86 Miss. 769 | Miss. | 1905
delivered the opinion of the court.
On July T, 1896, pursuant to an act of the legislature approved March 18, 1896, there were sold bonds of the state of Mississippi of the denomination of $500 each, bearing interest at 5 per cent per annum, payable semiannually, to the amount of $400,000. These bonds on their face were to become due and payable on the 1st day of July, 1906, and were designated as “Series B.” On the 4th day of June, 1901, Grov. Longino issued his proclamation, giving notice to all holders of the said bonds to present the same on July 1, 1901, to the treasurer of-the state of Mississippi, at his office in the capitel in the city
The principal question arising.upon the record in this case, and one upon which both parties thereto invite a deliverance from this court, is whether or not the governor had authority of law to call in the bonds of series B for payment on July 1, 1901. It is contended on behalf of the state that authority for this act of the governor is found in sec. 7, ch. 34, p. 30, Acts 1896, the same being the act under which the said bonds were issued. It reads as follows: “Sec. 7. The faith and credit of the state of Mississippi are hereby pledged to the punctual payment of both principal and interest of said bonds as they mature, and to that end the legislature shall annually levy a tax on all the taxable property of the state for the payment of
In the light of this great dominating principle of republican government, we feel constrained to hold that the option of the state in the instant case fell naturally and peculiarly within the sphere of legislative, rather than of executive, discretion. We do not deny, of course, that the legislature might, in its
But even if it should be conceded that the exercise of the state’s option was an executive, rather than a legislative, function, or, this being denied, if it be conceded that the legislature intended, and, in effect, commanded, that the governor exercise the state’s option, still, in our judgment, the governor was without power to order the bonds in question paid, for thé simple reason that the'legislature had made no appropriation for their payment. Such an order, under such cir- , cumstances, was virtually an executive appropriation of thej money required to pay the bonds. The proposition so stated '< is its own refutation. Legislative control over the treasury, which we recognize as the supreme legislativé prerogative, involves the necessity of legislative appropriation in order to the 1 payment of moneys out of the treasury. This is a fundamental-' principle of constitutional law. It is written in express terms or by necessary implication in the constitutions of all free states. Clause 7, sec. 9, art. 1, of the constitution of the United States declares that “no money shall be drawn from the treasury but in consequence of appropriations made by law.” The constitution of Mississippi of 1869 declared that “no money shall be drawn from the treasury, except on appropriations made by law.” Vide sec. 26, art. 4. The constitution of 1832, art 7, sec. 7, declared that “no money shall be drawn from the treasury but in consequence of an appropriation m-ade by law;” and the same provision in the same language is found in the constitution of 1817, art. 6, sec. 8, under which Mississippi was admitted to the federal union. We cannot be persuaded that the omission from the .constitution of 1890 of a similar express provision indicates a purpose upon the part of the great jurists and publicists who framed that instrument to abrogate this essential principle of constitutional government. This fiscal scheme which they provided and ordained negatives the idea. By sec. 63 of the constitution it
It cannot be maintained that the act which provided for the issuance of the bonds and reserved to the state an option to pay them at the expiration of five years was in itself an appropriation of money to pay the bonds at the end of five years. The creation of a debt is an entirely different thing from an appropriation for its payment. But even if the act had amounted to an appropriation, it must necessarily have failed, under sec. 64, upon the expiration of six months after the meeting of the legislature at its next regular session. A view almost identical with the one now considered was pressed upon this court by ■counsel widely famed for their great learning and power in the somewhat recent case of State of Mississippi v. Cole, generally known as the “Industrial Institute and College Case.” See 81 Miss., 174 (32 South. Rep., 314). It was insisted with great cogency and persuasiveness of argument that sec. 212 of the constitution, which provides that “the rate of interest on the fund known as the Chickasaw school fund, and other trust funds for educational purposes for which the state is responsible, shall be fixed, and remain as long as said funds are held by the state, at six per centum per annum from and after the close of the fiscal year A.D. 1891, and the distribution of said interest shall be made semiannually on the first days of May and November of each year,” was in itself an appropriation, self-operative and altogether sufficient, of money for the payment of interest on a debt solemnly declared by the constitution itself, which directed that the distribution of. interest thereon should be made semiannually on the first days of May and Movember of each year. Surely, if there could ever be a case in which the creation or declaration of a debt would operate as an appropriation for its payment, that were the case. And yet appellant’s contention as to the appropriations by inference or intendment was repudiated by this court in a very clear and strong opinion delivered-by that learned and righteous judge,
We will not be deterred from declaring these principles because of any ’administrative construction and practice to the contrary. If such practice has grown up under a mistaken conception of the law, it should be at once abandoned. No false construction of the constitution by any administrative department, however long continued, can ever ripen into law. Nor do we share the fears of the learned counsel for the state, who anticipates appalling consequences from a decision adverse to the state. The creditors whose bonds, were paid on July 1, 1901, have suffered no wrong. Their presentation of them for payment was, in law, purely voluntary. By accepting payment and surrendering the state’s obligations, they absolved the state from all further liability, both for principal and interest. The treasurer who made the payment cannot be injured. Should the state demand and enforce from him payment into the treasury of the money illegally paid upon the bonds, he would be immediately subrogated to the rights of the creditors whose bonds had been paid. The state has not suffered, and cannot suffer, so far as we are able to see, any injurious consequences from a declaration- by this court that the action of the governor was unwarranted and void. It has saved thereby some thou
Reversed and remanded.