State ex rel. State Publishing Co. v. Smith

MR. CHIEF JUSTICE BRANTLY, after stating the case, delivered the opinion of the court. The contract referred to in the affidavit was before this court for consideration in State ex rel. State Publishing Co. v. Hogan, 22 Mont. 384, 56 Pac. 818, decided on March 31st of this year. It was there held, under Section — 48 — 30, Article Y, of the Constitution, that it is indispensable to the validity of such a contract that it be approved by the governor and state treasurer. The contention is now made by the relator that the duty of approval on the part of the governor and treasurer is purely a ministerial one, and we are asked to enforce the performance of it by mandamus. On the other hand, counsel for respondents deny the jurisdiction of this court to exercise any control, through the medium of this writ, or in any other manner, over the executive department of the state government; claiming that it is, under the constitution, an independent, co-ordinate branch of the government, with the functions of which we are forbidden by the constitution to interfere. Our attention is called to the provision of our constitution distributing the powers of the state government into the three distinct departments, and expressly prohibiting any one of them from exercising any of the powers belonging to the other. (Const. Art. IV, Sec. 1.) Similar provisions are found expressed in the constitutions of all the states. The provision is not expressed in the constitution of the United States, but it is held that the various departments of the federal government are as separate and distinct, and as independent of each other in their'operations, as are those of the state governments. (Marbury v. Madison, 1 Cranch, 137; Mississippi v. Johnson, 4 Wall. 475.) The extent of the jurisdiction of the courts over the executive department of the government by mandamus has often been considered. By many courts it is denied altogether. Such courts hold that the executive is responsible, under his official oath, to the people only, and must be left to his own judgment and conscience as to how he shall discharge the duties of his trust. In other jurisdictions it is held that while he cannot be controlled in any way by the process of the courts in the discharge of those duties which are political and executive, involving the exercise of judgment and discretion, yet in the exercise of those powers and duties which are purely ministerial, and which might just as well have been enjoined by law upon some other person, he is as much sub — 49 — ject to the control of the courts as any other officer. There is a great deal of learning in the books on this subject. The following authorities, with the references contained in them, fairly present the opposite views: High on Extra. Leg. Rem. Sec. 118 et sey; Merrill on Mandamus, Secs. 91 — 97; Wood on Mandamus (3rd Ed.) pp. 86, 87; Sutherland v. The Governor, 29 Mich. 320; People ex rel. Broderick v. Morton, 156 N. Y. 136, 50 N. E. 791; State ex rel. Robb v. Stone, 120 Mo. 428, 25 S. W. 376; Hovey v. State ex rel. Schuck, 127 Ind. 588, 27 N. E. 175.) It is not necessary in this case, however, for us to examine these authorities with the purpose of announcing a rule for this jurisdiction. In the case of Chumasero v. Potts, 2 Mont. 242, decided by our territorial supreme court in 1875, it was held that the governor could be compelled by mandamus to perform a ministerial act, as where it was made his duty, by statute, to sit as a member of a canvassing board to canvass the vote of the people upon the question of whether the territorial capital should be moved, and he refused to perform the duty. This case was followed by the subsequent case of Territory ex rel. Tanner v. Potts, 3 Mont. 364, decided in 1879, where it was held that mandamus was the proper remedy to compel the governor to audit and allow a claim of the relator for expenses incurred and for compensation while acting as a messenger, under the appointment of the governor, to bring a fugitive from justice, under a warrant of extradition from the state of Ohio to the territory of Montana. Again, this court, in State ex rel. Eaves v. Rickards, 16 Mont. 145, 40 Pac. 210, entertained jurisdiction upon an application for a writ of mcmdanvus to compel the State Board of Examiners, ex officio also the State Furnishing-board, of which the governor was a member, to let the state printing contract to the lowest responsible bidder. Though the writ was denied in this case, yet the application was tried on its merits. It seems that no question of jurisdiction was made, but this court proceeded upon the assumption that it had jurisdiction to try and determine the question presented, though the governor was a member of the board. We shall, — 50 — therefore, assume here that the state executive, when acting in a ministerial capacity only, and in matters not involving executive judgment and discretion, may be controlled by this writ. The constitution (Art. Y, Sec. 30) provides that “the printing, and binding, and distribution of the laws, journals, and department reports and other printing and binding * * * shall be performed under contract, to be given to the lowest responsible bidder, * * * under such, regulations as may be prescribed by law; * * * and all such contracts shall be subject to the approval of the governor and state treasurer. ’ ’ The regulations prescribed by law for the letting of the contract are found in the Political Code, Sections 704-714, inclusive. Sections 710 provides: “All contracts made by the board must be approved by the governor and the state treasurer. ’ ’ The relator contends that the provision of the constitution, supra, requiring approval by the governor and treasurer, and of the statute passed in pursuance of the constitution, imposes a merely ministerial duty upon these officers, and that their refusal to approve the contract is capricious and arbitrary, and therefore subject to review by this court. The use of the word ‘ ‘must’ ’ in the statute is construed by counsel for relator to mean that the obligation merely to approve rests upon them, and that they may not refuse to do so after the board has declared that a certain bid is the lowest responsible bid, and let the contract to the bidder making' it. It may be unfortunate that the governor was made a member of this board whose duty it is to let these contracts. It puts him in a position where he can refuse to approve the action of a majority of the board of which he is a member, and thus put his veto upon proceedings in which he takes part. Nevertheless his duty as a member of this board in relation to these contracts is statutory, while his duty in approving or disapproving the action of- the board is constitutional, and we are of the opinion that, under the provision of the constitution, it — 51 — was designed that he and the treasurer should do more than approve in a ministerial way the action of the board in letting the contract. The expression, “shall be subject to the approval, ’ ’ implies that there may be a disapproval. The word “approve” means “to pronounce good; think or judge well of; admit the propriety or excellence of; be pleased with; commend.” (Cent. Diet. tit. “Approve.”) The constitution does not define the extent to which they must go in the investigation of the action of the board, nor does it require that they must act together or state any reason for their actions. Yet from the very fact that their approval is indispensable, under the constitution, the conclusion is irresistible that their action is designed to be a check upon the action of the board. This.is the implication from the terms used and the rule of construction that every word of the instrument should be rendered operative. State ex rel. Publishing Co. v. Hogan, supra. If this be true, in the discharge of their duty they must use their judgment and discretion as to all matters into which the board could or should inquire. This includes not only the pecuniary responsibility of the bidder, but his judgment, skill, ability, capacity and integrity as well. (State ex rel. Eaves v. Rickards, supra.) The governor having a general knowledge of the affairs of the state, and presumptively being fitted by his superior qualifications to pass judgment upon the action of the board, it was thought proper by the constitutional convention that he should give the taxpayers the benefit of his judgment and discretion. The treasurer being in a position in which he is presumed to be especially informed as to the condition of the state’s finances, it was thought proper to require the exercise of his judgment and discretion also. The ultimate.purpose was, by this system of counterchecks, to secure economy and prevent favoritism. It is not for us to say whether the provision is a wise one or not. These officers, acting within the sphere of their constitutional duties, are accountable, under their oaths, to the people only, just as aré the individual members of this court, and it is no part of our duties to inquire into their motives in — 52 — withholding their approval from the contract let by the board to the relator. If- they have acted arbitrarily, if they have chosen to pervert the functions of their high offices to vile, partisan uses, or to the purposes of favoritism, as is suggested by the allegations in the affidavit, we have no power to restore their consciences, and bring them to a sense of their duty. The forum in which they are to be judged is the minds and consciences of the people, whose servants they are, and who alone can hold them responsible for the manner in which they perform their duties. It boots nothing that the board has let the contract to some other person, as counsel for respondents say. If such be the case, we have nothing to 'do with such action here. It may have been lawfully or unlawfully done. However this may be, the fact cannot be allowed to influence the judgment of the court in this case. We are of the opinion that the motion to quash the writ nisi is well made. Motion to quash sustained, and the application dismissed.