Jobe v. Caldwell

136 S.W. 966, 99 Ark. 20, 1911 Ark. LEXIS 200

• Court: Supreme Court of Arkansas
• Decided: April 17, 1911
• Status: Published

Opinions

Wood, J.,

(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.