The effect of what is now the majority opinion is that the State Highway Commission may make contracts for the construction, maintenance, repair, etc., of the State's highways, but the courts of the State will not be permitted to lend their aid to secure their enforcement. Any differences between the contracting parties growing out of the performance of these contracts must be referred to the General Assembly for adjustment and settlement.
It is fortunate for the State that this decision was rendered at the conclusion — rather than at the beginning — of the State's road-building program. It is very doubtful whether the Highway Commission could have contracted advantageously, had contractors and road builders been advised, when the State first entered upon its road construction program (under the provisions of the Martineau road legislation, Acts 1927), that they were entirely at the mercy of the Highway Commission and its employees and representatives in the settlement of the many and varied questions which might arise, and *Page 638 which actually arose, under the almost innumerable contracts which the road program made necessary. It is not only probable, but it is reasonably certain, that if contractors had known that upon making a contract with the Highway Commission they made themselves dependent upon the sense of fairness of the Commission and its employees, with no remedy, in case of disagreement, except an appeal to the General Assembly, contract prices must necessarily have been made to compensate the hazard.
But this now appears to have been what they did, and what future contractors will necessarily do. These contractors make bond to secure the faithful performance of their contracts, which bind them and their sureties, but the other contracting party (the Highway Commission) is not bound. The contractor has no forum where he may present his side of any controversy relating to his contract except the General Assembly. He must accept what is offered. He must take what is given. No court or other forum may hear his complaint that the engineer, inspector or other agent of the Highway Commission has acted ignorantly or corruptly or has misinterpreted or misapplied the provisions of the contract. He may, however, apply to the General Assembly, which, if it pleases, may hear him. A result so unfair should not be reached unless compelled. Does the Constitution compel it?
Justice MEHAFFY and I fully concur in so much of what is now the majority opinion of the court which holds that the State is immune from suits in the courts of this State, and that the General Assembly is without power to give that consent. We expressed that view in the opinion in the case of Arkansas State Highway Commission v. Dodge, 181 Ark. 539, 26 S.W.2d 879, which case, for brevity, will hereinafter be referred to as the Dodge case.
Arkansas and Alabama are among the few States whose Constitutions contain provisions denying the General Assembly of the State the power to consent to such suits. The Constitutions of the majority of the States are either silent, like that of Missouri, or contain directions *Page 639 to the General Assembly to direct by law in what courts and in what manner suits may be commenced against the State. The Constitutions of this State of 1836, 1861, 1864 and 1868 contain this latter provision.
The majority say: "Five justices held (in the Dodge case) that the Arkansas Highway Commission was a State agency, and that a suit against it was in effect a suit against the State." This was never, and is not now, my opinion or that of Justice MEHAFFY. It was and is our opinion, as expressed in the Dodge case, that the suit there authorized was not in fact or in effect a suit against the State. The majority say it is unimportant to distinguish the Dodge case from the instant case, as the Dodge case has been expressly overruled. Justice MEHAFFY and I shall not, therefore, now consider whether there is any distinction.
It is true Justice MEHAFFY and I were much persuaded by the reasoning of the Supreme Court of the State of Missouri in the case of State ex rel. State Highway Commission of Missouri v. Bates, 317 Mo. 696, 296 S.W. 418. We thought it was exactly in point, and that its reasoning was perfectly sound. It was rendered by the Supreme Court of Missouri in banc, and obviously after full investigation and reflection. The opinion recites that all the Justices concurred. The case will speak for itself. That it sustains the views expressed by Justice MEHAFFY and the writer is conceded in the majority opinion. They say, however, that, although this is true, the Missouri case is without authority in this State for the reason that the Constitution of Missouri, unlike that of this State, contains no inhibition to the General Assembly of the State against giving consent to suits against that State. But, as we said in the Dodge case, "The opinion (of the Supreme Court of Missouri) begins with a quotation from a former opinion of the Supreme Court of that State, where Justice LAMM, speaking for the court, had said: `That the sovereign State may not be sued is a truism,' and while it was added that the sovereign may, by law (under the Constitution of that State), give consent to the citizen to sue it, the point was expressly decided and made the basis *Page 640 of the decision that the suit was not in fact against the State."
The authority of that case for the views expressed by Justice MEHAFFY and myself is, therefore, not to be impaired because the Constitution of Missouri does not contain the inhibition found in ours, for, as was held by the Supreme Court of that State, the inhibition exists in that State, although their Constitution is silent on the subject. The point there decided was that this inhibition, which existed notwithstanding this silence, did not deprive the General Assembly of that State of the power to create an agency to supervise the construction of State highways and to make appropriations for that purpose and to authorize this agency or entity, as it was there called, to make contracts relating to these appropriations and to set up a forum wherein differences arising out of these contracts might be adjudicated. The legislation of this State referred to in the opinion in the Dodge case was to the same effect as that of Missouri. A similar agency or entity had been created with similar powers. What we there said expressed the view which we still entertain and which were there summarized as follows:
"In the proceedings there provided for a judgment might be rendered fixing a liability against the Highway Commission, but a judgment so rendered would not be a judgment against the State as such, and could not be enforced by the seizure or sale of the property of the State, as a judgment could be enforced against a private litigant. Satisfaction can be had only out of the fund specifically appropriated for the purpose in regard to which the Highway Commission was authorized to contract.
"The appropriation for the use of the Commission is a fund set aside for a specific purpose. The Highway Commission is an entity, or juristic person, created to disburse this money in payment of work which it is authorized to contract for, and, while the appropriation was not made specifically to satisfy judgments rendered against the Commission, it was contemplated that judgments might be rendered, and the appropriation is the *Page 641 State's provision for their payment. It was not contemplated that the Highway Commission should accede to every demand of every contractor, yet it was contemplated that in the expenditure of a sum of money so large the Highway Commission, in its zeal to protect the fund, might take positions which, if persisted in, would work injustice to some contractor, who could not sue the State as such. Therefore, a forum was constituted where these differences might be adjusted according to applicable legal principles, this forum being the courts at the seat of government in Pulaski County."
Entertaining these views, Justice MEHAFFY and I joined in making the opinion in the case of Watson v. Dodge, 187 Ark. 1055, 63 S.W.2d 993. In that case an attempt was made to seize and operate a State-owned toll bridge, and we voted to prohibit that action, because, as we had said in the Dodge case, the State's property could not be seized or sold. The majority say the law is unsettled and uncertain, and so it is, but that uncertainty arose out of the recent case of Arkansas Highway Commission v. Dodge, 190 Ark. 131, 77 S.W.2d 981, where it was held for the first time that a suit against the State Highway Commission was a suit against the State. Mr. Justice MEHAFFY was disqualified and did not participate in that case. I dissented.
We do not agree that the Missouri case, supra, furnished his the only authority for our views expressed in the Dodge case. We there said: "The instant case is somewhat similar to the recent case of Urquhart v. State,180 Ark. 937, 23 S.W.2d 963." That case had been decided by an undivided court. It was a continuation of the litigation begun to collect a balance alleged to be due from the State upon a purchase of lands for use as a State Penitentiary, reported in the case of Jobe v. Urquhart, 98 Ark. 525, 136 S.W. 663, which case is cited in the majority opinion in the instant case. It is interesting to note that the opinion in this case of Jobe v. Urquhart, supra, reversed the chancellor by a vote of two to three, Justices WOOD and HART dissenting. The unsuccessful litigants, the Urquharts, pursued their remedy to the Legislature, and that body, instead of *Page 642 granting relief, as it might have done, passed, at its 1929 session, legislation which constituted the chancery court of Pulaski County as an agency to adjudge the extent of liability of the State remaining unpaid upon the contract to purchase a State convict farm.
We there said of this legislation in the last appeal of the Urquhart case, supra: "`The Legislature might have ascertained the amount, both of principal and interest, and have made an appropriation accordingly, but it elected to constitute another agency to make this finding of fact, and made an appropriation in what was assumed to be a sufficient amount to pay both the principal and the interest, and, under the remittitur which has been entered, the appropriation is sufficient.' It is true that suit was brought by the State, as the act provided it should be, but the act also provided that the State's vendor might litigate his claim for interest, and that either party should have the right to appeal from an unfavorable decision."
No member of the court as it was then constituted thought that the creation of this agency to adjudicate this controversy was a suit against the State. The opinion was delivered by a unanimous and undivided court only about two months before the opinion in the Dodge case was delivered.
But the opinion in the Dodge case referred to another case even more directly in point than the Urquhart case. We there said: "The instant case is more like that of Grable v. Blackwood, 180 Ark. 311, 22 S.W.2d 41."
In the Grable case, which is reported in the same volume of our reports as the last Urquhart case, the opinion was written by Chief Justice HART, of honored memory, who spoke for an undivided and unanimous court. It cannot be distinguished from the Dodge case. Like the Dodge case, it was a suit against the State Highway Commission, and was begun in the courts of Pulaski County. Its purpose was to compel the Highway Commission to make a disbursement of a portion of an appropriation for road purposes in accordance with what the plaintiff citizens thought was the duty of the Commission *Page 643 to do. There were two suits seeking this relief, one in the Pulaski Circuit Court, the other in the Pulaski Chancery Court. The relief prayed had been denied in each court, and the appeals from that action were consolidated and disposed of by the opinion in the case of Grable v. Blackwood, supra. The judgment of the circuit court and the decree of the Chancery court were both reversed in this opinion by Chief Justice HART, and the causes were remanded with directions to compel the Highway Commission to carry out the provisions of the appropriation act and for further proceedings in accordance with the opinion. The directions required the courts of Pulaski County to do what we said in the Dodge case they had jurisdiction to do.
The majority now say that "* * * so much of the opinion in Grable v. Blackwood, 180 Ark. 311, 22 S.W.2d 41, as tends to support the doctrine of the cases overruled is also overruled." If any portion of the Grable case still remains as the law of this State, the confusion engendered by the opinion in the case of Arkansas Highway Commission v. Dodge, 190 Ark. 131,77 S.W.2d 981, has not been removed.
Justice MEHAFFY and I believe the opinion in the Dodge case is sound in principle and is fully supported by our own cases herein cited as well as by the Missouri case, also cited. We therefore dissent from the present opinion which overrules the Dodge case.