People ex rel. Weed-Parsons Printing Co. v. Palmer

The defendant is a state officer. As such, the legislature has imposed upon him certain duties. So far as concerns the present application, these are to transmit to each county clerk in the state, at least 60 days before any general election, a sufficient number of copies of the election law to furnish one copy to each such county clerk, and one to each town, village, and city clerk, and each inspector of election in the county (Laws 1892, c. 680, § 19); to cause to be prepared a sufficient number of suitable blank books for lists and registers of voters, containing blank certificates and brief instructions for registry, and transmit a sufficient number thereof to furnish four to each board of inspectors in each county, except in the cities of New York and Brooklyn (Laws 1892, c. 680, § 40); to cause to be published title 10 of the Code of Criminal Procedure, relating to criminal statistics, with forms and instructions for the execution of the duties therein prescribed, and to furnish copies annually to each county clerk for distribution .among the officers therein mentioned (Code Cr. Proc. § 946). He is also required, in connection with the comptroller, to give in each alternate year at least -20 days’ notice, in two newspapers published ■ in.

It was not contended on the argument that the work demanded by the relator is not" public printing, other than legislative, nor that it is not embraced within the contract, although in the affidavit of the deputy secretary of state it is stated that he (the deputy) is “informed and believes” that such printing is not covered by such "contract; but the defendant declares that in December, 1894, “an agreement was entered into between the secretary of state’s department and ‘The Journal Company,’ whereby that company was to print and deliver the books and copies of election law, etc., called for by sections 19 and 40 of chapter 680 of the Laws of 1892, and the forms and instructions required by section 946 of the Code of Criminal Procedure, and that said company has printed all of the election law, and has very nearly, if not quite, completed the printing of the register books.” It is also made to appear that the secretary of state has now on hand, without resort to either the Journal Company or the relator, sufficient forms and instructions to enable him to comply with the requirements of section 946 of the Code of Criminal Procedure. The printing referred to is included within the requirement of section1 72 of chapter 683 of the Laws of 1892, above referred to, and is covered by the contract with the relator. The legislature evidently intended to divide all public printing into two classes, the first of which should comprise legislative printing (Laws 1892, c. 682, art. 4), and the other embracing all other public printing. Thus, section 72 of chapter 683, above cited, declares: “The public printing payable by the state, other than legislative printing, shall be done as follows;” and then provides for the notice, bids, and contract above mentioned. The printing in question is not legislative printing, and is public printing payable by the state, for the payment of which the state has especially provided by the

It is also contended by the defendant that this is an attempt on the part of the relator to enforce a private contract; that an adequate remedy at law exists if the relator is damnified; and that, therefore, mandamus is not a proper remedy. But this is not, in any just sense, a private contract. It is a contract entered into by state officers acting on behalf of a state, and in which the entire people of the state are directly interested. It relates wholly to matters of public concern, and affects private rights only so far as the statute confers such rights when its provisions are carried out by the officer to whom it is confided to perform them. A private act has been defined to be “an act operating only upon particular persons and private concerns.” 2 Bouv. Law Dict. 374. So a private contract may be regarded as one between individuals only and affecting only private rights, while a public contract is one to which the state is a party, and which concerns all its citizens. This contract is of that kind, and the fact that individual rights are involved does not change its character. It is difficult to conceive of any contract, unless it may be such as might exist between states and municipalities, that must not necessarily affect private rights. Such a contract, where, as in this case, it is the creation of a public law, affects the whole body politic, and relates solely to matters of public interest, cannot be deemed a private contract. Moreover, this application is not so much to enforce a contract as to compel the performance of a public duty,—the duty of carrying into effect the intent of the legislature that the public printing shall be given to the lowest bidder, and thus procured at the least possible expense to the state. Nor is the general rule that a writ of mandamus will not be issued where the party has another remedy universally followed. Ministerial officers may be compelled to exercise their functions, though the party has another remedy against them by an action for neglect of duty. Buck v. City of Lockport, 6 Lans. 251 ; McCullough v. Mayor, etc., 23 Wend. 458 .

In People v. Mead, 24 N. Y. 114 , the court say (at page 120);

“But a right of action against the officer who ought to perform the duty-can never be an answer to a motion for a mandamus to compel its performance, because, if this were so, the remedy would be taken away in nearly every case; for the right to an action for damages generally exists where a party is entitled to a remedy by mandamus against a ministerial officer.”

See, also, Noble v. Railroad Co., 147 U. S. 170 , 13 Sup. Ct. 271 ; Kendall v. Stokes, 3 How. 87 .

The same principle must apply although there may be a remedy by procedure before the board of claims. In this case it is by no means certain that the relator has any other adequate remedy. It appears from the moving papers that the relator has acquired appropriate machinery and material, and has in its employ a large number of men, for the purpose of performing the work covered by its contract with the state. In a proceeding before the board of claims it could only recover the profits it would have made had it been- permitted to perform the work, and in an action against the

The writ should issue as prayed for, except as to the forms and instructions required by section 946 of the Code of Criminal Procedure, a sufficient number of which the defendant has on hand for distribution, as above stated; but, as the defendant is a public officer, no costs are allowed.

Ordered accordingly.