dissenting. 1. I believe it is conceded that the law term “hold” ordinarily refers to the actual possession of property by lawful title, or the being invested with the legal right to have or claim such possession. 15 Am. & Eng. Ene. L. (2d ed.) 510. The constitution, art. 7, sec. 13, par. 1 (Civil Code, § 5900), provides that the proceeds of the sale of the Western and Atlantic, Macon and Brunswick, or other railroads held by the State, and any other property owned by the State, whenever the General Assembly may authorize the sale of the whole or any part thereof, shall be applied to the payment of the bonded debt of the State, and shall not be used for any other purpose whatever, so long as the State has any existmg bonded debt. A very important question involved in the decision of the present case is whether that provision of the constitution was intended to include any railroad or other public property that might subsequently be acquired by the State, or contemplated only such public property as was owned by it at the time of the adoption of the constitution. In other words, did the convention intend that that section should be prospective in its Operation % The legal construction of language creatmg a lien, pledge, or mortgage upon property is that it can only refer to property 'wMch was in existence and owned by the maker *673of the instrument at the time of its execution. The Civil Code, § 2723, declares that a mortgage “may embrace all property in possession or to which the mortgagor has the right of possession at the time, or may cover a stock of goods or other things in bulk but changing in specifics.” The following section declares that such a mortgage must clearly indicate the creation of a lien, specify the debt to secure which it is given, and the property upon which it is to take effect. As a general rule of law, when one makes a contract touching the sale, mortgage, or pledge of his property, the instrument refers only to such property as he owns at the time of its execution. I do not mean to say that section 5900 of the Civil Code creates a mortgage against the State in favor of its bondholders therein mentioned, but the claim or interest which it does create in them is certainly of no greater dignity than that which would have been conveyed by á regularly executed mortgage. Now suppose that the convention of 1877 had, instead of enacting the provision contained in section 5900 of the Civil Code, given to the bondholders a mortgage on all the property held by the State. Unquestionably, such a mortgage could not have legally been made applicable to any other property than that owned by the State at the time of its execution. I do not wish to be understood as'holding that the convention could not legally have adopted a provision prospective in its nature and made it apply to all railroads or other public property subsequently acquired by the State, but I am unwilling to place by implication such a construction upon the language which was used. If such had been the intention of the framers of the constitution, it is. certainly reasonable to suppose that they would have employed language which would have definitely conveyed that idea; would have used, for instance, such an expression as “ now held or hereafter acquired by the State.” To my mind it is quite manifest that the convention of 1877 had no intention of so encumbering the proceeds of after-acquired public property; for elsewhere in the constitution (Civil Code, § 5890) the same convention expressly declared that “ The credit of the Staté shall not be pledged or loaned to any individual, company, corporation, or association, and the State shall not become a joint owner or stockholder in any company, association, or corporation.” ‘ The State had been acquiring railroad property as a result of its indorsement of the bonds of certain companies. The convention intehded *674that that practice should stop, aud therefore it never expected that the State would own any more railroads.
The only two railroads mentioned in section 5900 of the Civil Code as being owned by the State were the Western & Atlantic and the Macon & Brunswick. The section, however, mentions “ other railroads held by the State, and any other property owned by the State.” Under the act of 1870 (Acts 1870, pp. 338, 347), the State had indorsed the bonds of the North & South and the Memphis Branch railroads. By reference to the message of Governor Colquitt to the General Assembly, dated January 10,1877 (Senate Journal 1877, pp. 26 — 27), it will be seen that the North & South and the Memphis Branch railroads are mentioned as being the property of the State. Governor Colquitt in his message set out that one of these railroads, the North & South, was being operated at a loss, and that on account of default in the payment of interest on the bonds of the Memphis Branch Railroad he had seized that railroad and placed it in the hands of Robert T. Fouché as agent to hold and manage it for the benefit of the State. He concludes this part of his message with the following significant language: “I may remark, however, that I have seen no reason to change my opinion that the State will consult its best interest by ridding herself of all ownership in and responsibility for such property, even at a tolerable loss.” The bonds of the North and South Railroad were indorsed by Governor Smith, and the road was seized by him in default of interest in July, 1874. Governor Colquitt ordered it sold on the first Tuesday in September, 1877. The purchaser failed to comply with his bid, and in January, 1878, Governor Colquitt sold the property at private sale to L. F. Garrard, at the highest bid received, on the first Tuesday in September, 1877. See Min. Ex. Dept. 1877-1878; House Journal of 1878, p. 30. The road was sold on six years time, but the purchaser -made earlier payments, having settled in full on July 1, 1881. See Governor’s message, Senate Journal 1881, p. 38. The bonds of the Memphis Branch Railroad- were indorsed May 12, 1874. The company defaulting, the Governor, in May, 1876, seized the road. Senate Journal of 1877, p. 27. On June 6, 1877, the Governor ordered the road sold on the first Tuesday in August, but only a portion of it was sold, being bid in by the Marietta & North Georgia Railroad Company for $9,000. The Governor ordered the balance of the *675property of the Memphis Branch sold on the first Tuesday in September, 1878. See Min. Ex. Dept. 1878, p. 31. It seems clear to me, in the light of these circumstances, that the words of the •section of the constitution under consideration, “other railroads held by the State,” referred to these two railroads, which were regarded by the Governor, at the time the convention was in session, as being the property of the State, and the sale of which was evidently contemplated. These were the “other railroads held by the State” to which the section plainly referred, and I can see no ground, either in law or reason, to extend the application of the eonstitútional provision to all subsequently acquired public property.
The two hundred thousand dollars involved in this case were the proceeds of the sale by the State of the Northeastern Railroad. Was this road held by the State of Georgia in 1877? The history of the State shows that it was not so held at that time, even as a pledge or by virtue of a mortgage. Attorney-General Hammond had given the Governor an opinion that he could not legally indorse its bonds, and Governor Smith had refused to indorse them. The company had applied to the General Assembly in January, 1877, for an indorsement of its bonds, but that body had declined to direct the Governor to so act. It follows, therefore, that when the constitution of 1877 was adopted the State.did not own the Northeastern Railroad, had never held or operated it, and did not have even an inchoate lien against the company or its property. It was not until 1878 that the State acquired even a mortgage upon this property. The road was .successfully operated until 1893, when, the company having defaulted, the Governor took possession. Then for the first time was the road held by the State. It was afterwards sold by the Governor and bid in by him for the State for $100,000. That sale was for the purpose of collecting the mortgage; and even if the constitutional provision before quoted can be held to apply to this property, $100,000, the proceeds of the first sale, is all that the bondholders can claim under that section, and not $200,000, the amount realized by the State after the property had greatly increased in valqe. If the subsequent sale had been for $50,000, the bondholders would certainly have had the right to claim that the State was liable for $100,000, the amount of the first sale; and if, after being sold, the property increases in' value and a greater amount is realized,’they can not claim any *676greater, amount than was realized on the first sale. But I think that the proper construction of the constitution is that the section in question does not include the proceeds of the sale of the Northeastern Railroad, and that therefore the judgment of the trial court-was absolutely demanded under a fair construction of the law, and should consequently be affirmed. Mr. Justice Cobb, in his able and exhaustive opinion delivered on behalf of the majority of the court, uses the following language: “That the setting apart of this fund for a number of years when it is not needed to discharge the public debt, and during a time when other demands due by the State-must be discharged by taxation, which demands could be temporarily met by the use of the public-property fund, is an unwise-policy and bad financiering, is an argument which can not be con-' sidered in the face of a plain and unambiguous provision in the constitution declaring that the fund can be used only in a given way.” This is undeniably true as a legal and ethical proposition. But my position is that the proceeds of the sale of the Northeastern Railroad constitute no part of the public-property fund referred to in the constitution; and I see no reason for encouraging the-“unwise policy and bad financiering” alluded to, by extending the application of the section of the constitution to property which I do not believe the framers of the constitution had in contemplation when they adopted this provision. Presumably, the present bonded indebtedness of the State was in existence when the constitution was adopted. All the bonds which were then in existence' were held by the owners upon the faith of the honesty of the State in making provision to meet its debts by taxation. This additional pledge was therefore merely a gratuity, without any consideration whatever-, and a construction of it should not be extended beyond a fair legal interpretation of its language.
I can not see the force of the reason given in the majority opinion why the constitutional provision under discussion included the Northeastern Railroad. It is-stated that “The Northeastern Railroad Company was incorporated October 27, 1870. . . It was provided in its charter that under certain conditions the State would place its indorsement upon the bonds of the company for a given amount per mile of constructed railroad. This indorsement was placed upon the bonds of the company by the Governor in 1878.” That certainly did not constitute a holding of the railroad at the *677time. The fact that the State had the power to indorse the bonds' if it so desired can in no event give it the ownership of the property. As before seen, the convention must have known that at that time the efforts made to secure the indorsement by the State of the bonds of this company had been unsuccessful. But even if the bonds of the company had been indorsed before the meeting of the convention, the railroad could not, under the definition of the word “hold,” given in the beginning of this opinion, and which I think is unanswerable, have been “held” by the State; and hence it could not have been included in the constitutional provision pledging the proceeds of the sale of public property to the payment ■of the bonded debt of the State.
2. When the constitutional convention drafted the law contained in section 5900 of the present Civil Code, the State owned not only the Western & Atlantic and Macon & Brunswick railroads, but -also the property enumerated in §§ 960 — 1016 of the Code of 1873. Among this property were the old capitol situated in Atlanta, the Okefenokee swamp, and the Western & Atlantic Railroad lands. Borne of it was afterwards sold, and brought amounts aggregating :$232,068.58. The proceeds of these sales, as I understand it, unquestionably form a part of the public-property fund which the treasurer claims to hold. By reference to the Acts of 1898, p. 421, it will he seen from the treasurer’s report of that year that there was then in the treasury only $120,004.57. To that report the treasurer adds a note stating that to the amount named should be added $198,937.50, the net receipts from a temporary loan, making a total of cash on hand, of $318,942.07. He further states that of this amount $100,000 was reserved for the sinking fund, .and $5,500 was held to pay past due bonds. The note goes on to •say: “ On the 1st of October [the day following the date of the report], the following accounts are due and must be met when.presented, viz.: Salaries, $37,000; Contingent Fund, $3,000; Department of Agriculture, $2,500; Public Building Fund, $1,500; Public Institutions, $79,575 ; Monumental Fund,.$15,000 ; Textile Department of Technological School, $10,000; and accounts due on Military Fund, $15,000; making a total of $269,075, and leaving a bal-' unce of $49,867.07 to meet demands on the treasury until taxes can be collected.” Evidently, included in this statement of the money that had passed into the treasury were the above proceeds of the *678sale of public property, amounting to about $232,000. From this public official record it is manifest that, before the present treasurer came into office, that fund had gone into the general treasury and been otherwise disposed of in the administration of the State government. Now to the point. I know of the sale of no other public-property acquired since that time, save that of the Northeastern Railroad, which was bid in by the State at public sale in 18 9 5. That-road was afterwards sold, however, on time, for a little over $300,-000, $100,000 of which was paid in 1899 and $100,000 in 1900. This makes $200,000, which is to be added to the $232,000 above mentioned, which the defendant below claims to hold as the aggregate proceeds of the sale of public property. As I have already endeavored to demonstrate, the proceeds of the sale of the Northeastern Railroad have nothing whatever to do with the property which the constitutional convention intended to pledge for the payment of the bonded debt. Therefore practically all of this money must be a part of the general fund, constituting no part of the proceeds of the sale of public property. The legislature in 1897 evidently intended that the teachers’ fund of $400,000 should be paid out of the general fund in the treasury. In my opinion, the Governor did right in issuing warrants upon these funds; and the attorney-general was clearly correct in the opinion which he gave the treasurer, when consulted, that these warrants should be honored. Iam not prepared to say that the constitutional convention of 1877 intended to direct that the proceeds of the sale of public property should be-locked up or set aside and kept for fifteen years, bearing no interest, to await the falling due of the principal of the State bonds. That section was directory to the legislature. Keeping the money in that way would certainly be a financial folly, and I think that the purpose of the convention was to give the legislature some power in controlling that fund, investing it, and taking proper charge of it. Paying a temporary and current indebtedness, having as security therefor the income from the taxation of all the property in the State, is certainly as safe as depositing the money in bank. It is not improper to’ regard as cash the taxes upon the property of the people during a current year, and the legislature can regard it as cash with as much propriety, if not more, than the treasurer can regard a deposit in bank; for taxes do not fail, and banks sometimes do.
*679I do not deem it necessary to express any decided view in regard to the question whether or not, when warrants have been drawn by the Governor in accordance with an act of the General Assembly, approved by the comptroller-general, and their payment advised by the attorney-general, the treasurer has the right to refuse to pay them upon the ground that their issuance is unconstitutional The question, however, is at least a debatable one, and eminent authority exists in support of the contention that he has no such right. In the ease of State v. Heard, 47 La. Ann. 1679, it is held that “ Executive officers of the State government have no authority to decline the performance of purely ministerial duties which are imposed upon them by a law, on the ground that it contravenes the constitution. Laws are presumed to be and must be treated and acted upon by subordinate executive functionaries as constitutional and legal until their unconstitutionality or illegality has been judicially established. Under our system of government it was certainly never intended by its founders that an executive officer should nullify a law by neglecting or refusing to act under it.” In United States v. Jones, 18 How. 92, a principle analogous to the one how under consideration was decided. In that case an accounting officer had put his opinion against that of the secretary of the navy and the attorney-general of the United States. The court there held: “ The secretary of the navy represents the President, and exercises his power on the subjects confided to his department. He is responsible to the people and the law for any abuse of the powers intrusted to him. His acts and decisions, on subjects submitted to his jurisdiction and control by the constitution and laws, do not require the approval of any officer of another department to make them valid and conclusive.” It is true that there was a dissenting opinion in that case, but the majority opinion was approved in the case of United States v. Johnston, 124 U. S. 236, where the court, referring to certain officials who had attacked the constitutionality of an act of the secretary of the treasury, says: “ In auditing those accounts, they would have been bound to regard such action of the secretary as final.” But conceding, for the sake of the argument, that the treasurer has the right to question the constitutionality of the act under which the appropriation was made, it follows, I think, from what has already been said, that he must then demonstrate that the fund which he *680claims to be exempt by virtue of the constitutional provision for the payment of the bonded debt is the specific fund in his hands, specifying its amount, from what property it came, and that he has held it ever since it came into his possession. That could be done by selecting a special depository for it; and unless this is done, his plea under the constitution amounts to absolutely nothing; for certainly the State treasurer has no power to go upon the general fund and set apart a portion thereof for the purpose of meeting expenditures made under the administration of his predecessors in office.
By reference to the treasurers’ reports published in the Acts of the General Assembly, it will be seen that the above-mentioned sum of $232,065.58 was no doubt proceeds of the sale of the old capítol property, the Okefenokee swamp, lottery property, and Western & Atlantic lands, and that these proceeds went into the State treasury in the years 1890,1891, and 1892. From the treasurer’s report of 1898, above referred to, it is evident to my mind that this part claimed by the defendant to be proceeds of the sale of public property was disposed of in the administration of State ■affairs prior to 1899. In the absence of any proof to the contrary, the presumption is that there was a legal disposition of this fund. It may have been applied to the bonded debt of the State. So far as the facts of this case show, therefore, there is really in existence the proceeds of the sale of no public property contemplated by section 5900 of the Civil Code.
It is with great reluctance that I feel called upon to dissent from the opinion of my brethren of the bench in this case, but I am impelled to put upon record my firm conviction that the judgment of the court below should not be reversed, but that, on the contrary, direction should be given that the mandamus apply to the entire fund and not simply to a particular portion thereof; that the Governor did no unconstitutional act in issuing these warrants; and that the attorney-general was correct in the legal opinion expressed thereon.