State ex rel. Cantwell Printing Co. v. Hull

174 N.W. 478, 170 Wis. 174, 1919 Wisc. LEXIS 25

• Court: Wisconsin Supreme Court
• Decided: November 4, 1919
• Status: Published

Opinion

Rosenberry, J.

1. The main question presented by the record on this appeal, is, Did the word embossing as used in the statute and contract cover the work done by the relator in impressing or stamping upon the covers of books printed and bound by it, names, titles, etc.? No raised or relief work was done. The impressing or stamping was a depression in the surface of the cover of the book. The contention of the defendant is that the work done was stamping and not embossing, and was therefore covered by the specifications in sec. 20.43, Stats. 1911, as a job of bookbinding would be incomplete without the name or title being placed upon the cover. The relator claims that the work is embossing within the meaning of that term as it is used in the-contract and statute.

The statute uses the word embossing, but does not attempt to define it. It is conceded that no other specification in terms covers the work done by the relator. No other item in the statute covers stamping or impressing letters, titles, designs, etc., upon the covers of books. All the necessary-work is covered by the statute in great detail. At the time the legislature enacted sec. 20.43 it enacted sec. 20.44, which attempted to interpret the provisions of sec. 20.43. Sub. (4) of that section provides that “Folding, stitching, and ■ binding include collating, drying and pressing.” As the trial court says, “Had it been the intent of the legislature that binding should include the placing of the title, name, etc., upon the cover; it would have so provided. Instead of doing so it fixed a separate price for embossing, which under the usage of the craft must be held to cover the work of placing the title upon the book.” No claim is made that the word embossing has acquired any meaning in the law. Sec. 4971, Stats. 1917, provides that in the construction of the statutes of this state “All words and phrases shall be construed and understood according to the common and approved usage of the language.” The question is not, How do the lexicographers define the word embossing? Hartford v. N. P. R. Co. 91 Wis. 374, 64 N. W. 1033. The term embossing being one employed in the printing and bookbinding art, resort must be had to those learned in that art for its common and approved usage therein. Peterson v. Widule, 157 Wis. 641, 147 N. W. 966; 36 Cyc. 1118. It appears almost without dispute that the word is commonly used.in the bookbinding trade to designate precisely the class of work done by the relator for which it has charged eight cents per volume as embossing. While some of the witnesses testified that the word so used is not used with strict technical accuracy, they practically agreed that it is commonly so used. There is nothing in the statute upon which an inference can be based that the legislature intended to use the word in any other than its common and ordinarily accepted meaning. The statute contemplates that printers and bookbinders would use the scale of maximum prices as a basis for bidding, and the legislature must have contemplated that the word embossing would be understood by printers and bookbinders to have the meaning which common and approved usage in the craft has established. Sharpe v. Hasey, 134 Wis. 618, 114 N. W. 1118; State ex rel. McManus v. Trustees, 138 Wis. 133, 119 N. W. 806. The finding of the trial court that the placing of titles on volumes which the relator printed and bound, pursuant to the contract to do the specified classes of state printing during the years specified, was embossing within the' meaning of that term as used in sec. 20.43, Stats. 1911, and in the contract, is amply sustained by the evidence.

2. The contract contained the following clause, also contained in the statute: “And the said party of the second part [relator] further covenants and agrees to be guided by the attorney general’s interpretation of chapter 20 of the Statutes.” It is claimed that under the rule of Keachie v. Starkweather D. Dist. 168 Wis. 298, 170 N. W. 236, relator is concluded by the opinion of the attorney general that embossing did not include the work done by the relator. Without, attempting to interpret fully the meaning of that*clause, it is clear that the agreement to be guided by the opinion of the attorney general does not constitute the attorney general a trier of fact. The question as to whether or not the work done by relator is embossing, under the circumstances shown in this case, is a question of fact. The meaning of the statute cannot be arrived at solely by the application of rules of construction or interpretation. Resort must be had to evidence. The question is, What is the meaning of the term embossing according to the common and approved usage of the language ? Being a technical term employed in the arts, proof must be offered in order to establish it. In one sense the statute needs no interpretation; it covers embossing, which it does not attempt to define. The question then arises, How is the word commonly used and understood by those who employ it? Its meaning must be deduced from the evidence, and the deduction is a conclusion of fact. The clause, therefore, had no application under the facts in this case.

3. Sec. 20.39, Stats. 1913, contains the following clause: “No state printer shall be paid for any printing not authorized by a written order of the printing board or of a chief clerk of the legislature.” The orders given to relator by the printing board required the exact work to be done Which was done by the relator. The fact that the word embossing was not used is immaterial. A thing does not lose its identity because it bears no label. Embossing is embossing whether so designated by the order or not.

4. It is claimed that the relator cannot recover because there was no proof offered that funds were in the state treasury to the credit of the various departments of the state government to which the printing was chargeable, as well as to the credit of the printing board, out of which the relator’s claim could be paid. It was stipulated by the parties that there were at all times sufficient funds to the credit of the printing board. The proof went no further. We think that sufficient under the facts in this case. Sec. 20.75, Stats. 1917, provides: “It shall be unlawful for any state officer, department, board, commission, committee, institution or other body, or any officer or employee thereof, to contract, or create, either directly or indirectly, any debt or liability against the state or for or on account of any state officer, department, board, commission, committee, institution or other body, for any purpose whatever, without authority of ,,law therefor, or prior to an appropriation of money by the state to pay the same,” and provides that violation of the act shall be punished by fine or imprisonment. The cost-of the work ordered by the printing board being payable in the first instance out of the revolving fund, in the absence of proof we must presume under the facts and circumstances shown here that the officers and agents of the state have obeyed the law and have not subjected themselves' to the penalty of sec. 20.75.

By the Court. — Judgment affirmed.

Owen, J., took no part.