dissenting.
I am unable to give my assent to the conclusion reached by the majority of the court and will state the reasons for my dissent. Sec. 46 of the act for the government of the hospital for the insane provides that, “The board of trustees shall from time to time fix the sum to be paid per *614week for the board and care of patient's, and to arrive at such sum shall estimate the total outlay as far as possible from the sums actually paid per annum, and the weekly sum so fixed shall be the sum said hospital shall be entitled to demand for the keeping of any patient, and the certificate of the superintendent, attested by the seal of the hospital, shall be evidence in all places of the amount due as fixed.”
Sec. 47 provides that, “ The superintendent shall certify to the auditor of state on the first days of March, June, September, and December the amount (not previously certified by him) due to said hospital from the several counties having patients chargeable thereto, and said auditor shall pass the same to the credit of the hospital. The auditor shall .thereupon notify the county clerk of each county so owing of the amount thereof and charge the same to said county, and the board of county commissioners shall add such amount to the next state tax to be levied in said county, and pay the amount so levied into the state treasury.”
Under these provisions the sum of $4.00 per week for each patient sent to the hospital was charged to the county sending the same, and this continued till December 1st, 1879, and since that time the charge has been $3.00 per week. It is conceded that the sums thus charged, if collected, will pay all expenses of the hospital. In B. & M. R. R. Co. v. Saunders County, 16 Neb., 123, and B. & M. R. R. Co. v. Cass County, 16 Neb., 136, this tax was held to be a valid charge against a county. So far as this case is concerned it can make no difference whether it is a county or state tax. It is in fact a charge against each county based on the number of patients sent to the hospital. It is not material whether called a state or county tax, as the money paid by the tax payers is levied and collected for the support of the hospital.
By the third paragraph of the stipulation of facts in this *615case it appears that, “ From the year 1873 to the year 1885, inclusive, the state board of equalization, and the state officers in that behalf provided, in deciding upon and fixing the rate of the general state tax (based upon the appropriation made each year by the legislature, which included all expenses of insane, including board and care of all patients) to be levied for each current year, • included in the rate for general state tax each current year a sufficient amount to meet all the expenses and expenditures of whatever nature connected with the maintenance of the insane hospital, and including the cost for board and care of all patients as fixed and demanded according to the facts agreed in the foregoing statement No. 2, and such sum was levied for that purpose as a part of the general state tax the same as other general state taxes each year, and was collected and appropriated and used for defraying said expenses, including the board and care of all patients, and there is no deficiency in that regard. The respondent Douglas county paid said general state tax, which included said expenses.”
It will be seen that the state officers in fixing the rate of taxation added to the general state tax the whole amount required each year for the support of the hospital for the insane. This tax has been collected each year and paid into the state treasury, and drawn out on the warrants of the auditor to defray the expenses of the hospital. The amount thus paid by Douglas county, so far as can be ascertained, is about equal to the aggregate of the charges against it for patients sent from that county to the hospital. That county, therefore, has, at least to the extent of the taxes above referred to, already paid and discharged the tax for the support of hospital for the insane. It is conceded that no part of the money now sought to be collected is necessary for the support of the hospital; but that as the statute makes the counties liable for patients sent by them to that place, that notwithstanding the expenses have *616been paid by a levy on all the property of the tax payers in the state, still the counties are liable to the state upon this claim. In answer to this objection we must consider that all appropriations made by the legislature are of a specific sum for a specific purpose, of which only “so much thereof as may be necessary” is to be expended.
Only so much, therefore, as was necessary to supply any deficiency that may have arisen from inability to collect some portion of the sum charged against each county for patients sent by it to the hospital should have been levied as a general state tax for the support of the hospital. This would have been a very small sum. If any of the counties failed to levy the tax to pay the charges, proceedings by mandamus in a proper case would have compelled action. As the most of the counties of the state failed to levy taxes to pay the charges for patients sent by them, and from uncertainty no doubt as to the validity of the provision making patients a county charge, the state board have caused a sufficient amount to be levied each year to pay all expenses of the hospital. No doubt, under the circumstances, they were justified in doing this. But the tax thus levied and collected from a county for the support of the hospital should be credited to it against the charges for patients sent by it to the hospital. The legislature never intended that the amount charged against each county for patients should be collected, and also an equal amount for the same purpose — the support of the hospital — by a general tax. And the legislature, under our constitution, has no authority to impose double taxation. Sec. 1, Art. 9 of the constitution provides that, “the legislature shall provide such revenue as may be needful by levying a tax by valuation,” etc. And Sec. 19, Art. 3, provides that, “each legislature shall make appropriations for the expenses of the government until the expiration of the first fiscal quarter after the adjournment of the next regular session, and all appropriations shall end with such fiscal quarter. And when*617«ver it is deemed necessary to make further appropriations for deficiencies, the same shall require a two-thirds vote of all the members elected to each house, and shall not exceed the amount of revenue authorized by law to be raised in such time.” That is, the legislature is absolutely prohibited from making appropriations beyond “the expiration of the first fiscal quarter after the adjournment of the next regular session.”
Sec. 22, Art. 3, provides that, “ no money shall be drawn 'from the treasury except in pursuance of a specific appropriation made by law, and on the presentation of a warrant issued by the auditor thereon, and no money shall he •diverted from any appropriation made for any purpose, or ialcen from any fwnd whatever, either by joint or separate resolution,” etc.
The constitution limits the power of the legislature in Imposing taxes to such as may be necessary, and limits the time for which they may be imposed so that no appropriation can be made for a longer period than two years and a quarter. Sec. 9, Art. 3, also provides that bills appropriating money “shall originate only in the house of representatives.” Now, will it be seriously contended that as the legislature is restricted by the constitution to such appropriations as are needful, and possesses no power to divert money raised for one purpose to a different one, and has no authority to make an appropriation beyond the first fiscal quarter after the adjournment of the next regular session, that it can evade the law by indirection and impose twice the amount of taxes necessary -for any specific purpose. If so, a sufficient amount may be raised by direct tax to support the penitentiary, and a charge per capita against each county for the prisoners sent by it sufficient in the aggregate to pay all expenses, and the same rule may be applied’ to the deaf and dumb and blind asylums and other institutions of the state, and the treasury be filled with money for which there was no use whatever. *618There is no power, of government more liable to abuse than the taxing power; hence the constitution limited and restricted it. The effect of this decision, however, will be, I fear, to break down the barriers, and under various subterfuges fill the treasury with funds not required by the necessities of government. It may be said, however, that Douglas county sent a large number of patients to the hospital and is indebted to the state for their support. The answer to this is, that the charges against Douglas and other counties were for the support of the hospital — the tax to be levied for that purpose, a state tax for that identical purpose was levied on Douglas and other counties, and has. been collected and paid. If Douglas county had not paid this state tax there would be force in this argument, but having paid the tax and thereby contributed its full proportion to the support of the hospital it has performed its full duty in that regard. The fact that the-taxes were levied and collected — not as a charge against the county for patients sent to the hospital, but as a direct tax for its support, can make no difference where the money when collected in either way is to be applied to the same-purpose — the support of the hospital. In either way the money is levied and collected by the counties and paid over by them to the state treasurer. The burden in either case must be borne by the tax payers, and having discharged their obligations once in that regard the legislature possesses no power to impose the same duty in a different form for the samo purpose.
But it is said some of the counties have paid this tax, and others not, and it would be unjust to such counties as have paid to permit the others to avoid paying the tax. It appears that but a very small proportion of the counties have paid the per capita charge, there being less than $150,-000 in all collected. This the legislature can readily adjust by giving such counties credit upon the tax to be hereafter collected, so that there is no difficulty in that regard. *619So in regard to any inequality in the burden in the different counties, as where the direct tax will amount to more- or less than the charges for patients sent from that county. But to the extent of the direct taxes levied and paid by a county for the support of the hospital it should be credited as against any liability for patients sent from that county.
The attorney general has done well to call attention to-these matters, in order that the validity of law may be tested and the proper steps taken to prevent double taxation. The writ should be denied.