste. All work to be executed for the executive departments shall be ordered through the commissioners of public printing, and a requisition shall be obtained in advance signed by the head of the department ordering such work and said requisition shall be approved by the commissioners of public printing in the same manner as that provided in section 9717 of this law respecting the examination of accounts. Executive departments shall in this and other sections of this chapter be construed to mean both the heads of said departments and the subordinate branches thereof, the boards, commissions, bureaus and officers appointed by the heads of said departments except the boards of educational and eleemosynary institutions of the state. It shall be the duty of the commissioners to see that the full number of copies of each job is received from the printer and delivered to the proper department. No accounts shall be considered or approved by them or paid by the state auditor unless the work for which it is rendered is done in accordance with the requisition obtained in advance and approved as herein provided, and if when the final copies are delivered they be less than the number called for in the requisition, the commissioners shall pay only for the actual number of copies delivered, and no account for composition shall be rendered or approved until the requisition for the order is returned to the commissioners and thereafter no charge for composition shall be made on that order. The commissioners of public printing shall have the power to determine the number of copies and number of pages of subject material in each document printed under their supervision. They shall audit all accounts for printing and binding executed under the provisions of this chapter, and they shall keep a record of the cost of printing and binding, the amount of paper used, and the entire expense of each document or item, and a copy of each document shall be duly filed and preserved by them, with the cost indorsed upon it."

Section 9717 provides, among other things, that for all accounts for public printing, when indorsed by the commissioners, the state auditor shall draw a warrant upon the treasury for the amounts thereof, payable out of any money appropriated for that purpose.

Section 9721 provides that the commissioners of public printing shall at stated intervals let contracts for supplying the executive departments as above defined, and both branches of the General Assembly for a term of one year, with stationery (which includes lead pencils); that the successful bidder shall execute a bond to the state to protect the state from any loss that might accrue by the failure of the contractor to fulfill the contract. The evident purpose of this statute is to promote the economical administration of that branch of the public service to which it has reference.

Facts admitted by the relator as a result of his motion for a judgment on the pleadings are that his account, based upon a claim for printing and stationery furnished to the state highway commission, on which this proceedings is based, was not in compliance with any of the provisions of the statute regulating public printing; that at the time the relator had no contract with the state to supply either stationery or printing to any of its departments; that such a contract, made and executed under the law regulating public printing and the furnishing of stationery to the executive department of the state government, had been let to, and was held by, a contractor under the conditions and requirements of chapter 89, R: S. 1919; that the state auditor refused to issue a warrant to relator in payment of his account on the ground that the purchase of all printing and stationery for the highway commission was controlled by chapter 89, which had not been complied with in this instance; and that said commission was without power to bind the state for this account.

I. The statute regulating public printing is limited in its purview to the executive departments. This term has been well defined elsewhere to include all acts which public officers are required to perform by legislative authority and which they are bound to obey (Altemus v. New York, 6 Duer [N. Y.] loc. cit. 455); and to include all persons upon whom are imposed duties in the administration of public affairs as contradistinguished from legislative and judicial functions (People v. Salsbury, 96 N. W. 936, 134 Mich. loc. cit. 549).

The triune character of our governments, state and national, being the same, this definition is as applicable here as elsewhere. Its correctness no one familiar with their character will question. Despite this fact, the Legislature, whether prompted by what it regarded as an improperly limited judicial definition of the term, as applied to the law (section 10356, R. S. 1909), then in force in regard to the duties of the printing commissioner, or for other reasons, repealed the same, and enacted what is now section 9714 of...