(dissenting.) The contract involved in this case is the same as that held to be valid in McConnell v. Arkansas Brick & Manufacturing Company, 70 Ark. 568. But this is denied by saying that the contract adjudged to be valid in the McConnell case has expired. I do not think so. The Board of Commissioners of Arkansas State Penitentiary failed often to comply with that contract by furnishing the Arkansas Brick & Manufacturing Company with the labor of convicts as it had agreed to do, and upon each of such failures and during the life of the contract promised to furnish the company with such labor until it had furnished all it had contracted to do, and adopted resolutions to that effect, and caused them to be spread at length upon its minutes. These promises were based upon valuable considerations, and did not constitute new contracts but a continuation of the old by an extension of the time of its performance. The labor to be furnished under the promises was to be in performance of the original contract, -which could not expire until it was performed in the manner promised. If I am correct in this conclusion, the board is enjoined and restrained by the decree in the McConnell case from in any manner cancel-ling or annulling the contract as thus extended and “from refusing and failing to execute and carry out” its terms. The board in this case is the same as in that, the membership being different.
I dissented in the McConnell case on the ground that that suit was in effect, a suit against the State, which could not be sued. But the court held differently, and its judgment in that case has passed beyond its control, and become final, and I think should be enforced in this case. The parties have rightly acted upon the faith of it, and should not suffer on account of confidence in the judgment of the -court.