Inasmuch as I do not concur in full with the opinion proposed in this proceeding, I shall present my views in this separate opinion. I concur in the conclusion of the opinion of Mr. Justice Carter, which declares that the temporary restraining order, granted by the Chief Justice, should be discharged and the permanent injunction sought should be refused. For this position, it behooves me to give my reasons.
At the session of 1931, a joint resolution was adopted to the effect that there be included in the General Appropriation Bill a sum sufficient to pay each member of the General Assembly the sum of $260.00, in addition to the sum of $400.00 fixed by previous Act of the Legislature as pay for members for each session. Vouchers for the said sums were issued by the Comptroller General, drawn on the State Treasurer, for their payment. Thereupon, the petitioner brought this proceeding for the purpose of having the Court permanently enjoin the State Treasurer from paying them.
On motion of petitioner's counsel, his Honor, the Chief Justice, issued a rule which required the State Treasurer to *Page 237 show cause why he should not be permanently enjoined from paying these vouchers, and at the same time enjoined him from doing so, pending the determination of the Court on the rule to show cause. Subsequently, this order was amended so as to require the petitioner to make as parties respondent: (1) Members of the Legislature, representing that class who uphold the constitutionality of the appropriation. (2) Members who deny the constitutionality of the appropriation. (3) Assignees, indorsees, or otherwise holders of said warrants, or checks of the State Treasurer. This was done. Returns were made by the State Treasurer and representatives of each of the said classes. As I shall discuss but one phase of the case, it is not material to enter into further detail of the facts. It may be said, however, that it appears from the return of the treasurer and others that before the rule to show cause and the restraining order were granted, some of the vouchers issued by the Comptroller General on the State Treasurer, had passed into the hands of third persons.
If it were conceded that the Act or Joint Resolution making this appropriation is unconstitutional, does it follow, therefore, that the prayer for injunction should be granted? I do not think so.
In proceedings of this nature, it is proper that all the conditions and circumstances appurtenant to and surrounding the situation be taken into consideration to the end that intelligent understanding prevail and exact justice be done. Let us, then, consider it from the standpoint of the equity of the situation.
At various times during the last twenty-five years members of the Legislature have voted themselves extra compensation under the guise of "expense money." There was objection raised in the Assembly and criticism by the public prints. Nevertheless, the custom was apparently acquiesced in by the public and all the departments of the government. So that the business public were lulled into a sense of security *Page 238 in dealing with and accepting the vouchers issued in pursuance of such legislation. No proceeding was instituted by any one to restrain the payment of the vouchers issued by the Comptroller General upon the State Treasurer for the payment of the extra compensation thus voted. Naturally, the public felt that it might deal with these vouchers as with any other negotiable paper current in the commercial and financial world.
Now it appears from the returns to the rule in this proceeding that before the order was issued restraining the Treasurer from paying the vouchers issued by the Comptroller General, some of them had passed into the hands of third persons; banks, the hotels, charitable institutions, and others. To enjoin the payment of these vouchers now in the hands of innocent holders for value, who had received them with no knowledge of any invalidity, holders who were probably satisfied that the credit and good faith of the State were their ample security and protection against loss, would, it seems to me, be most inequitable and unfair.
For years the General Assembly has voted to every department of the government extra money under the head of "expenses." It would be impossible to regain this money and put it back into the treasury. It would seem therefore a minor consideration in this case to restrain the payment of the State's checks duly issued by the State's fiscal officer, some of which are in the hands of third persons, who have given value for them in reliance upon the faith of the State.
For these reasons, I concur only in the result of the leading opinion.