McConnell v. Arkansas Brick & Mfg. Co.

• Decision Date: 17 May 1902
• Citation: 69 S.W. 559
• Parties: McCONNELL et al. v. ARKANSAS BRICK & MFG. CO.
• Court: Arkansas Supreme Court

69 S.W. 559

McCONNELL et al. v. ARKANSAS BRICK & MFG. CO.

Supreme Court of Arkansas.

May 17, 1902.

Appeal from Pulaski chancery court; Thos. B. Martin, Chancellor.

Suit by the Arkansas Brick & Manufacturing Company against E. T. McConnell and others. From a decree for plaintiff, the defendants appeal. Affirmed.

Morris M. Cohn, T. H. Humphrey, and Kirby & Carter (Geo. W. Murphy, Atty. Gen., of counsel), for appellants. Rose, Hemingway & Rose, for appellee.

BUNN, C. J.

This is a bill in equity filed in the Pulaski chancery court, by the appellee, the Arkansas Brick & Manufacturing Company, against E. T. McConnell, as superintendent, and M. D. L. Cook, as financial agent, and Jefferson Davis, J. W. Crockett, Geo. W. Murphy, T. C. Monroe, and Frank Hill, members, of the board of penitentiary commissioners, with prayer as follows, to-wit: "The premises considered, the plaintiff prays that a temporary restraining order be issued, restraining the defendants and each of them from taking any action to prevent the due performance of said contracts, or towards a rescission thereof, and particularly from taking from plaintiff's works any of the men now engaged in labor therein; and requiring defendant McConnell as superintendent of the penitentiary to proceed with the execution of said contracts and the furnishing of labor as therein agreed upon. And plaintiff prays that, upon a final hearing, a decree be entered as above prayed, and that the said order of the board canceling the contract be declared null and void." The contracts were made by E. T. McConnell as superintendent at the time, and J. C. Massey as financial agent, and approved by the board of penitentiary commissioners, consisting at the time of D. W. Jones, governor, Jefferson Davis, attorney general, Clay Sloan, auditor, A. C. Hull, secretary of state, and Frank Hill, commissioner of mines, etc., all of whom made and approved the contracts and assignments thereof; and the rescinding resolution was passed by the board of commissioners, composed at the time of Jefferson Davis, governor, G. W. Murphy, attorney general, T. C. Monroe, auditor, J. W. Crockett, secretary of state, and Frank Hill, commissioner of mines, etc.

The complaint sets forth in extenso a contract made by and between the said superintendent and financial agent, on the one part, and the Arkansas Chair Factory, on the other, and the approval of the same by the board of penitentiary commissioners, signed in writing by each and every one of them, and the subsequent assignment of the same by the chair factory company to the Arkansas Brick & Manufacturing Company, the appellee, with the approval of said penitentiary board. It further sets forth that, by reason of the passage of the act to erect a new state house on the penitentiary grounds, and the putting of said grounds in the control of the state house commissioners, and the consequent necessity of removal of the penitentiary walls and buildings to another locality, and erecting others there, it became necessary to make an amendment to the original contract, or a substituted contract, and that the same was made and approved by said board of commissioners as in the first instance; and that under these contracts both parties proceeded to, and did, perform their respective obligations for and during the period of 18 months; and that the plaintiff, by reason of said contracts, expended large sums of money in perfecting its plant, so as to be able to perform its part of the same, and entered into engagements, by reason thereof, involving many thousands of dollars, impossible to be complied with except the laborers are furnished it in accordance with the contracts aforesaid. That, up to the time of the adoption of the resolution, plaintiff has continued promptly to report as required, and to pay into the treasury the monthly sums stated according to said reports, for the hire of the convicts permitted to labor for it, and for the last month, extending up to the date of the canceling resolution, it has paid in the sum of $4,000 or more, for the hire of about 200 convicts for the month. That on the 13th day of August, 1901, the said board of penitentiary commissioners, at one of its meetings, passed a resolution in the following language, to wit: "Believing that said contract is unjust to the state, and made without legal authority, because the same was made for a term of years beyond the life of the board making it, and amounts to a lease of the state convicts, which is prohibited by law; and believing that it is to the best interest of the state and the management of the penitentiary that the same be annulled and set aside, therefore, be it resolved by the penitentiary board that said contract so entered into between the state of Arkansas and the said Arkansas Brick & Manufacturing Company be, and the same is hereby, annulled, canceled, and held for naught; the cancellation of said contract to take effect October 15, 1901; and on and after said October 15, 1901, the state refuses to further comply with the terms of said contract, and the superintendent of the penitentiary is hereby ordered on and after said date to withdraw from said brick and manufacturing company all convicts in their employ, and turn them back into the walls of the penitentiary, subject to the further orders of this board." Plaintiff states that, by reason of this resolution, the contracts were in effect annulled and set at naught; and by reason of such breach of the same it has lost, and will lose as a natural consequence, a sum of money largely in excess of $100,000; and that its consequential damages will be a very large sum, detailing each item of damage; that the contracts were fair and lawful, and that said resolution was without authority of law, while in fact having the force and effect of law, in that it put a stop to the performance of said contracts, since the said superintendent and financial agent will obey the same unless restrained. The contracts are exhibited with the complaint, and said resolution is set out in full therein.

The defendants filed their demurrer to the complaint, containing eight several grounds; Nos. 3, 4, 5, were subsequently withdrawn, and the court overruled the same as to grounds 1, 2, 6, 7, and 8, which are as follows, to wit: "(1) For that the said parties are not, and could not be, charged to have done anything in any individual capacity; nor have they nor is it shown that they have any individual capacity to carry any pretended contract with the complaint into effect, as set forth in its complaint and amendments; and in their official capacity are acting solely in behalf of the state. (2) And because said complaint and amendment thereto seek only for relief respecting convicts belonging to the said state, and, if the matters recited therein have any validity, which they deny, complainant's cause of action is against the state of Arkansas, and cannot be maintained. * * * (6) Because the said complaint and amendment thereto do not state a cause of action. (7) Because the facts set forth in the said pleadings do not entitle complainant to any relief herein. (8) Because this court has no jurisdiction to grant the relief prayed for herein."

The chancellor overruled the demurrer upon each and every one of said grounds set forth above, and the defendants declined and refused to answer or plead over, but rested on their said demurrer; and thereupon the following decree was rendered, to wit:

"Thereupon, being well and sufficiently advised as to all matters of fact and law arising herein as shown by the complaint and confessed by the demurrer, this court doth order, adjudge, and decree that the resolution passed by the board of commissioners for the management of the state penitentiary of the state of Arkansas, on the 13th day of August, 1901, attempting to cancel and annul the contract purporting to have been made by and between the parties to this litigation, and filed as an exhibit to the complaint, be, and the same is hereby, canceled and held for naught. That the defendants, Jefferson Davis, J. W. Crockett, T. C. Monroe, Geo. W. Murphy, and Frank Hill, as members of said board of commissioners, be, and they are hereby, enjoined and restrained from in any manner canceling or annulling said purported contract, without sufficient cause being shown therefor. That the defendant E. T. McConnell, as superintendent and keeper of the Arkansas penitentiary, and M. D. L. Cook, as financial agent of said penitentiary, be, and they are hereby, enjoined and restrained from executing and carrying into effect the said resolution of the said board of commissioners, passed as aforesaid; and that they, together with the said members of the board of commissioners, be, and they are hereby, enjoined and restrained from refusing and failing to execute and carry out the terms of said purported contract until its illegality or invalidity as a contract shall be adjudged and declared, by some tribunal vested by law with jurisdiction and authority, to be illegal or invalid. That the costs of this action be paid by the defendants, for which execution may issue. From this decree, the defendants pray an appeal to the supreme court of Arkansas, which is granted."

Every allegation of the complaint is admitted to be true by the demurrer, and it is unnecessary to set forth the complaint at length, or to incorporate herein the contracts involved, as those parts of the same within the scope of the demurrer will be referred to as occasion may demand. The issues of law (for there are no issues of fact) will be discussed in their logical order, and not in the order presented in the demurrer.

Treating the sixth ground of demurrer as a general demurrer within itself, the question is whether or not the penitentiary officials acted within the provisions of the statute made and provided for such cases, in making the contract involved and the amendment thereto. If they did...