It is not doubted that the Legislature has power to appropriate money out of the state treasury in discharge of a legal or moral obligation of the state, though the duty or obligation runs to a private individual or corporation; but that is not the question presented on this record.
The question here is: Is the act of the Legislature here under consideration a special law as contradistinguished from ageneral law, within the meaning of section 106 of the Constitution, which provides that: "No special, private or local law shall be passed on any subject not enumerated in section 104 of the Constitution * * * unless notice of theintention to apply therefor shall have been published, without cost to the State, in the county or counties where the matteror thing to be affected may be situated," etc. (Italics supplied.)
While it must be conceded that the act in question is a public act because it affects the public treasury, nevertheless it is too clear for argument that it is a special act, making aspecial appropriation to a special individual to meet a specialmoral obligation of the state.
The judicial decisions on the question, wherever it has arisen, with a single exception, agree in holding such acts special laws. Mount v. State, 90 Ind. 29, 46 Am. Rep. 192; Merchants' Union Barb Wire Co. v. Brown, 64 Iowa, 275,20 N.W. 434, 435; McSurely v. McGrew, 140 Iowa, 168, 118 N.W. 415, 420, 132 Am. St. Rep. 248; Sandel v. State, 115 S.C. 168,104 S.E. 567, 13 A.L.R. 1268; Woodall v. Darst, 71 W. Va. 350,77 S.E. 264, 80 S.E. 367, 44 L.R.A. (N.S.) 83, Ann. Cas. 1914B, 1278; Fairfield v. Huntington, 23 Ariz. 528, 205 P. 814, 22 A.L.R. 1438; State of Wyoming ex rel. McPherren v. Vincent Carter, State Auditor, 30 Wyo. 22, 215 P. 477, 28 A.L.R. 1089.
In Mount v. State, supra, it was observed: "The granting of relief to individual claimants is not within the provision of our Constitution, which prohibits the enactment of special laws. Each claim stands on its own *Page 523 merits; a general law could not be made applicable, and when general laws are not applicable special ones may be enacted. * * * A law requiring reimbursement to an officer * * * is an act granting special relief in a particular case."
In the case of Merchants' Union Barb Wire Co. v. Brown, supra, it appears that the Legislature had appropriated $5,000 to aid in the litigation of certain suits pending. The court, speaking of the constitutional provision similar to ours prohibiting special legislation in certain cases, said:
"We think the subject-matter of the legislation in question is such that a general law cannot be made applicable. The act in question is what, in legislative parlance, is denominated an appropriation act. Such acts are, in their very natural (nature) local and special, as distinguished from general laws. There may be a question whether, under the constitution, there is any legislative power to make the appropriation, but it seems to us there can be no question, if any appropriation is authorized, or rather not forbidden, by the constitution, it must, of necessity, be made by a special act of the Legislature."
In McSurely v. McGrew, supra, the court said:
"Again it is argued that it confers a special benefit or immunity upon a particular individual, and is therefore invalid. This proposition is fully answered in State v. Squires, 26 Iowa, 344. It is not to be assumed that there were other county treasurers in the same situation as McGrew. A general law could not, therefore, be made applicable, for the situation disclosed a novel and most unusual state of facts. The act in question is not bad because special in character. A law, making an appropriation to a private individual or corporation, is not and cannot be made general, and yet it is good. Merchants' Union Barb Wire Co. v. Brown, supra."
In Holt v. City of Birmingham, 111 Ala. 369, 19 So. 735, 736, it was observed:
"The terms 'general' and 'public' law are frequently used synonymously, but they are not the equivalent of each other. Every general law is necessarily a public law, but every public law, as defined, is not a general law. A general law, as used in our constitution, is a law which operates throughout the state, alike upon all the people or all of a class. The law authorizing the removal or the disabilities of coverture, or of infancy by the courts, are general laws, though applying only to married women and to minors. Any law affecting the public within the limits of the county or community would be a public law, though not a general law, within the meaning of our constitution. The effect of a statute, more than its wording or phraseology, must determine its character as a public, general, special, or local statute."
Section 110 of the Constitution defines a special or private law within the meaning of the Constitution as "one whichapplies to an individual, association or corporation," as contradistinguished from a law that applies to all, or to all of a class. (Italics applied.) 25 R. C. L. 813, § 65.
I find nothing in the provisions of section 71 of the Constitution that, "All other appropriations shall be made by separate bills, each embracing but one subject," to save the act in question from being declared a special law. While it may be conceded that bills making appropriations to public institutions maintained by the state would be general laws, yet where the appropriation is limited to some special private individual, association, or corporation, I see no escape from the conclusion that it is a special law, though it may be a public one.
Nor is there anything in the contention that it is impossible to comply with the provisions of section 106, which provides that notice of the intention to apply for the passage of a special law "shall have been published, without cost to the state, in the county or counties where the matter or thing tobe affected may be situated." (Italics supplied.)
The matter or thing, of public interest, to be affected is the state treasury situated in the county of Montgomery, where the public officials who are supposed to guard the public treasury are required to be, and if the subject of the proposed appropriation bill is unwarranted, protest against its passage may be made and brought to the special attention of the members of the Legislature.
For these reasons I cannot concur in the majority opinion, and therefore respectfully dissent. *Page 524