(dissenting):
The defendant was convicted in the Court of General Sessions of the Peace in New York, on the 12th of February, 1886, of the •crime of uttering a forged certificate under an indictment drawn in pursuance of chapter 1, part 4, article 3, section 32 of the Revised .Statutes. The certificate so uttered is as follows:
*323“No. 2676. $347.16.
“ It is hereby certified that the State of Missouri is indebted to Sanford Tunicliff in the sum of three hundred and forty-seven dollars, on account of services in Co. B, 5th Regiment, E. M. M. This certificate is not payable by the State until after the claim of said Sanford Tunicliff for his services has been presented to the United States Government and the amount allowed and paid to the State, and then only for the actual amount received from the United States Government.
“ City of Jefferson, Mo., August 19, 1874.
“SILAS WOODSON,
Governor of Mo.
“ J. D. Grafton,
“ Acting Paymaster Oen'V'
The certificate bears on its back the words “ S. Tunicliff.” No question is raised on this appeal except the question whether the forged certificate, for uttering which the defendant was convicted, is the subject of a forgery. It is claimed by counsel for .the appel lant that it is not, because the issuing of it by the State of Missouri was unconstitutional, being prohibited by section 10, article 1 of the Constitution of the United States, which declares that no State shall emit bills of credit. In this contention we think the learned counsel is in error. The certificate is an agreement by the State of Missouri to pay upon a contingency a certain indebtedness which it had incurred arising out of the raid within its borders of General Price during the late war. In the case of Craig v. The State of Missouri (4 Peters, 410) it was held that the term “ bills of credit,” as used in the Constitution of the United States in its enlarged, and perhaps in its literal sense, comprehended any instrument by which a State engages to pay money at a future day, and for which, of course, it obtains a present credit, and that thus it would include a certificate given for money borrowed. The court there says that “ The language of the Constitution itself, and the mischief to be prevented, which we know from the history of our country, equally limit the interpretation of the terms. The word emit ’ is never employed in describing those contracts by which a State binds itself to pay money at a future day for services actually received, *324or for money borrowed for present use. Nor are instruments executed for such purposes in common language denominated bills of credit. ‘ To emit bills of credit ’ conveys to the mind the idea of issuing paper intended to circulate through the community for its ordinary purposes as money, which paper is redeemable at a future day. This is the sense in which the terms (of the Constitution) have been always understood.” (See opinion of Chief Justice Marshall.)
The more serious question in the case is (the requirements of the statute of Missouri in resj>ect to the signatures thereto not being complied with) whether or not the instrument uttered was a forgery at all. By the act of the legislature, approved March 19, 1871, it was provided, among other things, as follows:
“ Section 10. That for the purpose of settling the claims of officers of the enrolled Missouri militia and Missouri militia, for services rendered during the war, the acting paymaster-general is hereby authorized to examine the claims of all officers and soldiers whoso names appear as not paid on the record of unpaid claims on file in his. office, and if he finds such claims correct and just, he shall allow the same and indorse said allowance on said claim, and if not correct he shall indorse such fact on the claim and return the same for correction; provided, however, that whenever a person is reported on the record of unpaid claims as absent without leave, the acting paymaster-general shall not audit and allow said claim until he has presented sufficient proof that he was not absent without leave, or had not deserted.”
“ Section 13. That the duplicate of all claims passed upon by the acting paymaster-general shall bo filed in his office; those rejected with the cause of their rejection, and those allowed with the amount allowed thereon, and the originals of all claims, with the indorsement of their allowance or rejection, shall be returned to the party filing the same; and on presentation of the original of any claim allowed as aforesaid to the acting paymaster-general, he shall issue a certificate of State indebtedness for the amount allowed thereon, which certificate shall be signed by the governor •and countersigned by the acting paymaster-general, and shall read 'as follows: ,
*325No........... $.............
It is hereby certified that the State of Missouri is indebtedto........in the sum of........on- account of services in company........regiment........This certificate is not payable by the State until after the claim of said........for his services has been presented to the United States government, and the amount allowed and paid to the State, and then only for the actual amount received from the United States government.
City of Jefferson, Missouri, ............18....
Governor of Missouri.
Countersigned.....................
Acting Quartermaster-General of Mo.
By inspection of the certificate which was uttered by the defendant, and the form prescribed by the statute already quoted, it will be seen that in the certificate which the defendant uttered, the name of the acting quartermaster-general of Missouri does not appear, but. there is placed off to the left of the certificate the name of a person who is called acting paymaster-general. It appears, therefore, that the paymaster-general would, had this certificate been true, have issued a paper purporting to be an indebtedness of the State of Missouri, without having attached thereto the name of one of the persons whose signature was made absolutely indispensable by the very terms of the statute under which a genuine certificate could be issued!
The rule as now thoroughly established in this State is this : If an instrument be invalid on its face, it cannot be the subject of a forgery, and forging any instrument or writing which, as appears on its face, would have been void if genuine, is not an indictable offense. In the case of Fadner v. The People (2 N. Y. Crim. R., 553), the accused was indicted for forgery, in having uttered a false and forged impression of the seal of the Supreme Court with intent to defraud, and it appeared on the trial that no such pretended judgment had ever been granted, and that the alleged copy was a forgery. It was held that as the pretended certificate of the county clerk upon which the seal was impressed was not in the form prescribed by the Code of Civil Procedure, sections 957 and 958, it was void on its face, and that the act specified did not *326furnish the basis of an indictment for foigery. (See Bishop on Crim. Law, §'538.)
It is apparent upon the reading of the statute and the form of the certificate that the purpose of the legislature of Missouri was, in order to secure greater safety to itself, to require at the foot of the instrument both the signatures of the governor and of the acting quartermaster-general, and that then and only in such case could it be permitted to the acting paymaster-general to perfect it by countersigning and delivering such certificate to the person for whom it was designed. An instrument bearing the signature only of the governor, when the name and signature of the quartermaster-general is required to be written underneath the governor’s, cannot be deemed to be such an imitation as, in a legal sense, can be said to be calculated to deceive. This intrument had no validity at common law and derives whatever value it possesses solely from the act of the legislature. Nor can any strength be given to the case of the people by reference to the general scope and purpose of the statute outside the form prescribed for the certificate. The acting paymaster-general had devolved upon him by section 10 the duty of approving or disapproving of the claims presented against the State. That duty, however, is far different from any power given him tcf issue a completed and negotiable certificate of indebtedness of the State for such claim. To the extent of allowing a just claim, the part required of him by the statute was quasi judicial and wholly independent of other officers of the State. His affirmative and favorable action upon an application established an equitable though contingent liability against the State, but it went no farther.
Whether or not such allowance by him should ripen into a negotiable certificate for the amount of such demand was made dependent, under section 13, upon his preparing (“ issuing ” it is called in the statute) a certificate for the signature of the governor and of the acting quartermaster-general, which should thereafter be countersigned by him, and which, when so signed and countersigned and delivered, became a valid and negotiable instrument for the payment of money upon a contingency. The circumstance that the name of the acting quartermaster-general is prescribed and made essential in the form only, and not in the preliminary clause of the section, is of no moment. The form required is contained in *327and is a part of the same section which permits the issuing of any certificate. It is not inconsistent with the purely inactive portion of that section, but provides an additional safeguard against mistake, fraud or collusion.
The makers, in the common acceptation of the term, of the certificate were the governor and the quartermaster-general. The acting paymaster-general was required to countersign the instrument so signed by the other officers, when, and then only, it became a completed instrument. In the making of the paper itself the part taken by the acting paymaster general was auxiliary and subordinate to the previous signatures of' the governor and of the quartermaster-general. To countersign is to sign what has already been signed by a superior to authenticate a writing. (Webster’s Die.)
The argument, therefore, of the learned assistant district attorney, to the effect that the name of the quartermaster-general in the form was a mere mistake, and not contemplated by the act, lacks cogency, in my judgment, because, first, itconfounds the judicial'duties of the acting paymaster-general, under section 10, m allowing claims against the State at the outset with his purely clerical duty in countersigning an instrument executed by other officers, which would, through the joint names of -the three, beeotne negotiable; and, secondly, because it asks the court to say that a part - of one section, and that, too, the concluding .portion of a statute, shall be disregarded by us as superfluous and as a mistake when there is no inconsistency or discrepancy between the several parts.
Moreover, in the absence of actual inconsistencies we are not called upon to seek reasons for a peremptory clause of a statute, but if we were, a most excellent’ one is apparent in the requirement of the name of the quartermaster-general as a maker of the certificate, as an additional guaranty against imposition and fraud. If the defendant had been indicted for the deceit in getting money by a false token, the questions would be essentially different from those herein considered.
For these reasons the conviction should be reversed and the defendant discharged.
Judgment, affirmed.