State ex rel. Peck v. Rusk

Lyon, J. Passing for the present the questions whether this court can properly send its writ of certiorari to the governor in any case, or, if it may do so, whether it is the proper remedy in the present case; whether ch. 10, Laws of 1882, vests in the governor discretion to distribute the fund in his hands to such laborers as in his opinion are entitled-thereto; and whether this is a proper case for the exercise by this court of its original jurisdiction,— all of which have been elaborately and ably argued by the learned counsel on both sides, — we will proceed at once to consider the merits of the controversy. The contention of the petitioners is that the word “ laborers,” as employed in sec. 5 of the act of 1882, is used in a general sense, and must be construed to include the petitioners, who rendered services in the construction of the railway between the designated points. On the other hand, counsel for respondent maintains that the word is employed to designate those persons only who did manual labor in and about the grading and kindred work, in the construction of the railway. The agent found that the relators did work on the railway, but not manual labor, and- therefore advised the rejection of their claims. The governor based his disallowance of the claims on somewhat broader grounds. To give an accurate idea of his views, the following paragraphs are copied from his return. After stating that he and his agent heard arguments for and against the claims of the re-lators, and that counsel stipulated that they “could and should take notice, without proof, of the facts and circum — 475 — stances attending said act, and relating to the condition of affairs when the same was passed,” the return proceeds as follows: “That the construction of the line of the Chicago, Portage & Superior Railway Company had been let as an entirety to one Angle, who, under. the name of the Angle American Construction Company, had sublet a portion of the work in sections to various parties — subcontractors — and those parties had procured the necessary laborers, material, and supplies, and had partially completed the line from each end, when the enterprise collapsed on the 20th day of January, 1882. These laborers, not having received any wages, except for part of November, 1881, were without the means of subsistence or of removing elsewhere, and they were then being subsisted either by the subcontractors or by the state, and were in a riotous condition. That it was not at any time claimed before me, or my said agent, to my knowledge, nor did it appear in any way, that the relators, or any of them — engineers — had rendered any service further or otherwise than such as appertains-to the engineering corps of a,railway company in locating the line and in preparing the plans for and estimates of the work done, or that they, or any of them, ever did any grading, or anything like it, or answering the same purpose, or that they ever laid any ties or rails. That in refusing to disburse any of the fund referred to in said act, to the relators, and in approving said report of my said agent, I acted upon all said facts and circumstances, and under the opinion that said act was designed to provide: First, for the railroad laborers, as that expression is commonly understood; second, for the «^contractors, material and supply men, to the total exclusion of the engineer corps, as well as the officers and agents of the railway and construction company, and the contractor, Mr. Angle, and that any other construction of the act would render it very unjust and unreasonable, as well as absurd, in view of the amounts of said classes of claims respectively.” — 476 — Of course the word “ laborer,” as employed in sec. 5, must be interpreted in the sense in which it is ordinarily used and understood, when applied to men engaged in constructing railways, unless some other interpretation is clearly indicated in the act itself. The governor decided against the relators, on the hypothesis that, in common parlance, engineers and members of engineer corps, inspectors, superintendents, managers, and other officers and agents of a railway company, engaged in the construction of its railway, are not denominated laborers, but those only are so called who perform manual labor in the construction of the railway upon the road-bed and track, or some other similar labor to the same end. In the light of common observation and experience, it would be difficult, we think, to demonstrate that the hypothesis is false. Again, the act makes no provision for the relief of the Chicago, Portage & Superior Railway Company, or of Angle, the original contractor. How far one or the other was responsible for the failure of the company, and the disastrous results which followed such failure, does not appear. But the whole scope of the law of 1882 shows that the legislature ignored them entirely, and framed the law in the interest and for the benefit of their victims. Chief of these were the subcontractors, and through them their creditors, the laborers and the supply and material men. This feature of the law strongly corroborates and sustains the construction given it by the governor. Then, again, the law specifies subcontractors, supply men, and material men, as beneficiaries of the fund i-n the hands of the governor, but fails entirely to specify any class which unmistakably includes officers and agents of the company, or of the original contractor, Angle. This omission is not without significance, for had the legislature intended to include these, it is fair to assume that some language would have been employed to express that intention, instead of leaving it to doubtful and uncertain inference; that something more explicit than the word “laborers” would be — 477 — found in the act to manifest such intention. The omission is the more significant if it be true (as asserted in argument, and not denied), that an amendment to the hill which resulted in ch. 10, was proposed in one branch of the legislature, providing expressly for the payment of the petitioners’ claims, and was voted down. Mow, when it is considered that the governor Was perfectly familiar with all the circumstances which gave rise to the act of 1882, and had the best possible means of knowing just what the act was intended to accomplish; and when it is considered farther that the language employed in the act admits of the construction he gave it, we should hesitate to say that he construed it incorrectly. But there is one clause in the law itself which satisfies us, beyond any reasonable doubt, that the governor construed the law correctly. "We first find the word “laborers” in the act in sec. 4. That section requires the Chicago, St. Paul, Minneapolis & Omaha Kailway Company to give security to indemnify the state against expenses, etc., “ incurred in feeding the laborers hereinafter mentioned.” The next mention of “ laborers ” is in sec. 5, in which provision is made for paying them. The specification in sec. 4, referring as it does to sec. 5, limits and defines the word “ laborers ” in the latter section. By necessary implication, the word in that section must be construed to mean only the class of laborers who had been theretofore subsisted by the state — that is, to those laborers who had been at work for the subcontractors in the construction of the railway, for none others were so subsisted. Of course, this construction excludes the relators from participation in the fund in the hands of the governor. We conclude that the governor interpreted the act of 1882 correctly. We are also of the opinion that, within the limits prescribed in the act of 1882, the legislature intended to vest in the governor plenary discretion in the distribution of the — 478 — fund in his bands, and hence that the regularity of his action in that behalf can only be questioned by the legislature. If he has done injustice to the petitioners, they must look to the legislature alone for relief. So far as the courts are concerned, the distribution is just as binding as though the legislature had made a specific appropriation to each person to whom the governor has distributed the fund, of the amount allowed each respectively. We are impelled-to this conclusion upon careful consideration of the history, language, and general scope of the act of 1882. The fund in the governor’s hands, although provided for by the legislature and under its absolute control, was in no correct sense -the property of the state. It was not paid to the governor by the railway company for the use of the state,-but for the use and benefit of certain classes of individuals, and was a mere gratuity. The legislature did not send it to the state treasury to be paid out in due course on the audit and warrant of the secretary of state, whose acts the courts may review by appropriate process; but it placed the fund in the hands of the governor. It designated the classes to whom the same should be.paid, and conferred upon him most ample authority to determine who were entitled under the law to share in the distribution, and the amount justly payable to each. For want of detailed information the legislature could not distribute the fund, so it imposed the duty and conferred the power upon the governor to obtain the necessary information and make the distribution accordingly, leaving him free to rely upon the report of his agent, or to resort to any other source of information within his reach. It seems to us that his determination is as conclusive upon the courts as would have been the action of a legislative committee charged with the same duty and clothed with the same powers. Of course, no one will contend that this or any other court could send its process to such a committee, or in any manner review its determination. But we do — 479 — not care to discuss the question farther, because the view we have taken of the merits of the controversy renders the determination of the question quite immaterial. The writer of this opinion allowed the writ of certiorari herein'in vacation, without any investigation of the merits of the petitioners’ claim, and with grave doubts whether this court had jurisdiction to send its process to the chief executive officer of the state — the head of a co-ordinate department of the state government. The writ was allowed in the expectation that the question of jurisdiction would be raised by a motion, in advance of a return, to quash or supersede the writ, and it was thought that the petitioners were entitled to be heard on that question. The governor has seen fit, however, to make return to the writ, and has contented himself with a protest against the jurisdiction of the court. The question of jurisdiction has been ably argued, but we have thought best to give our opinion on the merits of the controversy, and the conclusions we have reached-relieve us from the necessity of passing upon that question. We therefore leave it undetermined, and will only remark that this court has not, and will not in any case assume jurisdiction to review the acts of a co-ordinate department of the government, unless the duty and power to do so are clearly imposed and conferred upon it by- the constitution and laws. The motion for judgment must*be denied. By the Court. — Motion denied.