(concurring in part and dissenting in part).
I concur in that portion of the majority opinion which affirms the trial court’s ruling on the question of liquidated damages. I cannot agree, however, with the holding that SDCL 31-2-34 through 31-2-39 does not constitute an appropriation specific enough to satisfy the requirements of South Dakota Constitution, Article XI, § 9, nor with the holding that Article XI, § 8 does not permit payment of damages for breach of contract or for extra or unexpected costs incurred by a contractor in connection with the performance of a highway construction contract.
Sigwald v. State, 1926, 50 S.D. 37, 208 N.W.162, held that SDCL 21-32-10 through 21-32-14 (then sections 2109 — 2112 Revised Code 1919) did not authorize the bringing of a suit against the state for damages for breach of contract for the payment of which there was no available appropriation. The case further held that SDCL 31-5-8 (then § 54, Ch. 333, Laws of 1919) did not constitute an appropriation for the specific purpose of paying damages arising from the breach of contract within the meaning of Article XI, § 9 of the Constitution. Obviously there was no discussion of Article XI, § 8 of the Constitution in the Sigwald case since the amendment to that section restricting the proceeds of license and registration fees and fuel taxes for the maintenance, construction and supervision of highways and bridges was not approved until 1940. Likewise, the opinions in Griffis v. State, 1942, 68 S.D. 360, 2 N.W.2d 666, and Griffis v. State, 1943, 69 S.D. 439, 11 N.W.2d 138, merely reaffirmed the holding in Sigwald that funds appropriated for highway construe*42tion and maintenance were not available for payment of damages for breach of contract. Nothing was said in either of these two cases about Article XI, § 8 of the Constitution, nor was there any need to discuss this section inasmuch as there was no appropriation statute then in existence specifically providing for the payment of damages arising out of breach of highway construction contracts as is now found in SDCL 31-2-38 and 31-2-39.
To hold that SDCL 31-2-34 through 31-2-39 is not an appropriation statute but is comparable to the procedural remedy outlined in SDCL 21-32-10 through 21-32-14 is to disregard important differences between the two statutes, differences that assume a special importance in view of the judicial gloss put on the latter statute in the Sigwald and Griffis cases. If the legislature had merely intended to broaden the procedural remedy by permitting actions against the state in circuit court as well as in this court, it would have been a simple matter to amend SDCL 21-32-10 accordingly. That statute permits any person aggrieved by the refusal of the State Auditor to allow any just claim against the state to commence an action against the state in the Supreme Court. SDCL 31-2-34, on the other hand, permits an action against the state respecting any “claim, right, or controversy arising out of the work performed, or by virtue of the provisions of any construction contract entered into by the South Dakota state highway commission * * *” with the venue to be in the county where all or part of the construction work was performed. The legislature must have intended by this statute to permit actions against the state to recover damages for breach of highway construction contracts. If, as the majority opinion holds, the procedure established by SDCL 31-2-34 through 31-2-39 is limited to suits against the state to recover claims for damages against funds already appropriated for that purpose, then it would hardly have been necessary for the legislature to have enacted SDCL 31-2-38 which specifically provides that a successful litigant be paid the amount of damages awarded and costs assessed against the state “* * * out of the state highway fund from all the moneys levied and collected by the state by general state taxation for state highway purposes, or appropriated for state highway purposes.” In other words, it seems clear that the legislature intended to provide a specific, continuing appropria*43tion from a limited fund for the payment of damages awarded against the state on claims arising out of construction contracts with the state highway commission. See State ex rel. Longstaff v. Anderson, 1914, 33 S.D. 574, 146 N.W. 703; Hughes v. Reeves, 1922, 45 S.D. 538, 189 N.W. 307; and In re Opinion of the Judges, 1925, 48 S.D. 253, 203 N.W. 462.
I am authorized to say that Judge DOYLE joins in this concurrence and dissent.