Jobe v. Caldwell

125 S.W. 423, 93 Ark. 503, 1910 Ark. LEXIS 337

• Court: Supreme Court of Arkansas
• Decided: January 17, 1910
• Status: Published

Opinions

McCulloch, C. J.

This is an action instituted by Caldwell & Drake in the circuit court of Pulaski County against John R. Jobe, Auditor of the State, praying for a writ of mandamus commanding that official to issue to them a warrant on the State Treasury for the sum- of $18,899.54 in payment of vouchers issued by the State Capitol Commission, aggregating that sum, on their contract for constructing a new State Capitol building. The Auditor refused to issue the warrant, on the alleged ground that no appropriation of funds had been made by the General Assembly of the State for the payment thereof. The circuit court rendered judgment awarding a writ of peremptory mandamus, and the Auditor appealed to this court.

The Auditor bases his refusal to issue the warrant on a provision of the Constitution which reads as follows: “Sec. 28. No money shall be drawn from the treasury except in pursuance of specific appropriations made by law, the purpose of which shall be distinctly stated in the bill, and the maximum amount which may be drawn shall be specified in dollars and cents; and no appropriations shall be for a longer period than two years.” Art. 5, Const., 1874.

The statutes concerning the building of the State Capitol, and levying a tax and making appropriation therefor, which bear on the present controversy, are as follows:

The General Assembly of 1903 passed an act entitled, “An act to provide for the completion of the State Capitol building, and for other purposes.” Section 10 of that act contains the following provision: “That, for the purpose of raising funds to carry out the provisions of this act, the sum of one million dollars, or so much thereof as may be necessary, be and the same is hereby appropriated for the purpose of completing the new State Capitol building; and, in order to raise said sum, there is hereby appropriated all funds in the State Treasury heretofore collected for or appropriated as a "State Capitol fund, and the tax of one-half of one mill on each dollar of taxable property now levied in accordance with the act provided for the completion of the State 'Capitol building, and for other purposes, approved April 29, 1901, shall be continued to be levied and collected and appropriated, as provided in said act until the said Capitol is fully completed.” Acts 1903, c. 146.

The Commission created by this statute entered into a contract with Caldwell & Drake for the construction of the Capitol búilding at a stipulated price for the material and work, and the latter proceeded with the work of constructing the building. The vouchers in question were issued to Caldwell & Drake in October and December, 1907, after which the contractors ceased operations in the construction of the building before it was completed. Neither the' General Assembly of 1905 nor of 1907- made any appropriation of funds for the purpose of completing the Capitol building.

The General Assembly of 1909 passed an act approved April 20, 1909, entitled. “An act to create a Commission to adjust the controversy between the State of Arkansas and Caldwell & Drake,' and for other purposes.” This statute is commonly known as the Patterson Act, and its provisions may be summarized as follows:

Section 1. Relieves the Capitol Commission from further duties as such; discharges the architect of the building; cancels the contract with Caldwell & Drake.

Sec. 2. Creates a commission, composed of certain citizens, whose names are mentioned, to be known as “A commission to settle the controversy between the State of Arkansas and Caldwell & Drake,” and provides that, “upon the organization of said commission, if Caldwell & Drake shall file with said commission their agreement in writing to accept its action in full settlement and satisfaction of all their claims, on account of their contract to erect the Capitol building, said commission. will proceed to investigate the controversy, hear such testimony as it may deem proper, and make such report as it may deem a just and equitable settlement of the whole matter, fixing the amount, if any, the State should pay Caldwell & Drake, and what amount, if any, Caldwell & Drake should refund to the State, if the commission finds they have been paid more than was justly and fairly due them.”

Sec. 3. Provides procedure of the commission, etc.

Sec. 4. Commission to file report with Secretary of State, and copies with President of Senate, Speaker of House and Governor.

Sec. 5. Provides punishment of witnesses who testify falsely.

Sec. 6. Expenses of the commission to be paid by warrant on treasury.

Sec. 7. Governor to appoint counsel to .represent' the State before the commission.

Sec. 8. Faith of the State is pledged to abide by and carry into effect the acts of the commission.

The General Assembly of 1909 also passed an act, approved May 12, 1909, entitled, “An act to provide for carrying forward the work of the new State Capitol, and making appropriations therefor, and for paying any sum which may be found due the former contractors, and for the creation and appointment of a Capitol Commission and defining its duties, and for other purposes, to carry out the provisions of this act.” This is commonly known as the Oldham Act. It provides for a new Capitol Commission, to be composed of the Governor and four other citizens, to be appointed by him, in the place of and as successor to the old commission. The sections of this act bearing on the present controversy are as follows:

“Sec. 5. It shall be the duty of the Capitol Commission to cause the new State Capitol to be completed according to the original plans and specifications, except as hereinafter provided. The commission shall, so far as is safe and practicable, retain the building now under construction. The said plans and specifications shall be subject to revision and alteration by the commission, and the architect shall make changes when required by the commission to do so.

“Sec. 6. For the purpose of completing the work covered by the Caldwell & Drake contract, subject to the changes in this bill, the sum of three hundred and thirty thousand ($330,000) dollars is hereby appropriated out of any funds in the treasury to the credit of the State Capitol fund, not otherwise appropriated, or so much thereof as may be necessary. * * *

“Sec. 7. The Capitol Commission is hereby directed to perform these duties:

, “(a) To cause to be removed all the defective work and material and to replace the same in a substantial and workmanlike manner.

“(b) To change the construction of the present building so that the hallways shall be lined with white marble, with a scagliola finish on all the interior columns. . * * *

“(d) To cause a proper water supply to be put in suitable places.

“(e) To change the plans so as to substitute stone dome for copper dome.

“Sec. 8. For the purpose of carrying out section 7 of this act, the following additional sums are appropriated from the Capitol fund:

“For the marble in the hallways and scagliola finish on the columns, the sum of one hundred thousand ($100,000) dollars.

“For replacing the defective work and material, one hundred and seventy-five thousand ($175,000) dollars.

“For water connections, salary and expenses of the commission, architect and superintendent, secretary of the commission, and incidental expenses, the sum of seventy thousand ($70,000) dollars.

“For substituting stone dome for copper dome, one hundred and twenty thousand ($120,000) dollars.

“That the Capitol Commissioners be and they are hereby required to file an itemized account with the Auditor showing the actual cost by items of tearing out and replacing any defective work in the new State Capitol.

“Sec. 9. The commission is hereby authorized to use any unexpended balance of an appropriation for any item in this act to any other item herein where the appropriation for an item is insufficient, and such unexpended balances are hereby specifically placed in charge of the commission to use upon other items where

“Sec. 10. When the work is done under contract, said contract shall be publicly let; and notice of the letting shall be given by publication in at least one newspaper in Little Rock, one in Memphis, one in St. Louis and one in Chicago, for at least twenty days prior to the letting. The commission shall require bonds of the contractors, an amount double the amount tó be received by them under such contracts, to faithfully perform their contract and discharge all debts for material and labor incurred under their contracts.

* * * * * * * * * *

“Sec. 12. The Capitol Commission is hereby required to certify to the Auditor of State the amount which may be found due Caldwell & Drake by the commission to settle the controversy between the State of Arkansas and Caldwell & Drake, created by an act of the General Assembly, approved April , 1909, known as the ‘Patterson Act,’ on account of Capitol construction, should said commission find any sum due them. Sufficient money to pay the award in favor of Caldwell & Drake by said commission, if it should be made, is hereby appropriated out of the Capitol fund. The Auditor is required to issue his war^ rant on the Treasurer in pursuance of the certificate of the Capitol Commission for the amount so certified, and the Treasurer shall pay the same or other warrants provided by section 4 of this act, as required to be paid. In the event the said arbitration commission should find any sum due from Caldwell & Drake to the State, suit shall immediately be brought against them on their bond. * * * * * * * * * * *

“Sec. 15. The object and purpose of this act is to complete the new Capitol, except the terrace, power-house, heating and lighting, and the work below basement floor line, according to the appropriation herein made, and is to create a new commission in place of the Board of Capitol Commissioners and to provide for the substitution of other contractors and architect in place of Caldwell & Drake and Geo. R. Mann, whose contracts have heretofore been canceled, and are hereby canceled, set aside and held for naught, on. account of their failure to comply with their respective contracts.”

The only controverted question of law in this case is whether or not a valid appropriation has been made by the Legislature for the payment of appellee’s claim, evidenced by the vouchers issued to them by the former Capitol Commission. It is conceded by all that the plain letter of the Constitution forbids that any money 'be drawn out of the treasury except in pursuance of specific appropriations made by law. On the other hand, it must be conceded that when there is an available fund duly appropriated for the purpose, the Auditor cannot question the validity or regularity of the acts of any other officer or tribunal authorized to pass upon and certify the justness of the claim covered by the appropriation. He acts in a ministerial capacity in issuing warrants upoS such certificates, and can be compelled by mandamus to act when he wrongfully refuses to do so. Danley v. Whiteley, 14 Ark. 687.

Learned counsel for appellees make two contentions as to there being an appropriation to pay this claim: First, that the appropriation made in the act of 1903 was a continuing one, which is still available; and, second, that section 6 of the Oldham Act of 1909 made an appropriation available for the payment of this claim.

The case of Moore v. Alexander, 85 Ark. 171, settles the first proposition adversely to this contention. We are asked to overrule that case or to distinguish it, on the ground that, as it involved a claim of one of the Capitol Commissioners for salary, it was unnecessary to decide whether or not the appropriation in the act of 1903 was a valid continuing one. We did, however, put that decision wholly on the ground that the appropriation was not a valid continuing one, because the provision of the Constitution hereinbefore quoted forbids an appropriation for a longer period than two years; and in effect we held that it was necessary to decide that question. Substantially the same arguments were made in that case as in this in support of the contention that the provision of the Constitution referred to above does not apply to appropriations made for such specific purposes as this. We have carefully re-examined the question, in the light of the very forceful and persuasive argument of learned counsel, but see no reason for changing the view expressed in the former opinion. We decline to overrule that case, and we treat the doctrine therein announced as the settled construction of the constitutional provision m question. The fact that the claim is one for work done under the building contract does not affect the question whether or not the Legislature can make appropriations continuing for a longer period than two years. The Constitution, of course, takes cognizance of valid claims and no others, and it is to those claims that are applicable the inhibitions that “no money shall be drawn out of the treasury except in pursuance of specific appropriations made by law,” and that “no appropriation shall be for a longer period than two yearjs.”

The other contention is that section 6 of the Oldham Act appropriates funds for the payment of these vouchers. Counsel for appellees very 'correctly, we think, define an appropriation to be “a setting apart from the public revenue of a certain sum of money for a specified object in such manner that the executive officers of .the government are authorized to use that money, and no more, for that object, and for no other.” Applying that test, does section 6 of the act appropriate any funds for this purpose? That section appropriates $330,000 “for the purpose of completing the work covered by the Caldwell & Drake contract, subject to changes in this bill.” Considering the whole of the statute together, what does the language of this particular appropriation mean? Manifestly, it means, for the purpose of carrying forward and completing the unfinished part of the work covered by the Caldwell & Drake contract, subject to such changes as the commission might make under the authority of the statute. Sections 7 and 8 direct the commission to remove all defective work and material (meaning, of course, that already done which might be found to be defective), and appropriates $175,000 for replacing such defective work and material. These portions of the act look forward and not backward, and the Capitol Commission, under the provisions of the act, have nothing to do with Caldwell & Drake except, as provided in section 12, to certify to the Auditor the amount, if anything, found to be due them by the commission created, by the Patterson Act.

Section 12 is the only part of the act which attempts to recognize any rights of Caldwell & Drake. Whether the appropriation attempted in that section was abortive because no maximum sum was mentioned, we are not called on to decide in the present case, as that appropriation was to pay an award of the commission created to settle the controversy, and it is not alleged that the controversy was ever submitted to the commission or any award made. Until the amount of claims be adjusted and certified in the manner prescribed by the legislative branch of the government, the Auditor cannot be compelled by mandamus to issue a warrant, even if there be an appropriation.

“It cannot be doubted that the Legislature has the power by law to refer to her officers or agents, other than the Auditor, the settlement of accounts or claims against the State, and-by whose decision, within the scope of their authority, the State may agree to become bound. * * * It appertains exclusively, to the sovereign power to provide the mode and means by which the claims of public creditors are to be ascertained and liquidated, and, without the express consent of the State allowing herself to be sued,' such a case is not one of judicial cognizance. Nor does the submission of the State to an ordinary suit at law for her alleged indebtedness change, in this respect, the theory of a mandamus. The assumption of such a jurisdiction over the accounting officers of the treasury would not only disturb their regular business, but it would have the effect of drawing indirectly to the courts the irresponsible power and impossible duty of regulating the fiscal affairs of the government.” Danley v. Whiteley, supra.

It is argued with much earnestness that the words in section 6 of the act, “for the purpose of completing the work covered by the Caldwell & Drake contract,” are sufficiently comprehensive to cover work already done, as well as that still to be done after the passage of the act. It is true that the precise meaning of the words “to complete” or “for the completion of” is sometimes uncertain and indefinite, and the idea intended to be conveyed by them may depend upon the connection in which they are used and the object to which they refer. The Supreme Court of Indiana, in construing a private contract, said: “The word ‘complete,’ as used, signifies the finishing of unfinished work, bringing it from the condition in which it then was to a state in which there was no deficiency. The instrument is not' broad enough to include the laborers’ claims preceding its date in the list of preferred creditors.” McElwaine v. Hosey, 135 Ind. 481.

In Massachusets it was held that a contract to “cause to be fully completed” certain houses then unfinished, and to guaranty that said houses should be “fully completed and finished as aforesaid to the acceptance” of the owner, should be construed to refer only to the unfinished work, and not to prior deficiencies in workmanship or material. Hyannis Savings Bank v. Moors, 120 Mass. 459.

The New York Court of Appeals, in an early case, construed a clause of the Constitution authorizing an annual appropriation of certain funds to the completion of canals to forbid the use of the funds in payment of interest on borrowed money. Newell v. People, 7 N. Y. 9.

Now, when we consider the Oldham Act as a whole, especially in conection with the Patterson Act, to which it expressly refers, can it be reasonably inferred that the framers of the act intended to appropriate any part of the $330,000 mentioned in section 6 to the payment of Caldwell & Drake for any work already performed by them? We think not. Such a construction would defeat the whole legislative scheme outlined and manifested in the statutes enacted during the same session concerning the State Capitol building, which was to abolish the former Capitol Commission, cancel the contract with Caldwell & Drake and create a tribunal to ascertain and adjust the state of accounts between the State and 'Caldwell & Drake, and to create a new Capitol Commission for the completion of the building, and to make appropriations for that purpose. We do not pause to consider now to what extent the cancellation of the Caldwell & Drake contract was valid, for the question is not presented; but the Legislature undoubtedly has the power under the Constitution either to make appropriations of funds for legitimate purposes, or to entirely withhold appropriations, however meritorious and lawful the demands against the State may be. And certainly we should consider the whole of these statutes, without stopping to determine how far they may be valid, in ascertaining the legislative intent in making the appropriation referred to.

We entertain no doubt as to the intention of the Legislature in this respect, and we hold that the appropriation in section 6 of the Oldham Act is not available for the payment of these or other claims of Caldwell & Drake for work done or material furnished under their contract prior to the passage of the statute.

The judgment of the circuit court is therefore reversed, and the petition for mandamus is- dismissed.