Regarding a potential forfeiture by the contractor for delay in completing the Morton Monument.

food and drug samples, salaries of employes, transportation and hotel expenses of those necessary to conduct inspections, collect samples and attend prosecutions, and for tha incidental expenses, fourteen thousand dollars." Appropriations can only be used for the purposes intended by the legislature, and the intention of that body is to be gathered from the language used by it. This intention seems to have been clearly expressed and was to the effect that fourteen thousand dollars was appropriated for maintenance of laboratory of hy- giene, etc., and it is my opinion that no part of it can be used by your department to prevent-the pollution of streams or the spread of contagious and infectious diseases. You state that "By clerical error, the fourteen has been put in the wrong place," that it should have been in place of "ten" in the forepart of the act, and that the "ten" should have been in place of the word "fourteen" in the latter part of the act. Whether there was a mistake in the enrollment or printing of the bill can make no difference now, since our courts hold-and cor- rectly so, I think-that where a statute is duly authenticated by the presiding officers of the legislature, the court will not inquire as to the regularity of the proceedings before that time. Evans v. Browne, 30 Ind. 514. Since section 8 of the Acts of 1907 (Acts 1907, p. 158) known as the pure food and drugs acts, appropriates $15,000 to be used by your department for some of the same purposes for which the $14,000 appropriation above shown is to be used, it is my opinion should said $15,00 so appropriated be inadequate for the pur- poses intended, such portion of the $14,000 appropriation as you may have to spare, if any, may be lawfully used by your depart- ment for pure food work as contemplated by the second appropria- tion for the state board of health (Acts 1907, p. 680). MORTON MONUMENT-FORFEITURE FOR DELAY IN COM- PLETING WORK. May 10, 1907. Dr. ID. R. Lucas, Secretary Board of Commissioners Morton Mon- ument: Dear Sir-Your favor of May 4th is at hand, stating that the contract entered into by your board and Rudolf Schwartz on June 23, 1906, for the casting of side figures and bas reliefs for the Morton Monument, provided for a forfeiture of $10 per day to be paid by Schwartz as liquidated damages for each day after March 1, 1907, that said work shall remain uncompleted. You further state that the work was not completed by 'March 1, 1907, and that the board on or about March 29, 1907, extended the time of completion to July 1, 1907. You ask whether the board can relieve the contractor, Schwartz, from the payment of the penalty provided for in the contract. Time may or may not be of the essence of a contract, accord- ing to the intention of the parties, as determined from their situation, the nature of the subject matter, their practical con- struction of the agreement, etc. The mere fact that the work in question was to be done by a given date does not therefore nec- essarily make completion by such time an absolute necessity (Cart- mel v. Newton, 79 Ind. 1, 5; McClellan v. Coffin, 93 Ind. 456; Mas v. Masters, 31 Ind. App. 235). In the contract uinder consideration certain damages, desig- nated as "liquidated" are specified; but the rule is that the use of this term is not conclusive, but the damages may nevertheless be regarded as in the nature of a penalty only, i. e., the amount of money damages is to -be determined by the actual damages sustained, irrespective of the fact that the contract states a sum has been agreed upon in advance as "liquidated damages," rep- resentative of such actual loss. If the amount so stated is unreasonable or unconscionable, in view of the probable damages which may flow from a breach of the contract, it will be deemed as a penalty only (Mondamin Co. v. Brudi, 163 Ind. 642, 648-649; Mercia v. Burget, 36 Ind. App. 453, 463; Jaqua v. Headington, 114 Ind. 309). Considering the improbability that the state will sffer any material loss from the contractor's failure to finish the monu- ment by the day fixed, and the practical construction placed upon the contract by the parties, I am of the opinion that time was not of the essence of this agreement, that the term of the contract relating to damages was inserted in terrorem only, and that the extension of time and waiver of penalties by the board would be justified in law under the circumstances you mention. If, however, the state has actually suffered substantial loss by rea- son of the artist's delay, I do not think the board, possessing as it does, only limited powers, can surrender the state's right of action for real damages. Corker v. Elmore Co. Comrs., 77 Pac. 633.