(dissenting). It is conceded in the opinion of the majority that there is no limitation upon the power of the Legislature to authorize the creation of interest-bearing indebtedness of the State, except not to issue interest-bearing warrants or scrip. In this I think they are correct. But it is contended that the Legislature did not authorize the penitentiary board to contract for the payment of interest on the price of the State farm which the board was impowered to purchase. I dissent from that conclusion. That portion of the statute which impowered the board to purchase the farm reads as follows: “Said board is hereby impowered to purchase or lease and equip a farm or farms upon which to work State -convicts, and to pay for the same out of the labor or products of the labor of any of the convicts. Said board is hereby impowered to perform any and all acts necessary in the purchase or lease and equipping of said farm or farms: provided, the board only apply such proceeds for the payment of said farms as are not actually needed for the support or maintenance of the State convict farm.”
It is seen from the wording of the statute that the board was authorized to purchase a farm, pay for same out of the proceeds of convict labor, and “to perform any and all acts necessary in the purchase,” etc., the only limitation placed on the power being that “the board only apply such proceeds for the payment of said farms as are not actually needed for the support or maintenance of the State convict farm. The statute clearly contemplated that the purchase should be on a credit, for no means were provided for a cash purchase. Is it conceivable that the lawmakers intended to so limit the power of the board as, to necessitate a delay in the purchase of the farm until sufficient funds for that purpose could be accumulated from year to year out of the net profits of convict labor, or that they meant to require the board to find a landowner who would be willing to sell his farm to the State for a cash price and to await, without interest, the slow process of payment out of the net profits of the convict labor? Surely not, for to place that construction on the statute is to attribute to the lawmakers an intention to require the board to do an improvident thing, on the one hand, or to attempt an impossible task on the other. The presumption should be in-, dulged that the framers of the statute meant, no words appearing which manifested a contrary intention, to meet the situation and deal with it in a practical, business-like manner, and to authorize the purchase of a farm in the only way, which was practicable, not to say possible, under the existing circumstances. The power to contract for the payment of interest on what was necessarily intended to be a purchase on a credit must be implied, for the State authorized the board to “perform any and all acts necessary in the purchase.” Let us concede the full propriety and force of the rule that the vesting of power in a public board or other functionary by implication is not favored, unless the implication necessarily results from the nature of the enactment. Yet we think that the wording of this statute meets the requirements of that rule. • We perceive no reason why the ordinary rules of construction in interpreting statutes should not be applied to this 'as to any other statute. “Statutes are seldom framed,” says Mr. Black in his work on Interpretation of Laws (§ 33), “with such minute particularity as to give directions for every detail which may be involved in practical application. Herein they are aided by the doctrine of inplications. This doctrine doefe not impower the courts to go to the length of supplying things which were intentionally omitted from the act', but it authorizes them to draw inferences from the general meaning and purpose of the Legislature and from the necessity of making the act operative and effectual as to those minor or more specific things which are included in the more broad or general terms of the law or as to those consequences of the enactment which the Legislature must be understood to have foreseen and intended. This is not the making of law by the judges. It is deducing the will of the Legislature by the logical process of inference. It is a rule of. construction that that which is implied in a statute is as much a part of it as what is expressed.”
Pursuing the subject further, the same learned author says: “Whenever powers, privileges or property are granted by a statute, everything indispensable to their enjoyment or exercise is impliedly granted also, as it would be in a grant between private persons. * * * Whenever a statute grants power to do an act, with an unrestricted discretion as to the manner of executing the power, all reasonable and necessary incidents in the manner of executing the power are also incidents in the manner of executing the power are also granted.”
In another text book we find the statement in substance of the same rule, as follows: “Statutes are not, and can not be, framed to express in words their entire meaning. They are framed like other compositions to be interpreted by the common learning of those to whom they are addressed; especially by the common law, in which it becomes at once enveloped, and which interprets its implications and defines its incidental consequences. That which is implied in a statute is as much a part of it as what is expressed. * * * Wherever a provision of a statute is general, everything which is necessary to make such provision effectual is supplied by the common law and by implication.” 2 Lewis, Sutherland, Statutory Construction, § § 500, 504.
Another statement of the same rule, which is peculiarly applicable to this case, is as follows: “The rule respecting such powers is that, in addition to the powers expressly given by the statute to the officer or board of officers, he or it has by implication such additional powers as are necessary for the due and efficient exercise of the powers expressly granted or as may be fairly implied from the statute granting the express powers.” Throop on Public Officers, § 542.
This principle is clearly announced by this court in the recent case of A. H. Andrews Co. v. Delight Special School District, 95 Ark. 26, in which case it was held that, while there was no authority in the statute for school directors to contract for the payment of interest on purchases, yet, if the interest was computed as a part of the purchase price and the district accepted the goods, it would be legally bound to pay-the whole price, including the interest. We think that principle is applicable here, and is controlling in the present case. The same principle is recognized as to the power of a levee board to contract for the payment of interest. Altheimer v. Board of Directors of Plum Bayou Levee District, 79 Ark. 229. In that case we held, after announcing the principle as to implied power's, that from the authority conferred by the statute 'to build a levee there was necessarily implied power to build on credit and to agree to pay the legal rate of interest for deferred payments.
It seems to me, therefore, that the majority of the judges have, in reaching their conclusion, departed from well settled principles of law which are not only established by the decided weight of authority elsewhere, but have been clearly recognized in several decision of this court.
But, even if it be held that the board was not authorized to contract for the payment of interest, the result should be the same so far as this case is concerned. The contract for the sale and purchase of the farm is executory, and the State is bound either to ratify the action of the board and perform the contract or to repudiate it as a whole. It can not take the property under the contract of purchase without paying the full amount stipulated in the contract. In other words, it could not lawfully take the property without paying the interest which the board agreed to pay. This salutary rule applies to the State in its dealings with individuals as well as to individuals themselves.
“The State, in all its contracts and dealings with individuals, must be adjudged and abide by the rules which govern in determining the rights of private citizens contracting and dealing with each other. There is not one law for the sovereign and another for the subject; but when the sovereign engages in business and the conduct of business enterprises, and contracts with individuals, although an action may not lie against the sovereign for a breach of the contract, whenever the contract, in any form, comes before the courts, the rights and obligations of the contracting parties must be adjusted upon the same principles as if both contracting parties were private persons.” People v. Stephens, 71 N. Y. 527.
The constitutional provision quoted in the opinion of the majority has, we think, no application to the statute making the appropriation to pay the balance due under the contract. It applies only to appropriations for extra compensation or gratuities and to claims which have not been authorized or provided for by pre-existing law. It does not mean that the Legislature can not, by a majority vote of each house, pass a bill for the purchase of property for governmental purposes and at the same time appropriate the necessary amount of money to pay for same without a preexisting law authorizing it. The Legislature could, and did, pass a bill, by a majority vote, authorizing the construction of the new State Capitol and appropriating funds to pay for same. State v. Sloan, 66 Ark. 575. It could, and did, by a majority vote, pass a bill appropriating a sum of money for the maintenance of the State militia without any pre-existing law authorizing the expenditure. State v. Moore, 76 Ark. 197. The ratification by the Legislature of the executory contract for the purchase of the farm was the same as a new purchase, and this could be done by a majority vote.
There is nothing in the California case, cited in the majority opinion, which militates against this view. In that case it is merely held that a statute authorizing interest on judgments against the State was not retroactive in its effect, so as to authorize a judgment for interest on a claim which arose prior to the passage of the act.
This is not a suit against the State, but it is one against the Auditor to compel him to perform a ministerial act in making a simple calculation of the amount specified in the contract and drawing his warrant for it on the treasurer.
The law is well enough settled by this court to exclude further controversy as to when the Auditor may or may not be compelled by mandamus to issue his warrant for debts of the State. “Where the Auditor, in the discharge of his appropriate duties, has a discretion in allowing or rejecting a claim against the State, and exercises it, his decision can not be controlled or reviewed by mandamus. * * * But there is a marked distinction everywhere recognized between the exercise of discretion and a ministerial act, the performance of which is a plain and positive duty enjoined by law; and when essential to the enjoyment or completion of some public or private right, and no other adequate specific remedy is provided, the authorities concur in holding that a mandamus will lie, affording a prompt and efficient remedy, at the instance of any person interested, to compel its performance.” Danley v. Whiteley, 14 Ark. 687; Jobe v. Caldwell, 93 Ark. 503.
The Legislature, acting through appropriate committees, at the session of 1903, investigated the purchase of the farm, and approved it. At the session of 1909 it passed the act in question, appropriating sufficient funds to pay “for purchase of the convict farm, according to the contract price and purchase between E. Urquhart and the Penitentiary Commission” and directing the Auditor “to calculate the amount owing to the estate of E. Urquhart, according to the terms of the contract, * * * and to draw his warrant on the State Treasurer for such sum.” This took the matter out of the hands of the board so far as concerned the payment of the stipulated price, and peremptorily directed the Auditor to draw his warrant after calculating the amount. That officer was not authorized to make a settlement of the claim according to his notion of the justice of the case, nor was he permitted to follow the directions of the board, but he was directed to perform the purely ministerial act of calculating the amount shown from the face of the written contract and the payments already made and of drawing his warrant.
The question of shortage in the number of acres was not left to him nor to the board to decide. The Legislature left that out of consideration altogether in passing the statute directing the payment of the amount specified in the contract. If the Legislature failed to provide for adjusting that matter, it was of no concern to the Auditor, for he must obey the mandate of the lawmakers, the authority to which we must all yield obedience when acting within its constitutional limitations. We must, however, indulge the presumption that the Legislature fully investigated and considered that matter, and either left it for future adjustment or determined that a mistake had been made in describing the lands, and that the State’s vendor had delivered possession of all lands which were intended to be embraced in the contract.
My opinion is that the judgment of the circuit court should be affirmed.
Mr. Justice Wood concurs herein.