dissenting. This is an action, instituted in the original jurisdiction of this court, for an injunction restraining the defendants, as fiscal officers of the State government, from applying the public funds in the State treasury to the payment of certain appropriations, which, it is claimed, have been illegally made by the legislature. The particular appropriations claimed to be illegal are those made in the appropriation act of 23d December, 1893, for the pay of supervisors of registration, and for the pay of commissioners, managers, and messengers of elections, for the fiscal year commencing 1st November, 1893; and the prayer of the complaint is that the defendant, Ellerbe, and his successors in office, as comptroller general of the State of South Carolina, be perpetually enjoined from drawing any warrant on the State treasurer for the payment of any of the said appropriations, and that the said Bates, and his successors in office, as treasurer of the said State, be perpetually enjoined from paying any of the said *282warrants. The ground upon which this claim is based is that the registration law, as it may be briefly.termed for convenience, is unconstitutional, null, and void, and any appropriations of the public funds in pursuance of any of its provisions are without constitutional authority, and should be prohibited.
Inasmuch as a copy of the complaint, or petition,1 as it is styled, should be incorporated in the report of this case, we do not deem it necessary to make here any more detailed or particular statement of the nature and scope of the action than has been made in general terms above, except to say that the action is brought by the plaintiff as “a citizen and resident taxpayer of the county of Edgefield, State aforesaid, possessing all the qualifications and laboring under none of the disqualifications provided in the Constitution and laws of this State for the electors and officeholders thereof, on behalf of himself and other citizens and resident taxpayers of said State in the like plight and condition as himself as to the qualifications and disqualifications, too numerous to be made parties to this action, and of other citizens and resident taxpayers of said State possessing the same qualifications as himself, and laboring under no disqualifications save those imposed by the acts of assembly hereinafter mentioned, alleged hereinafter to have been enacted in violation of the said Constitution.” The main object of the action, unquestionably, is to test the constitutionality of the registration laws of this State.
But, before proceeding to the discussion of this main question in the case, it is necessary, first, to dispose of two preliminary objections presented by the attorney general. The first of these objections, as we understand it, is that such an action as this cannot be brought by a single taxpayer, either on his own behalf or on behalf of himself and others in’ similar plight and condition, upon the ground that no one can be allowed to assail the constitutionality of an act of the legislature by an action, unless he shows that he has been injured either in his rights of person or property by such act, or, to use the language of the attorney general in his argument, “The validity of a statute cannot be questioned on the application of a mere volunteer, *283or person whose right it does not specially affect.” Inasmuch as the object of this action is to prevent the application of the public funds in the State treasury, arising from taxation, in which every taxpayer has a direct interest, to an illegal purpose, it would seem clear that there is no foundation for the objection. But we do not deem it necessary to discuss the question, for we think it has been determined by express adjudication in thisStatein at least two cases, Mauldin v. City Council, 33 S. C., 1, and McCullough v. Brown, 41 Id., 220, supported by numerous authorities elsewhere. 1 Pom. Eq. Jur., p. 277, § 260; Cool. Tax., 764; 2 Dill. Mun. Corp., § 736, and cases cited in note; Crampton v. Zabriskie, 101 U. S., at page 609, where Mr. Justice Field used this language: “Of the right of resident taxpayers to invoke the interposition of a court of equity to prevent an illegal disposition of the moneys of the county * * * there is at this day no serious question.” While it is true that the case of McCullough v. Brown, supra, has been overruled in so far as it held the dispensary law unconstitutional, by the subsequent case of State ex rel. George v. Aiken, 42 Id., 222, yet that case does not affect the point for which the case of McCullough v. Brown is now cited, for that point was in no way alluded to in the Aiken case, and it is there stated that the case of McCullough v. Brown, and those decided upon its authority, “are overruled in so far as they are antagonistic to the principles upon which this case is decided” [italics ours].
The next preliminary objection is that the plaintiff herein is estopped from assailing the constitutionality of the registration law by reason of the fact that he has for many years been in the enjoyment of the emoluments and honors of an office to which he has been chosen by elections held under the provisions of the registration law. Eow this can affect the right of the plaintiff, as a taxpayer, to institute an action to prevent the application of the public funds arising from taxation, in which he as well as any other taxpayer is interested, to an illegal purpose, it is impossible to conceive. The question here is not as to the. validity of any election held under the registration law, for the record presents no such facts, and no proper parties for the consideration of any such question. The sole ques*284tion here is whether the fiscal officers of the State government shall be restrained from applying the public funds to an illegal purpose; and that question turns entirely upon the result of the inquiry whether the registration law, in pursuance of which such application is threatened to be made, violates the Constitution of the State. If it does, then, of course, it is null and void, and any appropriation of the public funds in pursuance of its provisions would be illegal, and should be restrained. We see no ground whatever for the estoppel claimed.
6 Coming, then, to the main question in the case, we find that the question of the constitutionality of a statute requiring the registration of voters has been very frequently before the courts of the several States, and it seems to be settled that even in States whose Constitutions are silent upon the subject, a statute requiring a registration of voters is not, per se, unconstitutional, as such a statute is regarded as a mere regulation of the constitutional right to vote, and is designed to furnish evidence of the fact, that the voter is possessed of the qualifications fixed by the Constitution. But it seems to be as well settled, that where the purport and effect of a registration law is to add to or to take away any of the qualifications prescribed by the Constitution, or where its effect is to obstruct, subvert, or even unnecessarily to impede, the exercise of the right conferred by the Constitution, it cannot be sustained, but must be held an unconstitutional invasion of the constitutional right of suffrage. These views are fully supported by the authorities elsewhere (for, so far as we are informed, we have no case in this State upon the subject), which, though not binding on us, are recommended to our approval by the reasoning upon which they are founded, as well as by the high character of the courts from which they come. See Capen v. Foster, 12 Pick., 485, reported, also, with elaborate notes in 23 Am. Dec., 632, frequently referred to as the leading case upon the subject.
In Kinneen v. Wells, 144 Mass., 497, the question was as to the constitutionality of the registration law of that State, containing a provision forbidding any naturalized person to be registered as a voter within thirty days after his naturalization, and it was held that such provision was unconstitutional, be*285cause it purported to add to the qualifications of a voter as fixed by the Constitution the further qualification, that such voter should be possessed of the qualifications named in the Constitution for a period of thirty days before he could be registered as a qualified voter. The court, after noticing the further objection, that such a provision was unconstitutional, because it was not impartial, inasmuch as it imposed a restriction upon a certain class of voters- — naturalized persons — not imposed upon any other class, goes on to say that, even if the provision were general in its character, applying alike to all classes of voters, it would still be unconstitutional, because it added to the qualifications of a voter, as fixed in the Constitution, the further requirement, that he should be possessed of such qualifications for a specified time before he offers himself for registration; whereas every person who is possessed of the necessary qualifications at the time he offers himself for registration, is entitled to be registered, without any regard to the length of time he has been possessed of the necessary qualifications. In delivering the opinion of the court, Devens, J., uses this language: “It is not an unreasonable provision that all persons entitled as voters shall be registered as such previously to depositing their ballots, and if the legislature deems that such an inquiry could not proceed concurrently with the actual voting or election, and both be conducted in a deliberate and orderly manner, it is not unreasonable that it should provide that such an inquiry should terminate before the election actually commences at a previous time sufficiently long to make proper preparations therefor.” Again, after referring to Capen v. Foster, supra, as a leading case on the subject, he says: “But, while it is held to be within the proper limits of legislative power to provide suitable regulations for exercising the right of suffrage in a prompt and orderly and convenient manner, the court, speaking through Chief Justice Shaw, was careful to add: ‘Such a construction would afford no warrant for such an exercise of legislative power as, under the pretence and color of regulating, should subvert or injuriously restrain the right itself.’ ” And again he says: “Every system of registration of voters contemplates • that the registration will be completed and that the lists of *286voters will be prepared before voting actually commences. No system would be just that did not extend the time of registration up to a time as near that of actually depositing the votes as would be consistent with the necessary preparation for conducting the election in an orderly manner, and with a reasonable scrutiny of the correctness of the list.”
In the case of City of Owensboro v. Hickman (Ky.), 14 S. W., 688, the registration law there considered provided for a registration of voters in the city of Owensboro, to be made on the first Monday in July and the two succeeding days, at which those only could be registered who would be entitled to vote at the August election ensuing, and also provided that no vote shall be received at any election held within a year unless the voter’s name is on the registry made in July. Held, that the act was not a reasonable regulation of the elective franchise, and was void under the Constitution of Kentucky, providing that every male citizen, twenty-one years of age, who had resided in the State two years, and in the county, town, or city one year next preceding the election, shall be a voter. In that case the court, while conceding the power of the legislature to enact a uniform and reasonable registration law, used this language: “The true theory upon which those laws are based is, that they must not impair or abridge the elector’s privilege, but merely regulate its exercise by requiring evidence of the right. The right cannot be impaired, but it may be regulated. * * * A registration law, however, will not be held valid which, under the color of regulating the manner of voting, really subverts the right.” Without quoting from or referring more particularly to the cases on the subject, we think the foregoing views will be found to be supported by numerous other cases which we have examined, and to which we will simply refer by their titles: Dells v. Kennedy, 49 Wisc., 560; Daggett v. Hudson, 3 N. E. Rep., 546; Brooks v. Hydorn, 43 N. W. Rep., 1122; Attorney General v. City of Detroit, 44 Id., 388; Page v. Allen, 58 Pa. St., 338; Patterson v. Barlow, 60 Id., 75; State v. Baker, 38 Wisc., 71; Edmonds v. Banbury, 28 Iowa, 267; Perry v. Whitaker, 71 N. C., 475; People v. Canaday, 73 Id., 198; Monroe v. Collins, 17 Ohio St., 686.
*287In the light of these principles, we will proceed to an examination of the provisions of the registration law of this State, with a view to ascertain whether any of the provisions of that law are in conflict with any of the provisions of our Constitution. For this purpose we will first inquire what are the provisions of the Constitution in reference to the right of suffrage. In article I., § 31, the provision is as follows: “All elections shall be free and open, and every inhabitant of this commonwealth possessing the qualifications provided for in this Constitution, shall have an equal right to elect officers, and be elected to fill public office.” Section 33 of article I. provides as follows: “The right of suffrage shall be protected by laws regulating elections, and prohibiting, under adequate penalties, all undue influences from power, bribery, tumult or improper conduct.” In article VIII., § 2, the qualifications of electors are specifically declared as follows: (1) He must be a male citizen who has attained the age of twenty-one years; (2) he must have resided one year in the State, and in the county in which he offers to vote sixty days, next preceding any election; (3) he must not be laboring under any of the disabilities named in the Constitution. In addition to the qualifications of a voter thus specifically declared, it is expressly provided that every person possessed of these qualifications “shall be entitled to vote for all officers that are now or hereafter may be elected by the people, and upon all questions submitted to the electors at any elections.” But, in addition to this, in section 8 of the same article, it is expressly declared that the General Assembly “shall never pass any law that will deprive any of the citizens of this State of the right of suffrage, except for treason,” and other offences named in the section, “whereof the person shall have been duly tried and convicted.” The provision of section 3 of article VIII. is as follows: “It shall be the duty of the General Assembly to provide from time to time for the registration of all electors.”
The original provisions for the registration of voters will be found in an act approved 9th of February, 1882 (17 Stat., 1110), and these provisions are incorporated in Gen. Stat. (1882), beginning with section 89 and ending with section 106; and such *288provisions, as subsequently amended, are incorporated in the Bevised Statutes of 1893 as sections 131-156, both inclusive. From a careful examination of [he various statutory provisions thus referred to, it seems to us that the manifest scope and intent of such legislation was that there should be but one general registration of voters, to wit: that provided for in 1882, and that when the registration books were closed for that year, a person who was then a qualified voter, but who had failed from any cause, whether from sickness, absence or other cause, to register, was ever thereafter deprived of his right of suffrage, for there is no provision by which such person could afterwards be allowed to register; and section 132 of the Bevised Statutes expressly declares that “no person shall be allowed to vote at any election hereafter to be held unless he shall have been heretofore registered in conformity with the requirements of chapter 7 of the General Statutes of 1882, and acts amendatory thereof, or shall be registered as herein required.”
Now, on turning to the chapter of the General Statutes of 1882 and the acts amendatory thereof, we find that while provision is made in section 94 of that chapter, corresponding with section 137 of the Bevised Statutes, for opening the books of registration after every general election, not, however, for the purpose of registering voters generally, but “for registration of such persons as shall thereafter become entitled to register” [italics ours], there is no provision for the registration of persons who had previously become entitled to register. Hence, it follows, necessarily, that one who had been a qualified voter, and, as such, entitled to register before such general election, could not then avail himself of the privilege offered by that section. The language found in section 94 of the General Statutes of 1882 is stronger than that found in section 137 of the Bevised Statutes, from which we have quoted, for in the General Statutes of 1882 the language is prohibitory, and forbids the reopening the registration books, except for the purpose of registration of such persons as shall become entitled to register after the next election; and even as to this privileged class, their day of grace expires on the first day of July preceding a general election — something over four months before the gen*289eral election, which is fixed by law for the first Tuesday after the first Monday in November in every second year, reckoning from the year 1870. Const., art. II., § 11; Rev. St., § 162. It is true, also, that sections 96 and 97 of the General Statutes of 1882, as well as the corresponding sections of the Revised Statutes (140 and 141), do make special provisions for a certain class of voters, to wit: minors who come of age and are otherwise qualified, but this provision is confined to that particular class, and is, therefore, not an impartial provision.
It seems to us that this feature of the registration law, to say nothing of other constitutional objections, renders it obnoxious to that provision of the Constitution above quoted, which makes it the duty of the General Assembly to provide from time to time for the registration of all electors. The language of that constitutional provision necessarily implies that its purpose was to require the General Assembly to provide every facility for the registration of all electors, by providing for the registration of all electors “from time to time,” so that, as far as practicable, no elector should be deprived of his right of suffrage, and that this law, which provided for one general registration more than ten years ago, and afforded no other opportunity to any elector, except those of a certain class, to comply with its provisions, even though his failure to avail himself of the first and only opportunity ever offered him to register resulted from sickness, absence, or other good cause, must be regarded as a violation both of the spirit and letter of the Constitution.
Inasmuch as the right of suffrage is provided for and guaranteed by the Constitution, and the General Assembly is expressly forbidden from passing any law depriving any citizen of the right of suffrage, except in certain caseá not pertinent to the present inquiry, it would seem, at first blush, as if any law making it a prerequisite to the exercise of this constitutional privilege that the voter should be registered, would be in violation of the Constitution, as adding an additional requirement to those mentioned in the Constitution for the exercise of this right. But, as we have seen, this is not the correct view of a registration law, which is a mere regulation as to the mode and *290manner in which this constitutional right may be exercised. The Constitution simply provides that every citizen, possessed of certain specified qualifications, shall be entitled to exercise the right of suffrage, but it makes no provision as to how the fact shall be ascertained that a citizen claiming the right to vote is possessed of the required qualifications. It is, therefore, not only proper, but necessary, that the legislature should make such regulations as it may deem best for the purpose of determining the question of fact, whether a person offering to vote is possessed of the necessary constitutional qualifications; and this, in our judgment, is the true office of a registration law.
It is, also, nothing but reasonable and proper that such an inquiry should terminate prior to the election, as it might greatly delay, and possibly defeat, the full exercise of the right of suffrage if it had to be conducted while the election was going on; and hence a law which provides for closing the registration books for such a length of time as would be reasonably necessary to enable the supervisor of registration to prepare and furnish the managers of elections at each polling precinct with a copy of the list of registered voters for such precinct, would not, probably, be regarded as an unreasonable regulation. If, however, the law provides for closing the registration books for such a length of time before the election as would be manifestly unreasonable and unnecessary for that purpose, then such a law could not be defended as a legitimate exercise of legislative power; for, under color of regulation, it would have the effect of subverting and injuriously restraining the right of suffrage, and would, in some cases, totally defeat such right. It seems to us, that the law under consideration is open to this objection, for it provides that the registration books shall be closed on the first day of July preceding every general election, which, as we have seen, is fixed for the first Tuesday after the first Monday in November in every second year, reckoning from the year 1870, and shall not be reopened prior to'such general election, except for the purpose of enabling minors coming of age and possessed of the other necessary qualifications to register. Surely a period of four months is wholly ■ *291unreasonable and entirely unnecessary for the closing of the registration books previous to a general election, and the inevitable effect is to deprive a certain class of citizens of the right to vote at such election, to wit: those who, being otherwise qualified, complete their required term of residence, either in the State or county, within such period of four months.
Take, for instance, the case of a person who, being possessed of other constitutional qualifications, only completes the required term of residence, either in the State or county, on the first day of October immediately preceding any general election. By this provision of the law he is deprived of his right of suffrage, although it may be susceptible of proof to a demonstration that on the day of the election he is, and for more than a month preceding has been, fully possessed of all the qualifications of an elector as fixed by the Constitution, simply because he had not performed an impossible act by registering prior to the preceding July, which, under the case supposed, it would have been impossible for him to have done, as he had not, prior to the preceding July, completed his required term of residence. It is manifest that such a law cannot be defended as a reasonable and necessary regulation of the mode of exercising the elective franchise, and is in direct conflict with the Constitution; for, in the case supposed, which, no doubt, has frequently occurred, the Constitution guarantees the right to vote, but the registration law forbids the exercise of such right because the person in question had not shown, four months previous to the election, what it was impossible for him then to have shown- — that he was then possessed of all the constitutional qualifications — notwithstanding the fact that there was ample time for him to have shown, if allowed the opportunity, that he was on the day of election, and had been for at least one month, fully possessed of all the qualifications of an elector.
Much complaint has been made in the argument against what may be designated as the certificate feature of the act, which, it is claimed, is peculiar to the registration law of this State, by which it is provided that the supervisor of registration is required to furnish to each registered voter a certificate, in the form prescribed jin section 142 of the Revised Statutes, which *292he is required to exhibit to the managers of election before he can be allowed to vote, and which forbids him from voting at any other polling precinct than that mentioned in such certificate. We must say, however, that we are not prepared to condemn this act simply on account of that feature. Indeed, if the proper construction of the act is, that the exhibition of such certificate is conclusive of the voter’s right to vote, we are inclined to think that such a feature is not only unobjectionable, but preferable to a provision whereby the voter’s right to vote is made to depend upon the fact that his name is found on the list of registered voters furnished the managers of election by the supervisor of registration; for, in the former case, the voter is made the custodian of the evidence of his right to vote, whereas in the latter case, his right is made to depend upon the act of another, and he may entirely lose his right by the carelessness or incompetency of an official in making out the list, to say nothing of the danger of his being deprived of his right by the willful omission of his name from the list by a corrupt official. If, however, under a proper construction of the act, it is necessary, as is supposed by some, for which supposition the language of section 155 of the Revised Statutes affords some warrant, that to entitle one to vote he must not only exhibit his certificate to the managers of election, but his name must also appear upon the list furnished the managers by the supervisors of registration, then it does seem that such double requirement is unnecessarily burdensome, well calculated to impede the exercise of the right of suffrage, and sometimes entirely defeat such right, without any fault on the part of the voter; for, though he may have carefully preserved and promptly exhibited his certificate of registration to the managers of election, he yet may lose his right to vote solely because his name does not appear on the list furnished by the supervisor, for the act makes no provision for the publication of the list of registered voters prior to an election, whereby the voter can ascertain whether his name appears on such list, and if it had been omitted through carelessness or even oversight on the part of the official charged with the duty of preparing such list, have it inserted.
*293We do not deem it necessary to go into any detailed consid- • eration of the various provisions of the act, in regard to the substitution of a new certificate for one which has been lost or destroyed by no fault on the part of the voter, or of the provisions of the change of certificate where the holder changes his place of residence, even from one point to another in the same precinct, but must say that these provisions seem to be unnecessarily harsh and burdensome, and, whether so intended or not, are well calculated to impede and obstruct the exercise of the right of suffrage.
There is one feature of this act which is not without significance. Sections 151-154, Bev. Stat., expressly require that the supervisor of registration “shall immediately preceding each election revise the registration of electors and mark off the names of such electors as have died, and such as have removed from one residence precinct, parish, ward or county to another without notifying him and obtaining a certificate of transfer;” and the other sections referred to make provision for obtaining the names of persons who, within the two preceding years, have been convicted of any offence disqualifying a person from voting, which names shall be erased from the registration list; but there is a singular absence of any like provision for revising the registration list “immediately preceding each election,” by adding thereto the names of qualified electors, whose names, from any cause, may have been omitted from the list. The revision thus expressly provided for is altogether one-sided, and cannot, therefore, be regarded as either reasonable or just.
The features of our registration law which have thus been shown to be unconstitutional are so intimately connected with and so interwoven with its other provisions, that the whole act must be declared unconstitutional. If those features which have been specially commented on are eliminated from the act, as they must be if in conflict with the Constitution, then the effect would be that we would have upon the statute book a law in a form which never received the sanction of the legislature, and this cannot he. To use the language of the Michigan court in Attorney General v. City of Detroit, 44 N. W. Rep., 388, we may say: “This law, being in the respects pointed out both *294unreasonable and in conflict with the Constitution, and it being apparent that the legislature would not have enacted the other portions of the act had it foreseen that the courts would declare these parts unconstitutional, the whole act must fall, and be held unconstitutional and void.” We must, therefore, conclude that the registration law of this State is unconstitutional, null, and void, and hence any appropriation of the public moneys for the pay of the supervisors of registration for carrying out the provisions of this unconstitutional statute is without the warrant of law, and should be forbidden.
Since the preparation of the foregoing opinion, which was, as usual, submitted to my associates for their consideration, they have both prepared separate opinions, in which, while not considering or deciding what I regard as the real question in the case, they both concur in holding, though differing on one point at least, that the action cannot be maintained on jurisdictional grounds, and hence concur in rendering judgment that the complaint, or petition, as it is called, must be dismissed. Of course, if these jurisdictional grounds are tenable, and this court is without jurisdiction in the case, that is an end of the matter, and any consideration of the merits of the case would be at least, superfluous, if not absolutely improper; for the court is without jurisdiction, then, as was said in Lowry v. Thompson, 25 S. C., at page 419: “It would be not only unnecessary but improper to undertake to decide any of the other questions in case.” But as I do not think that any of these jurisdictional objections are tenable, and, on the contrary, am entirely sotisfied that this court has jurisdiction, and is, therefore, bound to decide the issue presented, I must adhere to the views hereinbefore expressed. A proper respect, however, for the views of my associates, which it is always a pleasure to me to pay them, as well as a due regard for the gravity of the issue presented, require that I should not content myself with a simple declaration that I do not consider the jurisdictional objections tenable, but should go on and consider the grounds upon which these objections are based, and this I propose to do as briefly as the importance of the inquiry will permit.
*2951 *294First. It is objected that this is practically an action against *295the State, and to which she is an indispensable party. If this be the true nature of the action, then it is clear that this court has no jurisdiction, in the absence of any consent, of which there is no pretense, on the part of the State. The important inquiry, therefore, is, whether this action can, in any proper sense, be regarded as an action against the State. I do not think so, for the following reason: The object of this action is not to affect injuriously any property or right of property of the State. If the plaintiff should obtain judgment in this case no interests of the State could possibly be affected injuriously thereby. In this respect the present case differs widely from the cases of Lowry v. Thompson, supra, Louisiana v. Jumel, 107 U. S., 711, and Columbia Water Power Co. v. Columbia etc. Light & Power Co., 43 S. C., 154, which seem to be principally relied upon, for in each of those cases some interest or property right of the State was sought to be affected, while such is not the ease in the present action. I think it is clear, therefore, without going further into the authorities, that this case cannot properly be regarded as an action against the State, to which she is an indispensable party.
2 Second. While it is quite true that a question as to the constitutionality of an act of the legislature should not be considered or decided in a case where such case can be decided upon other grounds, as that is, in fact, nothing more than saying that the constitutionality of an act of the legislature should not be unnecessarily assailed, for considerations of comity and respect, which should always exist amongst the different departments of the government. This principle would forbid the judiciary department of the government from unnecessarily assailing the action of its co-ordinate department, yet when a case is presented to a court for its decision, in which it is necessary for a proper decision that the question of the constitutionality of an act of the legislature should be considered and determined, then it is not only the right but the duty of the court to consider and determine such question; and if the act in question is found to be in conflict with the Constitution, the court should not hesitate so to declare. That, in my judgment, is precisely the attitude of the case now under con*296sideration. The object of the action is to restrain and enjoin certain public officers of the State, who are che custodians of the public funds, from applying any part thereof to an illegal purpose, to wit: the payment of the salaries of certain so-called public officers, supervisors of registration, upon the ground that there is no valid law providing for the appointment of such officers; so that the vital question in the case, and the one which lies at the very foundation of it, is, whether there is-any valid law providing for the appointment of supervisors of registration; for, if there is no such valid law, then it is clear that the public funds cannot properly be applied to the payment of the saleries of persons claiming to hold offices not established by law. Now, as there is no doubt of the fact, that what purports to be an act of the legislature has been spread upon the statute books, providing for the establishment of such offices and fixing the salaries thereof, and the only claim is, that such so-called act is without constitutional authority, and for that reason only, has not the force of law, it follows conclusively, that the question as to the constitutionality of what has been termed for convenience the registration law, necessarily arises in this case, and the solution of that question is absolutely essential to the decision of the case. Indeed, outside of questions of jurisdiction and procedure, it is the only question in the case.
Third. Another objection is stated in these words: “If the State could be sued, she would be estopped from interposing the objection, that the services rendered at her instance and for her benefit.were illegal. The appropriations show that the State desires the payment of such services. Equity will not, therefore, lend its aid to compel the State indirectly, through the defendants as her fiscal officers, to do that which the State could not be compelled to do in a direct proceeding.” It seems to me that this objection ignores the important and vital distinction between the legislature and the State. The legislature is not the State, but is simply one of the agencies or departments of the government, called into existence by the voice of the people, who are the source of all power, as expressed in their Constitution. The legislature can only act lawfully within *297the limits prescribed in the Constitution, and any action on their part in conflict with the provisions of the Constitution is without lawful authority, and, therefore, null and void, and not binding on the organic body called the State, or upon the people composing such organic body.
Hence, the inquiry inevitably comes back to the question, whether the registration law, establishing the office of supervisor of registration and providing for the salary of such office, is constitutional. If it is, then, clearly, the present action cannot be maintained; but if it is not, then it necessarily follows that the public funds cannot be lawfully applied to the payment of such salary; and it seems to me that nothing can be clearer than that any taxpayer, whether one or more, may invoke the aid of the court, to prevent the fiscal officers of the State from applying the funds in the treasury to any purpose not authorized by law; for, besides the fact that such funds are derived from taxes levied and collected from the people of the State, and in which, therefore, every taxpayer is more or less interested, the Constitution expressly provides that “no money shall be drawn from the treasury but in pursuance of an appropriation made by law” (article II., § 22), and this prohibition is repeated, in practically the same terms, in article IX., § 12, It is not correct to say that the State has expressed any desire upon the subject until it is shown that there is some valid act of the law-making department of the government establishing the office of supervisor of registration, and fixing the salary of such office.
Fourth. All the other objections to the jurisdiction of this court, except the last, which will be presently considered, are based, as it seems to me, upon a misconception of the true nature and real object of the action. This is not an action by which the plaintiff seeks to obtain relief against a wrong either done or threatened against him as an elector or voter, and the fact that there is no allegation in the complaint that either the plaintiff or any other citizen of the State has been deprived of the right of suffrage, by reason of the provisions of the registration law, is a matter of no consequence, for such an allegation would not be pertinent to the issue presented by this action. *298Conceding, for the purpose of this inquiry only, that no citizen of the State, entitled to exercise the right of suffrage, has ever yet been deprived of such right by the operation of the registration law, I am unable to perceive how that-could affe.ct the real issue presented by this case. The wrong complained of is that the fiscal officers of the government have expressed their purpose to apply, and are about to apply, a portion of the public funds under their custody to an illegal purpose, and the remedy sought is to prevent such illegal diversion of the public funds from the purpose to which they can alone be lawfully applied. The action is brought by the plaintiff as a taxpayer, and the allegation that he is also a duly qualified elector is wholly superfluous; for I am unable to see any reason why any citizen of the State, who is a taxpayer — a female, for example — ' whether an elector or not, may not bring an action like this to prevent any illegal diversion of the public funds, in which all the taxpayers, whether electors or not, are interested.
It only remains to consider the last objection to the jurisdiction, which is based upon the well settled doctrine, that a court of equity will not take jurisdiction of a case, where the plaintiff has a plain and adequate remedy at law. The bare statement of the doctrine, is sufficient to show that, in order to sustain this objection, it must appear that the plaintiff has a plain and adequate remedy at law, and, in my judgment, this has not been and cannot be made to appear. What other remedy a taxpayer has to prevent an illegal diversion of the public funds by the fiscal officers of the government, than that adopted in the present case, has not been suggested, and I am at a loss to conceive of any. It will be observed, that the fund here in question was derived from taxes levied under and by virtue of the act to raise supplies for the fiscal year commencing 1st November, 1893, “for the purpose of meeting appropriations to defray the current expenses of the government” for that fiscal year, and, so far as I am informed, there never was any special or separate levy of taxes to pay the salaries of supervisors of registration. How, then, was it possible for the taxpayer to raise the issue here presented, by refusing to pay his taxes, or by paying the same under protest, and bringing *299an action to recover them back? The action does not and could not proceed, upon the ground that any wrong was done to the taxpayer in levying and collecting the taxes from which the fnnd in question was derived, for such taxes were levied and collected for an entirely lawful and proper purpose — the payment of the current expenses of the State government — and hence no resistance, in any form, could have been made to such levy and collection. Bnt the wrong complained of is, that after the fund derived from taxation had been properly placed in the treasury, a portion of it is about to be diverted from the legal purposes to which it is properly applicable, and applied to an illegal purpose; and how that wrong can be prevented, except by an injunction forbidding the officers charged with the custody of the fund from so misapplying it, I must confess I am utterly unable to conceive.
I cannot, therefore, concur in the conclusion reached by the majority of the court, that the complaint should be dismissed for want of jurisdiction. On the contrary, I am satisfied that this court has jurisdiction, and is bound to decide the real question in the case, viz: the question as to the constitutionality of the registration law. Upon that question, I have hereinbefore set forth the reasons for my conclusion, to which I still adhere, that the said law is clearly unconstitutional. I am, therefore, of opinion, that the prayer of the complaint, in so far as it seeks to enjoin the comptroller general from drawing any warrant on the State treasurer, for the pay of any supervisor of registration, and to enjoin the State treasurer from paying any such warrant, should be granted.
Petition refused.
it -will be found in the separate opinion of Mr. Justice Pope. — Reporter.