Nichols v. State

• Decision Date: 30 October 1895
• Citation: 32 S.W. 452
• Parties: NICHOLS v. STATE.
• Court: Texas Court of Appeals

32 S.W. 452

NICHOLS v. STATE.

Court of Civil Appeals of Texas.

October 30, 1895.

Appeal from district court, Travis county; James H. Robertson, Judge.

Action by Sarah A. Nichols against the state of Texas, brought by authority of an act of the legislature, to recover money alleged to be due for the erection of a public building. From a judgment for less than the sum demanded, plaintiff appeals. Reversed, and judgment rendered for defendant.

John Dowell and W. M. Brown, for appellant. M. M. Crane, Atty. Gen., H. P. Brown, Asst. Atty. Gen., and R. R. Lockett, Asst. Atty. Gen., for the State.

FISHER, C. J.

Sarah A. Nichols sued the state of Texas by authority of the following act of the 23d legislature of the state:

"An act granting permission to Sarah A. Nichols to bring suit against the state of Texas in the district court of Travis county, to ascertain the amount, if any, the state is indebted to said Sarah A. Nichols, surviving widow of Quilla J. Nichols, on account of the construction of the General Land Office Building of Texas.

"Section 1. Be it enacted by the legislature of the state of Texas, that Sarah A. Nichols be and is hereby granted permission to bring suit against the state of Texas in the district court of Travis county, to ascertain and fix the amount, if any, the state is indebted to said Sarah A. Nichols, surviving widow of Quilla J. Nichols, on account of the construction of the General Land Office Building of Texas; provided, that she shall give the necessary cost bond as in other civil suits; and provided further, that the amount which said Sarah A. Nichols may be permitted to recover shall not exceed $7,000, and such sum within said amount as she may recover shall not bear nor include interest.

"Sec. 2. Either party shall have the right of appeal, and any judgment finally established against the state in such suit shall be a liquidated debt, which shall be paid by the state.

"Sec. 3. The advanced age and infirm condition of the said Sarah A. Nichols make it important that whatever may be done by way of giving her an opportunity to establish her claim against the state shall be done at the earliest possible day, wherefore there exists an imperative public necessity and an emergency that the rule requiring bills to be read on three several days be suspended, and that this act take effect from and after its passage, and it is so enacted."

The court below rendered judgment in favor of appellant for only $337, from which she appeals. The case was heard before the court below upon an agreed statement of the facts, which agreement is a part of the record, and which this court adopts as its conclusions of fact. As a part of these facts, it is shown that Q. J. Nichols, husband of appellant, erected and constructed the General Land Office Building now in use by the state, and that the act of the legislature that authorized the construction and erection of the building, in express terms, limited its cost to a sum not exceeding $40,000. The original contract for the erection of the building was awarded to Nichols for $39,663. This act also provided that the commissioners appointed by the act to contract for the erection of the building should advertise for bids, and let the contract out to the lowest and best bidder. After the award was made to Nichols, and after he had progressed to some extent in the erection and construction of the building, additions and enlargements were made under a subsequent contract between Nichols and the commissioners, which increased the cost of construction of the building about $12,000, upon the promise that Nichols would look to the state for such increased sum, and the commissioners would recommend its payment to a subsequent legislature. The subsequent legislature did not make any appropriation to meet this additional sum, but did appropriate $1,000 to furnish the land office. The state received the land office when completed, and has continually used and occupied it since, and has paid the amount covered by the original contract.

It is claimed that the subsequent contract, by which the cost of the building was increased beyond the $40,000 that was appropriated by law for the erection thereof, and the act of the legislature that authorized appellant to institute this suit, are violative of section 7, art. 7, of the constitution of 1845, and section 44, art. 3, of the present constitution. These two provisions of the different constitutions, in so far as they relate to the question before us, are identical. They are as follows: "The legislature shall provide by law for the compensation of all officers, servants, agents and public contractors not provided for in this constitution; but shall not grant extra compensation to any officer, agent, servant or public contractor after such public service shall have been performed, or contract entered into for the performance of the same; nor grant by appropriation or otherwise any amount of money out of the treasury of the state to any individual on a claim real or pretended when the same shall not have been provided for by pre-existing law." The constitution of 1845 excepts the claims of persons against the republic of Texas from the operation of this provision; and the present constitution has the additional prohibition to the effect that no one shall be employed in the name of the state unless authorized by preexisting law. We do not think that part of the sections of the constitutions quoted that relate to extra compensation have any bearing on the case before us, and to the claims of appellant. That provision evidently means that, when compensation is agreed upon or fixed for certain services, no extra compensation will be allowed for the same service. It was not intended to embrace claims that arose out of extra service. If extra service was rendered by virtue of proper authority, compensation could be made therefor. But we are of opinion that the claim of appellant is not based upon any pre-existing law, and that such claim falls within the spirit and meaning of the prohibition contained in the latter part of the section of the constitution quoted. The apparent purpose of this provision of the constitution was to relieve the state from liability for all claims that were not authorized by a pre-existing law, and to prohibit the legislature from paying them. State v. Wilson, 71 Tex. 291, 9 S. W. 155. The law that authorized the commissioners to make a contract binding upon the state for the erection of the land office building, in express terms, declared that the cost of the building and furnishing it should in no case exceed the sum of $40,000. This was an express limitation upon the authority of the agents representing the state; and their efforts in this direction in attempting to impose upon the state a contract that increased its liability beyond the amount stipulated was clearly unauthorized, and an act not binding on the government. Mechem, Pub. Off. §§ 828-834; Ferguson v. Halsell, 47 Tex. 422; City of Bryan v. Page, 51 Tex. 534; Curtis v. U. S., 2 Ct. Cl. 144; Reichard v. Warren Co., 31 Iowa, 387; 19 Am. & Eng. Enc. Law, 510, and notes. The claim of appellant to the extent of about $12,000 that grew out of the additional contract for the extra service was in excess of the amount provided by law for the construction of the building; hence there was an absence of a pre-existing law upon which to base this claim.

It is contended in argument that the provision of the constitution under consideration simply prohibits the legislature from appropriating money to pay claims for which a previous law has not provided; and that this provision does not extend to prohibiting the state in paying claims such as this, in something else of value other than money; and that the special act of the legislature that authorized the appellant to submit this controversy to the courts is not opposed to this provision of the constitution; and that the court should entertain jurisdiction, and give the appellant such judgment as she may be entitled to under the facts. This is accompanied by a proposition to the effect that the courts need have no concern about the question of payment by the state, as the legislature may see fit to satisfy appellant's claim in something else of value besides money appropriated out of the treasury of the state. Opposed to this view is the case of State v. Wilson, 71 Tex. 302, 9 S. W. 155. The appellant's claim is a moneyed demand. She sues upon it as a debt due by the state, and the act of the legislature that gives her this authority treats it as such. The judgments that the courts would render, if in her favor, would be a demand for money. Property of the state cannot be seized under process for the satisfaction of a judgment against her, but it must be paid and satisfied by a legislative appropriation. We know of no way provided by law, nor any that may be created by the legislature, for the payment of judgments against the state, except by an appropriation of money for that purpose. It is not the purpose of the courts to undertake to enforce demands by awarding judgments that the law says could not be enforced in the form and in the right in which they are rendered. But we may go further than this, and confidently express the opinion that the adaptability of the rules of construction to the provision of the constitution in question warrants us in holding that the spirit and meaning of this provision, if not its express letter, deny the legislature the authority to pay or satisfy any claim against the state that is not based and founded on some pre-existing law. This is the effect of the ruling made in State v. Wilson, supra. We are constrained to hold that the appellant's claim in excess of the $40,000 appropriated by law is illegal, in the sense that it was and is not authorized by law. We only desire to say, before leaving this branch of the case, that the question of ratification, in...