151 Ark. 428 | Ark. | 1922
Lead Opinion
(after stating the facts). It appears from the allegations of the complaint that the act under consideration did not receive a majority of two-thirds of both houses of the General Assembly. Therefore, it is c1aimed that the a.c+ is in violation of art. 5, § 31, of the Constitution of 1874, which provides, in substance, that no appropriation of money shall be made except to raise means for defraying the necessary expenses of government except by a majority of two-thirds of both houses of the General Assembly.
In State v. Sloan, 66 Ark. 575, the eonrt held that an appropriation for building a new oapitol was a necessary expense of government, and that a majority of two-thirds of both houses of the General Assembly was not necessary to constitute a valid appropriation therefor. That case rules here. If the building of a new capitol is a necessary expense of government, it is equally apparent that the repairing and furnishing of the Senate Chamber and Hall of the House of Representatives would also be a necessary expense of government.
It is next contended by counsel for the plaintiffs that the act under consideration is unconstitutional because it does not provide that the work shall be performed under a contract to be given to the lowest responsible bidder and that the contract shall be subject to the approval of the Governor, Auditor, and" Treasurer, as required by art. 19 § 15, of the Constitution of 1874.
We do not agree with counsel in this contention. The act does authorize the Secretary of State to enter into a contract for the improvement of the acoustics in the Senate Chamber and the hall of the House of Representatives. At the same session of the Legislature, by an act approved February 23, 1921, the Secretary of State was designated to superintend the letting of all public contracts for the purposes set forth in art. 19, § 15 of the Constitution, and he was directed to proceed in accordance with the provisions of the statute already in existence relating to the letting of such contracts. Public Acts of Arkansas, 1921, p. 239.
The act also provides that before such contracts shall become binding they shall receive the approval of the Governor, Auditor, and State Treasurer. The Legislature must be presumed to have had this statute in mind and to have enacted the statute under consideration with reference thereto. The statutes construed together are in harmony with each other and provide a method of letting the contract in question according to the provisions of the section of the Constitution just referred to. Thompson v. Rd. Imp. Dist., 139 Ark. 136; Pope v. Nashville, 131 Ark. 429; Smith v. Farmers’ Bank, 125 Ark. 459; Benton v. Willis, 76 Ark. 443; Beavers v. State, 60 Ark. 124; and State v. Sewell, 45 Ark. 387.
It is insisted by counsel for the defendants that the work to be performed under the provisions of the act under consideration does not Jconstitute “the impairing and furnishing the halls and rooms used for the meetings of the General Assembly and its committees,” as provided in art. 19, § 15 of the Constitution. They claim that the word “repairing” means to restore or renew, and the word “refurnishing” refers to the furniture to be placed and used in said rooms.
We do not agree with counsel in this contention. The word, “furnishing,” as used in the section of the Constitution, is a noun. Its dictionary meaning is the act of providing with furniture or fittings of any kind. The object of the act under consideration was to improve the acoustics of the Senate Chamber and the hall of the House of Representatives. Under the contract this was to be accomplished by flax-fiber acoustic felts placed upon the ceiling and walls of the chambers. The manner of placing them there made them an adjunct of the chambers and constituted them the fittings of the chamber. Therefore, we think that the contract came within the meaning of the words, “furnishing the hall and the rooms used for the meeting of the General Assembly.”
In Ellison v. Oliver, 147 Ark. 252, the court held that under art. 19, § 15 of the Constitution, “approval” of public contracts by the Governor, Auditor, and Treasurer means the approval by each of the above officers separately, and not by them as a board.
The court further held that the contracts provided for in said section without the approval of the Governor, Auditor, Secretary of State, and Treasurer separately are void. It was also field in that case that the public contracts provided for in it which are not given to the lowest responsible bidder are void.
The record in the present case shows that the contract in question did not receive the approval of the Governor, Auditor, and Treasurer, as required by the section of the Constitution just referred to, and that it was not let to the lowest responsible bidder after advertisement in the manner required by said section and the statute relating thereto. It is true the reason assigned by the Secretary of State for not doing so is that he did not think the contract fell within the provisions of said section of the Constitution. The section of the Constitution, however, is mandatory and must be complied with in order to render contracts made under its provision valid. It follows that the contract made by the Secretary of State with the Union Acoustical Company for the improvement of the acoustics of the hall of the House of Representatives was void, and the chancellor was right in enjoining the further performance of the contract.
It is next insisted that the contract is void because it only provides for the improvement of the acoustics in the House of Representatives for the sum of $12,-000, when the appropriation for both houses amounts to only $13,750. It is alleged in the complaint that the two halls are about the same size, and that there is as much necessity for improving the acoustics of the Senate Chamber as there is for improving that of the hall of the House of Representatives.
In view of the fact that the Secretary of State might let another contract we deem it necessary to dispose of this contention. The act under consideration reads as follows:
-“Section 1. The Secretary of State is hereby authorized and directed to enter into a contract with some person, firm or corporation for the improvement of the acoustics in the Senate Chamber and the hall of the House of Representatives. The Secretary of State shall make due and proper investigation as to what should be done toward the improvement of the acoustics of the Senate Chamber and the hall of the House of Representatives, and he is hereby authorized to make such contract or contracts as he may deem expedient and reasonable, and said contract shall provide for the completion of said work on or before January 1, 1923; provided, however, the Secretary of State, shall require that the person, firm or corporation which is awarded the contract to make and enter into a good, bond, in the sum of at least as much as the contract price, that the contractor shall faithfully perform the contract, and the work shall meet the requirements set out in said contract; and that said contract shall be completed within the time specified therein.
‘ ‘ Section 2. That the sum of thirteen thousand seven hundred and fifty ($13,750) dollars, or so much thereof as may be necessary, be and the same is hereby appropriated out of the general revenue fund of the State for the purpose of carrying out said contract. All estimates or payments due under said contract shall be certified by the Secretary of State, and the Auditor is directed and instructed to issue warrants in payment thereof, and the State Treasurer is directed and instructed to pay the said warrants upon presentation thereof, in the manner now prescribed by law for paying other claims against the State.” General Acts of Ark. 1921, p. 564.
The court believes that the act is an entire act and not severable. The intention of the Legislature must be sought from the plain meaning of the language used where it is not ambiguous. 'Construction and interpretation have no place where the terms of a statute are plain and certain. The act in plain terms directs the Secretary of State to enter into a contract for the improvement of the acoustics in the Senate Chamber and the hall of the House of Representatives. ■We discover nothing in the context which furnishes any adequate reason for departing from the' rule of literal interpretation.
It is true that the next sentence provides that the Secretary of State shall make due and proper investigation as to what shall be done towards the improvement of the acoustics of the Senate Chamber and the Hall of the House of Representatives, and he is authorized to make such contract or contracts as he may deem expedient and reasonable. The object of the investigation, however, is not to determine whether only one of the halls should be improved, but it is to determine the extent and kind of improvements necessary for improving the acoustics of each hall. Doubtless the Legislature knew that the advice of an expert would be necessary in determining the kind and extent of the furnishings for each hall. In other words, without some investigation, the Secretary of State could not know what was necessary to be done to improve the acoustics of either hall, and it was in order that he might intelligently let the contract for the work to the lowest responsible bidder that he was given the authority to investigate as to what should be done toward the improvement of the two halls. It will be noted that he is directed to investigate what should be done toward the improvement of the acoustics of the Senate Chamber and the Hall of the House of Representatives.
It is also contended that the Legislature intended to give him a discretion in the matter by authorizing him to make such contract or contracts as he may deem expedient and reasonable. We think, however, that this was done in order to enable him to let separate contracts for the work so that it could be carried on together and ■ be finished by the time the next Legislature should convene, if in his discretion such a course should be deemed necessary. This is borne out by the fact that no separate appropriation is made for each hall, but a lump sum of $13,750, or so much thereof as may be necessary, is appropriated for the purpose of carrying out said contract.
Therefore, we think that, according to the plain words of the act, the Legislature intended that the acoustics of both halls should be improved, and courts are not permitted to mould language to meet any alleged convenience or necessity. If the Legislature had intended to give the Secretary of State discretion as to whether he should make a contract for the improvement of one or both of the halls, it would have doubtless manifested its intention by appropriate words.
It follows that the decree must be modified, in so far as it attempts to restrain the Secretary of State from letting a contract, and in other respects is affirmed.
Concurrence Opinion
(concurring). I agree with the majority that the statute is valid, and also that the contract is void for the reasons that it was not awarded in the manner prescribed by the Constitution and did not receive the approval of the Governor, Auditor, and Treasurer. But my view is that the subject-matter of the contract falls within the term “repairing” as used in the Constitution, rather than within the term “furnishing.” The improvement of the acoustics of the assembly rooms is not a part of the furnishings, I think, but constitutes alterations. The term “repairing” was used by the framers of the Constitution as meaning to make habitable, convenient and suitable for the intended purposes, and this included alterations found necessary from time to time. It is not conceivable that the framers of the Constitution meant to restrict the powers of the lawmakers with respect merely to making repairs and to leave them free-handed in making alterations or additions. The term employed by the framers of the Constitution should be construed with reference to the manifest design to place a restriction upon expenditures for the assembly halls, and for the purposes expressly mentioned in the section of the Constitution now under consideration.
My chief disagreement with the conclusions of the majority is, however, in regard to that part of the opinion which holds that the funds appropriated, may not be expended wholly in the improvement of one of the assembly rooms to the exclusion of the other. It is not a question of the statute being separable or inseparable in its purposes — it is, I think, more a question whether or not the authority of the Secretary of State is restricted to the accomplishment of the whole of the legislative mandate or none. It is not charged that the contract is an improvident one, or that the officer is attempting to arbitrarily abuse his authority by improving only one of the halls. The challenge goes merely to his authority under the statute to improve one of the halls, leaving the other unimproved. My conclusion is that the authority conferred by the statute is to go as far as the appropriated funds will last, and if insufficient to pay for all of the contemplated improvement the remainder can be left undone until the lawmakers see fit to make further appropriations. In other words, the part of the statute which mentions the two Houses of the Assembly in describing the subject-matter of the improvement is a grant of authority and not a restriction. Legislative appropriations for future expenditures are generally based upon mere estimates, and they are not defeated because they subsequently prove inadequate.
