
    Banks v. De Witt.
    1. A contract oy a publisher Avith the secretary oí state, under proper, legislation, to print and bind for the state volumes of law reports, maybe assigned by the contractor, with the acquiescence of the state, so as to operate as a novation and vest in the assignee all the rights and subject him to all the obligations of the original contractor.
    2. A contract made in pursuance of a statute or resolution, must be construed as though such statute or resolution had been incorporated into such contract,
    
      3. Under the statutory provisions relating to the publication of the Ohio State Reports (Rev. Stats. §§ 427-437), the resolution of April 17,1883 (79 Ohio L. 249), on the subject, and the contract, made in pursuance of the statute and resolution, Banks & Brothers, assignees of the original contractors, have the right to complete any volumes of reports upon the publication of which they in good faith entered previous to June 23, 1884 ; and the fact that on the last named day, a sufficient number of opinions had not been delivered to complete the volumes then in course of publication, will not defeat such right.
    4. In favor of such an officer as the reporter of the supreme court, it will be presumed, in the absence of anything appearing to the contrary, that in placing, for publication, manuscript opinions in the lianas of the contractors for printing and binding the Ohio State Reports, during the period' embraced by the contract, he acted in entire good faith ; and where, with the opinions so'furnished, the publisher commences in good faith, during such period, to publish a volume of such reports, he cannot be deprived of manuscript opinions to complete the volume, on the ground that the contract was made under the joint resolution of April 17,1882 (79 Ohio L. 249), which authorizes the secretary of state to contract for the publication “ of the thirty-eighth and any other subsequent volume or volumes of the Ohio State Reports that may be ready for publication within two years from the 23d day of June, 1882,” and that sufficient opinions had not been delivered on the last named day to complete the volume ; and on refusal to furnish such manuscripts for such purpose, the officer may be compelled to do go by mandamus.
    .MaNDAMus.
    On June 23, 1884, Banks & Brothers, of New York, made application to this court for a writ of mandamus, and presented a petition therefor, which, omitting caption, signature of counsel and verification, is as follows : “ Your petitioners, David Banks & A. Bleeeker Banks, partners as Banks & Brothers, respectfully' represent, that on April 17, 1882, the general assembly of Ohio passed the following joint resolution : ‘Joint Resolution providing for the publication of the Ohio State Reports and the advance sheets of the same. Be it resolved by the general assembly of the state of Ohio, that the secretary of state be and he is hereby authorized to contract with some-responsible person or firm to furnish materials, print bind and supply the state with three hundred and fifty copies of the thirty-eighth and any other subsequent volume or volumes of the Ohio’State Reports, that may be ready for publication wfithin two years from the 23d day of June, 1882; said contract to be made with the lowest responsible bidder, as provided in section 2, article 15 of the constitution, after first giving public notice to bidders for four weeks in some weekly newspaper in Columbus, Ohio, and of general circulation in the state. Said contract to be made in accordance with the provisions and subject to the limitations and instructions of section 437 of the Revised Statutes, as to cost and otherwise, and shall include the advance sheets provided for in said section. The volumes to be in quality of paper and binding equal to volume 1, Ohio State Reports, as provided by law.’ 79 Ohio Laws, 249.
    “ On June 16,1882, in pursuance of the resolution, Charles Townsend, then secretary of state of the state of Ohio, and acting as such, made and entered into the following contract with H. W. Derby & Co., which contract said H. W. Derby & Co. did in June, 1882, assign to these relators for good and valid consideration, and thereby these relators succeeded to all the rights and liabilities of said H. "W. Derby & Co. under said contract: ‘ This agreement made and entered into this 16th day of June, 1882, by and between H. "W. Derby & Oo., of the city of Columbus and state of Ohio, of the first part, and the state of Ohio, of the second part, witnesseth, that whereas, in pursuance of the provisions of section 437 of the Revised Statutes of Ohio, and as amended January 17, 1882, in relation to contracts for furnishing the materials, printing 'and binding of the Reports of the Supreme Court of Ohio, and in pursuance of the provisions and requirements of the joint resolution of the general assembly of the state of Ohio adopted April 17, 1882, requiring the secretary of state to let said contract to the lowest responsible bidder therefor, after giving public notice to bidders for four weeks in some weekly newspaper published in Columbus, Ohio, and of general circulation in the state. And whereas the secretary of state did, prior to the 6th day of June, 1882, give notice as therein required, in the Ohio State Journal, a weekly paper of general circulation published in Columbus, Ohio, for four consecutive weeks : a copy of which notice is hereto attached, marked A. And whereas, on said 6th day of June, 1882, at 12 o’clock M., the said secretary of state received divers bids therefor in writing, and opened and examined the same in the presence of the several bidders, and it appearing from said examination and the bid of H. W. Derby & Co., which is hereto attached marked B., that the said H. W. Derby & Co. were the lowest responsible bidders therefor. And whereas the said secretary of state accepted the same and awarded the said contract t,o the said H. W. Derby & Co. Now, therefore, for the consideration herein after named, the said H. W. Derby & Co. hereby agree and bind themselves to furnish the materials for and print and bind, on paper and in character and quality of binding, equal to volume 1, Ohio'State Reports, in the manner in all respects and with the expedition as provided by law, a sufficient number of copies of volume 38, and of the next succeeding volume or volumes, if any, of the Ohio State Be-, ports that are or may be ready for publication within two years from and after the 23d day of June, 1882, to supply the State of Ohio with three hundred and fifty copies of each volume so to be published, and to deliver the same to the secretary of state, at his office at Columbus, Ohio, as soon as bound, at 92-¡¿- cents per volume. And the said H. W. Derby & Co. further agree and bind themselves to furnish the materials for and to print and bind on like quality of paper and character of binding and with like expedition and promptness, and to furnish a sufficient number of copies of each of the said volumes of the reports so as aforesaid to be published, to supply the demand of the citizens of the state at a cost not exceeding one dollar and fifty cents per volume, the same to be delivered and kept for sale at Columbus, Ohio. And the said H. W. Derby & Co. agree that their price per volume of the reports to any person or firm, for use or sale in this state, shall not exceed the sum of $1.50, being the sum named in the said contract with said secretary of state, for a period of twenty years. And the said IT. W. Derby & Co. further agree, that upon the receipt from the secretary of state, or other officers, of sufficient manuscript reports of said Ohio State Reports, herein required to be published, to make a form of 16 pages of printed matter of the size and kind required by law, that they will, in every such case, cause the same to be set up in a form as required by law and furnish to said secretary of state a proof sheet of such form or forms, and when said proof sheets shall have been duly corrected by the officer required by law to correct the same, shall be returned by said secretary of state or such other officer to said II. W. Derby & Go., and saidH. W. Derby & Co. shall print such number of copies of such corrected form or forms as said secretary of state may require, not exceeding two hundred of each, and immediately deliver the same to said secretarry of state at his office at Columbus, Ohio, free of all charge and expense to the state.
    ‘ In consideration of the covenants and agreements herein made by the said EL. W. Derby & Co., parties of the first part, the said State of Ohio, party of the second part, hereby agrees that the said II. W. Derby & Co., as such contractors, shall have the sole and exclusive right to publish the reports aforesaid so far as the said State of Ohio can confer the same, for and during the said period of two years commencing with said 23d day of June, 1882, and that they shall moreover be furnished with all the manuscript thereof to be printed, as provided by law.
    ‘ In witness whereof the parties hereto have hereunto subscribed their names and affixed their seals this day and year first above written.
    ‘ II. W. Derby & Co., party of the first part.
    £ Chaules Townsend, Sec. of State, party of the second part.
    £ For value received we hereby assign all our rights and interest in the within contract and agreement to Banks & Brothers, 144 Nassau St., New York, this — day of June, 1882. II. W. DERBY & Co.’
    “ The relators say they have proceeded to carry out all the terms and conditions of the contract, and have in all respects complied with the same, and are still ready and willing to comply with the terms and conditions thereof in all respects. And they say that the respondents (James W. Newman, secretary of state and E. L. De Witt, reporter of the supreme court) have furnished to them, under said contract, prior to this 23d day of June, 1884, manuscript for a part of what will be, when published, volumes 41 and 42 of the Ohio State Reports, volume 41 being supreme • court commission and volume 42 supreme court reports ; and these relators have furnished the material for and have printed all the manuscript copy which has been furnished for said volumes 41 and 42 of said Ohio State Reports, as required by the contract, and have in so doing been at great expense of labor and material. The manuscript so furnished under the contract by the respondents to the relators, amounts to about 75 printed pages of volume 41 and 32 pages of volume 42 of the reports, and the relators have been required to furnish materials for and print the same, and in so doing have been required to prepare materials for and to make contracts for the printing and binding of said volumes 41 and 42 of said Ohio State Reports, entire.
    
      “ The relators are now ready and willing and fully prepared to complete and furnish said volumes 41 and 42 of the Ohio State Reports in the manner provided for in the contract, but they say that the respondents, James W. Newman, as secretary of state, and E. L. De Witt, as reporter of the supreme court, decline to furnish any more manuscript copy for either of the volumes, although they have a large amount of the same on hand which should be furnished, and the relators have made demand on each of them therefor ; and the relators still refuse as aforesaid. No other or further contract has been made for the printing of said reports.
    
      “ The relators are without .remedy in the premises unless it is afforded by the interposition of this court, and they therefor pray that a writ of mandamus may issue against James W. Newman, secretary of the state of Ohio, and E. L. De Witt, reporter of the supreme court, directing them to furnish to the relators sufficient manuscript copy to fully complete said volumes 41 and 42, under the terms of the aforesaid contract, and that such further orders may be made as the cáse may require.” '
    De Witt, by his answer, “ admits that the allegations of the petition are true, but says that the contract set forth in the petition of the plaintiffs expired on the 23d day of June, 1884, and no new contract has been made with Banks & Brothers or with any one else by the secretary of state for the further printing of the Ohio State Reports, and no resolution has been passed by the general assembly of Ohio authorizing him to make any further contract in that behalf.” And the answer of the defendant N ewman is in the same form.
    It appears that previous to the publication of the forms of vols. 41 and 42, above referred to, the whole body of vols. 39 and 40 had been printed, except the indexes.
    The Revised Statutes provide, with respect to the publication of the Ohio State Reports, as follows :
    “ Sec. 427. The reporter shall, when required by the court, attend its sessions and consultations, and, under its direction, report and prepare for publication its decisions, and such other decisions as it designates. (69 v. 99, § 2.)
    
      “ Sec. 428. The court shall cause to be reported, with as much brevity as practicable, each of its decisions, whether made in disposing of a motion or otherwise, that determines or modifies any theretofore unsettled, or new and important, question of law in this state, or that gives construction to a statute of ambiguous or doubtful import, together with such other of its decisions as are deemed of public interest and importance. [69 v. 99, § 3.]
    “ Sec. 429. The reporter immediately after the decision of any case to be reported, shall prepare for publication a report thereof, under the direction and supervision of the court, and in general conformity with the plan hitherto adopted and pursued, and deliver the same, in manuscript, to the supervisor of public printing or Other officer having charge of the state printing, and take his receipt therefor, which receipt shall be filed in the clerk’s office, with the other papers in the case; but no argument of counsel shall be published with such report, other than a brief of the points made, and authorities cited and relied upon by counsel, unless especially ordered by the court. [69 v. 99, § 4.]
    “ Sec. 430. When the supervisor, or other officer, receives sufficient manuscript reports to make a form of sixteen pages of printed matter of the size and kind herein required, he shall deliver the same to the printer having the contract for the printing thereof, who shall forthwith cause the same to be set up in a form, as aforesaid, and after such form is duly corrected and approved by such supervisor, or other officer, the reporter shall cause to be printed three thousand copies of such reports; which copies shall be delivered to the supervisor, or other officer ; the manuscript shall likewise be returned to the supervisor, or other officer, to be by him kept, subject to the order of the reporter. [69 v. 99, § 5.]
    “ Sec. 431. On receiving the copies, the supervisor, or other officer, shall deliver to the secretary of state a sufficient number of the same to supply the state officers, judges of the supreme court, judges of the supreme court commission, judges of the courts of common pleas and superior courts, and clerks of the courts of common pleas, for the sole use of their offices, respectively, with one copy each; and the secretary shall forthwith forward-the same by mail to said officers, respectively; and the remainder of said copies the supervisor, or other officer, shall carefully preserve till a full volume is so printed, and shall then cause the same to be bound as hereinafter provided. [69 v. 99, § 6.]
    “ Sec. 432. The reports shall be printed on good paper, and bound in law-leather, in style not inferior to volume one Ohio State Reports, and shall be in form and manner of execution similar thereto ; and each volume thereof shall contain all the cases for report and prepared, decided during the year ending on the first day of April immediately preceding the publication of such volume, and such others theretofore decided as the court directs; and the court may, for the sake of uniformity in the size of the volumes, or for other good cause, direct a volume to be closed on a different day, and the issuance thereof with a less or greater number of cases; and each volume shall contain an index and table of cases similar to those in volume one, which the reporter shall prepare and furnish to the supervisor, or other officer, to be printed, delivered, and distributed, as aforesaid, in time so as not to delay the publication of such volume. [69 v. 99, § 7.]
    “Sec. 433. When the printing of any volume is completed, as aforesaid, the supervisor, or other officer, shall cause the copies thereof not distributed, to be bound according' to law, and'shall deliver the same so bound to the secretary of state, together with a statement of the actual cost to the state of publication per volume; and the secretary shall forthwith send by mail to the several clerks of the court of common pleas in the state such statement per volume, with ten per centum added thereto; and thereupon, on the receipt in money of the price with such per centum added per volume, accompanied with a certificate, to be made and delivered without cost, of any such clerk, under seal, or other satisfactory evidence that each copy of the report thus sent for, is for the actual use of some person being a citizen of. this state, the secretary shall pay such money into the state treasury, and forward such copy or copies to the person or persons so transmiting the price thereof; but no more copies shall be sold in any county than would be sent thereto, were the whole edition distributed among the several counties according to their population, respectively. [69 v. 99, § 8.]
    
      “ Sec. 434. After receiving the number of copies of the first edition of any such report necessary for the distribution authorized by law, and a sufficiency in addition to supply the probable demand for actual use in this state, the residue thereof shall be disposed of in such manner, by way of exchange for works on law and equity for the use of the state law library, or otherwise, as the supreme court or the general assembly by resolution directs; but the court,shall not authorize the sale of any volume for less than the cost price thereof, with ten per centum added ; and no volume of the first edition of any such report shall be sold, or offered for sale in this state, to any citizen thereof, for more than such cost price, with twenty per centum added; and any person violating this provision is guilty of a misdemeanor, and on conviction thereof shall be fined in any sum not less than ten nor more than one hundred dollars. [69 v. 99, § 9.]
    
      “ Sec. 435. The commissioners of public printing shall, at the same time and place, in the same manner and under the same restrictions and requirements that they advertise and let the other public printing of the state, advertise and let the printing required by this chapter to be done; each volume of the reports to be equal in quality and mechanical execution to volume one Ohio State Reports ; and the binding herein required shall likewise be provided for by the commissioners; but they shall cause the same to be done at the binding department of the deaf and dumb asylum, if, in their judgment, that be practicable. [69 v. 99, § 10.]
    “ Sec. 436. The reporter shall secure a copyright, for the use of the state, for each volume of the reports so published; and he shall receive such compensation for his services, not exceeding eighteen hundred dollars per year, during the time the supreme court commission is in session ; and at all other times not exceeding one thousand dollars yearly, payable out of the state treasury, in such installments as the supreme court, by order entered on its journal, directs. [73 v. 172, §11-]
    “ Sec. 437, as amended January 17, 1881, 78 Ohio Laws, 14. In lieu of the letting, and printing, and binding of the reports by the means aforesaid, the secretary of state, when and as often as he is thereto authorized by resolution of the general assembly, may contract with any responsible person or firm to furnish the material and to print and bind in the manner in all respects, and with the expedition provided in this chapter, a sufficient number of copies of each volume of the reports to supply the state with three hundred and fifty copies at a cost not exceeding one dollar and fifty cents per volume, and the demand of the citizens of this state, at a cost not exceeding one dollar and seventy-five cents per volume, delivered at some convenient point within the state ; and, in addition thereto, to furnish the secretary promptly with a requisite number of advance sheets of such reports, as herein provided, for distribution as aforesaid, and the price per volume of the reports to any person or firm in this state shall not exceed the sum named in the contract with the secretary, for a period of twenty years; but nothing in this chapter shall prevent the person or firm so contracting with the secretary from doing or causing the work to be done outside the state of Ohio ; and such person or firm so contracting shall enter iirto bonds to the state, with at least three good and sufficient sureties, residents of the state, to the satisfaction of the governor, in the sum of ten thousand dollars, conditioned for the printing and binding, as provided in this chapter, of such reports for the state, and for citizens thereof, on demand, at a cost named in such contract, and for the furnishing of such advance sheets for distribution, as aforesaid. Such contract shall not be for a longer period than two years ; and such contractor shall have the sole and exclusive right to publish such reports, so far as the state can confer the same, during such period of two years, and shall be furnished with the manuscript to be printed as provided in this chapter.”
    All the duties with respect to the publication of the Ohio State Reports, required to be performed by the supervisor of printing, are devolved upon the reporter of the supreme court.
    No objection has been made by the state to the assignment of the contract to Banks & Brothers, but on the contrary the state has uniformly recognized them as substituted for H. W. Derby & Co., contractors.
    
      Taylor c& Tan/lor, for Banks & Brothers.
    
      J Lawrence, Attorney General, for the defendants.
   By the Court.

The sole question here is whether, under the contract set forth in the petition, Banks & Brothers, in view of the admitted facts contained in the statement of the case, have a right to publish vols. 41 and 42 Ohio State Reports. In holding that they have such right we will simply state our conclusions.

1. The assignment of the contract by H. W. Derby & Co. to Banks & Brothers, and the acts of the state in accepting the latter in place of the former as contractors, operated as a complete novation, so that Banks & Brothers assumed the obligations and acquired the rights of H. W. Derby & Co., under the contract. Ernst v. Kunkle, 5 Ohio St. 521; Bacon v. Daniel, 37 Ohio St. 279; St. Louis v. Clemens, 42 Mo. 69; Cumminqs v. Blaisdell, 43 Vt. 382; 2 Chitty on Con. 11 Am. ed. 1376, n.

2. The contract, which provided not only for the publication of vol. 38 Ohio State Eeports, but “any other subsequent volumes of the Ohio reports that may be ready for publication within two years from the 23d day of June, 1882,” must be construed in view of the statutes and resolution relating to the matter. Eev. Stats. §§ 427-437; 78 Ohio L. 14; 79 Ohio L. 249; Jewett v. Railw. Co., 34 Ohio St. 607; Alber v. Froehlich, 39 Ohio St. 245, 249.

3. So construed, the contract embraces vols. 41 and 42 Ohio State Eeports; for, before Juno 23, 1884, manuscript opinions properly prepared, sufficient in quantity to make several forms of sixteen pages each of printed matter, for each of those volumes, had been placed by the proper authority in the hands of Banks & Brothers as part of the matter for the publication of those volumes ; and before June 23, 1884, Banks & Brothers had placed in type several of such forms of each volume, and had made sub-contracts for printing and binding both volumes entire; and it is not necessary, in order that those volumes should be embraced by the contract, that manuscripts sufficient to complete either of them should have been prepared before June 23,1884 ; nor is it essential that it should be made to appear that the reporter, when he placed such manuscripts in the hands of Banks & Brothers, believed there would be opinions sufficient in number delivered before June 23, 1884, fully to complete the volumes or either of them.

4. In favor of the acts of such a public officer as a reporter' of the supreme court, it will be presumed that in placing the manuscripts in the hands of Banks & Brothers for publication of vols. 41 and 42, Ohio State Reports, he demeaned himself honestly and faithfully (Ward v. Barrows, 2 Ohio St. 241; Coombs v. Lane, 4 Ohio St. 112; Lima v. McBride, 34 Ohio St. 338, 350; 1 Bishop’s Cr. Pro. § 1131); and there is nothing to show that Banks & Brothers had knowledge as to the quantity of manuscript in the hands of the reporter when they comménced the publication of those volumes, or proceeded, in undertaking such publication, otherwise than in entire good faith.

5. The publication of vols. 41 and 42 having thus been lawfully commenced, the reporter cannot be permitted to stop the publication by placing a changed, and, as we hold, erroneous construction on the contract and the statutes and resolution ; and-mandamus is an appropriate remedy in such case to compel the delivery of the remaining portion of the, manuscript.

6. Where the material facts, upon an application for mandamus, are admitted, and the plaintiff is entitled to relief, this court should award, not an alternative, but a peremptory writ of mandamus. Rev. Stats. § 6745.

We are clear that Banks & Brothers are entitled to the relief for which they applied, by a fair construction of the contract and the legislation ; and in so holding we are glad to see, what is manifest from the record, not only that the contract is greatly to the advantage of the state, but that vexatious delay in the publication of those volumes will be avoided.

Peremptory writ awarded.

JOHNSON, C. J., dissented.  