CASES DETERMINED AT THE JANUARY TERM, 1857. 269°1 *THE STATE length, upon questions not involved in V. the decision, before Mr. Justice Scott, ALLIS. and Mr. Justice Hanly, and the Hon. George Conway, Special Judge—Mr. It is an established rule that, upon the argument ChiefJustice English, not sitting. of a demurrer, the court will, notwithstanding the defect of the pleading demurred to, give judgment J. J. Clenclenin, Attorney-General, against the party whose pleading was first defective and Cummins, for the appellee. in substance. Where by a public law agents are appointed to Fowler, and Watkins & Gallagher, for enter into a con!ract on the part of the State, the the appellant. law, under which they act, is as much a part of the contract, when made by the agents, as if it was HANLY, J. This was an action of transcribed in the contract. covenant, brought by the appellee, An authority, by act of the Legislature, to an agent to enter into a contract, reduce it to writing against the appellant, in the Pu-and sign it on behalf of the State, must be con-laski circuit court, on the following in-strued to mean merely a power to enter into a strument, to-wit simple contract, and not a specialty or sealed contract. "Articles of agreement and contract To bind a corporation by specialty, it is neces-made and entered into by and between sary that its corporate seal should be affixed to the Horace B. Allis, of the city of Little instrument -the private seal of an agent, fully Rock, in the State of Arkansas, of the authorized to enter into a contract on the part of the corporation, would not have that effect ; and so one part, and the State of Arkansas, of an action of covenant will not lie agains' the State the other part, witnesseth: That upon a contract entered into by her agents and whereas, the said Horace B. Allis, unsealed with her private seals. der and by virtue of the provisions of Appeal frorn the Circuit Court of Pu-an act of the General Assembly of tht laski County. State of Arkansas, approved January 270*] 11th, A. D. 1851, entitled "an act for *HON. WILLIAM H. building a safe and suitable wall FEILD, Circuit Judge. around the penitentiary, workshops, This cause was argued at considerable keeper's house, and for the improve-
STATE V. ALLIS. VOL. 18 ment of the penitentiary system," sufficient to light said work-shops, the 2711 *was the lowest bidder for the windows in each to bestrongly secured building, rebuilding and repairing of with round iron grates let into Um said penitentiary, and for the safe keep- stone sill and stone cap of each wining and furnishing the convicts for ihe dow, each window to have twenty-four term of ten years from the date hereof, lights of ten by twelve glass, and the under and in accordance with the pro- center of each window to be not more visions of the said act of the General than ten feet apart. And the said Assembly of this State, approved Jan- Horace B. Allis, party of the;first:part, uary 11th, A. D. 1851, above referred further covenants and .agrees to and to: Now, the said Horace B. Allis, with the said State of Arkansas, that party of the first part hereto, covenants he will erect of the *same ma- [*272 and agrees to and with the said State. terial as the said wall and work-shops of Arkansas, party of the second part, before specified, and agreed to be built, that he will erect and build around the one two-story house and building of penitentiary house of the State of Ark- sufficient dimensions to accommodate ansas, a wall of solid masonry, com- the keeper and all the subordinate offi-posed of square durable rock, the part cers employed about said jail and pen-of the rock exposed to be so dressed as itentiary house, the front of which to present a smooth surface, equal in said house and building shall consti-quality and workmanship (except the tute a part of the wall before referred out-work) to the basement story of the to. United States Arsenal in the city of And the said party of the first part Little Rock, which rock shall be laid further covenants, that he will thor-with durable cement of lime and sand, oughly repair the present penitentiary and shall enclose a space of three hun- housP, with good and sufficient roof dred feet one way, by three hundred extending over it, and the walls of said and fifty feet the other way, the foun- building shall be properlyfand sub-dation of said wall to be sunk one av- stantially braced, eitherLwith iron erage depth of three feet below the sur- rods, so as to make it perfectly secure face of the ground, and shall be twenty and safe, the cells in said house to be feet high from the top of the founda- properly ventilated and made/comfort-tion, shall be five feet thick at the able and healthful, and one of the base, and gradually terminate in a rooms in said building shall be:properly thickness of two feet, with suitable and fitted up for a kitchen and for a hos-subs t antial iron gates to enter into pital, and one for a chapel and school-such enclosure. room, and that he will provide suit-And the said Horace B. Allis, party able stoves and fuel to keep the cells, of the first part, further consents and in which prisoners may be confined, agrees to and with the said State of warm in the winter. Arkansas, that he will erect within the And the said party of the first part said wall before specified, and of the further covenants and agrees to, and same materials as said wall, three work- with the State of Arkansas, that he shops, one of which shall be two hun- will cover all the houses hereinbefore dred feet in length by forty , feet in specified to be built, with a good and width, and twelve feet high in the substantial roof, to be composed of story; the other two of said workshops slate, and that all of said work herein-shall be each one hundred feet long by before stipulated to be done, shall be forty feet in width, each to be twelve finished in a faithful and workman-feet high in the story; with windows like manner, and of good and substan-
JAN. TERM, 1857. STATE v. ALLIS. tial materials, and that all ,of said work assigns, in any one year during the and buildings shall be finished and continuance of this contract, and until completed within ten years from the the said flfty-eight thousand dollars date of this contract. And the said shall be paid to the said Allis, party of party of the first part further cove- the'first part. nants and agrees to and with the State And the said party of the second of Arkansas, that he will well and part further covenants and agrees to safely keep and guard the convicts and with Horace B. Allis, that he shall now in, or which may hereinafter be have the benefit, inanagement and ut into said penitentiary, with a good control of all the prisoners and con-and sufficient guard of sober aud re- victs under his charge in said peniten-sponsible men, and that he will feed tiary, and may employ them as he the said convicts with good and whole- thinks best, subject to the laws of the some food in sufficient quantities, and State, and the government and dis-that he will clothe the said convicts In cipline adopted for the management of a substantial, comfortable and uniform the penitentiary, and that if the said manner, and will furnish said convicts party of the first part shall die during such medicine and medical attendance the existence of this contract, the said as they may from time to time, and at contract may be carried out and corn-all times, require, free of all expense to pleted by the executors or administra-the said State of Arkansas, and that tors of the said Horace B. Allis, party he will in all things comply with of the first part. 273'1 *the act of the General Assem- It is further expressly stipulated be-bly of the State of Arkansas, in rela- tween the parties hereto, that this-con-tion to the said penitentiary and the tract shall extend and be in force for convicts therein, and shall safely de- and during the period of ten years liver to such person or persons as shall from the date hereof. ' be duly authorized to receive the same In witness whereof, the said Horace in behalf of the State, all of the con- B. Allis for himself, and the said State victs of said penitentiary, and all of of Arkansas, by her legally constituted the property of the State of every na- agents, *have hereunto set [8274 ture and kind which shall remain in their hands and seals, this 5th day of his custody or possession at the expira- April, A. D. 1851. tion of this contract. [SEAL] HORACE B. ALLIS, And the said State of Arkansas, par- [SEAL] D. B. GREER, Sec'y State, ty of the second part hereto, covenants [SEAL] C. C. DANLEY, Auditor, and agrees to and with the said Hor- [SEAL] J . H. CREASE, Treasurer. ace B. Allis, party of the first part, that, The declaration was in the usual for and in consideration of the faithful form, and contained several specific performance of his agreements and assignments of breaches of the cove-Covenants heretofore in this writing nants sued on. specifi d, she will pay to the said At the return term of tbe writ, the Horace B. Allis, his agents or assigns, State appeared by her qualified and the sum of fifty-eight thousand dol- authorized attorney, and craved oyer lars, by quartely warrants on the treas- of the instrument declared on, which urer lf said State, in favor of the said was granted by filing a document of Allis, his agents or assigns, but it is ex- which the above is a copy. The State pressly stipulated and agreed that not then interposed her four pleas in bar ; more than six thousand dollars shall to the first and third of which issues be pail to the scud Allis, his agent or were taken, and to the second and
STATE V. ALLIS. VOL. 18 fourth a demurrer was filed. Demur- ment for the party, who thereon ap-rer to these pleas was sustained. Ap- pears to be entitled to it. See 1 Chit-pellant choosing to rest upon the pleas, ty's Plead. 668; Smith v. Joyce, 10 Ark. declined to answer over upon the de- 463; Inglehart v. The State, etc., 2 Gill' murrer being sustained thereto. Trial & Johns. 236; Allen v. Crofoot, 7 Cow. by a jury upon the issues to the first 46; Hord v. Dickman, 2 Ben. & /fun. and third pleas ; verdict and judgment 652; Smith v. Walker, 1 .Wash. 135; lil-for the appellee. Motion for a new lotson V. Stiff, 1 Blackf. 77; Headington trial made and overruled, and excep- v. Neff, 7 Ohio 229; Pearsall v. Dwight, tions by appellant. The cause was 2 Mass. 84; McGuire v. Cook, 13 Ark. brought to, and is now pending in this B. 520; Ilynson v. Burton, 51d. 492; By-court by appeal. ers et al. v. Aiken, Id. 419./ Sundry errors are assigned and re- The court below, therefore, ou con-lied upon for reversing the judgment sidering the demurrer of the appellee, of the court below. should have turned to the declaration Owing to the result of our opinion and determined whether that was good upon the whole case, it will be unnec- in substance; not having done so, or essary for us to notice the exceptions having done so and erred in its judg-taken during the trial relating to the ment, as it is insisted, we are con-testimony, those taken to the action of strained, from the uniform rules of the court below in refusing to give cer- practice in error in such case, to revert tain instructions for, and giving certain to that portion of the record before us, others against appellant, and also that and determine whether the declaration which pertains to the overruling the of the appellee is obnoxious to a demotion for a new trial. murrer for cause not cured by the sub-lst. We think there can be no ques- sequent proceedings in the cause. Is. tion but that when the court below was the declaration of the appellee good in, considering the appellee's demurrer to substance, when viewed in connection the appellant's second and fourth with the instrument given on oyer, pleas, it should have been considered copied above, and the act of the Gen-in relation to the declaration itself : eral Assembly under which that in-for a party should not demur unless be strument purports to have been made be certain that his own previous plead- by the parties thereto? We will ad-ing is substantially correct ; as it is an dress ourself to this question, and in established rule, that upon the argu- doing so, shall take occasion to copy so ment of a demurrer, the court much of the act of the 11th January, will, notwithstanding the defect 1851, as pertains to it, or will, in auy-of the pleading demurred to, wise, contribute to its solution. The give judgment against the party sections tnaterial are as follows: 2751 *whose pleading was first de- "SEC. 5. That the Secretary of State, fective in substance; as, if the plea Auditor and Treasurer shall, ex-officio, which is demurred to be bad, the de- constitute a board of inspection for the fendant may avail himself of a sub- penitentiary. * It shall be the stantial defect in the declaration, un- duty of said board to direct and man-less such defect has been aided by age the discipliue of the peniten-pleading over; aud if the first fault tiary as prescribed by law and, shall would constitute error, the court will every two weeks examine into the decide upon it though it be not noticed; *condition of the convicts, and [11276 for on a demurrer the court will con- see that they are well provided with sider the whole record, and give judg- 1. See McLaughlin v. Hutchins, 3-212, note
JAN. TERM, 1857. STATE V. ALLIS. clothing and food," etc. • " ly, the context of the act will explain "SEC. 6. That immediately after the what extent of power, with respect to passage of this act, it shall be the duty the grade of the contract, the Legislature of the board of inspectors to procure in tended to confer upon the inspectors; proper drawings and specifications of for it will be preeeived in one section the work to be done under the pro- of the act (see sec. 11), it is provided, visions of this act, and to proceed to let among other things, "that after such the same out to the lowest and most *contract shall be taken, it shall [*27 7 responsible and competent bidder, on be reduced to writing, with all the the terms hereinafter specified," etc. * * proper terms, stipulations and specifi-"SEc. 7. That the board of inspec- cations, and shall be signed by the tors in making such contract, shall,', board of inspectors, on behalf of the etc. * * * state," etc. A contract simply signed, ".. 3.Ec. 11. That after such contract whether by a natural or artificial per-shall be taken, it shall be reduced to son, of course belongs to that class of writing, with all the proper terms, contracts denominated simple, parol sCpulations and specifications, and or unsealed. If it had been the pur-shall be signed by the board of in- pose of the Legislature to have con-spectors on behalf of the State, and by ferred upon the inspectors the power the contractor; and the contractor shall to make a sealed contract, obligatory enter into the bond, payable to the upon the State as such, they should State, in the penal sum of twenty thou- have so expressed the purpose in the sand dollars, with ample security, to act, and at the same time have probe approved by the board of inspectors, vided for the affixing of the seal of the conditioned for the faithful perform - State thereto by the Governor, or some ance of said contract," etc. * * * one else. The constitution of the We presume there can be no doubt State, sec. 12, art. 5, ordains: "That but that the act of the llth January, there shall be a seal of this State, 1851, from which we have made the which shall be kept by the Governor, above extract, was as much a part of aud used by him officially." It is the the contract made by the board of in- seal of We State, under this provision, spectors thereunder, as if it had been which assumes and verifies the acts of absolutely transcribed into it, for the the State, whether as a sovereignty or reason that it was a public law of the corporation. She can perform no cor-land, of which, not only the inspec- porate or sovereign act through her tors, but all other persons wers, bound Chief Executive without it is verified to take notice: The inspectors had to by this seal; and we doubt exceeding-look to that act for their authority to ly, whether the Legislature possesses make the contract. It was the power the power by act to prescribe any under which they were to act. The other mode for the authenticatio n of public was advertised of its provisions. the sovereign or corporate act s of the When the act in question uses the gen- State, except by means of the seal or-eric word contract, mnd empowers the dained by the constitution, and re-inspectors therein named, to make a quired to be kept and, consequently, contract, in the name and behalf of the affixed by the Governor. Certainly, in State, in respect to the subject matter the case at bar, there seems to have of the act, what are we forced to con- been no intention on the part of the clude the Legislature meant by the Legislature to assume or exercise this employment and use of that generic doubtful power. The act in question word iu (le act in question? Certain- does not purport to authorize the in-
STATE V. ALLIS. VOL. 18 apeotors to seal the contract, to verify principle and authority, that an action or render more solemn the instrument of covenant will not lie against the on their part. The argument would State at the suit of the appellee, upon have been rendered more specious, .if the instrument in question. We there-the Legislature had absolutely author-fore hold that the court below erred be-ized the inspectors to enter into a cause it did not give judgment in bar covenant in the name of the State with in favor of the appellant; and for this regard to the subject matter confided reason, the judgment of the court be-to them by the act in question, for in low rendered is herein reversed, and that event the power might be implied the cause remanded to the circuit from the general grant, that if they court of Pulaski county, with directions -could not procure the affixing of the to that court to consider and sustain great seal by application to its consti-the demurrer by relation, and if it had tutional custodian, the Governor, they been interposed by the appellant, and might supply it in some other mode. applied to the declaration of the appel-But, discarding this view of the sub-lee, and on doing so, that that court ject, and regarding the contract de-proceed to render judgment in bar for clared on as one, entire and independ-the appellee. -2781 ent, and to be *construed, as to Let the judgment be reversed, and its legal effect, without reference to the cause , remanded, with the above the act under which it purports to directions. have been made, and we hold, leaving Mr. Justice Scott: out of view also the State as a sov-This cause was a good deal examined ereignty, but considering it as a cor-by the special judge commissioned to poration, that the instrument declared sit in its trial, together with my on is not technically the deed of the brother Hanly, towards the close of the State. and as a legal consequence, that last term; and they arriving at the covenant against the State, cannot be *conclusion that the judgment [1'279 maintained on it. An instrument, to ought to lie reversed, and consequently which the agent of a corporation has that the party interested would be no affixed his seal, may be evidence of the nearer to an application to the Legisla-contract, in an action of assumpsit ture for satisfaction by a decision then, against the corporation: for, the seal of than now, preferred, as they announced the agent of a corporation, unlike that from the bench,to defer final action un-of the agent of a natural person, never til there was a full bench. And we now can be the f,eal of his principal—the all concur in the opinion that the judg-corporation. 1 Parsons on Cont., p. 94, ment ought to be reversed. The ground note f. Randall v. Van Vechten, 19 I. upon which it it has been placed seems Rep. 60. Dawson - J. Inhabitants of to me to be a sound one. Undoubtedly, Granby, 2 Pick. R. 345. Bank of Co-the suit must proceed upon the ground lumbia v. Patterson's ad., 7 Cranch. that the State is a corporation—an ar-299. tificial person. Nations and States are Whilst we are free to concede, both denominated by publicists, bodies po-from the tenor of the instrument sued litic. They are a collective and in-on, and the act under which it was visible body, having affairs and inter-made, that the State is liable thereon, ests in common, upon which they de-in one or more forms of action; we are liberate and resolve, and in reference forced to the conclusion, from the con-to which they act, as moral persons, siderations above expressed, supported having an understanding and will peas we conceive them to be by both culiar to themselves, and are therefore
JAN. TERM, 1857. STATE V. ALLIS. susceptible of obligations and laws. if he had authority to make the con-In this sense, the King of England is a tract, it shall be binding upon them as corporation, and so are the United evidence of such contract. The cases States, as well as each of the States. of Randall v. Van Vechten, 19 John R. Angell and Ames on Corporations, p. 65, and Bank of Columbia v Patterson 10 sec. 15. ad'r, 7 Cranch 305, are satisfactory au-"To bind a corporation by specialty, thorities upon this point." Per Parker, it is necessary that its corporate seal C. J., delivering the opinion of the should be affixed to the instrument. court in the case of Damon v. Granby, * 4 8 * * * The corporate seal is 2 Pick. R., p. 352-3. the only organ by which a corporation To the same effect is the case of Ran-can only oblige itself by deed : and dall v. Vechten, where the court say : though its agents affix their private "It is important to remark the dif-seals to a contract binding upon it, yet ference between a corporation and an these not being seals, as regards the cor-individual person acting by agent. In poration, it is in such case bound only the one case, there is a corporate seal, by simple contract." (Id. p. 309, sec. which is the only organ by which the 295.) body politic can covenant. The seals But, "the seal of a corporation, when of these defendants are not, in any affixed to any deed of contract, by sense, the seals of the corporation ; but proper authority, is not distinguisha-the seal of an agent for an individual ble in its legal effect from that of an person as his principal, is, in law, the individual. The one is the seal of an seal of his principal ; and therefore it artificial, the other of a natural per-is, that the form of action against the son." Clark v. Farmer's Manuf. Co. principal, in the one case (that of the 15 Wend. R. 257 corporation), is not determined by the "There is a difference between an form in which the agent contracts ; agent executing a sealed instrument, while in the other case (that of an in-thereby intending to bind his principal, dividual) the action against the princi-which principal is an individual, and pal must correspond with the form by the agent of a corporation doing the which the agent contracts, whether by same thing with the same intent. In seal, or by simple contract. Nor will c. the former case, the seal may, by a it make any difference whether the prior authority or subsequent adoption, agents for the corporation appointed be the seal of the principal ; and if under the corporate seal, or by a reso:u-there be no such authority it shall bind tion in the minutes. It may be legally the agent as his own act and deed. In done in either mode : and whether it the latter case, the seal can never be be in the one mode or the other, uannot that of the corporation : for they have vary the form of the action against the 280*] but one *common seal, and that corporation. can never be changed except by au-"When the real party to a contract thority emanating from the power has affixed his seal, the specialty im-which created the corporation, and it plies a merger, and the opposite party can be put to an instrument only in cannot waive the covenant, and resort pursuance of a vote of the corporation, to the assumpsit. But this rule has no or by the officer who may be the keeper, application here ; because the corpora-and entrusted with the use of it. Their tion have affixed their seals to this con-agent, therefore, who contracts for tract. The seals of the agents are not their use under his own seal, does not seals as regards the cbrporation. The bind the corporation in a deed ; though, old doctrine, that assumpsit will
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.