State ex rel. v. Gordon.

ing in effect that no part of the money should be available so long as the present incumbent retains his office, was not the inducement for the appropriation, and was not a sine qua non, and though the proviso be void, the rest of the appropriation is valid. [VALLIANT, C. J., and WOODSON, J., dissenting.]

Per VALLIANT, C. J., dissenting.

1. DEPARTMENTS OF GOVERNMENT: Transgression on Other Departments by Judiciary. The judicial department, when passing judgment upon the act of another department which it is charged is a usurpation upon the power of either of the others should itself be exceedingly careful not to usurp legislative or executive power; and that is exactly what the action of the court as expressed by the majority opinion in this case does. 2. LEGISLATIVE APPROPRIATION OF MONEY: Conditions. Since the appropriation of money to pay the salaries and expenses of the Game and Fish Commissioner was necessary and the Constitution leaves it to the General Assembly to make it, the General Assembly can make it for as much or as little as it sees fit, and may impose what conditions it sees fit to impose, and may specify the purposes for which it may or may not be used, and no other department of the State government can interfere with the exercise of that power, whether it be exercised wisely or unwisely.

3.

:Power to Appropriate Implies Power to Attach Condition. There is no difference in effect between refusing to make an appropriation because of distrust of the officer in charge of an office, and making an appropriation on condition that it shall not be used while that official is in office. The one is no more an interference with the Governor's power to appoint than is the other; no more liable to force the resignation of the officer than the other; and if the one is unwise, unjust and impolitic, the other is equally so. No department of the State government can lawfully authorize the withdrawal of money from the State Treasury except the General Assembly, and then only on the terms and conditions prescribed by the General Assembly, let the consequences be what they may. When the court says the proviso attached to the appropriation to the Game Department can be set at naught, and the appropriation be used in defiance of the express inhibition of the statute making the appropriation, it lays a limitation on the power of the General Assembly that the Constitution has not laid. The proviso is a condition on which the money appropriated can be used, and if those persons interested in the enforcement of the game laws do not wish to observe the conditions they are in the same condition in which they would be if no appropriation at all had been made.

4.

State ex rel. v. Gordon.

: Condition: Interference With Governor's Power of Appointment. The condition attached by the proviso to the appropriation that no part of it should be available so long as the present incumbent remains in office does not interfere with the Governor's power of appointment. The Governor has already freely exercised his power by appointing the incumbent. The case of State ex inf. v. Washburn, 167 Mo. 680, wherein it was held that an act which undertook to restrict the Governor's power of appointment to one of three men named by a party committee was void, has no point in common with this case.

5.

6.

:

:Striking Out Item. The Governor does not have the power to approve the item of an appropriation bill, and disapprove the condition on which the money is ap propriated.

:

: Invalid in Part Invalid in Toto. The intention of the Legislature in appropriating $90,000 to the Game Department, and therein providing by a proviso attached thereto, that no part of the amount should be available so long as the present Game and Fish Commissioner remains in office, was expressed in the proviso, and is inseparable from the rest of the act, and no.part of the money would have been appropriated without that proviso, and, therefore, if the proviso is void the whole section is void. The court cannot apply money appropriated by the Legislature to a purpose to which it did not intend it to be applied.

Per WOODSON, J., dissenting.

1. APPROPRIATION TO CERTAIN PURPOSE: Diverted to Another. It being conceded that if the Legislature had made no appropriation for the use of the Game Department, the courts would be powerless to compel the State Auditor to audit the account and issue a warrant to the Game Commissioner in payment of his salary, for to do that would have the effect of taking money from the State Treasury without an appropriation, in violation of the express inhibitions of the Constitution, then the court cannot compel the State Auditor to issue such a warrant, for a stronger reason, namely, that there is not only no appropriation made for the use of the present incumbent of the office, but there is an express provision în the act withholding all sums from his use.

2.

Special Legislation. The proviso to said appropriation is not void as special legislation, for all appropriations under the provisions of the Constitution are special.

State ex rel. v. Gordon.

Mandamus.

PEREMPTORY WRIT ISSUED.

Lon O. Hocker and R. T. Railey for relator.

(1) Art. 2 of Chap. 49, R. S. 1909, contains the law of this State in reference to the preservation of fish and game, specifies the salary of the game warden, and provides that it shall be paid out of the game protection fund by warrant drawn by the State Auditor on said fund in the hands of the State Treasurer. When the above act became effective, Aug. 16, 1909, it required no further appropriations by the Legislature, or any other body, to pay the salary and expenses incurred by the State Game and Fish Commissioner. Sec. 43, Art. 4, Constitution of Missouri; sec. 19, art. 10 of Constitution; Ex parte Lucas, 160 Mo. 218; State ex rel. v. Mason, 153 Mo. 59; Reynolds v. Taylor, 43 Ala. 420; Nichols v. Comptroller, 4 Stew. & P. 157 (Ala.); State v. Weston, 4 Neb. 216; Gilbert v. Moody, 25 Pac. 1092; San Francisco v. Dunn, 69 Cal. 73; State ex rel. v. Hickman, 9 Mont. 370; State ex rel. v. Hickman, 10 Mont. 497; State ex rel. v. Grimes, 7 Wash. 193; State ex rel. v. Eggers, 91 Pac. 819; State ex rel. v. Goodykoontz, 22 Colo. 507; Goodykoontz v. Acker, 19 Colo. 360; Henderson v. Monument, 129 Ind. 92; Campbell v. Monument, 115 Ind. 591; State ex rel. v. Maddox, 11 Mont. 555; State v. Bordelon, 6 La. Ann. 68; State ex rel. v. King, 108 Tenn. 271; Kendall v. Rayland, 13 Utah 226; Donnellan v. Nicholls, 1 Wyo. 61; State ex rel. v. Burdick, 4 Wyo. 272; State ex rel. v. Westerfield, 23 Nev. 468; Bryan v. Menefee, 95 Pac. 471; In re Groff, 21 Neb. 647; Leadville v. Matthews, 10 Colo. 125; Bishop v. Lambert, 114 Mich. 110; Proll v. Dunn, 80 Cal. 220; People ex rel. v. Brooks, 16 Cal. 11; Humbert v. Dunn, 84 Cal. 57; Carr v. State, 127 Ind. 204; Ristine v. State, 20 Ind. 204. (2) The power of appointment and removal of State Game and Fish Commissioner is vested in the Governor alone. The proviso at the conclusion

State ex rel. v. Gordon.

of Sec. 62, House Bill 1200, is therefore void, as the Legislature had no legal right to enact the same. Art. 3, Constitution of Missouri; State ex inf. v. Washburn, 167 Mo. 691; State ex rel. v. St. Louis, 216 Mo. 96; State ex rel. v. Judge, 47 La. 59; State ex rel. v. Dougerty, 13 Am. Rep. 131; State ex rel. v. Peelle, 8 L. R. A. 231; State ex rel. v. Carr, 13 L. R. A. 181; McCornick v. Pratt, 17 L. R. A. 248; Clayton v. Territory, 132 U. S. 642; People ex rel. v. Howland, 155 N. Y. 270; Reid v. Smoulter, 128 Pa. St. 324. (3) That part of Sec. 62, providing that no part of the ninety thousand dollars appropriated should be used while relator was in office, is illegal and void, but the remainder of the act can be upheld. If it was the duty of the Legislature to make an appropriation then it did so in setting apart the ninety thousand dollars to be used for the purpose of enforcing the game law of this State. The Legislature had no right to limit the use of this fund any more than it had the right to remove relator from office. The action of the General Assembly in respect to said proviso can, therefore, be treated as a nullity, and the balance of the act sustained, if it be held that an appropriation was necessary. State ex rel. v. Taylor, 224 Mo. 473; Gracy v. St. Louis, 213 Mo. 397; State ex rel. v. Corcoran, 206 Mo. 1; State ex rel. v. Comrs., 184 Mo. 134; State ex inf. v. Washburn, 167 Mo. 681; State ex rel. v. Walbridge, 153 Mo. 203; State ex rel. v. Field, 119 Mo. 612; Clayton v. Territory, 132 U. S. 642; State v. Carr, 28 N. E. 88; State ex rel. v. Carr, 13 L. R. A. 181; State ex rel. v. Westerfield, 49 Pac. 121. (4) The provision attached to Sec. 62, House Bill 1200, is not within the title to the appropriation bill, and is in direct conflict with Sec. 28, Art. 4, Constitution. State ex rel. v. County, 41 Mo. 40; State ex rel. v. Herrmann, 75 Mo. 341; State v. Persinger, 76 Mo. 346; State ex rel. v. Baker, 129 Mo. 486; Witzmann v. Railway, 131 Mo. 618; Henderson v. Koenig, 168 Mo. 370; State v. Coffee Co., 171 Mo. 634; State v. Fulks, 207 Mo. 206; State ex rel.

State ex rel. v. Gordon.

v. Turner, 210 Mo. 83; St. Louis v. Wortman, 213 Mo. 131.

Elliott W. Major, Attorney-General, and Charles G. Revelle, Assistant Attorney-General, for respondent

(1) The conditional appropriation made by the Legislature to the Game and Fish Department is presumed to be valid. The burden rests upon relator to prove it invalid beyond a doubt. Before the court can declare it invalid it must contravene some constitu tional provision. (a) Under the decisions of this honorable court, every presumption is indulged in favor of the validity of the act of the Legislature in making the conditional appropriation to the game department, and that presumption continues until its invalidity is made to appear beyond all doubt. State v. Douglass, 50 Mo. 597; State v. Thompson, 144 Mo. 314; State ex rel. v. Aloe, 152 Mo. 477; In re Hill, 200 Mo. 646; State v. Hope, 100 Mo. 347; State v. County, 102 Mo. 531; Murnane v. St. Louis, 123 Mo. 479; State v. Warner, 197 Mo. 650; State v. Layton, 160 Mo. 488. (b) It devolves upon the relator to establish the invalidity of the condition in the appropriation made by the General Assembly beyond a doubt. We undertake to say that the relator has in no way presented any reason or argument against the validity of the appropriation as made. State v. Ranson, 73 Mo. 78; State v. Laughlin, 75 Mo. 147; State y. Addington, 77 Mo. 110; Phillips v. Railroad, 86 Mo. 540. (c) When substantial doubt exists as to the duty whose performance it is sought to coerce, or as to the right or power of the officer to perform the duty, relief by mandamus will be withheld. State ex rel. v. Buhler, 90 Mo. 570; State ex rel. v. Bridge Co., 206 Mo. 133; State ex rel. v. Wilder, 211 Mo. 305; State ex rel. v. McIntosh, 205 Mo. 589. (d) It is immaterial what views this honorable court may en