(dissenting). No case before this court since- I became a member thereof has received more earnest consideration than the one at bar. Neither has any case developed greater diversity of view or furnished the subject for more conflicting opinions, depending largely upon the point of view or state of mind at different times.
The conclusion arrived at by Judge Burke, regarding the applicability of § 84 of the Constitution, is a very easy conclusion to reach, and is one that on a somewhat superficial view, as I now regard it, when first presented, was very attractive to me.
After further and more careful examination I am satisfied that the conclusion of Judge Fisk is correct, viz., that the fund in question does not constitute fees and profits within the meaning of that section of the Constitution, and that if the legislative intent is material it was intended to make a flat allowance to the state superintendent to cover the expenses thought necessary to be incurred by changing the examination of teachers’ papers from the thirty-nine different county superintendents, to a clerical force to be selected by the state superintendent. I do not find it necessary to enlarge greatly on the reasons advanced by Judge Fisk, in support of my conclusions; and offer only a few supplemental suggestions, which seem pertinent. I, however, do not attach more weight to the fact that the work performed by the defendant was done outside regular office hours.
The fallacies on which the conclusions of the majority of this court rest are the assumptions that the money in question is public money, *126and that the act of examining the papers is an official duty of the state superintendent. In the opinion written by Judge Goss, attention is constantly misdirected to the acts of the state superintendent, which are unquestionably performed as public duties, but the mind must be applied to the act which we are considering, for a determination of this question. That act does not consist in the superintendence of the examination of papers or in reporting the result to the county superintendent, but the act which we are required to consider is at all times the mental and clerical work of examining and marking the papers. I deem it but just to the defendant to also call attention to the fact that many of the points discussed and attempted to be settled in the majority opinion were never presented or discussed by the defendant or his counsel. They are simply men of straw.
In my opinion, the questions presented are purely political or legislative, and the facts do not disclpse a cause of action on behalf of the state. It is practically immaterial whether the legislative intent was to furnish the state superintendent emolument in addition to the prescribed salary.
Constitutional provisions regarding the salary of state officers do not limit the legislature in making provision for the payment of their expenses or for the expenses of running their offices. See Briscoe v. Clark County, 95 Ill. 309; Kirkwood v. Soto, 87 Cal. 394, 25 Pac. 488.
No question of bad-faith, either on the part of the legislature or of the defendant, arises in this case. The legislature, when the law in question was enacted, simply had under consideration a change in the system of marking the examination papers of applicants for teachers’ certificates. Theretofore they had been examined and marked by thirty-nine different county superintendents, who did not always interpret the same question the same way, and did not always give equal credit for the same answers. The purpose of the legislature was to change the system and place the work under the supervision of one official, thereby securing substantial uniformity in interpreting the papers, and impartiality in fixing the grades of certificates. ' It must have been apparent to the legislature that the superintendent of public instruction could not possibly do the work himself. It therefore gave him the oversight, and provided that he might secure clerical assistance to perform *127it. Some means had to be provided for paying the expenditure made necessary by this change. It may not have been thought wise to increase the burden of taxation. One dollar had theretofore been collected of applicants for teachers’ certificates, for the creation of a teachers’ institute fund, and it was thought that the addition of a dollar to the amount so collected from applicants, for the creation of a fund out of which to pay for the examination of the papers, would not be unreasonable. It was therefore provided that the county superintendent should collect $1 from each individual applicant, which dollar he was required to give to the state superintendent for use in payment for the examination of the papers. No burden was cast upon the state. This was specifically guarded against by the provision that such expenditures should not exceed the aggregate sum annually collected for that purpose.
The state superintendent was made the sole judge of the necessity for the expenditure, and was clothed with absolute authority to select the beneficiaries and fix the rate of pay. It may or may not have been contemplated that he would do a portion of the work himself and thereby add to his income. If by reason of superior thrift, hard work, or laboring at unusual hours, he avoided making some of the expenditure contemplated, it does not occur to me that, in the absence of any provision of law regarding it, an implied duty devolved on him to pay a portion of the allowance received into the state treasury. The action in question makes no provision for any of it being paid into the treasury. If it should, accidentally or otherwise, be turned into that office, it could not be withdrawn or made available for the purpose contemplated, as no provision for its withdrawal is found.
The terms of this act, when read in connection with other provisions of law previously enacted, create a conflict which it is our duty to reconcile, if possible. I see no method of doing so except by adopting the construction that the state superintendent was allowed this fund absolutely, for the purpose named. To illustrate some of these conflicts, the examination of teachers are held four times per year, under the statute. Three of the days for holding them are the last Fridays, and, if necessary, Saturdays, of certain months. The law is mandatory, and requires the county superintendent to immediately forward to the state superintendent $1 for each applicant examined. ' If the law quoted in some of the opinions relating to the transfer of funds by officers into the *128state treasury on the first of each month has any application, it takes but little consideration to disclose the fact that the state superintendent' would thereby be deprived of the power to use most of this fund for the purpose for which it was intended, or at all. It would go into the state treasury before he could possibly dispose of it, and without any means for its withdrawal to pay for the clerical services required for the examinations. This is not of great weight except as it sheds some light upon the intent of the legislature to turn over the fund to the state official absolutely.
But to return somewhat, the legislature is the sole judge of the necessity for paying a part or all of the expenses of state officials. It can pay and provide for them in either of many different ways. For instance, by allowance, for mileage, for actual disbursements, in lump sums from the state treasury, or by providing for collections from the persons for whom services are rendered.
The legislature exercises its judgment in the selection of a method, and in fixing the amount of the allowance, as well as in determining whether the state or private individuals shall pay it. In the case at bar, it determined that the pay for certain work should be met by the persons for whom the work was performed. It exercised its judgment and discretion in fixing the amount to be collected and allowed for that purpose, and it saw fit to require the payment of $1 from each individual applicant. ' If it was mistaken in its judgment and $1 is too- much, the remedy lies with the legislature, rather than with the courts.
The determining factor is the nature of the work done, in examining papers, by the superintendent. If it is his official duty to perform that work, his salary pays him. But the terms of the law disclose that the duty of examining the papers is nowhere cast by it upon him. Hsnce such examination does not become cm official duty on his part. See United States v. Mosby, 133 U. S. 213, 33 L. ed. 625, 10 Sup. Ct. Rep. 327.
It is unquestionably the duty of a state official to devote his entire time, as far as becomes necessary, to the duties of his office. If he fails to do so and engages in private enterprises, this does not afford the state a remedy through the courts for his malfeasance or nonfeasance in office, or neglect of duties. The remedy lies with the electors or with the legislature, or both. In the instant case the defendant saw fit to devote *129time out of office hours to the performance of labor which was not imposed upon him by the law, and for which other provision had been expressly made. Had he neglected his official duties and devoted a portion of the time during office hours to the performance of this work, for the reasons theretofore suggested, the state would have no remedy against him in an action at law, any more than it would have had he devoted a portion of his office hours to teaching singing school, or farm labor, for compensation. If the state possesses no legal remedy in cases when the unofficial work conflicts with official duties, it certainly can possess none when no conflict is shown. This is said on the assumption that the legislature has said nothing on the subject; but on the contrary it has said something and has disposed of this proposition. By the terms of the law he was given permission to do this work, but the test is that he was not required to do it. Had he been required to do it, it, of course, would have become an official duty. See Ibid.
We are not without instances of parallel legislation, many of which may be said to illustrate the case at bar and furnish the legislative construction, which is entitled to weight in the interpretation of ambiguous language. For instance, the governor was allowed a flat sum for expenses. Vouchers were not required for its expenditure. If he found it necessary to expend less than the allowance, he was the beneficiary. No contention has been noted to the contrary. Similar allowances were made to some other state officials, all of whom, including the governor, are within the terms of § 81 of the Constitution. No one knows whether the allowance made to them exceeded their necessary disbursements while on official duty, or not. It is immaterial, because the legislature exercised its discretion and judgment and fixed the allowance, and did so in good faith.
In the case of the other officials, the allowance was paid to them from the state treasury, while the one we are considering never goes into the state treasury. This makes it much more readily apparent that an accounting is unnecessary. If it was a fund primarily belonging to the state or paid out of the state treasury, the case of the state would be stronger. All state moneys must go into the treasury and be disbursed only on appropriation and through regular channels. No appropriation can be made of funds to which the state has no titlé. The *130title to this fund after it went into his hands, and until disbursed, was at all times in the defendant.
. A similar method of paying expenses of different officials is employed in all parts of the country and in every county of this state. An instance of this is found in the mileage which the law permits sheriffs to collect from litigants for whom they render services. The rate allowed is a flat rate per mile. The object of requiring its payment is to reimburse sheriffs for expenditures incurred in traveling when officially engaged. We know that the mileage fixed is considerably in excess of the necessary expenditures in many instances and undoubtedly so as a whole, but neither the state nor the county is interested in the excess of the allowance over actual disbursements. If the legislature has exercised bad judgment in fixing the rate and made it unreasonable or oppressive, the remedy lies with that body.
It is argued that the burden rests with the defendant to establish clearly that he has a legal right to the fund in controversy. This seems to establish a new doctrine, — that the defendant is presumed guilty until he proves himself innocent; and that the burden of proof is no longer on the plaintiff. I deem it beyond controversy that the burden is on the state to establish its title to the fund; and on its failing to do so the defendant is entitled to a favorable judgment, regardless of his ability to establish, title in himself. It is the state which must put its finger, as is said, on the law, bringing this fund within the terms of the constitutional provision. Until it does so it has not made out a case.
The fees and profits referred to in § 81 are those derived from the performance of official duties. It is apparent to me that the fund under consideration is not made up of fees of the office of the state superintendent, neither is it profits in the ordinary sense, for the reasons which I have briefly stated; and possibly also because he did not hire papers examined for a less sum than the allowance. It is not claimed-that he could have done so. All the money transferred to him went for the accomplishment of the purpose for which it was provided. It all paid for work, at the rate fixed by the law in question, and, as I have attempted to indicate, if the examination of the papers was unofficial work, that is, work not mandatorily required of his office, some of it, when done by him, was work for which he had a right to retain *131"pay. The public is in no manner interested in the personnel of the examiners of teachers’ examination papers. Its interest lies in the direction of having the work correctly, promptly, and impartially done, and to that end that the direction and control be committed to one jierson. Neither the state nor the public has in any manner suffered. On-the contrary, the interests of the public have been served by the acts of the defendant. The claim of the state at best is of the most technical character, devoid of equity, and unconscionable.
I think I have shown that the beneficial purpose of the change in the law which we are considering was' to secure uniformity in the markings pf examination papers, but if the majority of this court is correct in its suggestion that the beneficial purpose of the legislature was either to increase the superintendent’s annual income or to make provision for clerical assistance and to prescribe its payment out of a fund created thereunder, the whole provision, is unquestionably rendered invalid.- It never was intended as a revenue measure. The revenue f.eature of it is but an incident to the, main purpose.
Many authorities cited in the majority opinions I deem wholly irrelevant.- A considerable number simply hold that an official cannot recover from a state or municipality for services to pay for which no provision has been made. An analysis of most of the other authorities cited in those opinions might be of interest, but it would serve no purpose other than to gratify the vanity of the writer and the curiosity of the reader. It will, therefore, not be included in this opinion. However, one or two illustrations will not unduly lengthen it.
Hennepin County v. Dickey, 86 Minn. 331, 90 N. W. 775, is relied ;upon, but a consideration of the entire opinion would disclose the fact that the services performed by the defendant in that case and for which he retained the fees for which suit was brought were required of him by the statute, and were therefore official duties.
McBrian v. Nation, 78 Kan. 665, 97 Pac. 798, relating to pay for the services of the chaplain of the penitentiary, rendered by him as a school teacher, has no bearing upon this case. The Kansas statute expressly reqfiired the chaplain to devote his entire time to the duties of that office. The penitentiary board employed him to perform the other duties, and the court held, in view of the express statute on the subject, he could not devote any of. his time to any occupation outside that *132of the chaplaincy. Some distinction will be found in the Oklahoma case and in nearly, if not all, the other authorities cited, relating to duties of officials.
In the light of the foregoing considerations briefly expressed, and of most of the reasons advanced by my associate, I am satisfied that no part of the fund in question comes from fees or profits of the office of the state superintendent, within the meaning of § 84 of the Constitution; and that the body of .the law on the subject, when construed together, warrants the conclusion that I have reached; namely, that the fund went to the defendant, subject only to the condition that he provide for and secure the performance of the work referred to.
Chief Justice Morgan having resigned before the petition for a rehearing was filed in the above entitled case, Mr. Justice Brtjoe participated in his place and filed the following opinion on February 14, 1912: