dissenting.
I cannot concur in the opinion of the majority of the court. The cardinal principle of constitutional law laid down in Board of Supervisors v. Cox, 155 Va. 687, 156 S. E. 755, is that loans made to counties out of State funds for the erection of school buildings do not constitute a “debt” of the county within the meaning of section 115-a of the Constitution. That section is an amendment of the Constitution ratified in 1928. It prohibits the General Assembly from enacting any law authorizing the school board or any other agency of any county to contract a long-term debt unless same is approved by a majority of the qualified voters at a referendum election.
For over twenty years prior to the ratification of said amendment legislation had been in force authorizing loans of, the type here involved without requiring popular approval. After its ratification it was generally considered by the school authorities as not applicable to these loans, and the practice of so making the loans without such approval was continued for about two years without challenge. However, on June 10, 1930, a group of freeholders of King and Queen County attacked the validity of the statute and this action culminated in the decision of this court in Board of Supervisors v. Cox, supra.
This decision turned upon the question whether section 115-a was in conflict with section 129 of the Constitution, *32and, if so, the effect of such conflict. Section 129 provides that “The General Assembly shall establish and maintain an efficient system of public free schools throughout the State.”
In resolving this question, the first consideration was whether it was necessary for the General Assembly to be empowered to provide for loans out of State funds to build county schoolhouses without popular approval in order to “establish and maintain an efficient system of public free schools.” We held that the possession of this power was necessary to enable the discharge of that duty.
The next question was, in view of this necessity, whether the prohibition of section 115-a against contracting a debt without popular approval should be construed as impairing this necessary power which the General Assembly had been accustomed to exercise in discharging this duty. We held that section 115-a was not intended to impair this power; that it was applicable only to “voluntary” bond issues initiated and sold by the counties entirely independent of State funds or State action or approval. The following language from the able opinion of Mr. Justice Gregory in the Cox Case is illuminating:
“It is only to the debts or loans of the voluntary class that section 115-a of the Constitution is directed. To hold otherwise, would in effect be to construe section 129 of the Constitution as imposing on the General Assembly the duty to provide schools, and section 115-a as denying it the power to perform that duty.” If the section applies only to loans of the so-called “voluntary” or commercial type, it follows that it cannot apply to loans made by the State of the type here involved. The opinion continues:
“The State Board of Education and the local school boards are the agencies through which it” (the General Assembly) “can and does provide these schoolhouses. If section 115-a is to be construed as requiring the approval of the voters before such buildings can be constructed with these funds, the practical effect will be to deny to the General Assembly, the principal, if not the only, means it has of carrying out or performing the mandatory duty imposed on it. Current *33revenues of the State have never been used for such purpose.” (Emphasis supplied).
“It was not the purpose or intention of the General Assembly in submitting section 115-a of the Constitution to the people, nor was it the intention of the people in ratifying the amendment, to hamper and disrupt the educational activities of the State by requiring a vote of the people on loans from the literary fund. * * * suppose the election should be unfavorable to the loan, and there be no general funds available, is the county to be left without a schoolhouse? ”
The situation now existing, since the lending capacity of the literary fund has been exhausted, is precisely that pictured by the foregoing emphatic language. The opinion further points out that the loan is but an intra-govemmental or joint State-county transaction, saying:
“Under article 1, section 14, or the Constitution, no government, separate and independent of the State government, is permitted. County government has been provided for and it is made one of the instruments or agencies through which the State performs its function of government. It is an arm of the State. A county school board borrowing from the State Board of Education the State’s money (literary fund), which has been set apart and devoted to schools, is but a transaction between two agencies of the State concerning the application and use of the State’s funds.” (Emphasis supplied).
Clearer language could not have been used to express the court’s conclusion that the prohibition against legislative action by the General Assembly contained in section 115-a was directed exclusively to commercial debts or bond issues to be contracted by the counties with approval of the voters. This basic principle is enunciated in the opinion without reference to any particular fund of the State out of which the financing of school buildings should be made. Nor is there any provision of the Constitution which would have justified the court in limiting the exercise of this broad legislative power to intra-governmental loans from the literary fund or from any other particular fund.
*34The majority opinion here, however, holds that because only loans from the literary fund were considered or involved in the Cox Case, the principles there established must be restricted to such loans. It says that “Upon adoption of sec. 115-a, Virginia, by plain and direct promise, extended and gave to its taxpayers and citizens at large through and in that fundamental law its plighted faith that, praiseworthy though the ultimate object to be attained might be, it would not permit the imposition upon them, their counties or school districts obligations and indebtedness of this character unless and until the opportunity to adopt or reject the same has been extended to the voters.”
I cannot understand how the quoted statement can be held consistent with the validity of loans from the literary fund itself, concerning which the voters are not given an “opportunity to adopt or reject the same.” It is not any less painful to the taxpayer to discharge the obligation of a loan from the literary fund than one from the retirement fund.
Of course, if the Constitution prohibits such loans from the retirement funds, I agree that such prohibition cannot be circumvented by indirectly lending it through the modus operandi of literary fund loans. The main point in the case, as I see it, is whether any foundation exists in the Constitution for discriminating against the power of the General Assembly over any funds which may be under its absolute control for investment purposes. I can see no reason why the direct authority could not be conferred by statute upon the State Board of Education to invest the retirement fund in school loans in like manner as it invests the literary fund. It is merely a question of legislative choice of an investing agency. It was more convenient, however, and served the same purpose to provide for the sale to the retirement fund of loans made from the literary fund.
For nearly half a century it has been the policy of the legislature in the enactment of general laws to require the voters’ approval of bond issues in cases where the consent or approval of the State Board of Education was not required or where they were intended for public sale. It has been *35likewise the policy to dispense with such approval in loans made by the State to the counties to aid in the building of schools. This is evidenced by two acts which were passed on the same day, March 15, 1906. Chapter 252 of the Acts of that year authorized loans from the literary fund for school buildings under a plan substantially the same as that now in effect. On the other hand, Chapter 255 required the approval of the qualified voters before school bonds for sale to the public could be issued by the county school boards. The Code revisors incorporated both of these Acts (as subsequently amended) in Chapter 34 of the Code of 1919, and, standing side by side, they constituted the entire chapter. The Literary Loan Act was embraced in Code sections 757 to 764, and the act requiring popular approval of school bond issues in sections 765 to 773. Under one plan the approval of the voters was required, under the other the approval of the State through its agency, the State Board of Education, was necessary. Approval of the voters was also required for bond issues for other public buildings and improvements, Code 1919, sections 2738, et seq., sections -2110, et seq.
PURPOSE OF THE 115-A AMENDMENT
The reason for amending the Constitution as in section 115-a clearly appears from the statement of- Judge Fletcher quoted in the majority opinion, and also in the observations of Mr. Chief Justice Hudgins in his concurring opinion in this case. It was because of a practice which had grown up in the General Assembly of giving the general law the run around by enacting local bills authorizing specific bond issues for some particular purpose but without approval of the electorate. When the Senator and Delegate represent-' ing a county desired the passage of such a local bill it was enacted as a matter of course.1 The real purpose of the *36section 115-a amendment was to abolish this practice as evidenced by the first sentence of the section. It prohibits the contracting of county debts “except in pursuance of authority conferred by the General Assembly by general law.” A general law is one which applies alike to all counties similarly situated. The general bond issue law requiring approval of the voters applies to all counties. Section 115-a had the effect of abolishing this practice of passing local legislation authorizing bond issues without the approval of the qualified voters. And obviously that was the cardinal purpose of the amendment. It clearly was not intended to affect intra-governmental transactions such as State loans in aid of schools, in which the approval of the State was required., or to impair the power of the General Assembly over this entirely different type of loan which had then been imbedded in State policy for over twenty years. In these loans approval by the State had been considered enough to dispense with the necessity for approval by the qualified voters. In 1906 and subsequent years the power of the General Assembly to provide for and approve such loans was not restricted to the literary fund or any other State fund. I do not think it is so restricted now.
Section 115-a also requires that in any “general law” which authorizes the contracting of any such county debt “provision shall be made for the submission to the qualified voters” of the question of their approval or rejection thereof.2 This provision was necessary to effectuate the above purpose of prohibiting legislation which might authorize one county or a few counties to contract such debts without such a. referendum. There are a great many general laws which affect only one or two counties.3 Such a general law affecting only one county is customarily passed *37upon the recommendations of that county’s Senator and Delegate, and, in this respect, is considered by the General Assembly substantially the same as a local or special act.
It is true that the opinion in the Cox Case emphasizes the propriety of the use of the literary fund as loans for aid in the building of county schools. But this was merely in support of the wisdom of the legislation, and not an inference that section 115-a was intended to impair the power of the General Assembly to provide this type of loan for school buildings from other sources. It was not held in that case that only literary fund money could be utilized by the General Assembly for loans to counties. The opinion expressly pointed out that this fund was the “principal” means available for that purpose “if not the only.” But it did not hold it was the only means. The clear implication was that there might be other available funds. No investigation of the availability of other moneys was made in that case. The literary fund was then adequate and no question of using other funds was presented or could have been decided. We did hold that it was the mandatory duty of the General Assembly to provide the counties, cities, and towns, with adequate funds for school buildings so as to “maintain an efficient system of free schools.” If in the future the literary fund should prove insufficient, the obvious and necessary inference is that other available funds should be utilized. This has been both the administrative and legislative interpretation of that opinion, and it was on that interpretation that the legislation now declared invalid was based. We said in the Cox Case:
“The General Assembly in enacting the school code and thereby arranging for local school boards, without the approval of the voters, to borrow from the literary fund, which the Constitution devoted to the commendable purpose of free schools, was but performing its mandatory duty and carrying out a wise and sound public policy.” (Emphasis supplied).
I think experience has proven the correctness of the view taken in the Cox Case in 1931. The funds made available *38by the General Assembly to provide school buildings have proven of inestimable value to the counties. They have been saved the trouble, cost and expense incident to the issuance and marketing of ordinary bonds, as well as the strife and bickering which a bond issue election frequently stirs up among the people.
Another important advantage enjoyed by literary fund loans over the ordinary bond issue is in the liberal policy and lenient treatment accorded by the State. The counties are given the privilege of paying off the principal at any time, and frequently, whenever the prevailing interest rate has dropped, the State has reduced its rate, not only on new literary fund loans, but also on all those previously made■ at a higher rate. In order to accomplish these purposes, it is essential that the ownership of the loans remain in some State agency in accordance with the holding in the Cox Case.
ADMINISTRATIVE AND LEGISLATIVE INTERPRETATIONS OF THE COX CASE.
Ever since the depression year of 1938 the practice has been for the Department of Education, if necessary, to sell literary fund county bonds to the State Sinking Fund Commissioners, thus calling in the invested literary fund moneys and reinvesting same in other like loans. At that time the original literary funds available for that purpose became exhausted and it was deemed highly desirable by the State Board of Education and others in authority to expand the State’s lending powers in order to take advantage of Federal grants for public school buildings. Through these sales the moneys in the sinking fund were utilized by the State Board of Education as schoolhouse loans to counties. Many Federal grants were matched and obtained in this manner. A great number of school buildings were erected at a time when building costs were low. In addition, employment was thus provided for many persons who were in dire need. These transactions were approved in an official *39opinion of the Attorney General. (See opinions of the Attorney General, July 1, 1938, to June 30, 1939, p. 160).. This plan for utilizing these other funds of the State was widely known, but no question of its constitutionality was ever even hinted at. The only restriction which was thought proper was that the bonds could not be sold or resold except to another State agency or arm of the State Government in conformity with the principles enunciated in the Cox Case.
With knowledge of this well-known and unquestioned practice, the Teachers Retirement Fund was established at the 1942 session of the General Assembly (Acts 1942, Chapter 325). It was at that time deemed advisable to relieve the current general funds of the State of a part of the burden of making contributions to said retirement fund by transferring thereto a part of the principal of the literary fund. Accordingly, such an amendment to the literary fund section of the Constitution (section 134) was submitted to the electorate and ratified in 1944. It authorizes the General Assembly to transfer all or any part of the moneys in the literary fund in excess of ten million dollars to the teachers retirement fund.
At its 1946 session, by Item 72 of the Appropriation Act (p. 799), the General Assembly appropriated or transferred from the literary fund to the teachers retirement fund one million dollars for the ensuing biennium. At the same session section 18 of the Virginia Retirement Act was amended authorizing the Retirement Board to invest its “trust funds in bonds, notes and other evidences of debt of the school boards of the several counties, cities and towns of the State held in the Literary Fund evidencing loans made from such Literary Fund by the State Board of Education.” The amendment of said act also provides that “the State Board of Education is hereby authorized to assign such bonds, notes and other evidences of debt to the (Retirement) Board whenever the Board desires to invest any of such trust funds therein and the State Board of Education consents thereto; and when such bonds, notes or other evidences of debt are *40so acquired by the Board the same may not be sold or otherwise disposed of except to a State governmental agency.” (Acts 1946, at pages 522-523). The italicized language was embodied in the act obviously in recognition of the principle laid down in the Cox Case that the transactions should remain intra-governmental. By Chapter 27 of the Acts of the Extra Session of 1947, section 643 of the Code was amended so as to permit the State Board of Education to charge a higher rate of interest on literary fund loans which were intended for sale to the Retirement Board, as an inducement to the Board to purchase them. The act of the General Assembly left it entirely in the discretion of the Retirement Board whether to purchase any of the bonds, or the extent of any such purchases.
The several foregoing legislative actions were designed to carry out a fully and carefully considered plan to transfer a part of the principal of the literary fund to the teachers retirement fund and at the same time to continue the use of the moneys so transferred in making loans for school buildings. The plan also contemplated the possible use of additional moneys for such loans when necessary. Pursuant to this legislation and the 1944 amendment of section 134 of the Constitution, the General Assembly has transferred two million dollars from the literary fund to the teachers retirement fund. Under the court’s decision in this case, this money can no longer be used to finance school buildings.
The majority decision here invalidates and strikes down this plan of the General Assembly. Denial of its power to provide this additional money for loans to finance school buildings destroys its ability to properly perform the duty imposed on it by section 129 of the Constitution to “establish and maintain an efficient school system.” This becomes apparent when we consider that the cost of such buildings has more than doubled within the last three or four years, and that there is no longer enough money in the literary fund to finance their construction.
While the majority opinion holds that the Constitution *41prohibits the General Assembly from lending the counties, under the plan approved in the Cox Case, any money other than the actual principal of the literary fund, no provision of the Constitution is referred to or pointed out as imposing any such arbitrary limitation on the lawmaking body. In fact, there is not a word in the Constitution remotely touching on the subject of literary fund loans to counties. Such loans are wholly statutory in origin. I can perceive no principle or reason to justify the court’s conclusion that the power of the legislature to establish and maintain schools is so limited that it cannot likewise use other funds at its command for the same worthy purpose. It is an elementary rule that the General Assembly possesses all legislative powers not forbidden expressly or by necessary implication by the Constitution of the State. There is certainly no express limitation of the amount of funds the legislature may employ for this purpose. That its power to finance school buildings through these loans in the performance of its mandatory duty actually exists, we held in the Cox Case, and I can find nothing in the Constitution which by any stretch of the imagination can be construed as an implied restriction upon the amount of loans which the General Assembly may make available when it deems it necessary. The limitation here imposed upon the exercise of legislative discretion in this matter seems to me an arbitrary one, and I think it is without any foundation or basis in reason or principle. If the court can properly restrict the exercise of this legislative power to the moneys in the literary fund, it can just as logically restrict it to fifty per cent of that amount.
The majority opinion implies that the legislature’s power to lend the literary funds for school buildings stems from the fact that “section 134 of the Constitution dedicated the literary fund to school purposes.” This section, as it read prior to the 1944 amendment, was as follows:
“The general assembly shall set apart as a permanent and perpetual literary fund, the present literary fund of the State; the proceeds of all public lands donated by Congress for public free school purposes; of all escheated property; *42of all waste and unappropriated lands; of all property accruing to the State by forfeiture, and all fines collected for offenses committed against the State, and such other sums as the general assembly may appropriate.”
The only mention in the section of “school purposes” is in designating the type of public lands, the proceeds from which shall constitute part of the fund. There is no provision whatever as to how the General Assembly shall provide for the investment of the fund, and no intimation that it shall be lent for the construction of public schools.4 The only other provision in the Constitution relating to the literary fund is found in section 135 that “The General Assembly shall apply the annual interest on the literary fund * * * to the schools of the primary and grammar grades for equal benefit of all the people of the State * * * ,”5 This provision has no relation to the investment of the fund and neither enlarges nor restricts the legislative power in that respect.
RETIREMENT FUNDS ALSO DEDICATED TO PUBLIC SCHOOL PURPOSES.
The majority opinion apparently holds that the General Assembly is vested with power to make loans for school buildings from any fund dedicated to public school purposes. If this be true, then clearly this power must be held to extend to the teachers retirement -fund.
The teachers retirement fund is expressly and specifically *43classified by the Constitution itself as being dedicated to public school purposes. That fund was in existence at the time of the proposal and adoption of the 1944 amendment to the literary fund section (134) of the Constitution. This amendment added to the original section 134, as above quoted, the following:
“ * * * provided that when and so long as the principal of the literary fund amounts to as much as ten million dollars, the General Assembly may set aside all or any part of moneys thereafter received into the principal of said fund for public school purposes including teachers retirement fund to be held and administered in such manner as may be provided by general law.” (Italics mine).
Thus the literary fund section of the Constitution, as amended since the decision in the Cox Case, expressly provides that the teachers retirement fund is included in “public school purposes.” And logically so. The salaries which teachers will be entitled to receive upon their retirement are as much a part of their compensation for their work as the salaries paid them while actually working. The retirement pay is actually earned. It is not a gratuity. It is not paid out of the principal of the retirement fund, but only out of the interest thereon. It is in this respect like the literary fund, since only the interest from either is available for distribution for school purposes.
Furthermore, the amendment to section 134 provides that any amount set aside for teachers retirement fund is “to be held and administered in such manner as may be provided by law.” This necessarily means the fund can be handled in making school loans in the same manner as the literary fund itself was being administered at that time, because the amendment contemplates a transfer of part of the literary fund to the retirement fund. I can conceive, therefore, of no logical principle upon which it can be said that the General Assembly possesses the power to employ the literary fund for school loans but cannot likewise employ the companion teachers retirement fund.
The next question which naturally arises is whether the *44money owned by the State which constitutes a part of the teachers retirement fund is sufficient to satisfy the five million dollars needed for the proposed purchase of literary loans. An examination of the appropriation acts for the last four sessions of the General Assembly shows the following appropriations for the teachers retirement fund:
Acts 1942, p. 807, Item 110..............$ 2,160,750
Acts 1944, p. 669, Item 65...............$ 2,829,300
Acts 1946, p. 799, Items 71 & 72.........$ 5,157,695
Acts 1948, p. 1150, Items 75 & 76........$ 6,300,000
Total ..................$16,447,755
In addition to the above, other sums were appropriated for the State employees retirement fund. Also the teachers and employees made additional contributions to their respective funds.
This money contributed by the State belongs to the State and is required by statute to be held and invested so that the sums appropriated and those contributed by the teachers will earn sufficient revenue to discharge the State’s obligation to pay the retirement salaries as they become due. As pointed out above, the literary fund section of the Constitution provides that the teachers retirement fund is one dedicated to “public school purposes,” just as the literary fund is so dedicated.
The majority opinion holds that the money received in the literary fund from the sale of one of its loans for schools does not actually become part of the literary fund. It treats the transaction as an unlawful device to impart to ■ retirement funds the peculiar qualities of the literary fund so as to render them eligible for loans to counties for the building of schools. The General Assembly no doubt considered, as the Attorney General contends, and as I agree, that it possesses the power to make these additional funds available for the discharge of its mandatory duty to provide moneys for schoolhouses. The plan adopted. was not in*45tended to clothe retirement funds with any supposedly magical properties now attributed by the majority opinion to the literary fund. It was not considered that these moneys possessed any such hidden and mysterious qualities as to render them alone eligible for these loans. But it was designed to place the retirement funds used to purchase literary fund loans under the supervision of the State Board of Education so that they would be available for the construction of schoolhouses. There was legislation already on the statute books which imposed on the State Board of Education the duty of making these loans from the literary fund and which set up the procedure and machinery incident thereto. If the retirement funds were also eligible for such loans, it was simpler to use the existing procedure than to set up a new regime to accomplish the same end.
The holding in the Cox Case that such joint intragovernmental financing is not within the prohibitions of section 115-a of the Constitution is but analagous to the well-established rule that statutory provisions which would restrict the government in its operations are not applicable to the government unless expressly made so. For instance, in United States v. United Mine Workers, 330 U. S. 258, 67 S. Ct. 677, 91 L. Ed. 884, it is held that the NorrisLaGuardia Act prohibiting injunctions in labor disputes does not apply to strikes against the government. See also, 25 R. C. L. “Statutes,” sections 31-33; 49 Am. Jur. “States, etc.,” sections 14, 15. Section 115-a does not expressly provide that it shall be applicable to transactions within the government, and I think the opinion in the Cox Case is one hundred per cent sound in holding that it has no such application.
The only expedient method by which schoolhouses in counties can be financed is through money provided by the State or by bonded indebtedness incurred by the counties when approved by the qualified voters. A board of supervisors has no authority to create a building fund in advance which it or another board may not, in the meantime, divert and appropriate for other purposes. No such practice is *46feasible or has ever obtained. Nor can the State finance these enterprises in its 140 subdivisions out of its current revenues, unless resort be had to extensive new taxation. This is recognized in the Cox Case.
■ The majority opinion expresses the view that the provisions of section 115-a are clear,—that it contains no “ambiguities” or “weasel words” needing “explanation.” Standing alone, this is undoubtedly true, but is it equally as true of section 129. “The General Assembly shall establish and maintain an efficient system of public free schools.” In the Cox Case we held joint State-county financing is necessary to enable the General Assembly to comply with section 129. The two sections—115-a and 129—are, therefore, irreconcilable under present existing conditions. Under the decision of the court in this case, the General Assembly is denied use of the only presently available funds to perform the duty laid upon it by section 129.
The majority opinion expresses the view that the Constitution intended to limit the amount which the General Assembly may make available for literary fund loans. But this is clearly rebutted by the conceded legislative power to add to the literary fund at any time by new appropriations.6 The restriction here imposed by the court is not on the power of the General Assembly to make unlimited funds available, because it can add indefinitely to the literary fund by new appropriations. The restriction is rather a regulation of the manner in which this power can be exer.cised.
The General Assembly is not now powerless to appropriate money to be paid into the literary fund sufficient to meet the present needs. Such action, however, would seriously disrupt the State’s plans for the retirement of its public debt. By Chapter 1 of the Acts of the 1942 Extra Session ten million dollars was appropriated to create a sinking fund, to be invested in securities of the United States, *47to be used to retire the refunding serial bonds of the State which were issued pursuant to Chapter 203 of the Acts of 1936. These bonds mature annually and the State is under no obligation to the bondholders to provide or maintain a sinking fund to retire them. It is within the power of the General Assembly to so amend said 1942 act as to require the sale of these securities and the payment of the proceeds into the general fund of the State treasury. The money could then be appropriated to the literary fund. Thus the decision of the majority here does not operate as a limitation upon the amount of money which may be made available for literary fund loans. It merely regulates the exercise of the legislative power in such manner as to constitute a most objectionable obstruction to the accomplishment of a legitimate purpose concededly within that power.
I do not think the court should interpose this obstruction.
There is nothing before the court to indicate or suggest that the State Board of Education and local school boards have overburdened the counties, or any one of them, with such loans, although for many years it has been deemed permissible to sell literary fund bonds to the Sinking Fund Commissioners when additional construction funds were needed. It is not for us to inquire whether the General Assembly has used good or bad judgment in making these retirement funds available for building schoolhouses. In the view I take of the matter, the restrictive action here taken by the court constitutes more nearly the exercise of a regulatory function than a judicial one.
In this regulatory field the General Assembly has plenary power to regulate the State Board of Education as well as the county boards in the making of these loans, and to prevent abuses from occurring.7 One method of regulation open to it is, of course, to limit the funds available for that purpose. But this is a legislative, not a judicial, function, and it must be assumed that the voice of the taxpayers, *48has been reflected in the actions of their legislative representatives in the passage of the legislation here challenged. If there was objection among the taxpayers, it was not reflected in the actions of their Senators or Delegates. That there was none is evidenced by the fact that not a single member of the Senate or House of Delegates voiced any protest. On the contrary, the passage of both bills authorizing the sale and purchase of literary fund bonds was passed by the unanimous vote of both houses.8 Furthermore, though the acts here declared invalid were passed, one in 1946, and the other in 1947, there has been no audible complaint from the taxpayers, nor have any of them filed an amicus curiae brief here protesting against it. It would seem, therefore, that the fears of the majority of the court that there is danger of an abuse of legislative authority in lending money to the counties for school buildings are not well-founded.
In this case I think we should adhere to the well-established principle expressed in Richmond Fairfield R. Co. v. Llewellyn, 156 Va. 258, 276, 157 S. E. 809, 162 S. E. 601, where we said the court cannot inquire “into the wisdom of the legislation. Nor may it pass upon the necessity for the exercise of a power possessed, since the possible abuse of a power is not an argument against its existence.”
In United States v. Butler, 297 U. S. 1, 79, 56 S. Ct. 312, 80 L. Ed. 477, the Justices of the Supreme Court of the United States were admonished that: “The only check upon our own exercise of power is our own sense of self-restraint. For the removal of unwise laws from the statute books appeal lies not to the courts but to the ballot and to the processes of democratic government.”
In Missouri, etc., R. Co. v. May, 194 U. S. 267, 270, 24 *49S. Ct. 638, 48 L. Ed. 971, Mr. Justice Holmes, speaking for the court, said that “It must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.”
And in Tobacco Growers’ Co-operative Ass’n v. Danville Warehouse Co., 144 Va. 456, 469-470, 132 S. E. 482, we said:
“Every act of the legislature is presumed to be constitutional and the courts are powerless to declare an act invalid, except where it appears beyond doubt that it contravenes some provision of the State or Federal Constitution. If we doubt we must sustain its constitutionality.” (Emphasis supplied). See also, Mumpower v. Housing Authority, 176 Va. 426, 444-445, 11 S. E. (2d) 732.
“In Button v. State Corp. Comm., 105 Va. 634, 54 S. E. 769, this is said: ‘The legislative department acknowledges no superior, except the Federal and State Constitutions, and its authority to enact laws unless forbidden by one or the other of these instruments in express terms, or by necessary implication, is paramount.’ ” (Emphasis supplied).
It is quite clear that the court here is overruling the cardinal principles enunciated in the Cox Case with respect to joint State-county financing of school buildings. Only two of the Justices who participated in that decision are now members of the court, Chief Justice Hudgins, who dissented in the Cox Case, and Mr. Justice Gregory, who was the author of the opinion which was concurred in by five of the seven justices. Five of the seven justices of the court as now constituted obviously think the conclusion reached in the Cox Case was incorrect. But that does not seem to me a sufficient reason to strike down legislation enacted on the faith of that decision. Particularly is this true when the principles overruled have been beneficial in their past application in securing Federal school building grants and no harmful results can be pointed out as ever having resulted therefrom. And this view is powerfully reinforced by the fact that the wisdom of applying these principles to this legislation have received the unanimous approval of the *50membership of the General Assembly and the Governor of the Commonwealth. My thoughts on the subject are cogently expressed in the opinion in a case where the entire personnel of the court had changed since the decision which they had under consideration. The later judges did not agree with the prior decision, but a majority of them adhered to it. The court had the following to say on the subject:
“ ‘It is the duty of this branch of the government to pass finally upon the construction of a law, and determine whether the legislature in its action has transcended its constitutional limits, and the community has a right to expect with confidence we will adhere to decisions made after full argument and upon due consideration. The members of the court may change totally every six years, and, if each change in the organization produces a change in the decisions and a different construction of law under which important rights and interests have become vested, it is easy to see that the consequences will be most pernicious.’ Fisher v. Horicon Iron, etc., Co., 10 Wis. 351.
“The most indispensable guaranty of civil liberty, according to Mr. Hallam (1 Const. Hist. 230), is the ‘open administration of justice according to known laws.’ The law can be known only if fixed rules once established are consistently adhered to. Decisions of the courts are the highest evidence of what the law is. ‘Respect for precedents alone can secure the stability and uniformity of the law. Without such respect it would be a shifting quicksand.’ ” (Scown v. Czarnecki, 264 Ill. 305, 106 N. E. 276, L. R. A. 1915B, 247, 259-260).
The general rule of stare decisis is thus stated in 14 Am. Jur., Courts, section 66, p. 287:
“Decisions construing the Constitution or acts of the legislature should be followed, in the absence of cogent reasons to the contrary, inasmuch as it is of the utmost importance that the organic and statute law be of certain meaning and fixed interpretation. * * * ”
All of the general principles urged by the majority and concurring opinions in derogation of the power of the Gen*51eral Assembly to authorize loans from the teachers retirement fund are equally applicable to literary fund loans to counties, though the latter are upheld by both opinions. The inference would seem to be that the statute permitting such loans is of “doubtful constitutionality.” In this situation, it is appropriate to reiterate what Judge Burks had to say in Portsmouth v. Weiss, 145 Va. 94, 133 S. E. 781, which was this:
“Whenever a statute is enacted by the legislature, it is a legislative declaration that it is a constitutional enactment, and when approved by the Governor it is an executive declaration to the same effect. Hence the oft-repeated declaration that all doubts about the constitutional validity of a statute are to be resolved in favor of its validity, and that there is no such thing as a statute of doubtful constitutionality.”
I will summarize my views as follows:
First: I think the court should hold that section 115-a of the Constitution does not impose any limitation on the particular funds or moneys the General Assembly may employ in jointly financing, with the counties, the construction of school buildings which have been approved by the State Board of Education.
Second: If the majority of the court is of opinion that only trust funds owned by the State which are dedicated to public school purposes can be employed, the court, nevertheless, should sanction the use of the money in the teachers retirement fund contributed by and owned by the State, the interest from which is dedicated to the payment of teachers retirement salaries. This upon the principle of the maxim ut res magis valeat quam pereat,—that a statute will be so construed as to render it constitutional if possible to do so. Commonwealth v. Carter, 126 Va. 469, 483-484, 102 S. E. 58. I think a mandamus should be awarded directing the issuance by the comptroller and payment by the treasurer of the warrants in question out of the teachers retirement fund not in excess of the amount therein owned by the State.
*52Third: I concur in the view of the majority of the court as expressed in the concurring opinion of the Chief Justice that section 115-a imposes no restriction upon the sale by the State to other governmental agencies of literary fund loans made to its municipalities.
Gregory, J., concurs in this opinion.At the 1928 session, just three months prior to the ratification of section 115-a, no less than fourteen such bills were passed as emergency measures so as to get under the wire before the adoption of the amendment. Only one of them was for a school building, however. Most of them were for roads.
No change in the general law relating to county bond issues was required by the amendment. Since 1906 the statute had required approval by the voters.
Counties may be classified by their density of population, such as Arlington County, or by the fact that they are adjacent to cities of a certain size (as Henrico and Chesterfield counties), and by many other circumstances and conditions.
As a matter of fact by Chapter 489 of the Acts of 1926 provision was made for all the State institutions of higher learning to issue self-liquidating •dormitory income certificates of indebtedness. The State Board of Education was authorized to sell the bonds of the State held in the literary fund portfolio and with the proceeds purchase these dormitory certificates. The purpose of the act was to provide funds for the construction of •dormitories. The certificates were to be retired out of rents from students living in the dormitories. The plan was highly successful and was used repeatedly through legislative enactments in subsequent years. The Education Board sold many of these certificates, reinvesting some of the proceeds in like newly issued certificates and some in loans for school buildings. See opinions of the Attorney General 1938-1939, pp. 22, 160, 2J0.
The loans sustained in the Cox Case, it may be noted, are for all public .schools, not just those “of the primary and grammar grades.”
Section 134 of the Constitution provides that “the General Assembly shall set apart” as the literary fund “the present literary fund * # * ; and such other sums as the General Assembly may appropriate.”
Section 642 of the Code provides that “No loan shall be made in any case in which the payment of the same with interest would, in the judgment of the State Board of Education, entail too heavy a charge upon the revenues of the county or city to which such loan is granted.”
The Senate Journal of 1946, p. 622, shows that the vote on House Bill 364, the act authorizing the purchase by the Retirement Fund Trustees was Yeas 35, Nays 0; the House Journal, 1946, p. 652, shows the vote was Yeas 91, Nays 0. The Senate Journal of the 1947 Extra Session, p. 81, shows the vote on Senate Bill 20, authorizing the sale of the literary fund bonds was Yeas 36, Nays 0, while the House Journal, p. 215, shows the vote in the House was Yeas 81, Nays 0.