The afterpiece to the prevailing opinion, through the medium of quotation, adopts language from Com. ex rel. Woodruff v. Lewis,282 Pa. 306, 127 A. 828, which, if confined to the narrow limits set by the quotation marks, may result in a misconception of the holding of the Pennsylvania Court. Every part of an opinion must be read and construed in the light of its context and the law and facts before the Court. In that case it was held that the statute under consideration, which required state departments to submit to the Attorney General "any legal difficulty or dispute" and made it the duty of an inquiring department to follow the opinion of the Attorney General, did not apply to a question involving the constitutionality of a statute. An exception was thus made of the very question which we have before us. In so deciding the court said:
"It is further contended that the making of this exception clearly points to the error of the judgment, since a question regarding the constitutionality of a statute is at least as much a `legal difficulty or dispute' as one regarding its meaning. In a government without a written Constitution, it would be difficult to answer the logic of this argument. It was considered at great length by the present Chief Justice, when sitting in the lower court, in Com. ex rel. Atty. Gen. v. Mathues, 210 Pa. 372, 380 to 390, 59 A. 961, and his reasoning, which led him to the same conclusion as that reached by the court below in the instant case, has never been answered. Nor can it be; for, by article 7 of the Constitution, appellant was required to, and of course did, `solemnly swear (or affirm) that I will support, obey and defend the Constitution of the United States, and the Constitution of this Commonwealth.' This, therefore, is his constitutional duty, overthrowing any antagonistic obligation attempted to be imposed by legislation. If we could find an *Page 281 interpretation for the Administrative Code which would require an executive officer to do an unconstitutional thing, which we cannot see in it, however, we would be compelled to so interpret it, if possible, as to exclude that result (Carr v. Ætna Acci. Liability Co. 263 Pa. 87, 106 A. 107); happily its reasonable construction does this."
The majority of this Court also quotes from State ex rel. Atlantic Coast Line R. Co. v. Board of Equalizers, 84 Fla. 592, 94 So 681, 30 A.L.R. 362. The Supreme Court of Florida subsequently distinguished that case from those involving the disbursement of public funds.
In State ex rel. Juvenal v. Neville, 123 Fla. 745, 167 So. 650, it was held that the constitutionality of an act fixing compensation for county commissioners was subject to attack by an officer who, by the terms of the act, was required to pay out public funds. The Court said:
"It is contended that the respondents could not question the validity of the 1927 act and that as officers they are bound to comply with it until it has been held invalid by a court of competent jurisdiction. This contention is based upon the opinion and judgment in the cases of State ex rel. Atlantic Coast Line R. Co. v. Board of Equalizers, 84 Fla. 592, 94 So. 681, 30 A.L.R. 362, and State ex rel. Howarth v. Jordan, 105 Fla. 322, 140 So. 908. Neither of these cases is applicable where the officer contesting the validity of the act is by the terms of the act required to pay out public funds. In such cases the officer has an interest in the subject-matter which will warrant his appealing to the courts to determine whether or not the act questioned is a constitutional provision requiring him to pay out public money."
In State ex rel. Harrell v. Cone, 130 Fla. 158, 177 So. 854, it was held that the State Comptroller could challenge the constitutionality of an act providing for the disbursement of public funds if he entertained a grave doubt as to the validity of the act. The Court said that the case fell within the rule thus stated:
". . . if an act requires a ministerial officer to perform *Page 282 duties particularly affecting him personally, as where he will violate his oath of office if he performs them, or where he ischarged with the control and disbursement of public funds, his official capacity gives him such an interest in the matter that he may challenge the validity of the act in mandamus." (Italics supplied.)
In view of the discussion of the diminution of the authority of the State Auditor through the creation of a State Auditing Board, I call attention to the fact that payments made to the members of the legislature under House Bill 84 (Ch. 72, Sess Laws ND 1945) are not passed upon by the State Auditing Board. The act provides that the sums paid members of the legislature thereunder "shall be paid in the same manner as the regular per diem of the members of the legislative assembly is paid." That per diem is paid upon warrants issued by the State Auditor without submission to the State Auditing Board. It is thus apparent that the State Auditor does not share with the State Auditing Board any responsibility for issuing warrants for the money involved in this suit.
I adhere to my former dissent.
BURR, J., concurs.