
    Christopher L. Sholes, vs. The State of Wisconsin.
    A contract made with the State, is to be construed in the same mam ner as one made between individuals, and all parties competent to contract are bound by it.
    The provision in regard to taking private property for public uses was intended to indemnify the individual against the acts of the State in its sovereign political capacity, and did not refer to mere ordinary contracts between the State and one of its citizens.
    This was a proceeding instituted by the plaintiff under the provisions of the Statute, authorizing, actions at law= against the State by individuals.
    It was founded upon the petition of-the plaintiff filed at the present term of this Court, and was at the same term brought to. argument. The plaintiff’s petition was„ as follows:
    
      Tb the Supreme Court of the State of Wisconsin:—
    
    The petition of - Christopher Latham Sholes, of - the City and County of Kenosha, shows unto this Court, that by an act passed by the Legislature of the State of Wis-., consin, approved March fifteenth, in the year one thousand eight hundred and forty-nine, entitled “ of the publication of the Revised Statutes,”- it was enacted that the, Revised Statutes of this State, should be published in one volume, large octavo, on new small pica type, and on paper of good book quality, bound in calf in the modern style of law book binding; and that for the purpose of-publication the copy-right of said Statutes was secured for the space of two years to the commissioners to revise the laws or some suitable person to be selected by them; that the commissioners or the person so selected should within twenty days after the passage of said act execute to the Governor of this State a bond in the penal sum of ten thousand dollars, with two or more sufficient sureties to be approved by said Governor, conditioned for the faithful publication of the work and its delivery to the State agreeably to the provisions of said act; that the Governor of this State was authorized and required in the name of the State of Wisconsin, to subscribe for and take, when printed, bound, and completed, as was therein provided, four thousand copies to be deposited in the State Library for the use of the State, at a fum not exceeding one do!?* Jar and se'venty-fivé 'cents per volüme, unless the volume should contain more than seven hundred pages, in Vvbich case there should be allowed twenty-five cents for eVery one hundred pages 'of exceés over ‘the ábo’ve mentioned number of seven hundred pages, and propofitionably for a less numberof excess of pages; that the contractor was required to publish at least ttVo thousand copies in addition to the number contracted for 'by the Sthte, and 'in the sale of them was restricted in price to a sum not exceeding four dollars per copy; that the said revised Statutes should be-printed, bound, corfipleted, and delivered at the seat of government of this State oh 'or before the first day of December then next; that the Governor was authorized to receive and accept of the said Statutes so to be delivered, if he should be of the opinion that the work had been done according to the'contract and the requirements of said act; that should he accept and receive the same, he was authorized and directed to deliver to said contractor a receipt for the sfime, and tocancel the bonds; that’the contractor in the publication of the work should be subject in its'arrangement, side notes, index, and general character, to the person or persons who might be appointed 'by the 'Legislature to superintend the same; and by an act'entitled, “Of the superintendance of the 'publicatidn of the Revised Statutes,” it is made the duty ’of the Secretary of State to cause to be copied the several chapters composing the Revised Statutes, and all other laws which were required to be published therewith, and to furnish them to the said commissioners within 'thirty days of the close of the then session of the Legislature, and he was authorized to employ such clerk or dorks as might be necessary to accomplish the work within the time specified; and it was provided that said expense for copying, should not exceed in the aggregate, more than two hundred and fifty dollars, and that the same should be paid by the person or persons having the copyright. And this Petitioner further shows unto this Court, that agreeably to the provisions of said act, the commissioners to revise the laws, did, on the twentieth day of March, in the year one thousand eight hundred and forty-nine, select and appoint this petitioner to publish and deliver the said Revised Statutes, according to the provisions of said act; that on the twenty-fourth day of March, in the year last aforesaid, this petitioner did execute the bond required by said act, which bond was duly approved by the Governor of this State, and placed on file; that this petitioner then proceeded to the publication of said Revised Statutes, with a direct reference to the maximum, price mentioned in said act, to wit: the sum of one dollar and seventy-five cents per volume, for seven hundred pages, and twenty-five cents additional per volume, for every hundred pages of excess over said number of seven hundred, and proportionably for a less number of pages, of excess; that this Petitioner submitted the arrangement of the work, its side notes, index, and general character, to the direction of Charles M. Baker, who was duly appointed, by an act of the Legislature of the State of Wisconsin, entitled “ Of the superintendence of the publication of the Revised Statutes/’ to superintend the publication of said Revised Statutes, and that this Petitioner paid the said Charles M. Baker, the sum of six hundred dollars, for superintending the publication of said Statutes, as this Petitioner was required to do, by the act last, above referred to, and that this petitioner paid the Secre*. tary of State two hundred and fifty'"dollargj for copying said statutes, as he was required to do by said act'; that this petitioner published Six'thousand copies of said Revised Statutes, each volume containing nine hundred arid twelve pages, large octavo, printed on new small pied type, on paper of -good book quality, bound in c'alf, and in the ihodern style of law book binding; that on the first day of December, in the yeár one thousand eight hundred and forty-nine, , this petitioner delivered to Nelson Dew'ey, Governor of the State of Wisconsin, at Madison, the seat of government of said State, foul- thousand copies of the said Revised Statutes, printed, bound, and completed hs aforesaid, which copies the said Governor did then and there accept of this petitioner, and did cancel this petitioner’s bond so executed hs 'aforesaid, and deliver to this ’petitioner a receipt for sáid Statutes, Which receipt is in the words and figúYés following, to Wit': “Rec’d of C. La-tham Sholes, four thousand copies of the Revised Statutes ‘of the State of Wisconsin, -published by him, 'inboxes unopened, which he has guaranteed 'to contain the requisite number of 4000 volúrhes, and tobe of the quality of the sample delivered. (Signed) NELSON DEWEY, Governor of Wisconsin";.’,’ And this petitioner further "shew-eth unto this Court, that the said two thousand copies of said Statutes, required to be published by said act, additional to the four thousand copies contracted for by the State, have been so published as required by said act, and that in the sale of the said two thousand additional copies, this petitioner has restricted himself within 'the sum of four dollars per volume; that your petitioner has on his part in all respects complied with the provisions of the 'said acts, entitled “Of the publication of the Revised St&t-ates” bind. “Of the superintendence of the ‘publication of the Revised Statutes;” that the four thousand copies delivered as aforesaid to the Governor of this State, were placed In the State Library, and have been distributed and are being distributed according to the provisions of the law; and this petitioner believes knd states that the said Revised Statutes so delivered to the Governor of this State as'aforesaid, were worth and 'áre of tbe value of two dollars and twenty-eight cents per volufne, the maximum price mentioned in 'said act; that this petitioner during the time of the publication of said Revised Statutes and At the time of delivering the ‘same, supposed and believed that he was to receive the said maximum price for the publication and delivery of the same; that this petitioner after having delivered the Statutes aforesaid, presented his claim to the Legislature of this State'; asking an appropriation of nine thousand one hundred and twenty dollars, the price and value of said Revised Statutes, and the skid Legislature, by án act approved February 6th, 1850, did appropriate to this petitioner the sum of six thousand one ’hundred and twenty dollars, and refused tó allow this petitioner the balance of his claim; which balance amounts to 'the sum of three thousand dollars, which gum this petitioner believes and states remains justly due and'unpaid to this petitioner; and -your petitioner represents that he deems himself aggrieved by such refusal of thé Legislature to allow 'said just claim of your petitioner against thé State, and therefore files this, his petition, in pursuance of an act of the said Legislature, approved February 9th, 1850, entitled, “an act to direct in what ¡manner and in what Courts suits may be brought against file State;” and this petitioner therefore asks the aid of this Court in the premises, and that the State of Wisconsin may appear before your Honors, in the Supreme Court and answer this petitioner according to the provisions of law and the rules, of this Court, and that this petitioner may have such justice and. such other relief as the law and very rights of the case may require, and as to this Court may seem proper and just.”-
    To the matters of the petition, the Attorney General, in behalf of the State, put in a general demurrer. On the argument of the cause, the parties entered into the following stipulation, which made a part of the case.
    “ This case is to be heard upon the following agreed state of facts: — That in pursuance of the act first mentioned in the petition, the petitioner was selected and appointed by two of the commissioners mentioned in said act, to publish the Revised Statutes. That the petitioner executed his bond to the Governor-of the State, which was approved by him, That the petitioner did then publish the number of copies mentioned in said petition. That the Governor, in the name of the State, did make the subscription for four thousand copies in the book kept in his office, for the record of executory proceedings, a copy of which subscription is hereto attached, and made a part of this stipulation. That by an act of the Legislature, the sum of six thousand one hundred and twenty dollars has been appropriated to said petitioner, in payment, as.the State claims, for the copies of said Statutes so subscribed for., as, aforesaid, and in part payment, as the petitioner claims; and that said petitioner has drawn and received the amount of said appropriation from the Treasurer of this State.
    It is further agreed that said petitioner delivered to th^ Governor, the said four thousand copies^ so subscribed for, and that the same have been placed in the State Library, and a portion of them distributed by authority of law; and further, that it is not known to the State or any of its officers, that said petitioner knew of said subscription at the time of the delivery of said four thousand copies.
    It is further admitted that two dollars and twenty-eight cents is a reasonable and fair price for each copy of said Statutes, so delivered to the State.” . ' '
    It was also stipulated that the following statement of the subscription should make a part of the easel
    'DECEMBER 1st,' 1849.
    On this day the following Executive action was had, to-wit:
    By the authority of an Act of the Legislature of the Stale of Wisconsin, approved, March11, 1849, entitled “An Act to provide for: the publication of the Revised Statutes of this State, the Governor of this State is authorized and required, in the name of the State of Wisconsin, to subscribe for and take, when finished, bound, and completed, as by said act provided, four thousand copies of the said Revised Statutes for the use of the State, at a sum not exceeding one dollar and seventy-five cents per volume; provided, however, if the said volume shall exceed seven hundred pages, the sum of twenty-five cents additional per volume for every hundred pages and proportionally for a less number of excess shall tie allowed.
    It is therefore ordered by the Governor of this State, that four thousand copies of the said volume of said Revised Statutes mentioned in said act, be, and the same is hereby subscribed for, on the account of, and in the name of the State of Wisconsin'.) at the sum 'of one dollar for • . ■ ’ c seven hundred pages of such volume, and at the rate of twenty five cents additional for, every hundred pages of excess, over and above the said seven hundred pages, as provided by 'said act;
    By the Governor,
    NELSON DEWEY.
    
      Cothran, JLrnold & Sharpsteiii, for the Plaintiff
    
      C. James, in behalf of the State, acting in the absence of the Attorney General.
    The points and arguments made by the counsel upon either side are so fully alluded to and reviewed by the Court, that it is not deemed material to give any thing more then an analysis of them. •
    The counsel for the plaintiff claimed and argued—
    1st. That tlie contract made with the plaintiff on the part of the State was in accordance with the provisions of the Statutes of the State.
    2d. That the execution of the bond for the performance of the work created the duty and made it obligatory on the plaintiff to execute it, and on the part of the State, it imposed the obligation of payment.
    3d. That on the execution and deposite of the bond by the complainant for the execution of the work, the Governor was bound by the Legislative act, to make a subscription in behalf of the State for the work, at the maximum price fixed by the act, or to have indicated at that time, that he should affix a lower sum.
    4th. Thát by the act, the Governor was not bound, to subscribe until the work wds completed', ánd reády fdí-inspection and delivery;
    
      5th. That the Governor was not ihvésted tfriib any discretion when he subscribed, td fix the subscription at a lesser sum than the maximum price recognized by the act.
    6 th. That the áct authorizing the printing was in accordance with the Constitution, and that the act of the Legislature was in accordance with that.
    7th. That the Constitutional objection, if any there was in the case, could not now be raised, when the work had been done and the State had received it.
    8th. That the State cannot set up in its own wrong, á Constitutional objection to defeat the effect ,of its own Legislative action, after rights by another have been obtained uuder it.
    9th. That the Governor was not the agent of the plaintiff under the act of the Legislature.
    10th. That by making the subscription and receiving the books, the Governor had no power of authority to diminish the maximum price; and that by these acts the duty of paying the maximum price became legally fixed upon the State.
    On the part of the State it was insisted-^
    1 st. That a Legislative act transcending the powers granted by the Constitution could not invest an individual with any rights or claim against the State.
    2d. That the plaintiff’ having been cognizant of, and assenting to the appropriation made by the Legislature, for his compensation, and having accepted and received the-amount 'so appropriated, without objection, He was estopped from all legal claim to a greater or additional sum. Thát being an applicant to the Legislature for the passage of the act, after it had passed, and he had received the fruits of the Legislation in that behalf, it put an end tó all further claim, to be asserted by force of an action at law.
   By the Court.

Larrabee, J.

This is the first suit brought under the Statute, passed in obedience to the mandate of the Constitution, authorizing actions at law against the State.

The petition states that the plaintiff was appointed and employed by the Commissioners, to publish in a volume, the Revised Statutes of the State; and that in pursuance of the law, Rev. Stat. 740, he delivered to the Governor, under his contract, four thousand copies, worth $2,28 per volume, amounting, in the whole, to the sum of $9,120. That the Legislature subsequently appropriated to him the sum of $8,120, and refused to allow him the balance of his claim, amounting to $3,000, and for which balance this suit is brought.

A stipulation between the Attorney for the plaintiff, and the Attorney General on behalf of the State, has been filed, by which it is agreed that the Governor, subscribed in the executive records of his office, for four thousand volumes at the price of $1,53 per volume. That this sum, per volume, amounting in the whole to $8,120, was appropriated by the Legislature in payment, as the State claims, and in part payment, as the plaintiff claims, for the books; and -which sum the plaintiff received from the State Treasurer. That the volumes were delivered according to the contract, and placed in the State Library, and a portion of them subsequently distributed throughout the State. That it is not known to the State of any of its officers, whether the plaintiff knew of the fact of the Governor’s subscription* nor is it known under what motives the plaintiff did the particular acts set forth in the petition. That the books were reasonably worth the sum of #2,28 per volume;

This is the case, and simple as it seeihs to be* it has given rise on the argument, to the gravest Constitutional and legal questions; On the part of the plaintiff, it is claimed that the admission by the Attorney" General that the books were worth more than was páid for them, is conclusive upon the State,, and that the provision of the Constitution that private property ’shall not be taken for public purposes without just compensation* entitles him tC demand at our hands a judgment for the full value of his books. On the other hand it is insisted by the Attorney General, that the law authorizing the employment or appointment of the plaintiff to do this work* is in direct violation of the Constitutional provision requiring all print* ing authorized or required by the Legislature for its own use or for the use of the State, to be let by contract to the lowest bidder; and that* therefore* the law was absolutely void, and that the plaintiff did not and could not acquire any legal rights, whatever, under it. It is further contended by the Attorney General, that the price, not exceeding a specified maximum, was left entirely to the judgment of the Governor; and he having once fixed it by his subscription, and the books having been delivered under that subscription, the Executive action is conclusive, both upon this Court and the Legislature. That 'though the copies furnished the State Were each actually worth more than the price fixed by the Governor, and allowed by the Legislature, yet the plaintiff was fully indemnified by the monopoly which he enjoyed from the publication, and the profits, vyhich he made o,n h¡5 general sale. And that, whether this be. so, or not, the plaintiff having elected to accept the legislative appropriation which was in its terms in full °f h's demand, Session Laws 1850, p. 112, he is estopped from now setting up a claim for what really might be an equitable compensation,

I sha,11 consider these arguments in the or^er in vyhieh they hiyve b.eeq stated. And—

1st The plaintiff claims, that he is entitled to maintain this action because his books were worth more than ho has received for them; and that private property cannot thus be taken for public pse without just compensation. A vepy reasonable proposition, and one, vyhich, standing by itself, and unexplained by the facts this, case, would prpbably not be disputed by the Attorney General, nor indeed, by any one. But what are the facts? The plaintiff agrees by his delivery of the books under the subscription of the Governor., to furnish them at a certain price, and which price he has already been paid, Now c¡m it be s,aid that this is a faking of private property for public use, which entitles the owner to a quavr tvm ralebat? Does the State, in purchasing property of one of its citizens,, or accepting his services under a, contract, though it should turn out that that property or those services were worth more fhan the stipulated, price, become liable for all tim.e thereafter to, a,n action to recover whatever that property oy those services may be proved to be worth? Such a doctrine cannot be entertained for a moment. The idea is certainly an original one, and- could not have occurred either to the Barons at Runnymede o,r the framers of our Constitution, A contract is $ contract, whether made between individuals, or between States, or. between a State and an individual; and all parties competent to contract are bound by it. The provision in regard to taking private property for public purposes, was intended to indemnify the individual against the acts of the State in its sovereign political capacity; and had no reference to mere ordinary eoptracts between the State ^nd one of its eitizens.

This is the argument offered to sustain the claim of the plaintiff It was, however, further contended, that the law itself fixed the price, at which the State was to receive these books. But it is impossible to give it this construction, unless we reject entirely that part of the law authorizing the Governor to subscribe at a price not exceeding a certain amount. The law certainly implies a discretion, or it is utterly without meaning. The Governor, was made the Agent of bpth parties, to subscribe for at a price not exceeding a specified maximum, and accept the books when completed according to the conditions of the contract; and it cannot now be urged that the plaintiff was ignorant of the price fixed by that subscription, for it was his right to have ascertained it, and the duty of no one to have informed him of it. He entered into the contract with his eyes open, and knew or ought to have known that this discretion was placed in, the hands of the Governor. If he feared an illiberal or an unjust decision, he should not have entered into the contract.

This, I believe, disposes qf the whole of the argument of the plaintiff’s counsel; and presents a case, whichhad it arisen between individals, would never have reached iba dignity of contested argument, but would have been decided ajs soon as stated.

In the view already taken of the cáse iti§ no't'necessary to examine the grounds of defence urged by the Attorney General; but as the matter Was elaborately argued, and involves a constitutional 'quekiioil, it may as •will be disposed of now.

It is said that the law 'tinder which these books were published, is in Violation of Sec. 25, Art. 4-, of the Constitution. This provision, considered álone, includes all mere mechanical printing required for the use of the State in áll its department's. It is intended, in this regard, 'to remove from the officers of government the opportunity or incentive to traffic in official power, and to confine their action within the simple sphere of legitimate official duty. It perhaps would have been well if the Revised Statuses could have been published under the advantages of the competition provided by the Constitution for the ordinary printing of the State; for political morals would not have received the shock, nor the State have suffered the reproach which has been, more than probably, unjustly, the result of the law under which they were published. The charge of fraudulent Legislation in the inception of the law, which has been assigned by the Attorney General as a reason for the executive action ©an liavo no weight as an argument with this Court. It might, if substantiated, have been a'.legitimate consideration for the Executive or the Legislative branch of the Government, in the exorcise,- of the discretion given by the contract itself to the former, and in the measure of compensation accorded by the latter; but here it is entirely out of place.

Section 21, Article 7, of the Constitution, directs that the Legislature shall provide for the speedy publication of all Statute Laws, and bf '"'Such judicial decisions as may be deemed expedient.

This-provision we do rio't regardas dependent upon or necessarily connected With the provision in relation to printing. While it is true that 'the employment of the art of'printing'is the best'means'of publication, still publication cannot be confined to the'limited signification of mere-printing-, but comprehends the exercise of additional bor and skill. This provision implies a discretion to be exercised in the method of publication; for instance— that the general'laws which cannot be in force until published, shall be published in the public journals, that being the most speedy method; or in pamphlet form, that being mor'e convenient for many purposes; or even by proclamation at the door of the Court House in each County; and that the whole body of the laws and the decisions of the Supreme Court, 'shall be published in'the more permanent form of a bound book. All these would be different'forms of publication, and all would answer the Constitutional requirement; and'it is obvious enough that m many instances the object could not be accomplished under a contract for mere mechanical printing.

But it is said, that the Legislature having made an Appropriation Which in its terms was to be in fall for these books,'and the plaintiff having accepted and drawn from the State Treasury the amount of that appropriation, he is estopped, as it wbre, from setting up this claim.

To'this argument of the Attorney General, I have heard no ansWer; nor is it perceived how any can be given. As between man and man, it admits of no question; find I cannot conceive that the circumstance of one of the parties being a State, can affect tlie matter in the slightest degree. An individual contracts with his State, not as his sovereign, but as he would with any other municipal power, or with an individual; and having, with a. full knowledge of the facts, received compensation ip ful|, it is impossible that such a case constitutes an except tion to the general rule, by vyhich a par.ty is concluded by hi$ acceptance in full, where there is no pretence of fraud or mistake. Such were the terms upon which the appropriation was ma^e, and suph the terms upon which the money was drawn from the Treasury. There could he no ipeptal or other reservation, on the. part of -the plaintiff, which ccipld in any yyay, bind the State.

~We ape, therefore, all of opinion, upon the whole case, that the plaintiff has failed to substantiate his claim against the'State, and judgment must be rendered accordingly,

Judgment against the plaintiff for costs.  