Page:Pitcock v. State.pdf/14

540 decision here, if that case is to stand, must be an affirmance. I do not think so. In the McConnell case there was a valid contract, made pursuant to our statutes regulating the hiring out of convicts, between the Board of Penitentiary Commissioners, as the agents and representatives of the State, and the Arkansas Brick and Manufacturing Company. The effect of the holding in the McConnell case was that the board could not abrogate that contract, such power being vested alone in the Legislature, and they were enjoined from so doing. The instant case to my mind is plainly distinguishable. The contract shows by its terms that it has expired. The allegations of the complaint amount to no more than an attempt by judicial construction to extend the terms of the contract exhibited with it. In short, the thing, asked to be done and performed by the Penitentiary Board are the very things which, when done and performed, would constitute a performance of the contract as its terms are construed by the successors to the Arkansas Brick & Manufacturing Company. In other words, the case resolves itself into a suit for a specific performance against the State. My attention has been called to no case, and I have been unable to find any, which gives the courts jurisdiction to entertain such a suit. Such a view is contrary to the principles of State sovereignty upon which our government is founded, and which must endure as long as the State itself. Because the expression of a majority of the judges as above indicated as to the effect of the McConnell case is in my judgment an unwarranted extension of the principles at issue in that case, and because I believe the McConnell case to be wrong in principle, I have voted to overrule it.

W, 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