99 Ark. 20 | Ark. | 1911
Concurrence Opinion
(concurring). I concur for the reason that according to the doctrine announced in the cases of Moore v. Alexander, 85 Ark. 171, and Jobe v. Caldwell, 93 Ark. 503, no appropriation was made to pay petitioners. I did not agree to. the decision in Jobe v. Caldwell, supra, because I reached the conclusion that an appropriation had been made by the act of May 12, 1909, to pay Caldwell & Drake for the work they had performed toward the completion of the Capitol for the reasons stated in my dissenting opinion in that case. I there endeavored to show that, if there was no appropriation to pay Caldwell & Drake whatever might be due them, the “Patterson” and “Oldham” acts were unconstitutional and void. I still adhere to those views, but concede that under the rule there announced by the court the petition herein must be denied. I am of .the opinion also that the facts of this case differentiate -it from that, and that the petition herein would have to be denied, even though the case of Jobe v. Caldwell were overruled. For in that case the Capitol Commissioners had issued their certificate to the Auditor in favor of Caldwell & Drake'for the amount claimed by them in that suit. The Capitol Commission was the duly authorized board or agency of the State for ascertaining and certifying, as the work progressed, the amount due the contractors, based on the estimates of the architect. Here there has been no such adjustment by any agency authorized to make it, and no certificate to the Auditor by such board or tribunal in favor of petitioners for the amount now claimed. In the absence of such adjustment and such certificate to the Auditor, he could not issue his warrant to pay any amount that might be due. He has no authority to make such adjustment himself. The contention is not sound that the. adjustment was made when the old Board of •Capitol Commissioners certified the ninety per cent, for payment, and that the discharge of Caldwell & Drake by the Patterson act ipso facto rendered the ten per cent, due and made the issuing of a certificate therefor to the Auditor unnecessary. The reasons why this contention can not be sustained are clearly stated in the opinion by the Chief Justice, and I concur -in the views he has expressed. The ten per cent, was reserved as an additional 'guaranty that the contractors would do their work and complete the building according to contract. The discharge of Caldwell & Drake indicates that there was a controversy between them and the State as to whether they had complied with their contract. So long as that was undetermined, the io per cent, could not be paid.
Dissenting Opinion
(dissenting). I believe that the act of 1903 setting
apart and specifically appropriating the money to be derived from a particular source for the purpose of constructing the new State Capitol is available to pay the claim of Caldwell & Drake in this case. The act under which the contract between tire State and Caldwell & Drake was made provides that “in no event shall said Board of State Capitol Commissioners ever pay to said contractors more than 90 per cent, of the amount earned until the building 'is fully completed and accepted, when the 10 per cent, retained shall be paid,” etc. The amount earned during the two years next ensuing after the appropriation of 1903 was made definite and certain by the estimates of the architect and the certificate of the board for 90 per cent, of the amount thereof. Warrants for the 90 per cent, were issued and paid. It is plain that the amount of the 10 per cent, retained is equally fixed and certain. Under the contract, this amount was to be retained by the State until the building was completed. The board, under the power and directions given it by the Acts of 1909, took possession of the building and refused to allow Caldwell & Drake to proceed further in its construction. The act also provided that the contract between the State and Caldwell & Drake be cancelled, annulled and set aside. In the case of Jobe v. Caldwell, 93 Ark. 513, we, by express language, stated that we did not decide to what extent the cancellation of the Caldwell & Drake contract was valid, and only went to the extent of holding that the act of 1907 did not make an appropriation to pay Caldwell & Drake. •
It is evident, however, that both the Oldham and Patterson acts passed in 1909, in so far as they provide that the contract between the State and Caldwell & Drake be annulled, cancelled and set aside, are unconstitutional. Under our Constitution a State may defeat the enforcement of its contract by the failure or refusal of its Legislature to make the necessary appropriation to meet it, but that body can not impair the obligation of the contract itself. It can not be said that a State is bound by the terms of its contract, and at the same time has the right to cancel, annul or set it aside. The mandate of the Constitution that no law impairing the obligation of contracts shall ever be passed carries with it the rule that it abrogates fhe State’s right to cancel, annul or set aside its own contracts. In short, the State had the power to terminate its contractual relations with Caldwell & Drake; but when it did so without recognizing their rights under the contract, they were entitled to what they had already earned under it, and might enforce that, right, if an appropriation was available for that purpose.
Therefore, the State having taken possession of the building and having refused to allow Caldwell & Drake to proceed in its •construction without recognizing their rights, under the contract, the latter became entitled to the 10 per cent retained.
It was contended by the Attorney General that “no appropriation is valid for a longer period than two years, regardless of whether amounts claimed to be due accrued within two years •or afterwards.” According to the majority opinion, the oontentention is well taken, and the point is settled by our previous decision in the case of Jobe v. Caldwell, reported in 93 Ark. 513. I do not think so. In that case the board issued certificates for work done in 1907, and we held that the appropriation of 1903 was not available to pay them. Here the work was done within the time limit of the appropriation, and 10 per cent, of the amount so earned was retained by the State. The constitutional mandate is that “no appropriations shall be for a longer period than two years.” I think the framers of the Constitution meant to limit the appropriation to the payment of such claims as might accrue during the ensuing two years, and did not intend to place a limit on the time the money should be drawn out of the treasury. In other words, an appropriation is the setting apart of a fund for a particular purpose, and that purpose is accomplished when the-service is performed or money earned, and the time of payment was not intended to be limited.
In construing a similar provision of the Constitution of Nebraska, the Judges said: “This section simply means this: That provision for the support of the government by any one Legislature must be limited to two years. It does not require the money to be actually drawn from the treasury during that time, but the expense must be incurred or the salary earned during the two years for which the appropriation was made.” To the same effect see Benedict v. New Orleans, (La.) 39 So. 792.
Linder the views I have expressed, the claim required no auditing to establish its amount, and the decision of the Auditor that the claim was not allowable under the appropriation of 1903 is reviewable by mandamus. Black v. Auditor, 26 Ark. 237.