Hopper v. Fagan

• Court: Arkansas Supreme Court
• Writing for the Court: HART, J.
• Citation: Hopper v. Fagan, 236 S.W. 820, 151 Ark. 428 (Ark. 1922)
• Decision Date: 23 January 1922
• Docket Number: 102
• Parties: HOPPER v. FAGAN

236 S.W. 820

151 Ark. 428

HOPPER v. FAGAN

No. 102

Supreme Court of Arkansas

January 23, 1922

Appeal from Pulaski Chancery Court; J. E. Martineau, Chancellor affirmed.

STATEMENT OF FACTS.

E. M Fagan, a citizen and taxpayer of the State, brought suit in equity against Ira C. Hopper, as Secretary of State, and the Union Acoustical Company, of St. Louis, Mo., to enjoin them from carrying out a contract for the improvement of the acoustics in the hall of the House of Representatives.

The defendants filed an answer to the complaint, and the plaintiffs then demurred to the answer.

Subsequently Allen Kennedy and Jas. R. Wood, also citizens and taxpayers filed a complaint against the same defendants and were made parties to the action. The defendants interposed a demurrer to their complaint.

Inasmuch as the questions presented are questions of law, we will state the material facts of the complaints and answer but once and consider them together.

The court sustained a demurrer to the answer of the defendants and overruled the demurrer of the defendants to the complaint of the plaintiffs, Kennedy and Wood. The defendants refused to plead further to the complaint of the plaintiff, E. M. Fagan, and stood on their demurrer to the complaint of Allen Kennedy and J. R. Wood. Whereupon it was decreed that the Secretary of State be enjoined from carrying out the terms of his purported contract with the Union Acoustical Company.

The material facts alleged in the complaint are as follows:

By an act approved March 26, 1921, the General Assembly of the State of Arkansas passed an act to improve the acoustics in the Senate Chamber and Hall of the House of Representatives and to appropriate the necessary money therefor.

On April 25, 1921, Ira C. Hopper, as Secretary of State, entered into a contract with the Union Acoustical Company for the improvement of the Hall of the House of Representatives for the sum of $ 12,000. The contract provided that the treatment of the balcony, ceiling, eleven wall panels, two crescent-shaped panels on main ceiling, bottom row of art glass panels in dome and center hanger in dome, all with "Multi-Fiber" (flax fiber) acoustical felts in two and three thicknesses, as per specifications attached. The method of application to be the highest type of workmanship. All fiber-felts are to be permanently fastened to securely fastened foundations; balcony ceiling to be covered with union acoustical * * * * canvas; crescent-shaped panels in main ceiling to be covered with Fontainebleau rep tapestry fabric, main hanger in dome, and panels in dome and wall panels to be covered and draped with high grade velvet of color to be determined by Secretary of State, according to specifications attached. The decorations are to be in harmony and keeping with the decorative scheme of the interior at present, and a finished decoration in itself."

The Union Acoustical Company guaranteed in the contract that the reverberations and echoes of the hall of the House of Representatives would be removed when their contract was executed, and that the flax-fiber acoustical felts to be used in the installment would retain their original form and last indefinitely. Other facts will be stated under appropriate headings in the opinion.

The defendants have duly prosecuted an appeal to this court from the decree of the chancery court.

Decree modified, and affirmed.

J. S. Utley, Attorney General, and Cohn, Clayton & Cohn, for appellant.

The act is not in conflict with section 31 of article 5 of the Constitution. It provided for a necessary expense of government, as much so as the building of a new State House. 66 Ark. 575; 76 Ark. 197; 117 Ark. 352. The act received a two-thirds vote of the members present and voting, there being a quorum present, which is all that is required, and not two-thirds of the elected membership. 248 U.S. 276; 253 U.S. 350; 32 Miss. 650; 4 Mo. 303; 2 Mich. 207; 4 S. C. (4 Rich.) 430; 12 S.C. 200; 67 S.C. 324; 72 So. 297.

The act is not in conflict with sec. 15 of art. 19 of the Constitution, and is valid. In testing the validity of an act the courts will resolve all doubts in favor of the act, and will, if possible, give it a construction in harmony with the Constitution. 95 Ark. 412; 77 Ark. 250; 75 Ark. 120; 69 Ark. 376; 56 Ark. 485; 58 Ark. 407; 76 Ark. 197. The present act must be read and construed together with act No. 171 of 1921, providing for approval of contracts by the Secretary of State. Appellant admits that the contract was not approved by the proper officers, but contends that the act was valid, and that the lower court erred in enjoining any further letting of bids under the act.

The contract in question was not required to be let in accordance with art. 19, sec. 15, Const. It is not a "repairing" of the halls. "Repairing" means restoration after decay, injury, etc. 141 Ark. 122; 237 F. 31; 158 Iowa 392. The contract contemplated the construction of an addition to the halls.

The act vested discretion in the Secretary of State in letting the contracts, and the fact that the major portion of the appropriation is to be expended in doing only a part of the work is no ground to hold the contract invalid, as the Legislature in its discretion could make an additional appropriation to complete the work. See 4 Idaho 139, 36 P. 702.

Coleman, Robinson & House; W. G. Riddick and Owens & Ehrman, for appellee.

The act is void because in conflict with sec. 31, art. 5, and sec. 15, art. 19 of the Constitution. 220 S.W. 586. 586.

The thing contemplated in the contract is "repairs or furnishing" and not "additional construction." See 103 P. 917; 68 F. 171; 24 Kan. 271.

The contract was not let in the manner required by the Constitution, and there was no letting of the contract to the lowest bidder. 54 Ark. 645.

Where the wording of a statute is ambiguous, the courts resort to rules of construction in arriving at the legislative meaning; but where, as here, there can be but one meaning, no construction is necessary, and the act cannot be bolstered up by construing it in connection with act 171 of 1921. 175 U.S. 414; 232 U.S. 404.

The contract is void because practically all the appropriation is to be expended upon one hall, whereas the improvement was intended to cover both halls.

HART, J. MCCULLOCH, C. J. concurring. Mr. Justice SMITH shares these views.

OPINION

HART, J. (after stating the facts).

It appears from the allegations of the complaint that the act under consideration did not receive a majority of two-thirds of both houses of the General Assembly. Therefore, it is claimed that the act is in violation of art. 5, § 31, of the Constitution of 1874, which provides, in substance, that no appropriation of money shall be made except to raise means for defraying the necessary expenses of government except by a majority of two- thirds of both. houses of the General Assembly.

In State v. Sloan, 66 Ark. 575, 53 S.W. 47, the court held that an appropriation for building a new capitol was a necessary expense of government, and that a majority of two-thirds of both houses of the General Assembly was not necessary to constitute a valid appropriation therefor. That case rules here. If the building of a new capitol is a necessary expense of government, it is equally apparent that the repairing and furnishing of the Senate Chamber and Hall of the House of Representatives would also be a necessary expense of government.

It is next contended by counsel for the plaintiffs that the act under consideration is unconstitutional because it does not provide that the work shall be performed under a contract to be given to the lowest responsible bidder and that the contract shall be subject to the approval of the Governor, Auditor, and Treasurer, as required by art. 19 § 15, of the Constitution of 1874.

We do not agree with counsel in this contention. The act does authorize the Secretary of State to enter into a contract for the improvement of the acoustics in the Senate Chamber and the hall of the House of Representatives. At the same session of the Legislature, by an act approved February 23, 1921, the Secretary of State was designated to superintend the letting of all public contracts for the purposes set forth in art. 19, § 15 of the Constitution, and he was directed to proceed in accordance with the provisions of the statute already in existence relating to the letting of such contracts. Public Acts of Arkansas, 1921, p. 239.

The act also provides that before such contracts shall become binding they shall receive the approval of the Governor, Auditor, and State Treasurer. The Legislature must be presumed to have had this statute in mind and to have enacted the statute under consideration with reference thereto. The statutes construed together are in harmony with each other and provide a method of letting the contract in question according to the provisions of the section of the Constitution just referred to. Thompson v. Rd. Imp. Dist., 139 Ark. 136, 213 S.W. 386; Pope v. Nashville, 131 Ark. 429, 199 S.W. 101; Smith v. Farmers' Bank, 125 Ark. 459, 188 S.W. 1167; Benton v. Willis, 76 Ark. 443, 88 S.W. 1000; Beavers v. State, 60 Ark. 124, 29 S.W. 144; and State v. Sewell, 45 Ark. 387.

It is insisted by counsel for the defendants that the work to be performed under the provisions of the act under consideration does not constitute "the repairing and furnishing the halls and rooms used for the meetings of the General Assembly and its committees," as provided in art. 19, § 15 of the Constitution. They claim that the word "repairing" means to restore or renew, and the word "refurnishing" refers to the furniture to be placed and used in said rooms.

We do not agree with counsel in this...