
    
      R. Q. Pinckney v. B. K. Henegan and Thomas S. Jones.
    
    In every case and on every matter, a party, affected thereby, has the constitutional right to appeal from a decision made in the Courts below, either in Term time or vacation, and to ask the judgment of the Court of Appeals upon the same.
    A party cannot be denied the right of appeal on even interlocutory orders, but it does not follow that the appeal must necessarily affect the execution of the order.
    A respondent has a right to appeal both from a decision awarding a mamdamm, and another giving the relator leave to sue out a peremptory mandamus or at-
      
      iuckment — but notwithstanding the appeal, the orders must be executed. The appeal is in neither case a supersedeas.
    
    The public records in the Secretary of State’s office, are the property of the State. The Secretary is the mere keeper, under her authority; whatever she wills about them, he is bound to obey.
    Although reports or resolutions of the Legislature have not the power of Acts, yet they have legal effect in the direction of the officers and agents of the State.
    
      Before Mr. Justice O’Neall, at Charleston, May Term, 1847.
    This was an application for a mandamus, to be directed to B. K. Henegan, Esquire, Secretary of State, and Thomas S. Jones, Esquire, his deputy, “commanding them to give to Robert Q,. Pinckney, (the relator) and his clerks and assistants, access to the office of the Secretary of State, in Charleston, and such use of the records therein as he may find necessary, for the completion of the indexing, authorized to be done by the resolutions of the Legislature, adopted in December, 1845, and which, in pursuance of the said resolutions, the said Robert Q,. Pinckney was duly appointed by his Excellency, Governor Aiken, to do and complete.” The questions raised by the suggestion of the relator, and the answer of the respondents to the rule granted thereon, will be sufficiently understood from the opinion prefixed by his Honor, the presiding Judge, to the order made upon the relator’s motion.
    OPINION AND ORDER,
    The Presiding Judge. In this case it appears that the records in the Secretary of State’s office required general indexes, so as to preserve from mutilation and absolute destruction (by too frequent handling and use,) the books to which they might refer. To accomplish this object, a committee of the Senate recommended that the work should be done “under the supervision and direction of his Excellency, the Governor, and two commissioners in’ Charleston, and two in Columbia.” This report was agreed to in the Senate, and was concurred in by the House of Representatives, on the 15th December, 1845. Vide pages 1.58 and 159, of the Reports and Resolutions of December, 1845. On the same day the report of a committee of the House of Representatives was also considered, agreed to, sent to the Senate, and concurred in by that body. It recommended “the appointment of a suitable person or persons to do the contemplated work, under the direction and control of a commission, to be appointed by the Executiveand this commission, they recommended, should consist of “three persons in Charleston, and three persons in Columbia, to be appointed by his Excellency, the Governor, who shall select a suitable person or persons to do the said work.” Ibid. 192, 193. These two reports, as constituting the expression of the legislative will, must be construed together, and have effect. When there is any difference between them, there is no other alternative than to say that the recommendation of either, being adopted, will answer, for both are contemporaneous expressions of the legislative will. There is therefore no room to apply the maxim, “leges posteriores priores. abrogante The Governor appointed the relator, while Secretary of State, to do the work, and Messrs. Hunt and Porter commissioners, who, with himself, superintended and directed the work. This was substantially pursuing the report of the Senate.
    1st. The first question made, by the answer of the respondent in this case, is, whether the relator’s appointment is to be regarded as official, and terminating with his office, t am clear that it is not. Neither of the reports looks to the appointment of the officer in whose department the work was to be done. The report of the Senate gives to the commission the power of having the general indexes made in such manner and on such terms as they shall deem most advantageous to the interests of the State. This certainly did not contemplate the employment of the Secretary of State, and no one else. It gave them full power to contract as they thought best. But the report of the House, which is not at all inconsistent with the Senate’s report in this respect, sheds a light upon it, which removes all doubt. It recommended the appointment of “ a suitable person or persons” to do the said work. This shows that the office had nothing to do with the work.
    2d. I think there is nothing in the 2d objection, made by the answer, to wit: that the respondent has the care and custody of the records, and that the relator cannot have access to them but by the respondent’s consent, obtained on payment of the fees of office, for searches and copies. The public records in the Secretary of State’s office do not belong to the Secretary; they are the property of the State. He is the mere keeper under her authority. Whatever she wills about them, he is bound to obey. If the Legislature should have the folly to declare, by law, that every citizen should have access to them at all times, and be permitted to -take copies, the Secretary has no other alternative than to submit. Here the effect of the contract with Mr. Pinckney, to prepare indexes, gives him the right of access to the office, and the privilege of examining the books to which the indexes must refer. His work, I have no doubt, must be done in such a way as not to interfere with the Secretary’s duty, to furnish copies to the citizens, whenever demanded or required.
    3d. The third objection, that the resolutions or reports of committees concurred in, have not the power of Acts, and that an Act was necessary to compel the Secretary to submit .to the will of the Legislature in reference to this office, is also, I think, without just foundation. It is very true that neither reports nor resolutions have the power of an Act. Their whole office and legal eifect is as a foundation for Acts, or directory to the officers and agents of the State. It is in this last point of view that these operate. They have effect not only in the direction to the Governor as to the appointment of the commission, but also as to how that commission was to act. So, too, it is to be fairly and necessarily implied, that the person or persons selected to do the work, should have access to the office and the books, and that the Secretary should not oppose him in the discharge of this duty. Any other construction would make the- Secretary superior to the Legislature, and enable him to defeat any work which they wished done in his office, and for the performance of which he was not selected.
    4th. The fourth objection, that the work has been paid for, and thus the contract ended, cannot be maintained. It is true that the Legislature, at the last session, by their committees, recommended that a sum, much less than that demanded by the Secretary, should be paid, as a full compensation for the work done. This was merely a settlement (if it can be so called when only the debtor makes it,) for the services then rendered, much of the work still remaining to be done. The Legislature did not say, the work shall stop. They allowed it still to go on, and it is in vain to say that the. settlement of past transactions can in any way affect others which were then yet to arise.
    5th. The fifth objection, that mandamus will not lie, must also be overruled. If it does not lie, the work must stop — the Legislature be defeated by the action of their Secretary, and the relator deprived of the benefit of his contract. He has no other remedy.
    It is therefore ordered that the writ of mandamus, as prayed for by the relator, do issue.
    The foregoing order was entered on the 3d day of June, 1847; and on the same day the following notice of appeal was duly served on the relator, and- a' copy delivered to his Honor, the presiding Judge:
    
      The respondent respectfully appeals from the order of his Honor, directing a mandamus to issue, as prayed for in the suggestion, and will move the Court of Appeals to reverse the same, on the following grounds:
    1. That the appointment of the relator terminated with Governor Aiken’s term of office, when the commission under which the relator claims, expired; and the commissioners had no authority to continue the employment of the relator afterwards, nor did it appear that the relator had received an appointment from any other of the commissioners, except Governor Aiken.
    2. That neither the Senate resolutions, under which the. relator was appointed, nor the appointment itself, confer any authority, or were intended to confer any authority, to have access to the Secretary of State’s office, or to the records there, other than such as he possessed independently of his said appointment.
    3. That if the said resolution and the appointment were intended to give to the relator a right of access to the Secretary of State’s office, and the records there, they are contrary to, and in fact repeal, the laws vesting the care and custody of the office, and of the records there, m the Secretary of State, and rendering him responsible for them; and are therefore void, under the 16th section, 1st article of the Constitution.
    4. That the said order is, in other respects, contrary to law. BAILEY & BREWSTER,
    
      Attorneys for Respondents.
    
    A writ of mandamus was forthwith issued, conformably to the foregoing order, and on the 5th June, 1847, during the same term, the relator, upon affidavits filed, obtained a rule against the respondents, to show cause why an attachment for contempt should not issue against them, for refusing obedience to the writ of mandamus, heretofore awarded, and directed to them; and on the return of the rule, the respondents showed for cause that they had appealed from the order awarding the mandamus, which appeal was yet pending, and which, as they submitted, was a supersedeas of the said writ.
    Mr. Justice Frost, who was then presiding, ruled, that as the writ of mandamus concluded no right of the parties, the order awarding it was, in its nature, interlocutory, and therefore an appeal could not supersede the execution of the writ; and it was ordered that the relator have leave to sue out an attachment, or a peremptory mandamus^ as he might be advised.
    
      The respondents appealed, and moved the Court of Appeals to reverse his Honor’s order, on the following grounds:
    1. That the right of appeal from every order, judgment, sentence, or decree, is secured to the party affected thereby, by the provisions of the Constitution: and that such right necessarily implies a suspension of the execution of such order, judgment, sentence, or decree, pending the appeal; as otherwise the right of appeal would, in most cases, be wholly nugatory.
    2. That if there be an exception to the foregoing general rule, in the case of orders, which are merely interlocutory, such exception cannot apply to this case, inasmuch as the order awarding the mandamus is, both in its nature and effect, final, and unless reversed, in fact ends the case.
    3. That the order awarding an attachment, or a peremptory mandamus, is contrary to law, and a violation of constitutional right.
    Bailey, for the motion.
    Petigru, contra.
    
   O’Neall, J.

delivered the opinion of the Court.

On so much of the case as relates to .the order made by O’Neall, J. for the issuing of the mandamus, it is not thought necessary to do more than to express our concurrence in his judgment, and to refer to his opinion accompanying it for the reasons, which are entirely satisfactory to us.

On the other branch of the case, relating to the right of appeal and its consequences, it will be necessary to state our views. I have no doubt that in every case, and on every matter, a party has the right to appeal from a decision made in the Courts below, either in Term time or vacation, and to ask the judgment of this Court upon the same. That is what is guaranteed to every one, by the constitutional provision requiring the Judges to “ meet and sit for the purpose of hearing all motions which may be made for new trials, and in arrest of judgment, and such points of law as may be submitted to them.” — 3d sec. 10th Art. of the Con. of So. Ca., Amendment of the same, 19th Dec. 1816, 1 Stat. 191-193. This provision no doubt grew out of the practice which preceded its adoption, of the assembling of the Judges at the close of their Circuits, to consider in Bank motions for new trial, in arrest of judgment, and other points of law by them reserved for adjudication. That was altogether voluntary: the Constitution made it compulsory, and enlarged the matters of appeal to all points which the parties might submit. Whether there be any matter which cannot be made a ground of appeal, is perhaps questionable. Mere interlocutory orders,, which do not have any final effect on the rights of the parties, it has been thought were not the subject of appeal, but I do not see how, at law, we can adopt any such rule. With us every order operates upon the matter to which it is addressed, in a way to injure or benefit the parties, and may affect materially their rights. Hence I perceive no ground on which we can deny the right of appeal, on even interlocutory orders. Whether the party will derive any benefit from such appeal, is altogether another matter. Many such orders are entirely discretionary, and in such cases this Court seldom, if ever, interferes. So too it does not follow that an appeal will affect the execution of an order, in every instance. In many instances they must be carried out, pending an appeal, as in orders for the filing of papers, declarations, pleas, &c. They are filed pursuant to the order. The appeal goes on, and if the order be set aside, the papers are taken off the file, and thus the matter is ended.

In this case, I have mo doubt the appellants could appeal both from my decision, awarding the mandamus, and that of Judge Frost, giving the party leave to sue out a peremptory mandamus, or an attachment, as he might be advised. But notwithstanding the appeal, I have also no doubt that the orders must be executed, and that the appeal was in neither case a supersedeas. And such is clearly the authorities. In the Dean and Chapter of Dublin v. Dowgatt, 1 Pierre Williams, 351, it was said that error lay upon an application for a mandamus, yet that it was no supersedeas to the peremptory mandamus, for that such a construction would quite defeat the end of the statute, and prevent the officer who was chosen annually from having any fruit of the mandamus. In the Dean and Chapter of Dublin ads. The King, Brown’s Par. Cases, actions, 7th case, page 76, it is said that all the Judges held that “no writ of error will lie upon a peremptory mandamus.” This ruling would even exclude the appeal,, but here that, I think, cannot be done, for the reasons already stated. Still we are at liberty to adopt the result of the English adjudications, by holding that, notwithstanding the appeal, the mandamus must be executed. Otherwise, as-is said in Pierre Williams, the party would have no fruit of the mandamus. For here, as in the case there stated, the relator’s employment was very much an annual one. True,, it did not necessarily terminate at the end of the year, but the work was to be done in part, or in the whole, before the meeting of the Legislature, and to be by them then paid for. If the appeal had prevented the execution of the mandamus, the party would have lost a year’s work and compensation. So, too, the work was a public one, directed to be done immediately, and indeed in the very process of execution. To allow the appeal, was to defeat the public interest. There was no injury to the respondents in executing the mandamus. They had no counter interest in the work proposed-to be done by the relator. If their appeal succeeded, they had, by the execution of the mandamus, lost nothing. For its only effect was to enable them to push him out of the office, and possibly to say to him, “pay us for every search and copy you have made.” Notwithstanding the mandamus, these claims (if having any legal foundation,) then, and even during its execution, might have been enforced by action. The motions are dismissed.

Richardson, J. Evans, J. Frost, J. Withers, J. and Wardlaw, J. concurred.

Motions refused.  