Montana Attorney General Opinion 15-384

Opinion No. 384 County Printing - County Commis- sioners - Public Officers - Contracts It is not legal for county officials to order publication of notices in any pa- per except the official newspaper. Contract for printing with a news- paper other than the paper with which the county has made a contract is il- legal and· void and the contract price Cllnnot be collected. Recovery may be had on the basis of quantum meruit only in the event actual benefit to the county has resu1ted. October 10, 1933. You have submitted the following questions: "1. Is it legal for county officials to order publications of no- tices of a county nature to other pa- pers than the county official paper '! 2. If a county officer ordered and had lu;nted notices of a county nature in a newspaper other than the official paper in the county, would the Board of County Commissioners have author- ity to pay a claim for such services'!" You ha\'e cited a number of instan- ces where the board of county commis- sioners, as well as other officers of the county have caused notices to be print- NI in some paper other than the paper with which the county has entered into a contract for the county print- ing. In connection with these publi- cations you have submitted the follow- ing facts: """re find that publications of the above character are ordered printed by the officers in other papers than the official paper and also the 266 OPI~IO~S OF THE ATTOR:\"EY GE~ERAL same notices in the county paper, and in some instances the notices are not ordered published in the county paper, but only in other newspapers. In some cases it was explained that the no- tices are printed in other publications than the official paper because they impart the notices to more people in- terested in the matter, the circulation of the paper being in the immediate vicinity of the persons they desire to reach. In some instances it appears that the publications are given to other newspapers for personal reasons. The publishers other than the county of- ficial paper in nearly all cases charged and collected a far greater price, the of- ficial paper being bound by a contract price controlled by a statutory provis- ion (Chapter 10, 1929 Laws.)" It is my opinion that your first question should be answered in the negative. Chapter 10, Laws of H129, amending Section 4482, R. C. M. 1921, provides that it shall be the duty of the county commissioners to contract with some newspaper to do all the printing for the county. In my opinion such contract covers all the county printing and does not permit the coun- ty commissioners or any other officer of the county to make contracts with or authorize other papers to do any of the county printing. (Volume 2 Opinions if the Attorney General, page ·n.) It does not permit them to di- vide the printing or to duplicate it. The commissioners have no power ex- cept conferred by statute. The legis- lature having determined the policy amI method of handling county print- ing, neither the county commissioners nor any of the officers of the county have any power to disregard such pol- icy and method and to determine upon a policy or method of their own con- trary to statute. (Hersey Y. Nielson, et aI., 47 Mont. 132, 131 Pac. 30.) The only interpretation I can give to the language of the statute is that all the county printing must be given to one newspaper according to a con- tract previously entered into. A con- tract for county printing made by the commissioners or other county offi- cials with some other newspaper, is illegal and void. (Carbon County v. Draper, 84 Mont. 413, 276 Pac. 667; Hill County v. Shaw & Borden Co., 225 Fed. Rep. 475, 140 C. C. A. 523.) Since such conti'act is illegal and void no recovery can be had under it; there· fore, the board of county commission- ers would have no authority to pay· such contract price for such printing. It does not follow, however, that the paper which rendered the service can- not recover the reasonable value of such services. The rule is stated by Pollock, in his Principles of Contract (264); "When no penalty is imposed, and the intention of the Legislature appears to be simply that the agree- ment is not to be enforced, then neither the agreement itself nor the perform- ance of it is to be treated as unlawful for any other purpose." The Circuit Court of Appeals in the Hill County case, supra, construing this statute in a case where books and other property were furnished by Shaw & Borden Company, (which was not the contracting newspaper) said on page 477; "It is a doctrine of the courts, however, now well established, that sanction will be given a cause of action proceeding as for quantum meruit, or for recovery of property or in trover, where the property has been converted, aside from the contract and independent thereof, where the con- tract is merely malum prohibitum, not malum in se nor involving moral turp- itude, and does not contravene public volicy, and where the statute imposes no penalty for its infraction. This upon the principle that the courts will always try to do justice between the parties where they can do so consist- ently with adherence to law." The court in that case held that, while the contract with Shaw & Borden was un- athorized as it was not a company with which it could contract under the law, the county having possessed itself of the supplies, and appropriated them, so that it cannot return them in kind, that it was liable in conversion, inde- pendent of the contract, for the value of the supplies. In support of this prinCiple see the other cases cited in this case. The same priciple was an- nounced in Morse v. Board of Commis- sioners, 19 Mont. 450; 48 Pac. 745, 746. You "ill note, however, that the cases cited a bove are concerned with the sale of property. When property OPINIONS OF THE A'L'TORNEY GEi\ERAL 267 hns been used or consumed by the county, there can be no question as to the actual benefit resulting. In llI'inciple, there would be no difference in the case of printing or publication of notices, provided an actual benefit to the county can be shown, but I am inclined to doubt if there is any real substantial ·benefit in most of the in- stances you have named. 'Vhe1'e the Imblication is not made in the official paper, as required ,by law, but in some other paper, there may be a benefit. It is rather difficult, however, to see how a mere duplication of publication can result in an actual benefit. It is impossible for me to determine this question of fact in all the numerous instances you have mentioned, without making an independent ill\'estigation in each case. Unless it can be clearly shown that an actual and substantial henefit has resulted to the county, no payment would be athorized. In the e\'ent payment is made, the reasolla ble mlue of the services, and, not the void contract, should determine the amount to be paW. (Carbon County v. Draper, supra.) Opinion No, 386 Lottel'y-Prizes Enclose(l in Mel'chan- ruse HELD: Giving a one dollar bill to snch persons as may find one in the package of butter lmrchased is 11 lot- ter~' and is illegal. NO\'ember 14, 1933 You have asked for m~' opinion on the question whether it is legal for a ereamery to follow the practice of giv- i ng a way a dolla r bill to some of the purchasers of a pound of hutter. In ('aeh packag-e the fQl\owing- notice ap- pears: "TO 'rHl.j LADY WHO BUYH nom BUTTER ]<:very now and then, if you are lucky, you may find a crisp new one dollar bill inside your pound of LIB- l<1R'rY BU'L'TER. This is our method of huilding additional interest among the housewives in our product. This offer to continue for an indefinite date. MILK RIVEH CREAMERY Chinook and Hayre, Montana." It appears from this slip that wheth- er or not a purchaser receives a dollar bill depends upon whether 01' not he receives that particular package of hutter which contains a dollar bill, in other words, it is a question of chance. In my opinion this consti- tutes a lottery as defined by Section 11149. n. C. l\L, 1921. It contains all the elements of a lottery which are: (1) the disposition of a prize, (2) upon a contingency determined by chance, (::l) to a person wbo has paid a mluable considera.tion for the chance of winning a prize. In volume 15. opinion i\o. (ii). Opin- ions of the Attorney General, it was held that the giving away with the purchase of a theater ticket of a num- hered ticket on an automobile is a lot- tery. We see no difference in priciple between that case and this. See the nuthorities therein cited. See, also: 17 R. C. L. 1208 et seq.; 1230. 16 Cal. .Turis. p. 713 et seq. Matter of Rogers. 160 Cal. 764, 118 Pac. 242; SOCiety Theater v. City of Sea,ttle. 118 'Vash. 258. 203 Pnc. 21; Davenport v. City of Ottawa, 54 Kans. 711; 3H Pac. 708: 45 A. S. R. ::l0il. Horner y. United Htates, 147 U. S. 449. State v. Lipkin, 169 N. C. 265, 271; 84 S. l<J. 340. It wns said in 17 R.C.L. 1211, "But an examination of many cases on the sub- ject will >,how tha tit is very difficult. if not imllossible, for the most ingen- ious nnd subtle mind to cle\'ise any "cheme or plan, short of gratuitou's distribution of property, which has not heen held by the courts of this coun- try to be in \'lolu Uon of lottery 01' gam- ing laws in force in the various states of the union; and the court will in- quire not into the name, but into the game, however skillfully disguised, in order to ascertain if it is prohibited, or if it has the element of Chance." There are many examples of lottery where. on the face of the transaction, it appears to be a gratuitous distribu- tion of property or money. They ha \'e frequently been held merely devices to evade the law. (17 R C. L. 1222, note 7) (See People V. Cardas, (Cal.) 28 Pac. (2d) 99, for distinction.)