State ex rel. Harney v. Hastings , 12 Wis. 596 ( 1860 )

By the Court,

PAINE, J.

This was an application for a mandamns to compel tbe treasurer to pay two accounts wbicb bad been audited in favor of tbe relator, one for publishing tbe list of forfeited school lands, and tbe other for publishing tbe list of forfeited swamp lands, in tbe county of Oconto, on tbe order of tbe school land commissioners. Tbe return of tbe treasurer sets forth, that previous to tbe making of tbe order under wbicb tbe relator did tbe work, another order bad been made by tbe commissioners, directing that the same work should be done by one Ginty, wbo, it is ayer-red, published at that time the only paper published in that county. It is also averred, that this order was, before the making of the last one, transmitted to Ginty, and that it was duly accepted and acted on by him; that he did the work under it, and that his account for it had been regularly audited and paid. This return is demurred to, and the decision turns entirely on the question whether the two commissioners who made the last order, under which the relator acted, had any lawful authority to make it. If they had not, it follows from the views which this court has repeatedly expressed on that subject, that it was not binding on the state. Their authority is found in sec. 61, chap. 620, R S., 1858, which requires them to advertise the list of forfeited lands in the newspaper published at Madison, in which the laws are published, 11 and also in a newspaper published in the county where the lands lie, if there be any.” The commissioners then made an order that the publication for Ocon-to county should be done in the Pioneer. This order Ginty, the publisher of that paper, was notified of, and he was requested by the commissioners to do the work provided for. This, it clearly appears from the return, occurred before the making of the last order. The return also avers, that Ginty duly received, accepted and acted upon this request of the commissioners. But it may be doubtful whether it could be assumed from this, that he accepted the contract offered before the last order was made, though it is also expressly averred that the lists were delivered to his agents at Madison for publication, according to the order, before the making of the last one. But whether he actually notified the commissioners that he accepted the contract, or whether he actually did any act of acceptance before the last order was made, seems to us immaterial, provided he accepted it within a reasonable time, and before he received notice that the proposition or offer, on the part of the commissioners, was revoked. Eor we do not think that after they had notified him of the order, and requested him to do the work, they could relieve the state from the contract by merely revoking the order, without also notifying him, and withdrawing their proposition, before be bad accepted it by entering upon tbe work or otherwise. There is no allegation that he was notified of any other order, or that the request to him to do the work was ever withdrawn, but he did in fact enter upon and perform the work according to the order, and the secretary of state, who was one of the commissioners who made the last order, audited and allowed his account therefor. It is clear, therefore, that the state was bound whenever he accepted the proposition of the commissioners, either by entering upon the work, or in such other manner as its terms could be fairly held to require. And they could only restore their power to make a contract with another party, by taking the necessary steps to revoke their order to him before it was accepted by him so as to become a binding contract. Even if the last order, therefore, could be construed into a revocation of the first, it failed to prevent the contract with Grinty from becoming effectual for want of notice to him. The power of the commissioners, when they had made a binding contract, was exhausted, and could be revived only by that contract being rescinded, or the failure of the party to perform. For the statute gives them the power to advertise in only one newspaper in the county, and when they had once bound the state for that, they had no power to bind it further. Otherwise, under a power to publish in one paper, they might publish in twenty. Such a doctrine can only be sustained upon the assumption that where the law gives such officers certain powers, they may exercise others not given, as effectually as those that are.

It may be a case of hardship, if the relator was unaware of the fact that the commissioners had already exhausted their power by making a valid contract with another party. But that cannot change the law, nor enlarge the power of the commissioners so as to enable them to publish in two papers, when the law says they may publish it in one only. It must fall, therefore, within the repeated decisions of this court, that the acts of' officers beyond their lawful authority, can create no legal claim against the state, and none which the secretary has authority to audit.

The demurrer to the return must be overruled.