(concurring). Speaking for myself only, I think that the motion for rehearing should be overruled, for the reasons stated in my concurring opinion in this case, filed February 20, 1917. 191 S. W. 1138. Having carefully considered said motion during the preparation of said opinion, it was not my purpose to write again in the case; but several features of the opinion of this date by Mr. Justice YANTIS, dissenting from the order of this court overruling said motion, impel me to say what' follows: Because I did not consider section 48 of article 3 of our state Constitution applicable, I did not, in my former opinion, discuss that section ; but, now that one member of this court has pointed to section 48, alone, as affording constitutional sanction for such appropriations and for such expenses, I feel called upon to say now, specifically, that in that section I can find nothing whatever which conflicts with any of my views or conclusions as set out in my said former opinion.
Section 48 relates, primarily, to the raising of state revenues, and only in a secondary and inferential way does it relate to the making of appropriations or to the incurring: or payment of expenses of any kind. The making of such appropriations from the state treasury and the manner of incurring expenses upon the faith and credit of the state, and payment thereof, are treated, specifically and directly, by other sections of our Constitution, as pointed out by me in said former opinion, and to such other sections we must turn to find express restrictions upon the power of the Legislature to make such appropriations and upon the power to incur or pay such expenses. It is but a platitude to say that those express and specific and unambiguous restrictions, as far as they go, . control all implications of section 48 as to such appropriations and such expenses. Consequently, the right of the Legislature to appropriate revenues -‘sufficient for the economical administration of the government” and for the payment of “all officers, agents, and employes of the state government, and all incidental expenses connected therewith” which right is recognized, by implication, in •section 48, clearly is subordinate to, and, very plainly, is controlled by, such other more direct and more specific constitutional provisions, such, for instance, as section 5. of article 4, which carries a very obvious limitation upon not merely the “salary,” but upon the entire “compensation,” of the Governor, and section 44 of article 3, which certainly inhibits all expenditures not provided for “by pre-existing law,” all as pointed out in my former opinion.
*140Moreover, the right of the Legislature to make appropriations to cover whatever properly and fairly may be considered and treated as “incidentals,” as that word stands in section 48, which right, as hereinabove indicated, is declared only inferentially, by the section, is, in the present case, a purely abstract and merely academic matter, because none of the appropriations or expenses in controversy falls within such designated class, as being “incidental” to the Govern- or’s official duties, and none of said expenses was authorized by any valid pre-existing law. That much is clear as matters of law. My views upon those features of this case are set out at length in said former opinion. X refer to them here solely for the purpose of developing, very briefly, my idea of the meaning and legal effect of section 48, which was not there discussed.
With the exception of his views as to section 48 of article 3, said dissenting opinion is, in substance, but little more than a reflex of said motion, and I will not attempt to answer it in detail; however, I trust that I may be pardoned for the following observations:
A sufficient reason for voting down in the constitutional convention the quoted resolution denying to the Governor “fees or perquisites or extra compensation” probably was that, already, the subject had been exhausted in section 5 of Article 4. Evidently said dissenting opinion was not then anticipated. The logic of my distinguished dissenting Associate leads, inevitably, to the conclusion that the Legislature is entirely free to provide by law for the Governor “fees” and “perquisites,” if not “extra compensation,” in the widest possible range and in unlimited amounts, and is also free to make like unrestricted appropriations for any and all other officers, agents, and employes of the state government. At that view of the legal effect of our Constitution its framers doubtless would now stand aghast. I do. Upon that point, as related to appropriations and expenses for the Governor, such as those here in controversy, a sidelight is found in section 22 of article 4 of our Constitution which provides, with reference to the Attorney General:
“He shall receive for his services an annual salary of two thousand dollars, and no more, besides such fees as may be prescribed by law: Provided, that the fees which he may receive shall not amount to more than two thousand dollars annually.”
The contemporaneous omission from section 5 of article 4, prescribing the “compensation” of the Governor, of any provision for “fees” for the Chief Executive, is very significant, and indicates, unmistakably and sufficiently, an intent to prohibit the Legislature from granting or allowing to the Govern- or any such fees, just as the provision in section 5 of article 4 that he “shall have the use and occupation of the Governor’s mansion, fixtures and furniture” indicates an intent that he shall not be allowed any other “perquisites” whatever.'
I decline to be bound by the decision of the Supreme Court of Nebraska in State v. Sheldon, 78 Neb. 552, 111 N. W. 372, because I regard it as clearly erroneous, and the same remark applies to the decision of the Pennsylvania Supreme Court in Russ v. Commonwealth, 210 Pa. 544, 60 Atl. 169, 1 L. R. A. (N. S.) 409, 105 Am. St. Rep. 825. In the matter of appropriations the Constitution of Pennsylvania is far less restrictive than ours.
The quoted provision of the Constitution of the United States (Const, art. 2, § 11 relative to the “compensation” of the President fixes no limit in the amount thereof; and if the stated appropriations thereunder have ever been tested in the courts, that fact has not been pointed out.
The actions of the district court, and of the Court of Civil Appeals, and of the Supreme Court, in this case, involve no judicial review of, or control, or attempt or purpose to control, executive or legislative discretion in any matter in which those departments are either authorized or permitted by our Constitution to act, to the extent of incurring and paying the expenses in controversy, and such judicial action does not impugn the motives of any member of either of those departments. Such judicial action is entirely consistent with the usual presumption that all members of those departments who have acted in the premises did so in good faith and upon the belief that said appropriations and expenses were not obnoxious to our Constitution, but valid in all respects, just as the dissenting member of this court now acts and believes. The issues presented in this case do not involve the motives of any one; they are questions of law, arising upon uncontroverted facts, tested by our state Constitution. In any event the issues should remain unclouded.