
    Ellis and Another v. The State and Another.
    It is competent for the legislature to make the state printer an officer. The law of 1843 made the right to do the state printing and take the compensation therefor, an office.
    The office of state printer is one of trust and profit.
    The sale of the office of state printer is prohibited by principles of public policy.
    The act of 1851, entitled “An act in relation to the pay of Austin H. Brown, printer to the constitutional convention of Indiana,” does not sanction the assignment of the office of state printer made by Jacob P. Chapman, state printer, to Ellis and Spann.
    
    The printing done for the constitutional convention of 1850, was not embraced in any contract, express or implied, between the state printer and the legislature that elected him.
    NS contract could be implied, on the part of the legislature, with the state printer, further than that he should execute the printing authorized by a legislature acting under the same constitution with that which elected him.
    By public printing is meant that which is directly ordered by the legislature, or performed for the agents of the state government authorized to procure it to be done.
    
      Tie printing executed by Austin H. Brown for tie constitutional convention of 1850, was not authorized by a legislature acting under the constitution of 1816, nor by any legislature; nor did any-authorized agent of the legislature procure it to be done.
    The printing done for the constitutional convention of 1850, was procured by the convention to be done on its own responsibility; and the subsequent payment for it by a legislature sitting under the authority of the constitution of 1851, was a voluntary and not an obligatory act; and the state was not rendered liable for damages to the state printer thereby.
    APPEAL from the Marion Circuit Court.
    
      Friday, November 26, 1852.
   Perkins, J.

Bill in chancery in the Marion Circuit Court, by Ellis and Spann, assignees of Jacob P. Chapman, state printer, to recover damages which, as such assignees, they alleged they had sustained by reason of the printing of the late constitutional convention having been withheld from them.

The bill charged that on the 3d day of January, 1850, Jacob P. Chapman was elected state printer, to serve for three years next after the 1st day of August, 1850; that he gave bond on the 5th day of January, 1850, as required bylaw; that on the 3d day of May, 1850, Ellis and Spann purchased from Chapman the right to do the public printing and receive the pay therefor, for which they paid him a considerable sum of money; that on the 16th day of May, 1850, Chapman made to them a power of attorney to receive the pay for said printing, and received from them a bond conditioned for its faithful execution ; that the convention to amend the constitution of the state assembled at Indianapolis on the 7th day of October, 1850, and adjourned finally on the 13th day of February, 1851, and, during its session, ordered and procured Austin H. Brown to execute printing, consisting of the journal and debates of said convention, and other matters, costing in all, at legal prices, the sum of 6,110 dollars and 89 cents, and the net profit on which amounted to 2,976 dollars and 67 cents, being the sum claimed in this suit by Ellis and Spann as their measure of damages. The bill further alleged the readiness of Chapman and of Ellis and Spann to do said printing, and notice to the convention of the fact. The bill set forth the act of the legislature of the 8th of February, 1851, authorizing the treasurer of state to pay Brown for said printing out of the state treasury, &c., but providing that said payment should not “ operate against the claim of Jacob P. Chapman, the state printer, or his assignee or assignees, if any he or they have, against the state.” The second section of said act enacts, “ That Erastus TV. II. Ellis and John S. Spann, the assignees of Jacob P. Chapman, the state printer of the State of Indiana, be and they are hereby authorized to bring suit against the State of Indiana, in the Marion Circuit Court, in accordance with the provisions of chapter 45 of the general laws of 1850, page 66, for such damages, if any, as they may have sustained in consequence of the printing of the constitutional convention being withheld from them.”

Chapman was made a defendant and answered, confessing the bill.

The state answered, mainly confessing the facts of the bill, but denying the right of the plaintiffs to damages upon the facts.

The Court below decreed against the plaintiffs.

The counsel for the plaintiffs contend that this decree should be reversed and this suit sustained:

1st. Because the state printer is not an officer, and the business or function of the state printer is not an office, but rather an engagement with the state for the performance of service, which engagement is legally assignable. Or,

2d. If the state printer be an officer, and his duties be not generally assignable, still the state has recognized and sanctioned the assignment, in the present case, by the act authorizing this suit.

3d. That the printing done by Brown for the constitutional convention was embraced in the contract between the state printer and the legislature that elected him.

It was competent for the legislature to make the state printer an officer, and we think they have done so in this state. Art. 5, of chap. 4, of the R. S. 1843, p. 100, treats “ of the officers elected by the general assembly, and the tenure of their offices.” It specifies:

“1st. The Secretary of State.

“2d. The Treasurer of State.

“3d. The Auditor of State.

“4th. President Judges of. the Circuit Courts.

“5th. Prosecuting Attorneys.

“6th. The State Librarian and State Printer.”

Nor do we think the act authorizing this suit has sanctioned the assignment supposed to have been made in this case. The legislature have not assumed to determine anything in the premises, but have referred all the questions arising in the cause, that of the assignment among them, to the Courts for decision.

Nor, thirdly, do we think the printing done for the late constitutional convention was embraced in any contract, express or implied, between Mr. Chapman, as state printer, and the legislature that elected him. We do not mean to admit or deny that his election constituted a contract for any amount of printing. See Gilbert v. The Board of Commissioners, &c., 8 Blackf. 81, and 3 Kent’s Comm., 6 ed., p. 454, n. (c). At all events, no contract could be implied on the part of the legislature by his election, further than that he should execute the printing authorized by a legislature acting under the same constitution as was that which elected him. The legislature did not guarantee against a change of government; and had the convention abrogated the office of state printer, and provided that the public printing should thereafter be let out to the lowest bidder, the then incumbent of that place would have shared the fate of the other officers whose terms were shortened, or offices abolished altogether.

And by public printing, we may remark, we mean such as is directly ordered by the legislature, or performed for the agents of the government authorized to procure it to be done. The printing in question, executed by Brown, was not authorized by a legislature acting under the old constitution, nor by any legislature. We have carefully looked over the act of 1850, (L. of 1850, p. 29), providing for the convention, and authorizing payment of certain expenses which it might incur, and there is nowhere a sentence in said act by which the officers under the old constitution could be justified in paying for said printing, nor by which said convention could order said printing at the expense of the state. It was not, therefore, either authorized by the legislature directly, nor procured by her authorized agent.

We are aware that a difference of opinion exists as to the powers of the late constitutional convention. By some it is regarded as having been a mere creature of the legislature of the old organization, called to perform a specific duty, viz., the amending and reforming of the old constitution. By others it is regarded as having been a body outside of, independent of, and over and above the old political organization; and in this latter light, we believe, it regarded itself. But it is immaterial to the decision of the case before us, in which of these lights it is viewed. If it was the mere agent of the old government for effecting its reformation, then it was limited in its powers by the letter of agency—the statute—under which it assembled; and that did not authorize it to procure from any source the printing in controversy. If it was a body independent of the old organization, then the former government had nothing to do with its printing bills, and they were to be provided for by a subsequent legislature.

We think the printing in relation to which this suit was instituted, was procured by the convention on its own responsibility, and that the subsequent payment for it by a legislature under the old constitution was a voluntary, not an obligatory act, and that the state was not thereby subjected to the payment of damages to her printer. To illustrate: Suppose a property-holder of this city, who practices building more or less each year, to make a contract with a mechanic to do all his work in that line for a period of time; suppose him to designate to the mechanic, from time to time, buildings for him to erect, and all that said proprietor procures or wishes to be erected by any one; that in the meantime, some person, without the knowledge or consent of said proprietor, procures some other mechanic to erect, on ground of said proprietor, a building which he had no desire or intention to have placed upon it, but which he should subsequently conclude, as a mere free and liberal act, to pay for; that the mechanic in the employ of said proprietor then sues him for damages on account of said last-mentioned building: would not said proprietor reply to said mechanic, “I have adhered to my contract with you, have given you all the building I have procured to be done, or that I wished or you expected, when employed, should be done. I have in no manner injured you by voluntarily paying for this extra matter not desired by me.” Like this, in principle, seems to us the case under consideration; and if an individual would not be liable to damages under such circumstances, still less, we think, would the state in the case before us.

J. Morrison, S. Major, and J. A. Liston, for the appellants.

D. Wallace, L. Barbour, and A. G. Porter, for the state.

It may be proper to observe that the call of the convention impliedly, perhaps, bound the legislature to pay for such printing as was necessary, if any was, to the accomplishment of the purpose for which the convention was declared in the law to be called, viz., the amending of the then constitution of the state. Beyond this, at all events, no printing was authorized, and, to this extent, if the legislature was legally bound to give her state printer all her public printing, said printer might have reason to complain. Of the printing in question, however, but little if any could be regarded as necessary.

It is the unanimous opinion of the Court that the decree below must be affirmed.

Per Curiam.

The decree is affirmed with costs.  