dissenting. — A brief statement will enable me to sufficiently indicate why I am unable to agree to the.foregoing opinion:
• ■ 1. It is the duty of the Auditor, and he' has authority only “to draw warrants on the treasury for money dix’ected by law to be paid o'ut of thA treasury as the same may become payable.” Code, Sec. 66, subdivision 8. If the money is not payable or subject to be drawn from the treasury in accordance with some law, then the Auditor cannot draw the necessary warrants to enable the parties entitled thereto to draw or obtain the inoney from the treasury.
2. The Auditor is the financial agent of the State, and if m'ouey can be drawn from the treasury only upon the happening of some contingency, it is his duty before drawing warrants therefor to ascertain and know that the contingency, whatever it may be, has occurred and is an existing fact.
3. As I undex-stand the act in question, the money claimed by the University is not due and payable for the reason that ■it is conceded there is no money in the State treasui’y. There is no doubt as to the appropriation. The difficulty is that the money so appropriated can only be “ drawn from the State -treasury in eight quarterly installments, commencing on and with the first day of July, 1876, or as soon after sxxch quarterly periods as the money irx the State treasury xnay allow.” I am unwilling to believe the legislative intent to be other or different from what to my mind the foregoing language indicates, and that is, that the money cannot be drawn at such quarterly periods unless it is in the treasury, and if not there .then it may be drawn as soon thereafter as there is money .in the treasmy. The latter part of the provision controls and limits the first part. If this be not true, then it necessax’ily follows that if, at any time after the first qxiarterly period, thei’e was sufficient money in the treasury, the whole amount ,of the appropriation could be drawn at one time. I do not believe such was the legislative intent.
*4254. When warrants are drawn they may at once be presented for payment, and if there are no funds it is the duty of the treasurer to indorse them as provided by iaw, and they thereafter bear interest. The presumption must be that the General Assembly supposed when making the appropriation there would be funds in the treasury which could be applied to the payment thereof as fast as the wants of the University required, and that it was not the legislative intent to borrow money or pay interest on the whole or a part of the appropriation, and by that means support and maintain the University, but that if the State had the money the intent was to maintain it, otherwise not. This thought is aided by the fact that this is the only appropriation of the numerous ones made which contains any such provision. All others are payable absolutely, whether there are funds in the'treasury or not.
It is not my province to either approve or condemn this action of the General Assembly, but to declare its meaning and intent as I understand it, regardless of consequences. I am of opinion the judgment below should be affirmed, and in this view Day, Oh. J., concurs.