delivered the following dissenting opinion:
According to the judgment I have been able to form in this case, the Comptroller was fully justified in his refusal to issue the warrant on the Treasurer for the payment of the claim of the appellee.
The ambiguity and defect of the Act of 1867, ch. 872, render its construction more a matter of conjecture than of judicial interpretation.
The doubtful tenor of the Act, in my comprehension, would fully have justified the Court in leaving its true construction and purpose to be settled by the Legislature, by some adequate amendmeut or declaratory law.
It is not for the Courts, but those who make the laws, to supply defects therein ; and it is certainly neither the province or duty of the Courts, under color of construction, to cure the material omissions of the law.
.Besides this difficulty, growing out of the obscurity of the Act and the uncertainty of giving it proper and definite application, assuming it to have had constitutional authority, it has not the characteristics prescribed and demanded by the Constitution of 1864, then in force, to give the Act the binding force of law, and therefore, being in excess of legislative power, it is void.
To provide wholesome safeguards for the security of the money in the Treasury of the State, and prevent it being drawn therefrom, except for specific, defined and, justifiable purposes, the fundamental law of the State had wisely prescribed certain conditions and limitations, obligatory upon all the departments of the government:
Indeed, the whole scope and tendency of the Constitution of 1864, as well as the existing Constitution, it may *208be observed in this connection, are utterly antagonistic to the validity of this Act, as not being in accordance with constitutional requirement.
•Art. 8, sec. 31, of the Constitution of 1864, expressly and emphatically condemns the passage of such an Act, by declaring in terms, it appears to me, plain, unequivocal and mandatory, that “ no money shall be drawn from the Treasury of the State ” (Constitution of 1867 has the additional restriction,) “ by any order or resolution,” “ except in accordance with an appropriation by law, and every such law shall distinctly specify the sum appropriated, and the object to which it shall be applied.”
It will be seen from this provision that no money can be drawn from the Treasury except by legislative appropriation, distinctly specifying the sum appropriated, and the object of the same.
Upon what solid ground can it be maintained that the Act now in question is fortified and supported by these certain, specific and indispensable requirements ? No sum is distinctly specified in the Act, and as to the precise object and purpose, it is left to the doubtful interpretation of a multiplicity of antecedent Acts and supplements, the constitutionality of which might also be a matter of grave doubt.
If such legislation can be sustained in the face of constitutional provision, where is to be the limit to legislative action ?
By the 34th sec. of same Art., (and 35th sec. of 3d Art. of the present Constitution,) it is declared “ no extra compensation shall be granted or allowed by the General Assembly, to any public officer, agent, servant or contractor, after the service shall have been rendered or the contract entered into.”
If this Act of 1867 were designed to make additional compensation or allowance to the appellee, clearly the Legislature are forbidden to do so; but if the officer, *209agent, or other employe can receive a gift, gratuity, or bounty eo nomine, of what value is the provision ?
But if a bounty be .intended, the Legislature, upon every principle of fair construction, must so distinctly declare.
The existing Constitution, by the 52d sec., 8d Art., contains this additional provision, to wit: “ The General Assembly shall appropriate no money out of the Treasury for payment of any private claim against the State exceeding three hundred dollars, unless said claim shall have been first presented to the Comptroller of the Treasury, together with the proofs upon which the same is founded, and reported upon by him.”
It will be seen by this constitutional requirement, which may well be referred to, argumentatively at least, with what caution the Treasury is endeavored to be guarded against party legislative action, even in regard to claims upon the State, by requiring the proof to be first presented to the Comptroller, and reported upon by that highly responsible financial officer.
By the 28th sec. of 3d Art. of the Constitution of 1864, provision is made that “ every law enacted by the General Assembly, shall embrace but one subject, and that shall be described in its title, and no law or section shall be revised or amended by reference to its title or section only,” and the present Constitution by Art. 3, sec. 29, makes this addition: “ nor shall any law be construed, by reason of its title, to grant powers or confer rights which are not expressly contained in the body of the Act.”
These provisions of the Constitutions of 1864 and 1867 also evince, in unmistakable terms, the cautious effort to surround the legislative department as the other departments had been, by provisions adapted to the nature of the duties pertaining thereto, in order to prevent improvident and incongruous legislation upon all subjects, including, of course, appropriations of the public moneys.
*210If the prescribed and indispensable requirements of the fundamental law had been regarded, no such controversy as this could have arisen.
This Act of 1867, ch. 872, being not only obscure but essentially defective, and without constitutional sanction, I think the action of the Comptroller refusing his warrant, eminently proper, and fully authorized by the character of this Act, and ought to he sustained, and the pro forma order of the Court below, for the mandamus, reversed.
Differing from the conclusions of a majority of my brethren upon the important questions involved in this case, I 'have deemed it proper and just, briefly to record the grounds of my dissent.