The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1899-04-21


cess of law,
But plaintiff contends that the joint
resolution of March Sth may be so con
strued. in connection with the Act OF
Assembly of March sth. ms 10 harmonic
not only with the Act of February 24th.
but with plaintiffs rights hereunder, by
holding that the contract mentioned i'll
the joint resolutions was not To be made
unless the contingency arose which is
mentioned in the Act of March Sth.
The plaintiffs position is. that while it
has contract for the public printing, it
is not recognized by the Secretary Of
State and other officers of the State as
such. on account of the failure of saiG
committee to give the usual written
evidence of the said contract; and this
action is to compel them by mandamus
TO do So"
Arguing to these facts Messrs. Field
and Battle contended for plaintiff that
the members of the committee were min
isterial officers only, after they had de-
clared plaintiff entitled to the public
printing and approved its bond, that
there was no further discretion to be
exercised by them. This being so they
held that the mandamus was the proper
remedy to require them to give plain
written evidence of the existing CON
tract.
The members of the joint committee
are still in office. inaSmuch as % the
powers conferred upon them by the Act
of February 24th We're continuous i'll
their nature until their duties are prop
erly discharged; 60 the General Assem-
bly, has not adjourned. but has taken a
recess till day certain, tthe second
Tuesday in June, 1900; % the Act of
March Sth expressly continues them in
office. But even if the court should hold
that they are now out of office, stun
they may be required individually to do
what they ought to have done, to-wit,
merely reduce to writing and sign the
contract which they have already made.
This is not an action against the State,
but merely against public officers, to
compel them to obey law and do Il
merely ministerial act If the effect of
this is to give the plaintiff a written
evidence of a contract or right to which
he is legally entitled, the State cannot
complain. and need not be made a parry.
Plaintiff is not asking for an award
of the contract, but for the usual and
proper evidence of a contract already
made The furnishing of this evidence
is Il mere ministerial duty involving no
official discretion.
There is not one law for the sovereign
and another for the subject
'The State. in all its contracts ana
dealings with individuals, must be al
judged and abide by the rules which
govern in determining the rights of
private citizens contracting and dealing
with each other There is not one. Jaw
for the sovereign and another for the
subject but. when the sovereign engages
in business and the conduct of business
enterprises. and contracts with indivit-
uals, although an action may not IL
against the sovereign for breach of the
contract, whenever, the contract, in any
form, comes before the courts. the
rights and obligations of the contracting
parties must be adjudged upon the same
principles as if both contracting parties
were private persons. Both stand Bpon
equality before the law, and the eover-
eign is merged in the dealer, contrac-
tor and sutton.
Judge Womack and Mr.. Holdins
argued:
/. That the suit was. in effect, an
unauthorized action against the State.
The stability of the State without its
consent was a thing unknown to law.
That has been so often laid dovn and
acknowledged by the courts and iurists
that it is hardly necessary to be formally
asserted.
3 Mandamus not the proper rene
dy. Quoting Moses on Mandamus,
pages 134 and 49,:
..MandaInus will not lie to compel pub
lie officers to perfect an incomplete con-
tract which will be binding upon the
State, especially where the subject 81
object of the contract has pas zee ny
sale from the State into the hands of
some other person.
1T is upon this principle that it has
been held that mandamus will not be
issued on the application of an individual
to any officer of the government, com
manding him to approve contract en-
tered into with that individual by public
officers, when such approval is necessary
in order to make the contract binding
upon the State"
3. The powers of the committee We're
discretionary and deliberative, not sub
ject to judicial control
1t is held in numerous cases that the
courts will control the actions of officers
by mandamus only in the performance
of plain, legal duty, purely ministerial;"
that such actions are not suits against
the State without its consent.
A. A clear legal right prerequisite
in mandamus
s. The committee is functus officio.
A committee of the Legislature expires
with the adjournment, unless otherwise
explicitly provided.
6. Mandamus cannot undo what has
already been done.
..The writ of mandamus. being a dis
cretonary writ the fact that the con-
tract has actually been awarded to
another is sufficient to induce the courts
to decline to Interfere to further compli-
cate the matter, even though they might
otherwise have done SO. State ex rel.
Phelan VS.. Board Education. "A Wis.
6S5.''
Z. Injunction can not issue in this
| action.
| Injunction can be issued at chambers
| only until the hearing: and perpetual
injunctions must be issued at term
l