Brown v. . Turner

Bynum, J.

To enable the plaintiff to recover, he must maintain three propositions:

.1. That what he claims, is a public office.

2. That he has the legal title to it.

3. That he is prosecuting his claim by the right form of action.

1. Is it an office ?

Ch. 43, Acts of 1869-70, enacts “That the office of State Printer be and the same is hereby abolished, and all laws and parts of laws in conflict with this act are hereby repealed.”

Oh. 180, Aets of 1871-72, enacts “ That the Joint Committee on Printing of the two Houses of the General Assembly” are directed and instructed to make, execute and deliver a contract for the public printing, on the part of the State,” at the rates specified in this act.

There is an act positively abolishing the office of Public Printer, eo nomine, which, according to Hoke v. Henderson, 4 Dev. 1. is constitutional in form and substance, because it disturbs no vested right or term of an incumbent.' But it is urged that this construction óf the act abolishing the office, left tbe State without the power of printing and publishing the laws. Be it so. The mischief is the act of the Legislature, and cannot operate as a grant of power to the Executive, to create an office, as a remedy for legislative indiscretion. But that body did, by the act of 1871-72, undertake to repair the mischief done in abolishing the office, by making it the duty of a “joint committee” to contract for the public printing. To t^s, it is replied, that the Legislature had no power to make “contracts” because that, is an executive function. Admit that, and that their contracts are void for the infringement, still it leaves the office abolished, and the argument is not advanced. But is it true, that the making of a contract is an exclusive executive function % That will depend upon what are exclusive executive powers. To say that because a thing is a contract, it is an executive duty, is begging the very question in dispute.

There is no magic in the word “contract” which appropriates it solely to executive uses. Where, in the Constitution, is the prohibition upon the Legislature, to make a contract % We know that it both has, and does exercise, the right of making contracts, indeed, all laws in one sense are contracts, express or implied, and derive their highest sanction from the faith we repose in them as such, and there is nothing in the nature of things which forbids the Legislature to become a contracting party.

But it is said that an office cannot be abolished by indirection, leaving all its duties to be performed by a person called a “ contractor ” of public printing.

As was said of the word “contract,” we say that that there is no magic in the word “office.” When the Legislature created and called it an office, it was an office, not because the peculiar duties of the place constituted it such, but because the creative will of the law-making power impressed that stamp upon it; therefore, when that stamp was effaced by the repealing act of 1869-70, it shrank to the level of an undefined duty. The authority that invested these duties with the name and dignity of a public offiee, afterwards divested them of that name and dignity.

There being now no law of the land declaring it to be a public- offiee, our next enquiry is, do the duties of the Public Printer constitute it an office ?

The plaee is really sui generis, and therefore the ordinary criteria by which we distinguish and classify public offices can not aid us to a conclusion here. It occupies that neutral ground where it may “shade into” a legislative or executive function, withont disturbing the harmony of either. It comes within the definition of a public office because its duties relate to the public and are prescribed by public law, but so may the duties of a contractor or workman upon a public building. It seems not to be an office, because all the duties of Public Printer, as prescribed by law, are mechanical only, as much so as those of a carpenter or brick-mason, calling for neither judgment or discretion, in a legal sense, and which may be performed by .employees, men, women or children, in or out of the State, and on his death every unfinished duty of the printer can and must be, under existing law, completed by his personal representative. If it is an offiee, there is no law prescribing the term or duration of it, and it may be held for life as well as a •term of years, which puts it out of harmony with the whole genius and spirit of our political institutions, a conclusion which can be forced upon us, only on the most evident necessity.

Assuming, as most favorable to the plaintiff, that this anom-olous collection of duties has vibrated upon the dividing line between two departments, a closer view will show that it has finally assumed a state of rest, upon the legislative side of the line. The office of State Printer, as such, was abolished in 1870. From that time to this, each political party, when it gained the ascendancy in the Legislature, claimed and exercised the exclusive control over the public printing by their own election of, or contract with, the printer. In 1873, the question was raised in a direct proceeding for that purpose, before Judge Moore, and it was then decided by him, in a well considered opinion, to be not an office, and that judgment was acquiesced in by the contestant and all the branches of the government. It would seem, then, that this action and acquiescence of all the departments of the government had fixed the true position of this place, in a manner not to be shaken. There is nothing in the nature of the duties to be performed to-excite the jealousy of the other departments, or to disturb the equilibrium of either one of the three co-ordinate divisions of the supreme authority of the State. / While it is true that “ the executive, legislative and supreme judicial powers of the government ought to be forever separate and distinct,” it is also true that the science of government is a practical one;, therefore, while each should firmly maintain the essential powers belonging to. it, it cannot be forgotten that the three co-ordinate parts constitute one brotherhood, whose common trust requires a mutual toleration of the occupancy of what seems to be a “ common, because of vicinage,” bordering the domains of each.

It would seem as natural for the department which enacts the laws to control the publication of its labor, as for an author-to secure the copyright of his work, and to control' its publication. Printing and publishing are necessary part of the enactment of laws so essential that laws would be incomplete and valueless without being thus made known to- those who are bound to observe them..

We are not, therefore, disposed to go into a more curious, and critical enquiry upon this question,, where no great principle is involved and where such enquiries are more calculated to confuse than to answer any useful purpose. We hold that the Legislature has the right to let out the public printing by contract.

2. If this be an offiee, the next question would be, whether the plaintiffs title can be valid without confirmation by the Senate, or whether it falls within the decision in Howerton v. Tate, 68 N. C. Rep., 551, from which it seems distinguishable. As we are of opinion however, that it is not an office, we will not pursue the enquiry, but pass to the next question.

3. Is the plaintiff prosecuting his claim by the right form of action? Mandamus is a proceeding to compel a defendant to perform a duty which is owing to the plaintiff, and can be maintained only on the ground that the relation has a present, clear legal right to the thing claimed, and that it is the duty of the defendant to render it to him. If it appears from the complaint that two persons are claiming the same duty adversely to each other, against a third party, the writ does not lie. Tom. L. D., tit. Mandamus, 3 Bun. 1452, and that for the plain reason that the title must be decided between them before the defendant can know to whom the duty or thing is due.

The plaintiff here alleges that the defendant, Turner, on the 18th December, 1873, entered into a contract with a joint committee oí the two Houses to do the public printing, and gave bond to the State for the performance of the duties according to law, and claimed the right to do the printing. That he, the plaintiff, afterwards, to wit, on the 20th of the same month, was appointed Public Printer by the Governor of the State, gave the bond, took the oath of office, and claimed the same duty as Turner, from the defendant, Howerton, the Secretary of State.

If the ease rested upon this statement of the plaintiff himseltj it would be conclusive against him. But Howerton in his answer, states, that when this demand was made upon him, by the plaintiff, being unable to tell which of the claimants had the better title, he applied to his constitutional adviser, the Attorney General of the State, to instruct him in his duties, and that he gave as his opinion, that Turner had the better right and was entitled to the printing matter. In refusing the plaintiff, the Secretary of State was fully justified, for to have complied would have been a flagrant violation of the duty of his office, in failing to protect the property of the State. The law is not so unfaithful to itself, as to allow' its agents to surrender its rights to doubtful claimants. A judgment in mandamus, does not decide the title, for if the plaintiff obtained judgment against Howerton, it would not estop Turner from bringing his action against the plaintiff, Brown.

The right sought to be tried, is not one between Brown and Howerton, but between Turner and Brown, yet the mandamus is against Howerton, a third party, who has no interest in the controversy, except to know who is the rightful claimant, until which time no duty arises on his part, and no action lies against him. We have labored diligently, and failed to find, a single case in the books, where one of two persons claiming the same office adversely to each other, can by mandamus, call upon a third party, to render a duty which is owing by him to the rightful one only of the two.

The question of title is put directly in issue, and when that is the case, mandamus is not the form of action, but the appropriate remedy is an action in the nature of quo warranto, not against Howerton but against Turner. People v. Olds, 3 Cal. 167; 2 Term R. 289; 3 John Ca. 379. It is true that the latter actiou cannot be maintained, unless there is an intrusion and user of the office, by the defendant, and it is here alleged that Turner had not filled or used the office, and therefore the plaintiff was without remedy, unless by mandamus. But the authorities establish, that entering into a contract and giving bond, or taking an oath of office, are acts which constitute such a user or intrusion, as will support the action, in the nature of quo warranto. Steph. Nisi Prius 2441; Heos v. Tate, 4 East. 337; Hill v. Bonner, et al., Busb. 257; Mos. on Mandamus.

But suppose Turner was out of the way, and the undisputed title of the office was in the plaintiff, is he entitled to the relief he asks, upon the pleading ? No stress is laid upon the fact, that the action is not on the relation of the Attorney General, for we are of opinion that under the liberal provisions of the C. C. P. any party having a right, can sue in his own name, i n all cases except when otherwise expressly provided. In modern practice, mandamus is not a prerogative writ, but an ordinary process in cases to which it is applicable, and every one is entitled to it where it is the appropriate process for asserting the right claimed. Kentucky v. Dennison, per Taney C. J. 24 How. 66. 12 Pet. 615. C. C. P. 381, 362.

Assuming, then, that the plaintiff can sue in his own name, especially under the circumstances of this case, the principle to be extracted from the case, as applicable to public officers, is this : Mandamus will lie where the act required to be done is imposed by law, is merely ministerial, the relator has a clear • right and is without any other adequate remedy.. Mos. on Mandamus, 68. But it does not lie where judgment and discretion are to be exercised, nor to control the officer in the manner of conducting the general duties of his office. 2 Dillon on Corporations, S. 665; 34 Pa. Rep. 496. In Decatur v. Spaulding, 14 Pet. 497, it was held that mandamus would not lie against the Secretary, because the duty required by the writ was executive, in which judgment and discretion had to be used, to-wit; in construing and passing upon an act of Congress. To the same effect is Brashear v. Mason, 6 How. 92; U. S. v. Guthrie, 17 How. 284, where the Court says, “ It has been ruled that the only acts to which the power of the Courts, by mandamus, extends, are such as are purely ministerial as to which nothing like judgment or discretion, in the performance of the duties, is left to the officer.” So when an office is3 filled by a person who is in by color of right, as we have shown by authority Turner to be, for the purposes of testing the title, a mandamus is never used, but a proper remedy is quo warranto. 20 Bach. 302;, 7 Ga. 473 ; 2 Dun. and East. 259. The case of the United States v. Seaman, 17 How. 225, is an instructive one in point,'and was this: There was a printer to the Senate and a printer to the House of Representatives of the United States, and a Superintendent of Printing to both Houses, whose duty it was to receive and hand out all the printing, according to an act of Congress, which provided that when a document was ordered by both Houses to be printed, the entire printing of such document should be done by the printer of that House which first ordered it. On the 31st of January, 1854, the Commissioner of Patents sent in to the Senate that portion of his report relating to arts and manufactures, which the Senate, on the same day, ordered to be printed. On the 20th of March following, the Commissioner sent to both Houses the agricultural portion of his report, which the House first ordered to be printed. The printer to the Senate claimed that both reports constituted but one document, and that by virtue of the Senate order of 31st of January,, he was entitled to the printing of the agricultural part, although it was first ordered to be printed by the House. The Superintendent refused to deliver it to the Senate printer, and ma/ndamus was applied for to compel him. The Supreme Court held that ma/ndamus would not lie, on the ground that the duty of the Superintendent required the exercise of judgment as to ascertain facts and draw conclusions. In delivering judgment, Chief Justice TANEvsays: “The rule is well settled that ma/ndannus cannot issue in a case where discretion and judgment are to he exercised by the officer, and it can be granted only where the act required to be done is merely ministerial and the relator without any other adequate remedy. * * * Nor is there any reason of public policy or individual right why this remedy should be extended beyond its legitimate bounds to embrace cases of this description, for it would embarrass the operations of the executive and legislative departments of governments if the Courts were authorized to interfere by this summary process in controversies between officers in their respective employments, whenever differences of opinion as to their respective rights may arise.” Marbrey v. Madison, 1 Cranch. 64; Kendall v. U. S. 12 Pet. 834; 2 Cowen 444; Ruside v. Walker, 11 How. 272; Cotton v. Ellis, 7 Jon. 545.

Here Howerton was called upon to decide a grave constitutional question, in favor of one who claimed in the face of an act of the Legislature, the decision of a Judge, the deliberate opinion of the Attorney General, and the uniform practice of all the departments of the government np to that time. To say that mandamus will lie in such a case is wholly inadmissible.

Judment reversed, demurrer allowed and case dismissed.

Per CuriaM. Judgment reversed.