Chandler v. State , 5 H. & J. 284 ( 1820 )

Buchanan; J.

delivered the opinion of the cotírt. Thiá case comes before us on an appeal from’the judgment of the county court of Baltimore, iñ a suit instituted by the áppellant against th'e State of Maryland, under the act of 1786, ch. S3.

The two counts relied upon hi the declaration are, thd first on a general indebitatus assumpsit for sundry matters properly chargeable in accoürit; and the second for work ánd labour done, and materials found. And on an attentive examination of the evidence produced at the trial, and set out in the bill of exceptions, we ar.e constrained to say, that whatever demand the appellant may háve on the liberality of the legislature; the law will not sustain the claim fie has set up.

The printer to the state, is aft officer appointed by the legislature, whose duty it is, to print the laws and resolutions, and the votes and proceedings of each session, on a salary annually fixed and ascertained by that body, and provided for by an act for the payment of the civil list, according to invariable usage; Since the year 1784; and it appears to have been the constant practice, to print a sufficient number of the votes and proceedings,- for the use of the justices of the peace, throughout the state, without any other compensation than his annual salary provided for,- and paid as before stated.

At the November session 1811, the appellant was appointed printer to the state by the legislature, who at the same session passed a resolution, directing the laws and resolutions, and the votes and proceedings; to be printed in a manner and style different from that in which they had usually been printed. On which he preferred a petition to the legislature, complaining of the alteration directed in the manner of printing the laws, &c. and proposing, instead of a gross sum as a compensation iii the form of a salary, the adoption of a different mode of payment.

This application was rejected; and by the act for the payment of the civil list! which was subsequently passed, but at the same session, his salary was fixed at §1200. At the extra session of June 1812, he presented a memorial to the legislature, requesting an expression of their wishes and opinion on the question, whether it was his duty to print the votes and proceedings of the precedig Nnovember session of 1811, for the justices of the peace, with a suggestion of the expectation, that they would make him a compensation for it; at thé same time acknowdedgirig the preexisting practice by the printers to the state, to print the votes and proceedings of each session, for the justices of the peace; and admitting, that if he had been aware of the order of the house of delegates in 1794, directing a copy of the votes and proceedings to be furnished by the printer, to each person entitled to the laws, he w’ould have conformed to that practice; but resting his excuse for not doing So on the act of 1790, c/t. 51, which does not expressly direct it to be done.

In consequence of which, the legislature passed á reso> lution, (not mabing it his duty,) but declaring it to be his duty, to print the voles and proceedings of the November session 1811; for the justices of the peace; but allowing him no compensation for.it, and expressing no wish upoii the subject. After the passage of which resolution he printed 690 copies of the votes and proceedings of that session, for the use of the justices of the peace; and at the November session 1812, he preferred a petition to the legislature; asking an additional compensation for the increased expense he had been at in printing the laws, &c. in conformity with the resolution passed at the preceding November session, directing a different manner of printing them, which subject was referred to the governor and council, who allowed ánd caused him to be paid §243, as an extra compensation.

For the years 1812, 1813 and 1814, he continued printer to the state, at an annual salary of §1200, which was provided for; as usual, in the annual law for the payment of the civil list, and, as it appears, was all regularly paid.

During which yeárs he printed the laws and resolutions, and the votes and proceedings; agreeable to the requisitions of the resolution of the November session 1811, and printed and distributed the votes and proceedings for the use of the justices of the peace; and this suit was brought to recover the value of his work and labour done, and materials found, in printing the votes and proceedings for the. justices of the peace, and in the altered manner of printing the laws, &c.

It appears to have been the settled usage, to pay for the printing of the laws and resolutions, and the votes and proceedings, in the form of a salary to the printer, and in no other way. And as it had been the uniform practice for the printers to the state to print a sufficient number of the votes and proceedings of the legislature for the use of the justices of the peace, with lio other compensation for that description of service than the annual salary providéd for towards the close of each session, by an act for the payment of the civil list, the legislature’must be understood as having made, and the appellant as having accepted, the appointment of printer to the state, with a view to that practice, which thus entered into, becariie a constituent part of the contract.

The act of 1790, ch. 51, s. 3; prescribing the duties of the printer to the state, directs that, immediately on the receipt of the votes and proceedings, and the laws and re ■ solutions of the legislature, he shall proceed to print and stitch them, and print, stitch and pack up, under the direction of the governor and council, one copy of the laws and resolutions, and one copy of the votes and proceedings of each branch of the legislature, for the governor and council, and for each member of the general assembly; one copy of the laws and resolutions, well bound in blue boards, andfoiir copies of the votes and proceedings, for the clerk of each respective county, &c. One copy of the laws and resolutions for each of the judges and justices of the peace within this state, and for the attorney general; one copy of the laws and resolutions for the register in chancery, and for the register of wills in each respective county, au.il for the clerk of the general court, on the western and eastern shore respectively, and for the respective treasurers, &c. and seal and direct them accordingly, and de-, posit them in the council chamber, &c. under certain pe-, nalties. It is true that this law does not make it the duty-of the printer to the state to print, &c. the votes and pro-. ceedings for the use of the justices of the peace, and it would not have been incumbent on the appellant to do so, if the resolution of the November session 1811, appointing. him the printer to the state, had merely conferred upon him the appointment, without saying any thing more,

But that resolution is in these words, “Resolved, that Jehu Chandler print the laws, and votes and proceedings of the general assembly, and perform such other services as have been usually performed by the printer employed by the. state, or may be required by the legislature, or either branch-thereof, or by the governor and council.”

The words ‘ ‘and perform such other services as have, been usually performed by the printer employed by the. state,’'-cannot, we think, be understood as having relation to any services required, by the act of 1790, ch. 51, s. 3, such as “stitching, packing up,” &c. because, if he had simply been appointed printer to the state, without anything more being added, it would have been his duty to do whatever is directed to be done by that law, and those words having no other object, would have been altogether-nugatory.—Nor. can they be, considered as having reference to mere job-work, not embracing the.laws and reso-. Lotions, and votes and proceedings, such as printing for the house of delegates, or the senate, or governor and council, which is all provided for by the latter .clause ,o.f, the resolution, “or may be required by the legislature, or. either branch thereof, or by the governor and council.”-

They were, however, introduced for some purpose, and' must be construed to relate to services resting, entirely in> usage, as.distinguished from suchas were expressly.en-.. joined by law, and not necessary to be provided for—oth-. erwise they would have been omitted as useless, or a different phraseology been employed, such as “are by law required to be performed,” in the place of '■'■have been usually performed,”

They were intended to embrace any, and every thing, so resting in usage. Was there any such service?

The settled practice, to print a sufficient number of. the votes and proceedings for the use of the justices of the peace throughout the state, with no other compensation than the' annual salary ascertained by law, (whether in consequence or not of the order of the house of delegates plonein IfO-l, which directs it to be done, is not material,) was a service of that description, a scryice that had been usually performed by the printer employed by the state, in his character of a salary ofiicer,' and' within the terms of t(ie resolution; which terms the appellant virtually accepted, by entering upon the duties of the office. There was, therefore, no assumpsit by the state, either express or implied, to pay him’ tor stich service, in any other way than in the form of ah annual salary, which he has received. On the contrary, the resolution passed at the June session in 1812, declaring it tobe his duty to print the votes and proceedings of the preceding November'session, for the justices of the peace, negatives the idea, and his proceeding to print them after such an expression of opinion, was a recognition of it, as a service falling within his duty as a salary officer.

As to the' alteration made by the resolution of the November session of 1811, in the manner of printing the laws, &c, it cannot be, denied, that the legislature have á right" to prescribp the manner of printing their laws, &cf And let it be remembered, that the appellant’ proposed to’ the legislature, before he had printed any of them, to abolish the mode of payment by a fixed salary, and to compensate him for the work and labour, &c. in another way, which they declined doing, but adhered to the established’ usage, and the manner of printing before directed, and fixed his’salary at gl200; with a knowledge of which he did not decline tlie office, but went on and did the work as directed, and thus tacitly not only acknowledged the duty, but accepted the resolution, prescribing the manner in’ which the work should be done; as a part of his contract,' and agreed to receive the salary, so ascertained, as his pay, Considering him, therefore, as a salary officer of the state,' and the services for which he seeks remuneration beyond' the amount of his salary, as rendered in that capacity, he is not entitled to recover in an action at law, ‘ for either class of those services, as for work and labour’ done, &c. but must be content with his salary, which excludes’ all," idea of an implied assumpsit to pay the value of his work, ^hgtever that might be. A contract for a fixed salary,' and an implied assumpsit, cannot stand together; otherwise any clerk engaged at a fixed salary, would be entitled to recover in an action of assumpsit for any increased labour he might be put to, in consequence ,of ah extension of his employer’s business, which cannot be. And this, in fact, is but a suit by a salary officer, for the inadequacy of his salary, to the duties discharged Us such. With respect to the claim for printing the votes and proceedings for the use of the justices of the peace, the concluding counsel for the appellant, did indeed seem, in argument, to limit his pretensions to a compensation only for printing the 690 copies of the votes and proceedings of the November session 1811, virtually yielding all other, and founding inat claim solely on the application of his cliept to the legislature, for their opinion on the question, whether it was his duty to print them, and the consequent resolution adopted by that body, declaring it to be his duty. But it is not perceived that the expression by the legislature,, of the opinion that it was his duty to perform that service as % salary officer, amounted to an implied assumpsit to make him a compensation for it over and ■ above his salary. And surely, the circumstance that the legislature, at the November session of 1812, gratuitously referred to the go*yernor and council the question, whether he should be allowed any additional compensation for the alleged" increased expense lie had been at in printing the laws, &c. of the November session 1811, in the manner and style directed by the resolution of that session, furnishes no'evidence of an implied agreement to pay him an extra compensation beyond Iris salary for flip ensuing year, and more' particularly as his salary was continued to be fixed at gl200 for, each succeeding year, in which he acquiesced,. and continued to discharge the duties required of him, anil thus recognised the principle, that he was to be paid by way of salary alone—And the additional allowance made him by the governor and council, under the reference, for-printing the laws, 4c. of the November session 1811, has been paid.

In this view of the subject, it is not necessary to look into the question raised in argument, whether the claim of the appellant is of that description, for the recovery of which the act of 1786, cL 53, provide^ the rigliij to sue the, state. ..... '

Johnson, J.

This was an. action brought against the state, to recover a compensation for work and labour, and for the materials furnished by the plaintiff in printing, (amongst other things,) 690 copies of the votes and proceedings,of the legislature for the year 1811.

It appears to me, that the state, in all cases where it employs' an individual, and obtains his services, is bound to make a compensation for such services; and unless they, are performed for a stipulated compensation, oc comprehended in the duties to be performed for a fixed salary, the amount of the compensation no more rests with the state, than it, would rest with an individual employer. The services being performed, the law, as well against the state, as the individual employer, raises an obligation, and creates an implied assumpsit, to make such compensation as the services arid articles found are worth, to be ascertained, (the state having by law permitted' the suit to be brought,), through-the instrumentality of a court and jury.

The 690 copies of tiie votes and proceedings having, been printed for delivery, and accepted by the state, through the proper channel, the printer, if he has not been, compensated therefor, ought to, sustain his claim.

" To form an opinion on this subject, it is necessary to examine into the contract made between the state and the plaintiff. And as ho has received an annual salary from, the state, to ascertain whether that salary can be made a. compensation for the work in question.

On the 6th of November 1811, the plaintiff, by a resolution of the legislature, was called on “to print the laws and votes and proceedings of the general assembly, and-perform such other services as have bee,n usually performed', by the printer employed by the stale, or that may be required by the legislature, or either branch thereof, or by. the governor and council.” Under this. Resolution the. plaintiff commenced-, and went on to print;, by. doing so, he acceded to the terms of the resolution, and the,contract, became, thereby mutually binding; he, was bound., to. perform the work, and the state to compensate him for. the, same.

Long before and at the time of the passage of the.resolution, the uniform practice of (he state had been to pay the printer for “.printing the laws and votes and proceedings,” by an annual salary, ascertained near the corcIu,-Sion of the session, by the passage of a law for the paylnent of the civil list, in which the printer is included.

It will be perceived that the resolution which contains t.he terms of the contract between the state and the plaintiff, prescribes not the extent of the work to be done by the printer^ it directs him to print the “laws and votes and proceedings,” and perform such other services as have been usually performed by the printer to the state.

As then the contract itself is silent as to the extent of the services, we must resort to other sources to ascertain its meaning, and find out what services he was to perform, connected with the laws and votes and proceedings, and the number his contract called on him to publish, for the contemplated salary.

By the act of 1790, ch¡ 51, which law was in full operation, and the only law existing when the plaintiff contracted to work for the state, the whole extent of the duties he is called on to perform, as connected with the laws and votes and proceedings, are pointed out with precision, and these are the duties for which the printer is compensated by the annual salai-y given him in the law for the payment of the civil list. The act of 1790, ch. 51, explicitly declares the names or characters of those officers of the government who are to receive the laws, together with the votes and proceedings^ and who are to receive the laws and resolutions. It directs, that the printer “shall print and stitch, and pack up, under the direction of the governor and council, as many copies thereof as shall be sufficient for the following persons and ¡imposes; that is to say, one copy of the laws, resolutions, and one copy of the votes and proceedings of each branch of the legislature, for the governor and council, and for each member of the general assembly;” and after designating those who are to have copies of the votes and proceedings, it directs who are to have copies of the laws and resolutions, and amongst the persons thus mentioned are the justices of the peace.

It would seem impossible to entertain a doubt, hut that the printer of the state, under this law, which was the only law existing when he contracted, was not bound to furnish a copy of the'votes and proceedings for each justice of the peace.

"VVe have seenj by the resolution under which the appointment was made, that he was to “perform such other services as have been usually performed by the printer employed by the state.” The effect and operation of these wprds are,' that the printing shall be done under the regulations contained iri the act of 1790, c]i. 51; and the printing, when done, ‘■'■stitched and packed,” &c. as there directed, This appears most evident tó me; for the latter part of tire resolution makes it his duty, to do .what in addition “the legislature, or either branch thereof, or the governor anjl council may require,” thereby leaving the words of the resolution confined to the stitching and packing the work as directed by the act of 1790, ch. 51.

Having thus ascertained the extent of the duties to be performed by the printer, and what the annual salary comprehends,1 it remains to be considered whether he has done any other work for which he has received no compensation. • .

The plaintiff having printed and packed the number of, the laws and votes and proceedings directed by the act of 1790, called on the executive for their construction of that act, to know from them, u’iretbcr he was bound to furnish the justices of the peace with the votes and. proceedings. They agree that the act did not demand them, but adviéC him that it was best to frfrnish the copies, without directing that he should do so. ...

In June 18Í2 an extra session of the legislature was held, and thé printer,- by his memorial," requests of them to be directed, if to furnish" the copies of such was their desire, expressing his belief that the legislature would not demand his labmir without making compensation.' The legislature of that session do not direct him to print the votes and proceedings for each justice of the peace; they do not promise compensation, but say it was his duty to print them.

The legislative will being thus expressed, the plaintiff did print the 090 copies of the votes and proceedings for the justices of the peace, for the printing of which no compensation has been made,-and to obtain satisfaction for them the present suit was brought. .

By the act of 1790, if the printer fails to perform thé duties thereby imposed on him; he incurs considerable penalties, ‘and forfeits his salary.

The plaintiff thought lie was not bound to print, the exeteutive advise him; and the legislature declare it his duty to print them.

_ _ If this was a contract between two individuals, I should conceive little doubt could be entertained. Suppose one individual to eiigage another to do certain work for him, and in the performance of the work the parties differ, (as is often the cáse,) as to the extent of the contract—'the employer demanding moré work to be done than the workman thottght himself bound to do. The workman says he will go ón, if he is to be paid; he is told to go on, because it is his duty under the first contract. He does go on, and completes more work than the first contract covered. Could the defence for one moment be sustained, that the workman should have no compensation for the extra work, because the erilployer did not promise to pay or direct him to proceed, but only declared he was bound to proceed? If the contract did not embrace the work, the law would raise an implied assumpsit, and compel payment. The case before the court is not distinguishable from the one supposed,

JUDGMENT AFFIRMED.