State ex rel. State Publishing Co. v. Hogan

PER CURIAM 1. Relator’s counsel argues that the motion to quash the alternative writ is not a proper way to test the sufficiency of the affidavit. We hold otherwise. If the .affidavit fails to state the facts necessary to justify the issuance of an alternative writ of mandate, of course it ought not to be issued at all. But applications are usually ex parte, and in the limited time generally taken by a court to examine into the question of the sufficiency or insufficiency of the affidavit when application is made, and with no pleading or argument before it testing the sufficiency of the allegations, if a prima facie .showing seems to be clearly made the court usually issues the alternative writ; and fatal defects, if any there be, are not made apparent until the return day, when the defendant enters his appearance. Upon the return day, respondent (or defend [388] ant) may attack the affidavit by motion to quash the writ. This practice by motion was laid down in Territory ex rel. Tanner v. Potts, 3 Mont. 364, and is supported by other authorities. - (State ex rel. Cothren v. Lean, 9 Wis. 279.) A motion to quash challenges both the sufficiency of the writ, and also the sufficiency of the affidavit upon which the writ is based. (High, Extr. Leg. Rem. Sec. 522.) Motion to quash is occasionally regarded as going further than a demurrer, which is sometimes held to test those defects only which appear in the alternative writ itself, while motion to quash reaches back to the petition upon which the. writ was issued. This distinction was noted in State v. County Court, 33 W. Va. 589, 11 S. E. 72, and in Fisher v. City of Charleston, 17 W. Va. 595, where it was held that, if the petition does not state the necessary facts to justify the issuing of an alternative writ, it ought not to be issued, and, if issued, on the return day this fatal defect should be taken advantage of, not by demurrer, but by a motion to quash the alternative writ, or discharge the rule, as improvidently awarded. “The petition and affidavit, ’ ’ said the court, ‘ ‘bear to the mandamus nisi a relation similar to that which an affidavit bears to an attachment.” Merrill (Mandamus, Sec. 269) looks upon a motion to quash the alternative writ as equivalent to a demurrer; adding that it is “a matter of little moment whether the objections to the writ be urged by demurrer, or by a motion to quash.” In the practice of this state it has been usual, where an alternative writ is issued, to regard the affidavit as part of the alternative writ, when it is referred to in the writ, and when a copy of such affidavit is served with it. Such an alternative writ, it would seem, “states generally the allegation against the party to whom it is directed.5 ’ (Code of Civil Procedure, Sec. 1963.) The two papers are looked upon as interdependent, and a writ with such reference to the affidavit has been assumed to be sufficient. Under this practice, adopted for convenience, a motion to quash performs the same office as a general demurrer does in some states to the more formal writ; [389] and brings the law of the case before the court. (High, Extr. Leg. Eem. 455; Code of Civil Procedure, Sec. 1970; Gill v. State, 72 Ind. 266.) But, whatever the exact office of the demurrer to an alternative writ may be, we have no doubt ■that the scope of the motion to quash enables us to pass upon the sufficiency of the affidavit, under our codes. (Code of Civil Procedure, Sec. 1970.) 2. Upon the affidavit, relator must be denied relief. Section 30, Art Y, of the Constitution, provides asfollows: “All stationery, printing, paper, fuel and lights used in the legislative and other departments of government, shall be furnished, and the printing and binding and distribution of the laws, journals and department reports and other printing and binding, and the repairing and furnishing the halls and rooms used for the meeting of the Legislative Assembly, and its committees, shall be performed under contract, to be given to the lowest responsible bidder below such maximum price and under such regulations as may be prescribed by law. No member or officer of any department of the government shall be in any way interested in any such contract; and all such contracts shall be subject to the approval of the Governor and State Treasurer.” Construction of the Constitution demands that every word shall be rendered operative, if it be practicable to make it so. This rule obviously finds its reason in the presumption that in their Constitution the people have expressed themselves with care, and in words that have been weighed. “Every word employed in the Constitution is to be expounded in its plain, obvious and common sense, unless the context furnishes some ground to control, qualify or enlarge it. ’ ’ (Story on Constitutions, Sec. 451.) Relator has failed to show a clear legal right to have the Secretary compelled to deliver to it the papers it alleges it is ready and willing to print. -The Constitution says that such a contract for printing as relator claims to have shall be given, not only to the lowest responsible bidder, below such maximum price and under such regulations as may be prescribed [390] by law, but that it shall be subject to the approval of the Governor and State Treasurer. The approval of these officials completes the contract. With such approval, the agreement between the printer and the State becomes one whereby the printer acquires a right in relation to the printing; but without it he has no right whatever to demand the papers to print, or to compel their delivery to him. And to the same effect is Section 710 of the Political Code, which provides that all contracts made by the Board of Examiners “must be approved by the Governor and the State Treasurer.” If relator has done work for the State under any agreement made with the Board of Examiners, purporting to be a valid contract, that fact cannot help it in this proceeding, or make a contract where none exists. It being indispensable that the agreement of the Board shall be approved by the Governor and Treasurer, before there can be a valid contract, mere allegations that the Board of Examiners received bids, and made a contract with relator, whose bid was the lowest, are wholly insufficient; for the conclusion therefrom that a contract exists is unsupported by such facts, independent of certain other facts, which, as said, must exist, to make a contract. The approval of the Governor and Treasurer is by way of a check upon possible extravagances of the Board of Examiners. Call it a power like the veto power of a governor, as the court did in People v. Croton Aqueduct Board, 26 Barb. 210, or one of annihilation, as did the counsel for relator in his argument herein; it nevertheless exists as a portion of the Constitution, in clear and unambiguous language, — so plain that but the one construction can possibly obtain. And, until relator can show that such approval has been had, it fails to set forth those substantial matters essential to constitute the contract which it would have the Secretary of State ordered to comply with. Motion to quash sustained, and petition dismissed. Dismissed.