Page:Pitcock v. State.pdf/20

546 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 subcribesubscribe [sic] 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.