delivered the opinion of the Court:
This is an application for a mandamus to compel the Treasurer of the State to pay a certain warrant in favor of the relator in gold coin.
The facts are these. The relator was a .member of the Senate in the late General Assembly and, as such, entitled to a certain per diem and mileage, the amount being fixed by the Constitution.
At the late session of the General Assembly, at which the relator attended as Senator, an act was passed entitled “An act making certain appropriations not otherwise provided for,” the second section of which in its last clause, is as follows: “And i\\a per diem and mileage of the members of the present General Assembly, and of the Speaker of the Senate, and the Speaker of the House, shall be paid out of the State Treasury in gold coin. (Sess. Laws 1865, page 14.)
At the same session, and on the same day, the General Assembly passed another act entitled “An act to provide for the payment of the interest on the sterling bonds of the State f the first section of which provides, “ that the gold and silver coin now in the Treasury be and is hereby appropriated for the purpose of paying the interest on the sterling bonds of the Staté, which are payable in London.” lb. page 22.
It is agreed that both these acts were approved on the same day, but the last recited act was approved last, but actually passed both houses several days prior to the first named act.
It is insisted by the respondent, that the act requiring payment to the members to be made in gold is contrary to the twenty-second, twenty-sixth, thirty-third and thirty-seventh sections of article three of the State Constitution.
Article three relates to the legislative power of the State. Section twenty-two provides, that bills making appropriations for the pay of the members and officers of the General Assembly, and for the salaries of the officers of the Government, shall not contain any provision on any other subject. Section twenty-sixth provides, that no money shall be drawn from the Treasury but in consequence of appropriations made by law, &c. Section thirty-third provides, that the General Assembly shall never grant or authorize extra compensation to any public officer, agent, servant or contractor, after the service shall have been rendered, or the contract entered into. Section thirty-seventh provides, that each General Assembly shall provide for all the appropriations necessary for the ordinary and contingent expenses of the Government, until the adjournment of the next regular session, the aggregate amount of which shall not be increased without a vote of two-thirds of each house, nor exceed the amount of revenue authorized by law to be raised in such time. Scates’ Comp. p. p. 61, 62.
It is urged by the Treasurer, that this act, on its face, shows it is in conflict with section twenty-second, as it is made up of provisions on other subjects having no relation to the pay of the members of the General Assembly. This objection is petitio principa, a begging the question, as it is not shown, this clause of the act is an act making appropriations for the pay of the members. The appropriations in the act are distinctly made for other and different purposes. This clause merely directs in what kind of funds the Treasurer shall pay the members for which appropriations had been made in obedience to the requirements of section thirty-seventh of the Constitution. These appropriations were made by the act June 12, 1863. (Sess. Laws 1863, page 21.) Therefore there is no violation of the twenty-sixth section.
Nor is it in violation of section thirty-three, because the services to pay which the act of 1865 was passed, had not been rendered at the date of the act, nor does it, in terms, or by fair implication, grant any extra compensation to the members of the Legislature, even if this section can be rightfully considered as applicable to them.
As this act does not increase the compensation of the members, it can not be said to violate the thirty-seventh section. Not increasing the compensation, a vote of two-thirds was not necessary to pass the bill.
The compensation of the members of the General Assembly is fixed by section twenty-fourth of this same article three, at two dollars per day for forty-two days’ attendance, and one dollar per day for each day’s attendance thereafter, and ten cents for each mile of necessary travel going to and returning from the Seat of Government.
This compensation was payable in the money of the Constitution, that is, in gold coin, so that the act of 1865, requiring it to be paid in such coin, was no more than a reiteration of the demands of the Constitution, and in no sense an amendment of the act of 1863, which appropriated the money to pay it.
It is urged by the Treasurer, that the act of 1865, requiring payment in gold coin, violates section twenty-sixth, for the reason that there was not, by the act of 1863, any appropriation of this coin, and consequently, there being no appropriation of it by that act, payment in gold can not be insisted on by the relator.
To this it may be answered, that the act of 1863, making the appropriation to pay the members, does not exclude the idea the payment was to be made in gold. Nothing but gold was then the currency of the Constitution, so that it was unnecessary then to direct the Treasurer to pay the warrants . drawn on this appropriation, in gold .coin. But when, at the same session, the act making United States legal tender Treasury notes, and postage currency receivable for taxes, was passed, and those notes filled the vaults of the Treasury, occupying places where gold should have been, it became necessary to direct the Treasurer in what medium he should discharge the warrants drawn .in favor of the members of the General Assembly, hence this law of 1865. This law, then, is mandatory to the Treasurer, and he is shorn of any discretion, provided always, the coin is in the Treasury when the warrant is presented.
It is urged by the Treasurer that these warrants to the members of the General Assembly are all drawn on a specific fund, called the “ Revenue Fund,” and that when the warrant was presented by the relator, and when the same was issued, there was no gold coin in the Treasury belonging to that fund.
It is true, the act of 1863, before cited, by section two, provides that the Auditor, upon presentation of the certificates of the Speaker of each house, shall draw his warrant upon the revenue fund for the amount to which each person shall be entitled as aforesaid, to be paid by the State Treasurer out of the said revenue fund in the State Treasury.
The warrant drawn in this case does not purport to be drawn on this fund, in so many words, but in legal contemplation, it must be understood as so drawn, and being so drawn, the Treasurer is inhibited from paying it out of any other than the revenue fund. He could not pay it out of the School Fund, the Central Railroad Fund, or the fund raised by special tax for the payment of the interest on the State debt. Those funds are a sacred deposit to meet and discharge trusts of the most important character devolving upon the State, and which her honor requires shall never, under any pretense, be misapplied.
If then, we understand the answer of the Treasurer, he has in the Treasury gold coin more than sufficient to discharge this warrant, but that it does not belong to the revenue fund, on which the warrant, by the terms of the law, is drawn, consequently the relator can not, with propriety, claim to have his warrant- paid out of any other fund made up of gold coin. It is not for this court to] say how the revenue fund, so called, is constituted, of what items of revenue it is made up, it is sufficient the law of 1863 emphatically directs the warrants for the pay of the members of the General Assembly to be drawn on that fund, and the Treasurer is specially directed to pay them out of that fund, thereby, by clear implication, prohibiting payment out of any other fund.
The other act, providing for the payment of the interest on the sterling bonds of the State, we understand from the Treasurer’s answer, has been executed, and • after paying such interest, there remains no gold coin in the Treasury belonging to any fund. The application for a peremptory mandamus must be denied.
Mcmdamus refused.