State v. Lewis

• Decision Date: 24 February 1898
• Citation: 52 P. 163,6 Idaho 51
• Parties: ANDERSON, STATE AUDITOR, v. LEWIS, SECRETARY OF STATE
• Court: Idaho Supreme Court

52 P. 163

6 Idaho 51

ANDERSON, STATE AUDITOR, v. LEWIS, SECRETARY OF STATE

Supreme Court of Idaho

February 24, 1898

APPROPRIATION FOR PRINTING AND BINDING JOURNALS.-Where an appropriation is made by the legislature for "publishing the journals of the Senate and House and the Sessions Laws," such act is intended only to provide compensation for the printing and binding thereof.

COPIES OF LAWS AND JOURNALS-SECRETARY'S DUTY TO PREPARE.-It is part of the official duty of the Secretary of State to prepare the copies of the laws and journals for the printer.

FEES PAID TO SECRETARY BELONG TO STATE TREASURY.-Where the Secretary of State has received fees for making such copies such fees are required to be paid into the state treasury by the Secretary of State under the provisions of section 19 article 4 of the constitution.

SAME-AS TO FURNISHING COPIES TO PRINTING COMPANY.-Where the Secretary of State makes a contract with a printing company, to publish the laws and journals by the terms of which contract the secretary is to receive a certain portion of the contract price for the preparation of the copies for the printer, such contract is within the prohibitions of section 365 of the Revised Statutes of Idaho.

(Syllabus by the court.)

An original proceeding by mandamus.

Writ of mandate issued.

Samuel H. Hays and Henry Z. Johnson, for Plaintiff.

Section 209 of the Revised Statutes provides that whenever any person has received moneys, or has collected moneys belonging to the state and fails to account therefor, or who fails to pay into the treasury any money belonging to the state, upon being required to do so by the auditor, within twenty days after such requisition, the auditor must state an account with such person charging twenty-five per cent damages and interest at ten per cent. Mandamus is the proper remedy in this case. (State v. Stanton, 14 Utah 180, 46 P. 1109; State v. Roderick, 23 Neb. 505, 37 N.W. 77.) Section 190 of the Revised Statutes makes the secretary the legal custodian of the laws and journals. Section 19, article 4 of the constitution fixes, among other things, the salary of the Secretary of State at $ 1,800 per annum and provides that the compensations enumerated shall be in full for all services by said officers respectively rendered in any official capacity or employment whatever during their respective terms of office. Subdivision 7, section 191 of the Revised Statutes makes it the official duty of the secretary to furnish on demand to any person paying the fees therefor a certified copy of all or any part of any law or record in his office. Since it is the secretary's duty to make copies of the laws and journals when requested, we conclude that it is an "official duty," and since he is entitled to certain fees therefor, and has received them, and has not paid them into the state treasury, his delinquency is fixed since the constitution provides that "no officer shall receive for the performance of any official duty any fee for his own use," but all fees must be paid into the state treasury. We contend that the defendant, so far as it relates to any of the matters of his office, has no "private or personal capacity." He is Secretary of State both during and after office hours, including nights and Sundays. (Ring v. Devlin, 68 Wis. 384, 32 N.W. 121; Mechem on Public Officers, secs. 839, 840; State ex rel. Frontier Co. v. Kelley, 30 Neb. 574, 46 N.W. 714; Ada County v. Ryals, 4 Idaho 365, 39 P. 556; State v McFetridge, 84 Wis. 473, 501, 51 N.W. 1, 998; State v. Leidtke, 12 Neb. 171, 10 N.W. 703.) Defendant denies certifying to the laws but on succeeding page 196 of the 1897 Laws appears his official certificate, with seal and signature, of which this court must take judicial notice. Having made this certificate, he was entitled to the full amount of the fee for copying the laws. (See Potter v. Talkington, 5 Idaho 316, 49 P. 14; Yates v. National Home, 103 U.S. 674; Banks v. State, 60 Md. 305; Lucas v. Allen, 80 Ky. 681; People v. Township, 11 Mich. 221.)

N. M. Ruick, for Defendant.

The real question and the all-important one raised by the demurrer to the answer in this case is: Was the defendant, as Secretary of State, required by law to perform the services which were, concededly, performed by him in this case? Were the services performed by the defendant, as and in the manner as set forth in his answer, performed by him in his official capacity? In this case the contract to publish the laws and journals was let to the Sentinel Printing Company, and, by the terms of their contract, they were to transcribe, compile, publish and bind the same, in consideration of the sum of $ 2,000. It was immaterial as to how or from whom the "copy" was obtained or through whom it was obtained, so that it was procured complete and in form to be set up by the printer; since the records of the office of Secretary of State are open to the public, this copy could as well be procured by one as another, and it did not require this copy to be certified to answer the purpose sought in supplying the printer therewith. The fact should not be lost sight of that this "publishing" was being done for, on behalf of and at the request of the state, and was incidental to procuring to be published such laws and journals. The furnishing of this copy to the printer or publisher, at his request was not an act in any sense sufficient, inasmuch as it was not a duty required by law of any official, in an instance like this, where the laws and journals are being published by and for the state. We submit therefore that the defendant, as Secretary of State, not being required by law to perform these services, and the services being such as could have been performed with equal facility and utility by a private individual, that the services so performed by the defendant were wholly unofficial and that the compensation received therefor was in no sense an official compensation or "fee" required by the constitution to be turned into the state treasury. As cases and authorities upon the point that an officer is entitled to extra compensation for services performed by him, which services are extraofficial and not required of him by virtue of his office, we cite the following: 19 Am. & Eng. Ency. of Law, 530, note 4; Love v. Baehr, 47 Cal. 364; Curtis v. Sacramento etc., 13 Cal. 290; Evans v. Trenton, 24 N.J.L. 764; Burroughs v. Board, 29 Kan. 196; McBride v. City of Grand Rapids, 47 Mich. 236, 10 N.W. 353; Niles v. Muzzy, 33 Mich. 61, 20 Am. Rep. 670.

HUSTON, J. Sullivan, C. J., and Quarles, J., concur.

OPINION

HUSTON, J.

The facts are, as they appear from the record, in substance as follows: In the appropriations for current expenses of the state government, passed by the fourth session of the Idaho legislature, there was included in the appropriations for Secretary of State, for "publishing House and Senate journals and Session Laws of 1...