State ex rel. Resley v. Farwell

3 Pin. 393, 4 Chand. 104

• Court: Wisconsin Supreme Court
• Decided: June 15, 1852
• Status: Published

Opinions

It will be seen from the opinions which follow, that the court decided that it had not original jurisdiction of these applications, yet in response to the request of the respondent for an advisory opinion, the following statement of the opinion of the court on the merits, was prepared and filed by Chief Justice WhitoN.

“ 1. The court are of opinion that the governor is not required to authenticate the scrip issued under the act of 1851.

“ 2. But the court see no valid legal objection to the issuing of the stock certificates as provided for in the fifth section of the act, entitled “ an act to provide for the completion of the improvement of the Eox and Wisconsin rivers,” passed on the 14th day of April, 1852, nor to the delivery of them in payment to contractors, as provided in the sixth section of said act.”

Subsequently in the case of State ex rel. Martin v. Farvxll, in relation to certification of the scrip issued by the board of public works under the act of 1851, the following opinion of the court was given:

How®, J.

On the 31st of January, 1851, the relator submitted to the legislature a proposition to do a certain work in the improvement of the Eox river, at prices therein specified, and upon certain terms of payment.

On tbe 4th of March following, the legislature passed an act authorizing the governor to accept said proposition, and to entei into a contract with the relator upon the terms thereof, and providing further that for work done under such contract, in case there should be a deficiency of funds to pay for the same, “the board of public works should give to said contractor scrip, signed by the president of said board and attested by their clerk, for the amount due ” upon each monthly estimate.

Upon the 14th of May, 1851, the then governor of Wisconsin entered into contract with the relator, as authorized by said act, in which it was agreed, not only that in case of a deficiency of funds to pay any monthly estimate, the board of works should give to the contractor such scrip as was specified in the act, but that the governor should affix thereto a certificate, under the great seal of the state, and in a certain form prescribed in the contract.

The case shows that the respondent, the present governor, has refused to perform that part of the contract, and the relator prays that he may be compelled to do so by the mandate of this court.

This application must be denied for the following reasons :

1. Because, as we have already decided, in the case of the State ex rel. Resley et al. v. Leonard J. Farwell, the supreme court has not original jurisdiction of these causes ; and 2. Because, upon the case presented, we are all of opinion that the relator is not entitled to the relief he seeks.

Of the many objections urged against the claim of the relator, the court has considered only the following, which is considered conclusive upon the right asserted. The certificate which the relator demands either confers upon him some new right, not given by the scrip to which it is attached, or it does not. If it does confer a new right, we are all satisfied that the governor had no authority to contract for it, because the law under which he acted only provided for giving the scrip, without any mention of the certificate. If it does not, this court will not command that to be done which confers no legal right.

When the relator obtained his scrip from the board of public works, he obtained all that the legislature authorized to be given him. And although the governor might, perhaps, add such a certificate as is now demanded with great propriety, yet he could not, by contract, bind his successors in office to do so.