The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1897-05-17
the same shall be

and the price for the same shall be
regulated by law.
The contention of plaintiff upon this
proposition is that the law authorizes
the commission to contract with other
persons than the state printer for the
publication, under certain contin-
gencies, of school books. and that under
the constitution this work must be done
by the state printer and at the capital.
The contention of the defendants upon
this proposition is that the publication
in text book form of any manuscript
which the commission might purchase
under this act would not be public
printing, but that even if it were the
position of plaintiff would still be I'M
tenable, because the state printer him
self is the only person who could be
heard to make such claim; and that
therefore that question is not in this
case.
We are of the opinion that the print
ing to be done in the production of
school books under this act is not pub
lie printing. Public printing is print |
ing which the state procures to be done
for its own use. Under this act, upon
certain contingencies, the state pro-
cures the necessary manuscript and
then some person undertakes with the
state to furnish the necessary books to
the various school districts at stipu-
lated prices. The state has nothing to
do with the printing of the books or
their delivery. The publisher prints
the books and sells them direct to the
people. The state does not contract
for the printing Of the books. The con-
tract of the publisher is that he will
furnish the books 10 the people of the
state at fixed prices. The state has
nothing to do with the printing; it
simply furnishes the manuscript and
then contracts for the production of the
books; and the state does not own the
books or. have any interest in them
after their publication. The books be-
long to the publisher and are handled
by him, and therefore the printing of
them cannot be said to be public print
ing.
The last proposition urged by plain
tiff is that this commission is not le-
gally constituted. The act provides that
the governor shall appoint the members
of this commission by and with the ad-
vice and consent of the senate, and
that they shall hold their office for four
years from the first Monday of April |
1897. Six of the members of this com
mission were appointed by the governor
and confirmed by the senate, and two |
of the members were appointed by the |
governor but have never been confirm
ed by the senate. The plaintiff claims
that this commission, for this reason, |
has no legal assistance and no authority
to act; that there can be no valid school |
text book commission until the appoint
ment of all the members has been made
by the governor and confirmed by the
senate. It is provided by the act that
if a vacancy occurs by death, resigna-
ton or other inability, the governor
may fill the vacancy so caused. But
the pldlntlII COI1l6nOS lnaL IueG6 can De
no vacancy until the office has once
been allied, as provided by the act Gre
ating the office, and has cited authori-
ties to sustain this proposition. The
contention of the defendants is that
whenever an office is created by law
there is what is known as an original
vacancy; that this original vacancy |
continues until the office is filled by ap- |
pointment or otherwise, and that when |
this act was passed creating this office |
a, vacancy occurred and that the gov |
ernOr has the right to fill the vacancy |
after the adjournment OF the iilato |
fore been filed
But before discussing or deciding TINS
question, however, we are met with the |
proposition that this is an 1nJunclloh |
suit and that the title to an office can
not be determined in an injunction SUIT |
that the decision of the question as TO |
whether these two members pL ne ne |
commission who were appointed by the |
governor and not confirmed by the SEN !
ate are legally in office, would be to de- |
eide and determine the title TO the OF |
fee These two members of the COM
mission have been appointed by the |
governor qualified. and entered upon |
the discharge of their duties in office. |
They are de factO officers at least; and
to hold in this case that this commits |
sion was not legally constituted and to |
enjOin them from the performance of
their official duties would be to deter |
mine the title to the office in an in
junction suit, which, as we understand, |
cannot be done.
If the plaintiff in this case is success !
full upon this proposition, it must be
upon the ground that the defendants |
are not legally entitled to the Office they |
claim. and the effect of the. decision |
would be to GUST them from office FOR, /
if an injunction is allowed, and they |
are enjoined from the performance OF |
the duties imposed by law, the erect |
would be the same as though they were |
ousted from office by quo Warranto
proceedings.