(dissenting). Appellees allege "that plaintiffs under their contract did a large portion of the work” on the State Capitol, that the Board of Capitol Commissioners, whose duty it was under the law, had issued certificates to appellees showing the amount due them for work done, and that these certificates entitled them, to warrants of the Auditor upon the Treasurer for the payment of the amounts aggregating $18,899.54.
The Auditor does not deny the facts set forth in the petition. On the contrary, by his demurrer he admits that the facts are true, and depends solely on the ground of no appropriation. Acts of the Legislatures of 1901 and 1903 had appropriated for the “purpose of completing the New State Capitol Building” the sum of one million dollars. Appellees entered into a contract with the State to do the work for a specified sum. The act of 1903, under which the contract was executed, after creating the Board of Capitol Commissioners, prescribes, -among other duties, that “the said Capitol Commissioners shall certify to the Auditor of the State, from time to time, such sum or'sums of money as may be due such persons as may have claims against the State under the terms of this act, and the person or persons in whose favor such certificate is issued shall be entitled to a warrant upon the treasury for the amount therein named, and the State Auditor shall draw his warrant for the same, and the Treasurer shall pay the same from the State Capitol Fund, appropriated by this act.”
Appellees held their certificates issued under the authority of the above section. The .Legislatures of 1905 and 1907 neglected to make the biennial appropriations. The Legislature of 1909 in the act of May 12 provides: “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 $330,000 is hereby appropriated out of any funds in the treasury to the credit of the Capitol fund.”
At the time this appropriation was made there was $330,000 in the treasury to the credit of the Capitol fund. This money, under the Constitution, could only be used “for the purpose of completing the New State Capitol Building,” since that was “the purpose for which it was levied.” Acts of April 29, 1901, and April 16, 1903;11, art. 16, Const. 1874. The language of the acts of 1901 and' 1903 making the appropriation is: “For the purpose of completing the new State Capitol Building.” The act of 1909 uses the same language; except it substitutes the words “work covered by the Caldwell & Drake contract” for the words “New State Capitol Building.” But the words in the several acts mean precisely the same thing. If any significance beyond this could be given the words, “work covered by the Caldwell & Drake contract,” it would be to show that the Legislature of 1909 had in mind specifically work that had been done by Caldwell & Drake under 'their contract, as well as work that was to be done by others in “completing the New State Capitol Building” according to the terms and specifications of the Caldwell & Drake contract, but “subject to the changes in the bill.” The word “completing” in the act of 1909 means just what it meant in the acts of 1901 and 1903. The Legislature used the term “completing” in its ordinary sense. To “complete” means “to bring to a state in which there is no deficiency.” Webster, Dictionary. When applied to a building, it includes everything from foundation to roof necessary to the finished structure. The language included, and was doubtless intended to include, an amount sufficient to pay appellees for the work that had been done by them in the building of the New State Capitol (for which they had not already been paid), as well as an amount to pay for the work to be done by others. Both were necessary for “completing the New State Capitol.” The work that had been done was just as essential as the work that was to be done. The Legislature has made no distinction in the appropriation between liabilities incurred in the past and those to be incurred in the future in the work necessary for the completion of the New State Capitol, and certainly this court should make none. It seems to me that the only fair and reasonable construction of the language of the act makes it an appropriation to pay for all the work done and to be done “for the purpose of completing the New State Capitol Building.” Thus construed, the act would not be under the ban of section u, art. 16, of the Constitution inhibiting the diversion of funds. Otherwise it would be, for the Legislature could not, without a palpable diversion, exhaust the money in the treasury to the credit of the Capitol fund in appropriations to pay for certain parts of the work, and thereby exclude other parts equally essential to the “completed” building. For instance, the Legislature could not appropriate sail the money in the New State Capitol fund to pay for the roof, and thereby refuse to pay for the foundation. But it is said that the intention not to make an appropriation to pay appellees appears when section 6, above, is considered, as it must be with other sections of the same act, and of the act of April 20, 1909. Let us see. The act of April 20, 1909, provides: “Sec. 1. * * * That the contract entered into between the State Capitol Commission and Caldwell & Drake, in August, 1903, for the erection of the Capitol building, be and the same is hereby-annulled, cancelled and set aside.”
Succeeding sections provide for a “commission to settle the controversy between the State of Arkansas and Caldwell & Drake,” and its method of procedure, concluding by saying in section 8: “The faith of the State is hereby pledged to abide by and carry into effect the commission.” The act makes no appropriation to pay appellees anything, if the commission should find in their favor, but in pledging the faith of the State to abide by and carry into effect the work of .the commission it shows that the intention of the Legislature was to pay appellees whatever, if anything, might be due them. The act made it optional with Caldwell & Drake to submit their claims to the commission. It nowhere prescribes that the submission to the commission of their controversy with the State is .a condition precedent to payment of whatever might be due them.
Section 12 of the Act of May 12, 1909, provides: * * * “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.” Certainly, this does not show an intention on the part of the Legislature not to make an appropriation to pay Caldwell & Drake whatever might be due them. By this section 12 the Legislature simply meant that, if any amount should be found due Caldwell & Drake in the manner there indicated, such amount should be paid out of the $330,000 already appropriated by section 6 “for the purpose of completing the work covered by the Caldwell & Drake contract,” or the “New State Capitol Building.”
Section 12 was not an appropriation in itself because it does not designate the maximum amount in dollars and cents which might be drawn to pay’ Caldwell & Drake. Sec 29, art. 5, Const. But the section does show indisputably that the Legislature believed it had already, in the prior section 6, .made a sufficient appropriation to pay Caldwell & Drake whatever amount might be due them. Why else should the Legislature in the same section have directed a warrant to be drawn on the Treasurer for the amount due appellees ? Such an act would have been the sheerest folly if there had not been an appropriation. It can not be said that section 12 excludes Caldwell & Drake from the appropriation made in section 6, under .the doctrine of expressio unius est exclusio alterius, for, as I have shown, section 12 was not an appropriation at all, while section 6 was. The two sections harmonize, and they show clearly that the. Legislature, in making an appropriation “for completing the New State Capitol Building,” intended to include, and believed they had done so, the amount that might be due appellees for work done by them. Of course, it was not necessary to name the appellees any more than it was to name various other parties who had furnished or might furnish money, material and labor for the work of completing the New State Capitol.' If the act was broad enough to compass appellees’ claim without naming them or. designating the specific amount due them, it was sufficient to meet all the requirements of an appropriation act. To my mind a cogent argument in support of the view I have presented is that the Patterson and Oldham acts cancel the contract of Caldwell & Drake with the State and discharge them, substituting other contractors. It would have shown downright dishonesty in the members of the Legislature who passed these acts to have cancelled the contract of appellees with the State, without making some provision to pay them whatever amount might be due them for work they had done under and according to their contract. Futhermore, acts cancelling the contract and discharging the contractors, without in any manner recognizing the obligations of the State under the contract, would reveal the grossest ignorance of, or the most flagrant disregard for, constitutional provisions which the members of the Legislature had sworn to support and defend. Our State Constitution provides: “No law impairing the obligations of contracts shall ever be passed.” Sec. 17, art. 2. The Constitution of the United States provides: “No State shall pass any law impairing the obligations of contracts.” Sec. 10, art. 1. One of the obligations of the contract between the State.and the appellees was that the State should pay them for the work done under the contract. Under the State and Federal Constitutions above quoted, the Legislature could pass no law impairing the obligations of the State to pay appellees for the work that had been done by them under the contract for the building of the State Capitol.
This is the law in our own and all jurisdictions having similar constitutional provisions: McConnell v. Ark. Brick & Mfg. Co., 70 Ark. 568; St. Louis, I. M & S. Ry. Co. v. Alexander, 49 Ark. 193; Berry v. Mitchell, 42 Ark. 244; Hawkins v. Filkins, 24 Ark. 319; Hall v. Wisconsin, 103 U. S. 5; Wolf v. New Orleans, 103 U. S. 358; State of New Jersey v. Wilson, 7 Cranch, 164; Providence Bank v. Billings, 4 Pet. 514; Danolds v. State, 89 N. Y. 45; Baldwin v. Commonwealth, 74 Ky. (11 Bush) 417; Clements v. State, 76 North Carolina, 199; Trustees v. Bailey (Fla.), 81 Am. Dec. 199; McCauley v. Brooks, 16 Cal. 50.
It will not do to say that the Legislature, in the act cancelling the contract and creating the commission of arbitration, has made an appropriation to pay them whatever, if anything, that commission might have found to be due. For I have shown, if section 6 of the act of May 12, 1909, does not make an appropriation to pay them, then no appropriation whatever is made in the acts by which the contract has been cancelled.
Now, the State cannot be compelled to pay even her honest debts. For she can not be sued. But neither can she by legislation impair the obligations of any contract she has entered into. The one provision'of the Constitution is as sacred as the other. She may, by the law under which her contract was made, or the law in existence at that time, designate the agents or tribunals that shall determine the amount that may be due under the contract. But when the agency or tribunal named by the contract and the law, which is a part of the contract, determines the amount, then she cannot by act of her Legislature repudiate her obligation to pay by cancelling the contract under which the obligation accrued. The obligations of every contract are fixed by the contract itself and the law under which it was executed. If the State differs with parties to the contract with her as to the amount due, she may through her Legislature appoint a commission to arbitrate the amount if the other party to the contract consents thereto. But she can not impose the condition that unless the other party to the contract submits to the arbitration she will cancel the contract. She can not shuttlecock from board to board the disputed claims of parties who contract with her. If she disputes the amount due and desires by affirmative action to have the matter determined, she must go, like any other suitor, into the tribunals provided by the Constitution for settling disputes arising out of contractual obligations. If her legislative agents lay their hands upon a contract she has made to destroy it without in any manner recognizing the binding force of her obligations, their act in so doing is unconstitutional and void.
All this the Legislature knew. Unless impelled thereto by language the most imperative and unmistakable, we must so construe their acts as not to impeach their intelligence and integrity.
“Where one construction of a section of a statute would not only render the section a breach of faith on the part of the State (United States), but an invasion of the constitutional rights of the appellee, we are bound, if possible, so to construe the law as to lay it open to neither of these objections.” United States v. Central Pac. Rd. Co., 118 U. S. 235.
Hence I conclude that the act of May 12, 1909, makes an appropriation to pay appellees whatever amount might be due them. Whether or not the Oldham and Patterson acts are void notwithstanding the appropriation, I do not decide. For in my view of the case that question is not presented.
There being no controversy as to the justness and correctness of the claim of the appellees, the judgment of the lower court is right, and should be affirmed.