Anderson v. Lewis

HESTON, J. — The facts ar.e, 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 1897, $2,000.” The Secretary of State made a contract with the Sentinel Printing Company, through its agent or manager, for the printing, binding, etc., of said laws and journals, for the sum of $2,000. It appears that of said sum of $2,000 the sum of $675 was paid to the Secretary of State, for copying and preparing said laws and journals for the printer. It is claimed by the petitioner that the sum so received by the Secretary of State was so received as fees by virtue of his office, and, as such, should have been paid into the treasury of the state by the Secretary of State, under the provisions of section 19 of article 4 of the constitution of Idaho. Said section 19 provides, inter alia, that the Secretary of State shall receive a salary of $1,800 per annum, and, further, “the compensation 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. No officer named in this section shall receive, for the performance of any official duty any fee for his own use; but all fees fixed by law for the performance by either of them of any official duty shall be collected in advance, and deposited with the state treasurer quarterly to the credit of the state.” It is contended by defendant that the labor so performed by him was not done in his [55] official capacity, and that it was done out of office hours, and that, therefore, the compensation received by him therefor does not come within the provisions of said section 19 of article 4 of the constitution. We do not think this contention of the defendant is maintainable. The Secretary of State is made by law the custodian of the laws passed by the legislature and of the journals of each house thereof. It is made his duty to publish the same, and this duty, it seems to us, includes, of necessity, the preparation thereof for the hands of the printer. This has been the uniform course, not only under the state government, as we are informed, but was that always pursued under the territorial organization by the secretary of the territory, to whose duties the Secretary of State mainly succeeds. If any other course has been pursued under the state government, we are not aware of it, and it was certainly unwarranted. The laws, when printed, must be authenticated by the certificate of the Secretary of State, under the seal of the state, of which the secretary is also the custodian. That the duty to publish the laws does not include the preparation thereof, for printing and publishing, seems to us inconsistent with reason or precedent. This assumes that it was not the duty of the secretary to prepare the copies of the law for the printer, but that, in the letting of the contract, it was the understanding that the expense of making the necessary copies, indexes, etc., was to be borne by the printing company having the contract. Such copies must be made in the secretary’s office, and be verified by him. They must be made by him, or under •his direction and supervision, and he could only do these things in his official capacity, and the fees chargeable therefor are fixed by law, and are required to be paid into the state treasury. It is begging the question to say that the printer could put a corps of copyists into the office of the secretary to perform such work, for if the secretary declined, as well he might, to certify or authenticate copies so made, the labor would be thrown away. The law should not receive an interpretation which would lead to such invidious and disturbing conditions. It would be idle to say that because the word “publishing,” in its strictest sense, does not include “printing,” therefore the ap [56] propriation made by the legislature for the publishing “of the laws and journals did not include the expense of printing”; but such a conclusion would not, it seems to us, be any more fallacious than the construction contended for by defendant. The law must be so construed as to carry out the manifest intention of the lawmakers; and, in construing the law upon this subject, we must take into consideration both the provisions of the constitution and the laws applicable thereto, and from these determine the intention of the lawmakers; and, so taking them, it is palpable to our minds that it was intended that the salary allowed the officer should be in full compensation for all services rendered by him by virtue of his office or in his official capacity. We have examined all of the authorities cited, and we believe the views we have reached are sustained fully by all the cases pertinent to the question under consideration. The case of State v. Liedtke, 12 Neb. 171, 10 N. W. 703, cited by defendant, is particularly in point, and arose upon circumstances very like those in the case under consideration, and the decision was upon a constitutional provision similar to section 19 of article 4 of the Idaho constitution. There is another feature of this case, and the law applicable thereto, to which it is as well, perhaps, to call attention. It is conceded that the amount paid the defendant was a part of the consideration expressed in the contract made with the Sentinel Printing Company, and that the consideration expressed in said contract was fixed in view of and with relation to the sum to be paid to the defendant for the services performed by him This, we think, was clearly within the prohibition expressed in section 365 of the Eevised Statutes of this state. “Members of the legislature, territorial, county, city, district and precinct officers, must not be interested in any contract made by them in their official capacity, or by any body or board of which they are members.” The damages allowed by section 209 of the Ee-vised Statute's, are intended as a penalty for a willful dereliction, or refusal by the officer upon whom demand is made; and as it is apparent that the action of the defendant was not attributed to any design or desire on his part to avoid a duty, or [57] misinterpret the law to his own advantage, and, moreover, as he alleges in his answer that he acted in the matter throughout upon the advice of his proper legal adviser, the attorney general, we are not inclined to enforce the penalty of twenty-five per cent damages or the interest. The writ of mandate will issue commanding the defendant to pay into the state treasury the sum of $675, so received by him as aforesaid, on or before the first Monday of April, 1898. The clerk is directed to charge no fees in this case. Sullivan, C. J., and Quarles, J., concur.