(dissenting). I am unable to concur in the views of the majority of the members of the court as above expressed. With due deference to the judgment of my associates I feel that they wholly fail to grasp the controlling legal principles involved in this case. This is quite manifest to my mind from a careful perusal of the majority opinion.
I will here set forth my views as briefly as possible:
It is expressly conceded by the attorney general that the legislature had the unquestioned power, if it so desired, to allow the appellant the moneys thus received from the county superintendents or any balance remaining of such moneys after paying for the necessary clerical assistance in doing the work; but his contention is that the legislature has not expressly thus ordained, and that in the absence of such express legislative declaration, such unexpended balance should be covered into the state treasury as the property of the state, under § 84 of the Constitution, or, in any event, that such funds should have been turned over by defendant Stockwell to his successor in office. The attorney general, as well as the majority of the court, seem to labor under the idea that in order to confer title to such funds in the officer as an emolument of the office, the legislature must have used express and unequivocal language evincing, beyond any doubt, such intent. Such is not my understanding of the law. The rule is elementary that the legislative will may be implied in certain eases where the statute fails to use express language to evidence such will. As well stated in 26 *112Am & Eng. Enc. Law, 2d ed. 613: “When the intention of the legislature, as gathered from all legitimate sources, is taken into consideration, terms and provisions, not expressly declared, may be introduced into a statute by necessary or plain implication from what is directly or expressly declared. By ‘necessary implication’ is not meant an implication that points to a result so as to leave no possible escape and to exclude every other imaginable conclusion, but one that leads to such a conclusion as, under the circumstances, a reasonable view compels the court to take, the contrary of which would be improbable or absurd. . . . When the intention is clear, what is implied in a statute is as much a part of it as what is expressed.” In 36 Cyc. 1112, it is stated thus: “The rule is that whatever is necessarily or plainly implied in a statute is as much a part of it as that which is expressed.”
In the light of the above rule, as well as other well-settled rules of statutory construction, I entertain no doubt that the construction placed on said statutory provisions by appellants’ counsel is correct. Taking into consideration and applying all legitimate tests for determining the legislative will, I feel impelled to the conclusion that it was unmistakably the legislative intent to authorize the superintendent of public instruction to retain such fees as a flat allowance for the extra duties imposed by said statute, upon the condition, however, that out of such moneys he should defray the expense of the additional clerical assistance required to perform such work. In other words, it was the intent that such fund was to be used in toto by such officer for the payment of whomsoever might perform the additional duties called for in such law.
Some of my reasons for this conclusion are the following: In the first place, such added duties are most onerous, and at the time of the passage of the act they were most unusual and contrary to the univeiv sal rule of practice in this country, and while I concede that they are germane to the office, it is but natural and highly probable that the, legislature should, although not legally required so to do, make some provision to reasonably recompense such officer for the discharge of such added duties. Coneededly, this was done to the extent of allowing for the additional clerical assistance required. In the second place, it is evident that the legislature never contemplated that any substantial balance would arise in such fund, or if a balance should *113arise, that the same should be turned over to the state, else why did it not provide for its disposition in this manner?
Third, it is contrary to all precedent, and I cannot believe it the legislative intent to enrich its treasury by, to any extent, imposing a tax upon the teaching profession in the state. In the case of fees exacted from applicants for admission to the other professions, the legislature has in no instance, to my knowledge, required any portion thereof to be covered into the treasury for the enrichment of the funds of the state.
Another circumstance of more or less significance is the fact that at the 1899 session of the legislature the bill which was finally enacted into chapter 85, Laws of 1901, was introduced and passed its first and second readings, and later the committee to which it was referred reported a substitute bill, the express provisions of which required the superintendent of public instruction to pay such moneys into the state treasury on the first day of each month or within three days thereafter, and also providing that the same should be kept in a separate fund to be known as “teachers’ certificate fund,” to be used in paying for such additional clerical work as may be necessary in the office .of such superintendent by reason of the provisions of such act, and further providing how such payments should be made. Thus the committee aforesaid recommended a scheme which, had the same been adopted by the legislature, would have, in express and explicit terms, accomplished just what it is now contended was accomplished by the passage of the act in question; but such substitute bill was indefinitely postponed, and at the following session the original bill was reintroduced and passed unchanged as chapter 85, Laws of 1901. It is fair to assume, therefore, that the legislature enacted such statute only after due consideration of the very question here presented. Not only this, but all subsequent legislatures have seemingly acquiesced in the construction placed on such statute by defendant Stockwell and his predecessor in office, in harmony with the contention here made by appellants. Such fact is entitled to some weight, especially where the language of the statute is ambiguous, as is this statute. It is stated on good authority that “if the legislature, by its inaction, has long sanctioned a certain construction, language apparently unambiguous may receive from the courts that construction, especially if the usage has been *114public and authoritative.” 26 Am. & Eng. Enc. Law, 2d ed. 634, and cases cited.
These are a few general side lights which aid in some degree, at least, to disclose the legislative intent, which is the real object sought to be accomplished by all rules of statutory construction. While I am free to admit that the act under consideration is so unfortunately worded as to greatly obscure, rather than to clearly reveal, the legislative purpose, I think such purpose is fairly and reasonably disclosed by a careful reading of the whole act, especially when considered in the light of other cognate legislative declarations. Taking said statute by its four comers and holding it up to the light of reason and common sense, it seems reasonably certain that the legislative purpose was to authorize the state superintendent to retain all of such dollar payments as a flat or gross allowance to compensate him and such clerical help as he might deem necessary and competent for the performance of such additional work; and it was contemplated, no doubt, that the entire fund would be thus used; for the expressions “shall be used” and “to be used” as employed in said statute with reference to the disposition of such fund by the superintendent, must be given the same meaning as like expressions therein with reference to the disposition of other funds of like nature; and it certainly will not be contended that such expressions, as employed in other portions of said act, do not contemplate a complete devolution upon the state superintendent of the funds therein referred to. When such officer has performed, or caused to be performed, the extra duties entailed by said act, and to this end has expended such sums as are necessary for clerical assistance, he has “used” the fund within the legislative contemplation. The Century Dictionary warrants such construction. The verb “use” is therein defined as meaning, “to employ for the attainment of some purpose or end; avail one’s self of;” also, (a) Such employment in a narrower and more restricted sense may be merely transitory and without result or effect upon the thing employed, as “to use a plow;” or (b), in a more comprehensive sense, the employment may imply a complete appropriation, expenditure, or consumption of the thing employed, as, to use water for irrigation or flour for bread. See also Webster’s New International Dictionary wherein such verb is defined, among other things, as follows: “To *115make use of; to convert to one’s service; to avail one’s self of; to employ; to consume or exhaust by using; to leave nothing of; as, to use up the supplies.” See also 29 Am. & Eng. Enc. Law, 439, and 8 Words & Phrases, 7228.
The above construction of the statute in question is not only permissible, but I believe entirely reasonable. The statute does not contemplate that all such extra duties shall necessarily be performed by the clerical assistants therein authorized. On the contrary, such statute provides that the superintendent “shall examine, mark, and file . . . all answer papers,” etc., but this mandate is qualified by the later provision that “he may appoint such clerical assistants as he may deem necessary ’’ Thus it is apparent by the language employed, that the legislature contemplated that he should or might perform portions of the work without the aid of assistants, for otherwise the words above italicized would have no meaning or proper place in the statute. The words, “or cause to be examined, marked, and filed,” as therein employed, must be construed in connection with the words last above quoted. To uphold respondent’s contention, therefore, we are driven to the unreasonable and highly improbable conclusion that the legislature did not intend to compensate such officer in the least for the extraordinary duites by it imposed on him. If such had been the legislative intent, I again ask, why did not the legislature make express provision for the disposition of any surplus of the fund which might accrue ? Did it conclude that the necessary clerical assistants would always exhaust such fund % Again, if the fund was inadequate to pay for such necessary clerical assistants, was it the legislative purpose to require the superintendent to pay such deficiency and at the same time withhold from him any surplus, should it arise ? It seems to me that the more rational conclusion is as I have above indicated. It is a very significant fact that such officer is nowhere, either expressly or impliedly, required to keep any account of the moneys expended by him for such “necessary clerical assistants,” or to report such expenditure to any person, and the whole import of the statute is inconsistent with a purpose on the part of the legislature of requiring such accounting. Surely it would seem that this would have been expressly provided for in this statute as is the universal custom in other similar statutes, if respondent’s contention be correct.
*116But the attorney general assumes, and the majority of the court seems to have held, that it was not the intent that any portion of such funds should go to compensate the superintendent for any additional work thus imposed on him, because, as argued, it is not thus provided in express language; and by a course of reasoning the conclusion is reached that, because no provision is made in the statute for the disposition of any surplus arising in the fund, that it must be treated, under § 84 of the Constitution, as “fees and profits” arising from said office and coverable into the state treasury accordingly. Such argument will not stand the test of analysis, as I shall attempt to demonstrate. The same legislature which enacted the statute in question also enacted chapter 95 of the Session Laws of 1901, providing, among other things, that “every state officer . . . required by § 84 of the Constitution of this state, or by any provision of the laws, of this state, to cover into the state treasury all fees and profits arising from such office . . . shall report to the state treasurer monthly the amount of fees or profits received, verified by oath, wnd at the same time pay the amount of such fees or profits to the treasurer . . . .” This statute is very broad and explicit, covering “all fees and profits” required by § 84 of the Constitution or by any law, to be covered into the state treasury. Is it not, therefore, too plain for argument that the legislature in enacting the law in question did not intend that there should he any balance in this fund which should be treated as fees or profits ? The provisions of said act are wholly foreign to and utterly incompatible with any such intent. The statute provides, “And $1 of said fee shall be used by the superintendent of public instruction for such clerical assistants as he shall deem necessary and competent for the reading of teachers’ answer papers and the work connected therewith” and “the expenditures therefor shall not exceed, in the aggregate, the sum annually .collected from applicants for this purpose.” By this language it was no doubt contemplated that the aggregate of all such unexpended receipts should he available at .any time during each year, if not during the entire term of the incumbent, for the payment of such clerical assistants; and how, I ask, could this be true, if, at monthly periods, it must be covered into the state treasury? The conclusion is irresistible, therefore, that § 84 of the Constitution has no application, and that there is no law requiring any *117balance which may accumulate in such funds to be covered into the state treasury. It was not the intention of the legislature that any balance should ever arise to be thus disposed of. On the contrary, as before stated, it was intended that these funds should be consumed in toto by such officer, as compensation for the performance of such newly created duties. It seems to me that the whole fallacy of the state’s contention and of the reasoning of the majority lies in the unwarranted assumption that these fees are state funds, and that an express appropriation was consequently necessary to transfer title thereto to appellant. There is nothing in the statute affording any basis for' such contention. Does a statute providing for the payment of fees by private parties to a public officer necessarily evince a legislative intent that such fees shall belong to the public? Clearly not. On the contrary, the fact that as to one half of such fee the legislature has expressly provided that it should be turned into a fund to be kept by the county treasurer, and no similar legislative provision is made for the other one half, is quite persuasive in favor of appellant’s contention.
The county superintendent is by this statute, in effect, made the agent or trustee of the state superintendent, to collect from each applicant for teacher’s certificate the $1 item, and to transmit same to him. In case of a failure or refusal to carry out such agency or trust, ample remedy can be found to authorize the person thus beneficially interested, to wit: The state superintendent to enforce such trust. The statute should be construed the same as if it provided that each applicant for a teacher’s certificate should pay the sum of $1 directly to the state superintendent, to be used by him as aforesaid. It is begging the whole question to say that these payments constitute a state fund, and hence that the state is the sole person having a remedy against a defaulting ■ county superintendent. It is likewise begging the question to assert that these dollar collections constitute public moneys collected for the state. Whether they are public funds or private emoluments of this officer is the sole and vital question involved. The state in no sense obligates itself to pay the clerical assistants. They are employed by the superintendent and are his servants, and he alone is responsible for their pay. The statute clearly leaves the matter of the employment of such assistants and their *118compensation wholly to' the judgment and discretion of' the state superintendent. The statute merely requires him to do the work or to cause the same to be done, and it, in effect, says: “We care not how much assistance you see fit to employ, you are restricted as to the expense thereof, so far as the state is concerned, to the fees thus collected and transmitted to you for this work.” It therefore seems plain that such clerical assistants are not in the employ of the state at all, and such is the express holding in our sister state of South Dakota in a case in all respects identical on principle with the case at bar. There the legislature made an allowance to the probate judge of a certain sum for “cleric hire,” and the supreme court held that he was entitled to such allowance whether he in fact employed a clerk or did the clerical work himself. I quote therefrom as follows: ■
“The probate judge may not desire to appoint, nor may the public service demand the appointment of, a clerk of the probate court with such full and extended powers. Therefore, the legislature wisely left it optional with the judge. The act of March Y, 1889, simply provides that, in counties having 20,000 inhabitants or more, compensation shall be allowed the judge's of the probate court for clerk hire; the legislature, no doubt, presuming that in counties having that much population the business of the probate courts would be of such a magnitude that the judge could not reasonably be able to do all the judicial, ministerial, and clerical business coming before it. The enactment is plain and free from all ambiguity. It says: ‘There shall be allowed and paid to the judges of the probate courts, . . . for clerk hire,’ etc. This clerk may or may not be the clerk of the probate court, as provided in the act of March 8. He need not receive the formality of an appointment. It need not be an officer of the court. It may be any person capable of transcribing or recording papers. It may be a male or female; a minor or a legal voter; a foreigner or a naturalized citizen. There may be no permanency to his employment. It may be for a day or more, and the liability only extending to the employer, and he is clothed with no official responsibility. Nor need it be either of.these, independent of the judge of the court; for if he performs the duties himself, and does it well and efficiently, the public or county cannot complain, for it can make no difference to it whether the money provided by the act goes into the pocket of the *119judge, as Ms own, or into the pocket of someone else, for doing the work. The legislature evidently intended that this money should be appropriated in these counties, to be used at the discretion of the probate judge, for the good of the public.” Gordon v. Lawrence County, 1 S. D. 31, 44 N. W. 1025. There the legislature made a flat allowance for “clerk hire.” Here the legislature made a flat allowance for “clerical assistants.” Wherein is there any distinction on principle in these cases ? See also to the same effect, Bruce v. Dodge County, 20 Minn. 388, Gil. 339, from which I quote: “The words ‘The county auditor shall be allowed for clerk hire,’ evidently mean that he shall be entitled to receive the percentage allowed for clerk hire in all counties where the valuation amounts to or exceeds $800,000, without reference to whether he in fact employs a clerk or not. In other words, he is entitled to receive the percentage, though he performs in person the labor for which such percentage is intended as a compensation. And even when he employs a clerk or clerks, he is under no legal obligation to pay him or them the full amount of the percentage allowed for clerk hire. He can pay his clerks whatever price is agreed upon, retaining any surplus of the percentage for his own use. In other words, the percentage allowed for clerk hire would seem to be part of the compensation allowed the auditor as pay for the discharge of the duties of his office, and a portion of his salary, just as is the percentage allowed him in the earlier provisions of the section.” If, as no doubt is true, these clerical assistants were the mere private employees and servants of Stockwell, and not of the state (see Anne Arundel County v. Duvall, 54 Md. 350, 39 Am. Rep. 393), is it consistent to hold that the fund out of which they were paid was a public fund? Although engaged in assisting him in the discharge of his official duties, they, nevertheless, were working for him, not the state, and they were obliged to look to him alone for their compensation. While it is true that he was supplied with a gross allowance for such purpose by the statutory provision requiring each applicant for teacher’s certificate to pay $1 to him for this purpose, such funds, when paid to him, became, as I contend, his private emoluments, burdened, it is trae, with a liability on his part to pay the necessary expense of such clerical assistance.
Chapter 51, Laws of 1901, making it a misdemeanor for an officer *120to divert to bis own use and benefit any allowance made for . clerk bire in bis office, is cited and relied on in tbe majority opinion, but-in my judgment it does not bave tbe least application. “Clerical assistance,” witbin tbe meaning of tbe act in question, is not tbe same as “clerks” witbin tbe meaning of chapter 51, supra. A good case defining tbe words “clerical assistance,” is Beam v. Jennings, 96 N. C. 82, 2 S. E. 245, from which I quote as follows: “Tbe secretary of state is a high and respectable executive officer of state, charged with a variety of important — many of them delicate — duties, that require bis personal attention, supervision, and scrutiny. His office is created by tbe Constitution, and bis duties are prescribed by statute.
“It seems to be tbe purpose of tbe legislature that be shall personally and alone exercise official authority in tbe exercise of tbe functions of his office. There is no statutory provision that be shall bave an assistant, deputy, or clerk, so designated, required to take an oath of office, and exercise any official authority. He is simply allowed $2,000 per annum ‘for clerical assistance ... in tbe discharge of bis office.’ This does not imply official assistance, — that the secretary shall appoint a deputy or a clerk, one or more, who are to take an oath of office, and bold office for a definite period of time. Plainly be may employ such ‘clerical assistance’ as be may need, from time to time, sometimes more, at others less, as occasion and bis convenience may require, and such assistance be can change or dispense with at bis convenience and pleasure, having in view tbe public need.
“By ‘clerical assistance’ is meant, not official assistance, but such as aid in tbe exercise of official authority by tbe secretary himself, such as writing letters, making entries of record, copying grants, and tbe like service. Tbe word ‘clerical,’ as employed in tbe statute to designate a kind of help, has no very definite meaning; is not a very apt word for tbe purpose intended, but it is obvious tbe legislature did not intend to extend its meaning so as to imply official aid; if so, it would bave designated the person to render such aid, as deputy, assistant, clerk,' or by some such designation, with a term of office, and required tbe incumbent to take an oath of office. ... It would certainly be a very latitudinous and unwarranted interpretation of tbe words, ‘clerical assistance,’ to bold that they imply that every person whom tbe secretary of state may find it necessary to employ to *121aid him in the discharge of the 'clerical’ duties of his office, as above indicated, shall take an oath of office and represent him in the exercise of official authority. He might, sometimes no doubt would, require half a dozen or more clerks, copyists, and letter writers. Shall they a.ll be sworn as officers ? Shall they all represent and act for the secretary officially in the authentication of copies of records, grants, and other papers ? If not, which of them shall be sworn ? Which of them shall represent him by virtue of the statute, officially, and as to what matters and things?”
The idea that the superintendent must account for any surplus, should it arise, is wholly foreign to the statute. No such accounting is required, and, furthermore, the undisputed facts as found by the trial court effectually refute the idea that a surplus was ever contemplated. Under the findings it was not possible for a single dollar of such surplus to accrue, except by reason of the extra work of the superintendent performed out of office hours; and it is fair to assume that the legislature, before enacting said statute, made an intelligent investigation, which, if made, necessarily disclosed that such would be the result under the practical operation of the law. Certainly it could not have been contemplated that the superintendent would bum midnight oil, and by so doing create a surplus solely for the enrichment of the general fund of the state. His time outside of office hours did not belong to the state. Concededly the superintendent could have and, but for the extra work done by him, would have exhausted every dollar of such fees. Is it logical or sensible to say that while the legislature was perfectly willing to, and did in fact, authorize every dollar of such fees to be devoted to compensating clerical assistants, if employed, it, on the other hand, most strenuously objected to any portion thereof being used to compensate for such work, if, perchance it should be performed by the superintendent himself, even though wholly out of office hours? Where is the provision of this law, when the whole act is construed together which evinces any such absurd legislative purpose ? It may readily be conceded in accordance with the general rule that a public officer cannot claim extra compensation for official work performed out of office hours, in the absence of a statute to that effect; but this is wholly beside the question. Appellant is not here asserting any such right. He is not asking the state to compensate him for such *122work, nor is he seeking to establish an offset or counterclaim therefor, as stated in the majority opinion. His contention is that in legal effect the legislature, by the act in question, has already compensated him by directing these moneys to be paid to him. In addition to the South Dakota and Minnesota cases, supra, I call attention to the recent case of Com. v. Fry, 183 Pa. 32, 38 Atl. 417, wherein that eminent tribunal was called upon to determine a similar question. Under certain statutes of Pennsylvania all applicants for liquor licenses were required to pay to the clerk "for expenses connected therewith” the sum of $5; and the court was required to decide whether such fund constituted “fees” of his office within the law of that state, taxing such fees. The court, without a dissenting vote, said: “As to the question whether the sum paid to the clerk of the sessions in liquor license cases is to be regarded as 'fees’ within the meaning of the acts which tax fees, we think there is no doubt. While the Acts of 1887 and 1891 both designate the payment as being made for 'expenses/ it is a, payment to the cleric which he is at liberty to Iceep, talcing credit against it for actual expenses paid, and the balance is therefore an emolument of the office, and under the taxing laws must be regarded as a part of the income of the office
Surely if the above is sound, and of this I entertain no doubt, it would seem that appellant’s contention in the case at bar is likewise sound, for the two cases are not distinguishable on principle. Manifestly, if such expense moneys, or the unexpended balance thereof, constitute an emolument of the office, as held by the Pennsylvania court, the whole reasoning in the majority opinion based on the assumption that such fees are state funds and should be accounted for, must fail. If the rule announced by the Pennsylvania court be correct, it would be absurd to contend that an accounting of such moneys to the state or to defendant’s successor in office is required by any statutory or constitutional provisions. Is it possible that it could have been intended by § 84 of the Constitution to deprive the legislature of the power, on adding new duties to an office, to provide for reimbursing such officer for the expense of such additional clerical assistance as may be made necessary on account of such newly added duties ? This, as I read the law, is just what the legislature sought to do by the act in question. *123In providing for such expenses, did not the legislature have the right to do as it has done in many other instances, make a flat allowance thereof without the necessity of such officer rendering any itemized account? The statute in question, in legal effect, makes such flat allowance when it requires payment by each applicant to such officer of $1 to be used to cover such additional expenses. In what manner then, and by force of what rule or principle, does such expense money, or any portion thereof, become transposed into either fees or profits within the meaning of the Constitution ?
It seems too plain for serious debate that such constitutional provision in no manner restricts the power of the legislature in the matter of allowing not only such expenses, but also additional remuneration to the officer for such newly added duties, if it so desires.
It is but fair to the attorney general and his able assistants to state that they make no contention to the contrary in their printed brief in this case.
Another case involving a somewhat analogous principle arose in Indiana in the case of Henderson v. State, 96 Ind. 437. Henderson, who was state auditor, made claim to a surplus of $14,412 collected by him from foreign insurance companies doing business in Indiana pursuant to a certain statute of that state, and the question for decision was: To whom did the fees thus collected belong ? Appellant, Henderson, insisted that they were a part of the emoluments of his office, and that he retained them because the law gave them to him in part compensation for his services as such auditor. The attorney general urged that the law required such fees to be collected for the state. The statute authorizing the collection of such fees took effect in 1877. Such act was not amendatory of any existing statute, but was an origi-' nal enactment imposing new duties on the auditor with relation to foreign insurance companies. Prior thereto, and in 1875, an act was passed requiring the auditor to charge and collect, for the state from foreign insurance companies, the same fees as he was previously authorized to charge and collect under a prior statute, to wit: An examination fee of $5 and $2 for each certificate of authority to do business in that state, which amendatory statute further required such auditor at state intervals to make sworn statements of such fees, and pay same *124to the treasurer, to be covered in the general fund of the state, with the exception that he was permitted to retain for his services 25 per cent thereof.
Among other things the court said: “Whenever the general assembly authorizes by new legislation the imposition and collection by a public officer of new and additional fees for the discharge of new and additional duties, we are of opinion that such fees, ex vi termini, when imposed cmd collected, belong to and are the property of such public officer, unless the law-making power has clearly indicated, in such legislation, that such fees shall be applied in a different way, or to a different purpose. That is, in such a case, no prior legislation would affect or control the appropriation of such fees by such public officer to his own use and purpose. In the case in hand, we do not doubt that the new and additional fees, imposed and collected by the appellant as auditor of state, under the provisions of § 3773, and in controversy herein, belonged to him of right, and were his sole and separate property
It is no answer to appellant’s contention to cite the various instances wherein the legislature has seen fit to increase the salary or expenses of this officer. Similar increases were made all along the line of state officials in apparent recognition of two well-known facts, viz.: increased work in the offices by reason of the increase in population, and the increased cost of living, rendering the old salaries and allowances for expenses wholly inadequate to changed conditions. None of such increases can be legitimately accounted for by reason of newly added duties. Hence they furnish no light whatever on the question here involved. Another apparent fallacy in the majority opinion is the unwarranted assumption that an express legislative appropriation, or any appropriation, was necessary to confer these fees on this officer. Starting, first, with the erroneous assumption that these fees are state funds, it is very easy to fall into the second error of concluding that an appropriation is requisite. These fees, as before stated, were never state funds, consequently it is entirely a misuse of the term “appropriation” to use it in such connection. It is of cotirse only state property which may be appropriated by the legislature. The word is defined in 3 Cyc. 565, as follows: “An authority from the legislature, given at the proper time and in legal form, to the proper officers, to apply sums of money out of *125that which may be in the treasury, in a given year, to specified objects or demands against the state.”
What I have above stated sufficiently answers respondent’s other contention, which, in effect, is that in any event such fund belongs to Stock-well’s successor in office. Such contention necessarily leads to the conclusion that it was the legislative purpose to create a perpetually augmenting fund in the hands of such officer to be transferred from each retiring incumbent to his successor in office. This is a less plausible argument than the first, and I cannot believe the legislature contemplated any such thing.
The judgment appealed from should, in my opinion, be reversed and the action dismissed.