The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1902-09-05
WHAT HAzEN SAID.
Text Of Decision in American
Book Co. Case.
Contract With State Good and
No Combination Proved.

Following is the decision of Judge
Hazen in the American Book company
case n full:
--On the 5th day Of May last the de-
PENDANT American Book company en-
tered into a contract with the Kansas
state school textbook commission by
which the American Book company
agreed to furnish certain school books
for the schools of this state for the Pc
riOd of five years This suit Is brought
by the state, a party to the contract
to annul that contract and to enjoin
the American Book company from per-
forming the contract
1t IS claimed on behalf of the state
at the time this contract was entered
into the American Book company was
not authorized to do business in this
state and that this contract is therefore
void and that the American Book COM
pany ought to be entoined from per-
forming it, That is the principal con-
tention in this case. Some evidence has
been heard, but the questions the court
| is called upon to decide are legal Ques-
lions, in nay opinion. more than Ques-
tfons of fact
Taking up the questions, not in the
| order in which they were argued, but in
the order in which the court deems best.
I the first question the court will consider
| is whether this is the kind of an action
| in which Injunction will lie- This is
suit to enjoin the performance of a con-
/ tract. 1 think the law is fairly well set
tied, possibly with exceptions, that
/ before the court will enioin the per-
| IOrn1dQCe OF q contract Tue court uSI
| be satisfied that irreparable injury will
follow If injunction is not allowed Now
| in this case what irreparabIe injury will
/ the state sustain If the American Book
| company is allowed to perform its con-
| tract? In what way will the plaintiff
| in this action be injured by allowing the
| American Book company to carry out
1 its contract? In sh1s connection it Will
serve some purpose to determine how
the state shall be treated when 1t has
entered into contract and then comes
into court in relation to that contract
| Does the state act in it's sovereign ca
pacfty when it goes into court of
| equity relating to a contract it has
uade2 How must it be treated2 Should
! it be treated the same as an individual
who has entered into a like contract
| In A N 7, in the syllabus of the
case involving this question the court
says: Where valid contract has been
entered into on behalf of the state by
it's duly authorized agents for the con-
structfou Of public work it can not, in
the absence of any stipulation authoriz-
ing it so to do, destroy or avoid the OBJ
legation Of the contract While 1t may
refuse to perform and arrest perform
ance on the part of the contractor, it is
liable for the breach Of contract the
same as an Individual. and the con-
tractor is entitled to claim prospective
| damages It seems from this then that
when the state has entered into con-
tract and litigation follows on account
of the contract that has been entered
into or claimed TO have been entered
into that then the state does not come
into court in its sovereign capacity, but
that it comes into court as an ordinary
citizen and the same rules OF law viii
apply to it
| Again. in discussing this same ques-
ton. in Lawyers Reports Annotat ted.
the court says AS there Is a perfect
contract the state is bound to perform
| it according to its legal tenor and effect
and to redeem the pledge it has declared
to be irrevocable- In entering into the
| contract it laid aside it's attribute as q
| sovereign and bound itself substantially
as one of the citizens does when he en-
| tiers into a contract Its contracts are
| interpreted as the contracts Of fndivfd-
uals are. and the law which measure.
| Individual rights and responsibilities
| measures. with few exceptions, those OF
the state whenever it enters into or
binary business contract The principle
that the state in entering into a CON
tract binds itself substantially as an in.
diyidual does under similar circum.
| stances necessarily carries with it the in
separabfe and subsidiary rule that I
abrOgates the power to annuI or i'm
pair its own contract. It can not b.
true that the state IS bound by con
tract and yet be true that it has power
to cast OF it's obligation and break It,
faith, since that would involve the man
fest contradiction that the state i
bound and yet not bound by its obliga
ton It may have the right and mean:
OF defeating the enforcement of con
; tract, yet in q just sense have no powe
to do Might and authority do no
, constitute power in the proper sense
To constitute power another elemen
must be present and that element i
right II right is absent there Is II,
| power Legislatures may, by failure e
make an appropriation, defeat q jus
claim or indeed block the wheels of gov
eminent. but under the constitution
they have no power to do any sue
thing 1t seems very clear. therefore
that there is no constitutional power {
| into by state, and 50 it has long bee
| settled
Now, I have read quotations from
these cases simply for the purpose o
! | tract that Is before US IN this case tn
same as It was a contract betweel
individuals The state has no superio
right over the individual in relation t
; its contracts when it comes into cour-
The next question that is Of som
| importance in this case as consider
| Is as to what effect the constructor
which the attorney general has place
4 upon law has where litigation subse
quently arises growing out of contract
: entered into under that lAw7 It mus
: be remembered In this case that tn
3 state, the plaintiff In this case. il nov
In a court of equity asking that equi
table relief be granted to 1T There
4 marked distinction between the cas-
) where a party wi1fuIIy disreEards til
d state law and the case where q part
/ 1nnOc6urly or mistakenly o1SFegaFQS tn
state law I think that distinction
well made in some of the decision
which have been cited: and especially
: that true in a court OF equity In reIa
3 ton to contracts that have been entere
into.
In this case the evidence shows tina
before the defendant American Boo
! company entered into this contract
had gone to the attorney general an
the attorney general had expressed hi
opinion constituting this Law. giving I
the American Book company his cor
3 structfon Of the law his opfnion {
: what it would be necessary to do in OF
, der to come into the state and make
: valid and binding contract It may
. said and has been said. that the Amer
lean Book company was not authorize
to go to the attorney generals Office I
learn what the law was. but when "
remember that the American Boo