WOOD, J., (concurring.) I concur in the judgment, but dissent from the opinion. Why should the "McConnell case" be overruled? The doctrine of that case is sound "to the core." That case is not only unlike this, but it is not even of kin. In that case the contract was in existence, having yet seven years to run. In the present case the contract had expired. The allegations of the complaint do not disclose any new contract, but only set up the old, and certain promises by the board to carry out its provisions which were never fulfilled. And now, after the contract has expired, this effort is made to have the time for its performance extended by judicial construction, and to have the various promises that were made to fulfill the old contract carried out. The allegations do not show any contractual relations between the State and the Brick Company.
In my opinion, time was of the essence of the old contract, and any promises made on the part of the board to comply with its provisions which remained unfulfilled when that contract expired died with it, and the officers in withdrawing the convicts after the contract had expired were but discharging their duty according to law, and, of course, were representing the State. The chancery court, therefore, so far as the enforcement of the provisions of that contract is concerned, is wholly without jurisdiction to "hear, determine and decree in reference to such matter, and any decree it might make would be void, and could not legally operate on any one, nor could anybody be punished for disobeying it." The court was without jurisdiction of the State, a necessary party. One of the essentials of jurisdiction is that the court have before it the proper parties. Williford v. State, 43 Ark. 62. See also Rankin v. Schofield, 81 Ark. 463. Therefore I have concurred in the judgment because the allegations of the complaint do not state a cause of action to give the chancery court jurisdiction. But, on the contrary, the complaint, on its face, shows that the court had no jurisdiction of the State, the real party in interest.
But, if it be true that the present case cannot be distinguished from the McConnell case, then the decree of the chancellor was clearly right and should be affirmed. As the only living member of this court who concurred fully in the views so well expressed in the McConnell case, I challenge the statement of the opinion in the present case that the decision in the McConnell case is erroneous and contrary to the recognized rules established by the other courts of the country.
Let us see. In the McConnell case the Board of Penitentiary Commissioners, under a statute expressly authorizing it (secs. 3855-6 of Kirby's Digest), on July 31, 1899, entered into a contract with the Brick Company whereby the board was to furnish the company after January 1, 1900, and until January 1, 1909, 300 able-bodied convicts. The parties had entered upon the performance of the contract. The Brick Company, as alleged in its complaint and as confessed by the demurrer, "had expended for buildings, machinery, etc., for the purpose of equipping said plants so that it might comply with the terms of its contract, about $300,000." The board had furnished the convicts.
On the 13th day of August, 1901, after the contract had been in force about 20 months, the State officers, constituting the Board of Penitentiary Commissioners, passed a resolution annulling and setting aside the contract and ordering the superintendent of the Penitentiary "to withdraw from said Brick Company all convicts in their employ, and turn them back into the walls of the Penitentiary, subject to the further orders of the board." It was confessed by the demurrer that the Brick Company had fully carried out the contract on its part. The statute under which the board was authorized to make the contract did not give it power to rescind it, and there was no other statute giving it such power. So the action of the board in setting aside the contract and its order directing the superintendent "to withdraw all convicts in the employ of the Brick Company was purely arbitrary.
The Brick Company brought suit against the members of the board, and against the superintendent and the financial agent of the Penitentiary, to have the resolution attempting to set aside the contract declared null and void, and to restrain them from taking any action to prevent the due performance of the contract under the void order, and "particularly from taking from the Arkansas Brick & Manufacturing Company any of the men then engaged in labor therein, and to require the superintendent, McConnell, to proceed with the execution of the contracts and the furnishing of the labor as therein agreed upon."
The appellants (defendants in that case) contended that, in passing the resolution setting aside the contract and making the order directing the superintendent to withdraw the convicts, the board was acting for and representing the State, and that the State was therefore a necessary party. In response to that contention we said: "The power and authority to make a contract is one thing, but the power to abrogate it is quite another thing, and the latter power is, in this government, possessed by neither the State nor any of her citizens. The State can only speak through the legislative department, which is the mouthpiece of the sovereign; and the Legislature can lawfully pass no law impairing the obligation of contracts. It is and has been the law from time immemorial that a public agent acting without the scope of his authority without authority of law can not shield himself behind the sovereign, the State, but where injury is thereby done to private citizens, the officer or agent is a trespasser and personally liable in damages."
We further said, quoting from the Supreme Court of the United States: "Such a defendant, sued as a wrongdoer, who seeks to substitute the State in his place, or to justify by authority of the State, or to defend on the ground that the State has adopted his act and exonerated him, can not rest on the bare assertion of his defense, but is bound to establish it; and, as the State is a political corporate body, which can act only through agents and command only by laws, in order to complete his defense, he must produce a valid law of the State which constitutes his commission as its agent and warrant for his act." Poindexter v. Greenhow, 114 U. S. 270.
The judges who rendered the decision in the McConnell case were of the opinion that the Board of Penitentiary Commissioners exceeded their powers in attempting to set aside the contract, and that their acts in so doing were wrongful, and such as to render them liable as individuals for any damages directly resulting to others from such acts. Nicks v. Rector, 4 Ark. 284; Rice v. Harrell, 24 Ark. 402; O'Conner v. Auditor, 27 Ark. 242; Simpson v. Robinson, 37 Ark. 142; Parham v. McMurray, 32 Ark. 269; State v. Newton, 33 Ark. 276; DeYampert v. Johnson, 54 Ark. 165; Railway Co. v. Hackett, 58 Ark. 381. See also Hawkins v. United States, 96 U. S. 692; Whiteside v. United States, 93 U. S. 257.
The Legislature itself could not rescind or set aside the contract and deprive the Brick Company of the benefit thereof unless that power was expressly reserved in the act conferring upon the board the authority to make the contract. Woodruff v. Berry, 40 Ark. 256; Berry v. Mitchell, 42 Ark. 244.
The board certainly had no authority except what the Legislature had given them. The Legislature had not even attempted to vest them with power to destroy or to impair the obligations of the contract which they were authorized to make. The Supreme Court of the United States has quite recently decided that: "The attempt of a State officer to enforce an unconstitutional statute is a proceeding without authority of, and does not affect, the State in its sovereignty or governmental capacity, and is an illegal act, and the officer is stripped of his official character, and is subjected in his person to the consequences of his individual conduct." Ex parte Young, 209 U. S. 123.
In the McConnell case we were of the opinion that the facts brought the case strictly within the general doctrine announced by Chief Justice Marshall in Osborn v. United States Bank, 9 Wheat. 738, to the effect that a State officer will be restrained from executing an unconstitutional statute of the State when to execute it would violate rights and privileges of the complainant which had been guaranteed by the Constitution and would work irreparable damage and injury to him. In Pennoyer v. McConnaughy, 140 U. S. 1, 9, complainants sought to restrain the defendants, officials of the State, from violating, under an unconstitutional act, the complainants' contract with the State, and thereby working irreparable damage to the property rights of the complainants. The court held that such a proceeding was not a suit against the State, and said that the general doctrine of the "great and leading case of Osborn v. Bank of United States," as above stated, "has never been departed from."
If officers acting under an unconstitutional statute can be restrained from committing acts of wrong and injury to the vested rights of a complainant under a contract with the State, for a much stronger reason will officers be restrained from invading and destroying the rights of another under a contract with the State where such officers are acting without any color of authority whatever. This they were doing in the McConnell case. The withdrawal of the convicts which the Brick Company had in its possession, and which the board were attempting to do under their void resolution and order, would have meant an irreparable loss to the Brick Company, as the facts show, of many thousands of dollars. The Brick Company had a property right in the labor of the convicts.
It would make this opinion too long to review all the cases in this country supporting the doctrine announced in the McConnell case. It had long been an established doctrine in this State before that case was decided. In Crawford v. Carson, 35 Ark. 565, 578, we said: "The prohibition against suing the State or any officer representing her, in chancery, must be confined to such suits as seek to charge the State with some liability or duty, or to hold her or her officers as trustees of effects in their hands. Such and such only was the object of the statute. It would open the way to intolerable tyranny to exempt officers of the State from injunctions to restrain them from illegal though colorable acts of authority."
The suit in the McConnell case was not, as the court now holds, a suit against the State to enforce the specific performance of her contract. Not at all; but it was a suit against the officers to restrain them from illegal and unauthorized acts to the injury of the rights of the Brick Company under the contracts, acts which were not only wrongful, but without even any color of authority. "The injunction," says the court in the McConnell case, "is not against the State, but against the defendants to restrain them from going beyond their powers. No order of the court can be against the State, nor against the defendants to compel them to perform those duties as officers and agents of the State." Mr. Rose, in his Code of Federal Procedure, says: "The distinction running through all the cases is between preventive and affirmative relief; between those cases in which State action is sought to be restrained by proceedings against State officers and those in which some affirmative though legal and proper act of the State is sought to be compelled. The 11th Amendment does not shield State officers in the performance of unlawful acts, though prescribed by State law; but it protects the State against compulsion in the performance of its sovereign functions, against the enforcement of a liability ex contractu or ex delicto, against direct proceedings for the recovery of property held by the State through its officers." "The cases," says he, "in which by mandamus or other writ State officers have been compelled to perform certain acts at the suit of individuals injured are no exception to this rule, since the foundation of the relief is the wrong of fie officers in disobeying or maladministering the State law, and not the wrong committed by the State." 1 Rose, Code Fed. Procedure, pp. 50, 51 and numerous cases cited.
This is precisely the distinction we made in the McConnell case, and the failure of my brother judges to observe it in the present case has caused the court to fall into the error of overruling the McConnell" case and the case of Crawford v. Carson on the same point, although the latter is not expressly mentioned.
The Chief Justice in his opinion says: "The board does not perform merely ministerial acts; what it does involves judgment and discretion, and all that it does is for the State." I can never subcribe to that doctrine. The board was not representing the State at all when they passed the resolution annulling the contract and ordering the convicts taken away from the Brick Company.
"No principle is more firmly established than that when an officer exceeds his authority his acts are individual acts only, and do not bind the State. The State is liable only to the extent of the power actually given its officers, and not to the extent of their apparent authority." Woodward v. Campbell, 39 Ark. 583; Woodruff v. Berry, 40 Ark. 256; Pulaski County v. State, 42 Ark. 118; St. Louis Ref. & W. G. Co. v. Langley, 66 Ark. 52; Mechem, Publ. Off. §§ 511, 663; Throop, Pub. Officers, §§ 21, 551, 576.
The board had the discretion to make or not to make the contract. They had discretion in fixing the terms of the contract. But, after these terms were defined and agreed upon between the board and the Brick Company and the contract was entered into, the board no longer bad any discretion in the matter of furnishing the number of convicts called for by the contract. The duty of the board to furnish the number of convicts named in the contract, and of the superintendent, who was the subordinate of the board, was purely ministerial in character.
Suppose the Legislature had provided that when the board makes a contract to let convict labor they shall furnish the labor of not less than three hundred able-bodied convicts. Would any one contend that after the board had made a contract for the number of convicts as prescribed by the statute, the duty of the board to furnish the number of convicts named would be a matter of judgment and discretion? Well, the Legislature, instead of prescribing the number of convicts to be let by the contract, has left the matter of designating the number open to the discretion of the board. But, after the board has exercised that discretion and designated the number in the contract they make, then the Legislature did not leave it to their discretion and judgment to withhold all or any part of the number called for in the contract. After the board had designated three hundred as the number to be let by contract, under the statute authorizing them to make the contract, the legal effect was precisely the same as if the Legislature itself had designated that as the number that the board should furnish. And the simple act of furnishing the number of convicts called for by the contract was a ministerial duty imposed by law. So the litigation in the McConnell case was "with the officers, not the State." Rolston v. Missouri Fund Com'rs, 129 U. S. 390, 411.
Chief Justice Chase in Mississippi v. Johnson, 4 Wall. (U. S.) 475, has given a definition of a ministerial duty that has never since been improved. He says: "A ministerial duty, the performance of which may, in proper cases, be required by judicial process, is one in regard to which nothing is left to discretion. It is a simple definite duty, arising under conditions admitted or proved to exist and imposed by law." Our own court, through Mr. Justice Smith, defines a ministerial act as follows: "One which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety of the act done." Ex parte Batesville & Brinkley R. Co., 39 Ark. 82; Grider v. Tally, 77 Ala. 422; See Throop, Pub. Officers, § 535, and cases cited in note.
Since the contract fixed the precise terms as to the number of convicts to be furnished, and this duty under the statute was purely ministerial, it follows that from any and every viewpoint the doctrine of the McConnell case is right, and should not have been overruled.
The doctrine conforms to that class of cases which hold that "where a suit is brought against defendants, who, claiming to act as officers of the State, and under the color of an unconstitutional statute, commit acts of wrong and injury to the rights and property of the plaintiff acquired under a contract with the State, such suit, whether brought to recover money or property in the hands of such defendants unlawfully taken by them in behalf of the State, or for compensation in damages, or in a proper case where the remedy at law is adequate, for an injunction to prevent such wrong and the injury, or for a mandamus in a like case to enforce upon the defendant the performance of a plain legal duty purely ministerial, is not, within the meaning of the Eleventh Amendment, an action against the State." Mr. Justice Lamar in Pennoyer v. McConnaughy, 140 U. S. 1, and citing Osborn v. Bank, supra; Davis v. Gray, 16 Wall. 203; Tomlinson v. Branch, 15 Wall. 460; Litchfield v. Webster County, 101 U. S. 773; Allen v. Baltimore & Ohio Ry. Co., 114 U. S. 311; Board of Liquidation v. McComb, 92 U. S. 531, and Poindexter v. Greenhow, 114 U. S. supra, from which we have quoted. Other more recent cases are Scott v. Donald, 165 U. S. 112; Sinyth v. Ames, 169 U. S. 466; In re Tyler, 149 U. S. 164, 190; Tindal v. Wesley, 167 U. S. 204, 220; Prout v. Starr, 188 U. S. 537, and Ex parte Young, supra. The facts in the McConnell case do not fit the doctrine of In re Ayres, 123 U. S. and that line of cases, but they do fit the line of cases followed by us as above indicated.
I am unable to see how the "dignity and sovereignty of the State are involved" in a suit to restrain her officers from exceeding their powers, and arbitrarily setting aside a contract, and destroying valuable rights thereunder. Nor do I think that the dignity and sovereignty of the State are involved in a suit to compel an officer to perform merely ministerial duties under a contract made under the authority of the statute. Such is the McConnell case, as the judges who rendered the decision, viewed the facts and the law. The doctrine there announced erects the same high standard for honesty and good faith in the conduct of public officers as that required by the law of private individuals in their dealings with each other. If I am correct in my views, this doctrine should remain the law in Arkansas forever.