Dissenting. — I find myself so completely out of accord with the majority of the court that a dissenting opinion will be necessary.
While the facts stated in the majority opinion are correct in most particulars, it may be well, in the interest of complete accuracy, to say that Robert Wallis did not present his claim to the head of the department in which he was employed, to wit, the bacteriological department of the health department, but that he did present it to, and it was certified to be correct by James H. Wallis, who was the head of the dairy, food and sanitary department, from the traveling expense fund of which the said claim for salary was paid, and that the said dairy, food and sanitary department is an entirely separate and distinct branch of the health department from the bacteriological department in which he was employed ; also that each of these subdepartments of said health department was given separate and distinct appropriations for its maintenance by chap. 193 of the Sess. Laws of 1913.
It is the contention of the county attorney of Ada county, who appeared for the state in this case, that there was no authority of law for the payment of said claim out of the *248dairy, food and sanitary department appropriation for services rendered in the bacteriological department of the health department, and, second, that it was improperly paid from the traveling expense fund of said dairy, food and sanitary department, since the payment was made for services rendered and was in the nature of a salary and could, by no stretch of the imagination, be included within an item of traveling expense, and that, therefore, the petitioner, an officer of this state charged with the safekeeping, transfer and disbursement of public moneys by issuing his warrant against said fund in payment of said claim appropriated $90 thereof without authority of law to the use of said Eobert Wallis.
An examination of said chap. 193, Sess. Laws 1913, pp. 643 and 644, will disclose the different funds appropriated by the legislature for the maintenance of the health department, and among them will be found to be the following:
State Dairy, Food and Sanitary Department.
Salaries ...............................$25,500
Traveling expenses ...................... 10,000.
General expenses ........................ 4,500
Total..............:...........$40,000
In order to fully understand the situation presented by the facts in this case it may be well to briefly refer to some fundamental principles of law.
In common with the other states of the Union, Idaho has adopted a form of government consisting of three co-ordinate branches, each supreme in its own particular sphere. Art. 2 of our oonstitution'is as follows:
“The powers of the government of this state are divided into three distinct departments; the legislative, executive and judicial, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to *249either of the others, except as in this constitution expressly directed or permitted.”
Sec. 13 of art. 7 of the constitution is as follows:
“No money shall be drawn from the treasury hut in pursuance of appropriations made by law.”
Counsel for the state has, for our guidance, cited a number of decisions defining the word “appropriation,” and it may be said that the following, in the light of all the authorities examined upon the subject, is a correct definition of the term:
“An appropriation, within the meaning of sec. 13, art. 7, of our constitution, is authority from the legislature, expressly given in legal form, to the proper officers to pay from the public moneys a specified sum, and no more, for a specified purpose, and no other. ’ ’
It follows that no money may lawfully be paid from the treasury except pursuant to and in accordance with an act of the legislature, expressly appropriating it to the specific purpose for which it is paid. (See Kingsbury v. Anderson, 5 Ida. 771, 51 Pac. 744; Jeffreys v. Huston, 23 Ida. 372, 129 Pac. 1065; McPherson v. Huston, 24 Ida. 21, 132 Pac. 107; Falk v. Huston, 25 Ida. 26, 135 Pac. 745.)
Conforming to the duty enjoined upon it and pursuant to the authority vested in it, and in it alone, by the constitution, the twelfth session of the Idaho legislature, by said chap. 193, made appropriation of public moneys of the state of Idaho for the maintenance of the dairy, food and sanitary department as above stated. In -order to safeguard the moneys of the state separate funds were created and, as above indicated, for the dairy, food and sanitary department there were created three funds, being a salary fund, traveling expense fund and a fund for general expenses. By reason of the peculiar duties devolving upon said department it must be manifest that, while the legislature could compute with accuracy the amount of money necessary to be appropriated to pay salaries, it could not accurately estimate the amount necessary to be paid for traveling expenses during the two years for which the appropriation was made. No man could *250foresee the contingencies that might arise requiring the commissioner and his deputies to make trips over the state in the discharge of their duties; therefore, the legislature could and did appropriate just sufficient money, and no more, to pay salaries, but made an exceedingly liberal appropriation for the payment of traveling expenses so as to meet such emergencies as might or might not arise during the ensuing two years.
It will be observed that with a view to safeguarding the funds of the state so appropriated, the necessity for the expenditure of which might or might not arise, the appropriation was made in the following language:
‘ ‘ That the following sums of money, or so much thereof as may he necessary, are hereby appropriated for the payment of salaries and compensation of the state officers and employees of the state of Idaho and the general expenses of the state government, and for the support and maintenance of the several state institutions for the period commencing on the first Monday in January, 1913, and ending on the first Monday of January, 1915.. The sums hereinafter appropriated shall be paid out by the state treasurer only upon warrants drawn hy the state auditor against the general fund of the state. That the amounts specifically appropriated for stated purposes by this act constitute the only amount appropriated, and to be used for any purposes during the years 1913-14.” (Sess. Laws 1913, p. 638.)
Under our system of finance any moneys appropriated hy the legislature for a specific purpose and not used for that purpose, at the end of the time for which it was appropriated, automatically lapses back and again becomes a part of the unappropriated public moneys of Idaho. Any portion of the $10,000 appropriated as a traveling expense fund for the use of the dairy, food and sanitary department during the biennial period of 1913-14, which was not used for that purpose and which was not misappropriated by the public officials, on the first Monday of January, 1915, became again unappropriated public moneys of the state. It must be apparent, then, that the acts of the petitioner here in issuing his *251warrant in favor of Bobert Wallis against the traveling expense fund of the dairy, food and sanitary department, in payment of a salary claim for services rendered in the bacteriological laboratory of the board of health, thereby procuring to be expended moneys from said fund for a purpose other than that for which the fund was created by the legislature, with the result that the moneys represented thereby did not revert to the general fund, amounted to a misappropriation of the public moneys of Idaho.
It has been stated in the majority opinion in this case that “the state lost no money, but that an honest, valid obligation, lawfully incurred, was paid by the issuance of the warrant in question.” While it is entirely immaterial whether the state lost money or not, since that is not one of the elements of the crime charged, I do not so find. An examination of said chap. 193 convinces me to the contrary. The only appropriations of moneys made for the bacteriological department are: “Maintenance of laboratory, $2,000. Bacteriologist, $4,800,” and I am taking it for granted that the words “maintenance of laboratory” refer to the bacteriological laboratory.
It is assumed that if the legislature had intended that Bobert Wallis, or anyone else except the bacteriologist, was to be employed in the laboratory at the expense of the state, it would have made appropriation of money for the payment of his salary; no such appropriation having been made, the following language quoted from sec. 6 of said chap. 193, becomes strikingly applicable: “That no officer, employee, or state board of this state, or board of regents, or board of trustees of any institution in this state, or any member, employee or agent thereof, shall enter into any contract or agreement creating any expense, or incurring any liability, moral, legal or otherwise, or at all in excess of the appropriations made by law for the specific purposes for which such expenditure is to be made, or liability incurred, unless written authority to make such expenditure or to incur such liability has been previously obtained from the state board of examiners of the state of Idaho. Any person or persons violating the provi*252sions of this act shall be deemed guilty of a misdemeanor and shall be subject to removal from the position held, by order of the Governor of the state of Idaho. Any indebtedness attempted to be created against the state in violation of the provisions of this act or any indebtedness attempted to be created against the state in excess of the appropriations provided for in any act shall be void.”
It is not contended that any authority to employ Robert Wallis in the bacteriological laboratory was procured from the state board of examiners, and since no money was appropriated by the legislature with which to pay for his services therein, his claim against the state was1 void and was not ‘ ‘ an honest, valid obligation, lawfully incurred, ’ ’ and when it was paid by the issuance of the warrant in question the state lost the money represented by it, the opinion of the majority of this court to the contrary notwithstanding.
The statute, for violation of which the indictment here under consideration was found, is as quoted in the majority opinion, but I am unable to agree that any of the subdivisions of said sec. 6975 are to be construed by any other rule of statutory interpretation than that applicable to the other subdivisions. It is said in the majority opinion that some acts mentioned in said section are clearly mala prohibita, and, as appears to my mind, all of the acts mentioned in said section are mala prohibita.
In the case of State v. Browne, 4 Ida. 723, 44 Pac. 552, cited in the majority opinion, the defendants were charged with a violation of sec. 6975, Rev. Codes, substantially in the language of subdivision 4 thereof, just as the petitioner is charged with a violation of said section substantially in the language of subdivision 1 thereof. In order that there may be no misunderstanding about that opinion and its correct application to this ease, the part of it which refers to sec. 6975 of the Codes will be quoted at length, adopted and made a part of this dissenting opinion. It is as follows:
“The next, and we believe the only other, question raised by this record, is in regard to the following instruction: ‘You must go further, and find, from the evidence, beyond all *253reasonable doubt, that in making said contract, and in making and receiving said deposit, the defendant and Gilstrap had a corrupt, fraudulent and felonious intent to cheat and defraud Latah county out of its money or property, or some part thereof.’ That the district court, in giving this instruction, entirely lost sight, not only of the limitation which both the constitution and the laws placed upon judicial functions, but overlooked or abrogated both the letter and the clear purpose of the statute upon which the indictment was based, is apparent. The statute for the violation of which defendant was indicted makes it a penal offense for any of the officers enumerated therein to deposit any public moneys, with the receipt, safekeeping, transfer or disbursement of which such officer is charged, ‘in any bank, or with any banker or other person, otherwise than on special deposit.’ Under the construction given by the district court to this statute in the instruction above cited, the statute is to all intents and purposes nullified both in letter and in spirit. It may be assumed that, at the time the defendants entered into the contract, they, nor either of them, had any intention of corruptly, fraudulently or feloniously cheating, wronging, or defrauding Latah county out of its money or property, or any part thereof. Nor was it essential or necessary to the establishment of their guilt under the indictment, that any such intent on their part should either be alleged, proven or found by the jury. No such language as that contained in the instruction is found in the statute, nor is any such intent made by statute, nor can it be made, by any recognized legal rules of construction, an essential element of the crime defined in the statute. The statute is preventive. It contains ten subdivisions, specifically defining the acts which officers charged with the care and disbursement of the public funds are prohibited from doing, and the doing of either by such officer is punishable as a felony. If the obligations imposed upon this class of officers by the statute are onerous, or not in accordance with what business men conceive to be the best interest of the public, they should secure its repeal, or else care should be taken not to bring their consideration before the courts. It *254is the duty of the court to 'construe the law as it is, not as some would like to have it. To protect the revenues of the state, certain laws have been enacted. These laws are preventive in their character, but they are none the less obligatory. If the courts can assume to say that the evil which the law was intended to prevent was never contemplated by the accused, when he violated the express provisions of the law, and therefore he is not amenable, we might as well do away with the legislative branch of the government, and rely entirely upon ‘judge-made law.’ It should seem as though the legislature of our state had done their full duty in enacting statutes for the protection of the revenues of the state, and yet defalcations and misfeasance of public officers would almost appear to be the rule. If it were exactly known what percentage of our taxation arises from the defalcation of officers and the misappropriation of the public funds, and to what extent the public interest is sacrificed to private greed, it might not he so difficult to account for the ‘hard times’ and high taxes of which all are complaining.”
The majority of the court has not favored us with an;? reason, and it may be said with confidence that none exists, why one rule of interpretation should be applied to said see. 6975 when the act complained of is a violation of subdivision 4, and consisted of placing moneys of a county on general deposit in a bank, and another rule of interpretation should be used when the act complained of is a violation of subdivision 1 of said section and consisted of misappropriating the moneys of the state in payment of a void claim for salary out of the fund created by law for the payment of traveling expenses to be incurred in a department other'than the one in which the claimant was employed.
The majority opinion decides that the state auditor is not an officer charged with the receipt, safekeeping, transfer or disbursement of public moneys, and is, therefore, incapable of committing the crime charged in the indictment.
It will be observed that the statute under consideration expressly prohibits ‘‘each officer of this state, or of .any county, city, town, or district of this state, and every other *255person charged with the receipt, safekeeping, transfer or disbursement of public moneys” from doing the acts in said section mentioned. It may be well contended that any officer of this state, or any county, city, town or district of this state, whether charged with the receipt, safekeeping, transfer or disbursement of public moneys or not, and every other person who is charged with any or all of said duties may commit the crime described in said section, and the plain language of the statute seems to fully justify the construction. But assuming that only those officers who are charged with the receipt, safekeeping, transfer or disbursement of public moneys may violate this law, it appears to my mind to be perfectly clear that the state auditor is one of the officers so contemplated.
By the act of the twelfth session of the legislature, Sess. Laws 1913, chap. 15, pp. 54 to 58, from which the majority of the court quotes in support of its conclusion, it is made the duty of the state auditor to certify with respect to claims against the state submitted to the state board of examiners “that the account is in proper form, that the totals given thereon are correct, that receipted vouchers, showing 'the payment of all items for which reimbursement is asked are submitted therewith, and that there are funds in the state treasury out of which the same may lawfully be paid. ’’ Upon the claim of Robert Wallis here under consideration, which shows upon its face that it was a claim for services rendered while said Wallis was employed in the bacteriological laboratory, the following indorsement was made by the petitioner as state auditor: “I certify that the above account has been audited and found correct. That there is authority of law for its payment, and that there is sufficient money in the proper fund for its payment,” and then, after said claim had been passed upon by the state board of examiners, he drew his warrant upon the traveling expense fund of the state dairy, food and sanitary department in payment of the claim.
It is perfectly clear that no money may legally be disbursed from the public treasury except upon the presentation of the auditor’s warrant and, as has been suggested by counsel for *256the state in this case, the warrant of the auditor, in the disbursement of public funds, is to be considered in a like sense and light as the check of an individual in the disbursement of his private funds from a bank. That the state auditor is an official charged with the disbursement of public funds and was so intended to be by the legislature, is made entirely clear by sec. 145i of said chap. 15, Sess. Laws 1913, as follows: “For the proper performance of the duties herein enjoined upon the state auditor, as secretary of the state board of examiners, or for any unlawful or irregular payment of any account submitted against the state, the state auditor is hereby made responsible upon his official bond. ’ ’
It will be observed that the majority of the court also quotes this sectiqn in support of its conclusion, and suggests that a civil remedy has been provided for the wrongful disbursement of public funds. The answer to such contention suggests itself. While a civil remedy has been thus provided, it is not an exclusive remedy any more than is the civil remedy by way of suit upon the bond of any public officer for embezzlement of public funds an exclusive remedy.
Said sec. 145i does, however, provide which officer’s boxxd shall be liable for any unlawful or irregular payment of any account submitted against the state, and that officer is the state' auditor. To contend that the state auditor is not a disbursing officer, but that his bond shall be liable for an unlawful or irregular disbursement of public moneys, is inconsistent.
The majority opinion a little further on states the truth of the matter when it says “he is but one of several whose combined acts are absolutely necessary to ultimately bring about a disbursement of the public moneys.” Being one of the persons whose acts “are absolutely necessary to ultimately bring about the disbursement of public moneys,” he is one of the persons contemplated by sec. 6975, wherein it says: “Every officer of this state .... charged with the ... . disbursement of public moneys who .... without authority of law, appropriates the same or any portion thereof to ... . the use of another .... is punishable by imprisonment in the *257state prison for not less than one nor more than ten years, and is disqualified for holding any office in this state. ’ ’
The conclusion reached by the court that “sec. 6975 Rev. Codes, was aimed at the crime of embezzlement and against a particular class of persons who fraudulently appropriate to their own use, or to the use of others, not in the due and lawful execution of their trust, any property which comes into their possession or under their control by virtue of the official position which they hold or in violation of a trust,” is not sound. There are ten subdivisions of said section, not one of which makes any reference to the crime of embezzlement or fraudulent appropriation of property. Sec. 7065, Rev. Codes, defines embezzlement as follows: ‘ ‘ Embezzlement is the fraudulent appropriation of property by a person to whom it has been entrusted.” Sec. 7066 relates to embezzlement by public and corporate officers and is as follows:
“Every officer of this state, or of any county, city, or other municipal corporation or subdivision thereof, and every deputy, clerk, or servant of any such officer, and every officer, director, trustee, clerk, servant, or agent of any association, society, or corporation (public or private), who fraudulently appropriates to any use or purpose not in the due and lawful execution of his trust, any property which he has in his possession or under his control by virtue of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, is guilty of embezzlement.”
It is impossible to imagine what necessity could have existed for the enactment of sec. 6975, if it was intended as an embezzlement statute, in view of the provisions of see. 7066 above quoted. It is impossible to imagine, if the legislature intended sec. 6975 to be a law against the crime of embezzlement, why the word “fraudulent” was not used in order to bring the acts therein declared against within the definition of embezzlement as stated in see. 7065. The correct conclusion to be reached is that said sec. 6975 was intended to mean exactly what it says, and was enacted for the purpose of the better protection of public moneys and to keep them from be*258ing carelessly or dishonestly dealt with under circumstances not amounting to embezzlement.
It is not to be understood that said section may be violated accidently, inadvertently or innocently, as is suggested by the language of the majority opinion, but if violated at all it must be done wilfully, unlawfully and feloniously, as charged in the indictment in this case. Sec. 6975 must be read and construed in the light of see. 6314, Rev. Codes, which is as follows: “In every crime or public offense there must exist a union, or joint operation, of act and intent, or criminal negligence. ’ ’
Had this ease been permitted to go to trial to a jury there can be no doubt that if the state failed to prove the petitioner guilty of having knowingly, wilfully and intentionally committed the acts complained of or that their commission was due to his criminal negligence, under a proper instruction a jury would have promptly returned a verdict of not guilty, and it would be the duty of this court to reverse a judgment of conviction unless it appeared that the acts charged in the indictment were so knowingly, voluntarily and purposely or negligently committed.
It must be borne in mind, however, that we are passing upon the sufficiency of an indictment which charges the acts to have been wilfully, unlawfully and feloniously committed. I am of the opinion said indictment charges the petitioner with the commission of a crime and that his petition for a writ of habeas corpus should be denied.