concurring. I prefer to place my concurrence in the
decree of the court in this case, under the facts, on the ground that the relators have not shown a sufficient cause for the issuance of the writ of mandamus.
Act No. 59, approved March 5, 1870, and consisting of six sections, appropriated $40,000, “ or so much thereof as may be necessary,” out of the internal improvement fund, to remove obstructions in Bayou *368Bartholomew ; ordered an examination of the stream, and plans and specifications, with estimates of the cost of the work, to be made by the engineer; directed the Board of Public Works to advertise for proposals and award the contracts to the lowest bidder, the work to be completed by the first January, 1871, the bids not to exceed the estimates, bonds to be required, and the amounts to -be paid by the treasurer out of the internal improvement fund, upon the warrant of the President of the Board of Public Works on the Auditor.
By section 9 of act No. 63, of the extra session of 1870, approved the fourth of April, the internalimprovement fund was abolished, and the balance therein transferred to the “ interest tax fund.”
After this, to wit, on the tenth December, 1870, a contract purports to have been made by the Board of Public Works with the relators, under and by virtue of said act No. 59, for the work at certain prices, by the section, amounting to $118,500 for the four sections, the estimates thereof appearing to be $122,695.
On the twelfth January, 1871, the President of the Board of Public Works drew his thirteen warrants on the Auditor, in favor of the relators, for sums amounting to $63,500, as the cost of the first and second sections. On these the sum of $857 was paid, - being all that was to the credit of the internal improvement fund, leaving the amount claimed in this proceeding.
In Marchj 1871, act No. 45 became a law, amending and re-enacting sections one, three and five, of act No. 59, of 1870, and by Which the sum of $40,000 and such additional amount, n'otto exceed the estimate of the engineer of the Board of Public Works, necessary to complete the removal of the obstructions in Bayou Bartholomew, were appropriated ; proposals to perform said work were to be advertised after receipt of the estimates provided for in section 2, of act No. 59, of-1870, and contracts awarded to the lowest bidder who would offer the 'best security to complete the work in a reasonable time, and upon the completion of each section and its acceptance by the engineer, payment was to be made on the warrant of the President of the Board of Public Works upon the Auditor in favor of the-'contractor, the act closing with this proviso : “that if any warrants have been drawn upon the internal improvement fund by the President of the Board of Public Works anterior to the date of the passage of this act as part payment of the work, the State Auditor of Public Accounts is hereby authorized and it shall be his duty to take up such warrants of the President of the Board of Public Works, and issue therefor his warrants upon the general fund of the State.”
It is upon this proviso that the relators rely as imposing upon the Auditor the duty of taking up the warrants issued on twelfth January preceding its passage.
*369It is contended, and I think very properly, on behalf of the Auditor, that under the terms of the act No. 59, of 1870, no contract could be entered in to, binding upon the State, for a sum exceeding $40,000; and if it could, the proviso relied on is without effeet, because no specific amount is appropriated, as required by article 104 of the Constitution.
If it be true that such an amount of work as represented in the •claim, embracing forty-nine miles of the river, and worth $63,500, was .really performed by the relators within thirty-two days, they have not presented a case for a mandamus to compel the Auditor to issue any warrants in their behalf on the Treasurer. They have not shown a law which makes it the duty of the Auditor to issue a wari ant for the specific warrauts held or the sum claimed by them. The amendatory act of 1871 does not refer to their contract, but clearly contemplates the'contracting and paying for the whole work, as first provided for in the first act. The proviso is drawn in unusual language for a law— •“ if any warrants have been drawn, etc,’’ implying a doubt and leaving the whole matter to be determined by the Auditor, as to their -existence, dates, amounts and the object of their issuance. Such language does not impose a duty which the Auditor is legally competent to perform.