(December 12, 1898.)

#### GEO. H. FULLER DESK COMPANY v. STATE.

[55 Pac. 857.]

Recommendatory Decision Under Section 10, Artigue 5, of Constitution. — Where furniture for legislative halls has been purchased, received and accepted, the legislature should appropriate sufficient to pay for the same; not to do so is unfair, inequitable and savors of repudiation.

(Syllabus by the court.)

An original proceeding under section 10 of article 5 of the (constitution.

C. C. Cavanah, for Plaintiff.

E. E. McFarland, Attorney General, for the State.

No briefs filed.

Plaintiff sold and delivered to the state certain goods — necessary furniture for the use of the state legislature. It is stipulated that the goods, consisting of twenty-one walnut desks and twenty-one walnut chairs, were, ivhen delivered, of the value of $1,240; that said goods were furnished the defendant in October and November, 1896; that plaintiff’s account therefor was presented to the state board of examiners in 1896, and by said board allowed in full, and through said board presented to the legislature for its allowance and payment by appropriation of public revenue to said extent; that said legislature appropriated and set apart for the purpose of paying on said account to plaintiff the sum of $700, which amount has been paid on account for said goods, leaving a balance thereon due to the plaintiff. Plaintiff commenced this action in this ■court to obtain a recommendatory decision of this court touching plaintiff’s rights, under the provisions of section 10 of article 5 of the constitution.

QUARLES, J.

(After Stating the Facts.) — The apportionment act of 1893 increased the representation of the two .houses of the legislature to the extent of eighteen members *316from what it was under apportionment temporarily made by the constitution. A short time prior to the convening of the fourth session of our state legislature, the executive department, in order to provide suitable desks and seats for the increased membership, ordered new desks and chairs for the senate chamber, and moved those theretofore in the senate chamber to the hall of the house of representatives. The idea, doubtless, was to have all of the desks and chairs in each house of the same material and workmanship. This was proper. The furniture procured for the senate was such as the dignity of the state and of the senate demanded — i. e., such as was suitable. It is argued that the price charged is a reasonable price. The account for the goods was presented by the plaintiff to the state board of examiners for allowance, and was by said board allowed. The legislative department accepted the goods in question, and used them. There was no appropriation or fund available out of which to pay the plaintiff’s claim. The question of paying the same was presented to the legislature, and $700 appropriated to pay on said account, leaving a balance thereon of $540. Having accepted the goods, common honesty, fairness, equity, and good conscience demand that the plaintiff should be paid the balance on said claim. There is resting upon the state a legal and moral obligation, to pay the claim in question. The credit and good name of the state require its payment. The legislature, if it thought the goods were unnecessary, or not worth the amount allowed by the executive department, or that they were purchased without authority, should have refused to accept the goods. Having accepted them, the legislative department ratified the act of the executive department in purchasing the goods. Now, for the state to keep said goods, and pay only a little more than half of their value, would look like repudiation and sequestration. It should be the policy of the state to meet all of its just obligations. Its failure to do so would bring it into disrepute, with the result that it would, in an emergency like the one which the executive endeavored to meet by preparing for the proper reception, convenience, and comfort of the senate and house of representatives, be unable to procure such things *317as it needs. We recommend that the claim of tbe plaintiff for $540, with two years’ interest thereon, be paid, and direct the clerk of this court to certify this decision to the legislative department. The attorney general concurs in the views herein expressed.

Sullivan, C. J., and Huston, J., concur.