delivered the opinion of the Court:
It will be perceived that the ultimate question to be determined by this court is, whether the declaration in the case discloses a cause of action against the defendants, or, in other words, whether the declaration is good on general demurrer. The solution of this question, however, depends upon the answer that must be given to others which arise upon the record, and which are of more than ordinary importance.
Preliminary to the discussion of these questions it may be observed, in a general way, that the measure of the defendants’ liability is to be found in the written contract into which they have entered.' If its terms are plain and unambiguous, and it is otherwise unexceptionable, this court must enforce it as the parties have made it, notwithstanding apparent hardships may result from such enforcement. It must not, under the guise of construction, be expanded on the one hand, to cover a case which the parties to it have not provided for, nor on the other hand, be so contracted as to relieve the parties from liabilities or duties they have expressly, or by necessary implication, undertaken to perform.
But if the terms of the contract are in any respect ambiguous or uncertain, it must be construed and enforced according to what may, in the light of all its provisions and the circumstances surrounding the transaction, be presumed to have been the intention of the parties to it.
It is further to be observed that in most contracts, whether verbal or written, by deed or parol, there are certain obligations and duties which arise by implication of law from the express stipulations of the parties, and their respective relations to each other with respect to the subject matter of the contract.
Keeping in view these well recognized principles, we pass now to the ‘consideration of the contract upon which the mutual rights of the parties thereto must depend.
The contract of the" defendants is in the alternative. By it they in substance agreed to either furnish the State, free of cost, the additional capítol grounds in question, or in case they were unable to do so, or refused to do so, to pay, in the event of a condemnation of the same by the State, the amount assessed for the same under the condemnation proceedings. The State was absolutely bound to do nothing. It might or might not, on the' defendants’ failure to furnish the grounds in question, proceed to condemn the same, as in its wisdom seemed best. Such being - the respective rights and duties of the parties, it would seem but just and reasonable to hold.that, before any right of action could accrue upon the bond, the State was bound to institute, and prosecute to a successful termination, such condemnation proceedings as would, upon the payment of the condemnation money, vest the title to these grounds in the State, and for this purpose the State impliedly, undertook,to provide all such agencies, including appropriate legislation, as would be necessary to effectually accomplish the.end proposed. The acquiring of the title to the grounds by the State, for State House purposes, was the sole inducement and consideration for the execution of the bond, and any construction of its provisions which would require the defendants to pay for the grounds before the State acquired title thereto would be manifestly unjust to them, and unwarranted by sound legal principles. The utmost that can reasonably be claimed is, that the vest-ing of the title in the State, and the payment of the condemnation money by the defendants, were intended by the parties to be concurrent acts ; or, in other words, the State, in accepting this bond from the defendants, impliedly stipulated that, in the event of condemnation proceedings, it would so shape its legislation, and the proceedings under it, that the payment of the condemnation money and the acquiring of the title by the State would be concurrent acts. And if this be the true construction of the contract, it is hardly necessary to observe that it was altogether incompetent for the legislature to place a different construction upon it, so as to materially affect the rights of the defendants under it.
And this brings us to a consideration of the act of May 21, 1877, under which the alleged condemnation proceedings were had. The preamble recites the-provisions of the act of June 14, 1871, under which the bond sued on was executed. The first section makes it the duty of the Secretary of State to ascertain and indicate the additional grounds required, and give notice thereof to the obligors, and to demand of them their procurement for the State.
The second section provides for the appointment of commissioners and the condemnation of the grounds.
The third section requires the commissioners to make and file in the office of the Secretary of State a report in writing of their proceedings, and upon the filing thereof it is declared that the title to the lands shall vest in the State.
The fourth section is in these words: “ Upon filing of said report in the office of said Secretary of State, he shall make out and file a certified copy thereof with the Auditor of Public Accounts of this State, who shall thereupon draw his warrant or warrants upon the Treasurer of this State in favor of the owner or owners of the lands so condemned; and said Treasurer shall, upon presentation by such owner or owners respectively of said warrants, pay to said owner or owners the amount or amounts so reported to be due him or them "respectively, out of any moneys in said treasury appropriated for State House purposes .”
The fifth and last section makes it the duty of the Attorney General to institute suit upon the bond if the obligors do not, within thirty days after the filing of the commissioners’ report, pay to the Treasurer of the State “the total sum so reported by said commissioners as compensation for the lands,” etc.
The foregoing comprises the entire legislation under which the condemnation proceedings were conducted, and it will be perceived that the act, as framed, does not provide for or even contemplate a payment of “ the amount assessed ” under the condemnation proceedings, by the obligors. But on the contrary, the 4th section of the act expressly provides that the payment of the condemnation money shall be made by .a warrant or warrants drawn by the Auditor on the Treasurer, to be paid out of any moneys in the treasury appropriated for State House purposes. This provision of the act is to be regarded as mandatory, and it by necessary implication excludes any other mode of payment. The condemnation proceedings, including the mode of payment, could only be conducted and accomplished in the manner provided by law, and, as just stated, the owners of these lands were, by the express provisions of the act, to be paid out of moneys in the treasury appropriated for State House purposes.
The State is just as powerless as any other municipal corporation to act in .a matter of this kind, unless the requisite authority has been conferred upon it by the legislature. When such authority has been given, and the manner of exercising it has been prescribed by the legislature, it is not competent for the State to exercise it in any other manner; and any attempt to do so would not be binding on any one. The act directed that the Auditor, upon the filing of the commissioners7 report in his office, should at once draw his warrant or warrants upon the Treasurer in favor of the owners of these lands. This has never been done; at least the declaration contains no averment to that effect, and it must be presumed that it has not been done, otherwise it would have been so averred. The requirements of the act, then, have not been complied with in this very vital particular, and it may be regarded as a very serious question whether the owners of these lands, after this great lapse of time, could be compelled, under those proceedings, to accept payment, even if it could now be otherwise legally made. The land owners could only be compelled to accept payment in the manner provided by law. That was a cash payment by a warrant or warrants on the Treasurer. No such payment having ever been made or attempted to be made, we are unable to see upon what principle these proceedings can now be regarded as binding upon the owners of these lands. And if such is the case, it is equally difficult to understand upon what theory an action can be maintained upon the bond. It can not justly be claimed that the failure to pay the land owners was attributable to the default of the obligors, for the act of the legislature under which the condemnation proceedings were conducted did not authorize them to make such payment. On the contrary they were directed to pay to the State Treasurer within thirty days —whereas the law required the land owners to be paid at once upon the filing of the commissioners’ report. If at the expiration of the thirty days after the filing of such report the obligors found there had been no compliance with the act in this respect, were they not justified in concluding that the State had abandoned—as it undoubtedly had a right to—the matter altogether?
Moreover, if, as we have seen, the owners of these lands could only be paid out of moneys in the- treasury appropriated for State House purposes, it follows that the moneys required to be paid to the Treasurer by the obligors, as contemplated by the fifth section of the act, can only be regarded as having been intended by the "legislature as an indemnity or reimbursement for the moneys to be paid by the State on- account of the condemnation "of the lands.
And this view of the matter is greatly strengthened by the fact that the Auditor is required, upon the filing of the commissioners’ report, to draw his warrant or warrants upon the Treasurer for the condemnation money. The act requires him, as we have just seen, to draw at the time of filing—that is, at once. Whereas the obligors have thirty days after the filing of the report within which to make payment to the Treasurer.
Ifj then, the money to be paid to the Treasurer by the obligors is only to be regarded as a mere indemnity for moneys advanced by the State under the condemnation proceedings, it is very clear that no action can be maintained on the bond without averring and proving an actual payment of the condemnation money by the State.
In the view here presented we must not be understood as intimating that the State may under any circumstances, or for" any purpose, become the mere surety of, or that it may lend its credit to, any person or association of persons; for this is expressly inhibited by the constitution.
We have simply been considering the rights of the parties to this record, so far as they depend upon what seem to be the plain provisions of the statute in question, without at all considering the validity of any of its provisions.
In the view we have taken of this case it is deemed unnecessary to enter upon an inquiry of that kind.
It is manifest, if we are correct in the conclusions already reached, that the condemnation proceedings in question were commenced at a time and under such circumstances as must necessarily have rendered them ineffectual and fruitless without additional legislation.
As under the present constitution all appropriations by the General Assembly can only be made by public law, this court will take judicial notice of the fact that, at the time of the commencement of the condemnation proceedings, the General Assembly had already, by previous appropriations on account of the new capitol grounds and construction and furnishing of the State House, exhausted the constitutional limitation of $3,500,000, and of the further fact that there was no money then in the treasury that could be legally applied in payment of these lands, and any such payment would have been a palpable violation of the constitution. And not only so, but no future appropriation could be made for that purpose without an- affirmative vote of the people. To hold, therefore, the defendants liable pn the bond before requiring the State to obtain a title to the lands sought to be condemned, upon the hypothesis that at some future time the people of the State would vote the necessary appropriation, would be, judging from the temper of the people as shown by their vote on the question, compelling them to pay money out of their pockets without any consideration except a mere contingency that may never happen. To avoid this result, it is insisted by the learned counsel for appellants that the constitutional limitation above referred to has no application to the lands in question; that the expression “ new capitol grounds,” as used- in the constitution, must be limited to such grounds as the State had, at the time of the adoption of the constitution, already acquired for the purposes of the new capítol. 'We can not concur in this view. It is too narrow and contracted to accomplish the object that the framers of the constitution had in view when adopting that provision. The expression was doubtless intended to cover and include all grounds belonging to the capítol, without regard to when they were purchased.
But even conceding the legislature had power to appropriate .the proceeds of the bond to the payment of these lands, it is clear that nothing of the kind was attempted by the act. By implication the act simply required the obligors to pay the amount of condemnation money to the Treasurer within thirty days from the filing of the commissioners’ report, but the act is entirely silent as to what disposition was to be made of it when paid. It was clearly not intended that the treasurer should pay it to the owners of the condemned lands, for, as already shown, the act expressly provides for their payment in another way, namely : out of moneys in the treasury appropriated for State House purposes. It must, therefore, have been intended that the money, when paid to the Treasurer, should go into the general State fund, and, having once become a part of the general State fund, of course it could not .be paid out except for some purpose authorized by law. And, inasmuch as the State had already by former appropriations exhausted the constitutional limitation for State House purposes, it could not be appropriated to the payment of these lands without an affirmative vote of the people, which, as already stated, might never happen.
As already observed, the measure of the defendants’ liability is to be found in the bond itself, and it is not competent for the legislature to modify it in the slightest degree by subsequent legislation. The undertaking of the obligors was to pay the amount assessed under the condemnation proceedings. The statute is silent as to whom the payment was to be made. That is left to judicial construction. An omission of this kind ordinarily presents no difficulty. If one agrees with another for a valuable consideration to pay a debt due from the latter to a third party, although the contract is entirely silent as to whom the payment shall be made, there could be no question but that the payment should be made to such third party. Indeed, it may be stated generally that an undertaking to pay a claim of any kind without mentioning the party to whom the payment is to be made, is in law' an undertaking to pay the owner of such claim. The contract of the defendants here was to pay the amount of the assessment under the condemnation proceedings, or, in short, to pay the condemnation money. Now, while the contract is silent as to whom the payment was to be made, it is quite evident that the owners of the condemned lauds would be entitled to the condemnation money when paid, and, according to the general rule of law just stated, the defendants impliedly undertook and agreed to pay the owners of the condemned lands according to their respective interests, and such we hold to be the true construction of their contract.
This, then, being the contract of the defendants, the State, in accepting it, thereby impliedly agreed, in the event of instituting condemnation proceedings, to provide such appropriate and necessary legislation for that purpose as would authorize and require the defendants, as a part of the condemnation proceedings, to make such payment, and generally to so shape its legislation and conduct the proceedings that the State, upon such payment, would acquire a good title to the lands in question. The legislation provided for this purpose was not, as we have already shown, adapted to this end. Under it the agreement between the State and the defendants could not be lawfully executed so as to effectuate the objects of the contract. This being so, the defendants were not, by reason of anything done under the act in question, placed in default, and until that is done by appropriate legislation and proper proceedings thereunder, no action can be maintained upon the bond.
This view of the case renders it unnecessary to consider a number of questions that have been discussed by counsel on either side with great learning and ability.
The judgment of the court below is affirmed.
Judgment affirmed.
Scott and Sheldoh, JJ.: We do not concur in this opinion.
Dickey, Ch. J.: One reason not stated in the foregoing opinion, which leads me to concur in this decision and adopt the conclusion reached in this case, is that there has not been a condemnation of the premises of such character as to make it the duty of the obligors in this bond to pay the amount. The constitution requires that in all condemnation proceedings, except in cases where the compensation is to be paid by the State, the assessment of the amount shall be by jury. In this case the provision for paying out of the funds of the State was void; for, under the facts and the constitution, the legislature had no authority to so enact. The provision being void, it follows that the compensation was to be paid (if at all) by these obligors. They are not the State. The State had no interest in the question of the amount of compensation. The owners of the land and these obligors alone were interested in that question. They had in such case a right to have the amount determined by jury. That right is given to the party making compensation, as well as to the land owner. Until the amount was determined in a manner effective under our constitution, these obligors were not bound by this bond to pay.
Walker, J.: I concur in the conclusion in this case. I hold the damages should have been assessed by a jury, as it only involves private interests. I also hold the obligors were not liable until the State had assented to and bound itself to receive the property, and pay the money, when collected, to the owners.